[Cites 16, Cited by 0]
Karnataka High Court
Smt. Anitha Shanti Vaz vs Smt. Noothan Shetty on 11 March, 2026
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W.P. No.2065/2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11 TH
DAY OF MARCH, 2026
R
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.2065/2024 (GM-CPC)
BETWEEN:
SMT. ANITHA SHANTI VAZ
AGED ABOUT 41 YEARS
D/O LATE JOSEPH MARIAN VAZ AND
Digitally signed W/O ROYAN CALWIN CAMELIO
by RUPA V R/AT. SHANTHINIKETHANA
DAREGUDDE VILLAGE AND
Location: HIGH POST, MOODBIDRI TALUK D.K 574197
COURT OF REPRESENTED BY HER GPA HOLDER
KARNATAKA
MR. GLANNEL SHAAN VAS
S/O MR. GEORGE STEVEN VAS
AGED 21 YEARS
R/AT. SHANTHI NIKETHAN
DEREGUDDE POST AND VILLAGE
MOODABIDRI TALUK
DAKSHINA KANNADA 574197.
...PETITIONER
(BY SRI. VINAY N, ADV., FOR
SRI. MANMOHAN P.N. ADV.,)
AND:
1. SMT. NOOTHAN SHETTY
AGED ABOUT 38 YEARS
W/O SATHISH SHETTY
RESIDING AT 3-203
KHANA DARKASTH HOUSE
BELVAI VILLAGE AND POST
MOODBIDRI TALUK
DAKSHINA KANNADA - 574199.
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W.P. No.2065/2024
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2. IMRAN AHAMED
AGED ABOUT 30 YEARS
S/O LATE SHABBIR AHAMED ALIAS SAHEB
RESIDING AT DARKASTH HOUSE
KANDIGA, BELVAI VILLAGE AND POST
MOODBIDRI TALUK
DAKSHINA KANNADA - 574197.
3. MISS. NAZNEEN BANU
AGED ABOUT 32 YEARS
D/O LATE SHABBIR AHAMED ALIAS SAHEB
NEAR GEETHA CLINIC
BELVAI VILLAGE AND POST
MOODBIDRI TALUK
DAKSHINA KANNADA 57497.
4. MRS. ALFIYA BANU
AGED ABOUT 30 YEARS
D/O LATE SHABBIR AHAMED ALIAS SAHEB
NEAR GEETHA CLINIC
BELVAI VILLAGE AND POST
MOODBIDRI TALUK
DAKSHINA KANNADA 574197.
...RESPONDENTS
(BY SRI. SACHIN B.S. ADV.,)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ALLOW THIS WRIT
PETITION AND SET ASIDE THE ORDER DATED 06.12.2023 IN
O.S.NO.229/2023 PASSED BY THE SENIOR CIVIL JUDGE AND
JMFC, MOODBIDRI, D.K. (PRODUCED AS ANNEXURE-H) AND
PASS SUCH OTHER AND FURTHER ORDERS AS DEEMED FIT IN
THE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
02.03.2026, COMING ON FOR PRONOUNCEMENT OF ORDER,
THIS DAY, THE COURT MADE THE FOLLOWING:
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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CAV ORDER
This writ petition is filed assailing the order dated
06.12.2023 passed in O.S.No.229/2023 by the Senior Civil
Judge and JMFC, Moodbidri, Dakshina Kannada District
(hereinafter referred to as the 'Trial Court').
2. The brief facts leading to filing of this case are
that the respondent No.1 filed a suit in O.S.No.229/2023
against the petitioner and others for the relief of specific
performance of the agreement dated 23.06.2018 and
other reliefs. The petitioner-defendant No.4 contested the
proceedings by denying the assertion of the plaintiff. The
Trial Court recorded the evidence of the plaintiff. At that
stage, the petitioner-defendant No.4 objected to marking
of the agreement of sale dated 23.06.2018 on the ground
that the said instrument is insufficiently stamped and is
not registered. The plaintiff filed a memo dated
11.08.2023 stating that the possession of the property
was with the plaintiff prior to the agreement and she is
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only liable to pay the stamp duty as per Article 5(e)(ii) of
the Karnataka Stamp Act, 1957 (hereinafter referred to as
the Act). The petitioner-defendant No.4 objected to the
memo filed by the plaintiff. The Trial Court, under the
impugned order upheld the memo. Being aggrieved, this
petition is filed.
3. Sri.P.N.Manmohan, learned counsel appearing
for the petitioner submits that the agreement in question
expressly mentions about the delivery of possession to the
plaintiff-respondent No.1 and hence, the plaintiff is liable
to pay the stamp duty under Article 5(e)(i) of the Act. It is
further submitted that the alleged possession over the suit
schedule property of the plaintiff is only to overcome the
aspect of payment of stamp duty. It is also submitted that
no matter by what mode, the plaintiff claims possession
over the suit schedule property, the same comes to an end
once the delivery of possession is recognized under the
instrument dated 23.06.2018. It is contended that the
plaintiff is liable to pay the stamp duty as if it is a
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conveyance under Article 20 of the Act along with the
penalty and the Court is required to consider as if there
was delivery of possession under the instrument. It is
further contended that since the agreement in question is
unregistered, Section 17 of the Registration Act, 1908,
mandates the registration once the instrument indicates
delivery of possession. On both the counts, the Trial Court
has erred and has passed the impugned order. In support
of his contentions, he placed reliance on the following
decisions:
(a) SRI.J.PRAKASH Vs. SMT.M.T.KAMALAMMA AND
ANOTHER1
(b) RAMESH MISHRIMAL JAIN Vs. AVINASH
VISHWANATH PATNE AND ANOTHER2
(c) C.K.RAVI PRASANNA Vs. T.K.GOWRAMMA3
(d) K.AMARNATH Vs. SMT.PUTTAMMA4
(e) J.RAMAPPA Vs. J.VENKATRAMANA SETTY5
(f) SMT.KRISHNAKUMARI Vs. SRI.K.SURESH
KUMAR6
2007 SCC Online KAR 490
2025 SCC Online SC 329
ILR 2007 KAR 2807
1998 SCC Online KAR 383
2023 SCC Online KAR 1381
ILR 2015 KAR 2335
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(g) RAMEGOWDA @ CHIKKARAMEGOWDA, SINCE
DECEASED BY LRS Vs. SRI.MALLEGOWDA @
KRISHNAPPA7
Hence, he seeks to allow the appeal.
4. Per contra, Sri.B.S.Sachin, learned counsel for
the respondent No.1-plaintiff supports the impugned order
of Trial Court and submits that the plaint averments
clearly indicate that the possession of the suit schedule
property was delivered to the plaintiff more than two years
prior to the agreement of sale and the said aspect is also
found in the agreement. It is submitted that the Article 5
of the Act clearly makes a distinction with regard to the
payment of stamp duty in the cases of delivery and non-
delivery of possession under the agreement of sale. It is
further that the petitioner-defendant No.4 raised an
objection with regard to the stamp duty and thereafter,
the plaintiff filed a memo indicating that the stamp duty
paid on the agreement in question was less and hence, the
W.P.No.11451/2020 dt. 30.08.2023
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plaintiff paid the stamp duty and the penalty as per Article
5(e)(ii) of the Act and therefore, asking the plaintiff to pay
the stamp duty as per Article 5(e)(i) of the Act, would not
arise. In support of his contentions, he placed reliance on
the following decisions:
(a) DANAPPAGOUDA FAKKIRAGOUDA PATIL Vs.
KAMALAWWA AND ANOTHER8
(b) VIJAY KUMAR Vs. S.S.ASHOKA AND ANR.9
(b) SRI. N.N.MANJAPPA Vs. SRI.NAGAIAH @
N.N.NAGAIAH AND ANOTHER10
(c) K.V.VENKATASUBBAIAH Vs. RAJAPPA
(DECEASED) BY LRS11
(d) MR.N.SRINIVASA V SRI.MURULESH AND
OTHERS12
(e) VIJAY KUMAR GOYAL (DEAD) THROUGH
LEGAL REPRESENTATIVE. Vs. NEENA RANI
AND OTHERS13
Hence, he seeks to dismiss the appeal.
(2006) 6 AIR (Kar)(R) 296
W.P.No.52902/16 dt. 08.10.2021
W.P.No.24862/2023 dt. 15.10.2025
W.P.No.17460/2015 dt. 09.10.2020
ILR 2014 KAR 4350
2022 SCC Online SC 1237
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5. I have heard the arguments of the learned
counsel for the petitioner, the learned counsel for
respondent No.1 and meticulously perused the material
available on record. I have given my anxious consideration
to the submissions advanced on both the sides.
6. The material on record indicates that the
petitioner raised an objection in the suit with regard to
payment of stamp duty on agreement of sale dated
23.06.2018 during the trial. The respondent No.1 -plaintiff
filed a memo indicating that the instrument in question
was stamped for a sum of Rs.200/-, which was insufficient
and thereafter, the stamp duty along with the ten-times
penalty was paid and the deficit stamp duty was made
good by paying the stamp duty and penalty of Rs.38,300/.
The contention of the petitioner is that the agreement in
question recognises delivery of possession in favour of the
respondent No.1-plaintif and hence, he is liable to pay the
stamp duty under Article 5(e)(i) of the Act and ten times
penalty on the said amount. To appreciate the said
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contention, it would be useful to extract the relevant
clause of the agreement dated 23.06.2018 as under:
"2. ¸À¢æ MAzÀ£Éà ¥ÁnðAiÀĪÀgÀÄ F PɼÀUÉ PÁt¹zÀ ¹ÜgÁ¹Û ªÀÄvÀÄÛ
ªÀÄ£ÉAiÀÄ£ÀÄß JgÀqÀ£Éà ¥ÁnðAiÀĪÀgÀ ªÀ±ÀPÉÌ ¸ÀĪÀiÁgÀÄ 2 ªÀµÀðzÀ »AzÉAiÉÄÃ
¤ÃrgÀÄvÁÛgÉ. ¸À¢æ ¹ÜgÁ¹ÛAiÀÄ°ègÀĪÀ ªÀÄ£ÉAiÀÄ°è F ªÉÄïÁÌt¹zÀ JgÀqÀ£ÉÃ
¥ÁnðAiÀĪÀgÀÄ FUÁUÀ¯Éà ªÁ¸ÀªÁVgÀÄvÁÛgÉ. CzÀ®èzÉ ¸À¢æ ¹ÜgÁ¹ÛUÉ
¸ÀA§AzsÀ¥ÀlÖAvÉ ªÀÄ£ÉAiÀÄ mÁj¹ì£À ªÉÄïÁÎqÉ ²ÃlÄ ºÁQ ªÀÄ£É ªÀÄvÀÄÛ
¨Á«AiÀÄ j¥ÉÃj, ªÀÄ£É ¥ÉÊnAUï EvÁå¢UÀ¼À£ÀÄß JgÀqÀ£Éà ¥ÁnðAiÀĪÀgÀÄ
¸ÀĪÀiÁgÀÄ gÀÆ.10,00,000/- (gÀÆ¥Á¬Ä ºÀvÀÄÛ ¯PÀë) QÌAvÀ®Æ ºÉZÀÄÑ
ªÉÆvÀÛªÀ£ÀÄß RZÀÄð ªÀiÁr j¥ÉÃj ªÀiÁrgÀÄvÁÛgÉ. ¸À¢æ ªÉÆvÀÛªÀ£ÀÄß F
ªÉÄïÁÌt¹zÀ JgÀqÀ£Éà ¥ÁnðAiÀĪÀgÉà ¨sÀj¹gÀÄvÁÛgÉ"
7. The aforesaid clause clearly indicates that the
possession of the suit schedule property was delivered to
the plaintiff two years prior to the agreement. A perusal of
the plaint averment at paragraph 3 makes it further clear
as to how the plaintiff was in possession of the suit
schedule property and thereafter, an agreement of sale
dated 23.06.2018 between the parties came to be
executed. It is not in dispute that the transfer of
possession of the suit schedule property was effected in
favour of the plaintiff much prior to the agreement in
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question and there is no transfer of possession in part
performance of the said agreement.
8. The relevant article of the Act reads as under:
Article 5 - Agreement or memorandum of
agreement
[(e) If relating to sale of immovable property wherein part
performance of the contract
(i) Possession of property Same duty as a conveyance
is delivered or is (No.20) on the market value of
agreed to be delivered the property:
[before] executing the [Provided that, where a deed
conveyance. of cancellation of earelier
agreement is executed by and
between the same parties in
respect of the same property
and if proper stamp duty has
been paid on such agreement,
then the duty on such "deed of
cancellation" shall not exceed
rupees five hundred.
(ii) Possession of the [Fifty paise] for every one
property is not hundred rupees or part thereof
delivered on the market value equal to
the amount of consideration
[but not less than rupees Five
hundred]
9. The plain language employed in Article 5(e)(i) does
not create any ambiguity with regard to the stamp duty
payable, when possession is delivered. If the agreement of
sale of immovable property is in part performance of the
contract and the possession of the property is delivered or is
agreed to be delivered before executing the conveyance, then
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the stamp duty payable on such an instrument would be the
same as conveyance under Article 20 of the Act. The aforesaid
Article deals with two situations, firstly, the possession of the
property is delivered under the agreement and secondly, the
possession is agreed to be delivered before the actual
conveyance i.e. before the execution of the absolute sale deed.
The contention of the petitioner that prior delivery of
possession, which is recognised under the agreement is also
covered under Article 5(e)(i), is fallacious.
10. It would be useful to refer to the following decisions
of this Court.
a. In the case of DANAPPAGOUDA FAKKIRAGOUDA
referred supra, this Court held as follows:
"5. Having heard the Learned Counsel for the
parties the only point to be considered by this Court
in this writ petition is that if the plaintiff was in
possession of the property much earlier to the
execution of the second agreement and when no
possession was delivered to the plaintiff under the
second agreement, whether, the plaintiff is required
to pay the duty and penalty.
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6. The facts if this case are not in dispute. The
only point to be considered by this Court is
interpretation of the two documents. If the plaintiff
has put in possession of the property under the
second document, the impugned order has to be
sustained, failing which, the impugned order is to be
quashed.
7. Under the agreement dated 11.5.91, the
defendant has agreed to sell the suit schedule
properties for a total sale consideration of Rs.
36,000/-. The entire amount of Rs. 36,000/- has
been paid by the plaintiff before the attestor to the
document its also recited that possession was with
the plaintiff much earlier to the agreement dated
11.5.91 and it is also stated that the plaintiff is
cultivating the suit lands. The circumstances it is to
be held that even under the first agreement, the
possession is no delivered to the plaintiff and that
the plaintiff was in possession earlier to the first
agreement. The reading of second agreement reveals
that except enhancing the sale consideration from
Rs. 36,000/- to Rs. 41,000/- and payment of further
sum of Rs. 2,000/- out of the enhanced sale
consideration of Rs.5,000/- nothing is stated.
Therefore, it is clear no possession was delivered to
the plaintiff under the second agreement dated
18.7.96. When the possession is not delivered to him
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under the second agreement dated 18.7.96, it is
difficult to hold that the plaintiff has to pay the duty
and penalty contending that he has to pay the duty
and penalty on the ground that the possession is
delivered to him. The circumstances it has to be held
the trial Court has committed an error in directing
the plaintiff to pay the duty and penalty."
b. In the case of VIJAY KUMAR referred supra, it was
held as follows:
"10.2. A document is required to be stamped on the
basis of what the document contains and conveys.
The said document having been executed on
03.06.1995 ought to be considered on the date on
which it is executed W.P.NO.52902/2016 i.e.
03.06.1995. The future covenant may happen or
may not happen. Such an event cannot be taken into
consideration for the purpose of determining the
stamping a document executed on 03.06.1995.
10.3. A perusal of the covenants in the agreement
of sale deed dated 03.06.1995 would indicate that it
is only upon certain permission being issued and the
compound wall being constructed, the said
possession would be handed over. If the permission
had not been received and the compound wall had
not been constructed, the possession could not have
been handed over.
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10.4. The interpretation now sought to be given is
that by virtue of the agreement of sale, the
possession was agreed to be handed over on the
contingent event occurring in future and therefore,
the possession was handed over on 18.07.1995,
hence, the document executed on 03.06.1995 is
required to be stamped as if possession was handed
over on such document W.P.NO.52902/2016 in terms
of Article 5(e)(i) of the Act by invoking Article 20 of
the Act cannot be sustained.
10.5. The document as stated above would have to
be regarded in the context and at the time at which
the said document was executed. There being no
possession which has been handed over under the
agreement of sale dated 03.06.1995, it cannot be
said that article 5(e)(i) of the Act would be
applicable, let alone invoke Article 20 of the Act."
c. In the case of SRI. N.N.MANJAPPA referred
supra, it was held as under:
"8. A reading of the agreement for sale dated
15.04.2010 would go to show that, the petitioner
was already in possession of item no.2 of the suit
schedule property which is also item no.2 in the
schedule to the agreement for sale dated
15.04.2010 and he was running a business in the
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said property in the name of 'N.M.Timber'.
Therefore, it is apparent that the petitioner was not
put in possession of item no.2 of the suit schedule
property in part performance of the agreement for
sale dated 15.04.2010 nor it is agreed under the
said agreement that in part performance of the said
agreement the petitioner will be put in possession of
the property. This aspect of the matter has not been
properly appreciated by the Trial Court and it had
erred in holding vide its order dated 14.12.2021
that the petitioner / plaintiff was liable to pay stamp
duty on the aforesaid agreement for sale as
provided under Article 5(e)(i) of the Act.
11. In my considered opinion since the possession
of item no.2 of the suit schedule property was
handed over to the petitioner much prior to the date
of execution of the agreement for sale and since the
possession of property was not delivered under the
agreement nor it was agreed to be delivered before
executing the agreement in part performance of the
contract, the Trial Court was not justified in holding
vide the orders impugned in this petition that the
petitioner is liable to pay stamp duty on the
instrument as provided under Article 5(e)(i) of the
Act. Since possession of the property is not
delivered in part performance of the contract nor is
not agreed to be delivered before executing
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conveyance in part performance of the contract, the
petitioner is liable to pay stamp duty only as
provided under Article 5(e)(ii) of the Act."
d. In the case of K.V.VENKATASUBBAIAH
referred supra it was held as under:
"25. Viewed from this angle, it becomes clear that
the possession of the purchaser prior to the
execution of the Agreement of Sale would be of no
relevance at all for the purposes of applying Article
5(e)(i) of the Schedule to the Act. All that would be
required for attracting Article 5 (e)(i) of the Schedule
to the Act is that the Agreement contains a recital
that, in part performance of the agreement of sale,
the prospective purchaser is either WP.17460/2015
being put in possession or is agreed to be put in
possession.
26. Thus, in this case, as a necessary consequence
of the above discussion, it would emerge that the
prior possession of the defendants over the lands as
recited in the agreement would be of no relevance
for the purpose of determining the stamp duty
payable on the execution of the agreement of sale
and the singularly key ingredient to be considered is
the recital that possession was being delivered under
the agreement in part performance of the contract."
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e. In the case of MR.N.SRINIVASA V SRI.MURULESH
referred supra, it was held as follows:
"5. To attract the said provision there should be a
recital in the agreement of sale to the effect that
under the agreement the possession is delivered.
Whether possession is actually delivered under the
agreement or not is immaterial. Similarly, if
possession is delivered earlier to the agreement or
subsequent to the agreement is also immaterial. The
recital that the possession would be delivered after
five months would not amount to delivering
possession under the agreement. Similarly, the
recital that the possession is agreed to be delivered
is not sufficient to attract the liability to pay stamp
duty. There should be express recital that "without
executing the conveyance", the possession is agreed
to be delivered. Admittedly, there is no recital in the
agreement of sale to the effect that possession is
delivered in part performance of the agreement. Nor
is there any recital that such possession is agreed to
be delivered without executing the conveyance. On
the other hand, the recital in the agreement is to the
effect that 'the possession is being delivered after
five months' and that 'on payment of the
consideration, the seller shall execute the registered
sale deed'. Therefore, Article 5(e)(i) of the Schedule
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to the Act is not attracted. There is no merit in this
writ petition. Accordingly, it is dismissed."
f. In the case of Vijay Kumar Goyal (Dead)
represented by LRs, referred supra the Hon'ble Supreme
Court has held as under:
"6. Having gone through the said agreements, it
can be seen that the possession has not been
delivered under the said agreements. In these
agreements, it is specifically mentioned that the
possession of the disputed land in question was
already with the appellant - Vijay Kumar. In the
Memorandum of Agreement dated 24.02.1996, it is
mentioned that "the above said land is already with
my brother Vijay Kumar and after today, my brother,
Vijay Kumar has become the owner in possession of
the above land like me". In the agreement to sell
dated 14.05.2011, in paragraph 2, it is stated that
"that the possession of the above land is already with
party No. 2 and the party No. 2 is having possession
of the same today also". Thus, it cannot be said that
the possession of the land in question was delivered
through under the said agreements of which the
specific performance is sought. In that view of the
matter, Entry No. 5 of Schedule 1-A of the Indian
Stamp Act as amended by the State of Punjab shall
not be applicable. As per Entry No. 5 (cc) of
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Schedule 1-A applicable under the State of Punjab,
"in the case of agreement to sell followed by or
evidencing delivery of possession of the immovable
property agreed to be sold", the stamp duty is
leviable under Column No. 2 of Entry No. 23 of
Schedule 1-A. As observed hereinabove, the plaintiff
was already in possession prior to the execution of
the aforesaid agreements as per the recitals in the
aforesaid two agreements. It is to be noted that even
the plaintiff has also not sought the possession in the
suit filed by him and has in fact sought the
permanent injunction restraining the defendants
from interfering in the peaceful possession of the
plaintiff and from dispossessing or causing to
dispossess the plaintiff from the suit property.
7. In view of the above and for the reasons stated
above, the order passed by the High Court and that
of the Trial Court directing the appellant - original
plaintiff to pay the deficient stamp duty with penalty
applying Sub-column No. 2 of Column No. 2 of Entry
No. 23 of Schedule 1-A as amended by the State of
Punjab is unsustainable and the same deserves to be
quashed and set aside."
11. The aforesaid enunciation of law laid down by
this Court and the Hon'ble Supreme Court clarify the
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legislative intent of Article 5 of the Act. The delivery of
possession ought to be determined upon the recital of the
agreement to satisfy the condition that the said delivery of
possession is being undertaken in the agreement or being
agreed to be delivered before the deed of conveyance in
part performance of a contract. The actual possession of
the property before the agreement is immaterial, as long
as, the said possession isn't being delivered under the
agreement itself in part performance. In the case on
hand, the agreement does not indicate the 'delivery of
possession' or 'agreement to deliver possession before
conveyance' in part performance of the contract, but only
refers to the existing physical possession of the plaintiff
over the suit schedule property. Hence, the duty and
penalty paid by the plaintiff under Article 5(e)(ii) is
appropriate.
12. The decision relied on by the learned counsel
for the petitioner in the case of SRI.J.PRAKASH referred
supra is distinguishable on the facts of the said case and
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the case on hand. The facts in the case on hand clearly
reveal that the plaintiff was in possession prior to the
agreement. However, the clause in the agreement in the
aforesaid case clearly states that the possession is handed
over to the plaintiff in part performance of the contract. In
such circumstances, the Court recorded the finding that
the nature of possession earlier to the agreement is
distinct from the possession after agreement. In the said
case, the Court has taken note of the decision of
DANAPPAGOUDA FAKKIRAGOUDA PATIL referred supra,
and approved the reasoning of the said case.
13. The decision of the Hon'ble Supreme Court in
the case of RAMESH MISHRIMAL JAIN referred supra,
has no application to the case on hand as the Maharashtra
Stamp Act specifically covers the situation of transfer of
possession of the property prior to the agreement.
However, the language employed under Article 5(e)(i) and
5(e)(ii) of the Act makes it clear that if possession of the
property is delivered or agreed to be delivered before
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executing the conveyance in part performance of the
agreement, then the stamp duty is liable to be levied as
per Article 20 of the Act. Whereas, in case of non-delivery
of possession under the agreement, the stamp duty
leviable is not as per Article 20 of the Act. The Act does
not cover a situation of transfer of possession prior to the
agreement in part performance. The Court is required to
consider the clauses of the agreement and based on such
clauses, ascertain the aspect of possession as to whether
delivery of possession is under the agreement or not. In
the case on hand, the clauses of the agreement clearly
indicates that the plaintiff is in possession of the property
more than two years prior to the agreement of sale and
the agreement of sale recognises the earlier transfer of
possession in favour of the plaintiff. It is not otherwise,
that the agreement of sale contains transfer of possession
in part performance of the contract.
14. In the case of C.K.RAVI PRASANNA referred
supra, paragraphs 6 and 7 clearly indicate that the
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HC-KAR
transfer of possession of the property therein prior to the
agreement and under the agreement are held to be on
different footing, which clearly demonstrates that even
under the agreement, the possession was transferred.
Therefore, the Court held that the stamp duty payable
would be as per Article 20 of the Act.
15. In the case of RAMEGOWDA @
CHIKKARAMEGOWDA, SINCE DECEASED BY LRS referred
supra, the Court has extracted the clause of the
agreement which clearly indicates that the possession is
handed over in part performance. The Court held that the
stamp duty is required to be paid as per Article 5(e)(i) of
the Act.
16. Therefore, in the instant case, it is clear that
the possession was delivered much prior to the agreement
and there was neither a transfer of possession nor an
agreement to transfer possession at a later point before
the deed of conveyance under the agreement.
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NC: 2026:KHC:14464
HC-KAR
Furthermore, the agreement does not contain any clauses
to the effect that the possession is being transferred under
the agreement or is being agreed to be transferred.
Hence, the stamp duty payable on the agreement of sale
in the said case cannot be considered to be payable under
Article 5(e)(i) of the Act. The Trial Court, taking note of
the material on record and the law on the said point has
rightly come to the conclusion that the stamp payable is
under Article 5(e)(ii), which does not call for any
interference.
17. For the aforementioned reasons, the petition is
devoid of merits and is accordingly, rejected.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV
List No.: 2 Sl No.: 1
