The instant revision petition moved by Rehmat Khan alias Baba Khan petitioner against the order of the trial Court, dated 17-4-2002 whereby the deed for agreement to sell in favour of the petitioner was ordered to be impounded, the stamp duty amounting to Rs.20,000 was fixed alongwith imposition of ten times of penalty, in otherwise eventuality the deed/document agreement to sell was declared to "shave no legal effect and inadmissible in evidence and as such directed the Collector to receive the stamp duty along with the penalty while disposing of the application under Order 7, rule 11, C.P.C. Filed by the respondent.
2. Learned counsel for the petitioner submitted that the deed for agreement to sell in no stretch of imagination can be termed as conveyance deed under section 2(10)) of the Stamp Act, 1899. There is distinction between the conveyance deed and agreement to sell; that no where it is mentioned in the Stamp Act that duty is to be charged on the agreement to sell equivalent to the sale-deed or the money received as an advance sale consideration. Agreement to sell deed does not confer any title or any sort of transfer right in the property in the person in whose favour the agreement to sell is executed. Since it was an agreement and not sale so stamp duty of Rs.10 is chargeable which was affixed on the agreement deed. Further advanced that under section 17, proviso of the Registration Act in the end in explanation it is provided that document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money. In the circumstances the order impugned was passed by the trial Court as to the payment of Rs.20,000 upon the sum mentioned in the deed and ten times of penalty and also that impounding the original document and sending to the Collector for the receipt of amount/stamp duty plus penalty is against the law and misconceived interpretation of section 2(10) (conveyance) of the Stamp Act, 1899.
3. Learned counsel for the respondent hotly contested the proposition put forward by the learned counsel for the petitioner and submitted that the deed agreement to sell very much comes within the purview of section 2(10) of the Stamp Act, 1899. In support of his contention he placed his reliance on 1989 MLD 3402 and PLD 2000 Lahore 433 and submitted that the receipt to the sale was considered to be complete sale. Since it was not properly stamped as per requirement, it was declared as document not properly stamped and the same was impounded. Likewise the latter authority PLD 2000 Lahore 433 referred to above pertains to evasion of duty permissible under the law. When asked to produce the direct authority as to the agreement whether it comes within the purview of conveyance/transfer/sale, he could not produce any direct authority on the subject but trying to interpret the law on his own way and style.
4. I have heard the learned counsel for the parties and have gone through the record and the relevant law on the subject as well as the case-laws produced by the learned counsel for the parties. Before concluding the matter it would be appropriate that definition of section 2(10) of the Stamp Act, 1899 is to be reproduced below for its correct appreciation:-- "2(10). Conveyance: 'conveyance' includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I. "
Similarly it is also necessary to reproduce below section 17 of the Registration Act in the end explanation:- "Explanation.---A document purport--ing or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money."
5. Perusal of the above provisions envisage the simple and plain meaning that an agreement is liable to be stamped not as bond/sale but as an agreement. An instrument assigning the benefit of contract amounts to conveyance. Agreement to sell is of course liable to duty only as an agreement but the interest created by the agreement is property and its transfer is chargeable as conveyance. Agreement to sell and to receive sale consideration/earnest money to complete the sale consideration is mere an agreement and to transfer the property in future does not create any right or title or interest in the property till it is transferred and sale is complete despite of the fact the possession is acquired for the purpose of title, the possession does not matter. When the agreement to sell is complete only then the stamp duty is chargeable on sale. An actual transfer of the property is an essential feature attaches to the conveyance. If a deed is purported to be an agreement to sell and the law recognizes distinction between such an agreement and an actual sale. In this respect guideline is sought from PLD 1952 Baghdad---ul-Jadid 41, wherein it has been observed that:-- "The mere fact that a document acknowledges that a right is vested in a particular person is not a conveyance. Furthermore mere mention of the fact that possession of land had been given to the applicant does not bring the document within the definition of 'conveyance'."
Likewise in another case reported as PLD 1953 Lahore page 596, it has been laid down that: "Further the charging section is section 3 and it makes only 'instruments' liable to duty, not 'transactions'. Even if the transaction, therefor, was intended to be a sale, the instrument itself was an agreement of sale, not a conveyance. If a sale-deed has subsequently been executed, it could not be argued logically that with the same contentions the present document should in that event be regarded as an agreement to sell and not a sale because there could not have been two documents about the same transaction."
The authorities referred by the learned counsel for the respondents are quite distinguishable and not applicable in the case in hand. In the case-law reported in 1989 MLD 3402 it was admitted that the sale has taken place, receipt of full payment of sale consideration was produced but there was no stamp duty on the complete sale consideration. So on the authority PLD 2000 Lahore 433 referred by the learned counsel for the respondent also pertains to other subject. Even otherwise the authorities so referred by the learned counsel for the respondents are in no way conducive to the stand of the respondent in the instant case.
6. Since it was an agreement to sell, half of the sale consideration of Rs.4 lacs is received and remaining half amount of Rs.4 lacs was to be paid at the time of transfer of the property in suit which for one or the other reason could not be matured, the petitioner filed a suit for specific performance regarding the sale of the property measuring forty Kanals.
7. In this view of the matter when the law is clear in absence of any authority the misinterpretation and misconceived conclusion drawn by the trial Court is not justiciable and the impugned order is passed contrary to law, therefore, the instant revision petition is accepted, the impugned order dated 17-4-2002 passed by the learned Civil Judge, Peshawar is set aside and the trial Court is directed to proceed with the case according to law and in the eventuality the Court comes to the conclusion that the respondent/defendant is bound to perform the contract/agreement and he is under obligation to complete/transfer the property in question as per agreement, the trial Court can direct the Sub-Registrar or mutating authority to register/mutate the property in dispute in the name of the plaintiff-petitioner after the receipt of duty as chargeable on conveyance and in case the plaintiff-petitioner fails to pay the duty chargeable, the sale shall not be effected and property in question shall not be transferred/mutated in the name of the plaintiff-petitioner but at this stage on the agreement stamp duty as required on conveyance and transfer is not leviable at all. No order as to costs.