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Sec.6, 33,35,38, Art. 23,47 – A of Schedule 1-A of the Stamp Act – admissibility of a document- an agreement of sale= OMPRAKASH Vs. LAXMINARAYAN & ORS. published in judis.nic.in/supremecourt/filename=40861

Sec.6, 33,35,38, Art. 23,47 – A of Schedule 1-A of the  Stamp  Act – admissibility of a document-

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

an agreement of sale with delivery of possession scribed on Rs.50/- only – admissible only on payment of stamp duty and penalty – irrespective of pleadings.

 

 

 

 In  the  present  case,  an

 

   immovable property is transferred on payment of part of the consideration

 

   and handing over the possession of the property.  It is relevant here  to

 

   state that by the Indian Stamp (Madhya  Pradesh  Second  Amendment)  Act,

 

   1990 (Act No.22 of 1990) few Articles including Article 23 of Schedule 1-

 

   A has been substituted and Explanation has been added to Article 23.  The

 

   Explanation appended to Article 23 of Schedule 1-A of the  Stamp  Act  as

 

   substituted by Section (6) of Act 22 of 1990 reads as follows:

 

 

 

 

 

           “Explanation.—For the purpose of this article, where in the case

 

           of agreement to sell immovable property, the possession  of  any

 

           immovable  property  is  transferred  to  the  purchaser  before

 

           execution  or  after  execution  of,  such   agreement   without

 

           executing the conveyance in respect thereof then such  agreement

 

           to sell shall be deemed  to  be  a  conveyance  and  stamp  duty

 

           thereon shall be leviable accordingly:

 

 

 

 

 

                 Provided that, the provisions of Section 47-A  shall  apply

 

           mutatis mutandis to such agreement  which  is  deemed  to  be  a

 

           conveyance as aforesaid, as they apply  to  a  conveyance  under

 

           that section:

 

 

 

 

 

                 Provided further that where subsequently  a  conveyance  is

 

           effected in pursuance of such agreement of sale the stamp  duty,

 

           if any, already paid and recovered  on  the  agreement  of  sale

 

           which is deemed to be a conveyance shall be adjusted towards the

 

           total duty leviable on the conveyance, subject to a  minimum  of

 

           Rs. 10.”

 

 

 

 

 

 

 

 

 

            The aforesaid Explanation has come into effect with effect  from

 

   26th September,  1990.   The  Explanation,  therefore,  creates  a  legal

 

   fiction.  The agreement to sell shall be deemed to be  a  conveyance  and

 

   stamp duty is leviable on  an  instrument  whereby  possession  has  been

 

   transferred.  Thus the agreement to sell  in  question  is  a  conveyance

 

   within the meaning of Section 2(10) of the Act and is to be duly stamped.

 

    Section 35 of the Act makes instruments not duly stamped inadmissible in

 

   evidence, the relevant portion whereof reads as follows:

 

 

 

 

 

 

 

           “35. Instruments not duly stamped inadmissible in evidence, etc.-

 

           No instrument chargeable with duty shall be admitted in evidence

 

           for any purpose by any  person  having  by  law  or  consent  of

 

           parties authority to receive evidence, or shall be  acted  upon,

 

           registered or authenticated by any such person or by any  public

 

           officer, unless such instrument is duly stamped:

 

 

 

 

 

 

 

 

 

 

 

           Provided that-

 

 

 

 

 

 

 

 

 

             (a)any such instrument shall be admitted in evidence on payment

 

                 of the duty with which the same is chargeable  or,  in  the

 

                 case of an instrument insufficiently stamped, of the amount

 

                 required to make up such duty, together with a  penalty  of

 

                 five rupees, or, when ten times the amount  of  the  proper

 

                 duty or deficient portion thereof exceeds five rupees, of a

 

                 sum equal to ten times such duty or portion;

 

 

 

 

 

 

 

 

 

                       xxx         xxx        xxx.”

 

 

 

 

 

 

 

 

 

 

 

             From a plain reading of the aforesaid provision, it is  evident

 

   that an authority to receive evidence  shall  not  admit  any  instrument

 

   unless it is duly stamped.  An  instrument  not  duly  stamped  shall  be

 

   admitted in evidence on payment of  the  duty  with  which  the  same  is

 

   chargeable or in the case of an instrument insufficiently stamped, of the

 

   amount required to make up such duty together with penalty.  As  we  have

 

   observed earlier,  the  deed  of  agreement  having  been  insufficiently

 

   stamped, the same was inadmissible  in  evidence.   The  court  being  an

 

   authority to receive a document in evidence to give effect  thereto,  the

 

   agreement to sell with possession is an instrument which requires payment

 

   of the stamp duty applicable to a deed of conveyance.  Duty as  required,

 

   has not been paid and, hence, the trial court rightly held the same to be

 

   inadmissible in evidence.  

 

 

 

 It would be trite to say  that  if  in  a  document  certain

 

           recitals are made then the Court would decide the  admissibility

 

           of the document  on  the  strength  of  such  recitals  and  not

 

           otherwise.   

 

In  a  given  case,  if  there   is   an   absolute

 

           unregistered sale deed and the parties say that the same is  not

 

           required to be registered then we don’t  think  that  the  Court

 

           would be entitled to  admit  the  document  because  simply  the

 

           parties say so.   

 

The  jurisdiction  of  the  Court  flows  from

 

           Sections 33, 35 and 38 of the Indian Stamp Act and the Court has

 

           to decide the question of admissibility.  With all  humility  at

 

           our  command  we  over-rule  the  judgment  in  the  matter   of

 

           Laxminarayan (supra).”

 

 

 

 

 

 

 

 

 

 

 

 

 

           We respectfully agree with the conclusion of the High  Court  in

 

   this regard.

 

 

 

 

 

           In view of what we have observed above, the order  of  the  High

 

   Court is unsustainable and cannot be allowed to stand.

 

 

 

 

 

           In the result, the appeal is allowed, the impugned order of  the

 

   High Court is set aside and that of  the  trial  court  is  restored  but

 

   without any order as to costs.

 

 

 

REPORTABLE

 

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

 

CIVIL APPEAL NO.9032 OF 2013
@SPECIAL LEAVE PETITION (C) NO. 20721 OF 2008)

 

OMPRAKASH … APPELLANT

 

VERSUS

 

LAXMINARAYAN & ORS. …RESPONDENTS

 

 

 

J U D G M E N T

 
CHANDRAMAULI KR. PRASAD, J.

 

Plaintiffs filed a suit for specific performance of contract,
possession and permanent injunction in respect of un-irrigated land
having an area of 0.506 hectares bearing Survey No. 16012 in Village
Arniapitha situated within Tahsil Jaora in District Ratlam in the State
of Madhya Pradesh. It is founded on an agreement to sell dated 27th
December, 2000. It is the case of the plaintiffs that the properties in
question were delivered to them on payment of the part consideration
money in pursuance of the agreement to sell and such a recital finds
place in the said agreement. Paragraph 1 of the agreement to sell reads
as under:

 
“1.That while selling the aforesaid land I the seller, have
received Rs. 1,15,000/- (Rupees one lac fifteen thousand) cash
as a token amount before the witnesses and, by remaining present
at the spot, actual physical possession has been handed over to
the purchaser, and after receiving remaining sale consideration
amount Rs. 25,000/- (Rupees twenty five thousand) from the
purchaser within a year I, the purchaser, will get the sale deed
of the said land registered in the name of the purchaser.”

 

 

 
The defendants in the written statement, however, denied the
assertion of the plaintiffs and stated that no agreement to sell was ever
executed and possession given. On the basis of the pleading and the
written statement, the trial court framed several issues. During the
course of the trial the agreement to sell was sought to be proved and
admitted in evidence by the plaintiffs’ witness Shankarlal. This was
objected to by defendant no. 1. Its admissibility was questioned on the
ground that the agreement to sell in question contains a recital that
possession has been handed over to the purchaser and, therefore, it is a
conveyance over which the stamp duty as indicated in Schedule 1A of the
Indian Stamp Act, 1899 as substituted by M.P. Act 22 of 1990 is required
to be affixed. It is pointed out that the agreement to sell in question
is on a stamp paper of Rs. 50 only. The submission made by defendant no.
1 found favour with the trial court and it held the agreement to sell to
be inadmissible in evidence as it has not been sufficiently stamped. It
further observed that if the plaintiffs want to produce the said document
in evidence then they can make proper application as envisaged under
Section 35 of the Indian Stamp Act, hereinafter referred to as ‘the Act’.
While doing so, the trial court observed as follows:

 

 

 
“………Therefore, it is found that sale agreement dated 27.12.2000
due to mention of possession being handed over, should be
stamped like a conveyance. In the sale agreement the cost of
the land is mentioned as Rs.1,40,000 and its 7 ½ per cent comes
to Rs. 10,500/-. Therefore, it is concluded that the sale
agreement can be admissible in evidence only on being on stamp
of Rs. 10,500/-. Therefore, it is concluded that the sale
agreement is not properly stamped, therefore, not admissible in
evidence. Thus, objection of defendant No. 1 is allowed sale
agreement dated 27.12.2000 is refused to be admitted in
evidence. If the plaintiff wants to produce the said documents
in evidence then he may make proper application under Section 35
of the Stamp Act on the next date.”

 

 

 
Plaintiffs challenged the aforesaid order before the High Court
in a writ petition filed under Article 227 of the Constitution of India,
inter alia, contending that when defendants themselves have asserted that
possession of the property was not delivered, the recital in agreement is
of no consequence. It was also pointed out that plaintiffs themselves
have claimed relief of possession, which obviously means that they are
not in possession and when this fact is taken into consideration, the
view taken by the trial court appears to be erroneous. The High Court by
its order dated 27th February, 2008 passed in Writ Petition No. 7237 of
2007 accepted this contention and held the agreement to sell to be
admissible in evidence. The High Court, in this connection, has observed
as follows:

 
“Although there is no dispute with regard to the fact that in
the document in question, which is an agreement alleged to have
been executed by the defendants in favour of the plaintiffs, and
which is basis of the suit, it is recited that possession of the
property in question had been delivered to the plaintiffs, but
the fact cannot be ignored that a specific plea has been raised
by the defendants in their written statement denying the
execution of the said agreement and also specifically denying
that the possession of the property had ever been delivered to
the plaintiff-petitioners. In these circumstances, once, the
defendants themselves have claimed that possession of the
property had not been delivered, then the recital in agreement
looses all significance. In such a situation, the document
cannot be held to be insufficiently stamped merely because it
was not stamped in accordance with Article 23 of Stamp Act.”

 

 

 
Defendant no. 1 assails this order in the present special leave
petition.

 
Leave granted.

 
We have heard Mr. Niraj Sharma on behalf of the appellant and
Mr. Fakhruddin, Senior Counsel on behalf of the respondents.

 
Mr. Sharma contends that for admissibility of the document what
is relevant is the recital therein. He submits that agreement to sell is
“conveyance” as defined under Section 2(10) of the Act and shall be
chargeable with duty as contemplated under Section 3 of the Act.
According to him, as the agreement in question is not duly stamped, it
shall be inadmissible in evidence under Section 35 of the Act. Mr.
Fakhruddin, however, submits that the defendants having joined the issue
with regard to the possession of the plaintiffs in terms of the agreement
to sell, the document in question shall not come within the expression
“conveyance” as defined under the Act and, hence, it cannot be said that
it is not duly stamped.

 
In view of the rival submission, the question which falls for
our determination is as to whether the admissibility of a document
produced by the party would depend upon the recital in the document or
the plea of the adversary in the suit and whether the document in
question is “conveyance” as defined under the Act and is duly stamped.

 
As stated earlier, the plaintiffs filed a suit for specific
performance of contract and their case is founded on the agreement to
sell executed on 27th December, 2000. The agreement to sell acknowledges
payment of the part of consideration money and further giving actual
physical possession to the purchaser by the seller. Though the
defendants dispute that, but in our opinion, for determination of the
question of admissibility of a document, it is the recital therein which
shall be decisive. Whether the possession in fact was given or not in
terms of the agreement to sell is a question of fact which requires
adjudication. But, at the time of considering the question of
admissibility of document, it is the recital therein which shall govern
the issue. It does not mean that the recital in the document shall be
conclusive but for the purpose of admissibility it is the terms and
conditions incorporated therein which shall hold the field. Having said
that, we proceed to consider as to whether the document in question is
“conveyance” within the meaning of Section 2(10) of the Act. Section
2(10) of the Act reads as follows:

 
2. Definitions. -In this Act, unless there is something
repugnant in the subject or context, -

 
xxx xxx xxx

 
(10)“Conveyance” includes a conveyance on sale and every
instrument by which property, whether movable or immovable,
is transferred inter vivos and which is not otherwise
specifically provided for by Schedule I;

 
xxx xxx xxx”

 

 

 
From a plain reading of the aforesaid provision, it is evident
that an instrument by which movable or immovable property is transferred,
comes within the expression “conveyance”. In the present case, an
immovable property is transferred on payment of part of the consideration
and handing over the possession of the property. It is relevant here to
state that by the Indian Stamp (Madhya Pradesh Second Amendment) Act,
1990 (Act No.22 of 1990) few Articles including Article 23 of Schedule 1-
A has been substituted and Explanation has been added to Article 23. The
Explanation appended to Article 23 of Schedule 1-A of the Stamp Act as
substituted by Section (6) of Act 22 of 1990 reads as follows:

 
“Explanation.—For the purpose of this article, where in the case
of agreement to sell immovable property, the possession of any
immovable property is transferred to the purchaser before
execution or after execution of, such agreement without
executing the conveyance in respect thereof then such agreement
to sell shall be deemed to be a conveyance and stamp duty
thereon shall be leviable accordingly:

 
Provided that, the provisions of Section 47-A shall apply
mutatis mutandis to such agreement which is deemed to be a
conveyance as aforesaid, as they apply to a conveyance under
that section:

 
Provided further that where subsequently a conveyance is
effected in pursuance of such agreement of sale the stamp duty,
if any, already paid and recovered on the agreement of sale
which is deemed to be a conveyance shall be adjusted towards the
total duty leviable on the conveyance, subject to a minimum of
Rs. 10.”

 

 

 
The aforesaid Explanation has come into effect with effect from
26th September, 1990. The Explanation, therefore, creates a legal
fiction. The agreement to sell shall be deemed to be a conveyance and
stamp duty is leviable on an instrument whereby possession has been
transferred. Thus the agreement to sell in question is a conveyance
within the meaning of Section 2(10) of the Act and is to be duly stamped.
Section 35 of the Act makes instruments not duly stamped inadmissible in
evidence, the relevant portion whereof reads as follows:

 

 

 

“35. Instruments not duly stamped inadmissible in evidence, etc.-
No instrument chargeable with duty shall be admitted in evidence
for any purpose by any person having by law or consent of
parties authority to receive evidence, or shall be acted upon,
registered or authenticated by any such person or by any public
officer, unless such instrument is duly stamped:

 

 

 

 

 

Provided that-

 

 

 
(a)any such instrument shall be admitted in evidence on payment
of the duty with which the same is chargeable or, in the
case of an instrument insufficiently stamped, of the amount
required to make up such duty, together with a penalty of
five rupees, or, when ten times the amount of the proper
duty or deficient portion thereof exceeds five rupees, of a
sum equal to ten times such duty or portion;

 

 

 
xxx xxx xxx.”

 

 

 

 

 

From a plain reading of the aforesaid provision, it is evident
that an authority to receive evidence shall not admit any instrument
unless it is duly stamped. An instrument not duly stamped shall be
admitted in evidence on payment of the duty with which the same is
chargeable or in the case of an instrument insufficiently stamped, of the
amount required to make up such duty together with penalty. As we have
observed earlier, the deed of agreement having been insufficiently
stamped, the same was inadmissible in evidence. The court being an
authority to receive a document in evidence to give effect thereto, the
agreement to sell with possession is an instrument which requires payment
of the stamp duty applicable to a deed of conveyance. Duty as required,
has not been paid and, hence, the trial court rightly held the same to be
inadmissible in evidence. The view which we have taken finds support
from a decision of this Court in the case of Avinash Kumar Chauhan v.
Vijay Krishna Mishra, (2009) 2 SCC 532, in which it has been held
as follows:

 
“21. It is not in dispute that the possession of the property
had been delivered in favour of the appellant. He has, thus,
been exercising some right in or over the land in question. We
are not concerned with the enforcement of the said agreement.
Although the same was not registered, but registration of the
document has nothing to do with the validity thereof as provided
for under the provisions of the Registration Act, 1908.

 
22. We have noticed heretobefore that Section 33 of the Act
casts a statutory obligation on all the authorities to impound a
document. The court being an authority to receive a document in
evidence is bound to give effect thereto. The unregistered deed
of sale was an instrument which required payment of the stamp
duty applicable to a deed of conveyance. Adequate stamp duty
admittedly was not paid. The court, therefore, was empowered to
pass an order in terms of Section 35 of the Act.”

 

 

 

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

 

 

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

 

 

 
9. It would be trite to say that if in a document certain
recitals are made then the Court would decide the admissibility
of the document on the strength of such recitals and not
otherwise. In a given case, if there is an absolute
unregistered sale deed and the parties say that the same is not
required to be registered then we don’t think that the Court
would be entitled to admit the document because simply the
parties say so. The jurisdiction of the Court flows from
Sections 33, 35 and 38 of the Indian Stamp Act and the Court has
to decide the question of admissibility. With all humility at
our command we over-rule the judgment in the matter of
Laxminarayan (supra).”

 

 

 

 

 
We respectfully agree with the conclusion of the High Court in
this regard.

 
In view of what we have observed above, the order of the High
Court is unsustainable and cannot be allowed to stand.

 
In the result, the appeal is allowed, the impugned order of the
High Court is set aside and that of the trial court is restored but
without any order as to costs.

 
……………………..………………………………..J.

 
(CHANDRAMAULI KR. PRASAD)

 

 

 

 

 
…….….……….………………………………..J.
(KURIAN JOSEPH)

 
NEW DELHI,
OCTOBER 7, 2013

 

 

 

———————–
17

 

 

 

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