Research › Search › Judgment

Madhya Pradesh High Court · body

2004 DIGILAW 586 (MP)

Yogendra Verma v. Dharmendra

2004-07-28

RAJENDRA MENON

body2004
Judgment ( 1. ) CHALLENGE in this petition under Article 227 of the Constitution is made to an order, Annexure P-6, dated 12-2-2004 passed by the Court of Twelfth Additional District Judge (Fast Track Court), Gwalior by which petitioner has been directed to pay the proper stamp duty on the document (Annexure P-2), an agreement for sale in accordance with provisions of Article 23 to Schedule I of the Indian Stamp Act, 1899. It is the case of the petitioner that the aforesaid direction given for affixing the stamp duty on the document is clearly unsustainable. ( 2. ) PETITIONER had instituted a suit for specific performance of a registered agreement for sale dated 9-8-2000 (Annexure P-2 ). Relief claimed by the petitioner in the suit is to direct the respondents to execute the sale deed in pursuance to the aforesaid agreement and to hand over possession of the property in question. It is the case of the petitioner that written statement was filed and in the written statement (Annexure P-3), defendants/respondents asserted their own possession, so also disputed the agreement to sale. After framing of issues, chief examination under Order XVIII Rule 4, CPC, was submitted and the agreement dated 9-8-2000 was exhibited as P-2. Defendants submitted an application on 24-1-2004 objecting to take on record the aforesaid agreement on the ground that it is inadmissible in evidence for want of payment of proper stamp duty. Copy of the aforesaid objection is filed as Annexure P-4. Petitioner opposed the same on the ground that as physical possession of the suit property was not delivered to the petitioner at the time of the agreement is admissible in evidence. It was also asserted that the amendment to the Indian Stamp Act, 1899 came into force with effect from 12-8-2002, therefore, it will not apply as the agreement was executed on 9-8-2000. ( 3. ) REJECTING the aforesaid plea, by the impugned order dated 12-2-2004 (Annexure P-6), the learned Court has directed that the stamp duty on the document (Exhibit P-2) is payable as per Article 23 of Schedule I as possession has been handed over to the vendee. The aforesaid order is assailed in this petition. ( 4. ( 3. ) REJECTING the aforesaid plea, by the impugned order dated 12-2-2004 (Annexure P-6), the learned Court has directed that the stamp duty on the document (Exhibit P-2) is payable as per Article 23 of Schedule I as possession has been handed over to the vendee. The aforesaid order is assailed in this petition. ( 4. ) IT was asserted by Shri A. M. Naik, learned Senior Counsel that explanation to Article 23 of Schedule I-A of the Act clearly stipulates that in an agreement for sale of a immovable property, if possession is transferred to the purchaser before execution of the agreement, without executing the conveyance then only such an agreement shall be deemed to be a conveyance liable for payment of stamp duty in accordance with said Article. It was emphasised by Shri Naik that in the present case prayer made by the petitioner in the plaint, Annexure P-1 vide Paragraph 12-B is to hand over possession actual or symbolic and in Annexure P-3, respondents in Paragraph 2 have clearly indicated that they are in possession. It was, therefore, argued by learned Senior Counsel that in the aforesaid circumstances, direction to pay the stamp duty is unsustainable. It was also submitted by Shri Naik that the agreement was executed on 9-6-2000 and the amendment in the Act was introduced with effect from 12-8-2002 which does not have retrospective effect. In sum and substance, the argument of Shri Naik is that as no possession is transferred in pursuance to the agreement, as the petitioner is claiming relief of handing over possession in pursuance to the agreement, the stamp duty as per Article 23 to Schedule I can not be recovered. ( 5. ) REFUTING the aforesaid, Shri R. D. Jain, learned Senior Counsel submitted that the assertion made in the plaint or the reply submitted by the defendants in the written statement does not decide the question of possession. Question of possession in such cases has to be decided by a plain reading of the instrument in question and if reading of instrument shows that the possession has been handed over simultaneously in pursuance to the agreement for sale then the agreement for sale has to be treated as a conveyance for transfer of the property and stamp duty in accordance with Article 23 has to be paid. Referring to Clauses 3, 4 and 6 of the agreement, Annexure P-2, so also a judgment rendered by a Division Bench of this Court in the case of Gyan Singh Yadav and Ors. v. Smt. Kunwardevi and Ors. , 1999 RN 118, it was argued by Shri Jain that when the order passed by the learned Court below is proper and no interference into the same is called for. ( 6. ) IT was also submitted by Shri Jain that the amendment in the Act enforced with effect from 13-8-2002 is only with regard to memorandum of agreement referred to in Article 5 of Schedule I-A and does not pertains to the present document. It was argued by him that the original Article 1 was introduced in the year 1990 with effect from 18-10-1990, and therefore, the second submission of Shri Naik is misconceived. Placing reliance on a judgment of the Supreme Court in the case of Dev Raj Dogra and Ors. v. Gyan Chand Jain and Ors. , AIR 1981 SC 981 and Raj Kumar-Rajindra Singh v. State of Himachal Pradesh and Ors. , AIR 1990 SC 1833 , it was submitted by Shri Jain that the document being clear and unambiguous with regard to handing over possession to the petitioner, the order passed by the learned Court below does not call for any interference in exercise of the under Article 227 of the Constitution. ( 7. ) HAVING heard learned Counsel for the parties and on perusal of the record, it is seen that a Bench of this Court in the case of Gyan Singh Yadav (supra) in Paragraph 17 has clearly laid down that the provisions contained in Article 23 of Schedule I-A has been made applicable in the State of Madhya Pradesh with effect from 15-10-1990, the date seems to be incorrectly mentioned in the said judgment. The M. P. Amendment Act No. 22 of 1990 was inserted on 18-10-1990 and not on 15-10-1990. The M. P. Amendment Act No. 22 of 1990 was inserted on 18-10-1990 and not on 15-10-1990. However, it is observed by the learned Judge that the explanation added clarified that for the purpose of Article 23, in cases of agreement for sale of 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, the agreement for sale is deemed to be a conveyance and stamp duty thereon shall be leviable accordingly. Thereafter, in Paragraph 18, the facts of that particular case were considered and after considering the recital as contained in the agreement, it was held that the instrument was deficiently stamped. In the said case, the agreement was to carry out certain development work. ( 8. ) RECENTLY, the Supreme Court in the case of Subbegowda (Dead) by Lr. v. Thimmegowda (Dead) by Lrs. , JT 2004 (5) SC 274, has held that the question of considering construction of a document is to be decided by finding out the intention of the executant, firstly from a comprehensive reading of the terms of the document itself, and the other circumstances on the basis of which the document is executed. It has been held by the Supreme Court that when the intention is clear then the construction of the document has to be done in such a manner that the intention of the parties are given effect to. If the document in hand is considered in the light of the aforesaid, it has to be held that it is a conveyance transferring right of the property and possession to the petitioner. ( 9. ) IF the agreement in question is scanned in the back drop of the aforesaid legal principle enunciated in the aforesaid cases, it is seen that in Paragraphs 3 and 4 of the agreement, it is clearly stipulated that in the property in question tenants are residing. The responsibility of evicting the tenants from the property in question will be in the purchaser, i. e. , the plaintiff. The expenses incurred for evicting the tenants shall be borne by the party No. 2, i. e. , the petitioner. The seller, party No. 1 shall only extend his cooperation in getting the tenants evicted from the property in question. All the tenants are being informed about this agreement. ( 10. The expenses incurred for evicting the tenants shall be borne by the party No. 2, i. e. , the petitioner. The seller, party No. 1 shall only extend his cooperation in getting the tenants evicted from the property in question. All the tenants are being informed about this agreement. ( 10. ) FURTHER stipulation in the agreement is that from the date of agreement, the right to receive the rent from the tenants passes on to the purchaser, i. e. , the petitioner. All the tenants were informed that after execution of this agreement for sale, they are required to pay the rent to plaintiff. It is further stipulated in the agreement that after execution of this agreement, if any of the tenants wants to purchase the property or portion in which they are residing then they have to approach the plaintiff and enter into an agreement with the plaintiff. ( 11. ) FROM the aforesaid, it is clear that in the tenanted premises physical possession on the date of the agreement was not possible as tenants were residing in the premises. However, the right to recover the rent and dealing with tenants was transferred to the plaintiff from the date of the agreement. It is in the aforesaid factual aspect of the matter that the question as to whether possession was handed over on the date of the agreement has to be decided in this case. ( 12. ) EVEN though, referring to the explanation to Article 23, Shri Naik argued that possession referred to therein means physical possession of the property in question. The aforesaid argument seems to be misconceived. Possession is in fact a detention or enjoyment of a thing which a man holds or exercises by himself or by another, who keeps or exercises it in his name. Possession may be the actual possession or possession in law. Actual possession is when a person enters the land by descending on the same or otherwise and possession in law is that in which in the eye of law, he is deemed to be in possession inasmuch as he reaps benefit of the property. ( 13. ) IN the present case, petitioner is in full control of the property in question even though physically he may not have been handed over the possession. ( 13. ) IN the present case, petitioner is in full control of the property in question even though physically he may not have been handed over the possession. The petitioner is in constructive possession of the property as all right of the owner, i. e. , landlord in relation to the tenants who are in actual possession is transferred to the petitioner. ( 14. ) IN that view of the matter, it is to be held that the explanation to Article 23 which speaks about possession being transferred to the purchaser has to be considered on the basis of the document in question and if the agreement in the present case and the stipulation contained therein is analysed in the back drop of the legal principle as is evident from the judgments referred to herein-above, it can not be said that the learned Court has committed any error in directing for payment of stamp duty by the petitioner. Merely because petitioner is not in actual possession, it can not be said that the order is unsustainable. ( 15. ) CONSIDERING the totality of the facts and circumstances of the case, I find no ground to interfere in the matter. ( 16. ) ACCORDINGLY, petition stands dismissed without any order as to cost.