IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD TUESDAY, THE TENTH (10TH) DAY OF AUGUST, TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.795 of 2010 Between: Balivada Vijaya Kumar … Petitioner And: Gajula Venkata Rao & 2 others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.795 of 2010 ORDER: This revision is directed against the order dated 27.11.2009 in E.A.No.58 of 2005 in E.P.No.220 of 2001 in OS No.170 of 2000 on the file of the Principal Junior Civil Judge, Vizianagaram, wherein the learned Principal Junior Civil Judge, directed the petitioner to pay the stamp duty and penalty on the agreement of sale dated 15.11.2001. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondents. Perused the record. 3. The first respondent herein obtained a decree against the 2nd respondent on the basis of a promissory note. In pursuance of the said decree, the first respondent filed EP No.221 of 2001 and got the schedule property attached on 18.11.2001. The petitioner herein filed a claim application under Order XXI Rule 58 CPC in EA No.58 of 2005 for raising the attachment on the ground that he purchased the schedule property bearing house No.98 situated in New Colony, Kothaveedhi, Vizianagaram, from the 2nd respondent under an agreement of sale dated 15.11.2001 for valuable consideration of Rs.42,000/-. During the course of enquiry into the said claim application, when the petitioner sought to exhibit the agreement of sale dated 15.11.2001, the same was objected on the ground that the document is insufficiently stamped and the stamp duty and penalty have to be paid thereon on par with the sale deed before the same can be admitted in evidence. The petitioner contested the same contending that it was only an agreement of sale and execution of a regular sale deed is contemplated on a future date. By impugned order dated 27.11.2009, the learned Junior Civil Judge, directed the petitioner to comply with the objection with regard to payment of stamp duty and penalty. Aggrieved by the same, the present revision is filed. 4. Learned counsel for the petitioner would contend that the document does not contemplate delivery of possession and on the other hand, it is stipulated that a regular sale deed would be executed on a future date. Learned counsel for the first respondent/decree- holder on the other hand would contend that though the document is silent about the delivery of possession, even according to the petitioner, possession was delivered in pursuance of the said document under a separate delivery receipt dated 09.09.2003 and therefore, the document is liable for payment of stamp duty and penalty, as if it is a conveyance in view of the amended provisions contained in Explanation I of Schedule-IA of Article 47A of the Stamp Act. 5. A perusal of the document dated 15.11.2001 shows that under the said document, the subject house property is purported to have been sold by the 2nd respondent in favour of the petitioner, for a consideration of Rs.42,000/- out of which, Rs.35,000/- was received in cash on the date of execution of the said document and the remaining Rs.7,000/- was agreed to be paid by the vendee-petitioner to A.P. State Housing Corporation Limited. The defendant further submitted that the 2nd respondent would execute a regular sale deed as and when required by the petitioner. The document is, however, silent about the delivery of possession. 6. It is well settled that in order to decide the nature of the transaction that took place the nomenclature by which the document is described is immaterial and what is relevant is the contents of the document which bringout the true nature of the transaction. As seen from the contents of the document dated 15.11.2001, though, it is described as an agreement of sale, all necessary recitals, which constitute transaction of sale, are made therein. Though the document is silent regarding delivery of possession, the impugned order shows that along with the said document, petitioner filed delivery receipt dated 09.09.2003 executed by the 2nd respondent in favour of the petitioner. Thus, it can be seen that the possession of the property is also said to have been delivered in favour of the petitioner by the 2nd respondent in pursuance of the document dated 15.11.2001. Except execution of registered sale deed, the rest of the mutual obligations arising under the documents are said to have been performed by the respective parties. What remains is the execution of a formal registered sale deed. 7. Explanation-I introduced by Amendment Act 21 of 1995 to article 47A of Schedule-IA of the Stamp Act states follows: “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 6, 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.” 8. A perusal of the above explanation shows that the agreement of sale followed by or evidencing delivery of possession of the property agreed to be sold shall be chargeable as a sale. The expressions “followed by” or “evidencing delivery of possession” are crucial and they came up for consideration before the Division Bench of this Court in ‘B. Ratnamala vs. G. Rudramma[1]’, wherein it was held as follows: “While considering the provisions of the Indian Stamp Act, it has to be borne in mind that the said Act being a fiscal statute, plain language of the section as per its natural meaning is the true guide. No inferences, analogies or any presumptions can have any place. As the incidence of duty is on the execution of the deed, regard must, therefore, be had only to the terms of the document. 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 sell 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 to sell. 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. 9. In the above decision, a reference was made to the decision of the Apex Court in ‘Veena Hasmukh Jain vs. State of Maharastra’ (AIR 1999 SC 807) wherein, the apex Court while dealing with similar provision contained in Explanation I to Article 25 of Schedule I to the Bombay Stamp Act, upheld the levy of stamp duty and penalty on the agreement of sale as if it is a conveyance, inasmuch as all the substantial conditions of a conveyance have been fulfilled. 10. In the present case also the document dated 15.11.2001 contains all necessary recitals that go to show that the transaction is one of conveyance except that the execution of registered sale deed is contemplated for a future date. The contention of the learned counsel for the petitioner that the possession of property has not been delivered under the document and therefore it remains an agreement of sale is untenable, in view of Explanation I whereunder, it is sufficient if the document is followed by delivery of possession. It is not necessary that the document should evidence delivery of possession. Even the agreement of sale followed by delivery of possession is chargeable as a sale in view of the said explanation. Admittedly, delivery of possession was given though not under the subject document dated 15.11.2001 but subsequently by way of delivery receipt dated 09.09.2003 and even according to the petitioner, the said delivery of possession was in pursuance of the agreement of sale dated 15.11.2001. Thus, all the trappings of the transaction of sale have been complied even according to the petitioner and delivery of possession was also effected in pursuance of the agreement of sale. When that is so, the said agreement of sale dated 15.11.2001, which is followed by delivery of possession of the property, shall be chargeable as a sale in view of the Explanation I to Article 47A of Schedule-IA of the Stamp Act. The impugned order directing the petitioner to comply with the objection regarding payment of stamp duty and penalty on the document dated 15.11.2001 as a conveyance by way of sale, does not call for any interference, as the said direction was issued in accordance with the Explanation I of Article 47-A of Schedule-IA of the Stamp Act. 11. In the result, the civil revision petition is dismissed. No order as to costs. ____________________ G.V.SEETHAPATHY, J Date: 10.08.2010 bss [1] 1999(6) ALD 160