Andhra Pradesh High Court - Amravati
Bezawada Malakondaiah Died, Spesr ... vs Mande China Kondaiah, Spsr Nellore Dist ... on 4 September, 2019
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
C.R.P.No.4340 of 2017
ORDER:
This civil revision petition is directed against the order of the Court of learned Principal Junior Civil Judge, Kavali, in O.S.No.489 of 2001 passed on the docket on 06.07.2017.
2. The 1st petitioner Sri Bezawada Malakondaiah, since deceased, instituted the above suit against the 1st respondent Sri Mande China Kondaiah, since deceased. Both of them now represented by their respective legal representatives in this revision petition. The suit was laid for grant of permanent injunction against the respondents herein restraining them from in any way interfering with the peaceful possession and enjoyment of the petitioners, of the plaint schedule property.
3. The plaint schedule property is an extent of Ac.3.00 in Sy.No.187/2, Ac.1.26 cents in Sy.No.187/3, Ac.4.71 cents in Sy.No.186 in all Ac.8.97 cents at Marrigunta Village, Kondapuram Mandal, Nellore District covered by Patta No.295.
4. The deceased 1st petitioner was claiming that he had purchased the above land under an agreement for sale dated 20.03.1965 from Smt. Varada Pitchamma and on account of threat of dispossession, he claimed that he was constrained to institute the suit. He also referred in the plaint as to role of respondent No.5 in initiating proceedings under Section 145 Cr.P.C., with reference to this land. The respondents have filed their written statement in the above suit.
5. After trial has commenced and at the stage when the 4th petitioner filed his affidavit in examination in chief and when a request was made to the trial Court on behalf of the petitioners to mark the 2 MVR,J C.R.P.No.4340 of 2017 aforestated agreement for sale, as an exhibit on their behalf and as part of their evidence, an objection was taken on behalf of respondent Nos.2, 3 and 7 to 10 stating that it was inadmissible, since its contents reflected as a sale deed, while relying on the decision of this Court in Bangaru Ramathulasamma v. Yedam Masthan Redy and Ors.1. Upon consideration of such objection and the document in question, learned trial Judge accepted the version of the respondents, who objected for reception of the above document in evidence holding that this document being a sale deed, and thus could not be received in evidence.
6. Against the above order, the present revision petition is filed.
7. Sri P. Sridhar Reddy, learned counsel for the petitioners contended that the agreement for sale in question was earlier subject matter of a suit in O.S.No.378 of 2000 filed by the deceased, 1st petitioner against one Sri Bezawada Malakondaiah S/o. Yarraiah of Kommi village, where, it was also exhibited. Learned counsel further contended that required stamp duty and penalty was already paid on the document in the above suit. While referring to contents of document that possession was delivered thereunder to the deceased-1st petitioner and having regard to its date, viz., 20.03.1965, it cannot be construed, as conveyance nor can be subjected to application of Section 47(A) of the Indian Stamp Act, as applicable in the State of Andhra Pradesh since it did not have retrospective effect.
8. Sri T.C. Krishnan, learned counsel for the respondents adverting to the contents of the document in question, strenuously contended that it is an out and out sale deed and in as much as the consideration thereunder is more than Rs.100/-, in terms of Section 54 of the Transfer 1 1998 (5) ALD 502 3 MVR,J C.R.P.No.4340 of 2017 of Property Act, applying Section 17 of Indian Registration Act, 1908, it has to be compulsorily registered. Thus, learned counsel for the respondent Nos.2, 3 & 7 to 10 contended that the trial Court was right in considering such objection at appropriate stage and in holding that it is inadmissible in evidence for want of registration.
9. In the above background, now the following point emerges for determination of this Court:
"Whether document dated 20.03.1965 described as an agreement for sale by the deceased 1st petitioner in the plaint, is admissible in evidence, having regard to its nature and if order under revision is proper?"
10. Sri P. Sridhar Reddy, learned counsel in support of his contention, relied on a judgment of then composite High Court of Andhra Pradesh at Hyderabad in Meesala Krishna Rao v. Allu Suryanarayana an anr.2. In this ruling with reference to Article 21 of Schedule 1-A of Stamp Act, as applicable to the State of Andhra Pradesh, which came into effect from 01.04.1990 by the A.P. Amendment Act 22 of 1989 and referring to judgment of Hon'ble Supreme Court in Avinash Kumar Chauhan v. Vijay Krishna Mishra3, it was observed, in the backdrop of given facts, in paragraphs 7 to 9 as under:
7. A perusal of the suit document would show that it was an agreement of sale executed on 20-11-1981 wherein, it is recited that the suit property was purchased by plaintiff's father Meesala Chinna from Gangamma and Rangavenamma for a consideration of Rs. 1,000/- and that the sale consideration was already received and the possession of vacant site together with thatched house was also delivered to the purchaser and 2 2010 (3) ALT 627 3 AIR 2009 SC 1489 4 MVR,J C.R.P.No.4340 of 2017 regular registered sale deed would be executed as and when demanded by the purchaser. The genuineness or otherwise of the said document does not arise for consideration at this stage. The document shows that it was executed on a stamp paper worth Rs.7/-. As per Article 21 of Schedule 1-A of the Stamp Act, agreement or memorandum of agreement was chargeable with stamp duty of Rs.5/- when the value of the property does not exceed Rs.5,000/-. The stamp duty was enhanced to Rs.10/- by A.P. Amendment Act 22 of 1989 with effect from 01-04-1990. The suit document purported to have been executed on 20-11-1981. By that date, the stamp duty payable on the document was only Rs.5/-. Since the suit document is executed on the stamp paper worth Rs.7/-, it cannot be said that the suit document is insufficiently stamped. The question of applying the bar contained under Section 35 of the Stamp Act does not, therefore, arise.
8. The learned Junior Civil Judge referred to the decision in Avinash Kumar Chauhan v. Vijay Krishna Mishra 2009 (2) ALT 19 (SC) : 2009 (2) SCJ 156 : AIR 2009 SC 1489, wherein, the apex Court held that 'inadequate stamp duty on the unregistered deed of sale was not admissible in evidence, even for collateral purpose under Section 35 of the Stamp Act'. In the above case, the agreement dated 04-08-2003, which was sought to be relied upon as a sale deed. In view of the Explanation appended to Schedule I-A of the Stamp Act by M.P. Act No. 19 of 1989, where an agreement to sell Immovable property, which contemplates delivery of possession was deemed to be a conveyance, it was held that 'the unregistered deed of sale was required to be charged with stamp duty as applicable to a deed of conveyance and as the adequate stamp duty was admittedly not paid, the Court was empowered to pass an order in terms of Section 35 of the Act, directing impounding of said document'. In the above case, it was also held that 'the document cannot be received in evidence, even for collateral purpose unless it was duly stamped or duty and penalty are paid under Section 35 5 MVR,J C.R.P.No.4340 of 2017 of the Stamp Act, as the bar contained in Section 35 is absolute, whatever be the nature of the purpose'. The proposition laid down in the above decision cannot be disputed. However, the above decision is not applicable to the facts of the present case, for the simple reason that the suit agreement of sale in the present case was executed on 20-11-1981 by which date, it was chargeable with a stamp of Rs.5/- and in fact, the suit document was executed on stamp paper worth Rs.7/-, the question of suit document being insufficiently stamp and, therefore, attracting the bar contained under Section 35, does not simply arise.
9. The requirement of registration of agreement of sale of value of more than one hundred rupees came into force by virtue of Amendment brought by Act 4/99 to the Registration Act. As on the date of the suit document in 1981, the agreement of sale was not a document requiring compulsory registration. The bar contained under Section 49 of the Registration Act also does not get attracted. The suit document is, therefore, admissible in evidence, as the same is not hit by Section 17 read with Section 49 of the Registration Act or Section 35 of the Stamp Act, as they existed as on the date of the suit document. It is, however, open to the respondents/ defendants to raise all contentions permissible under law pertaining to the suit document including its truth, validity and relevancy at the appropriate stage during the course of trial."
11. When the above ruling is applied to the agreement for sale, dated 20.03.1965 in question in this case, it cannot be said that the same suffers from such vice, pointed out in the order under revision. A copy of the aforestated agreement for sale unfortunately is not produced in this revision petition. Even otherwise, having regard to contents of the plaint and contentions on behalf of the petitioner in this revision petition, the above agreement for sale was already exhibited upon collection of required stamp duty and penalty in O.S.No.378 of 2000 on the file of the 6 MVR,J C.R.P.No.4340 of 2017 Court of the learned Principal Junior Civil Judge, Kavali. In such an instance, question of re-determination of stamp duty or penalty payable thereon cannot arise. The reason is that pursuant to Section 42(1) of Indian Stamp Act, a certificate has to be issued upon collection of such stamp duty. Once the document is so certified, question of raising any objection in terms of Section 35 of Stamp Act, cannot arise and the certificate so issued shall be conclusive proof in terms of Section 40(2) of the Stamp Act. Therefore, the objection on the ground that the document suffers from want of appropriate stamp duty, in the above circumstances, cannot stand.
12. However, Sri T.C. Krishnan, learned counsel for the respondent basing on the nature of the document, contended that being a sale deed prepared on a white paper, it is completely inadmissible in evidence for want of registration under Section 17(1) of Registration Act. In support of such contention, learned counsel for the respondents placed reliance upon Banguru Ramathulasamma v. Yedem Masthan Reddy and ors.4. Having regard to the nature and contents of the document that fell for consideration in the above ruling of this Court, though it was styled as an agreement for sale, which also contemplated execution of another document in terms thereof, it was held to be a sale deed basing on recitals in the above document that the right of the seller stood extinguished while conferring right and interest to the property covered by it on the purchaser.
13. In response to the above contention Sri P. Sridhar Reddy, learned counsel for the petitioner, stating that the document in question cannot be treated as an out and out sale deed and relying on proviso to 4 1998 (5) ALD 502 = 1998 (4) ALT 796 7 MVR,J C.R.P.No.4340 of 2017 Section 49, it is contended that for collateral purpose even otherwise, it could be received to prove the factum of possession of the plaint schedule property to rest with the petitioners.
14. Reliance is placed for the petitioner in support of this contention, in Kaheeda Moin and ors. V. Md. Iqbal Ali and ors.5, wherein effect of non-registration of documents, which are compulsorily registerable with reference to Section 17 (1) and Section 49 (c) of Indian Registration Act was considered, after reviewing the law with reference to judgments of then composite High Court of Andhra Pradesh at Hyderabad, the Hon'ble Supreme Court and Punjab and Haryana High Court. It was observed that the partition deed in question concerned to the above case can be admitted in evidence for limited purpose of proving factum of partition and the nature of possession of the parties and that it cannot be looked into for the purpose of proving the terms of partition or allotment of specific shares.
15. It is settled proposition of law that mere title or nomenclature given to the document shall not be conclusive to determine its nature. The recitals in the document predominantly hold the field and basing on the recitals, if they tend to convey right, title and interest on the property or extinguish or take away the rights of the other party thereunder in praesenti, there cannot be any reason to hold that such document, even though styled as an agreement for sale, could be taken or treated as such. However, facts of each case necessarily have to be considered and there cannot be any straight jacket formula to follow, in this situation.
16. Nonetheless, having regard to the proviso to Section 49 of Registration Act, when the apparent purpose of the petitioners to rely on 5 1998 (5) ALD 633 8 MVR,J C.R.P.No.4340 of 2017 such document is only to prove factum of possession of the property in dispute, viz., the plaint schedule property, it shall be received in evidence.
17. In that background, the ruling relied on for the respondents and considered in the order under revision, since differs on facts, cannot be made applicable. Having regard to the nature of suit filed by the petitioners, and purpose for which they intend to rely on the document styled as agreement for sale dated 20.03.1965 at the trial and to bring it on record in evidence, it is desirable that the same be admitted in evidence, be exhibited on behalf of the petitioners at the trial, only for a limited purpose of proving nature of possession of the property, sought to be canvassed by the petitioners at the trial.
18. Therefore, accepting the contention on behalf of the revision petitioners, the order under revision has to be set aside, directing the trial Court to permit the petitioners to exhibit the document styled as agreement for sale dated 20.03.1965 on their behalf.
19. In the result, the Civil Revision Petition is allowed and consequently the order of the learned Principal Junior Civil Judge, Kavali dated 06.07.2017 in O.S.No.489 of 2001 is set aside. The trial Court is directed to permit the petitioners to exhibit the document styled as agreement for sale dated 20.03.1965 for collateral purpose only to prove factum of possession claimed by them of the plaint schedule property. There shall be no order as to costs.
20. As a sequel, pending miscellaneous petitions, if any, shall stand closed.
_________________________ M. VENKATA RAMANA, J.
4th September, 2019 Js.
9 MVR,J C.R.P.No.4340 of 2017 HONOURABLE SRI JUSTICE M. VENKATA RAMANA C.R.P.No.4340 of 2017 4th September, 2019 Js.