Andhra Pradesh High Court - Amravati

Vasana Siva Kumar vs Gurram Venkata Subbaiah on 6 October, 2023

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       THE HON'BLE DR. JUSTICE K. MANMADHA RAO

            C.R.P.Nos.6462 of 2017 and 1321 of 2018

COMMON ORDER:

      The Revision Petition No.6462 of 2017, under Article 227 of

the Constitution of India, is preferred against the order, dated

09.11.2017, in O.S.No.185 of 2007 on the file of the Court of the

XIII Additional District Judge: (FTC) Vijayawada (in short 'the

court below').


      The Revision Petition No.1321 of 2018, under Article 227 of

the Constitution of India, is preferred against the order, dated

09.11.2017, in O.S.No.185 of 2007 on the file of the Court of the

XIII Additional District Judge: (FTC) Vijayawada (in short 'the

court below') holding that the receipt dated 07.02.2005 enclosed to

the Sale-cum-General Power of Attorney dated 04.02.2005 in not

compulsorily registerable that the Will dated 25.02.2005 and the

Eenaadu paper publication dated 21.07.2007 all tendered by the

respondents/ plaintiffs are admissible in evidence.

2. In C.R.P.No.6462 of 2017, the petitioner herein is the 1st

plaintiff; respondents 1 to 3 are the defendants and respondents 4

to 8 are the plaintiffs 2 to 6 before the court below.

In C.R.P.No. 1321 of 2018, the petitioners herein are the

defendants 1 to 3 and respondents 1 to 6 are the plaintiffs before

the court below.

3. Since the facts and issue involved in all the Civil

Miscellaneous Appeals and also Contempt Cases are one and the

same, I find it expedient to decide these matters by a Common

Judgment.

4. For the sake of convenience, C.R.P.No.6462 of 2017 has

been taken as a leading case. The discussion made therein is

adapting to the revision in C.R.P.No.1321 of 2018, as the parties to

the suit and subject matter is one and the same.

5. The plaintiffs filed a suit for declaration that the sale

deed executed by Bhimana Lankamma on 08.10.2004 in the name

of 6th plaintiff basing on a Will dated 25.02.2003 executed by her

husband Venkateswara Rao is valid and binding on the defendants

and for permanent injunction. In the said suit, the respondents 1

to 6 i.e plaintiffs before the court below filed Chief Affidavit of PW-1

and shown eight documents for marking of Ex.A1 to A8. At that

juncture, the defendants therein raised an objection with regard to

admissibility of documents.

6. The Court below having considered the facts and

circumstances of the case, holding that the document shown as

Ex.A5 can be received in evidence, subject to payment of stamp

duty and penalty as if it is a sale deed as per Indian Stamp Act

and the document shown in Ex.A2 i.e Will dated 25.02.2003 can

be received in evidence, subject to objection raised by the

defendants, which would be decided in the last stage of final

judgment. Assailing the same, the present revisions came to be

filed.

7. Heard Sri Y. Rama Rao, learned counsel for the

petitioners and Sri P.V.Vidyasagar, learned counsel for the

respondents 1 to 3 in C.R.P.No.6462 of 2017, who are defendants

before the court below.

8. During hearing learned counsel for the petitioner i.e 1st

plaintiff would contend that the court below erred in concluding

that receipt annexed to the sale-cum-general power of attorney

shown as Ex.A5 is admissible and can be received in evidence

subject to payment of stamp duty and penaldty as if it is a sale

deed, as indicated in Schedule-I-A, Article 47(A), Explanation 1

and Article of Indian Stamp Act, payable by the plaintiffs by taking

necessary steps as per law being hit by Section 35 of Indian Stamp

Act, while holding that the objection raised by the defendants in

this regard is sustainable. It is further contended that the court

below failed to appreciate that the receipt of payment which is only

a cash receipt evidencing the receipt of balance sale consideration

does not require any stamp duty and penalty and also registration

as it is only a cash receipt and the court below failed to consider

the decisions cited by them. Therefore the revision in

C.R.P.No.6462 of 2017 is liable to be allowed.

9. In support of his contention, learned counsel for the

petitioners has relied on a decision of this Court in "M.

Madusudan Reddy v. M. Kamalamma and Others"1 wherein it

was held as follows:

4. It is settled principle of law that the nomenclature of a document is not a decisive factor. From the point of view of admissibility, it is the contents of the document that assume importance. If a document, though named as agreement of sale, contains all ingredients of sale, it is to be treated as a sale deed. In such cases, its admissibility would depend upon the compliance with the requirements, such as, stamp duty and registration. The amendment brought about through A.P. Act 21 of 1995 to Article 47A of Schedule 1A of the Stamp Act had narrowed down the distinction between an agreement of sale and a sale deed from the point of view of stamp duty. The Explanation added through the amendment reads as under:

"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 (5) of Article 6, the stamp duty, if any, already paid or recovered on the agreement of sale be adjusted towards the total duty leviable on the sale deed."

MAN/AP/0834/2003

From a reading of the Explanation, it is evident that if an agreement evidenced delivery of possession of the property agreed to be sold, it is liable to be charged as a sale deed. An important distinction brought about by various situations, having relevance to this Explanation, needs to be noted. There are certain agreements, which contain a recital to the effect that the possession has already been delivered to the purchaser or is being delivered through the agreement itself. In such a case, undoubtedly, the agreement is liable to be charged as if it is a sale deed. There are also agreements, which provide for delivery of possession at a future point of time, be it subject to payment of the balance or any portion of consideration, or on occurrence of any event. Here again, two situations may be contemplated. If such delivery of possession at a subsequent point of time is evidenced by that very agreement in the form of an endorsement, etc., it gets attracted by Explanation 1. On the other hand, even if the delivery of possession has taken place at a subsequent date, but the same is not evidenced by the agreement, it does not attract Explanation 1. In such an event, the document deserves to be treated as agreement simpliciter, notwithstanding the fact that possession of the subject-matter of the agreement was delivered, otherwise than through an endorsement on the agreement itself.

5....

6. An instance of possession of the property being delivered subsequent to the date of agreement and on payment of balance of consideration, and such delivery having been endorsed on the agreement itself, was considered by this Court in Mekapothula Linga Reddy v. Durgempudi Gangi Reddy 1995 (2) ALD 59. It was held that Explanation gets attracted and the document is liable to be charged the stamp duty. Even in cases where an agreement of sale is to be treated as a sale deed, It is not as if the Court can refuse to receive outright, on the ground that it is insufficiently stamped or unregistered. Such a document is admissible for collateral purposes.

10. Further in "M. Hari Narayana @ Hari Babu v. The

Chief Controlling Revenue Authority & Commissioner and

Inspector General of Registration and Stamps, A.P and

Others"2 with regard to applicablity of 47-A Explanation-I-A of

Stamp Act 1988 necessarily to be interpreted only with reference

to the recitals in the agreement of sale and any evidence by way of

endorsement on the very deed of agreement. Which are related to

the impugned receipt.

11. Whereas learned counsel for the respondents 1 to 3

herein i.e defendants would mainly contend that the court below

should have sustained the objections of the defendants with

regard to admissibility of the receipt dated 07.02.2005, the Will

dated 25.02.2003 and the Eenaadu Paper Publication dated

27.01.2005. Having held that the receipt in question is chargeable

as a sale deed and subject to payment of stamp duty and penalty,

the court below went wrong in holding that it is not compulsorily

registerable. It is further contended that the reasoning of the court

below that the sale agreement-cum- general power of attorney and

the receipt were filed not for proving the rights of plaintiffs 1 to 4

in the suit and therefore it is immaterial to decide whether the

receipt requires registration or not as required under Section 17(1)

of the Registration Act, is hardly justifiable. Further the court

below should have further seen that in as much as the receipt is in

2008 0 AIR (AP) 117

admissible in evidence for want of registration none of its terms

can be admitted in evidence and to use it for proving any

important clause therein would not amount to using it for a

collateral purpose. Therefore, the court below failed to look into

those aspects. Hence the revision filed by the petitioners/

defendants in C.R.P.No.1321 of 2018 is liable to be allowed.

12. Whereas, learned counsel for the respondents/

defendants 1 to 3 would contend that the documents filed by them

are admissible in evidence stating that the receipt dated

04.02.2005 annexed to Ex.A5 document does not require any

stamp duty and penalty and also registration as it is only a cash

receipt, evidencing the receipt of balance sale consideration and

that the possession of the plaint schedule property was not passed

through the registered sale agreement-cum-general power of

attorney. Ex.A6 paper publication is also admissible in evidence as

it comes under secondary evidence and it can be marked subject

to objection and its evidentiary value can be decided at the final

stage of judgment. Further Ex.A2 Will does not require any stamp

duty. Therefore, requested to dismiss the revisions filed by the

defendants.

13. Learned counsel for the respondents relied on a decision

of composite High Court of Andhra Pradesh in "Naram Bhoomi

Reddy (died) per L.R. Naram Raghunath Reddy v. Naram

Venkat Reddy and Another"3 wherein the learned Single Judge

held as follows:

"11. From the discussion undertaken above, the following principles emerge:

(1) It is not necessary for the executor or legatee of a Will to obtain Probates of the Wills in the State of Andhra Pradesh (Also in the Telangana State after its formation).

(2) For considering an application to come on record as the legal representative of a deceased party, the Court need not undertake a roving enquiry on the validity of the Will(s). A summary enquiry into the claim of execution of the Wills is enough for the Courts to permit a person who claims to be the legal representative of the deceased party to come on record for the limited purpose of continuing the proceedings.

(3) The burden lies on the executants or legatee to prove the Will(s) propounded by him in suit or final decree or other proceedings, as the case may be, as per the provisions of Chapter V of the Indian Evidence Act, 1872, if he asserts any right over the property of the party based on the Will(s) after his coming on record.

14. In "Sri Gajanan Stores rep., by its Managing

Partner, Sri Sudhakar Phadki and Others v. Smt. Shailaja

Khadikar and Others4" wherein it was held as follows:

"43. Section 264 of the Act reads as follows:

S. 264: Jurisdiction of District Judge in granting and revoking probates, etc.

(1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district.

2014(5) ALT 270 (S.B)

2012(5) ALT 43 (D.B)

(2) Except in cases to which Section 57 applies, no Court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do."

Sub-section (2) of Section 264 says that except in cases to which Section 57 applies, no Court beyond the limits of towns of Calcutta, Madras and Bombay relating to Wills executed by a Hindu, receive applications for probate or letters of administration, unless there is a notification by the State Government. The said bar under Section 264(2) will not apply to cases to which Section 57 applies.

44. Section 57 of the Act reads as follows:

Sec.57. Application of certain provisions of Part to a class of wills made by Hindus, etc.

The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-

(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina) on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

(b) to all such wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and

(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b) of Section 57 do not apply to these wills. As such when the said Wills come

under Section 57(c), the bar under Section 264(2) will not apply. The objection as to jurisdiction and maintainability having not been taken by the appellants before the lower Court and even at the time of filing of the appeals, they are estopped from raising that objection at this stage. Furthermore, in view of the fact that the appellants themselves having filed O.P.No.342 of 1995, for grant of probate, they cannot raise this objection.

15. In "K.B.Saha and Sons Private Limited v.

Development Consultant Limited"5 wherein the Hon'ble Apex

Court held as follows:

"34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:

1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.

2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.

3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.

4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.

5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of

(2008) 8 SCC 564

proving an important clause would not be using it as a collateral purpose.

16. In "Veena Hasmukh Jain and another v. State of

Maharashtra and Others"6 wherein the Hon'ble Apex Court held

as follows:

"8. The duty in respect of an agreement covered by the Explanation is leviable as if it is a conveyance. The conditions to be fulfilled are if there is an agreement to sell immovable property and possession of such property is transferred to the purchaser before the execution or at the time of execution or subsequently without executing any conveyance in respect thereof such, an agreement to sell is deemed to be a conveyance. In the event a conveyance is executed in pursuance of such agreement subsequently, the stamp duty already paid and recovered on the agreement of sale which is deemed to (be) a conveyance shall be adjusted towards the total duty leviable on the conveyance.".

17. Perused the record.

18. The court below has discussed the decisions cited supra

and also other decisions of various courts by following the same it

was held that though the impugned receipt in question filed for

limited scope, but it requires stamp duty and penalty as per

Section 49, Schedule-I(A), Article 47(A), Explanation-1 of Indian

Registration Act or else it would cause loss of revenue to the

Government Exchequer. Therefore the impugned receipt suffers

from the defect under Section 35 of Indian Stamp Act, which can

AIR 1999 SC 807

be taken into consideration on payment of stamp duty and panlty

as per schedule by the plaintiffs. Hence, the said impugned receipt

is admissible in evidence, subject to payment of stamp duty and

penalty. Further the Will datged 25.02.2003 is not probated as per

Section 213 of Indian Succession Act, which is not in the custody

of PW-1 and that he is no way connected to the said Will, as such

the same is inadmissible in evidence as contended by the

defendants. The court below already held in I.A.No.805 of 2011

that there is no need for probate of said Will as Section 213(1) is

not applicable in this State, since there is no corresponding

amendment to Indian Succession Act by appying the provisions

applicable to Madras are applicable to this State. Again the

defendants have raised the same issue by relying "Gajanan

Stores" case cited supra. The said decision is no way helpful to

the defendants.

19. It is the contention of the respondents/ defendants that

Eenaadu paper publication shown as Ex.A6 is inadmissible as it is

not secondary evidence. But the court below held that the said

document can be received in evidence subject to objection raised

by the defendants, which can be looked into at the stage of

judgment and draws the attention of this Court with regard to

Section 35 of The Indian Stamp Act, 1899, which reproduced

hereunder:

35. Instruments not duly stamped inadmissible in evidence, etc. :--No Instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:

Provided that--

'[(a) any such instrument?|shall] be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of [fifteen rupees], or, when ten times the amount of the proper duty or deficient portion thereof exceeds [fifteen rupees, of a sum equal to ten times such duty or portion;

(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of [three rupees| by the person tendering it;

(c) where a contract or agreement of any kind is effected by correspondence consisting. of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;

(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898.

(e) nothing herein contained shall prevent the admission of any instrument in any court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by Section 32 or any other provision of this Act.

20. Following the decisions cited supra, which are almost

discussed by the court below at length and given proper reasons

with regard to applicablity of case law relied on by both the

parties. Therefore, this Court is of the considered opinion that the

impugned order dated 09.11.2017 passed by the court below is

proper and there is no impropriety or irregularity therein.

21. However, the documents which relied by the plaintiffs

are essential to substantiate their case. Therefore as per law the

documents can be received in evidence subject to admissibility. In

the instant case the document shown in Ex.A5 is admissible

subject to payment of stamp duty and penalty; the document

shown in Ex.A2, which is a Will is admissible and can be received