IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 WP(C).No. 31847 of 2007(N) -------------------------------------- OS.328/2004 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONER: ------------------ C.O.ANTONY, AGED 49 YEARS, S/O.OUSEPH, CHULLY HOUSE, AIMURY KARA, KOOVAPPADY VILLAGE. BY ADV. SRI.G.RAJAGOPAL SRI.THOMAS M.JACOB RESPONDENT: --------------------- OUSEPH @ OUSEPHACHAN, AGED ABOUT 69 YEARS, S/O.DEVASSY, PARAPPURAM HOUSE, RAYAONPURAM P.O., CHELAMATTOM KARA, CHELAMATTOM VILLAGE. BY ADV. SRI.RAJESH VIJAYAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).31847/2007-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF PLAINT IN O.S. NO.328 OF 2004 ON THE FILES OF THE MUNSIFF'S COURT, PERUMBAVOOR. EXT.P2: COPY OF THE WRITTEN STATEMENT IN O.S. NO.328 OF 2004 ON THE FILES OF THE MUNSIFF'S COURT, PERUMBAVOOR. EXT.P3: COPY OF THE AGREEMENT DATED 20/04/2002 EXECUTED BETWEEN THE PETITIONER AND RESPONDENT. EXT.P4: COPY OF THE COUNTER PART OF THE LEASE DATED 27/11/2002 EXECUTED BETWEEN THE PETITIONER AND RESPONDENT. EXT.P5: COPY OF THE ORDER DATED 16/10/2007 IN O.S. NO.328 OF 2004 IN O.S. NO.328 OF 2004 ON THE FILES OF THE MUNSIFF'S COURT, PERUMBAVOOR. RESPONDENT'S EXHIBITS: NIL // TRUE COPY // Rs/ M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 31847 OF 2007 =========================== Dated this the 3rd day of July, 2008 JUDGMENT Petitioner is the plaintiff and respondent the defendant in O.S.328/2004 on the file of Munsiff Court, Perumbavoor. Petitioner is challenging Ext.P5 order passed by the Munsiff whereunder out of the two documents one document was impounded under section 33 of the Stamp Act and the other document though not impounded, held to be inadmissible in evidence. The first document is an agreement executed on 20.4.2002 between petitioner and respondent whereunder second respondent paid Rs.35000/- to first respondent and respondent in turn agreed to construct a building, which is to be completed by 30.4.2002, and agreed to grant a lease of the building in favour of petitioner on a monthly rent of Rs.1250/-. Learned Munsiff under Ext.P5 order found that the document is a lease and therefore stamp duty should have been paid as W.P.(C)31847/2007 2 provided under Article 33 of the Stamp Act. Finding that stamp duty paid is only fifty rupees being the value of the stamp paper in which the document is written, learned Munsiff impounded it as provided under section 33 of the Stamp Act. The second document (Ext.P4) is styled as a rent deed and executed on 27.11.2002. The document shows that subsequent to the construction of the building, as provided under Ext.P3 (the first agreement) on 1.6.2002 petitioner obtained the building on lease on a monthly rent of Rs.1250/- and Rs.40,000/- received earlier inclusive of the amount received under Ext.P3 is treated as security. Learned Munsiff found that Ext.P4 is not the original though it is said to be a counterpart, it is only a copy of unstamped or insufficiently stamped instrument which cannot be impounded and cannot be admitted in evidence. Petitioner was directed to pay the deficit stamp duty and penalty on Ext.P3. This petition is filed under Article 227 of the Constitution of India contending that under Ext.P3 no lease was created and therefore no W.P.(C)31847/2007 3 excess stamp duty or penalty is payable and it cannot be impounded as provided under section 33 and it is only an agreement and as the agreement is executed in a stamp paper worth fifty rupees, which is the stamp duty payable for an agreement under Article 5(c) it` is sufficiently stamped and cannot be impounded. In respect of Ext.P4 it is contended that the document itself shows that lease was created on 1.6.2002 and Ext.P4 was executed later on 27.11.2002 and though the terms of the lease were also incorporated thereunder, it will not attract Article 33 and therefore as the document is written in a fifty rupees stamp paper it is sufficiently stamped. Learned counsel also argued that it is not a copy of the document but the counterpart executed along with the original and sufficient stamp duty was paid on the original also and Ext.P5 order is illegal and is to be quashed. 2. Learned counsel appearing for respondent argued that Ext.P3 is an agreement for lease and all the conditions of the lease are incorporated W.P.(C)31847/2007 4 therein and as found by the trial court it is not sufficiently stamped and hence is liable to be impounded under section 33 of the Stamp Act. Learned counsel also argued that Ext.P4 was not executed and it is a concocted document. Anyway that is a fact to be decided in the suit on the evidence. 3. Lease is defined in the Stamp Act under clause (l) of Section 2 of Kerala Stamp Act (hereinafter referred to as the Act) inclusive of a marupattom, Kanapattom, an agreement or other undertaking in writing not being a counterpart of a lease, to cultivate, occupy, or pay or deliver rent for immovable property or an agreement or other undertaking in writing, executed by the renters of abkari and opium farms or any instrument by which tolls of any description are let or any writing on an application for a lease intended to signify that the application is granted or a patta. If it is a case of lease, stamp duty is payable as provided under Article 33. Under Article 33, lease including an underlease or sub lease and agreement to let or W.P.(C)31847/2007 5 sublet is to be paid with the stamp duty provided therein. 4. Section 33 of the Act enables the court to impound an instrument which in his opinion is chargeable with duty and appears that it is not duly stamped. When the document is so impounded, under section 37, court has to decide the stamp duty and penalty payable. If the party is not prepared to pay the stamp duty and penalty, the original document shall be sent to the Collector for proceeding as provided under section 39. 5. The question is whether Ext.P3 is an instrument coming within the ambit of Article 33. The instrument would come under Article 33 only if it satisfies the lease as defined under section 2 (l). To attract the definition under the document, there should be a transfer of the property by the landlord to the tenant thereunder. Ext.P3 shows that though there is an agreement to create a lease later the very leasehold property was not in existence at that time as the building is to be constructed with the fund paid by the W.P.(C)31847/2007 6 petitioner to the respondent under the document and construction of the building is to be completed only on a future date. The building is to be rented out thereafter. It is also provided for executing a rent deed at the time of lease. Therefore under Ext.P3 there is no creation of a lease or delivery of the leasehold property. Therefore no stamp duty is payable as provided under Article 33. It could only be an agreement as provided under Article 5. When it is an agreement , stamp duty is payable as provided under Article 5. As clause (a) and (b) are not applicable, stamp duty is payable only as provided under Clause (c) and it is fifty rupees. Ext.P3 is prepared in a fifty rupees stamp paper. Therefore it cannot be said that the instrument is not sufficiently stamped. Hence learned Munsiff was not justified in impounding the instrument or directing payment of deficit stamp duty or penalty. Ext.P5 order in respect of Ext.P3 document is therefore not sustainable. 6. Under Ext.P4 no lease was created. On the W.P.(C)31847/2007 7 other hand, the document itself reveals that lease was created on 1.6.2002 and petitioner obtained the building agreeing to pay a monthly rent of Rs.1250/- and treating Rs.40,000/- which was paid earlier as the security. In such circumstance, Ext.P4, though styled as a rent deed, does not create a lease as provided under section 2(l. Therefore no stamp duty is payable as provided under Article 33. Though Ext.P4 shows that in the document terms of the lease are incorporated, it does not create lease. Stamp duty is not payable under Article 33 of the Act. At best it could be said that the document is created to circumvent the liability to pay the stamp duty if it was executed at the time of granting lease incorporating the terms and conditions of the lease. But so long as it does not create a lease, and was executed much after the grant of lease stamp duty cannot be levied as provided under Article 33. 7. Ext.P4 according to petitioner is the counterpart prepared at the time of executing the W.P.(C)31847/2007 8 original document. According to respondent, no such document was executed and it is a forged document. That is a question to be decided on the evidence on record. Article 24 provides for the stamp duty payable in respect of a counterpart. Under that Article a counterpart or duplicate of any instrument chargeable with duty and in respect of which proper duty has been paid, stamp duty is payable either as provided under sub clause (i) or sub clause (ii). Under sub clause (i) if the duty with which the original instrument was chargeable, does not exceed one hundred rupees, stamp duty payable for the counterpart is also the same duty as is payable on the original. In all other cases as provided under clause (ii) stamp duty payable is rupees fifty. When Ext.P4 is written in a stamp paper for rupees fifty and stamp duty that would be payable on the original cannot exceed one hundred rupees, as provided under Article 24 clause (i), stamp duty that is payable for the counterpart is also the same. As it is written in a stamp paper worth Rs.50/- W.P.(C)31847/2007 9 finding of the learned Munsiff that stamp duty payable on the original is more and therefore the document cannot be admitted is also not sustainable. Ext.P5 order is therefore quashed. Learned Munsiff is directed to receive the documents in evidence subject to proof. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006