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2.9 Hence, the instant civil appeals.

Submissions:

3. We have heard learned counsel for the appellant and learned counsel for the respondent, at length. We have perused the material on record.

3.1 Learned counsel for the appellant submitted that the High Court was not right in sustaining the order of the Trial Court by which the document, namely, the agreement to sell dated 14.10.2009 was directed to be impounded for the purpose of assessment of stamp duty and penalty and the same was not permitted to be marked in evidence. Elaborating the said contention, learned counsel for the appellant submitted that Explanation I to Article 47A of Schedule I-A of the Stamp (Andhra Pradesh Amendment) Act, 1922 (“A.P. Stamp Act”, for the sake of convenience) states that 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 the said Article. The emphasis is on the words “followed by” or “evidencing delivery of possession” of the property agreed to be sold under the agreement to sell. Therefore, the delivery of possession must be related to the agreement to sell, which could be either prior or subsequent thereto. If the delivery of possession of the property is prior to the agreement to sell then it may be evidenced in the document or, the delivery of possession of the property to be sold could be subsequent to the agreement to sell. In both the instances, the agreement to sell is the basic denominator which has a direct bearing on the stamp duty to be paid depending upon, whether, the agreement to sell is chargeable as a “sale” or deemed conveyance under the said Article of the A.P. Stamp Act. 3.2 That, in the instant case, the appellant herein was the tenant of the schedule property for almost five decades and the respondent-landlady agreed to sell the said property to the appellant. This fact is recorded in the said agreement to sell dated 14.10.2009. Therefore, the possession of the schedule property was already with the appellant on the date of the agreement to sell, as a tenant and he did not enter into possession of the same as a purchaser or a vendee under the agreement to sell. Further, the tenancy did not come to an end despite the agreement to sell being entered into between the parties. The appellant continued to be a tenant even after the execution of the agreement to sell by the respondent – landlady and there was no determination of the lease or tenancy by any express or implied surrender of tenancy or lease or coming into possession as a vendee. This fact is proved on account of the eviction decree that was passed against the appellant herein at the instance of the respondent who had approached the Rent Controller for eviction of the appellant-tenant and was also successful in this regard. Therefore, the agreement to sell in the instant case could not have been construed as facilitating a sale within the meaning of Explanation I to Article 47A of Schedule I- A of the A.P. Stamp Act.

5. In this case, the appellant was a tenant of the respondent-

landlady on the date of execution of the agreement to sell dated 14.10.2009, and the jural relationship between the parties was that of lessor and lessee/landlady and tenant and the tenancy was within the scope and ambit of the A.P. Rent Act, 1960 for about fifty years. The question is whether the said jural relationship was converted to one of vendor and vendee upon the execution of the agreement to sell. In other words, whether the possession of the schedule property by the appellant herein continued in the capacity of a tenant or as a vendee on the execution of the agreement to sell. If the possession of the suit schedule property continued to be held by the appellant as a tenant even upon the execution of the agreement to sell, there would be no conveyance/sale within the meaning of the Explanation I to Article 47A of Schedule I-A of the A.P. Stamp Act. On the other hand, if the relationship in relation to the agreement to sell became that of a vendor and vendee, then the aforesaid Explanation I would apply and it would be in the nature of a deemed conveyance. In order to ascertain this aspect of the matter, it is necessary to discuss the relevant provisions of the Transfer of Property Act, 1882 (“the Act” for short). 5.1 Section 105 of the Act defines a lease and the relationship of a lessor and lessee is the relationship which exists between the parties to a lease. The rate of rent, duration of lease, purpose of lease, etc. are all governed by the terms of the contract entered into between the parties. Thus, a lease is the transfer of a right to enjoy immovable property for a certain period of time. The said relationship is also of a landlord and a tenant i.e., a tenancy where lease of a premises is recognised under a statute. 5.2 If a tenancy is covered under a statute, the eviction of a tenant is under the particular statute. Irrespective of the same, Section 111 of the Act speaks of determination of lease. There are eight ways in which a lease can be determined i.e. when it comes to an end and there is no order of eviction of a tenant under a statute. Clauses (e) and (f) deal with express surrender and implied surrender. For ease of reference, Section 111 (e) and

(f) of the Act are extracted as under:

“111. Determination of lease.— A lease of immoveable property determines— xxx
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;
(f) by implied surrender;” 5.3 The expression “express surrender” means the lessee yields his interest under the lease to the lessor by mutual agreement between them. In other words, express surrender means giving up of the interest in the premises under the lease to the lessor by mutual agreement between the lessor and the lessee. Express surrender necessitates that the lessee has given up possession of the holding. Surrender need not be in writing nor by a registered deed. However, if there is an abatement of rent, it should be only by a registered instrument for it effects a variation in the contract of tenancy. The effect of surrender under clause (e) of Section 111 of the Act is the determination of the lease.

88. 5.6 A surrender by operation of law determines the lease and extinguishes the rights of the lessee in respect of the property surrendered, from the date of the surrender and the estate vests immediately in the lessor. The term “surrender by operation of law” is used to describe all those cases where the law implies a surrender from unequivocal conduct of both the parties which is inconsistent with the continuance of the existing tenancy. 5.7 There is a distinction between an express and implied surrender inasmuch as while express surrender is a matter of intention of the parties, implied surrender is by implication of the law. An implied surrender is the act of the law and takes place independently of and in some cases even in spite of the intention of the parties.