ORDER
This writ petition is filed challenging the order passed by the trial Court, which has directed the impounding of the agreement of sale dated 30.05.2000 with a direction to pay duty and penalty on the suit document within a period of one month from the date of the order as per Section 39(2) read with Section 5(e)(2) read with Article 20 of the Karnataka Stamp Act, 1957.
2. The plaintiff took the schedule property from the defendants, who are the owners of the property under a registered deed of mortgage dated 27.03.1987, it is possessory mortgage and possession of the property was delivered to the plaintiff under the said document. The period agreed upon was 10 years. The defendants did not pay the mortgage amount. Therefore, the plaintiff continued in possession. However, subsequently, the defendants executed an agreement of sale dated 13.07.1995 in favour of the plaintiff agreeing to sell the property. Subsequently, two more agreements came to be executed to that effect, when the defendants did not execute the sale deed as agreed, the plaintiff was constrained to fiie the suit for specific performance of the agreement of sale.
3. The defendants remained absent. Therefore, they were placed exparte. The plaintiff adduced evidence, the plaintiff wanted to mark this agreement of sale. At that stage, the Court objected to the marking on the ground that the document ought to have been stamped as conveyance, which has not been done. Therefore, it held that the agreement of sale is insufficiently stamped and therefore, it directed for impounding of the document and for payment of duty and penalty. Aggrieved by the said order, the present writ petition is filed.
4. I have gone through the agreement of sale, which is produced in the case and sought to be marked. In none of the agreement of sale, there is any recital to the effect that either possession is delivered under the agreement of sale in Part performance or that possession of the plaintiff has been transformed into Part performance under Section 53(A) of the Transfer of Property Act. However, the recital shows that the plaintiff is already in possession as a mortgagee. The trial Court proceeded on the assumption, as mortgage was not renewed within ten years and the plaintiff continued in possession, thereafter he was in possession under the deed of the agreement of sale. his possession is deemed to be under an agreement of sale and Part performance and therefore, it draws a conclusion that the document ought to have been stamped as conveyance. Therefore, it directed impounding of document and for payment of penalty. If the plaintiff was already in possession as mortgagee and continued in possession on the date of the deed of agreement of sale as mortgagee, in the absence of any recital in the agreement of sale transforming the possession of the mortgagee as that of possession in Part performance of the agreement of sale, it cannot be held that the plaintiff continued in Part performance of agreement of sale. It is only if under the agreement of sale, the possession is delivered in Part performance of agreement of sale, such agreement of sale is to be stamped as conveyance.
5. In that view of the matter, the trial Court was not justified in holding that the agreement of sale is insufficiently stamped and in directing impounding of the document and for payment of duty and penalty. Hence, the said order is unsustainable.
6. For the aforesaid reasons, I pass the following order:
(i) The writ petition is allowed.
(ii) The impugned order passed by the trial Court is hereby set aside. The agreement of sale is duiy stamped. The trial Court shall admit the said document in evidence and proceed with the case on merits.