1 Wp no.9141/09 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.9141 of 2009 Kiran Prakash Marutirao Gatade ... Petitioner versus Balasaheb Rangrao Patil & ors. ... Respondents ... Mr. P.R.Arjunwadkar for the petitioner. Mr.Amit Borkar for respondent no.1. CORAM : D.G. KARNIK, J. DATED : 7th July 2010 P.C. 1. By this petition, the petitioner (original defendant no.1) challenges the order dated 15 July 2009 passed by the learned Civil Judge, Jr. Division rejecting his application for seeking an order that the agreement of sale dated 5 September 1991 shall be not read as evidence as it was improperly stamped. 2. In a suit filed by respondent no1 for specific performance of an agreement of sale dated 5 September 1991, the petitioner made an application that the agreement be excluded from the evidence on the ground that it was not properly stamped. According to him, the agreement was required to be stamped as a conveyance in view of the 2 Wp no.9141/09 Explanation to Article 25 of the Bombay Stamp Act. The Explanation to Article 25 provides that the stamp duty for agreement for sale would be chargeable as a conveyance if possession of the property is handed over or agreed to be handed over to the purchaser before, at the time of or after the agreement of sale. According to the petitioner, the agreement was not required to be stamped as a conveyance under Article 25 in view of the fact that the possession of the suit property was not handed over to the respondent no.1 in pursuance of the agreement of sale. 3. Undoubtedly, the agreement recites that possession of the suit property was handed over by the petitioner to the respondent no.1 at the time of agreement of sale. However, in fact the possession has not been handed over and this is not disputed by the learned counsel for the parties before me. In fact, after the agreement of sale, petitioner has sold the property to the respondent no.2 and has handed over symbolic possession of the property to respondent no.2 with the tenant. The short question that arises is whether agreement in question is required to be stamped as a conveyance when possession in fact was not handed over to the respondent at the time of the agreement or at any time thereafter prior to the conveyance in his favour. 4. Explanation 1 to Article 25 of the Bombay Stamp Act reads as follows:- “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 3 Wp no.9141/09 execution, or at the time of execution, or after the execution of, such agreement then such agreement to sell shall be deemed to be a conveyance and stamp duty thereon shall be leviable accordingly” It is only when the possession of the property is transferred or agreed to be transferred to the purchaser before execution at the time of execution or after the execution of such agreement, then such agreement shall be deemed to be a conveyance. In the present case, the possession was not transferred to the respondent no.1 nor was it agreed to be transferred before the conveyance because admittedly, the property was in possession of a tenant and the possession has in fact been transferred by the petitioner to the respondent no.2 perhaps, in breach of the agreement to sell it to the respondent no.1. Consequently, Article 25 of the Bombay Stamp Act is not attracted. The trial court therefore committed no error in coming to the conclusion that the agreement was not covered by Explanation 1 to Article 25 of the Bombay Stamp Act. Writ Petition is rejected summarily. (D.G. KARNIK,J.)