Dhaniram Kesharwani vs Mahesh Patariya

Shri Anurag Tiwari, counsel for the petitioner. None for the respondent though served and represented. This petition is directed against an order dated 23.12.2006 by 2nd Additional District Judge, Jabalpur in Civil Suit No. 15A/2005 between the parties by which the application filed by the petitioner for impounding agreement, in question, being insufficiently stamped, was rejected.

Learned, counsel for the petitioner submitted that under clause 23 of schedule 1-A of the Indian Stamp Act, 1899 as was applicable on the date of agreement i.e. 10.05.1998, the stamp duty on the agreement was payable as (sic) conveyance but the agreement was executed on a stamp of Rs. 50/- which was insufficiently stamped and was liable to be impounded. He referred explanation 2 of clause 23 of Schedule 1-A of the Stamp Act. In support of is contention, he has also placed reliance to a Division Bench judgment of this Court in W.A. No. 548/2006 [Ashok Kumar Marwaha vs. Gurupal Singh and others] dated 24.07.2007.

The trial Court found that the possession of the property was not delivered under the contract though the plaintiff was in possession of the property but as of tenant. As the possession was not delivered to the plaintiff under the agreement, the document will not fall within the purview of conveyance and the stamp duty paid on agreement Rs. 50/- was sufficient to appreciate the contention of the petitioner the clause 23 of Schedule 1-A of the Indian Stamp Act as was applicable at the time may be referred which reads as under: -

Conveyance, not being a transfer charged or exempted under No. 62 value of the property which is the subject matter of conveyance.

Exemptions

Assignment of Copy right under the Copy-right Act, 1957 (No. 14 of 1957), Section 18, co-partnership deed, See Partnership (No. 46).]

[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 affected 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].

Seven and half percent of such market value:

Provided that if the total amount of the duty payable is not a multiple of fifty paise, it shall be rounded off to the nearest rupee half of a rupee or over being counted as one rupee and less than half of a rupee being disregarded.

From the perusal of the aforesaid, it is apparent that to treat a document as conveyance in the case of agreement to sell of immovable property, transfer of possession, of immovable property under the agreement to the purchaser before execution or after execution of such agreement is an essential ingredient.

So far as the judgment relied, in Ashok Kumar Marwah (supra) is concerned, we find that in that case the possession of the property was handed over to the purchaser under the agreement and in that circumstances the Division Bench found that the case falls within the purview of clause 23 Schedule 1-A of the Stamp Act. But, the factual position herein, is entirely different and the judgment of Ashok Kumar Marwah (supra) is not applicable in the present case. In this case, though, the plaintiff was in possession of the property, but his status was of a tenant. In the agreement which is on record as document Annexure P-1, nowhere it is stated that under the agreement possession was delivered to the purchaser. In absence of which, the status of plaintiff shall continue as of tenant and his possession can not be treated in part performance of the agreement. What was the intention of the parties is to be seen from the perusal of the document itself and if under the agreement possession was not handed over to the purchaser then the document cannot be termed as conveyance. From the perusal of the entire agreement, it is apparent that it is an agreement to sell of immovable property without delivery of possession, so the stamp duty paid on agreement Rs. 50/- was sufficient. The trial Court has rightly rejected the application filed by the petitioner, in which, no fault is found.

In view of the aforesaid this petition is dismissed. No order as to costs.