wwa/ZT ’ TI /}é WMC) No. 7 /2009 :- Khorbahara Sinha. S/o. late Panna be pEnrD GMT NO‘L. 55 Lal Sina, Aged aboutgéryears, R/o. Khalbada Raod, Shurabari Bazar Post— Gudhiyara, Distt. Raipur (C.G.). 1. Smt. Sarwani Dutta Puww M W/o. Shri Arun Kumar Dutta, Aged about 36 years, R/o. behind ivekanand Vidyapeeth, V Bhaanisagar, Kota, Raipur Post— Ravi Shankar University, P.S.- Amanaa, Distt. Raipur (C.G.) Plaintiff 2. Shiv Lai Sinha, S/o~ Late Panna Lai Sinha, Togh :- Legal hair D/Ui) 2(a) Smt. Sunita Sinha, Aged about 3O i / years, W/o. Late Shiviai Sinha, iiI 2(b) Ku. Ritu Sinha, Aged about 12 years, D/o. Late Shivial Sinha, 2(0) Ku. Damini Sinha, Aged about 10 years, D/o. Late Shiviai Sinha, Deepak Kumar Goldi, Aged about afgw: 8 years, S/o. Late Shivial Sinha, (Minor) Respondent no. 2(a) to 1(d) through natural guardian Smt. Sunita Sinha, W/o. Late Shiviai Sinha, R/o.- behind E ] BEFORE HONBLE HIGH COURT OF CHHATSGARH AT BILASPUR / PETITIONER h k , VERSUS RESPONDENTS , w k hru @ g. wwwm ué Chhota Bhawam' Nagar, Vivekanand Vidyapeeth, Post and Tehsil— Kota, Distt. Raipur (C.G.) . Nandkishore Sinha, Aged about 34 yeas, S/o. late Panna Lal Sinha, R/o.- Pahadipara Chowk, beside Janta Qrt. No. 1, post Gudhiyari, Distt. Raipur (C.G.) . Chaiti Bai, Aged about 65 years, W/o. late Panna La) Sinha, R/o.- Pahadipara Chowk, beside Janta Qrt. No. 1, post Gudhiyan', Distt. Raipur (C.G.) . Smt. Mograbai, Aged about 43 years, W/o. Pardeshi Sinha, R/o. HathaniparaBhantapara, Post — Bhantapara, Distt. Raipur (C.G.) . Motinbai, Aged about 41 years, W/o.- Balla Sinha, R/o. Village Post- Devkar, Block- Saja, Tehsil — Dhamdha, Distt. Durg (C.G.) . Khomin Bai, Aged about 38 years, W/o. Hukum Sinha, R/o. Garadih, Tehsil- Dhamda, Distt. Durg (C.G.) .Smt. Shanti Bai, Aged about 32 years, W/o. Santosh Sinha, Through Shri Nandkishore Sinha, S/o. late Panna Lal Sinha, Pahadipara Chowk, beside Janta Qrt. No. 1, Post Gudhiyari, Distt. Raipur (C.G.) Smt. Kiran Agrawal, W/o- Rambhagat Agrawal, Aged about 38 years, R/o. near Nayatalab, Post. Gudhiyari, Raipur District Raipur (C.G.) eg/w n EMT 5" DchFgnme NT DLéHEI‘FB WT X ifiD (9W3 M o Km/T D mapWlbA/T‘Lb 10. Madhusudan AgrawaL S/o. Durga Prasad Agrawal, Aged about 38 years, R/o. near Nayatalab, Post. Gudhiyari, Raipur District Raipur (C.G.) WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA. 24'? HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon’ble Shri Justice Prashant Kumar Mishra Writ Petition (CJ No.71 36 of 2009 Khorbahara Sinha VerSUS Smt. Sarwani Dutta and others ORDER Post for 23-1 1~201 O , Sd/— Judge Prashant Kumar Mishta ‘ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinqle Bench: Hon’ble Shri Justice Prashant Kumar Mishra Writ Petitioruc.) No.7136 of 2009 Shri Anup Majumdar, counsel for the petitioner. Shri Goutam Bhaduri, counsel for respondent No.1. Writ Petition under Article 227 of the Constitution of India ORDER (Passed on X513 November, 2010) Short question arising for determination in this writ petition under Article 227 of the Constitution of India is that whether EXP—4, admitted in evidence, overruling the petitioner’s objection regarding its admissibility, is in accordance with law. 2. The plaintiff/respondent No.1 has filed a suit for specific performance of contract dated 10-8-1 998. ln course of examination of witness Arun Kumar Dutta on behalf of the plaintiff, one acknowledgement dated 10-4-2002 was sought to be exhibited by the plaintiff. In this document, Pannalal Sinha, late father of the petitioner/defendant No.1 admitted that he has received on different dates Rs.15,000/— in addition to the agreement amount of ,w’f . Rs.3,20,000/— and has also delivered possession of the suit land to If the plaintiff about 2 years back from the date of acknowledgement, 7K li.e., 10,-4—2002. Petitioner Khorbahara Sinha versus Respondents Smt. Sarwani Dutta others Present: CW 3. The petitioner/defendant No.1 objected tothe admissibility of the document on the ground that the document records delivery of possession about 2 years back, however, it is not properly stamped and registered in accordance with the provisions contained in the Registration Act, 1908, therefore, it cannot be admitted in evidence. The trial Court admitted the document in evidence and exhibited the same as Ex.P-4 after observing that it is an acknowledgement and it is not mentioned that possession is handed over to the plaintiff by the document itself and that it is mentioned that possession was handed over about 2 years back. 2 4. Learned counsel for the petitioner/defendant No.1 has argued that in view of the provisions contained in Article 23 of Schedule IA of the Indian Stamp Act, 1899 (henceforth ‘the Stamp Act’), as applicable in the State of Chhattisgarh, the document would be deemed to be a conveyance and stamp duty shall be leviable on the document accordingly. He, would further submit that because of express provision contained in Article 23 of Schedule IA of the Stamp Act, the admission of document and marking it as exhibit is contrary to law. 5. Learned counsel for respondent No.1/plaintiff would argue that once the document has been admitted in evidence, the petitioner/defendant No.1 is precluded from challenging its r; admission and that in view of the provisions contained in Section 36 ‘ of the Stamp Act, the petitioner’s contention cannot be entertained. .Vfr N_ m 3 6. The question regarding admissibility of an agreement to sell when possession was deiivered either prior to or after the agreement is no longer res integra. Krishna Mishra, 2009 AIR SCW 979, the Hon’ble Supreme Court has held in paragraphs 14 to 18 thus: “14, lndisputably an instrument was executed. By reason of such an instrument not only the entire amount of consideration was paid but possession of the property had also been transferred. Explanation appended to Article 23 of Schedule IA of the Stamp Act as substituted by M.P. Act No.19 of 1989 reads as under:- “Explanation.-— For the purpose of this Article, where in the case of agreement to sell immovable property. the possession of any immovable property is transferred to the purchaser before execution after 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: Provided that the provisions of Section 47A shall apply mutaiis 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 effected 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 subject to a minimum of Rs.10.” 15'. The saidexplanation has been inserted by M.P. i Act 19 of 1989 with effect from 15‘“ November, 1989. By reason of the said provision, thus, a legal fiction has been l In Avinash Kumar Chauhan vs. Vijay m/ 4 created. Although ordinarily an agreement to sell would not be subject to payment of stamp duty which is payable on a sale deed, but having regard to the purpose and object it seeks to achieve the iegisiature thought it necessary to levy stamp duty on an instrument whereby possession has been transferred. The validity of the said provision is not in question. 16. 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 lndian Registration Act, 1908. 17. 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. 18. The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The court, therefore, was empowered to pass an order in terms of Section 35 of the Act." 7. Article 23 of Schedule IA of the Stamp Act deems a document as conveyance when the possession of any immovable property is transferred to the purchaser before or after execution of such if agreement. Thus, an agreement to sell would not be admissible in l levidence for want of payment of adequate stamp duty, however, in [the present case, the'document Ex.P-4 is not the initial agreement to ”(M a? 5 sell entered between the parties. The initial agreement, as mentioned in paragraph 4 of the piaint, was executed on 10-8-1998. Though Ex.P—4 records that possession was handed over about 2 years back from the execution of said acknowledgement, the said document in itself is not an agreement to sell. 8. It is to be noted that the legal mandate flowing from Article 23 of Schedule IA of the Stamp Act‘would be applicable when the agreement itself is to be exhibited, however, in the present case, Ex.P-4 is not the agreement but is an acknowledgement executed subsequently. Thus, the acknowledgement dated 10-4-2002 (Ex.P-4) though mentions that possession was delivered 2 years prior to the date of acknowledgement, not being an agreement to sell, is not covered under Article 23 of Schedule IA of the Stamp Act. The trial Court has not committed any illegality by admitting the document in evidence. 9. In view of the above, the instant writ petition has no substance, which fails and is hereby dismissed, Sd/— Prashant Kumar Mishra 5 Judge Gopal g, r: ..