P L D 1952 Baghdad﷓ul﷓Jadid 41 (PLP)

ABDUL HAMID MALIK, J.-This is an application to revise the order of the learned District Judge, Bahawalpur, dated the 19th August, 1951 impounding a document produced by the applicant in a civil case Sh. Abdur Rahman v. Bashir Ahmad in the Court of Senior Subordinate judge at Bahawalpur. The document in question was executed on a stamp paper of rupee one by Ahmad Bakhsh etc. in favour of the applicant. The learned District Judge Bahawalpur was of the opinion that the document was one of mortgage falling within the purview of Article 23, Schedule I of the Stamp Act. It is stated in the document in question that the possession of land had been given to the applicant in lieu of Rs. 4,000 and that the execu tant would perfect the title by executing a registered deed. The concluding portion of the document runs as follows :- "Chand satoor batoor Iqrar Nama rehire dar rehin bagabza sandan bahaq Munshi Abdur Rahman tahrir kar di hain". Besides the concluding line referred to above at the top of document it was clearly stated "Agreement to mortgage with possession". The learned District judge was mainly influenced by the fact that possession had passed to the applicant and, therefore, in his opinion the document in question attracted the provisions of section 2 (17) of the Stamp Act. It has been contended tanaciously by the applicant that the document in question was a mere agreement and not a conveyance as defined in section 2 (10) of the Stamp Act. He further alleges that the word "Agreement" has been twice used in the document and that the parties had contemplated to perfect the title by execut ing a registered-deed. On the other hand the Stamp Auditor (representative of the Accountant General in the capacity of Collector) stresses that the document in question purports to transfer the possession of the land to the applicant and that all the conditions of creating a mortgage have been incorporated in it and that it is a complete deed of mortgage falling within the definition of section 2 (17) of the Stamp Act. He further added that the recital in the document qua title undertaking on the part of the executant to complete the title by executing a registered document was redundant and it was mentioned simply to avoid the payment of Stamp Duty. After hearing both the parties I am of the opinion that the contention of the applicant must prevail. The mere fact that a document acknowledges that a right is vested in a particular person is not a conveyance. Further more 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'. In Muhammad Hasham v. Emperor reported at 139 I C 155, the Full Bench of Lahore High Court was pleased to observe as follows :- "In order to determine whether a document is a receipt or a conveyance the test is whether the intention of the parties was that the document ,should be the only repository and the appropriate evidence of the transaction. If the Court, after an examination of the whole of the document finds that this is so, it must hold the document to be a conveyance. If, on the other hand it merely recites a past accomplished fact, the document is not a conveyance and need not be stamped or registered". In the above cited ruling the facts were that A had sold a certain area to B for Rs. 1,038 and that out of the purchase money Rs. 700 had been received in cash and for the balance another receipt had to be given at the time when the payment was to be made. The document further stated that possession of the land had been given to B and wound up with the words is waste sandan tahrir kar dete hain'. It was held that as the document referred to the sale as a completed transaction under which possession had been delivered to the vendee and as there was nothing to show that title was being conveyed by the document, it was a 'receipt' and not a 'conveyance' for purpose of stamp duty. The present document also unmistakably shows that it referred to the possession having been delivered to the appli cant as an accomplished fact and the parties had to perfect the title by executing another registered-deed. That being so, in my opinion, the document in question falls within the purview of Article 5 Schedule I of the Stamp Act. I may again refer to another authority reported at 137 I C 337 where an agree ment in writing was entered on the 26th January, 1921 between a private firm and a limited company by which the former agreed to sell all their business undertaking and assets to the latter as from 1st January, 1920. The agreement provided that formal conveyance shall be executed. A conveyance as to immovables was executed but no conveyance was executed as to movables. It was contended on behalf of the revenue authorities that the agreement was in substance a deed of con veyance of movable properties as defined in the section 2 (10) of the Stamp Act. It was held that the' instrument was not a deed of conveyance but only an agreement. It was further held that by entering into a mere contract short of a convey ance the parties run certain risks but if the parties chose to be satisfied with a mere contract for sale without an actual deed of sale, stamp duty payable on a conveyance cannot be demanded. In this connection Ma Thin Za v. K. K. R. M. Veera Kalai A I R 1931 Rang. 193 (2) is an authority which is also on all fours with the circumstances of the present application. In that ruling Mr. Mating, Ba, J. was pleased to lay down that:- "Where a document recites that in consideration of certain debts the paddy land was delivered to the creditor and the document further shows that the transaction has not passed the stage of a contract of sale and it contains a promise to perfect the title by registering-deed of convey ance, the document is an agreement falling under Article 5". Briefly, the perusal of the document in question shows that it was intended to be an agreement. The word "Agree ment" occurs in two places in the document, one at the top and the other in the last line. The document further shows that the parties contemplated to perfect the title by executing a registered deed of conveyance. I am, therefore, of the view that the document is an agree ment falling under Article 5 and has been properly stamped. The application is accepted and the order of the learned Dis trict Judge Bahawalpur impounding the document is hereby set aside. Accountant General may be informed. Announced. A.H. Revision accepted.