Nagender Trivedi vs T. Balaji Rao and Another

K.B. Siddappa, J.—This revision is filed against the order passed in E.A.No. 384/1991 in E.A.No. 188/1990 in E.P.No. 23/1987 on the file of the Principal District Munsif, Kothagudem.

The petition was filed under Sections 33 and 61 of the Indian Stamp Act r/w Section 151 of C.P.C. with a prayer to receive the agreement of sale dated 22-5-1986 which was duly executed on a (sic) worth Rs. 5/- in the evidence. The lower Court after considering the (sic) of the document came to the conclusion that it is an out and out sale and, therefore, it has to be stamped properly and penalty also has to be paid.

Aggrieved by the said order the present revision is filed.

The learned counsel appearing for the revision petitioner submitted that the document itself is described as agreement of sale. The document not only describes as agreement of sale but also that there is a balance of Rs. 600/- to be paid. There is a categorical recital that the balance should be paid and only afterwards get the property registered. This itself indicates that some act for execution of regular sale deed has yet to be performed. If this interpretation is taken the document becomes agreement of sale. This agreement is prior to the amendment which came into force on 16-8-1986. The document itself is engrossed on Rs. 5/-non judicial stamp paper, it is properly stamped and it can be received in evidence.

In support of this contention the learned Counsel relied upon the judgment of this Court in K. Sarojamma v. G. Muni Lakshamma and another 1981 (2) ALT 57 wherein it was held:

"Whether an instrument is an agreement to sell or a contract of sale shall have to be determined with reference to the contents and the character of the instrument itself and the intent of the executant could be gathered from the same. The fact that the entire consideration was paid and the land was put in possession and the words "that the vendee shall from the date of the document have complete control over the property and enjoy the same with full rights'''' are not determinative or conclusive of the question that the document constitutes a contract of sale. The essential element is that the document must transfer immovable property or an interest therein which should be inter vivos so as to constitute conveyance within the meaning of Section 2(1) of the Stamp Act, in other words there should be vesting of title in one and divesting from the other who gives up title. This is the core of conveyance". Even on construction, if the document though unregistered, should be deemed to be a sale deed, it would nevertheless be admissible in evidence within the meaning of the proviso to Section 49(c) of the Registration Act, if the party has agreed to execute a formal deed of conveyance which would be specifically enforceable by severing the same from the rest of the document".

The learned counsel also relied upon the judgment reported in Tarunam Gurappa Vs. Naidu Ramana Reddy, . In this case it was held that:

"The document contains a recital to the effect that the executant sold the property and put the plaintiff in possession of the same. It also contains a further recital that thereafter neither the executant nor his heirs have any right in the property. But these recitals are not decisive by themselves. When a document is construed, the entire document will have to be looked into for ascertaining the intention of the parties. Each of the clauses by itself is not conclusive and the intention of the parties will have to be gathered on a reading of the entire document".

In this connection, the learned counsel also brought to my notice the judgment of this Court reported in Pattem Gangi Reddy and Others Vs. Pattem Subba Reddy, . In this it was held that:

"It was a document dated 16-8-1986. In view of the document, the vendees are entitled to get their names mutated as owners."

In pursuance of the document, interpreting these words, Mr. B. Subhashan Reddy J. held that

"Nothing further to be done is stated in the alleged agreements".

Therefore, the document was out and out sale deed and not agreement of sale.

In the present case such words are not found. The facts of this case are akin to the facts of the case reported in Tarunam Gumppa''s case (2) supra. Therefore, in my considered opinion, the above judgment governs the facts on hand.

In this case, the vendee has to pay Rs. 600/- towards balance consideration. There is a clear recital that the balance has to be paid and then only registration can be done. In the judgment of K. Sarojamtna''s case (1 supra), the entire consideration was paid and the land was put in possession. Even then, it was held that it is only an agreement of sale and there is no complete divestiture. In the case on hand also there is no complete divestiture. Thus the intention is clear that the registration has to be obtained only after paying the balance amount. The document cannot be construed as out and out sale and it is only an agreement of safe and it is properly stamped when it is executed on Rs. 5/- stamp paper. I hold accordingly, and the revision is allowed. No costs.