CRP/1711/2015 of Bantupalli Venkateswarlu (Died) Per LRS Vs Pothuganti Ramprasad on 31 December 2015

ORDER :

This Civil Revision Petition is filed against the order dated13.03.2015 in O.S.No.87 of 2008 wherein the Court below upheld theobjection raised by the respondent/plaintiff for marking the photocopyof the agreement of sale dated 10.01.2002 on the ground that theoriginal of the same is not properly stamped as per Explanation I toArticle 47 of Schedule 1A of the Indian Stamp Act, 1899 (for short ‘theAct of 1899’) as the agreement of sale contained clause regardingdelivery of possession and held that the same is not admissible inevidence.

2. The facts which are necessary for disposal of the Civil RevisionPetition are that the respondent/plaintiff filed suit for declaration of title,recovery of possession and permanent injunction with future mesneprofits against the petitioners/ defendants. When the matter came upfor petitioners’ evidence, the counsel for the petitioners/defendantsintended to mark the photocopy of the agreement dated 10.01.2002 onthe ground that the original agreement of sale is snatched away by therespondent/plaintiff. The same was objected to by the learned counselfor the respondent/plaintiff on the ground that the said agreementcontained a clause regarding delivery of possession, as such, theagreement of sale shall be chargeable as a sale as per Article 47 ofSchedule 1A of the Act of 1899.

3. Heard Sri M.V.Durga Prasad, learned counsel for the petitionersand Sri K.Sitaram, learned counsel for the respondent.

4. Learned counsel for the petitioners submit that therespondent/plaintiff himself admitted that the suit schedule propertywas leased out to the first petitioner during the period from March, 2000 to March, 2004, as such, the first petitioner was put inpossession much earlier to the disputed agreement of sale dated10.01.2002. As such, the question of coming into possession of theproperty on the date of agreement, as stated in the agreement, doesnot arise. He further contends that unless the petitioners come intopossession in pursuant to agreement of sale, the same cannot bechargeable as sale as per explanation 1 to Section 47A of Schedule 1Aof the Act of 1899. When actual possession is not delivered as per theagreement dated 10.01.2002, the question of paying stamp duty asassailed does not arise. In support of his contention, he relied on thejudgments reported in Karumuri Ramatheertham and another v. Tippavathi [1]Seshachalam (died) by L.Rs., Cheryala Srinivas v. Moola Sujatha and[2][3]others, Penkey Suryakantham v. Shaik Sillarand M.A.Gafoor v.[4]Mohd.Jani and others.

5. On the other hand, learned counsel appearing for therespondent/plaintiff submits that for the purpose of determining theadmissibility of document, the recitals in the documents alone are tobe taken into account and not the pleadings of the parties. He furthersubmits that the trial Court has rightly held that the agreement of saledated 10.01.2002 is chargeable to stamp duty as a sale as per Article47 of Schedule 1A of the Act of 1899 as it is clearly mentioned in theagreement of sale that possession was delivered on the date ofagreement, the question of going into pleadings does not arise fordetermining the admissibility of the document. He also submits thatthe secondary evidence cannot be validated as per Section 33 of theAct of 1899. In support of his contention, he relied on the judgments[5]reported in Omprakash v. Laxminarayan and others, Hariom Agarwal v.

Prakash Chand Malviya[[6]], E.Venkat Reddy and another v. E.Yadgir Reddy[7][8]and othersand Veesarapu Padma v. Rangineni Anitha

6. Before considering rival contentions of the parties, it isnecessary to extract the relevant provisions of the Act of 1899 for disposal of this case.

Section 2(14) of the Act reads as follows:

“2(14). ‘Instrument’ includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended,extinguished or record;

Section 35 of the Act reads as follows.

35. Instruments not duly stamped inadmissible inevidence, etc.:

“No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of partiesauthority to receive evidence, or shall be acted upon, registered orauthenticated by any such person or by any public officer, unlesssuch instrument is duly stamped.”

Section 33 of the Act reads as follows:

33. Examination and impounding of instruments:

1) Every person having by law or consent of parties authority toreceive evidence, and every person in charge of a public officeexcept an officer of a police, before whom any instrument,chargeable, in his opinion, with duty, is produced or comes in theperformance of his functions, shall, if it appears to him that suchinstrument is not duly stamped, impound the same.receive evidence, and every person in charge of a public officeexcept an officer of a police, before whom any instrument,chargeable, in his opinion, with duty, is produced or comes in theperformance of his functions, shall, if it appears to him that suchinstrument is not duly stamped, impound the same.

2) For that purpose every such person shall examine every instrumentso chargeable and so produced or coming before him in order toascertain whether it is stamped with a stamp of the value anddescription required by the law in force [India] when such instrumentwas executed or first executed:”so chargeable and so produced or coming before him in order toascertain whether it is stamped with a stamp of the value anddescription required by the law in force [India] when such instrumentwas executed or first executed:”

As per Section 35 of the Act referred to above, the instrumentchargeable to duty shall not be admitted into evidence unless suchinstrument is duly stamped. Section 33 of the Act provides forprocedure for impounding the said document. Now, it is to be seenwhether the agreement of sale dated 10.01.2002 is liable to be chargedas sale as per Explanation I to Article 47-A of the Act.

7. A perusal of the agreement of sale dated 10.01.2002 goes to show that possession was delivered to the 1[st] petitioner on the sameday on which the alleged agreement was executed. There is noambiguity regarding delivery of possession on the date of agreementof sale. Now, it is to be seen whether the recitals in the documentalone have to be taken into consideration for deciding the admissibilityof document, as contended by the learned counsel for therespondent/plaintiff, or pleadings and evidence can be looked into fordeciding whether the possession was delivered in pursuant to theagreement or not, as contended by the learned counsel for the revisionpetitioners.

8. In Omprakash v. Laxminarayan and others (supra), the Hon’bleSupreme Court held as follows:

“10. In view of the rival submission, the question which falls forour determination is as to whether the admissibility of adocument produced by the party would depend upon the recitalin the document or the plea of the adversary in the suit andwhether the document in question is “conveyance” as definedunder the Act and is duly stamped.our determination is as to whether the admissibility of adocument produced by the party would depend upon the recitalin the document or the plea of the adversary in the suit andwhether the document in question is “conveyance” as definedunder the Act and is duly stamped.

11. As stated earlier, the plaintiffs filed a suit for specificperformance of contract and their case is founded on theagreement to sell executed on 27th December, 2000. Theagreement to sell acknowledges payment of the part ofconsideration money and further giving actual physicalpossession to the purchaser by the seller. Though thedefendants dispute that, but in our opinion, for determination ofthe question of admissibility of a document, it is the recitaltherein which shall be decisive. Whether the possession in factwas given or not in terms of the agreement to sell is a questionof fact which requires adjudication. But, at the time ofconsidering the question of admissibility of document, it is therecital therein which shall govern the issue. It does not meanthat the recital in the document shall be conclusive but for thepurpose of admissibility it is the terms and conditionsincorporated therein which shall hold the field. Having said that,we proceed to consider as to whether the document in questionis “conveyance” within the meaning ofSection 2(10)of the Act.

18. To put the record straight, the correctness of the impugnedjudgment (Laxminarayan & Ors. v. Omprakash & Ors., 2008 (2)MPLJ 416) came up for consideration before a Division Benchof the High Court itself in Writ Petition No. 6464 of 2008 (ManSingh (deceased) through Legal Representatives Smt.Sumranbai & Ors. v. Rameshwar) and same has been overruled by judgment dated January 22, 2010. The High Courtobserved as follows:

“8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raisedby the parties. In the matter of Laxminarayan (supra), thelearned Single Judge with due respect to his authority we don’tthink that he did look into the legal position but it appears thathe was simply swayed away by the argument that as thedefendant was denying the delivery of possession, theendorsement/recital in the document lost all its effect andefficacy.

9. It would be trite to say that if in a document certain recitals aremade then the Court would decide the admissibility of thedocument on the strength of such recitals and not otherwise. Ina given case, if there is an absolute unregistered sale deed andthe parties say that the same is not required to be registeredthen we don’t think that the Court would be entitled to admit thedocument because simply the parties say so. The jurisdiction ofthe Court flows fromSections 33, 35and38of the Indian StampAct and the Court has to decide the question of admissibility.With all humility at our command we over-rule the judgment inthe matter of Laxminarayan (supra).” We respectfully agree withthe conclusion of the High Court in this regard.”

In the aforesaid decision, the Hon’ble Apex Court in clear andcategorical terms held that for the purpose of deciding the admissibilityof a document, the recitals contained in the document shall alonegovern the issue, though it is not conclusive. In the instant case onhand, the agreement dated 10.01.2002 unequivocally states thatpossession has been delivered on the date of agreement itself,chargeable. Whether the possession was delivered or not, ascontended by the learned counsel for the respondent/plaintiff, cannotbe gone into at the stage of deciding the admissibility of the document,as held by the Hon’ble Supreme Court in the aforesaid decision. Inview of above facts and circumstances, the agreement of sale is liableto be charged as sale within the meaning of Explanation 1 to Article47-A of the Act.

9. In Penkey Suryakantham v. Shaik Sillar (supra), a learned SingleJudge of this Court clearly held that there is no averment in the saleagreement that possession was delivered to the plaintiff and that he was in occupation as a tenant, as such, the sale agreement cannot betreated as a regular conveyance falling under explanation to Article 47-A of the Act of 1899.

10. In M.A.Gafoor v. Mohd.Jani and others (supra), a learned SingleJudge of this Court held that the time of delivery of possession is notmentioned in the agreement therein and that the disputed agreement ofsale does not state anywhere that the delivery of possession followedexecution of the agreement. In those circumstances, it was held thatExplanation I to Article 47-A of Schedule 1-A of the Act has noapplication and the document should not be treated as sale.

11. With due respect, I am unable to subscribe to the view takenby the learned Single Judge in Cheryala Srinivas v. Moola Sujatha andothers (supra) as the Hon’ble Apex Court in Omprakash v. Laxminarayanand others (supra) in categorical terms held that the recitals of thedocuments alone should be taken into account for deciding theadmissibility of document into evidence and not on basis of thepleadings raised by the parties. In the instant case on hand, there isclear recital in the agreement of sale dated 10.01.2002 that possessionwas delivered to the 1[st] petitioner on the day when the agreement wasexecuted. Moreover, I had an occasion to deal with the similar issuein Veesarapu Padma v. Rangineni Anitha (supra), wherein I held that if anagreement of sale contains clause regarding delivery of possession,the said agreement is chargeable to stamp duty under Article 47A ofthe Act, as if it is a sale. The said agreement of sale cannot beadmitted into evidence, unless it is duly stamped. Therefore, thejudgments relied on by the learned counsel for the petitioner cannotcome to the rescue of the petitioners.

12. When once the agreement of sale dated 10.01.2002 ischargeable to Stamp duty as a sale within the meaning of Article 47 ofSchedule 1-A of the Act of 1899, then question arises whether thecopy of the agreement produced, can be validated, as per Section 33

of the Act of 1899. When once it is chargeable document, then thequestion arises whether a copy of agreement produced can bevalidated or not. In Hariom Agarwal v. Prakash Chand Malviya (supra), the Hon’ble Apex Court held as follows:

“8. It is clear from the decisions of this Court and a plain readingofSections 33,35and2(14)of the Act that an instrument whichis not duly stamped can be impounded and when the required feeand penalty has been paid for such instrument it can be taken inevidence underSection 35of the Stamp Act.Sections 33or 35are not concerned with any copy of the instrument and party canonly be allowed to rely on the document which is an instrumentwithin the meaning ofSection 2(14). There is no scope for theinclusion of the copy of the document for the purposes of theIndian Stamp Act. Law is now no doubt well settled that copy ofthe instrument cannot be validated by impounding and this cannotbe admitted as secondary evidence under theIndian Stamp Act,1899.

13. Section 37of the Act would be attracted where although theinstrument bears a stamp of sufficient amount but such stamp isof improper description, as in the present case where the properstamp duty of Re.1/- under the Act has not been paid but anotarized stamp of Rs.4/- was affixed on the document. Thesufficient amount of the stamp duty has been paid but the dutypaid by means of affixture of notarized stamp is of improperdescription. By virtue of Rule 19 of the Madhya Pradesh StampRules, 1942, the Collector of Stamp is authorized to receive theproper stamp duty on an instrument which bears a stamp ofproper amount but of improper description, and on payment of theadequate duty chargeable under the Act he would certify byendorsement on the instrument that the instrument is dulystamped. Under the proviso to the Rule, the Collector maypardon the further payment of duty prescribed in this Ruleprovided the person holding the original instrument moves theCollector within three months of the execution of the instrumentfor certification by endorsement and the Collector is satisfied thatthe stamp of improper description was used solely on theaccount of the difficulty or inconvenience of the holder of theinstrument to procure the adequate stamp duty required to bepaid on the instrument. But the power underSection 37and Rule19, even after framing the rules by the State Government, couldonly be exercised for a document which is an instrument asdescribed underSection 2(14). By various authorities of thisCourt, an instrument is held to be an original instrument and doesnot include a copy thereof. Therefore,Section 37and Rule 19would not be applicable where a copy of the document is soughtto be produced for impounding or for admission as evidence in acase.

15. On a plain reading ofSection 48-B, we do not find that thesubmission of the learned counsel for the appellant that by virtue of this provision the Collector has been authorized to impoundeven copy of the instrument, is correct…….”

In E.Venkat Reddy and another v. E.Yadgir Reddy and others (supra)

a Division Bench of this Court held as follows:

23. For the reasons which we have given, the trial Court, in our,view, was right in holding that when the original deed wasunstamped or insufficiently stamped, no copy of it by way ofsecondary evidence is admissible in evidence, in view ofSection35of the Stamp Act. The said decision of the Trial Court isperfectly in accord with what we have stated above. The revision,therefore, is accordingly dismissed with costs.

13. In view of the above decisions, wherein it is clearly held that acopy of an agreement of sale is not an instrument within the meaningof Section 2(14) of the Act, as such, only instrument is liable to beimpounded as per Section 33 to 35 of the Act and that the secondaryevidence of the original not duly stamped is inadmissible in evidence. The trial Court also considered several judgments of this Court andalso the Apex Court and came to the same conclusion.

a) In Penkey Suryakantham v. Shaik Sillar[[9]],a learned SingleJudge of this Court held that no averment was made in the saleagreement that possession was delivered to the plaintiff therein.

b) In M.Madusudan Reddy v. M.Kamalamma and others[[10]],this Court held that there was no mention about delivery of possession inthe agreement. There also the learned single Judge held that therecitals in the agreement did not reflect delivery of possession.

c) In Dudekula Allauddin v. G. Sivaramakrishna and others[[11]],it is a case wherein the agreement of sale containing recital that vendorgave permission to vendee for development activities. The vendeewas given only right to develop land by dividing it into plots and layingroads and that cannot be considered to be conveying absolutepossession.

d) In R.Venkatram Reddy and another v. Jetamoni Gouramma[[12]],the land was placed in the hands of purchased under an agreement for purpose of survey and demarcation does not constitute handingover possession in law, as such, it does not require stamp duty assale deed as per Explanation I of Article 47-A of the Act.

e) In E.Padma Rao @ Vadla Padma Rao and others v. Vijay Kumar and another[[13]],learned Single Judge of this Court held that anagreement of sale giving mere permission to enter land to divide intoplots cannot be treated as handing over absolute or unconditionalpossession of land.

As such, the above decisions are not applicable to the facts ofthe present case on hand.

In view of above facts and circumstances, I do not see anyerror or infirmity in the order passed by the Court below.

Accordingly, the Civil Revision Petition is dismissed. Thereshall be no order as to costs. As a sequel thereto, miscellaneouspetitions, if any, pending in this Civil Revision Petition, shall standdismissed.

____________________________

A.RAJASHEKER REDDY, J

31.12.2015.KVS

HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY

KVS

C.R.P. No.1711 OF 2015

--Date: 31122015

[1]2012(1) ALD 612[2]2010 (1) ALT 448[3]2003 (4) ALD 61[4]1999 (1) ALT 596[5](2014) 1 Supreme Court Cases 618[6]AIR 2008 Supreme Court 166[7]AIR 1973 Andhra Pradesh 398 (V 60 C 87)[8]2014 (1) ALD 162[9]2003 (4) ALD 61[10]2004 (1) ALD 260[11]2011 (5) ALD 702[12]2011 (6) ALD 355[13]2013 (1) ALD 581