Sainaba Beevi v. Sayyid Hashim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 16[TH] DAY OF MARCH 2022 / 25TH PHALGUNA, 1943** ## **OP(C) NO. 369 OF 2022** **AGAINST THE ORDER/JUDGMENT IN OS 31/2018 OF SUB COURT COURT,** ## **MANJERI** ## **PETITIONER/DEFENDANT:** **SAINABA BEEVI KVK AGED 50 YEARS W/O. SADIQ THANGAL K.P., KAPPAT VAYALIKAKATH, KATTUNGAL, SAYYID MANZIL, KURUVA AMSOM DESOM, MAKKARAPARAMBA P.O., MALAPPURAM DISTRICT-676507.** ## **BY ADV P.K.MOHAMED JAMEEL** ## **RESPONDENT/PLAINTIFF:** **SAYYID HASHIM KVK AGED 46 YEARS S/O. SALIH POOKOYA THANGAL, KAPPAT VAYALIKAKATH, KATTUNGAL, SAYYID MANZIL, KURUVA AMSOM DESOM, MAKKARAPARAMBA P.O., MALAPPURAM DISTRICT-676507.** **BY ADV K.P.SREEKUMAR** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(C) NO. 369 OF 2022 2 ## **JUDGMENT** Dated this the 16[th] day of March, 2022 This Original Petition has been filed under Article 227 of the Constitution of India. 2. In this case, the defendant in O.S No.31/2018 on the file of the Sub Judge, Manjeri assails order dated 15[th] February, 2022 passed by the Sub Judge, Manjeri, whereby the objection raised by the petitioner in the matter of payment of stamp duty with regard to the agreement produced by the plaintiff is a suit for specific performance of contract, has been found against. 3. Heard the learned counsel for the petitioner Adv.Mohamed Jameel P.K and Adv.K.P.Sreekumar appearing for the respondent. 4. The thrust of the argument that has been addressed by the learned counsel for the petitioner is based on the ratio of the decision reported in _**Om prakash v. Lakshmi Narayan and others (2014 (1) SCC 618)**_ . The learned counsel argued OP(C) NO. 369 OF 2022 3 that in **Om Praksh** 's case (supra), the Apex court considered the definition of conveyance in the Madhya Pradesh Stamp Act and Article 23(1)-A of the Madhya Pradesh Stamp Act and found as under:- _“11. As stated earlier, the plaintiffs filed a suit for specific performance of contract and their case is founded on the agreement to sell executed on 27-12-2000. The agreement to sell acknowledges payment of the part of consideration money and further giving actual physical possession to the purchaser by the seller. Though the defendants dispute that, but in our opinion, for determination of the question of admissibility of a document, it is the recital therein which shall be decisive. Whether the possession in fact was given or not in terms of the agreement to sell is a question of fact which requires adjudication. But, at the time of considering the question of admissibility of document, it is the recital therein which shall govern the issue. It does not mean that the recital in the document shall be conclusive but for the purpose of admissibility it is the terms and conditions incorporated therein which shall hold the field. Having said that, we proceed to consider as to whether the document in question is “conveyance” within the meaning of Section 2(10) of the Act._ _18. To put the record straight, the correctness of the impugned judgment, Laxminarayan v. Omprakash came up for consideration before a Division Bench of the High Court itself in Writ Petition No.6464 of 2008 (Mansingh v. Rameshwar) and the same has been overruled by the judgment dated 22-12010. The High Court observed as follows: (MPLJ p.142, paras 8-9)_ OP(C) NO. 369 OF 2022 4 _“8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. In the matter of Laxminarayan, the learned Single Judge with due respect to his authority we do not think that he did look into the legal position but it appears that he was simply swayed away by the argument that as the defendant was denying the delivery of possession, the endorsement/recital in the document lost all its effect and efficacy._ _9. It would be trite to say that if in a document certain recitals are made then the court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we do not think that the court would be entitled to admit the document because simply the parties say so. The jurisdiction of the court flows from Sections 33, 35 and 38 of the Stamp At and the court has to decide the question of admissibility. With all humility at our command we overrule the judgment in Laxminarayan.”_ _we respectfully agree with the conclusion of the High Court in this regard.”_ 5. It is fairly considered by the learned counsel for the petitioner that though the decision has been rendered referring Art.23(1)-A Madhya Pradesh Stamp Act, no pari materia provision incorporated in the Kerala Stamp Act. However, the learned counsel attempted to substantiate his contention with 5 OP(C) NO. 369 OF 2022 reference to the ratio in Om Prakash's case on the ground that when a document is executed and thereby a property is transferred, the same would come within the ambit of the definition “conveyance” and therefore stamp duty provided for a deed of conveyance as such needs to be paid. In view of the matter, the court below went wrong in accepting the document and also non-suiting the petitioner without considering his objection to impound document as provided under the Stamp Act. 6. The learned counsel for the respondent would submit that, going by the definition of sale under Section 54 of the Transfer of Properties Act, and the portion dealing with “contract of sale” therein, it is emphatically clear that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. In this context, it is relevant to refer Section 55(6)(b) of the Transfer of Property Act, provides as under:- OP(C) NO. 369 OF 2022 6 _“(a) Where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof;_ _(b) Unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller's interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest(if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.”_ 7. Thus law is not in dispute on the point that mere agreement for sale shall not confer any interest in the immovable property to the person, who obtained agreement for sale in his favour, other than a statutory charge under Section 55(6)(b) of the Transfer of Property Act, for the amount of purchase money properly paid by him in anticipation of delivery. Therefore it cannot be said that such a deed should be read as a conveyance for the purpose of payment of stamp duty, as submitted by the learned counsel for the petitioner. 8. The learned Sub Judge also appraised the said fact in paragraph 15 of the order impugned and said order found to be OP(C) NO. 369 OF 2022 7 in accordance with law and the same does not suffer from any perversity, arbitrariness or absolute illegality. As such, the same does not require any interference. Accordingly, this Original Petition stands dismissed. The Registry shall forward a copy of this judgment to the court below concerned, within seven days, for information and compliance. ## **Sd/-** **A. BADHARUDEEN JUDGE** spk OP(C) NO. 369 OF 2022 8 ## **APPENDIX OF OP(C) 369/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 THE TRUE COPY OF THE PLAINT IN O.S.NO.31/2018 OF SUBORDINATE COURT, MANJERI.** **Exhibit P2 THE TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.31/2018 OF SUBORDINATE COURT, MANJERI.** **Exhibit P3 THE TRUE COPY OF THE CHIEF AFFIDAVIT FILED BY THE RESPONDENT IN O.S.31/2018 OF SUBORDINATE COURT, MANJERI.** **Exhibit P4 THE TRUE COPY OF THE AGREEMENT FOR SALE DATED 30.3.2017.** **Exhibit P5 THE TRUE COPY OF THE ORDER OF SUBORDINATE JUDGE, MANJERI DATED 15.2.2022 O.S.NO.31/2018.** ## **RESPONDENT'S/S EXHIBITS : NIL**