Paturi Veera Venkata Narasimha ... vs Rayudu Venkata Krishna Rao
2022 Latest Caselaw 984 AP

    THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

           CIVIL REVISION PETITION No.1281 of 2021

ORDER:-

      The petitioners herein had filed O.S.No.629 of 2015 on

the file of XII Additional District Judge, Visakhapatnam

against the respondent herein seeking specific performance of

agreement of sale dated 28.06.2015. In the course of the case,

an issue had arisen as to whether the suit for agreement to

sell has to be impounded for payment of stamp duty and

penalty by treating the said document as a document of sale,

under Explanation-1 to Article 47-A of Schedule-1 A of the

Indian Stamp Act, 1899. After hearing both sides, the trial

Court by an order dated 08.04.2021 had held that the

document is chargeable as a sale under Explanation-1 to

Article 47-A of Schedule-1 A of the Indian Stamp Act, 1899.

Aggrieved by the said order, the petitioners have approached

this Court, by way of the present civil revision petition.

2. Heard Sri S.V.S.S. Sivaram learned counsel,

appearing for the petitioners and Sri C.V.R.Rudra Prasad

learned counsel, appearing for the respondent.

3. The 2nd Petitioner is the daughter of the

respondent and the 1st petitioner is the husband of the 2nd

petitioner. The case of the petitioners, in the trial Court was

that, the respondent, who was the owner of a plot of land had

constructed the ground floor of a building and then gifted, by

RRR,J CRP.No.1281 of 2021

way of a registered deed of gift, dated 28.04.1999, the eastern

side of the open terrace portion on the top of the ground floor

to an extent of 450 square feet along with undivided interest in

the land to an extent of 10 square yards out of the total extent

of 319.5 square yards. The son of the defendant is said to have

constructed a first floor on the eastern side, while the

defendant had constructed the remaining portion of the first

floor. Thereafter, in the year 2010, the 2nd petitioner is said to

have constructed with her own funds and with the permission

of the respondent, the entire 2nd floor of the building and that

the respondent had orally gifted the entire 2nd floor to the 2nd

petitioner with a promise to execute a Registered Gift

Settlement Deed.

4. As the respondent was intending to dispose of the

ground floor portion of the building, the petitioners herein had

sought to purchase the property and asked for a sale deed to

be executed in relation to the ground floor and the 2nd floor.

Accordingly, an agreement of sale had been executed between

the parties on 28.06.2015 for sale of both the ground floor and

the 2nd floor of the building. The petitioners then state that as

the respondent was unwilling to execute the deed of sale and

after exchange of notice between the parties, the present suit

had been filed.

5. The respondent contends that the said

unregistered agreement of sale was, in fact, a sale and the

document is required to be impounded and stamped by

RRR,J CRP.No.1281 of 2021

treating the document as a sale under Explanation-1 to Article

47-A of Schedule-1 A of the Indian Stamp Act, 1899.

6. Entry 47-A of Schedule-1-A of the Indian Stamp

Act, 1899 reads as follows:

47-A. Sale as defined in Section 54 of the Transfer of Property Act, 1882:

(a) in respect of property situated in any local area comprised in a Municipal Corporation:

(b) ......

(c) .......

(d) .......

Explanation-I

An agreement to sell followed by or evidencing delivery of possession of the property agreed to be sold shall be chargeable as a "sale" under this Article:

Provided that, where subsequently a sale deed is executed in pursuance of an agreement of sale as aforesaid or in pursuance of an agreement referred to in Clause (b) of Article, the stamp duty, if any, already paid or recovered on the agreement of sale shall be adjusted towards the total duty leviable on the sale deed.

Explanation-II ....

7. In view of Explanation-I, any document which

evidences delivery of possession requires to be treated as a

document falling under entry 47-A of Schedule-1-A of the Indian

Stamp Act, 1899. The respondent contends that the agreement of

RRR,J CRP.No.1281 of 2021

sale dated 28.06.2015 contains a provision, evidencing delivery of

possession, while the petitioners contend that there is no such

evidence of delivery of possession.

8. The respondent relies upon the following extract of

the agreement of sale to contend that there is a delivery of

possession.

"The vendor initially constructed the ground floor in the above said property immediately after the purchase and living therein with his family. The vendor gifted the eastern side open terrace portion on the top of the existing ground floor portion measuring 40 Sft along with undivided and unspecified share of 10 Square Yards out of the total extent of 319.5 Square yards to his only son Lt.R.K.Kawal under a gift settlement deed, Dt.28.04.1999 registered as Document No.1601/1999. Subsequently, the said Lt.R.K.Kawal constructed the eastern side part of the first floor and the vendor constructed the remaining western side part of the first floor and thereby, both of them together constructed the entire first floor in the year 1999. In the year 2010, the only daughter of the vendor Smt.Paturi Lakshmi Lavanya, W/o. P.V.V.Narasimha Rao with her own funds and with the permission of the vendor, constructed the entire second floor of the building. The vendor orally gifted the entire second floor to his only daughter Smt.Paturi lakshmi Lavanya, W/o.P.V.V.Narasimha Rao and also promised her to execute a registered gift settlement deed in her favour."

9. The dispute between both the parties revolved

around the question of whether the words "In the year 2010, the

only daughter of the vendor Smt.Paturi Lakshmi lavanya,

W/o.P.V.V.Narasimha Rao with her own funds and with the

RRR,J CRP.No.1281 of 2021

permission of the vendor, constructed the entire second floor of

the building. The vendor orally gifted the entire second floor to

his only daughter Smt.Paturi lakshmi Lavanya,

W/o.P.V.V.Narasimha Rao and also promised her to execute a

registered gift settlement deed in her favour" would amount to

evidence of delivery of possession within the meaning of

Explanation-1 to Article 47-A of Schedule-1 A of the Indian

Stamp Act, 1899.

10. Though the learned counsel for the petitioners is

said to have cited various judgments before the trial Court, the

said judgments are all reiterating the judgment of the Division

Bench of the erstwhile of High Court of A.P in B.Ratnamala Vs.

G.Rudramma1.

11. In this judgment, the question that arose between

the Division Bench was whether the words "followed by or

evidencing delivery of possession" would mean that only a

document which records handing over of possession by virtue of

the agreement of sale would fall within the ambit of Article 47-A

or whether a document which records handing over of

possession even prior to the agreement of sale would also fall

within the ambit of Article 47-A of Schedule-1 A of the Indian

Stamp Act, 1899.

12. The Division Bench after considering this issue had

held as follows:

1999 (6) ALT 59 (DB)

RRR,J CRP.No.1281 of 2021

"Thus the main question that falls for consideration is the interpretation of the expressions "followed by or evidencing delivery of possession". These expressions cannot be read in isolation and one has to find the true meaning by reading the entire Explanation and more so in conjunction with the earlier expression. i.e., "agreement".

Even if these two expressions are looked independently, it means an agreement to sale followed by delivery of possession and an agreement to sell evidencing delivery of possession. In the first case, i.e., "followed by delivery", possession cannot be disjuncted from the basic source i.e., agreement of sale. Therefore, the expression followed by delivery of possession should have a direct nexus to the agreement and should be read in juxtaposition to the word „agreement‟ and it cannot be independent or outside the agreement. Therefore, the delivery of possession should follow the agreement i.e., through the agreement. It takes in its sweep the recital in the agreement itself that delivery of possession is being handed over. It will also cover cases of delivery of possession contemporaneous with the execution of Agreement, even if there is no specific recital in the Agreement. In other words, the delivery of possession should be intimately and inextricably connected with the Agreement. And in the second type, i.e., agreements evidencing delivery of possession, if the document contains evidence of delivery of possession by a recital in that behalf, that is sufficient. Such delivery of possession can be prior to the date of agreement and need not be under the agreement. If the Agreement records the fact that the possession was delivered earlier and such recital serves as evidence of delivery of possession, though prior to the Agreement, it falls under the second limb. Therefore, on a proper interpretation of the said expressions, it would follow that an agreement containing specific recital of delivery of possession or indicating delivery of possession even in the past is liable for stamp duty as a „sale‟ under the said Explanation."

RRR,J CRP.No.1281 of 2021

13. It is now settled that any agreement of sale which

evidences delivery of possession by virtue of the said

agreement of sale or any document which even records that

delivery of possession had been done even before the

execution of the agreement of sale has been executed, would

both fall within the ambit of Article 47-A of Schedule-1 A of

the Indian Stamp Act, 1899.

14. In the present case, the question is whether the

aforesaid extract of the agreement of sale can be treated as

evidencing delivery of possession.

15. The passage relied upon by the respondent,

speaks of an oral gift and the construction of a second floor by

the 2nd petitioner. It is true that there is no explicit statement

that delivery of possession has taken place either on account

of the document or earlier. However, the recording of the fact

that the 2nd petitioner had built the 2nd floor of the building

belonging to the respondent, on the basis of the consent given

by the respondent and the statement that the said 2nd floor

had been orally gifted to the 2nd petitioner by the respondent

can only mean that the 2nd petitioner was put in possession of

the 2nd floor.

16. In the circumstances, it would have to be held that

the document evidences delivery of possession even prior to

the execution of the agreement of sale dated 28.06.2015 and

consequently, the said document would have to be treated as

RRR,J CRP.No.1281 of 2021

a sale falling within the ambit of Article 47-A of Schedule-1 A

of the Indian Stamp Act, 1899.

17. In that view of the matter, the Civil Revision

Petition is dismissed. There shall be no order as to costs.

Miscellaneous petitions, pending if any, in this Civil

Revision Petition shall stand closed.

___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 23-02-2022 RJS

RRR,J CRP.No.1281 of 2021

THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

CIVIL REVISION PETITION No.1281 of 2021

Date : 23.02.2022

RJS

RRR,J CRP.No.1281 of 2021

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

*** C.R.P.No.1281 of 2021 Between:

1. Paturi Veera Venkata Narasimha Rao, S/o.Late Janaki Ramayya, Hindu, aged 53 years, Business, R/o.D.No.1-67-25, 2nd floor, plot No.29, MIG-I, Sector-2, M.V.P.Colony, Visakhapatnam-530017.

2. Paturi lakshmi Lavanya, W/o.P.V.V.Narasimha Rao, Hindu, aged 50 years, House Wife, R/o.D.No.1-67-25, 2nd floor, Plot No.29, MIG-I, Sector-2, M.V.P.Colony, Visakhapatnam-530017.

... Petitioners

And

$ Rayudu Venkata Krishna Rao, D/o.Late R.Ankineedu, Hindu, aged 72 years, Retired Employee in MES, R/o.D.No.1-67-25, 2nd floor, plot No.29, MIG-I, Sector-2, M.V.P.Colony, Visakhapatnam-530017.

... Respondent

Date of Judgment pronounced on : 23-02-2022

HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

1. Whether Reporters of Local newspapers : Yes/No May be allowed to see the judgments?

2. Whether the copies of judgment may be marked : Yes/No

to Law Reporters/Journals:

3. Whether the Lordship wishes to see the fair copy : Yes/No Of the Judgment?

RRR,J CRP.No.1281 of 2021

*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

* HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

+ C.R.P.No.1281 of 2021

% Dated: 23-02-2022

1. Paturi Veera Venkata Narasimha Rao, S/o.Late Janaki Ramayya, Hindu, aged 53 years, Business, R/o.D.No.1-67-25, 2nd floor, plot No.29, MIG-I, Sector-2, M.V.P.Colony, Visakhapatnam-530017.

2. Paturi lakshmi Lavanya, W/o.P.V.V.Narasimha Rao, Hindu, aged 50 years, House Wife, R/o.D.No.1-67-25, 2nd floor, Plot No.29, MIG-I, Sector-2, M.V.P.Colony, Visakhapatnam-530017.

... Petitioners

And

$ Rayudu Venkata Krishna Rao, D/o.Late R.Ankineedu, Hindu, aged 72 years, Retired Employee in MES, R/o.D.No.1-67-25, 2nd floor, plot No.29, MIG-I, Sector-2, M.V.P.Colony, Visakhapatnam-530017.

... Respondent

! Counsel for petitioner : S.V.S.S.Sivaram

^Counsel for Respondent : C.V.R.Rudra Prasad

<GIST :

>HEAD NOTE:

? Cases referred:

1999 (6) ALT 59 (DB)