Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 447 (MP)

ASHABAI KRISHNA BADOLE v. DHANNALAL

2009-04-08

PRAKASH SHRIVASTAVA, R.S.GARG

body2009
Judgment ( 1. ) THE petitioner/plaintiff, who had filed a suit for specific performance based upon the agreement dated 11-3-1995, being aggrieved by the order dated 2-9-2002 requiring him to pay the duty/ penalty on the agreement as required under art. 23 of Schedule I-A of Indian Stamp act (as amended in its application to M. P.), is before this Court with a submission that the learned Court below has not appreciated the true import and effect of the agreement and unjustifiably required the petitioner to pay the duty and penalty. ( 2. ) THE agreement in dispute is available on the record at Annexure-A/1. In para-graph-5, the document refers that the properly proposed to be sold was in possession of the plaintiff on basis of some agreement relating to Aadhbattai, the executants of the document had received the amount of aadhbattai, it also records that the executants have already received the amount of future profit/aadhbattai. It also says that under the said agreement of aadhbattai, the plaintiff would be entitled to maintain possession up to 31 - 3-1996 and would also be entitled to take crops of Kharif and Rabi and after execution of the sale deed and after receiving the balance amount of rs. 20. 000/-, the possession would be handed over to the plaintiff. In paragraph-7 last line, it is agreed between the parties that the balance amount of Rs. 20. 000/- would be paid by the plaintiff to the executants on or before 31-3-1996, the plaintiff would get the document executed and from the date of execution of the document/sale-deed, he would hold the possession as owner of the property. ( 3. ) WHEN the document was sought to be produced in evidence, the respondent Nos. 1 and 2 raised an objection that the document being a conveyance as defined under section 2 (10) of the Indian Stamp Act and as it was required to be on an appropriate stamps in accordance with Art. 23 of schedule I-A appended to the Indian Stamp Act (in its application to State of M. P.) without payment of duty and penalty, the document could not be admitted in evidence. The learned Court below conceded to the objection and directed the plaintiff to pay duty and penalty. ( 4. ) SHRI Chaphekhar, learned Sr. The learned Court below conceded to the objection and directed the plaintiff to pay duty and penalty. ( 4. ) SHRI Chaphekhar, learned Sr. Counsel for the petitioner/plaintiff submitted that a perusal of the document would clearly show that the possession of the land in dispute was not handed over to the plaintiff in anticipation of the agreement or under the agreement or in furtherance of terms of the agreement. It is submitted by him that the possession was already with the plaintiff, however, in a different capacity and such possession cannot be deemed to be possession under the agreement. Referring to paragraphs-5 and 7 of the agreement, it is submitted by him that the recital made in the document would clearly show that the plaintiff was already in possession under some different agreement and not under the agreement on hands. ( 5. ) SHRI Zelawat, learned counsel for the respondent Nos. 1 and 2, however, submitted that from a perusal of paragraph-4 of the plaint, paragraphs 5 and 7 of the agreement in dispute, it would clearly appear that the possession already with the plaintiff, from the date of the execution of the agreement would be deemed to be possession under the agreement. It is submitted by him that the learned Court below was absolutely justified in requiring the plaintiff to pay duty and penalty on the said document. ( 6. ) WE have heard the parties at length and have gone through the provisions of law. ( 7. ) SECTION 2 (10) defines conveyance. It reads: "conveyance" includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule 1 or Schedule 1-A as the case may be. " ( 8. ) ARTICLE 23 of Schedule 1-A appended to the Indian Stamp Act relates to conveyance and provides that seven and half per cent of such market value is to be paid on conveyance. " ( 8. ) ARTICLE 23 of Schedule 1-A appended to the Indian Stamp Act relates to conveyance and provides that seven and half per cent of such market value is to be paid on conveyance. However, the explanation appended to Article 23 provides that for the purpose of the Article 23, wherein 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. It further provides that the provisions of Section 47-A shall apply mutatis mutandis to such agreement which is deemed to be a conveyance under that Section. There is a further proviso appended to the explanation but, however, we are not concerned with the said proviso. ( 9. ) A fair reading and understanding of the explanation would make it clear that there has to be an agreement to sell immovable property. The possession of the immovable property should be transferred to the purchaser before or after execution of such agreement. The possession, therefore, should be transferred either in anticipation of the agreement to sell or at the time of the execution of the sale agreement or after the sale agreement is executed. In any case, the possession must be delivered under the agreement to sell. If a person is already in possession of the property proposed to be sold in some different capacity then by no stretch of imagination it can be held that the possession was handed over to such person/holder of the agreement, under the agreement. ( 10. ) ASSUMING in the case of a tenant, who enters into an agreement to purchase the property from the landlord, the suit filed by the said tenant for specific performance is dismissed then he cannot be dispossessed because he was in possession of the property as tenant and would continue in possession of the property as a tenant. ( 11. ) IN the present case, the plaintiff is shown to be in possession under some earlier agreement of profit/aadh battai and it is clearly mentioned in paragraphs 5 and 7 of the agreement that the possession would be handed over to the petitioner/plaintiff as an owner after execution of the sale deed. ( 11. ) IN the present case, the plaintiff is shown to be in possession under some earlier agreement of profit/aadh battai and it is clearly mentioned in paragraphs 5 and 7 of the agreement that the possession would be handed over to the petitioner/plaintiff as an owner after execution of the sale deed. ( 12. ) THE recitals contained in paragraphs 5 and 7 of the agreement would make it clear that the parties were alive to the fact that the plaintiff was in possession of the property in different capacity and was to receive possession as the owner on execution of the sale deed. ( 13. ) IF this is the legal position on basis of the interpretation of the agreement then the order passed by the learned Court below cannot be approved. ( 14. ) THE order deserves to and is accordingly quashed. The agreement would be admissible in evidence as an agreement provided it is on appropriate stamps as are required on an agreement. ( 15. ) THE petition is allowed. There shall be no orders as to costs. Petition allowed.