SMT. VIJAYWANTI AND ANR. Vs. JIYANLAL AND ORS.

JUDGEMENT

(1.) BEING aggrieved by the order dated 19/8/96 passed in Civil Suit No. 10 -A/95 by the learned 1st Civil Judge, Class -I, Chhindwara asking the Plaintiffs to pay an amount of Rs. 23,900/ - towards the penalty and stamp duty, the applicants/Plaintiffs have filed this Revision petition. Learned conusel for the applicants submits that the document in dispute is a simple agreement to sell, therefore the Court below was not justified in directing impounding of the document. He submits that the title of the document would not be much relevant because the Court has to see the subject matter of the document and should not be pursuaded by the title. According to him, simple words "BIKRI PATRA - RASID" would not decide the nature of the document as in the body of the document the executant of the document has clearly stated that he received of a sum of Rs. 15,000/ - and would receive the blance amount on the date of writing i.e. on the date of the registration on 1/3/95. Learned Counsel for the Respondents submits that even if the document is held to be an agreement, it would not save itself from falling within the mischief of the local amendment made in Article 23 of Schedule 1 -A of the Indian Stamp Act. According to him, an agreement of sale coupled with delivery of possession would make the agreement a conveyance deed and the stamp duty leviable on such a conveyance is required to be paid. He submits that unless the document is properly stamped or in the alternative is impounded, is the same cannot be admitted in evidence because of the bar contained under Section 35 of the Indian Stamp Act. The Indian Stamp Act in its application to Madhya Pradesh was amended by the State Government by the Indian Stamp (M.P. Second Amendment) Act 1990 (Act No. 22/90). The siad Act received the assent of the Governor on 21/9/90 and the said assent was first published in Madhya Pradesh Gazette (Extraordinary) dated 26/9/90. By the Act No. 22/90, the Indian Stamp Act 1899 in its application to the State of M.P. stood amended in the manner provided under the Act No. 22/90. Section 3 of the Amendment Act relates to the amendment of Schedule 1 -A. In column No. 6, the entry reads as: (6) In Article 23, in column (1) after the exemption, the following explanation shall be inserted, namely:

(2.) '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 deemend 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 Court below has not held the document to be a Sale -deed but after finding that the document is an agreement to sell has observed that in view of the local amendment, the said document would be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly.

(3.) A copy of document has been filed in this Court. The document says that the property has been sold to the purchaser for a sum of Rs. 32,000/ - and the executant of the document received a sum of Rs. 15,000/ - on 13/2/94 and the balance amount would be received on 1/3/95 on the date of writing, in the opinion of this Court it means on the date of the execution and registration of the document. In the later part of the document, it is clearly stated that possession of the property has been handed over to the purchaser on 13/2/94. The document from its tenor and texture would appear to be an agreement to sell. It cannot be held to be an absolute sale -deed because the executant of the document was aware that he was to receive the balance amount and execute some more documents in favour of the purchaser. The intention for writing the words was only to show that they had transferred the land for a sum of Rs. 32,000/ - but that did not mean that the parties were not required to pay the money or to execute further document. The document certainly is an agreement to sell. The local amendment came in force with effect from 26/9/90. The document was executed on 13/2/94, i.e. much after coming into force of the local amendment. The explanation appended to Entry No. 23 of Schedule 1 -A as amended by the local Act says that for the purpose of this article, wherein the case of the agreement to sell immovable property is transferred to the purchaser before execution or after execution of, such agreement without execution 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. The document on its bare reading shows that possession of the property has been given to the purchaser, because of the explanation appended to Article 23 the document would be deemed to be conveyance and stamp duty thereon would be leviable as is leviable on a conveyance. The Court below held that the ducument was required to be executed on the 7.5% value of stamps of the total value for which the property was to be sold. The Court below has also calculated the stamp duty and found that the document was required to be executed on stamps worth 2400/ -. In the opinion of this Court, the Court below was not unjustified in holding that the document in view of the local amendment could be deemed to be a conveyance and was required to be executed on proper stamps. The Court below did not commit any error in exercise of its jurisdiction it has passed the order properly appreciating the provisions of law. The Revision deserves to and is accordingly dismissed.