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Madhya Pradesh High Court · body

2015 DIGILAW 782 (MP)

Mahendra Kumar v. Meera Bhargava

2015-07-31

ROHIT ARYA

body2015
ORDER 1. By this writ petition under Article 227 of the constitution of India, petitioner has challenged the legality, validity and propriety of the order dated 17.10.2012 passed by the trial Court dismissing the application filed by the petitioner under section 35 of the Stamp Act vide I.A. No.3. 2. Facts necessary for disposal of this petition are in narrow campass. Plaintiff /respondent has filed a suit for specific performance of agreement to sale dated 10.12.2008. 3. Defendant filed an application under section 35 of the Stamp Act questioning the admissibility of the aforesaid agreement to sale on the premise that the instrument does not bear the stamp duty as payable in conveyance deed as the possession of the property was delivered by the instrument does not bear the stamp duty as payable in conveyance deed as the possession of the property was delivered by the instrument and therefore stamp duty was payable as per the market value of the property ans in absence where of the document was not admissible in evidence. Learned counsel relied upon judgment of Coordinate Bench of this Court in Gajanand Awasthy v. Sharif Khan, [ 2008(II) MPWN 63 ], and submitted that document deserve to be impouned and sent to Collector for affixture of proper stamp duty. 4. Respondent/plaintiff denied the allegations as regards delivery of possession of the suit premises through agreement to sale and according to him the provisions of Article 5(e) (ii) at applicable and not that of Article 5(e) (ii) of Indian Stamp Act, 1899. Therefore, the stamp duty as payable on conveyance deed are not required to be affiexed as provided for under Article 5 (e) (i) of the Indian Stamp Act, 1899. Therefore, the trial Court was right having rejected the application. 5. Article 5 (e) (i) and (ii) reads as under :- Art Description of Instrument Proper Stamp duty 5.(e) If relating to sale of immovable (i)   When possession of the property is   delivered or is agreed to be delivered without executing the conveyance. (ii) When possession of the property is                                         given. le property The same duty as a conveyance (No.200 the market value of the property. Once percent of the total consideration of the property set fourth in the agreement or memorandum of agreement. 6. (ii) When possession of the property is                                         given. le property The same duty as a conveyance (No.200 the market value of the property. Once percent of the total consideration of the property set fourth in the agreement or memorandum of agreement. 6. Trial Court has found that agreement to sale dated 10.12.2008 bears the stamp duty of Rs.1700/- which is 1% of total value of property shown in the sale deed to be Rs.1,70,000/- Further upon considering the instrument the trial Court has found that no clause there of contemplates delivery of possession, pending or upon or subsequent to execution of sale deed on future dates. Hence, stamp duty affixed is proper and accordingly, rejected the application. 7. Being aggrieved thereby, the present petition has been filed. The sole question arised in this case related to applicablity of Article 5 (e) (i) or 5 (e) (ii) of Schedule I appended to Indian Stamp Act, 1899 for the purposes of stamp duty the agreement to sale dated 10.12. 2008. 8. Before adderssing upon the said issue. it is considered apposit to refer to earlier provisions as contained in Article 23 of Indian Stamp Act, 1899 Which reads as under- Description of Instrument Proper Stamp-duty 23. Conveyance, not being a transfer charged or exempted under No. 62 irrespective of the market value of the property which is the subject matter of conveyance. Seven and half percent of such market value. Explanation:- for the purpose of this article where in 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 agrrement 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 levialbe accordingly................ 9. The aforesaid article stand deleted later on and the provisions under Article 5(e) (i) and 5 (e) (ii) hold the field. 10. A comparative understanding of aforesid relevant provision is necessary to understand real import of the provisions contained in the new existing provisions and its applicability in the given facts situations. Under the earlier provision. it is provided that on the instrument of conveyance seven and half percent duty of the total market value of the property was required to be affixed. Under the earlier provision. it is provided that on the instrument of conveyance seven and half percent duty of the total market value of the property was required to be affixed. By explanation appended there to agreement to sale of immovable property was brought within the purview of Article 23 and in the case of agreement to sell of immovable property, whether the possession of any immovable property is transferred to the purchaser before execution or after execution of such agreement without executing conveyance in respect there of then such agreement to sell shall be deemed to be a conveyance and stamp duty there on shall be leviable as on conveyance. Therefore, the incidence of delivery of possession pursuant to agreement to sale either before its execution or afterwords was of no consequence and agreement to sale itself was to be treated as conveyance for the purposes of stamp duty as conveyance under Article 23. Whereas, under Article 5(e) the distinction between the situations when possession of property is delivered or is agreed to be delivered without executing the conveyance and when the possession of the property is not given in the context of agreement to sale relating to sale of immovable property in prescribed. In the former case, the stamp duty as payable on conveyance on the market value of the property is leviable and in later case only 1% of total consideration of the property set forth in the agreement to sale is shown. 11. Thus, two fold factual aspects whether possession of the property is delivered or is agreed to be delivered are required to be ascertained. In the instant case, the agreement to sale is on record and the entire agreement dealth with terms and conditions of execution of sale deed on a future date upon payment of Consideration specified thereunder. However, in the paragraph it is averred that the possession of the suit property has already been delivered orally and an affidavit has been filed in context thereto. The said para of the aforesaid sale deed reads as under :- Þ;g fd vuqcaf/kr Hkwfe dk ekSf[kd :i ls dCtk vuqxzfgr dks iwoZ esa fn;k tk pqdk gSA blds laca/k esa vkt fnukad dks ‘kiFk i= vafdr fd;k gSAÞ 12. Thus, possession of the property is not delivered either at the time of execution of the agreement or agreed to be delivered. Thus, possession of the property is not delivered either at the time of execution of the agreement or agreed to be delivered. Instead, it merely makes a mention that the possession of the property was already delivered orally for which an affidavit has been filed independently, therefore, it is, therefore, clear that agreement to sale does not bear the stipulation either delivery of possession or an agreement for delivery of possession. Hence, in the opinion of this Court Article 5(e) (i) has no application and trial Court was justified having rejected the application filed by the defendant under section 35 of Stamp Act as the possession of the property was not given by the agreement to sale. 13. Now coming to the judgment cited by learned counsel for petitioner passed by this Court is the matter of Gaganand Awasthy (supra), in the opinion of his Court same is distinguishable on facts as in the said case by a written document dated 30.4.2003, the possession was delivered and the agreement to sale had witnessed the transfer of possession with a clause stipulated in the behalf, and therefore the said document was construed to have the effect of continuity of possession. Hence, the order of the trial Court under the circumstances, was upheld while ordering impounding of the instrument under section 35 of the Stamp Act. Thus, the aforesaid judgment is of no assistance to the petitioner. 14. The petition being bereft of merits is hereby dismissed.