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2007 Supreme(Kar) 318
2007(4) Kar. L.J. 326
RAM MOHAN REDDY, J.
H.P. BASAVARAJAPPA -Appellant
versus
Smt. K. VIJAYALAKSHMI AND OTHERS -Respondent
Writ Petition No. 47423 of 2003
Decided on 6th July, 2006
Advocate Appeared
Smt. Geetha Devi M.P., Advocate for Petitioner;
Sri S.M. Chandrashekar, Advocate for Respondents.
Headnote:Transfer of Property Act, 1882 -Pleadings -Section on 53-A -Pleadings - Agreement of sale -Covenants of - Infact showing delivery of possession having received full consideration - Trial Court infering to that effect - Since the document was insufficiently stamped, it ruled that it requires stamp duty as a Conveyance 20 of schedule to Karnataka Stamp Act - Held, order cannot be found fault with. [Ram Mohan Reddy, J]: The agreement tantamounts to a conveyance chargeable to duty as a conveyance No.20, under Article 5(e)(i) of the Act, and liable to penalty, as the stamp duty paid on the unregistered document is insufficient. The agreement of sale cannot but be said to fulfill all the conditions stipulated in Section 5(e)(i) of the Act, and can be regarded as a conveyance attracting the payment of stamp duty as a conveyance No. 20 at the time of execution of the same, and having not done so, even at the time of introducing the same in the evidence of the plaintiff, the order impugned cannot be found fault with.
Case Referred: Followed: ILR 2002 Kar 5163.
Words and Phrases -Conveyance -Conveyance Meaning - It means to include a conveyance on sale and every instrument by which property, whether movable or immovable is transferred.
Case Referred: Followed: ILR 2002 Kar 5163.
Words and Phrases -Conveyance - Conveyance Meaning - It means to include a conveyance on sale and every instrument by which property, whether movable or immovable is transferred.
Case Referred: Followed: ILR 2002 Kar 5163.
Interpretation of Deeds -Agreement of sale -Agreement of sale -Whether the covenants disclose delivery of possession - Interference as to. [Ram Mohan Reddy, J]: The covenant that the plaintiff paid the entire sale consideration of Rs.1 lakh to the executant, coupled with the other covenants in the agreement discloses that what is required to be done is to execute and lode for registration the deed of conveyance of the suit property. The plaint averments do not disclose that the suit property was handed over to the plaintiff on the date of execution of the agreement of sale, or that it was not handed over, nor a plea of part performance under Section 53A of the Transfer of Property Act, 1882. The prayer in the suit is only for specific performance of the agreement and a direction to execute and lodge for registration the deed of conveyance. If possession of the property is to be delivered on the execution of the sale deed, such a covenant would have found a place in the agreement, which apparently is not forthcoming. It is highly improbable that the petitioner having paid the full sale consideration of Rs. 1 lakh, would seek an execution of the conveyance without delivery of possession of the property. These circumstances, probabalise the factum of delivery of possession of the property to the purchaser on the execution of the agreement of sale.
Case Referred: Followed: ILR 2002 Kar 5163.
Karnataka Stamp Act, 1957 -Applicability -Section 34 -Applicability - An unregistered agreement of sale with delivery of possession of immovable property, is deemed to be a conveyance attracting duty as conveyance No. 20, on the market value of the said property - If the stamp duty is paid on the instrument, at the rate specified, the document shall be admitted in evidence - It is only when the duty paid on the document is insufficient, that Section 34 of the Act applies and the document is not admissible in evidence, unless the required rate of duty and penalty is paid.
Case Referred: Followed: ILR 2002 Kar 5163.
Karnataka Stamp Act, 1957 -Conveyance -Section 2 (d) -Conveyance -Meaning - It means to include a conveyance on sale and every instrument by which property, whether movable or immovable is transferred.
Karnataka Stamp Act, 1957 -Fulfillment of conditions under -Article 5 (e) (i) -Fulfillment of conditions under -Agreement of sale -Engrossed on stamp paper of value of Rs 100/- Admissibility in evidence -Possession of immovable property alleged to have been delivered under - Held, agreement cannot be said to fulfill all conditions stipulated in the section.
Indian Evidence Act, -Section 65 -Unregistered and insufficiently stamped document -Agreement of sale engrossed on stamp paper of value of rupees hundred -Whether admissible in evidence. See, Karnataka Stamp Act, 1957-Article 5(e)(i).
Case Referred: Followed: ILR 2002 Kar 5163.
Pleadings -Necessity of -Necessity of -Agreement of sale - Full consideration paid - Covenants showed delivery of possession - Sufficiency of stamp duty - Determination of - Pleadings need not be considered.
Case Referred: Followed: ILR 2002 Kar 5163.
Practice and Procedure -Agreement of sale -Agreement of sale -Engrossed on stamp paper of value of Rs 100/- Admissibility in evidence. See, Karnataka Stamp Act, 1957-Article 5(e)(i).
Case Referred: Followed: ILR 2002 Kar 5163.
Transfer of Property Act, 1882 -Pleadings -Section on 53-A -Pleadings - Agreement of sale -Covenants of - Infact showing delivery of possession having received full consideration - Trial Court infering to that effect - Since the document was insufficiently stamped, it ruled that it requires stamp duty as a Conveyance 20 of schedule to Karnataka Stamp Act - Held, order cannot be found fault with. [Ram Mohan Reddy, J]: The agreement tantamounts to a conveyance chargeable to duty as a conveyance No.20, under Article 5(e)(i) of the Act, and liable to penalty, as the stamp duty paid on the unregistered document is insufficient. The agreement of sale cannot but be said to fulfill all the conditions stipulated in Section 5(e)(i) of the Act, and can be regarded as a conveyance attracting the payment of stamp duty as a conveyance No. 20 at the time of execution of the same, and having not done so, even at the time of introducing the same in the evidence of the plaintiff, the order impugned cannot be found fault with.
Case Referred: Followed: ILR 2002 Kar 5163.
In this petition, the order dated 6-8-2003 of the Civil Judge (Senior Division) and Judicial Magistrate First Class, Nanjangud, Annexure-D passed in O.S. No. 104 of 2000 is called in question.
2. The petitioner-plaintiff who instituted O.S. No. 104 of 2000 for the relief of specific performance of the agreement of sale dated 28-9-1998 sought to introduce, in evidence, the said agreement engrossed on stamp paper of value Rs. 100/-. The defendants in the suit objected to the marking of the said document for being insufficiently stamped. The Trial Court, having regard to the covenants in the agreement disclosing delivery of possession of the immovable property to the petitioner, held that Article 5(e)(i) of the Karnataka Stamp Act, 1957 applies and the document liable for payment of duty and penalty on account of being insufficiently stamped.
3. Smt. Geetha Devi, learned Counsel for the petitioner contends that the Trial Court fell in error in recording a finding that the covenants in the agreement of sale dated 28-9-1998 discloses delivery of possession of the immovable property to the plaintiff. Learned Counsel further contends that it was not the case of either of the parties that possession of the immovable property was delivered under the agreement of sale nor did the plaintiff plead part performance of the agreement under Section 53-A of the Transfer of Property Act, 1882. According to the learned Counsel, having regard to the plaint averments and that of the written statement of the defendants, being one of denial of the agreement of sale, the Trial Court was not justified in recording the finding that the terms of the agreement disclose delivery of possession of the immovable property and the agreement having not been sufficiently stamped, is subject to payment of duty and penalty.
4. Per contra, Sri S.M. Chandrashekar, learned Counsel for the respondents seeks to support the order impugned as being well-merited, fully justified and not calling for interference. Learned Counsel would hasten to add that the covenants in the agreement when read in entirety disclose payment of the entire sale consideration of Rs. 1,00,000/- the delivery of possession of the suit schedule property and what remained was only the due execution of the Sale Deed, after two years there from. According to the learned Counsel, though the defendants' plea is one of denial of the agreement, but for the purpose of marking in evidence the unregistered agreement, not duly stamped, what is relevant is the covenants in the said document and not the pleadings of the parties or the oral .evidence. Learned Counsel would buttress his argument by placing reliance upon the decision of this Court in the case of Jayalakshmi Reddy v Thippanna and Others.
5. The suit of the plaintiff is for specific performance of the agreement of sale dated 28-9-1998 and the prayer is for a direction to execute and lodge for registration the sale deed conveying the immovable property, subject-matter of agreement. The plaint averments do not disclose a plea of part performance of the agreement by delivery of possession of the suit property, under the agreement, as required by Section 53-A of the Transfer of Property Act, 1882, nor a relief for delivery of possession of the suit property. The defence in the written statement is one of denial of the agreement and that the defendants are in possession of the suit property. According to the learned Counsel for the parties, there is no issue as regards possession, and that in the evidence P.W. 1 has not deposed as regards having been put in possession of the suit property on the date of the agreement of sale. At the stage of introducing the sale agreements and marking the same in the evidence of P.W. 1, the defendants having objected to the same as insufficiently stamped as required by the Karnataka Stamp Act, 1957, the Trial Court, examined the contents of the agreement, and passed the order impugned.
6. The incidence of stamp duty on t
