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2004 DIGILAW 765 (AP)

V. Dharma Reddy v. S. Hari Ram

2004-07-30

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THIS Civil Revision Petition is filed against the order dated: 10-7-2001 passed by the court of Junior Civil Judge, Wanaparthy, mahaboobnagar District, in LA. No. 162 of 2001 in O. S. No. 44 of 1996. ( 2 ) THE Respondent filed the suit for the relief of perpetual injunction. According to him, he purchased the suit schedule property from the petitioners through a saledeed dated 13-6-1996. The petitioners contended that the respondent is yet to pay part of consideration, and, in that view of the matter, he was not delivered the possession of the suit schedule property. It was in this context, that the respondent intended to rely upon an agreement of sale dated 23-4-1996 said to have been executed between them. ( 3 ) THE respondent filed I. A. No. 195 of 2001 calling upon the petitioners herein to produce the agreement of sale dt. 23-4-1996 said to have been executed between them. He pleaded that the original of the agreement of sale was taken by the petitioners at the time of execution of the sale-deed on 13-6-1996. The petitioners did not agree with the contention of the respondent. It was in that context that the respondent filed I. A. No. 162 of 2001 under section 65 of the Indian Evidence Act to receive the Xerox copy of the said agreement of sale, as secondary evidence. The petitioners resisted the application on several grounds. According to them, Xerox copy of an agreement of sale cannot be admitted in evidence. They also pleaded that even otherwise, stamp duty cannot be collected on the Xerox copy of an agreement of sale. Reliance was placed on several judgments of the Supreme Court as well as of this Court. Through the order under revision, the trial Court allowed the I. A. , and, received the Xerox copy of the agreement of sale dated 23-4-1996, as secondary evidence. ( 4 ) SRI M. Rama Rao, learned counsel for the petitioners submits that the Xerox copy was not at all admissible in evidence, not being secondary evidence, within the ambit of Section 65 of the Indian Evidence Act. His further contention is that the original of the agreement of sale was not stamped at all, and, the question of collecting stamp duty on a Xerox copy does not arise. His further contention is that the original of the agreement of sale was not stamped at all, and, the question of collecting stamp duty on a Xerox copy does not arise. He relies upon the judgment of the Supreme Court in Jupudi v. Pulavarthi, and, a judgment of this Court in Akkam Laxmi v. Thosha Bhoomaiah. ( 5 ) THE application filed by the respondent was under Section 65 of the Evidence Act to receive the Xerox copy of an agreement of sale as secondary evidence. An important objection raised on behalf of the petitioners is that an agreement of sale is liable for levy stamp duty under Section 35 of the Indian stamp Act, and, that the question of collecting said stamp duty on a Xerox copy does not arise. In Jupudi v. Puiavarth, the honourable Supreme Court categorically held that stamp duty cannot be collected on a copy of document, if the original was not subjected to stamp duty at all. The honourable Supreme Court in turn placed reliance on the judgment of the Privy Council in Raja of Bobbin v Inuganti China sitaramaswami Garu. The same principle was adopted by this Court in Akkam Laxmi v. Thosha Bhoomaiah. ( 6 ) IF it were to be a case where the respondent intended to rely upon the copy of the agreement of sale for the purpose of enforcing it, the objection raised on behalf of the petitioners can certainly be sustained. Section 35 of the Stamp Act prohibits admission of any "instrument" in evidence, unless, it is duly stamped. Hardly, there exists any doubt that an agreement of sale is an instrument within the meaning of subsection (14) of Section 2 of the Stamp Act, in the normal parlance. However, it needs to be seen that for a document, to be treated as an instrument within the meaning of subsec. (14) of Section 2, a right or liability has to be created, transferred, limited, extended, extinguished, or, recorded by it. It is only then the document needs to be treated as an instrument. Where, however, the document does not have any purpose to serve on account of subsequent events, it cannot be still treated as an instrument within the meaning of Section 2 (14 ). ( 7 ) AGREEMENT of sale, undoubtedly, creates rights and liabilities between the parties concerned. It is only then the document needs to be treated as an instrument. Where, however, the document does not have any purpose to serve on account of subsequent events, it cannot be still treated as an instrument within the meaning of Section 2 (14 ). ( 7 ) AGREEMENT of sale, undoubtedly, creates rights and liabilities between the parties concerned. However, where it results in a sale-deed, the purpose underlying the agreement cannot be said to be still subsisting even thereafter. Therefore, once a sale-deed is executed, the agreement of sale preceding it cannot be treated as an instrument for the purpose of the Stamp Act. ( 8 ) THERE is another way of examining the matter. Whenever stamp duty is collected on an agreement of sale, the same is taken into account at the time of levying stamp duty on the sale deed. The effort is to ensure that the stamp duty on the entire transaction does not exceed the prescribed limit. Where, however, the entire stamp duty is collected on the sale deed, levy of stamp duty on an agreement of sale, which preceded the sale- deed, under any pretext, would result in subjecting the transaction for stamp duty, over and above what is prescribed under law. Such a course of action is impermissible. ( 9 ) REVERTING to the facts of the present case, the sale-deed has already been executed, and, it is not in dispute that the stamp duty for the entire transaction was paid. The question as to whether the agreement of sale, of which, the secondary evidence is sought to be adduced, is true or not is a matter to be considered in the evidence. Once a sale-deed was executed for the transaction, any agreement of sale preceding it ceases to hold the character of instrument as defined under Section 2 (14) of the Indian Stamp Act, whereby, it shall not be liable to be subjected to the levy of stamp duty. That being the case, its admissibility cannot be objected to. ( 10 ) THE question as to whether the alleged agreement of sale was in fact executed between the parties and whether its contents are true, can certainly be gone into by the trial Court. It shall always be open to the petitioners to raise any objection in that regard. That being the case, its admissibility cannot be objected to. ( 10 ) THE question as to whether the alleged agreement of sale was in fact executed between the parties and whether its contents are true, can certainly be gone into by the trial Court. It shall always be open to the petitioners to raise any objection in that regard. ( 11 ) FROM the perusal of the order under revision, it is evident that the respondent had complied with necessary steps provided for under Section 66 of the Evidence Act for adducing secondary evidence. Therefore, this Court does not find any basis to interfere with the order under revision. Since the suit is of the year 1996, the trial Court is directed to proceed with the trial of the same on priority basis and dispose of the suit, within two months from the date of receipt of a copy of this order. ( 12 ) THE Civil Revision Petition, therefore, is dismissed with the above observations. No costs