HELD: 1. From a plain reading of Section 54 and Section 105 of the Transfer of Property Act, 1882, there cannot be any doubt that in case of a lease, there is a partial transfer and the right of reversion remains with the lessor. Whereas in case of a sale, there must be an absolute transfer of ownership and not some rights only as in the case of a lease. In the instant case, the lessor had entered into the lease agreement with the co- operative societies and their members, being lessees and the sub-lessees respectively, and the sub-lessees further entered into the agreements with the assignees (members of the appellant-Association). Such being the position, the document in question presented for registration before the registration officer was, in fact, a lease and the transfer to the members of the association was an assignment of the leasehold rights. The demised land was merely an enjoyment of the land and not transfer of the ownership. [Para 17] [131-F-H; 132-B]

Byramjee Jeejeebhoy (P) Ltd. v. State of Maharashtra AIR 1965 SC 590, relied on.

1.2. The decision of the High Court that the document given for registration contained a composite deed of lease as well as a deed of sale, and therefore, both Article 63 as well as Article 23 of Stamp Act would apply, is not correct. The document consists of a single deed of assignment of lease. [Para 19] [132-F-G]

1.3. The lease deed specifically provides for a right of reversion to the land and appurtenances thereto including buildings, on the termination or expiry of the lease. Thus the buildings and all other appurtenants attached to the land become a part of the assigned transfer through lease and not a separate sale. Moreover Section 3 of the Transfer of Property Act states that when an immovable property such as land is transferred by way of assignment of lease, all appurtenances thereto attached to the earth such as buildings and fixtures thereto would also stand assigned. [Paras 20 and 21] [134-E-G]

1.4. The nomenclature to the document of assignment cannot be said to be determining factor in deciding whether a particular deed or document was a lease or a deed of assignment. Although some of the members of the association had termed the document as a deed of sale or transfer cum sale deed instead of as a deed of assignment, it remains as a deed of assignment. [Para 23] [135-B-D]

Madras Refinery Ltd. v. C.S. AIR 1977 SC 500, relied on

1.5. Article 63 of Schedule 1-B to Stamp Act would apply in case of a transfer of lease by way of an assignment and Article 23 applies in case of a conveyance by way of sale. Article 63 in clear terms mentions that in case of an assignment, the duty that would be payable is the same duty as conveyance for a consideration equal to the amount of the consideration for the transfer. Thus it is clear that the duty is not calculated on the market value but on the amount of consideration mentioned in the deed itself. It was not open to the registering officer to embark upon an enquiry into the market value of the land or the building in view of the fact that it is only the leasehold rights which are only transferred by way of assignment by the document/instrument presented for registration. [Paras 24 and 25] [135-E-F; 136-E-G]

2.1. Section 47A would be applicable only when Article 23 is applicable. In case Article 63 applies, the registration officer does not have any jurisdiction to enquire into the market value of a property under Section 47A of the Stamp Act. The power u/s. 47A of the Act can be exercised in respect of an instrument presented for registration on which duty must be charged on its market value. Thus Section 47A applies in case of an outright sale. Since the instrument in question is not an out right sale but a hold lease right, therefore, the question arises whether the condition precedent mentioned in the Act has been fulfilled and, if not, the reference u/s 47A was invalid. [Para 26] [136-H; 137-A-C]

2.2. Section 47A provides that when the valuation shown in the agreement presented for registration is, according to the authorities, under-valued, in that case, the registering authorities are conferred with the discretion to hold an enquiry to find out if the duty chargeable on the market value of the property is less than even the minimum value determined in accordance with the rules made under the Act. As is evident from the records, the appellant could not execute the sale deed because of the failure of the respondent No.4 i.e. Noida Authorities, to execute transfer memorandum due to the orders of injunction passed in pending litigations before the different courts. Therefore the appellant cannot be faulted for not executing the same. The consideration mentioned on the agreement to sell was absolutely adequate with regard to the market value of the property at that time and the same was registered before the registering authority. Moreover, there are no allegations on record against the appellant of under-valuation at the time of entering into the agreement for transfer of the property. Therefore, even if it is assumed that Section 47A applies in this case, it can be seen that there was no fraudulent intention on the part of the appellant to under-value the property in order to evade stamp duty paid thereon. Since the stamp duty is to be charged on the consideration mentioned in the document under Article 63 of Schedule 1-B of the Act in case of an assignment of lease, the consideration mentioned on the document was adequate in respect of the time when the agreement of the transfer by way of lease was registered. The execution of the deed had not been delayed due to any fault on the part of the appellant and therefore he cannot be held liable for intentionally suppressing the value of the property. Thus even if Section 47A of the Act would have applied, the registering officer would have no jurisdiction to refer it to the Collector since there was never any intention on the part of the appellant to under- value the property. [Para 26] [137-C-H; 138-B-D]

State of Punjab v. Mahavir Singh, 1996 1 SCC 609, relied on.

3.1. There cannot be a straightjacket formula devised for determining the relevant date for determination of consideration mentioned in the document. It would depend on the various facts and circumstances of a particular case. In situations where the delay is caused on the part of a party intentionally while executing a deed after entering into an agreement of sale or lease as the case may be, the market value should be determined on the date when the deed is executed and not when an agreement to sale of the property or lease the property had been registered. But in cases where a person is not at fault and the delay is caused due to the lessor as in this case, the market value should be determined on the date when the agreement to lease the property was entered. The lessee or the sub lessee should not suffer due to the inability of the lessor in handing over transfer memorandums as is required under the lease. [Para 27] [138-G-H; 139-A-B]

S.P. Padmavati v. State of Tamil Nadu and Ors. AIR 1997 Mad 296, referred to.

3.2. The question of determination of the market value does not arise at all in case of an assignment of lease which is to be charged as per Article 63 of the Act. Market value can be truly determined in case of an outright sale. The present case does not deal with such a situation. [Para 28] [139- E-F]

3.3. The consideration to be mentioned in the assignment of transfer by way of a lease would be the market value of the property on the date of agreement for sale when the property could not be registered earlier due to no fault of the members of the Associations and when their consideration was frozen earlier. [Para 29] [140-A-B]

3.4. In the instant case Article 63 of Schedule 1-B of the Stamp Act, as applicable to the State of U.P., which deals with transfer of lease by way of assignment will apply to the documents in question. The consideration to be mentioned in the document would be the market value of the property on the date when the agreement was entered into and not when it was presented for registration, considering the peculiar facts of this case. [Para 30] [140-G-H; 141-A-B]

Case Law Reference:

1996 1 SCC 609 Relied on. Para 13

AIR 1965 SC 590 Relied on. Para 18

AIR 1977 SC 500 Relied on. Para 23

AIR 1997 Mad 296 Referred to. Para 27

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4367 of 2000.

From the Judgment & Order dated 27.5.1999 of the High Court of Allahabad in Writ Petition No. 38748/1997.

Manish Kumar, Amit Kumar, Nityanand Yadav and Rakesh K. Sharma for the Appellant.

Ravindra Kumar and S. Wasim A. Qadri for the Respondents.