Narinder Kapoor And Ors vs Inderjit (since deceased) And Ors

23,"CONVEYANCE as defined in

Section 2(10) not being a transfer

charged or exempted under No.62","Where conveyance amounts to sale

of immovable property",Other conveyances

,1,2,3

,"where the value or amount of the

consideration for such conveyance

as set forth therein does not

exceed Rs.50",Two rupees and fifty paise,Two rupees

,"Where it exceeds Rs.50, but does

not exceed Rs.100",Five rupees,Three rupees

,"Where it exceeds Rs.100, but does

not exceed Rs.200",Ten rupees,Six rupees

,"Where it exceeds Rs.200, but does

not exceed Rs.300",Fifteen rupees,Nine rupees

,"Where it exceeds Rs.300, but does

not exceed Rs.400",Twenty rupees,Twelve rupees

,"Where it exceeds Rs.400, but does

not exceed Rs.500",Twenty five rupees,Fifteen rupees

,"Where it exceeds Rs.500, but does

not exceed Rs.600",Thirty rupees,Eighteen rupees

,"Where it exceeds Rs.600, but does

not exceed Rs.700",Thirty five rupees,Twenty one rupees

,"Where it exceeds Rs.700, but does

not exceed Rs.800",Forty rupees,Twenty four rupees

,"Where it exceeds Rs.800, but does

not exceed Rs.900",Forty five rupees,Twenty seven rupees

,"Where it exceeds Rs.900, but does

not exceed Rs.1000",Fifty rupees,Thirty rupees

,"And for every Rs.500 or part

thereof in excess of Rs.1000",Twenty five rupees,Fifteen rupees

,"Exemption

Assignment of copyright under the

Copyright Act, 1957, Section 18

CoPartnership-Deed â€" See

Partnership (No.46)",,

In Entry No.5, Clause CC was added by the Indian Stamp (Punjab Amendment) Act, 2001 notified on 21.12.2001. Entry No.23 was amended by the",,,

Indian Stamp (Punjab Amendment) Act, 2007 w.e.f. 25.01.2008.",,,

On careful reading of phraseology used in the definition of “Conveyance†as defined in Sub-Section 10 of Section 2, it become clear that the word",,,

conveyance includes a conveyance on sale and every instrument by which the property is transferred. The definition of the word 'conveyance' starts,,,

with word “includesâ€, however, the significant word used subsequently is “transferredâ€. User of the word “includes†means that such",,,

definition is ordinarily not exhaustive. As per Section 54 of the Transfer of Property Act, contract for sale or agreement to sell is not an instrument of",,,

transfer. Section 54 of the Transfer of Property Act, is extracted as under:-",,,

“54. “Saleâ€​ defined - “Saleâ€​ is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.,,,

Sale how made - Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a",,,

reversion or other intangible thing, can be made only by a registered instrument.",,,

In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by",,,

delivery of the property.,,,

Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.",,,

Contract for sale - A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between,,,

the parties. It does not, of itself, create any interest in or charge on such property.â€​",,,

Now, let us examine further amendments in Schedule 1-A. Entry No.5 is with respect to agreement of memorandum of an agreement. Clause CC of",,,

Entry No.5 clearly takes in its sweep agreement to sell followed by or evidencing delivery of possession of all the immovable property agreed to be,,,

sold. Thus, even if the agreement to sell followed by or evidencing delivery of possession of immovable property does not fall within the definition of",,,

the word 'conveyance', however, it would not be appropriate to hold that no stamp duty as is leviable under Column No.2 of Entry No.23 of this",,,

Schedule is payable. Column No.2 clearly specifies that an agreement to sell followed by or evidencing delivery of possession of immovable property,,,

shall be charged same duty as is leviable under Column No.2 of Entry No.23 of this Schedule. However, significance has also to be given to the",,,

second part of the sentence which reads as “subject to adjustment of duty chargeable at the time of execution of the conveyance made in,,,

pursuance of such agreementâ€. This second part is also to be kept in mind while interpreting the entries. However, this aspect would be discussed in",,,

the later part of this judgment, in view of the amendment in entry No.5 for the purpose of determining the amount of stamp duty payable.",,,

Now let us examine Entry No.23 which is with respect to the documents which are conveyance or deemed to be conveyance. Although, as noticed",,,

above, the agreement to sell followed by or evidencing delivery of possession does not fall in the definition of the word 'conveyance', however, in view",,,

of Entry No.5 for the purpose of stamp duty payable, Entry No.23 is applicable.",,,

However, it is important to note that Column No.2 has been divided in two different sub-columns. Sub-Column No.1 of Column No.2 give the rate at",,,

which the stamp duty is payable where the conveyance amounts to sale of immovable property. In other words, the duty payable under Sub-Column",,,

No.1 of Column No.2 would be leviable only when the conveyance amounts to sale of property. An agreement to sell does not amounts to sale of,,,

immovable property. Thus, the stamp duty payable on agreement to sell followed by or evidencing delivery of possession would be regulated by Sub-",,,

Column No.2 of Column No.2. It needs to be clarified that stamp duty shall be payable on the amount paid/payable under the agreement to sell by the,,,

intended purchaser (vendee) to the intended seller (vendor) and not on the entire sale consideration. The reason is obvious, because of the language of",,,

Column No.2 with respect to Entry No.5. The duty which is to be charged at the time of entering into agreement to sell is subject to the adjustment of,,,

duty chargeable at the time of execution of the conveyance made in pursuance of such agreement. If the Court interprets that the same duty shall be,,,

charged as is leviable on the total sale consideration agreed to between the parties, the second part of Entry No.5 in Column No.2 would be rendered",,,

otiose.,,,

Legislature, in the considered view of this Court, never intended that the entire stamp duty as is payable on the conveyance deed, be recovered at the",,,

time of agreement to sell. Had this been the intention, then the second part in Column No.2 of Entry No.5, would not have in the statute.",,,

Keeping in view the aforesaid facts, the question, which has been framed is answered in the manner that the agreement to sell followed by or",,,

evidencing delivery of possession of the immovable property agreed to be sold, shall be leviable with same stamp duty as is leviable under Sub Column",,,

No.2 of Column No.2 of Entry No.23 of Schedule 1-A as amended by State of Punjab.,,,

Let us now examine the facts of each case.,,,

In CR-1931-2017, the learned Court has rejected the application filed under Section 33 of the Indian Stamp Act, for impounding the alleged agreement",,,

to sell dated 25.04.2009 by directing payment of `2200/- by assuming that the stamp duty is not payable as is payable on the conveyance deed. The,,,

order is erroneous. Accordingly, the order dated 21.02.2017 is set aside while directing learned Civil Judge (Junior Division) to pass fresh order.",,,

Now let us examine the impugned order passed in CR-3172-2018. In this case, the Court has ordered that the deficient stamp duty alongwith the",,,

penalty be paid. In view of the interpretation, there is no error in the impugned order passed in CR-3172-2018. Hence, the revision is dismissed.",,,

At this stage, it would be important to note that counsels have also argued with respect to Section 36 of the Indian Stamp Act, 1899, by contending",,,

that once the document has been exhibited without any objection, the party is debarred from questioning the admission of the instrument. However,",,,

since, the impugned orders do not deal with the aforesaid contentions, therefore, it shall be open to the trial Court to adjudicate thereupon, if any of the",,,

party to the litigation moves an application in this regard.,,,

Keeping in view the aforesaid facts, CR-1931-2017 is allowed whereas CR-3172-2018 is dismissed.",,,

All the pending miscellaneous applications, if any, are disposed of, in view of the abovesaid judgment.",,,