SHYAMSUNDAR RADHESHYAM AGRAWAL & ANR. versus PUSHPABAI NILKANTH PATIL & ORS.
[2024] 9 S.C.R. 881, Supreme Court of India, 2024
Outcome: Dismissed (Dismissed)
Segment: Issues
[2024] 9 S.C.R. 881 : 2024 INSC 730
Shyamsundar Radheshyam Agrawal & Anr. 
v. 
Pushpabai Nilkanth Patil & Ors.
(Civil Appeal No. 10804 of 2024)
24 September 2024
[Pankaj Mithal and R. Mahadevan,* JJ.]
Issue for Consideration
Whether the appellants are liable to pay stamp duty and penalty 
on the agreements to sell executed prior to the sale deed executed 
in their favour.
Headnotes†
Maharashtra Stamp Act, 1958 – s.4 and Explanation 1 to 
Article  25 of Schedule I – Registration Act, 1908 – s.17 – 
Transfer of Property Act, 1882 – s.53A – Appellants instituted 
a suit seeking declaration and injunction – Defendant No.46 
took out an application u/ss. 33, 34 & 37 of the 1958 Act 
r/w. s.17 of the Registration Act, to impound the six original 
agreements for sale viz., Exh.145/3 dated 20.07.1994, Exh.145/9 
dated 20.07.1994, Exh.145/15 dated 12.10.1994, Exh.145/19 
dated 12.10.1994, Exh.145/23 dated 27.04.2006 and Exh.145/25 
dated 19.09.2004 produced by the appellants, so as to get 
them registered, on the premise that the said documents 
include a clause that the physical possession of the properties 
mentioned therein, was transferred to the purchasers; however, 
they were not duly stamped; and hence, the documents require 
the payment of stamp duty of the conveyance – Correctness:
Held: 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 53A 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 
* Author
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of the document shall be principal document – As noted, 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  – 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 by 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, this Court is 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. [Para 14]
Case Law Cited
Veena Hasmukh Jain v. State of Maharashtra [1999] 1 SCR 302 : 
(1999) 5 SCC 725 : 1999 SCC Online SC 78 – relied on.
List of Acts
Maharashtra Stamp Act, 1958; Registration Act, 1908; Transfer of 
Property Act, 1882.
List of Keywords
Stamp Duty; Penalty; Agreement to sell; Physical possession of 
properties; Conveyance; Sale deed; Section 4 of Maharashtra 
Stamp Act, 1958; Section 17 of Registration Act, 1908;  
Section 53 A of Transfer of
Property Act, 1882.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10804 of 2024
From the Judgment and Order dated 03.03.2021 of the High Court 
of Judicature at Bombay in WP No. 4695 of 2017
Appearances for Parties
Rohan Thawani, C. George Thomas, Ansh Mittal, Advs. for the 
Appellants.
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883
Shyamsundar Radheshyam Agrawal & Anr. v. 
Pushpabai Nilkanth Patil & Ors
Abdul Azeem Kalebudde, Dr. Rajiv Masodkar, Satyajeet Kumar, 
Anand Dilip Landge, Siddharth Dharmadhikari, Aaditya Aniruddha 
Pande, Bharat Bagla, Sourav Singh, Aditya Krishna, Ms. Preet 
S. Phanse, Adarsh Dubey, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
R. Mahadevan, J.
Leave granted.
2.	
This appeal is filed assailing the final order dated 03.03.2021 
passed by the High Court of Judicature at Bombay (hereinafter 
shortly referred to as “the High Court”) in Writ Petition No.4695 of 
2017, by which, the High Court has dismissed the said writ petition, 
thereby affirming the order dated 26.10.2016 passed by the Court 
of 4th Joint Civil Judge (Senior Division), Thane, (hereinafter shortly 
referred to as “the trial Court”) in allowing the application filed by 
the Defendant No.46 for impounding the six documents produced 
by the appellants herein.
3.	
Originally, the appellants instituted a suit in Special Civil Suit No.200 
of 2008 seeking declaration and injunction. Denying the plaint 
averments, the defendants filed their written statements. Thereafter, 
the Defendant No.46 took out an application under Sections 33, 
34 & 37 of the Maharashtra Stamp Act, 1958 r/w Section 17 of the 
Registration Act, to impound the six original agreements for sale 
viz., Exh.145/3 dated 20.07.1994, Exh.145/9 dated 20.07.1994, 
Exh.145/15 dated 12.10.1994, Exh.145/19
dated 12.10.1994, 
Exh.145/23 dated 27.04.2006 and Exh.145/25 dated 19.09.2004 
produced by the appellants, so as to get them registered, on the 
premise that the said documents include a clause that the physical 
possession of the properties mentioned therein, was transferred to 
the purchasers; however, they were not duly stamped; and hence, the 
documents require the payment of stamp duty of the conveyance. By 
order dated 26.10.2016, the trial Court allowed the said application, 
thereby impounding the documents and directing to send the same 
to the Collector of Stamp, Thane, for adjudication of stamp duty and 
penalty, if any, payable by the appellants. Aggrieved by the same,
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the appellants herein filed the aforesaid writ petition, which was 
dismissed by the High Court, by the order impugned in this appeal.
4.	
Referring to Section 4 of the Maharashtra Stamp Act, 1958 (hereinafter 
shortly referred to as “the Act”), the learned counsel appearing on 
behalf of the appellants contended that the agreements to sell in 
relation to the same immovable properties ultimately resulted into 
a sale deed in favour of the appellants and the said sale deed was 
also duly registered, upon payment of the required stamp duty and 
therefore, the prior agreements to sell are not required to be registered 
and stamped. Further, one of the agreements in respect of 2.550 sq. 
meters of land was executed in favour of Mira Bhayandar Municipal 
Corporation and hence, no separate stamp duty is required to be paid 
by the appellants. However, misinterpreting the said provision, the 
trial Court allowed the application filed for impounding the documents 
and directed to send the same to the Collector for adjudication of 
stamp duty and penalty, which was also erroneously affirmed by 
the High Court.
5.	
Per contra, the learned counsel appearing on behalf of the 
respondents submitted that on a detailed analysis of the agreements 
to sell, wherein, there was a specific clause about the transfer of 
physical possession to the purchasers therein, the courts below 
have rightly allowed the application filed for impounding
these 
documents and, therefore, the same need not be interfered with 
by this Court.
6.	
We have heard the learned counsel appearing for the respective 
parties and perused the material on record, more particularly, the 
documents in question.
7.	
The issue involved herein is, whether the appellants are liable to 
pay stamp duty and penalty on the agreements to sell executed 
prior to the sale deed executed in their favour, in respect of two 
properties viz., (i) S.No.165/4 admeasuring 2,550 sq. mtrs. and (ii) 
S.No.208/3 admeasuring 860 sq. mtrs. and S.No.208/4 admeasuring, 
5650 sq. mtrs.
8.	
In order to determine the stamp duty that is chargeable upon an 
instrument, the legal rule is that the real and true meaning of the 
instrument is to be determined by ascertaining the intention of the 
parties from the contents and the language employed in the whole
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instrument and the description or the nomenclature given to the 
instrument by the parties is immaterial.
9.	
According to the appellants, the sale deed having been executed in 
relation to the same immovable properties and stamp duty having 
been paid, the earlier agreements to sell which are part and parcel 
of the same transaction, got merged with the said sale deed and 
hence, separate stamp duty is not required to be paid on the earlier 
agreements to sell. To buttress the same, reliance was placed on 
Section 4 of the Act, which is quoted below for ready reference:
“4. Several Instruments used in single transaction of 
development agreement, sale, mortgage or settlement:
1) Where, in the case of any development agreement, sale, 
mortgage or settlement, several instruments are employed 
for completing the transaction, the principal instrument only 
shall be chargeable with the duty prescribed in Schedule – 
I for the conveyance, development agreement, mortgage 
or settlement, and each of the other instruments shall be 
chargeable with a duty of one hundred rupees instead of 
the duty (if any) prescribed for it in that Schedule.
2) The parties may determine for themselves which of 
the instruments so employed shall, for the purposes of 
sub-section (1), be deemed to be the principal instrument.
3) If the parties fail to determine the principal instrument 
between themselves,
then the officer before whom the 
instrument is produced may, for the purpose of this section, 
determine the principal instrument:
Provided that the duty chargeable on the instrument so 
determined shall be the highest duty which would be 
chargeable in respect of any of the said instruments 
employed.”
10.	 The aforesaid provision, especially, Section 4(1), makes it clear that 
where several instruments are executed for completing a transaction, 
the principal instrument alone shall be chargeable with duty prescribed 
in Schedule I. The proviso makes it clear that the duty chargeable on 
the instrument so determined shall be the highest duty which could 
be chargeable in respect of any of the said instruments forming part 
of the same transaction. Each of the other instruments is chargeable
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with a fixed duty. That apart, sub-section (2) also gives an opportunity 
to the parties to determine for themselves, which of the instruments 
shall be deemed to be the principal instrument. We shall therefore 
look into the documents in question and determine whether they are 
required to be stamped and registered.
11.	 The documents sought to be impounded at the instance of one of 
the defendants are:
(i)	
Exh.145/3 dated 20.07.1994 – agreement for sale-cum-
development executed by Vinayak Kashinath Gharat and others 
in favour of Naresh N. Jain, Sunita P. Jain and Kalawati N. Jain, 
which is on the stamp paper of Rs.20/-; 
(ii)	
Exh.145/9 dated 20.07.1994 – agreement for sale-cum- 
development executed by Vinayak Kashinath Gharat and others 
in favour of Naresh N. Jain, Sunita P. Jain and Kalawati N. Jain, 
which is on the stamp paper of Rs.20/-; 
(iii)	 Exh.145/15 dated 12.10.1994 executed by Naresh N. Jain and 
others in favour of M/s.Chedda Enterprises, which is on the 
stamp paper of Rs.20/-;
(iv)	 Exh.145/19 dated 12.10.1994 – agreement for sale-cum- 
development executed by Naresh N. Jain and others in favour 
of M/s.Chedda Enterprises, which is on the stamp paper of 
Rs.20/-; 
(v)	
Exh.145/23 dated 27.04.2006 – agreement for sale executed 
by M/s.Sunshine Builders and Developers in favour of the 
appellants, which is on the stamp paper of Rs.100/-; and 
(vi)	 Exh.145/25 dated 19.09.2004 – agreement for development
-cum- sale executed by M/s.Sunshine Builders and Developers 
in favour of the appellants, which is on the stamp paper of 
Rs.100/-.
12.	 On a reading of all these six documents, it could be seen that the 
instruments /documents were not forming part of a single transaction 
between the same parties and they were different transactions 
between different vendors and purchasers. Further, for several 
documents to form part of a single transaction, there must be a 
transaction in furtherance of which several other documents are 
executed to complete that transaction and then it becomes imperative
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to charge stamp duty on the principal instrument/document. The 
language used in the provision is very clear, whereby the stamp duty 
is on the instrument and not on the transaction. It will be useful to 
refer to Explanation 1 to Article 25 of Schedule I of the Maharashtra 
Stamp Act, which would read 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 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 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.”
13.	 It will be apropos to mention here that the agreements were not only 
between different parties but also were
executed during different 
periods, by which time the Explanation I to Article 25 of Schedule I 
underwent a change. The words “without executing the conveyance 
in respect thereof” was deleted with effect from 17.08.1994 by 
Maharashtra Act 38 of 1994. The above Explanation I makes it lucid 
that an agreement for sale is to be treated as a “conveyance” if either 
possession is handed over immediately or if it is agreed to be handed 
over within a particular time. A reading of the above Explanation I 
along with Section 4 makes it clear that the duty is levied only on 
the instrument and not on the transaction. This court, in Veena 
Hasmukh Jain v. State of Maharashtra (1999) 5 SCC 725 : 1999 
SCC Online SC 78 while dealing with the question as to whether
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the agreement to sell can be treated as document of conveyance, 
liable to stamp duty held as follows:
“4. On examination of these terms, the High Court took the 
view that the agreement in question could be construed to 
be a conveyance falling under Section 2(g) of the Bombay 
Stamp Act inasmuch as the right, title and interest in the flat 
stands transferred in favour of the purchaser on payment 
of instalments as provided therein.
5. The High Court also examined the scope of Explanation I 
to Article 25 of Schedule I of the Bombay Stamp Act and 
held that the same was attracted to the case. Under 
the agreement, there is an obligation to hand over the 
possession even before execution of a conveyance and, 
therefore, it was a “conveyance” for the purpose of duty 
payable under the Bombay Stamp Act and there was no 
obligation in the agreement to enter into a conveyance at 
a later stage and clearly it was a case which attracted the 
said Explanation. Handing over of the possession on the 
very date of execution was not relevant for determining 
the nature of the document. On that basis, the High Court 
upheld the stand taken by the State in the matter of levy 
of duty. Other questions raised in the writ petition are not 
the subject-matter of these appeals and, therefore, we do 
not advert to those questions. On the conclusion reached 
by the High Court, the writ petition stood dismissed.
6. The learned counsel appearing
for the appellants urged 
before us that the conclusion reached by the High Court 
either on the question of construction of the agreement 
amounting to a “conveyance” or on the applicability of 
Explanation I to Article 25 of Schedule I to the Bombay 
Stamp Act is incorrect. It was submitted that the agreement 
in question had been executed only in terms of Section 4 
of the MOF Act and that under the scheme of the Act, a 
deed of conveyance had to be drawn in terms of Section 11 
thereof. Therefore, it was submitted that the document 
executed in terms of Section 4 of the MOF Act cannot 
be construed to be a “conveyance”. He also submitted 
that under the same Act, duty can be levied only on the 
“instrument” and not on any “transaction”. Here, in the
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present case, by Explanation I to Article 25 of Schedule I, 
what has been done is to provide for levy of duty on a 
“transaction”, namely, handing over possession and not 
on the “instrument” as such and hence the provision is 
ultra vires the Constitution.
7. Under Entry 44 of List III-Concurrent List of the Seventh 
Schedule to the Constitution, any State as well as the 
Central Government can levy stamp duties other than 
duties or fees collected by means of judicial stamps, but 
not including rates of stamp duty and in respect of such 
instruments mentioned in Entry 91 of List I-Union List 
of the Seventh Schedule to the Constitution. A duty is 
leviable under Section 3 of the Bombay Stamp Act which 
indicates the instruments executed in the State or those 
outside the State but brought into the State for the first 
time relating to any property situate or to any matter or 
thing done or to be done in the State shall be chargeable 
to stamp duty prescribed under the Bombay Stamp Act. 
Article 25 of Schedule I refers to conveyance and the 
amount of conveyance as sought to be explained by the 
Explanation. Explanation I to Article 25 of Schedule I to 
the Bombay Stamp Act reads as follows:
“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 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:
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,
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shall be adjusted towards the total duty leviable on the 
conveyance.”
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 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 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.
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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
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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.”
14.	 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 53A 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 parties to determine as to which of the document 
shall be principal document. 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. 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 by 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.
15.	 Taking note of the facts and circumstances of the case and legal 
position, the trial Court rightly observed that the subsequent sale 
deed cannot be construed as a principal transaction and the 
agreements to sell would be treated as the principal conveyance as 
per Explanation I of Article 25 of Schedule-I of the Act and impounded 
all these documents and directed to send the same to the Collector 
for adjudication of stamp duty and penalty. After, a detailed analysis,
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the High Court held that no case for interference was made out by 
the appellants, which, we affirm, to be correct. 
16.	 In addition, we wish to further record that the second proviso to 
Article 25 only states that if the stamp duty is already paid or recovered 
on the agreement to sale, then the same shall be deducted while 
computing the stamp duty payable when the sale deed is executed; 
the proviso does not contemplate a situation similar to this case, 
where the document ought to have been registered with payment of 
stamp duty on the agreement for sale initially and only the balance, 
on the deed of sale after deduction of the duty already paid ought 
to have been collected. Since, the state cannot recover by way of 
stamp duty in excess of what it is entitled to, the recovery shall 
be restricted only to the extent of difference in stamp duty and the 
entire penalty from the date of execution of the agreement for sale 
till the date of payment of stamp duty. Needless to say, that until the 
defect is cured by satisfying the requirements under Section 34, the 
documents impounded cannot also be used in evidence.
17.	 In view thereof, we find no reason to interfere with the orders passed 
by the Courts below. Accordingly, this appeal fails and is dismissed. 
Pending application(s), if any, shall stand closed. 
Result of the Case: Appeal dismissed.
†Headnotes prepared by:
Ankit Gyan