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TMI Blog2013 (10) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... on were delivered to them on payment of the part consideration money in pursuance of the agreement to sell and such a recital finds place in the said agreement. Paragraph 1 of the agreement to sell reads as under: "1.That while selling the aforesaid land I the seller, have received Rs. 1,15,000/- (Rupees one lac fifteen thousand) cash as a token amount before the witnesses and, by remaining present at the spot, actual physical possession has been handed over to the purchaser, and after receiving remaining sale consideration amount Rs. 25,000/- (Rupees twenty five thousand) from the purchaser within a year I, the purchaser, will get the sale deed of the said land registered in the name of the purchaser." The defendants in the written state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned as Rs.1,40,000 and its 7 ½ per cent comes to Rs. 10,500/-. Therefore, it is concluded that the sale agreement can be admissible in evidence only on being on stamp of Rs. 10,500/-. Therefore, it is concluded that the sale agreement is not properly stamped, therefore, not admissible in evidence. Thus, objection of defendant No. 1 is allowed sale agreement dated 27.12.2000 is refused to be admitted in evidence. If the plaintiff wants to produce the said documents in evidence then he may make proper application under Section 35 of the Stamp Act on the next date." Plaintiffs challenged the aforesaid order before the High Court in a writ petition filed under Article 227 of the Constitution of India, inter alia, contending that whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t stamped in accordance with Article 23 of Stamp Act." Defendant no. 1 assails this order in the present special leave petition. Leave granted. We have heard Mr. Niraj Sharma on behalf of the appellant and Mr. Fakhruddin, Senior Counsel on behalf of the respondents. Mr. Sharma contends that for admissibility of the document what is relevant is the recital therein. He submits that agreement to sell is "conveyance" as defined under Section 2(10) of the Act and shall be chargeable with duty as contemplated under Section 3 of the Act. According to him, as the agreement in question is not duly stamped, it shall be inadmissible in evidence under Section 35 of the Act. Mr. Fakhruddin, however, submits that the defendants having joined the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which shall hold the field. Having said that, we proceed to consider as to whether the document in question is "conveyance" within the meaning of Section 2(10) of the Act. Section 2(10) of the Act reads as follows: 2. Definitions. -In this Act, unless there is something repugnant in the subject or context, - xxx xxx xxx (10)"Conveyance" includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule I; xxx xxx xxx" From a plain reading of the aforesaid provision, it is evident that an instrument by which movable or immovable property is transferred, comes within the expression "conveyance". In the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1990. The Explanation, therefore, creates a legal fiction. The agreement to sell shall be deemed to be a conveyance and stamp duty is leviable on an instrument whereby possession has been transferred. Thus the agreement to sell in question is a conveyance within the meaning of Section 2(10) of the Act and is to be duly stamped. Section 35 of the Act makes instruments not duly stamped inadmissible in evidence, the relevant portion whereof reads as follows: "35. Instruments not duly stamped inadmissible in evidence, etc.-No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mishra, (2009) 2 SCC 532, in which it has been held as follows: "21. It is not in dispute that the possession of the property had been delivered in favour of the appellant. He has, thus, been exercising some right in or over the land in question. We are not concerned with the enforcement of the said agreement. Although the same was not registered, but registration of the document has nothing to do with the validity thereof as provided for under the provisions of the Registration Act, 1908. 22. We have noticed heretobefore that Section 33 of the Act casts a statutory obligation on all the authorities to impound a document. The court being an authority to receive a document in evidence is bound to give effect thereto. The unregistered deed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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