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Leelamma Samuel vs Francis on 18 October, 1994

Karnataka High Court
Leelamma Samuel vs Francis on 18 October, 1994
Equivalent citations: ILR 1994 KAR 3143
Author: V Kumar
Bench: V Kumar


ORDER

Vasantha Kumar, J.

1. This Revision is directed against the order dated 6-7-94, wherein objections raised by the tenant regarding admissibility of an instrument purported to be a lease transaction for a period of eleven months was over-ruled and the trial Court permitted the landlord to produce and get the instrument marked as exhibit by way of legal evidence.

2. Few facts to briefly state are : The landlord initiated eviction proceedings under Clause (h) of Proviso to Sub-section (1) of Section 21 of the Karnataka Rent Control Act 1961 against the tenant, the proceeding being numbered as HRC 10583/93. Tenant contested the matter and denied the relationship of Landlord and Tenant as between the parties to the cause. During the pendency of the proceedings, landlord intended to place reliance on a Deed of Lease said to have been executed by the tenant Smt Leelamma Samuel to prove jurisdictional issue namely existence of relationship of landlord and tenant in view of specific denial of relationship by the tenant. Admitted facts being Smt. Leelamma Samuel had entered into lease transaction dated 24-4-1993 wherein the rate of rent is stipulated at Rs. 750/- per month and the period of lease fixed is for a period of 11 months renewable at the option of the landlord on enhanced rent subject to separate conditions and terms. There is another clause in the Deed of Lease regarding receipt of security clause in the Deed of Lease regarding security deposit of Rs. 7,500/-. The relevant clause in the Deed of Lease regarding security deposit is Clause 14 of Part 1 reads:

“The Lessee has paid a sum of Rs. 7500/- (Rs. Seventy thousand Five Hundred only) and this amount shall be returnable at the time of her vacating and giving vacant possession after deducting any arrears of rent or electricity bill. This amount will not be adjusted towards monthly rent.”

3) In the affidavit annexed to IA filed by the landlord under Section 29(4) of the Act, the landlord has stated as follows:

“The Respondent has entered into a lease agreement with me on 24-4-93 in respect of the petition schedule premises on a monthly rent of Rs. 750/- per month and on the date of the said agreement she has undertaken to pay rent regularly without default”.

When landlord sought the instrument of Lease Deed to be marked as exhibit by way of legal evidence to prove the existence of relationship of landlord and tenant, tenant objected to its being received by way of evidence on two grounds:

1) That the instrument as being not sufficiently stamped as per provisions of Karnataka Stamp Act.

2) That the instrument as being not registered and the same as being inadmissible under Section 49 of The Registration Act.

4) Counsel for the landlord contends that the said Deed can be looked into for collateral purpose and could be relied upon to show the nature of tenant’s possession of the premises. The principle relied upon by the learned Counsel is actually based on the Proviso to Section 49 of the Registration Act according to which a registered document if not registered may be received in evidence of any collateral transaction not required to be effected by Registered instrument.

When a document comes before the Court for the purpose of being used in evidence, the first Jurisdiction of determining the duty and penalty is that of the Court. Section 34 of Karnataka Stamp Act prohibits the reception in evidence of documents which are insufficiently stamped. But a Proviso is added thereto according to which the same is chargeable and the person having authority to receive evidence may impose such duty together with the penalty as specified therein. Section 33 imposes a duty upon the authority to impound a document which it finds liable to stamp duty but has not been fully or properly stamped. Section subserves the public purpose of protecting revenue and does not deal with adjudication of rights of litigants before Court. The principle function with reference to which production or reception of documents is mentioned in Section 33 so far as Courts are concerned is the function appertaining to the exercise of the authority of taking evidence. Production before Court is voluntary Act, an act accompanied by mental element of a desire to depend upon it as a piece of evidence in the litigation.

Proviso to Sub-section 34 invests Courts with special Jurisdiction of adjudicating stamp duty and imposing penalty in certain cases and those cases are when a party to litigation before it tenders a document in evidence when a Jurisdiction is invested, it is invested for the purpose of statute which confers Jurisdiction and Court should not abdicate such Jurisdiction.

5) The exercise of Jurisdiction under the Proviso to Sub-section 34 arises when a document is actually tendered in evidence but it might have been produced much earlier by one or other of the parties to the litigation.

The earlier production taken along with the intention of such production namely the intention of tendering it in evidence necessarily leads to normal inference that the document is produced for the purpose of being tendered in evidence and therefore is produced before Court in the course of performance of its function of taking evidence. It is the combination of these circumstances that imposes upon Court a duty of impounding documents under Sub-section (1) of Section 33 of the Act.

6) When a document chargeable to duty and produced into Court in connection with a proceeding before it is found by that Court to be either not stamped at all or insufficiently stamped it is bound to impound it. Idea of impounding it is to enforce collection of duty or deficient duty together with penalty. When a document comes before the Court for the purpose of being used in evidence the first Jurisdiction of determining the duty and penalty is that of the Court. It is only when that stage has crossed and the document is not tendered in evidence that it ceases to be a document impounded by the Court which by law has authority to receive evidence and has admitted the same in evidence though the first part of the description applies to the document the second part has ceased to be applicable. It is then that document comes within the description of ‘in every other case’ contained in Sub-section (2) of Section 37 of The Act.

7) It is made clear that in cases where party has produced certain document and expressly makes his intention clear that he would not rely upon that document in support of his causes pleaded, then that would amount to his not producing for purposes of placing reliance on that document by way of legal evidence then the question of Court exercising its powers under Section 34 of the K.S.Act would not arise and the Court has nothing more to. do with it as a Court but as impounding authority has to send the same to the Deputy Commissioner under Sub-section (2) of Section 37, since Stamp Act is a Fiscal Legislation and its object is to collect Revenue. Counsel for Landlord relies on the ratio of the Cases decided in ABDUL RARACUSAB v. GOPAL SETTY AIR 1974 Mysore 7.

8) It is to be stated that the ratio relied upon by landlord’s Counsel do not deal with the provisions of the Stamp Act, and the same is not applicable. Sri K. Prabhakar invites the Courts attention to the ratio of the Case decided in CHIEF CONTROLLING REVENUE AUTHORITY v. M.P. BROKERS CO. (GB) . Particularly, attention of the Court is invited to the observations found in Para 6:

Para 6 reads: “The consideration of lease is only two fold ‘premium’ and ‘rent’. There is no third type of consideration when the interest of the lessor is parted with. None is provided in Section 105 of the T.P.Act, 1882. The Legislature, therefore, was providing under Article 35(a) for instruments of lease, including an underlease or sub-lease and any agreement to let or sublet, whereby such lease the rent is fixed and no premium is paid or delivered according to the period of lease. Under Article 35(b) proper stamp duty is provided where the lease is granted for a fine or premium or for money advanced and where no rent is reserved. Under Article 35(c) it provided where the lease is granted for a fine or premium or for money advanced in addition to rent reserved. Fine is not defined in either T.P.Act, 1882 or in the Indian Stamp Act. Fine in relation to leases is something which is to go irrevocably into the pocket of the landlord who requires it as a condition of consenting to a transfer of right to enjoy property. Fine is indistinguishable from premium and is money payment in consideration of a demise. Money paid as fine is money paid with the intention of passing over the property init to the landlord so that it should become his. Fine is also given the name of “Salami” in some parts of this country. Such money payments are known by several other names, e.g., Nazrana, Pugree etc. The legislature must be aware of money payments in consideration of the lease, when it sought to cover “fine or premium or for money advanced” in Article 35(b) and (c). The words used here “for money advanced” do not connote any idea of repayment. Money advanced here is a condition for creation of an interest in the enjoyment of the property. Money advanced here is money which is not to revert to the lessess. If the advance is repayable, then it is a loan or deposit which word would have been used by the legislature in Article 35 (b), and (c) instead of “for money advance”, if it was intended to cover such payments. Money advanced here by the lessee to the landlords is with the intention expressed by the parties that the landlords should keep the money till appropriated or refunded. Such transaction is a deposit. In my opinion, when the legislature used the word “for money advanced” after “fine or premium” it was intended that it is a sum of money in the nature of fine or premium which goes irrevocably in the pocket of the landlord. It is a rule of legal construction that general words following enumeration of and to be construed as including all other things of the like nature and quality. Where general words immediately follow or are closely associated with specific words, their meaning has to be limited by reference to the preceding words and has to be presumed to be restricted to the same genus as those specific words. This is the rule of construction known as Ejusdem Generis and gives aid to the ascertainment of the true meaning of the statute.”

9) It is contended by Tenants Counsel by virtue of Clause 14 of Part 1 of Deed of Lease, the total amount under the documents would workout to Rs. 15,750/- and the stamp duty paid as being insufficient and that the trial Court has not taken into consideration the payment of a sum of Rs. 7500/- in addition to the rent reserved while calculating sufficiency or otherwise of stamp duty on instrument.

It is to be noted that Clause 4 of Part 11 of the Lease Deed reads “The Lessor also acknowledges the receipt of Rs. 7500/- Rupees Seven Thousand Five Hundred only from the Lessee security Deposit.”

10) The only question that requires consideration is whether the security deposit of Rs. 7500/- comes under ambit of Article 30(c) of the Karnataka Stamp Act for purposes of payment of additional Stamp duty than the one that is already paid on the document, whether payment of a sum of Rs. 7500/- mentioned in Clause 4 of Part 11 as security deposit represents nature of premium or money advanced in addition to rent reserved for purposes of payment of stamp duty as a conveyance under Article 30(c) of the Karnataka Stamp Act.

Premium is defined in Section 105 of Transfer of Property Act, 1882 as the price paid or promised for a lease. It is to be noted that both Clauses (b) and (c) of Article 30 use the words Fine, Premium or money advanced.

11) In V. SRINIVASAN v. THE SUB REGISTRAR, HIRIYUR AIR 1985 Karnataka 56, this Court has discussed in detail about the scope of Article 30(c) of The Stamp Act.

Relevant observations are found at paras 13 and 14:

Para 13 reads: “The provision contained in Section 105 of the Transfer of Property Act read in the light of the decisions of the Supreme Court, cited above, brings out the distinction between a price paid for a transfer of right to enjoy the property and the rent to be paid periodically to the lessor. When the interest of the lessor is parted with for a price, the price paid is the premium or salami. But the periodical payments made for the continuous enjoyment of the benefits under the lease are in the nature of rent. There may be circumstances where the parties may camouflage the real nature of the transfer by using clever phraseology. In some cases the so called premium is in fact advance rent and in others rent is deferred price. It is not the form but the substance of a transaction that matters. The nomenclature used may not be decisive or conclusive. But it helps the Court having regard to the other circumstances to ascertain the intention of the parties.”

Para 14 reads: “Adverting lastly to the term ‘money advanced in addition to rent observed’, it is to be understood ejusdem generis the other two expressions explained above, viz., ‘fine’ and ‘premium’. The words or for money advanced were newly added in the Central Act. The object of the addition of the words or for money advanced is apparently to rope in transactions which are a combination of a lease and mortgage and which are embodied in the form of a lease providing for payment of an advance. The lease may provide either for the return of the advance or adjustment of it in the rents payable towards the end of the period of lease. In either case, the real intention can only be that conveyance duty shall be paid on the amount of such advance. The advances obtained on leases are generally analogous to advances obtained on usufructuary mortagages and the documents which partake of the character both of a mortgage and a lease are quite common. Thus, where under a lease deed executed in consideration of the advance made by the lessee to discharge subsisting encumbrances, the lessee was empowered to withhold from the stipulated monthly rent a sum of money and appropriate the same in liquidation of the sum advanced by him, the document is chargeable with stamp duty under Section 30(c) of the Schedule to the Act.”

Placing reliance on the ratio of V. SRINIVASAN’s case it is to be stated that duty that is payable on the document in question comes squarely under the ambit Article 30(c) of The Karnataka Stamp Act 1957.

12) The impugned order is hereby set aside. Trial Court is directed to impound the document and determine the duty and penalty as envisaged under Proviso to Section 34 of Karnataka Stamp Act.

13) The Civil Revision Petition is allowed. No costs.

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