HAJI WAHID ALI Vs. DISTRICT JUDGE SITAPUR

JUDGEMENT

(1.) THIS petition arises in the following circumstances : Haji Wahid Ali and Haji Shahid Ali, the present petitioners, filed a suit against Jai Chand, Sarimati Lajja Wati and Smt. Sheo Piari opposite-parties 2, 3 and 4 for specific performance of contract pleading that Jai Chand the opposite party 1 had agreed to sell the house and shop in question to them for a sum of Rs.20.000/- and in that connection had received a sum of Rs.500/- by way of earnest money from them. However, instead of executing the sale- deed in favour of the petitioners, the opposite-party no. 1 subsequently sold the property to defendents 2 and 3 who had prior notice of the said agreement. The opposite-party no. 1 contested the suit on the ground that he did not enter into any contract for sale of the property and that the alleged document was inadmissible in evidence for want of stamp. The opposite-parties 2 and 3 also contested the suit on the ground inter alia that they were bona fide purchasers for value without notice of any prior agreement. The document in question is dated 28th May, 1969. It appears from the judgment of both the courts below that the document was initially found to be deficient and the plaintiff were required to make good the deficiency in stamp and to pay the penalty thereon. The plaintiffs made good the deficiency of Rs.2.50 and also paid the penalty of Rs.22.50 on 11th May, 1970 as would appear from the endorsement of the Munsarim on the back of the document. Later on when the case came up for hearing and the plaintifffs sought to prove their document, the defendants raised an objection to the admssibility of the document in evidence on the ground that it was still insufficiently stamped. The trial court framed an issue on it and after hearing the parties recorded a finding that the document was merely an agreement to sell and was not a deed of sale and that in the circumstances it did not require any further stamp. THIS finding was challenged in revision by the defendant no. I as also in a separate revision by the defendants 2 and 3. Both these revisions were heard and disposed of by the learned District Judge by common judgment. The revisions were allowed. The finding recorded by the trial court was reversed. The learned District Judge held that the said document did not amount to agreement of sale; rather it was a deed of sale; hence it should have borne such stamp as was required to be affixed on an instrument of sale. The plaintiffs-petitioners have filed this petition under Article 226 of the Constitution to impugne the validity of the order of the learned District Judge. The petition is opposed. For the petitioners it was urged that the learned District Judge has erred in not properly construing the said document. The submission was that on its proper construction the said document would be found to be merely an agreement of sale and not an outright sale. It is now well-settled rule of construction that in determining the nature of a document for stamp duty the court must only construe the instrument as it is and should not look at extraneous circumstances. The trial court has reproduced the contents of the said document in its finding on issue no 4. I have carefully gone through the contents of that document. I have also perused the judgment of the trial court and the learned District Judge. In my view the trial court was correct in holding that the document was merely an agreement of sale and it did not purport to be an instrument of sale. No doubt it was stated in the document that the vendor has sold the property to the vendees but the words "Farokht Kar diya yani benchdala", should not be read divorced from their context. True intent of the maker must be ascertained by reading the document as a whole. When we read the intents document in its certainty, it becomes manifest that the vendor while using those words had merely meant that he had agreed to sell the property in question to the present petitioners. He had also stated in the document that he had received a sum of Rs.500/- as earnest money and that the balance amount would be paid at the time of the registration of the document. Further, he stated that the duration of the said earnest money was only one week and that if the stamp paper was not available and the registration was not made within that period of one weeks then the same could be done after four days. From this it is quite apparent that the sum of Rs.500/- was not paid as advance but was paid as earnest money which was liable to be forfeited if the transaction fell through. The transaction of sale was thus not complete and even the possession of the property was not given to the present petitioners. The document was, therefore, merely an agreement of sale. The requisite stamp charges and the penalty had been paid thereon vide endorsement of the Munsarim on the reverse of the document. That test in all such cases is not whether a document expressly contemplated execution of another document but whether by itself it created any right to immovable property and if it did not then it did not require registration. A sale of property of the value of Rupees one hundred or more can be effected only by a registered instrument vide section 54 of the Transfer of Property Act. If the value of the property is more than Rupees one hundred, the transfer to pass title must be effected by a registered instrument. In other words, an unregistered document in case of sale of immovable property of value of Rupees one hundred or more conveys no title. In the instant case the value of the property in dispute was admittedly more than Rupees one hundred. The document in question was, however, not got registered. No sale within the meaning of section 54 of the Transfer of Property Act was thereby effected. The document by itself did not create any right to immovable property and, therefore, it was not required to be executed on a stamp prescribed for an instrument of sale. That apart, the document was produced in the court and the present petitioners were called upon to make good the deficiency in stamp and pay the requisite penalty. They complied with the order. The Court thereafter had no jurisdiction to direct the review of its order and' impound the document. It may also be noticed that the suit was filed for specific performance of the contract and the plaintiffs had placed reliance on the document to prove the agreement. In such circumstances even where a document purports to be a sale-deed and is inadmissible for want of stamp or registration, it is admissible as an agreement to sell in a suit for specific performance. The order of the learned District Judge on the facts and circumstances of the case cannot, therefore, be sustained. The petition is accordingly allowed. The order of the learned District Judge dated 7th September, 1971 is quashed and the finding of the learned Civil Judge on issue no. 4 is maintained. Parties are directed to bear their own costs.