Madhya Pradesh High Court
Kishorilal (Dead) vs Balkrishna (Dead) on 17 April, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:12827
1 FA-105-2011
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 17 th OF APRIL, 2026
FIRST APPEAL No. 105 of 2011
KISHORILAL (DEAD) AND OTHERS
Versus
BALKRISHNA (DEAD) AND OTHERS
Appearance:
Shri Anand V. Bhardwaj - Advocate for appellants.
None for respondents.
JUDGMENT
This first appeal under Section 96 of CPC has been filed against judgment
and decree dated 22/12/2010 passed by 10th Additional District Judge (Fast Track
Court), Gwalior in Regular Civil Suit No. 21A/2010 by which suit filed by
plaintiff for specific performance of contract has been dismissed.
2. Appellant is the plaintiff who has lost his case from the Trial Court.
3. The facts necessary for disposal of present appeal, in short, are that a suit
for specific performance of contract was filed by original plaintiff Kishori Lal,
who died during the pendency of suit, against original defendant Raghunath
Vinayak Khirbadkar, Balkrishna, and Vinayak. Raghunath Vinayak Khirbadkar
also died during the pendency of suit and the Legal representatives of both the
parties were brought on record. Thus, appeal is being prosecuted by legal
representatives of original plaintiff Kishori Lal. It was the case of original plaintiff
that the disputed house is situated in Lohiya Bazar, Lashkar, Gwalior. Defendants
had entered into an agreement to sell the said house on 18/05/1983. It was pleaded
that an amount of Rs. 29,500/- was outstanding against Defendant No. 1, which
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 22-04-2026
02:14:00 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:12827
2 FA-105-2011
was also accepted by Defendant No. 1 in agreement to sell dated 18/05/1983, and
thus, it was claimed that Defendant No. 1 has already received the entire
consideration amount. It was also admitted that possession of the house was also
handed over by Defendant No. 1 to the plaintiff. Since the agreement to sell could
not be executed within time, therefore, by another document dated 02/09/1983,
the period for execution of sale deed was extended up to 31/03/1984, and at that
time it was found that an amount of Rs. 3,900/- is also payable by plaintiff to
Defendant No. 1, which was done by plaintiff on 31/01/1984. It was claimed that
defendants have not executed the sale deed although the plaintiff has already been
placed in possession of the land. Since defendants were avoiding the execution of
sale deed, therefore, a registered notice dated 21/07/1986 was sent, thereby
requiring the defendants to execute the sale deed within a period of seven days,
but Defendant Nos. 1 and 2 refused to accept the notice, whereas Defendant No. 3
filed a reply on wrong facts. Accordingly, it was claimed that the cause of action
has arisen on 21/07/1986 and thus a suit was filed for specific performance of
contract dated 18/05/1983 as well as 02/09/1983. The plaint was also amended,
and other conditions of agreement to sell dated 18/05/1983 were incorporated,
according to which defendants had admitted that they have received the total
consideration amount of Rs. 29,500/-, and defendants shall not be entitled for rent
from plaintiff, and plaintiff would get the partition wall plastered, and the sale
deed shall be executed by 31/01/1984.
4. Defendant No. 3 filed his written statement as well as counter-claim and
denied the agreement to sell dated 18/05/1983. It was also pleaded that the suit is
barred by time. Special plea as well as counter-claim was filed and it was claimed
that plaintiff and his mother Makhan Bai were the tenants of Raghunath Rao on
monthly tenancy of Rs. 400/-, and after the death of Raghunath Rao, defendants
Signature Not Verified
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Signing time: 22-04-2026
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NEUTRAL CITATION NO. 2026:MPHC-GWL:12827
3 FA-105-2011
are the landlords. Property in dispute was the ancestral property of Raghunath
Rao, therefore, his sons had right from their birth. The plaintiff was earlier in the
business of money lending and he had given loan to Raghunath Rao from time to
time. Since Raghunath Rao could not repay the loan, therefore, by way of security
of loan, a sham agreement to sell dated 18/05/1983 was executed. In fact, real
intention to execute the agreement to sell was by way of security of loan. Since
the so-called agreement to sell dated 18/05/1983 had become barred by time,
therefore, on an objection raised by Defendant Nos. 2 and 3, plaintiff got another
document dated 02/09/1983 executed from Raghunath Rao without allowing him
to read the same. The document dated 02/09/1983 was denied. A counter-claim
for eviction of plaintiff as well as for recovery of arrears of rent to the tune of Rs.
14,400/- was also filed.
5. The Trial Court, after framing issues and recording evidence, dismissed
the suit filed by appellant and also dismissed the counter-claim filed by
defendants.
6. It is submitted by counsel for appellant that respondents/defendants have
neither filed any separate appeal against dismissal of their counter-claim nor have
filed any cross-objection.
7. Thus, it is clear that dismissal of counter-claim filed by defendant has
attained finality.
8. Challenging the judgment and decree passed by the Court below, it is
submitted by counsel for appellant that Raghunath had taken loan from appellant
from time to time, and accordingly, in the year 1983, a total amount of Rs.
29,500/- was outstanding against Raghunath, and accordingly, an agreement to
sell dated 18/05/1983 (Exhibit P-1) was executed. Thereafter, as the sale deed
could not be executed in compliance of agreement to sell Exhibit P-1, therefore,
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 22-04-2026
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NEUTRAL CITATION NO. 2026:MPHC-GWL:12827
4 FA-105-2011
another document Exhibit P-2, thereby extending the time for execution of sale
deed, was executed. It is further submitted as it was found that an additional
amount of Rs. 2,990/- is outstanding towards the plaintiff, therefore, the same was
also paid to defendants.
9. Heard learned counsel for appellants.
10. K.C. Gupta (PW-1), in paragraph 13 of his cross-examination, has
stated that he does not know for what purposes Rs. 3,900/- were paid. He further
stated that he does not recollect as to whether any additional amount was payable
to Raghunath or not. In paragraph 14, he also admitted that in Exhibit P-2, it was
mentioned that plaintiff would pay Rs. 2,990/- to Defendant No. 1, and
accordingly, he claimed that receipt Exhibit P-3 must be of Rs. 2,990/-. A Court
has put a note that in fact receipt Exhibit P-3 is of Rs. 3,900/-. This witness was
also not in a position to clarify as to why there is a difference of amount, i.e., Rs.
2,990/- mentioned in Exhibit P-2 and Rs. 3,900/- in respect of receipt Exhibit P-3
?
11. Exhibit P-1 reads as under:
“इकरार नामा
हम िन न प कार के बीच जो शत तय हुई है वह िलखव िन न कार क जाती
है :-
( प कार मांक 1)
(1) रघुनाथ वनायक खरवड़कर पु ी वनायक केशव खरवड़कर उ 77 वष
(2) बाल कृ ण पु रघुनाथ खरवड़कर उ 34 वष
(3) वनायक पु ी रघुनाथ खरवड़कर उ 30 वष सव िनवासी खरवड़कर का बाड़ा
लो हया बाजार ल कदर,
प कार ं माक -/2
(1) कशोर लाल पु ी भगवानदास गहोई वै य4 उ 46 वष िनवासी लो हया
बाजारल कबर
इकरार नामे क शत िन न कार है :-
(1) यह क प कार मांक । ी रघुनाथ वनायक खरवड़कर ने प कार मांक2 ी
कशोर लाल से सन ् 1971 के पूव समय समय पर अपनी गृह थी के काय हे तु ऋण ा
कया था उसका हसाब दोनो प कार के ारा लेने दे ने के प ारत वष 1971 मे कया
गया जसम दोनो प ो के लेन दे न का या ज आ द का समावेश करते हुये प कार
मांक -2 ी कशोर लाल का प कार ं माक 1 रघुनाथ वनायक खरवड़कर से पया
29500) लेना शेष था इस शेष ऋण क अदायगी के पेटे प कार मांक-1 ने अपनाSignature Not Verified
Signed by: ALOK KUMAR
Signing time: 22-04-2026
02:14:00 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:128275 FA-105-2011
प केा मकान का ह सा5 जो क पूव व त मकान ी कशोर लाल के मकान से लगा
हुआ है व य करना सौदा तय कया है ।
(2) यह क उपरो ा कलम एक के अनुसार सौदा तय होने के फल वल प प कार
ं माक 1 ने अपने भवन का आिधप य प कार ं माक 2 को करा दया।
(3) यह क प कार मांक 2 को भवन का अिधप ये दे ने के प ाकत ् दोनो प कारो
म मौ खक प से आपस म ये शत रखी गई क प कार ं माक 1 पर जो उपरो स
कलम न बकर -1 क अनुसार प कार मांक 2 का ऋण दे ना शेष था उस रािश पर
कसी भी कार युाज आ द ा ् करने का अिधकार नह रहे गा। तथा प कार मांक 1
को प कार मांक -2 से मकान जो उसके अिधप या से दया गया है उस पर कराया
ा क करने का अिधकार नह होगा ये शत विधवत उपरो 2 भवन क विधवत र ज
नह होने तक दोनो प कारो के बीच उ ् शत क पाब द रहे गी।
(4) यह क क ह ी कारण वश अभी तक उ भवन क र ज त नह हो सक और
कलम न ब र 3 के अनुसार शत क पाब द ◌् दोनो प कारो क तरफ से आज दनांक
तक रखी गई।
(5) यह क अब यह उिचत समझा गया क मौ खक प से हुई शत को िल खत प
मे लेख व कर िलया जावे ता क कभी भी भ व यउ मे आपस मे कसी कार का ववाद
उ पप नद न हो और भ व यम मे यह इकरारनामा समय आने पर दोनो प कार के नाम
आ सक।
(6) यह क हम दोनो प कार के बीच जो कलम न बहर 1 अनुसार सौदा तय हुआ है
उसक विधवत र ज स ब6 धीह कायवाह कर ली जाव जसके िलये अविध 45
दवस पैतालीस दवस क अविध दोनो प कार क सहमित से िन त क जाती है ।
उ क अविध िन त करने के कारण यह क र ज स से पूव िन नव शत पूर होना है ।
(1) उ र दशा पा टशन क दवाले तीन मं जल क आठ आठ (8 फुट) फुट पूर कराकर
उन पर लात ट रं ग को पंग होना शेष है जो क प कार मांक -2 अपने वंयं के खच
से 45 दवस क अविध के अ दकर पूरा करायगे।
(2) यह क वष1971 के प ात ् दोनो प कार बीच मे जो भी लेन दे न स व धी यवहार
हु ये है उसका दोनो प कार 45 दवस के अ दर आपसी लेन दे नेम जस प कार का भी
लेना अथवा दे ना शेष होगा वह ले दे कर िनराकरण कर लेग ।
(6) यह क इस इकरार नाम के संल न भवन के य व य के स बा धी शत का
जो ा ट तैयार कया गया है और उस ा ट पर दोनो प कारो क सहमित वी कार क
गई है क इकरार नामे का ह अंग मान कर इसके साथ संल नड रखा गया है दोनो
प कारो ने यह तय कया है क संल नक ा ट म र ज क क जो शत रखी गई है वह
दोनो प कार क वी कृ ित एवं सहमित से रखी गई जो दोनो को वीनकार रहे गी एवं
रज के समय इन शत के अलावा दोनो प म से कसी भी प को नई शत रखने
का अिधकार ा ी नह होगा।
(7) यह इकरार नामा हम दोनो प कारो ने सोच समझकर होश हवाश म एवं बना
कसी नशे प ेग एवं बना कसी दवाव के िन नागवाहो के सम लेखव कया है जो
व ज रत काम आव।
यह इकरार नामा गवाह ी केसी गु ाष एडवोकेट ल कयर के पास इस शत के साथ
सुर त रहे गा क उपरो ारनुसार द गई अविध के अ दवर य द कसी भी प कार के
ारा शत का पालन नह कया गया तो ु टकता के व आगामी कानूनी कायवाह करने
के िलये प कार मांक 1 अथवा प कार मांक 2 को यह इकरारनामा सुपुद के िलये वह
वीतं है ।
दनांक 18/5/83
ह ताक र प कार मांक -1
ह ताक र प कार मांक-2
ह ताक र सा ीगण "
Thus, it is clear from Exhibit P-1 that prior to 1971, Defendant No. 1 had
Signature Not Verified
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Signing time: 22-04-2026
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NEUTRAL CITATION NO. 2026:MPHC-GWL:12827
6 FA-105-2011
taken a loan from plaintiff for meeting out his personal expenses, and accordingly,
in the year 1983, accounts were settled and it was found that an amount of Rs.
29,500/- is payable by original Defendant No. 1, and thus, according to plaintiff,
an agreement to sell dated 18/05/1983 (Exhibit P-1) was executed.
12. From the plain reading of agreement to sell Exhibit P-1, it is clear that it
contains all the ingredients of sale, i.e., payment of entire consideration amount
and delivery of possession. Admittedly, agreement to sell dated 18/05/1983
(Exhibit P-1) is an unregistered document.
13. Now, the only question for consideration is as to whether registration of
a document containing all the ingredients of sale is required or not?
14. It is a well-established principle of law that stamp duty is to be levied
only on the document and not on the transaction as held by the Supreme Court in
the cases of Veena Hasmukh Jain and Another vs. State of Maharashtra and
Others, reported in (1999) 5 SCC 725 , and Shyam Sundar Radheshyam Agrawal
and Another vs. Pushpabai Nilkanth Patil and Others , decided on 24/09/2024 in
CivilL Appeal No. 10804/2024 (Arising out of SLP (C) No.5843 of 2021) .
15. The Supreme Court in the case of Ramesh Mishrimal Jain vs. Avinash
Vishwanath Patne and Another , decided on 14/02/2025 in Civil Appeal No.
2549/2025 (Arising out of SLP (C) No. 13822 of 2020) , has held as under:
“9. However, the legal position is very clear that the stamp duty is on the
instrument and not on the transaction. Furthermore, it is immaterial,
whether the possession of the property has been handed over at the time of
execution of the agreement to sell or whether it has been agreed to transfer
the possession. In this regard, it will be useful to refer to Explanation 1 to
Article 25 of Schedule I of the Bombay Stamp Act, which reads as under:
” Explanation I.–For the purposes of this article, where in the
case of agreement to sell an immovable property, the possession
of any immovable property is transferred or agreed to be
transferred to the purchaser before the execution, or at the time
of execution, or after the execution of such agreement withoutSignature Not Verified
Signed by: ALOK KUMAR
Signing time: 22-04-2026
02:14:00 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:128277 FA-105-2011
executing the conveyance in respect thereof, then such
agreement to sell shall be deemed to be a conveyance and stamp
duty thereon shall be leviable accordingly:
Provided that, the provisions of Section 32-A shall apply
mutatis mutandis to such agreement which is deemed to be a
conveyance as aforesaid, as they apply to a conveyance under
that Section:
Provided further that, where subsequently a conveyance is
executed in pursuance of such agreement of sale, the stamp
duty, if any, already paid and recovered on the agreement of
sale which is deemed to be a conveyance, shall be adjusted
towards the total duty leviable on the conveyance.”
10. Additionally, the following decisions are also relevant and they are
reiterating the above stated legal position:
(i) In Veena Hasmukh Jain v. State of Maharashtra , while dealing with the
question as to whether the agreement to sell can be treated as a document of
conveyance, liable for levy of stamp duty, this Court held as follows:
” 8. The duty in respect of an agreement covered by the
Explanation is leviable as if it is a conveyance. The conditions
to be fulfilled are that if there is an agreement to sell
immovable property and possession of such property is
transferred to the purchaser before the execution or at the time
of execution or subsequently without executing any conveyance
in respect thereof, such an agreement to sell is deemed to be a
“conveyance”. In the event a conveyance is executed in
pursuance of such agreement subsequently, the stamp duty
already paid and recovered on the agreement of sale which is
deemed to be a conveyance shall be adjusted towards the total
duty leviable on the conveyance. Now, in the present case, the
agreement entered into clearly provides for sale of an
immovable property and there is also a specific time within
which possession has to be delivered. Therefore, the document
in question clearly falls within the scope of Explanation I. It is
open to the legislature to levy duty on different kinds of
agreements at different rates. If the legislature thought that it
would be appropriate to collect duty at the stage of the
agreement itself if it fulfils certain conditions instead of
postponing the collection of such duty till the completion of the
transaction by execution of a conveyance deed inasmuch as all
substantial conditions of a conveyance have already been
fulfilled such as by passing of a consideration and delivery of
possession of the property and what remained to be done is a
mere formality of execution of a sale deed, it would be
necessary to collect duty at a later (sic agreement) stage itself
though right, title and interest may not have passed as such.
Still, by reason of the fact that under the terms of theSignature Not Verified
Signed by: ALOK KUMAR
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NEUTRAL CITATION NO. 2026:MPHC-GWL:128278 FA-105-2011
agreement, there is an intention of sale and possession of the
property has also been delivered, it is certainly open to the State
to charge such instruments at a particular rate which is akin to a
conveyance and that is exactly what has been done in the
present case. Therefore, it cannot be said that levy of duty is not
upon the instrument but on the transaction. Therefore, we reject
the contention raised on behalf of the appellants in that regard.
9. The learned counsel for the appellants urged that the
character of an instrument cannot be determined by reason of a
subsequent event to take place such as handing over of
possession. But a close examination of the provisions of the
Explanation will make it clear that in the case of an agreement
to sell immovable property possession is transferred at any time
without executing the conveyance in respect thereof and such an
instrument is deemed to be a “conveyance”. The object of the
Explanation is clear that if an agreement is entered into and that
agreement itself contemplates the delivery of possession of the
property within the stipulated time, then such an agreement
should be deemed to be a conveyance for the purpose of duty
leviable under the Bombay Stamp Act.
10. It is clear that the object of the Stamp Act is to levy stamp
duty on different kinds of instruments. The legislature, in the
present case, has chosen to levy a rate of duty equivalent to
conveyance in respect of an agreement though the transaction
may not have been completed because of certain instruments
arising out of such agreement being executed and possession
thereof being taken prior to or simultaneous with the document
or subsequently. But in the Explanation, it is not clear that if the
document provides that possession has to be taken without
execution of the conveyance, certainly it would attract the
appropriate duty. If the agreement provides that possession will
be handed over on the execution of a conveyance as
contemplated under Section 11 of the MOF Act, then the
Explanation shall not be attracted at all. In the present case, it is
clear that in the terms of the agreement, there is no provision
made at all for execution of the conveyance. On the other hand,
what is submitted is that the provisions of the MOF Act could
be applied to the agreement and, therefore, a conveyance could
be executed subsequently when it is not clear as to when the
conveyance is to be executed and the stipulated time within
which the possession has to be handed over. If that is so, it is
clear that the document would attract duty as if it is a
conveyance as provided in the Explanation. Thus we find no
error in the view taken by the High Court. It is not necessary to
examine in these appeals as to whether the instrument in
question itself conveys a title or not. Therefore, we uphold the
decision of the High Court made in this regard. The appeals are
dismissed.”
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 22-04-2026
02:14:00 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:12827
9 FA-105-2011
(ii) Referring to the aforesaid judgment, this Court in Shyamsundar
Radheshyam Agrawal v. Pushpabai Nilkanth Patil , held that the object of
the Explanation is clear that if an agreement is entered into and that
agreement itself contemplates the delivery of possession of the property
within the stipulated time, then, such an agreement should be deemed to be
a conveyance for the purpose of duty leviable under the Bombay Stamp
Act. The relevant paragraphs of the same read as under:
” 16. In the instant case, in the documents, though there was a
clause for conveyance between the vendors and purchasers in
relation to the respective properties, the value of the properties
were above Rs 100 and there was also a clause by which
possession was admittedly handed over on the date of the
agreement, implying acquisition of possessory rights protected
under Section 53-A of the Transfer of Property Act, which
requires payment of proper stamp duty and registration as
mandated under Section 17 of the Registration Act. Further, as
per Section 4(2) of the Maharashtra Stamp Act, the parties are
at liberty to determine as to which of the document shall be
principal document.
17. As noted above, the agreement for sale consists of a clause
whereby the possession was handed over to the purchaser
satisfying the requirement to treat the instrument as conveyance
and what remained was only the formality of execution of the
sale deed. Therefore, it can be safely concluded that the
agreement for sale was the principal document on which stamp
duty was to be paid as per Article 25.
18. Even considering the contention of the appellant, that the
sale agreements ultimately concluded in the sale deed on which
stamp duty was paid, would not ipso facto absolve the primary
liability of paying the appropriate stamp duty at the time of
execution of the sale agreement as it was the principal
document. Therefore, we are of the opinion that Section 4 of the
Act cannot come to the aid of the appellants. Therefore, all
these six documents ought to have been necessarily stamped
and registered.”
(iii) In similar circumstances, the Andhra Pradesh High Court in B.
Ratnamala v. G. Rudramma , after interpreting the relevant expressions,
observed as follows:
” 9. While considering the provisions of the Indian Stamp Act,
it has to be borne in mind that the said Act being a fiscal statute,
plain language of the section as per its natural meaning is the
true guide. No inferences, analogies or any presumptions can
have any place. As the incidence of duty is on the execution of
the deed, regard must, therefore, be had only to the terms of the
document. Thus, the main question that falls for consideration
is the interpretation of the expressions “followed by or
evidencing delivery of possession”. These expressions cannot
be read in isolation and one has to find the true meaning bySignature Not Verified
Signed by: ALOK KUMAR
Signing time: 22-04-2026
02:14:00 PM
NEUTRAL CITATION NO. 2026:MPHC-GWL:1282710 FA-105-2011
reading the entire Explanation and more so in conjunction with
the earlier expression i.e., “agreement”. Even if these two
expressions are looked independently, it means an agreement to
sell followed by delivery of possession and an agreement to sell
evidencing delivery of possession. In the first case, i.e.,
“followed by delivery”, possession cannot be disjuncted from
the basic source i.e., agreement to sell. Therefore, the
expression followed by delivery of possession should have a
direct nexus to the agreement and should be read in
juxtaposition to the word ‘agreement’ and it cannot be
independent or outside the agreement. Therefore, the delivery of
possession should follow the agreement i.e., through the
agreement. It takes in its sweep the recital in the agreement
itself that delivery of possession is being handed over. It will
also cover cases of delivery of possession contemporaneous
with the execution of agreement, even if there is no specific
recital in the agreement. In other words, the delivery
of possession should be intimately and inextricably connected
with the agreement. And in the second type, i.e., agreements
evidencing delivery of possession, if the document contains
evidence of delivery of possession by a recital in that behalf,
that is sufficient. Such delivery of possession can be prior to the
date of agreement and need not be under the agreement. If the
agreement records the fact that the possession was delivered
earlier and such recital serves as evidence of delivery of
possession, though prior to the Agreement, it falls under the
second limb. Therefore, on a proper interpretation of the said
expressions, it would follow that an agreement containing
specific recital of delivery of possession or indicating delivery
of possession even in the past is liable for stamp duty as a ‘sale’
under the said Explanation.
11.Mohd. Gafoor (supra) is a case where an agreement was
executed with the tenant in possession wherein it was
contemplated that the purchaser (the tenant) can retain the
possession and further authorised to collect the rents for himself
and sublet the premises. In that context, the learned Judge held
that there is no delivery of possession of property under the
agreement. To put it differently, possession has not followed
the agreement and it does not evidence delivery of possession.
Before the learned single Judge, neither of the decisions in
Mekapothula Linga Reddy (supra) and D. Ramachandra Rao
(supra) were cited. No doubt, the twin situations contemplated
under the Explanation I were kept in view but however, on the
facts, the learned Judge came to the conclusion that there is no
delivery of possession as the person in possession continued to
remain therein. Basically, the learned Judge has not taken into
consideration the incidence of agreement and the change in the
jural relationship between the parties. Earlier, the parties were
having the relationship of landlord and tenant and under the
agreement, the relationship has transformed into that of aSignature Not Verified
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vendor and purchaser. Thus, there is a total novation of not only
the situation, but also the relationship and the respective right
and obligations. Even though the parties remain in the same
position, the nature of their relationship can be altered. In
Mohd. Gafoor (supra), certainly the tenant has catapulted into a
purchaser. Even though there may not be a redelivery of
possession as a tenant and again delivery back to the same
person as a purchaser, but the factum of change of relationship
certainly leads to the inference of a change in the nature of
possession, even if it were to be taken as a symbolic delivery.
Therefore, it cannot be said that simply because one continued
to remain in possession, though in different capacities, there is
non-delivery of possession. A symbolic delivery may also
amount to actual delivery in given circumstances. Thus in the
case in Mohd. Gafoor (supra), there was delivery of possession
and the said explanation gets attracted.
12. The Apex Court had an occasion to consider the provisions
under the Bombay Stamp Act, 1958 in Veena Hasmukh Jain v.
State of Maharastra, JT 1999 (1) SC 186. Explanation I to
Article 25 of Schedule I to the Bombay Stamp Act reads as
follows:
Explanation I:– For the purpose of this Article, where in the
case of agreement to sell an immovable property, the possession
of any immovable property is transferred to the purchaser
before the execution, or at the time of execution, or after the
execution of such agreement without executing the conveyance
in respect thereof, then such agreement to sell shall be deemed
to be a conveyance and stamp duty thereon shall be leviable
accordingly”.
Interpreting the said explanation, it was held:
“The duty in respect of an agreement covered by the
Explanation is leviable as if it is a conveyance. The conditions
to be fulfilled are if there is an agreement to sell immovable
property and possession of such property is transferred to the
purchaser before the execution or at the time of execution or
subsequently without executing any conveyance in respect
thereof, such an agreement to sell is deemed to be a
“conveyance”. In the event a conveyance is executed in
pursuance of such agreement subsequently, the stamp duty
already paid and recovered on the agreement of sale which is
deemed to a conveyance shall be adjusted towards the total duty
leviable on the conveyance. Now, in the present case, the
agreement entered into clearly provides for sale of an
immovable property and there is also a specific time within
which possession has to be delivered. Therefor, the document in
question clearly falls within the scope of the Explanation I. It is
open for the Legislature to levy duty on different kinds of
agreement in different rates. If the Legislature thought that itSignature Not Verified
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would be appropriate to collect duty at the stage of agreement
itself if it fulfills certain conditions instead of postponing the
collection of such duty till the completion of the transaction by
execution of conveyance deed inasmuch as all substantial
conditions of a conveyance have already been fulfilled such as
by passing of a consideration and delivery of possession of the
property and what remained to be done is a mere formality of
execution of a sale deed, it would be necessary to collect duty
at a later stage itself though right, title and interest may not
have passed as such. Still by reason of the fact that under the
terms of the agreement there is an intention of sale and
possession of the property has also been delivered, it is
certainly open to the State to charge such instruments at a
particular rate which is akin to a conveyance and that it exactly
what has been done in the present case. Therefore, it cannot be
said that levy of duty is not upon the instrument but on the
transaction”.
13. Thus, it was a specific case where in so many words the
Explanation takes in all the situations i.e., delivery of
possession before the execution or at the time of execution or
after the execution of an agreement and such agreements are
deemed to be conveyances for the purpose of imposing stamp
duty. Thus the Apex Court had approved the intention of the
Legislature in equalising an Agreement on par with a
conveyance in the circumstances contemplated thereunder,
apparently, the object being to realise the revenue at the earliest
point of time on the Agreement akin to sale deeds. Though in
different words, in the instant case, the amendment brought in
tries to achieve a similar object.
14. In the case on hand, there is a variation in the expressions
used viz., “followed by” and “evidencing delivery of
possession”. As discussed above, the expression “followed by”
should be read in conjunction with the earlier expression
“agreement” and in the latter case, any agreement recording
delivery of possession should invite the stamp duty as a sale
deed, even though the possession had been delivered in the past.
The expression “evidencing delivery of possession” applies to
the situation with which we are concerned in the present case.”
16. If agreement to sell dated 18/05/1983 (Exhibit P-1) is seen, then not
only there is a recital that entire consideration amount has been received, but there
is also a specific recital that possession of the disputed property has been
delivered.
17. Under these circumstances, this Court is of considered opinion that the
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registration of aforesaid document was required.
18. Although counsel for appellant has relied upon the judgment passed by
the Supreme Court in the case of Narinderjit Singh v. North Star Estate Promoters
Ltd., reported in (2012) 5 SCC 712 and submitted that in view of Section 49 of
the Registration Act, an unregistered document is admissible for the purposes of
specific performance of contract, but in the present case, this Court is of
considered opinion that had it been a case of a simple agreement to sell, then
Section 49 of the Registration Act would have come to the rescue of appellant.
However, in the present case, nature of the document is not an agreement to sell,
but it contains all the ingredients of a sale. Section 54 of the Transfer of Property
Act provides that if the value of immovable property is more than Rs. 100/-, then
its registration is necessary. Therefore, as so-called agreement to sell dated
18/05/1983 (Exhibit P-1) is an unregistered document and registration is required
for the document and not for the transaction, therefore, said document was not
admissible.
19. Furthermore, according to agreement to sell (Exhibit P-1), the loan was
taken by Defendant No. 1 – Raghunath from the plaintiff from time to time prior
to 1971, whereas agreement to sell (Exhibit P-1) was executed on 18/05/1983.
The period of limitation for recovery of loan amount is three years. If last
transaction of loan had taken place between defendant No. 1 and plaintiff in the
year 1971, then plaintiff should have filed a suit within a period of three years
thereafter, i.e., up to the year 1974, whereas the suit was filed in the year 1986.
20. Now, it is submitted by counsel for appellant that agreement dated
18/05/1983 can be considered as an acknowledgement of outstanding loan amount
against Raghunath, and thus, the period of limitation would get extended by
aforesaid agreement to sell dated 18/05/1983 (Exhibit P-1).
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21. Heard learned counsel for appellant.
22. Section 18 of the Limitation Act reads as under:
“18. Effect of acknowledgment in writing.–(1) Where, before the
expiration of the prescribed period for a suit or application in respect of any
property or right, an acknowledgment of liability in respect of such
property or right has been made in writing signed by the party against
whom such property or right is claimed, or by any person through whom he
derives his title or liability, a fresh period of limitation shall be computed
from the time when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated, oral
evidence may be given of the time when it was signed; but subject to the
provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of
its contents shall not be received.
Explanation.–For the purposes of this section,–
(a) an acknowledgment may be sufficient though it omits to
specify the exact nature of the property or right, or avers that
the time for payment, delivery, performance or enjoyment has
not yet come or is accompanied by a refusal to pay, deliver,
perform or permit to enjoy, or is coupled with a claim to set off,
or is addressed to a person other than a person entitled to the
property or right;
(b) the word “signed” means signed either personally or by an
agent duly authorised in this behalf; and
(c) an application for the execution of a decree or order shall
not be deemed to be an application in respect of any property or
right.”
From the opening words, it is clear that the acknowledgement in writing
has to be within the period of limitation and not after the expiry of limitation.
23. The Supreme Court in the case of Sampuran Singh v. Niranjan Kaur ,
reported in (1999) 2 SCC 679 , has held as under:
“9. In his endeavour, learned counsel for the appellants referred to Section
18 of the Limitation Act, 1963 to hold that the acknowledgment by the
original mortgagees to the respondents, through the said registered
document dated 11-1-1960, the period of limitation is revived which would
only start from the date of acknowledgment hence the suit filed in the year
1980 would be within limitation. The said submission is without any force.
Section 18 sub-section (1) itself starts with the words:
” 18. (1) Where, before the expiration of the prescribed period for a suit or
application in respect of any property or right, an acknowledgment of
liability in respect of such property or right has been made….”
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Thus, the acknowledgment, if any, has to be prior to the expiration of the
prescribed period for filing the suit, in other words, if the limitation has
already expired, it would not revive under this section. It is only during
subsistence of a period of limitation, if any, such document is executed,
that the limitation would be revived afresh from the said date of
acknowledgment. In the present case, admittedly, the oral mortgage deed is
in March 1893. If the period of limitation for filing suit for redemption is
60 years then limitation for filing a suit would expire in the year 1953.
Thus, by the execution of this document dated 11-1-1960 it cannot be held
by virtue of Section 18 that the period of limitation is revived afresh from
this date.”
Therefore, it is clear that any acknowledgement in writing after the expiry
of period of limitation would not extend the period of limitation.
24. Since the period of limitation for recovery of the loan amount had
already expired in the year 1974, therefore, agreement to sell dated 18/05/1983
(Exhibit P-1) will also not extend the period of limitation for recovery of the loan
amount.
25. Thus, viewed from every angle, it is held that not only the agreement to
sell dated 18/05/1983 (Exhibit P-1) was not admissible in absence of registration
and sufficient stamp duty, but the transaction itself was barred by time as by
entering into an agreement to sell (Exhibit P-1), plaintiff had tried to revive the
loan transaction which otherwise had already become barred by time.
26. Under these circumstances, this Court is of considered opinion that no
case is made warranting interference.
27. Ex consequenti , judgment and decree dated 22/12/2010 passed by 10 th
Additional District Judge (Fast Track Court), Gwalior in Regular Civil Suit No.
21A/2010 so far as it relates to dismissal of the suit is hereby affirmed.
28. Appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
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AKS
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