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Karnataka High Court · body

2014 DIGILAW 356 (KAR)

M. PURUTHOTHAM v. BHUDEVAMMA

2014-03-14

N.KUMAR

body2014
ORDER The plaintiff in the suit has preferred this Writ Petition challenging the order passed by the trial court holding that the agreement of sale is insufficiently stamped and calling upon the plaintiffs to pay the deficit stamp duty and ten times penalty on the said duty. 2. The plaintiffs have filed suit for specific performance of agreement of sale. The defendants have contested the matter by filing written statement and issues are also framed. The plaintiffs have got marked Ex.P.1 to P.45 at the time of evidence and sought to tender agreement in question at the time of evidence before the court. At that juncture, the defendants objected to the marking of the said document on the ground that it is insufficiently stamped. 3. After eight hearing dates, the plaintiffs also filed an application for determination of the stamp duty payable on the instrument and to refer the matter to the District Registrar. The trial court, after hearing both the parties, has held that the agreement is insufficiently stamped and therefore the plaintiffs have to pay duty and penalty. Aggrieved by the said order, the plaintiffs are before this court. 4. The learned counsel for the plaintiffs assailing the correctness of the impugned order canvassed that the delivery of possession under the agreement in question is symbolic in nature and therefore Art.5(i)(e) of the Karnataka Stamp Act is not attracted. In support of this he relied on clauses (5) and (6) of the agreement which read as under: “5. That the present vendors undertakes and covenants with the Purchasers that they shall sell the Schedule A and B Property along with possession to the Purchasers herein and to no one else. Further the Vendors undertake to vacate the tenants from the schedule A & B property and hand over the vacant possession of Schedule A and B Property to the Purchasers herein on or before the registration of the Sale – deed. 6. That the present vendors hereby undertakes to grant, sell, transfer, convey and assign by way of absolute sale all their rights, title and interest over the Schedule A and B property. The Vendor shave today put the purchasers along with the possession of the Schedule A & B property.” (underlining by me) 5. A combined reading of the above clauses makes it clear that the tenants are in occupation of A and B schedule properties. The Vendor shave today put the purchasers along with the possession of the Schedule A & B property.” (underlining by me) 5. A combined reading of the above clauses makes it clear that the tenants are in occupation of A and B schedule properties. In other words, the owner who has agreed to sell the property is not in physical possession and he is in possession through the tenants. Clause 6 says that the vendors have today put the purchasers along with possession of schedule A and B properties. 6. Para 5 of the plaint reads as under: “5. In part performance of the contract of sale dated 12102004 (Twelve ten two thousand four), the defendants have also put the plaintiffs in possession of the suit schedule properties. The plaintiffs came to be put in actual physical possession of the property described as ItemII in the schedule to the plaint. Since the property described at ItemI in the schedule to the plaint was in occupation of three different persons, the plaintiffs came to be put in symbolic possession of the said property.” 7. Clause 9 of the agreement reads as under: “9. That the Vendors have put the Purchasers in actual possession of the Schedule A & B property today.” 8. Therefore, it is clear that, in so far as item No. II is concerned, the plaintiff is put in actual peaceful possession of the property in part performance of the agreement of sale. In so far as item No. I of the plaint schedule is concerned, they are put in symbolic possession. In so far as item No. I is concerned, the tenant is in immediate possession. The owner is in mediate possession and symbolic possession is handed over to the purchaser plaintiff. All that the law requires is, delivery of possession in part performance of the agreement of sale. If this recital is in the agreement, then such an instrument has to be stamped as a conveyance. 9. Therefore, at the time of marking the document, the court holding an enquiry to find out whether the possession delivered is symbolic or actual, would not arise and it has to go by the terms of the deed. If so construed, possession is delivered in part performance of the agreement of sale in question and therefore Article 5(i)(e) of the Karnataka Stamp Act is attracted. If so construed, possession is delivered in part performance of the agreement of sale in question and therefore Article 5(i)(e) of the Karnataka Stamp Act is attracted. The trial court is justified in holding that the instrument is not duly stamped and directing the plaintiff to pay deficit stamp duty with 10% penalty as contemplated in law. No case for interference is made out and therefore the Writ Petition is dismissed.