THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.518 of 2011 Date:23rd August, 2011 Between: 1.Karumuri Ramatheertham & Anr. .....Petitioners/Plaintiffs AND 1. Tippavathi Seshachalam (died) LRs. & Ors. .....Respondents/Defendants *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.518 of 2011 ORDER: This Civil Revision Petition is directed against the order, dated 20.09.2010, passed in O.S.No.86 of 2006 on the file of the Senior Civil Judge, Proddatur, Kadapa District, whereby and whereunder, the learned Senior Civil Judge directed the petitioners/plaintiffs to pay the stamp duty and penalty on the agreement of sale, dated 25.07.2001. 2. Background facts, in a nutshell, leading to filing of this revision by the petitioners/plaintiffs are: Thippavathi Venkata Ramaiah was the owner of the suit schedule property. The petitioners/plaintiffs claim to have purchased the suit schedule property from him under an agreement of sale, dated 25.07.2001, for Rs.2,00,000/- and paid a sum of Rs.1,80,000/-. Thippavathi Venkata Ramaiah, who executed the agreement of sale, died. The 1st defendant is claiming the property of Venkata Ramaiah under a registered gift deed, dated 12.10.2001, said to have been executed by Venkata Ramaiah. The 1st defendant in the written statement pleaded that he executed a registered settlement deed on 30.01.2006 in favour of his son Venkta Subbaiah, who has been arrayed as 5th defendant. The defendants raised objection with regard to the admissibility of the sale deed, dated 25.07.2001, on the ground that the document is not properly stamped. The learned Senior Civil Judge heard learning counsel appearing for the parties and proceeded to treat the agreement of sale, dated 25.07.2001, is coupled with the possession and therefore, it is required to be properly stamped and accordingly, directed the petitioners/plaintiffs to pay the stamp duty and penalty, by order, dated 20.09.2010. Relevant portion of the order reads as hereunder: “5. Sec.35 of Indian Stamp Act mandates 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 unless such instrument is duly stamped. The plaintiff shall remember that Sec.35 of Indian Stamp Act is such a rigid law, which does not excuse any person despite his pitiable condition for not paying stamp duty and penalty. Whether such insufficient stamped document is useful or not useful, a duty is caste upon the court to impound such document until parties pay the stamp duty and penalty on that document. In view of the above said law, this court has placed its reliance of a decision rendered by our Hon’ble Apex Court in a case decided between “Avinash Kumar Chouhan Vs. Vijay Krishna Mishra”, reported in AIR 2009 SC 1489 and also relied on a division bench judgment of our Hon’ble High Court of Andhra Pradesh in a well known case decided between “B.Ratnamala Vs. G.Rudramma”, reported in 1999 (6) ALT 59 (D.B.). It is held in the said Hon’ble Apex Court judgment that the Parliament has in Sec.35 advisedly used the words “for any purpose whatsoever”. Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be relevant factor for not invoking the provisions. It is also stated that a document, which is not sufficiently stamped, is inadmissible in evidence. It is held in the 2nd cited decision i.e., in Ratnamala’s case that an agreement of sale, which has evidenced by its recitals of delivery of possession of the property agreed to be sold is liable for stamp duty and penalty like a sale. Therefore, the said agreement of sale, dated 25.7.2001 which has also evident by its recitals of delivery of possession of the property agreed to be sold is also liable for stamp duty and penalty like a sale. 6. With great respects to our Hon’ble High Court of Andhra Pradesh, the above two cases cited by the advocate for plaintiffs are not at all applicable to the present circumstances of this case. This court has perused both the decisions very carefully. In 2010(1) ALT 225, the facts are that an agreement of sale in the said case was marked without any objection raised by the opposite party. Therefore, under the said circumstances, the Hon’ble High Court has held that a document, which has been marked without any objection, cannot be questioned later as per Sec.36 of Indian Stamp Act. In 2010(1) LS 73, the agreement of sale involved in the said case was that so perplexing with regard to its recitals and has also confused the court with regard to its nature. Since the said agreement of sale does not attract the penal provision of Indian Stamp Act, the Hon’ble High Court has permitted the party to mark the said document. Such is not the case in the present circumstances wherein the recitals of the suit agreement of sale dated 25.7.2001 unerringly indicating and evidencing delivery of possession of the property agreed to be sold and therefore it is liable for stamp duty and penalty like a sale.” 3. Notice before admission came to be issued on 18.02.2011. The respondents/defendants received notice and entered appearance through a counsel. 4. When the CRP came up for admission hearing on 15.08.2011, there was no representation on behalf of the respondents/defendants. After hearing the learned counsel appearing for the petitioners/plaintiffs on that day, the revision was directed to be listed to this day under the caption “for orders”. Despite the revision being listed under the caption “for orders”, there is no representation on behalf of the respondents/defendants. 5. Heard learned counsel appearing for the petitioners/plaintiffs and perused the material brought on record. 6. Learned counsel appearing for the petitioners/plaintiffs submits that the petitioners/plaintiffs nowhere pleaded in the plaint that the petitioners/plaintiffs have been put in possession of the property under the agreement of sale and even it is not the case of the 1st respondent/1st defendant that the petitioners/plaintiffs are put in possession of the property under the agreement of sale. 7. It is neither the case of the petitioners/plaintiffs nor the case of the respondents/defendants that possession has been delivered under the suit agreement. In almost identical situation, a learned Single Judge of this Court in Cheryala Srinivas v. Moola Sujatha & Ors.[1], has held that the possession mentioned in Explanation-I to Article 47-A of Schedule 1-A of the Stamp Act, must be effective, actual, and the one, recognized in law. Paras.7 to 9 of the above referred judgment need to be noted and they are thus: “7. The agreements of sale, which evidenced the delivery of possession of the property, are equated to sale deeds, for the limited purpose of stamp duty. To avoid double payment of stamp duty, the provision mandates that the stamp duty paid on the agreements would be taken into account, at the time of registration of the resultant sale deeds. 8. The possession mentioned in Explanation-I, must be effective, actual, and the one, recognized in law. Unless the party under the agreement has the benefit of possession of the property, without any dispute, or challenge, from a party to the agreement, he cannot be mulcted with the liability to pay the stamp duty, as though it is a sale deed. There is background, on account of which, Explanation came to be added. Instances were noticed, wherein the parties were enjoying the properties, almost as owners, just on the basis of agreements of sale. In fairly large number of transactions, parties were not inclined to get the sale deeds executed, may be due to enormous expenses involved. They were enjoying the effective possession of the property, just on the strength of agreements of sale. The vendors also did not have any grievance, once they received the entire consideration. The net result is that the State was deprived of the stamp duty, payable on the transaction, which is akin to a sale. Therefore, the very basis for equating an agreement of sale to a sale deed, for the purpose of stamp duty, is the effective, uninterrupted and legal possession of the purchaser. If that is lacking, or seriously doubted, the equation gets a bit disturbed. 9. In the instant case, it is no doubt true that the last sentence of the agreements mentions that the possession of the land is handed over to the 1st respondent. If that sentence or phrase is independent and absolute, the objection raised by the petitioner is certainly valid and deserves to be accepted. However, the phrase, that connotes delivery of possession, is preceded by several conditions.” The learned single Judge of this Court in the decision referred supra after referring to two important ingredients, viz., corpus possessionis and animus possidendi, has observed that the practical way of looking at the matter is, as to whether a person, in whom the possession is said to have vested, has the effective control of the subject-matter, and is in a position to enjoy the benefit of it. Unless person is in a position to enjoy it, he cannot be said to be in possession thereof. 8. Keeping in view the proposition of law laid down in the above referred decision, I may now examine the pleadings of the parties herein. 9. The petitioners/plaintiffs nowhere pleaded in the plaintiff that they are in possession of the property pursuant to the agreement of sale, dated 25.07.2001, executed by Venkata Ramaiah. Even the 1st defendant does not dispute the fact that the petitioners/plaintiffs are not in possession of the property. Indeed the petitioners/plaintiffs have sought for recovery of possession from the respondents/defendants. The reliefs sought for in the plaint read as hereunder: “The plaintiffs therefore prayed that the Honourable Court be pleased to pass decree and judgment in favour of the plaintiffs against the defendant No.1 directing the defendant No.1 for the following reliefs: 1) Directing the defendants No.2 to 5 in lieu of defendant No.1 for specific performance of execution of registered sale deed in favour of the plaintiffs with respect of schedule property and on failure of the defendants No.2 to 5 in lieu of defendant No.1, the same may be done through the process of Honourable Court (amended as per orders in I.A.No.184 of 2008, dt. -01- 2008). 2) Directing the defendant No.2 to 5 in lieu of defendant No.1 to deliver the vacant possession of the schedule property to the plaintiffs (amended as per orders in I.A.No.184 of 2008, dated –01-2008). 3) Grant costs of the suit and 4) Grant such other and further reliefs as such the Honourable Court deems fit and proper under the circumstances of the suit.” There being no dispute that the petitioners/plaintiffs were not in possession of the property pursuant to the agreement of sale, the agreement of sale cannot be treated as sale coming with the purview of Explanation 1 to Article 47-A of Schedule I-A of the Stamp Act. Therefore, the suit agreement is only an agreement of sale without delivery of possession. 10. In that view of the matter, the order impugned in the revision cannot be sustained and accordingly, the same is hereby set aside treating the agreement of sale, dated 25.07.2001, is without possession. 11. Accordingly, the Civil Revision Petition is allowed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:23rd August, 2011. cs THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.518 of 2011 Date:23rd August, 2011 [1] 2010(1) ALT 448