Sri. Marni Sajay vs M/S Sri Janahita Estates
2022 Latest Caselaw 836 Tel

    THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY

             Civil Revision Petition No.96 of 2022
ORDER:

Questioning the order, dated 02.12.2021, passed in

I.A.No.27 of 2021 in O.S.No.2 of 2021 on the file of the VI-

Additional District Judge, Siddipet, the present Civil Revision

Petition is filed under Article 227 of the Constitution of India.

Learned counsel for the petitioner has argued that the

Court below, without considering the purport of Section 49 of

the Registration Act, 1908 (hereinafter, referred to as 'the Act'),

has held that the document relied by the petitioner is

inadmissible in evidence on the ground that the same is

insufficiently stamped and unregistered. Learned counsel has

stated that the suit is filed for specific performance of agreement

of sale, dated 31.03.2007, and for other reliefs. That as per

Section 49 of the Act even if the document is unstamped, the

same is admissible in evidence in a suit for specific performance

of agreement of sale, dated 31.03.2007. In support of his

contentions, learned counsel has relied on the decisions of the

Hon'ble Supreme Court reported in Ameer Minhaj v. Dierdre 2 AAR, J CRP.96 of 2022

Elizabeth (Wright) Issar and Ors1 and S.Kaladevi V.

V.R.Somasundaram and Ors2.

Per contra, the learned counsel appearing for the

respondents has argued that under the said agreement of sale,

dated 31.03.2007, the plaintiff was put in possession of the

subject property, and therefore, the same is hit by Section 35 of

the Indian Stamp Act, 1899 (hereinafter, referred to as 'the Act,

1899'). That unless and until the document is impounded and

necessary stamp duty is paid, the said document i.e. agreement

of sale, dated 31.03.2007, cannot be marked in evidence and

has relied on the judgment of this Hon'ble Court in Vanapalli

Jayalaxmi v. A.Kondalarao and Ors3 in support of his

submissions.

Heard and perused the record.

To decide the controversy in question, it is desirable to

extract the provisions of Section 47-A which makes it mandatory

for the documents to be compulsorily registerable. Article 47-A

of the Schedule I-A of the Act, 1899 makes it mandatory that if

the agreement of sale coupled with the delivery of possession

was executed, the document has to be executed on a stamp

paper as specified in that Article.

MANU/SC/0685/2018

MANU/SC/0246/2010 3 MANU/AP/1804/2013 3 AAR, J CRP.96 of 2022

Section 35 of the Act, 1899 makes it mandatory that 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, subject to the

exceptions made therein. Section 33 obligates the person having

the authority to receive evidence to impound the instrument not

duly stamped.

Admittedly, in the case on hand, the petitioner is relying

on the agreement of sale, dated 31.03.2007, to buttress his

contention that he was put in permissive possession to enjoy the

schedule property as the licensee. Even otherwise, learned

counsel for the petitioner contends that as per Section 49 of the

Act, 1899, whether the plaintiff has been put in possession or

not, in a suit for specific performance, the document is

admissible in evidence even if it is unstamped.

Learned counsel for the respondents has drawn the

attention of the Court to the recitals in the plaint, the prayer

sought for therein and also the recitals in I.A.No.27 of 2021 filed

in the said suit seeking injunction against the defendants

therein not to alienate the subject property pending the suit and 4 AAR, J CRP.96 of 2022

also the recitals in the agreement of sale, to buttress his

contention that once the plaintiff is claiming possession under

the said agreement of sale, the provisions of Section 35 will

automatically come into operation. That unless and until the

document is duly stamped, the same cannot be taken into

evidence. Even though the learned counsel for the plaintiff has

drawn the attention of the Court to the recitals in the agreement

of sale to contend that the possession is permissive and only as

a licensee, but, the fact remains that the plaintiff is claiming

possession under the said agreement of sale, irrespective of the

nomenclature used, the document refers to possession being

given as on the date of entering into the said agreement.

Therefore, the plaintiff cannot contend that the possession is

only permissive and it was given as a licensee only. Learned

counsel for the respondents has drawn the attention of this

Court to the prayer in the plaint wherein one of the prayers

sought for is to grant permanent injunction in respect of schedule

property restraining the defendants or anybody claiming under

the defendants from interfering with the possession and

enjoyment of the suit schedule property by the plaintiff, and

another recital in the plaint which reads "the plaintiff submits

that the entire sale consideration was paid to the defendant No.1 5 AAR, J CRP.96 of 2022

and the defendant No.1 had handed over the permissive

possession of the schedule property as licensee to the plaintiff.

Hence, the plaintiff is in possession and enjoyment of the said

property and his possession is protected under Section 53-A of the

Transfer of Property Act. The plaintiff is in possession and

enjoyment of the schedule property since the date of execution of

Agreement of Sale, dated 31.03.2007."

Admittedly, the petitioner is claiming the possession of the

property under the agreement of sale, dated 31.03.2007, and the

recitals in the said document also are to that effect. Section 35

of the Act, 1899, does not distinguish the mode of possession.

Once the recitals in the document refer to possession being given

under that document, the provisions of Section 35 are applicable

and the document cannot be marked till the same is duly

stamped.

Attention of this Court was also drawn to the following

observations made by the trial Court in the order dated

02.12.2021 in I.A. No.27 of 2021 in O.S. No.2 of 2021:

"It is clear from the terms of the agreement of sale that total sale consideration was paid to the Vendor by Purchaser and possession was delivered to the purchaser to enjoy the schedule property. Whether possession was given to the petitioner herein is permissive possession as a licensee for limited purpose or not is a point which can be decided after adducing evidence in main suit. Now, for 6 AAR, J CRP.96 of 2022

deciding the question of maintainability of agreement of sale, it is the recital which play key role."

Insofar as the decisions of the Hon'ble Supreme Court

relied by the petitioner are concerned, there is no quarrel with

regard to the propositions laid down therein, but the fact

remains that Section 35 of the Act, 1899 was not referred to in

the said two decisions nor the same was discussed. On the

other hand, this Court in Thippareddy Obullamma and Ors.

vs. Balu Narasimhulu4, after going through various decisions

of the Hon'ble Supreme Court as well as this Court, at para 18,

has held as under:

"18. From a combined reading of the judgments referred to above, in conjunction with proviso to Section 49 of the Indian Registration Act, 1908, broadly the following would emerge:

(1) An unstamped or insufficiently stamped document is inadmissible in evidence.

(2) As per the proviso to Section-49 of the Indian Registration Act, an unregistered document affecting immovable property and required to be registered can be received as evidence either in cases referred to therein or to prove any collateral transaction.

(3) If an unstamped or insufficiently stamped document coupled with the infirmity of being unregistered can be received in evidence for a collateral purpose, provided, the first defect under the Indian Stamp Act, 1899, is corrected. In other words, an

4 MANU/AP/0451/2003 7 AAR, J CRP.96 of 2022

unstamped or insufficiently stamped document after duly impounded as prescribed under Section 33 of the Indian Stamp Act, 1899, can be relied in evidence for collateral purpose."

In view of the law laid down by this Court and also the

provisions of the Section 35 of the Indian Stamp Act, 1899, this

Court does not find any infirmity or illegality in the order passed

by the trial Court which requires any interference of this Court.

In the result, the Civil Revision Petition is dismissed.

Miscellaneous petitions pending in this Civil Revision

Petition, if any, shall stand closed. There shall be no order as to

costs.

________________________ A.ABHISHEK REDDY, J Date : 22.02-2022 sur/smr