Madhya Pradesh High Court
Ashok Kumar vs Kishanlal on 13 April, 2023
Author: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
th
ON THE 13 OF APRIL, 2023
MISC. PETITION No. 6310 of 2022
BETWEEN:-
KISHANALAL S/O DAALOJI DESWALI
OCCUPATION: AGRICULTURIST GRAM
LOOHARDA TEH SATWAS (MADHYA PRADESH)
.....PETITIONER
(BY SHRI A.S. GARG, SENIOR COUNSEL WITH MS. POORVA MAHAJAN)
AND
ASHOK KUMAR S/O MOTILAAL JAIN, AGED
ABOUT 54 YEARS, OCCUPATION: BUSINESS
GRAM LOOHARDA TEH SATWAS (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI DATTATRAY KALE, ADVOCATE)
MISC. PETITION No. 904 of 2023
BETWEEN:-
ASHOK KUMAR S/O MOTILALJI JAIN, AGED
ABOUT 54 YEARS, OCCUPATION: BUSINESS R/O
VILLAGE LOHARDA TEHSIL SATWAS DISTT.
DEWAS (MADHYA PRADESH)
.....PETITIONER
(BY SHRI DATTATRAY KALE, ADVOCATE)
AND
KISHANLAL S/O DAALUJI NAGLOD DESWALI,
AGED ABOUT 66 YEARS, OCCUPATION:
AGRICULTURE R/O VILLAGE LOHARDA TEHSIL
SATWAS DISTRICT DEWAS (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI A.S. GARG, SENIOR COUNSEL WITH MS. POORVA MAHAJAN)
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 18-04-2023
10:46:10
2
These petitions coming on for admission this day, the court passed
the following:
ORDER
1] This order shall govern the disposal of M.P. No.6310/2022, and
M.P. No.904/2023 as both the misc. petitions filed under Article 227
of the Constitution of India, have arisen out of the order dated
22/11/2022, passed in case No.RCSA/57/2020 by the First Civil
Judge, Kannod, District Dewas (M.P.).
2] The misc. petition No.6310/2022 has been filed by the
defendant, whereas, the misc. petition No.904/2023 has been filed by
the plaintiffIn brief, the facts of the case are that the
respondent/plaintiff has filed a suit for specific performance of
agreement dated 14/06/2018, against the defendant, in which, the
plaintiff's evidence is being recording and when the agreement dated
14/06/2018 was being exhibited in the trial Court, an objection was
raised by the defendant that the same cannot be exhibited for the
reason that it is neither properly stamped nor it is registered. The
aforesaid objection of the defendant has been rejected by the learned
Judge of the trial Court holding that the agreement is written on
stamp papers of Rs.1,000/- which is proper stamp duty. So far as the
objection regarding registration of the document is concerned, it is
held that since the agreement is being used for collateral purposes, its
registration is not necessary.
3] Shri A.S. Garg, learned senior counsel for the
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 18-04-2023
10:46:10
petitioner/defendant appearing in misc. petition No.6310/2022 has
submitted that the Court has erred on both the counts for the reason
that the agreement is liable to be stamped @1% of value of the
agreement as per Schedule 1-A, Article 5(e)(ii) of Indian Stamp Act,
1899 which provides 1% stamp duty on an agreement to sale where
the possession is not delivered, whereas regarding the compulsory
registration of the document agreement to sale is concerned, counsel
has relied upon the decision delivered by the coordinate Bench of
this Court in the case of Gordhan Vs. Dinesh and others reported in
2017(4) MPLJ 565 and Shanti Bai Vs. Ratna Bai reported in
2018(4) MPLJ 135. Thus, it is submitted that the impugned order be
set aside, and the objection raised by the defendant regarding the
admissibility of the document be allowed.
4] Shri D.S. Kale, learned counsel for the respondent/plaintiff
(petitioner in M.P. No.904/2023) has although opposed the prayer of
the counsel for the petitioner/defendant, however, it is also submitted
that the impugned order is erroneous so far as it reflects that the
registration of the agreement to sale is not compulsory when it is not
being used for collateral purposes. It is submitted that in a suit for
specific performance of contract, the contract is used for the main
purpose and not for the collateral purposes, thus, it is submitted that
the impugned order be modified to that extent and it be held that in a
suit for specific performance of contract, the contract is for the main
purpose of the suit only and that is not required to be registered
which is also the mandate of s.49 of the Registration Act, 1908.
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 18-04-2023
10:46:10
Regarding the registration of the document, counsel has also
submitted that the law is well settled that in specific performance of
contract suit registration of the contract/agreement is not necessary
which has also been held by this Court in the case of Manish and
another Vs. Anil Kumar and others reported in 2015(2) MPLJ 645.
Counsel has also submitted that in the aforesaid decision also, this
Court has relied upon the various decisions of the Supreme Court.
5] So far as the proper stamp duty on the agreement dated
14/08/2018 is concerned, Shri Kale has also drawn the attention of
this Court to the old provisions of the Stamp Act which were in force
from 02/08/2008 to 15/09/2014, provided that as per Article 5(e)(ii),
when possession of the property is not given, the stamp duty payable
is 1%, whereas the aforesaid provision has been amended since then
in the year 2015, and Article 5 has been renumbered as Article 6
which provides Rs.1,000/- stamp duty where the possession of the
property is not given, and which duty has been paid on the
questioned document. Thus, it is submitted that no interference is
called for in the impugned order so far as it relates to the stamp duty
is concerned, however, it is stated that it may be modified to the
extent that the registration of the agreement is not necessary even if
the specific performance of the same is sought.
6] In rebuttal, Shri A.S. Garg, learned counsel for the defendant
has drawn the attention of this Court to Para No.2 of the agreement
Annx.P/2 which provides that the possession of the house in question
has been symbolically given to the purchaser. Thus, it is submitted
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 18-04-2023
10:46:10
that when the agreement itself says that the possession has been
given to the purchaser, the plaintiff cannot say that the possession has
not been given, thus, he was liable to pay stamp duty accordingly.
7] Heard learned counsel for the parties and perused the record.
8] From the record, it is found that the agreement in question was
executed between the parties on 14/06/2018, in respect of the suit
house. It is written on a stamp paper of Rs.1,000/- as provided under
Article 6 appended to the Schedule.1A, which was the appropriate
stamp duty which was to be paid on such agreement when the
possession of the property is not given.
9] So far as the reference of symbolic possession in the agreement
is concerned, in the same para 2 of the agreement, it is also
mentioned that the only symbolic possession is given to the plaintiff,
however, its physical possession shall be given at the time of
registration of the document. It is also found that the plaintiff has also
sought the relief of possession which leaves no doubt in the minds of
the Court that the possession of the house was not given to the
plaintiff. In such circumstances, this Court is of the considered
opinion that the symbolic possession cannot be deemed to be actual
possession for the purpose of stamp duty.
10] So far as the registration of the document is concerned, it is
true that the learned Judge of the trial Court has held that the
agreement is being exhibited for collateral purpose, hence, it is
admissible but, this Court is of the considered opinion that when the
agreement itself is sought to be executed through the suit, it cannot
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 18-04-2023
10:46:10
be said that it is being used for any collateral purposes. Otherwise
also, the Proviso to Section 49 of the Registration Act clearly
provides that the registration of such document is not necessary,
Section 49 reads as under:-
"49. Effect of non-registration of documents required to be registered.--
No document required by section 17 1[or by any provision of the Transfer of
Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or
conferring such power, unless it has been registered:
[Provided that an unregistered document affecting immovable property and
required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be
registered may be received as evidence of a contract in a suit for specific
performance under Chapter II of the Specific Relief Act, 1877 (3 of
1877) [***] or as evidence of any collateral transaction not required to be
effected by registered instrument.]"
(emphasis supplied)
11] This position has also been clarified by this Court in the case of
Manish and another (supra), the relevant para of the same reads as
under:
"15. IN the present case, there is no such direct irreconcilable
inconsistency between section 17(2)(b) and proviso to section 49
of the Registration Act. The scope of proviso to section 49 of Act
is very limited to the extent of receiving such document as
evidence of a contract in a suit for specific performance or as
evidence of any collateral transaction not required to be effected
by registered instrument.
16. Counsel for respondents has placed reliance upon
judgment of the Supreme Court in the matter of Raghunath and
others vs. Kedar Nath, reported in 1969(1) SCC 497 but that was
not a case of specific performance of contract nor proviso to
section 49 of Act has been examined in that matter. Similar is the
position in respect of the Division Bench judgment of Allahabad
High Court in the matter of Vijay Kumar Sharma vs. Devesh
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 18-04-2023
10:46:10
Behari Saxena, reported in AIR 2008 Allahabad 66. In the
judgment of Rajasthan High Court in the matter of Raju Ram vs.
Khinyaram, reported in AIR 2014 (NOC) 83 (Raj.) also the effect
of proviso to section 49 of Act has not been examined."
(emphasis supplied)
12] In view of the same, this Court does not find any substance and
the misc. petition No.6310/2022 filed by the defendant is hereby
dismissed, however, so far as misc. petition No.904/2023 filed by the
plaintiff is concerned, the same is partly allowed and it is directed
that the observation made by the trial Court that the agreement is
used for collateral purposes is hereby set aside and it is held that the
agreement is filed for the main purpose of the suit and is not required
to be registered.
13] Accordingly, both the petitions are disposed of.
14] Signed copy of this order be placed in connected matter.
Sd/-
(SUBODH ABHYANKAR)
JUDGE
krjoshi
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 18-04-2023
10:46:10
