N B MABEN Vs. RAJASHREE B NAYAK

JUDGEMENT

(1.) The plaintiff in OS.No.29/2011 on the file of Principal Senior Civil Judge, Udupi, has come up in this writ petition impugning the order dated 18.6.2014 while refusing to mark the agreement of sale dated 7.10.2009 entered in to between the parties. The parties herein are referred to by their rank in the court below.

(2.) Admittedly, the suit in OS.No.29/2011 is filed seeking specific performance of agreement dated 7.10.2009 entered in to between the plaintiff and defendant. The recitals in the said agreement would clearly indicate that as on the date of agreement, the plaintiff was in possession and enjoyment of the property in question as a tenant. The defendant being owner of the said property had agreed to convey the same to the plaintiff - tenant under the said agreement of sale. In the entire agreement, there is no reference to possession of said property being handed over to the purchaser/plaintiff. Further, there is not even a recital to indicate that from the date of agreement of sale, the plaintiff would continue in possession of the property as purchaser under the agreement of sale.

(3.) When that being the situation, mere reference to the plaintiff being in possession of the property as a tenant cannot be considered as delivery of possession under Section 52 of the Transfer of Property Act, 1882 and stamp duty payable should be considered under Article 5(e) of the Karnataka Stamp Act, 1959 ('the Stamp Act' for short), consequently hold that the transaction attracts stamp duty under Article 20 of the Stamp Act and call upon the plaintiff to pay deficit stamp duty along with penalty as it was done by the trial court while refusing to mark the said document, is not sustainable.