IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD WEDNESDAY, THE TWENTY NINTH DAY OF JUNE TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4673 OF 2009 Between: Lakkakula Surendra Prasad and two others …Petitioners A n d Lakkakula Uma Maheswara Rao and another ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.4673 OF 2009 ORDER: This civil revision petition is directed against the order dated 14.09.2009 in I.A.No.1311 of 2009 in O.S.No.153 of 2006, on the file of the Principal Junior Civil Judge, Chirala, wherein the said application filed by the petitioners herein under Sections 17 and 49 of the Indian Registration Act and Section 35 of the Indian Stamp Act seeking rejection of the agreement of sale dated 26.12.1984, was dismissed. 2. Heard the learned counsel for the petitioners. None appeared for the respondents. Perused the record. 3. The first respondent herein filed the suit against the petitioners/ D-1 to D-3 and the second respondent/D-4 for specific performance of an agreement of sale dated 26.12.1984. According to the plaintiff, the defendants’ father executed the said agreement of sale dated 26.12.1984 in favour of the plaintiff. The defendants’ father died in 2003. The defendants denied the existence of the suit agreement of sale and contended that it was a forged document. During the course of the trial, the defendants objected for marking of the suit agreement on the ground that it requires registration and also payment of stamp duty and penalty. It is stated that the plaintiff has paid the stamp duty and penalty payable over suit document treating the same as agreement of sale. The petitioners/defendants would contend that the suit document is not an agreement of sale but is a regular sale deed and the stamp duty is liable to be paid accordingly. 4. Explanation I to Article 47-A states that 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. The proviso states that subsequently when 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. 5. The learned counsel for the petitioners would contend that the suit document is not a mere agreement of sale but is a regular sale deed itself as can be seen from its recitals. A perusal of the suit document would disclose that the entire sale consideration of Rs.25,000/- was received by the vendor and possession of the property was also delivered to the vendee and henceforth the vendee shall enjoy the property with absolute rights on alienation. All the recitals required to be made under a regular sale have, in fact, been incorporated in the suit agreement with a further recital that a regular registered sale deed would be executed on a future date. It is well settled that the nomenclature used to describe the document is immaterial and the nature of the document has to be decided on the basis of the recitals made therein. 6. The learned counsel for the petitioners relies upon a decision in V.L.NARASIMHA RAO V. K.T.PENTAIAH (DIED) PER L.Rs[1], wherein this Court in similar circumstances held that the document shall be treated as a sale deed and not an agreement of sale and unless proper stamp duty and penalty is paid treating it as sale, document is not admissible in evidence. 7. The learned counsel for the petitioners relies upon a decision in B.RATNAMALA V. G.RUDRAMMA[2] wherein a Division Bench of this Court held that the 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. In the above case, the disputed agreement of sale was dated 14.11.1988, whereas in V.L.Narasimha Rao’s case (1 supra), the document was dated 02.07.1994. 8. It is not disputed that in the year 1986 the State of Andhra Pradesh amended Article 47-A by inserting an explanation as per which 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 and the instrument of sale in pursuance of such agreement subsequently executed shall be adjusted towards the total duty leviable on the sale deed. The said amendment came into force w.e.f 16.08.1986. In the present case, the document was executed on 26.12.1984, which is prior to amendment. The document is, therefore, chargeable with stamp duty and penalty as agreement of sale and in accordance with the provision of law as existing on the date of execution of the document. As the subject document was executed prior to coming into force of the amendment, the same cannot be charged with a stamp duty and penalty as a sale deed, though it contains recitals to the effect that entire consideration was received and possession was also delivered. 9. Regarding the objection pertaining to want of registration, the proviso to Section 49(c) of the Registration Act permits an unregistered document to be received as evidence of a contract in a suit for specific performance. The proviso reads as follows:- “Provided that an unregistered document affecting immoveable property and required by this Act, or the Transfer of Property Act, 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, or as evidence of any collateral transaction not required to be effected by registered instrument”. The present suit is one for specific performance. By virtue of the above proviso to Section 49(c) though the suit document is unregistered affecting immoveable property, it may be received as evidence of a contract. The objection in that regard, therefore, is not sustainable. 10. In the circumstances, the objections raised by the petitioners/ defendants against marking of the disputed document for non-payment of stamp duty and penalty as a sale deed and non-registration, are not sustainable. The impugned order, dismissing the application filed by the petitioners/defendants seeking rejection of the document, does not, therefore, call for any interference by this Court. 11. In the result, the civil revision petition is dismissed. There shall no order as to costs. ____________________ G.V.SEETHAPATHY, J 29th June, 2011 Lrkm. [1] 2002(3) ALT 703 [2] 1999(6) ALD 160 (DB)