Andhra HC (Pre-Telangana)
M. Madusudan Reddy vs M. Kamalamma And Ors. on 2 December, 2003
Equivalent citations: 2004(1)ALD260
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The petitioner is the plaintiff in OS No. 33 of 2001 on the file of the Senior Civil Judge, Nalgonda. He filed the suit against the respondents herein for specific performance of an agreement of sale dated 94-2001. The trial of the suit commenced. The respondents sought to rely upon an agreement of sale dated 30-3-1989. The petitioner objected to the admissibility of the document on the ground that the said agreement is nothing but a sale deed and was subject to stamp duty under Section 47A Indian Stamp Act (for short 'the Stamp Act1) as well as registration under the Indian Registration Act (for short 'the Registration Act'). The Trial Court received the same subject to objection, during the course of recording the evidence on 18-6-2003, and marked it as Ex.B1. Hence this revision.
2. Learned Counsel for the petitioner Sri M. Venkatram Reddy, submits that though the document is described as an agreement of sale, it witnessed the receipt of substantial portion of consideration and provided for payment of balance of consideration and delivery of possession at a specified time. According to him, the payment of balance of consideration and delivery of possession took place as provided for under the agreement and that being the case; it needs to be treated as a sale deed. One more contention advanced by him is that when the same document was sought to be pressed into service during the enquiry into IA No. 268/2001 in the suit, the petitioner objected to the same and that the objection was sustained by the Trial Court through its order dated 10-4-2002. Relying upon several judgments rendered by this Court the learned Counsel submits that the nomenclature of document is not conclusive. He also places reliance upon Explanation 1 to Article 47-A of Schedule 1-A of the Stamp Act.
3. Sri M Rajmalla Reddy, learned Counsel for the respondents, on the other hand, submits that the document did not by itself evidence the delivery of possession, either anterior or subsequent to the date of its execution. It is his case that Explanation 1 to Article 47 A of Schedule 1A of the Stamp Act would get attracted, if only the Agreement/document evidenced delivery of possession and not otherwise. He too, had relied upon certain decided cases.
4. It is settled principle of law that the nomenclature of a document is not a decisive factor. From the point of view of admissibility, it is the contents of the document that assume importance. If a document, though named as agreement of sale, contains all ingredients of sale, it is to be treated as a sale deed. In such cases, its admissibility would depend upon the compliance with the requirements, such as, stamp duty and registration. The amendment brought about through A.P. Act 21 of 1995 to Article 47A of Schedule 1A of the Stamp Act had narrowed down the distinction between an agreement of sale and a sale deed from the point of view of stamp duty. The Explanation added through the amendment reads as under:
"An agreement to sell followed by or evidencing delivery of possession of the property agreed to be sold shall be chargeable as a "Sale" under this Article:
Provided that, where subsequently a sale deed is executed in pursuance of an agreement of sale as aforesaid or in pursuance of an agreement referred to in Clause (b) of Article 6, the stamp duty, if any, already paid or recovered on the agreement of sale be adjusted towards the total duty leviable on the sale deed."
From a reading of the Explanation, it is evident that if an agreement evidenced delivery of possession of the property agreed to be sold, it is liable to be charged as a sale deed. An important distinction brought about by various situations, having relevance to this Explanation, needs to be noted. There are certain agreements, which contain a recital to the effect that the possession has already been delivered to the purchaser or is being delivered through the agreement itself.
In such a case, undoubtedly, the agreement is liable to be charged as if it is a sale deed. There are also agreements, which provide for delivery of possession at a future point of time, be it subject to payment of the balance or any portion of consideration, or on occurrence of any event. Here again, two situations may be contemplated. If such delivery of possession at a subsequent point of time is evidenced by that very agreement in the form of an endorsement, etc., it gets attracted by Explanation 1. On the other hand, even if the delivery of possession has taken place at a subsequent date, but the same is not evidenced by the agreement, it does not attract Explanation 1. In such an event, the document deserves to be treated as agreement simplicitor, notwithstanding the fact that possession of the subject-matter of the agreement was delivered, otherwise than through an endorsement on the agreement itself.
5. A Division Bench of this Court in B. Ratnamala v. G. Rudramma, (DB), dealt with an agreement, which evidenced a symbolic delivery of possession through the agreement itself. After referring to the various decided cases, it held that, the agreement was covered by Explanation 1 to Article 47-A and, as such, was liable to be charged the stamp duty, on par with sale deed. In M.A. Gafoor v. Mohd. Jani, . Explanation 1 of Article 47A was interpreted to the same effect.
6. An instance of possession of the property being delivered subsequent to the date of agreement and on payment of balance of consideration, and such delivery having been endorsed on the agreement itself, was considered by this Court in Mekapothula Linga Reddy v. Durgempudi Gangi Reddy, 1995 (2) ALD 59. It was held that Explanation gets attracted and the document is liable to be charged the stamp duty. Even in cases where an agreement of sale is to be treated as a sale deed, it is not as if the Court can refuse to receive outright, on the ground that it is insufficiently stamped or unregistered. Such a document is admissible for collateral purposes.
7. Reverting to the facts of the case, it is seen that Ex.B1 does not contain a recital that possession of the land has been delivered either anterior to, or through it. Further, it does not contain an endorsement that possession was delivered at a subsequent date. Even, if it is true that possession was delivered, as provided for in it, it continues to be an agreement, as long as the endorsement was not made in it. Having regard to the language employed in Explanation 1 to Article 47-A and the decided cases referred to above, this Court is of the view that the document in question, being Ex.Bl is only an agreement of sale and, as such, is not liable to be levied stamp duty, as if it is a sale deed. The Trial Court cannot be said to have committed an error in receiving the said document.
8. The contention of the learned Counsel for the petitioner that on an earlier occasion the Trial Court treated the document as sale deed, and it was not open to receive the same, cannot be accepted. The reason is that the Court recorded the said finding at the interlocutory stage. Neither the document was sought to be marked through a witness, nor it was examined from the point of view of the claim of the parties in the suit. Considerations at interlocutory stages are different from those arising at the trial of the suit. For example, if the Trial Court records a finding while dealing with an application under Order XXXIX Rule 1 CPC that the plaintiff is in possession and grants a temporary injunction, the same cannot be treated as final, nor can it circumscribe the freedom of the Court in the adjudication of the suit.
9. This Court does not find any irregularity or illegality in the matter of receiving the said agreement of sale and marking as Ex.B1. The CRP is accordingly dismissed.