As per case facts, the plaintiffs (heirs of the original deceased plaintiff) sought specific performance for a property, arguing that a prior sale deed to the deceased defendant was for ...
6-SA-253-2008 .docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 253 OF 2008
Dnyanoba Bhika Sorte,
Age : 36 Yrs, Occ : Service,
R/o. Behind Sumit Agency,
Akurdigaon, Pune – 35.
(Legal Heir of deceased respondent no.9)
(Amendment carried out as per court order
dt. 17.09.2021 & 09.07.2025) ...Appellant
(Org.Def.No.2)
VERSUS
1. Sudam Dnyanoba Jadhav
Age : 40 Yrs, Occ : Agriculture
Deceased Thr. Lrs.
1-a. Mangala Sudam Jadhav
Age : 55 Yrs, Occ : Household,
1-b. Yogesh Sudam Jadhav
Age : 35 Yrs, Occ : Agriculturist,
1-c. Nilesh Sudam Jadhav
Age : 32 Yrs, Occ : Agriculturist,
No. (1-a) to (1-c) R/o. Nare,
Tal. Mulshi, Dist. Pune.
2. Shankar Dnyanoba Jadhav
Age : 38 Yrs, Occ : Agriculture,
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3. Phulbai Dnyanoba Jadhav,
Age : 65 Yrs, Occ : Agriculture
(Deceased Thr. Lrs. R1, R2, R4 to R7)
No. 1 to 3, all are r/o. Village Nere,
Tal. Mulshi, Dist. Pune.
4. Jamnabai Mohan Garade,
Age : 41 Yrs, Occ : Household work,
R/o. Adhale, Tal. Maval, Dist. Pune.
5. Kunda Chetrum Ghotkule
Age : 32 Yrs, Occ : Household,
R/o. Adhale, Tal. Maval, Dist. Pune.
6. Manda Pandurang Bhadale
Age : 30 Yrs, Occ : Household,
R/o. Nere, Tal. Mulshi, Dist. Pune.
7. Sindhu Balkrishna Garade,
Age : 28 Yrs, Occ : Household,
R/o. Dhamane, Tal. Maval,
Dist. Pune.
8. Shivaji Bhika Sorte
Age : 38 Yrs, Occ : Service,
R/o. Mayurbag Colony, Near Ganesh
Temple, Thergaon, Pune-33.
Deceased Thr. Lrs.
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8A. Ranjana Shivaji Sorte
Age : 45 Yrs, Occ : Household.
8B. Kunal Shivaji Sorte
Age : 32 Yrs, Occ : Service,
8C. Rahul Shivaji Sorte
Age : 32 Yrs, Occ : Service
No. 8A to 8C r/o. S. NO. 18/03,
House No. 433/2, Dange Chowk,
Ekta Colony, Ganesh Nagar,
Thergaon, Pune 411 033.
9. Heerabai Bhika Sorte
Age : 57 Yrs, Occ : Household,
R/o. Balewadi, Tal. Haveli,
Dist. Pune.
(Since Decd. Thr. Lrs.)
9A. Shivaji Bhika Sorte
Age : 42 Yrs, Occ : Service,
Near Ganesh Temple,
Morgaon, Pune 33.
9B. Samindra Mahukar Takale
Age : 46 Yrs, Occ : Household,
R/o. Balewadi, Tal. Haveli,
Dist. Pune.
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9C. Sangeeta Bajirao Devkar
Age : 31 Yrs, Occ : Household,
R/o. Devkarwadi of Ghotwade,
Tal. Mulshi, Dist. Pune.
10. Samindra Madhukar Tokale,
Age : 42 Yrs, Occ : Household,
R/o. Balewadi, Tal. Haveli,
Dist. Pune.
11. Sangeeta Bajirao Devkar
Age : 27 Yrs, Occ : Household,
R/o. Devkarwadi, of Ghotwade,
Ghotwade, Tal. Mulshi,
Dist. Pune. ...Respondents
Mr. Nikhil Wadikar a/w. Mr. Niranjan Kandade for the
appellant.
Mr. S. R. Firodiya for respondent nos. 1(a) to 1(c), 2, 4 to 7.
CORAM : GAURI GODSE J
RESERVED ON: 12
th
FEBRUARY 2026
PRONOUNCED ON: 8
th
JUNE 2026
JUDGMENT:
1. The appellant is the original defendant no. 2, who
expired during the pendency of this second appeal, and his
heirs have been brought on record as appellants.
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Respondent nos. 1 to 7 are the heirs of the original deceased
plaintiff, who are plaintiff nos. 1 to 7. The deceased appellant
and respondent nos. 8 to 11 are heirs of the original
deceased defendant, who are the original defendant nos. 1
to 5.
2. The trial court decreed the suit for specific performance
of contract by directing the defendants to execute the sale
deed in favour of the heirs and legal representatives of the
original deceased plaintiff. After the execution of the sale
deed, the plaintiffs' possession is declared to be confirmed
as that of the owners. The trial court’s decree was
challenged by the defendants. However, the first appellate
court has dismissed the appeal and confirmed the trial
court’s decree.
THE PLAINTIFFS’ CASE:
3. The plaintiffs prayed for specific performance of the
contract in respect of survey no. 215 admeasuring 2 acres 10
gunthas, which was allotted to Gat No. 122, Hissa No. 2. The
deceased plaintiff's mother was the sister of the deceased
defendant. It is the plaintiffs’ case that, as the deceased
plaintiff’s mother was unwell and was in need of money, the
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deceased defendant financially assisted her and also helped
the deceased plaintiff financially with cultivating the suit
property. The suit property was owned by the plaintiffs. For
the security towards the financial, help, the deceased plaintiff
executed a document of sale with a condition of
reconveyance in favour of the defendants. Accordingly, the
name of the deceased defendant (“Bhika Sorte”) was entered
in the revenue record. However, the suit property always
remained in the possession of the plaintiffs.
4. Despite returning the amount with interest, Bhika Sorte
refused to execute the reconveyance deed; accordingly, the
plaintiffs issued a legal notice calling upon him to execute it.
Thereafter, an agreement dated 25
th
January 1996 (“suit
agreement”) was executed between the deceased plaintiff
and Bhika Sorte for a total consideration of Rs. 5,000/-
towards the reconveyance of the suit property to the
deceased plaintiff. Accordingly, an amount of Rs. 3,000/- was
paid to the deceased defendant, that is, Bhika Sorte. The
balance amount of Rs.2,000/- was agreed to be paid at the
time of registration of the document.
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5. The deceased defendant unfortunately expired before
the execution of the sale deed. The plaintiff, therefore,
requested the defendants to execute the document.
However, they refused; hence, the suit for specific
performance was filed, offering to pay the balance amount.
According to the plaintiffs, possession of the suit property
has always been with them. Hence, they prayed for
confirmation of possession as owners after the execution of
the sale deed.
DEFENDANTS’ CASE:
6. Defendant nos. 1, 2 and 3 and Defendant nos.4 and 5
filed their separate written statements and denied the suit
claim. It was contended that not all the heirs of Bhika Sorte
were added as parties. Hence, the suit was bad for non-
joinder of necessary parties. They denied the execution of
the suit agreement. It was contended by the said defendants
that the sale deed executed in favour of Bhika Sorte by the
deceased plaintiff was an absolute sale and nothing was
agreed to be reconveyed. The said defendants, therefore,
denied the plaintiff’s claim of execution of the agreement and
the plaintiff’s theory of reconveyance. It was further
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contended by the said defendants that the suit property was
always in their possession and there was no question of any
reconveyance, as no such agreement was executed. The
said defendants also denied that Bhika Sorte signed the said
document. They contended that in 1961, the suit property
was sold to the defendants by absolute sale, and not as
security. According to the plaintiffs, the document was
executed in favour of the deceased defendant to avail
financial assistance, but they took no steps from 1962 to
1978. Thus, there was no cause of action for seeking any
relief of specific performance against the defendants.
FINDINGS BY BOTH COURTS:
7. The trial court decreed the suit, holding that the suit
agreement entered into between Bhika Sorte and the
deceased plaintiff was an agreement for sale. The trial court
further held that, based on the terms and conditions of the
suit agreement, the plaintiffs had paid Rs. 3,000/- to the
deceased Bhika, and he had agreed to reconvey the property
to the plaintiffs on payment of the balance consideration of
Rs, 2000/-. The plaintiffs’ readiness and willingness to
perform the contract by making the balance payment of
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consideration was held in favour of the plaintiffs. Hence, the
plaintiffs were held entitled to specific performance of the suit
agreement.
8. The trial court also recorded the findings that the
plaintiffs were always in possession of the suit property.
Hence, the plaintiffs were held entitled to a declaration
confirming their possession as owners upon execution of the
sale deed. In an appeal preferred by the defendants, the trial
court’s findings are confirmed, and the plaintiffs are held
entitled to the sale deed on payment of the balance
consideration. The theory of possession as accepted by the
trial court is also confirmed by the first appellate court.
SUBSTANTIAL QUESTIONS OF LAW TO BE DECIDED IN
THIS SECOND APPEAL:
9. The second appeal is admitted on 16
th
April 2008 by
framing the following substantial question of law :-
“Whether the Courts have considered and dealt with the
admissions given by the witnesses of the original plaintiff to
the effect that the agreement for sale in question was a
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hand-written document and the effect of non consideration of
these admissions ?”
10. When the second appeal was substantially heard on
17
th
September 2025, learned counsel for the appellants
submitted that in addition to the question of law already
framed, the second appeal raised another substantial
question of law on the document at Exhibit ‘59’ which is
unstamped. Hence, this court, on 17
th
September 2025,
framed an additional substantial question of law in view of
the proviso of sub-section (5) of Section 100 of the Civil
Procedure Code, 1908 (“CPC”). The additional substantial
question of law reads as under:-
“Whether the document at Exhibit-59 was admissible and
whether it could have been acted upon by ignoring Section
34 of the Bombay Stamps Act read with Article 25 of
Schedule I of the Act ?”
SUBMISSIONS ON BEHALF OF THE APPELLANTS:
11. Learned counsel for the appellants submitted that the
document relied upon by the plaintiffs could not have been
accepted as a concluded contract. The suit property in
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respect of which the plaintiffs seek specific performance is
not described in the suit agreement. Though the agreement
was a handwritten document, as contended by the plaintiffs,
no such document was produced on record. The terms and
conditions pleaded by the plaintiffs were not proved to
constitute a concluded contract. The plaintiffs failed to plead
and prove the continuous readiness and willingness to
perform their part of the contract. Thus, even the equities in
favour of the plaintiffs are not proved, and there was no
evidence on record to show that any such agreement for
reconveyance was executed.
12. The plaintiffs’ witnesses Nos. 1 and 2 admitted in
cross-examination that a handwritten document was
executed. However, the document that was relied upon by
the plaintiffs was a typed document. Hence, in view of the
admissions made by the plaintiffs during cross-examination,
the typed document relied upon by the plaintiffs could not
have been accepted as a valid document between the
parties for the reconveyance of the suit property, as
contended by the plaintiffs.
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13. The findings recorded by both courts based on the
agreement produced by the plaintiffs at Exhibit ‘59’ are
perverse as the contents of the said document were never
proved by any supporting evidence. The sale deed of 1961 at
Exhibit ‘117’ executed in favour of Bhika Sorte by the
deceased plaintiff (Dnyoba) is not under challenge. Hence,
the defendants’ ownership was absolute, and there was no
reason to execute an agreement for reconveyance. The
possession was handed over to the defendants pursuant to
the sale deed at Exhibit ‘117’, which also recorded the
handover of possession. Hence, the document at Exhibit ‘59’,
relied upon by the plaintiffs, could not have been accepted
for any reconveyance, nor could the plaintiffs’ contention be
that the possession was always with them.
14. Learned counsel for the appellants submitted that,
even otherwise, the plaintiffs’ claim is based on an
unregistered document to contend that the plaintiffs are in
possession of the property. Hence, an unregistered
document would not be admissible as the possession
handed over in part performance of the contract is
compulsorily registrable. The document relied upon by the
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plaintiffs is on a Rs. 20/- stamp paper. Hence, the document
is not sufficiently stamped and, therefore, in view of Section
34 of the Maharashtra Stamp Act, 1958 (“Stamp Act”), it
cannot be acted upon. Hence, according to the learned
counsel for the appellants, the consequences under Section
34 of the Stamp Act, that an unstamped document cannot be
acted upon, would mean that the plaintiffs cannot claim any
protection based on an unstamped document.
15. Learned counsel for the appellants submitted that the
plaintiffs’ claim to be in possession is based on the
document, which is unstamped. Except for the unregistered
and unstamped document, the plaintiffs have produced no
evidence to claim possession. To support his submissions,
learned counsel for appellants relied upon the decision in
Yadarao Shrawane Vs Nanilal Shah
1
. Hence, there was no
reason for both courts to grant a decree of specific
performance and confirm the plaintiffs’ possession as
owners. Learned counsel for the appellants, therefore,
submits that both the questions of law must be answered in
favour of the appellants and the impugned judgments and
decrees be set aside.
1(2002) 6 SCC 404
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SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
16. Learned counsel for the respondents, i.e. original
plaintiffs, submitted that the document at Exhibit ‘117’ dated
25
th
October 1961, which is a sale deed executed by
Dnyanoba, i.e. original plaintiff, in favour of the deceased
defendant, i.e. Bhika. During the pendency of the suit,
Dnyanoba expired, and the present respondents were
brought on record as the heirs and legal representatives. The
suit agreement for reconveyance was executed by the
deceased, Bhika, in favour of Dnyanoba; the original
document is produced on record and admitted in evidence as
Exhibit ‘59’. Hence, at this stage, there is no question of
raising any objection on the admissibility of the document on
the ground that it is unstamped.
17. So far as the admissions in cross-examination of the
plaintiffs’ witnesses relied upon by the learned counsel for
the appellants are concerned, they are stray admissions that
cannot be read as stand-alone admissions, ignoring other
material evidence on record accepted by both the courts.
The stray admissions of the plaintiffs that the document at
Exhibit ‘59’ was a written document cannot be interpreted to
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mean that the plaintiffs admitted that the document at Exhibit
‘59’, i.e. the suit agreement, was a handwritten document
and not a typed document. The suggestion in the cross-
examination was with reference to the document being in
writing. Thus, the plaintiffs’ witnesses' answers at the highest
mean that it was a typewritten document. The issue raised by
the learned counsel for the appellants, as to whether the
document is handwritten or typewritten, would amount to
reappreciation of the evidence, which is not permissible
under Section 100 of the CPC.
18. The trial court framed the specific issue on whether the
plaintiffs proved that the deceased defendant, i.e. Bhika
Sarote, had agreed to sell the suit land to the deceased
plaintiff by executing the document on 25
th
January 1996.
The findings recorded by the trial court are in paragraph 22
of the judgment, which refers to the entire oral evidence. The
findings recorded by the trial court indicate that there was no
such specific admission by the plaintiffs, which means that
the document at Exhibit ‘59’ was handwritten.
19. Hence, the conclusions recorded by the trial court and
the first appellate court are on correct appreciation of the oral
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evidence on record. There is no perversity in the findings
recorded by both courts on the document at Exhibit ‘59’,
which was accepted as a typewritten document. Hence, the
impugned judgments and decrees do not require any
interference on the first question of law framed at the time of
admission of the second appeal, as it is not a substantial
question of law and is based on an appreciation of the
evidence.
20. Learned counsel for the respondents further submitted
that the possession was not handed over to the plaintiffs in
furtherance of the agreement at Exhibit ‘59’. The plaintiffs’
prayer is for specific performance of the agreement at Exhibit
‘59’. Therefore, neither stamp duty was payable on the
document, nor was it required to be registered. Hence, at the
stage of the second appeal, there would not be any question
of deciding the admissibility of the document on the ground
that it was unstamped.
21. After examining the evidence on record, the trial court
recorded findings that the plaintiffs had always been in
possession of the suit property. It was only on the execution
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of the sale deed that the plaintiffs’ possession was required
to be confirmed as owners.
22. To support his submissions, learned counsel for the
respondents relied upon the decisions in Sham Pundlalik
Dhumatkar Vs. Pushpa Mohanlal Talreja and Ors
2
, C. P.
Francis Vs. C. P. Joseph and Ors
3
and Suresh Lataruji
Ramteke Vs. Sumanbai Pandurang Petkar and Ors
4
,
Javer Chand Vs. Pukhraj Surana
5
, Mahendra Mahadeo
Deshbratar and Ors. Vs. Kailash Bhauraoji
Chandrakhade
6
, Damodar Vs. State of Rajasthan
7
,
Ramachandra Reddy Vs. Ramulu Ammal
8
.
SUBMISSIONS IN REJOINDER ON BEHALF OF THE
APPELLANTS :
23. In response to the arguments made on behalf of the
respondents, learned counsel for the appellants submitted
that, according to the defendants, the possession was
always with the defendants in view of the sale deed at Exhibit
‘117’. Therefore, the burden was upon the plaintiffs to prove
22016 (5) ABR 552
32025 SCC OnLine 1896
4(2023) 17 SCC 624
51961 SCC OnLine SC 22
62014 (5) Mh.L.J. 807
7(2004) 12 SCC 336
82025 SCC OnLine SC 877
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that the possession was with them. Hence, in view of the
contentions raised on behalf of the plaintiffs, the provision of
Article 25 of Schedule 1 of the Stamp Act would apply, and
the plaintiffs would be under an obligation to have the
document stamped and registered to claim possession in
furtherance of that contract. He further points out that the
suggestion in the cross-examination that it was a typewritten
document is based on the plaintiff’s pleadings. Hence, when
the plaintiffs seek specific performance based on a
handwritten document and produce the typewritten
document, there would be no question of accepting the
document produced on record as the valid document
evidencing a concluded contract between the parties.
24. The decisions relied upon by the learned counsel for
the respondents are on the admissibility of the document.
However, the additional question of law framed by this court
concerns the consequences of acting upon an unstamped
document under Section 34 of the Stamp Act. Learned
counsel for the appellants, therefore, submits that both the
questions of law must be answered in favour of the
appellants. However, even if the first question of law is held
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to be based on an appreciation of the evidence, the second
appeal deserves to be allowed on the additional substantial
question of law, which is based on the applicability of the
provisions of Section 34 of the Stamp Act. He, therefore,
submits that the second appeal deserves to be allowed.
LEGAL PRINCIPLES:
25. The decision of the Apex Court relied upon by the
learned counsel for the respondents in C P Francis lays
down the principles for framing an additional substantial
question of law. It is held that the High Court must be
satisfied that the new question is a substantial question of
law and not a mere legal plea, and that the court should
record reasons to frame an additional question of law. In the
present case, I have already recorded reasons for framing
the additional question of law. Learned counsel for the
respondents had waived notice on the additional substantial
question of law. Both parties were granted time to make
submissions on the additional question of law. Accordingly,
the parties have made their respective submissions.
26. As far as the decision in Suresh Ramteke is
concerned, it pertains to the procedure to be followed by a
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second appellate court. The legal principles on interference
with the findings of fact or reappreciation of evidence are
summarised by the Apex Court in the said decision. The
Apex Court referred to the well-established legal principles in
the decision of Santosh Hazari v. Purushottam Tiwari
9
,
and further held that the substantial question of law framed
by the court must be answered at the time of hearing, and if it
is found that no substantial question of law arises for
consideration, the court is required to record the reasons for
the same.
27. In view of the different facts of the present case and the
substantial questions of law framed in this second appeal,
the decisions in Javer Chand and in Damodar, are not
applicable to decide the controversy in the present case. In
Mahendra Deshbratar, this court held that once a document
is admitted in evidence and marked as an exhibit without
objection in the trial court, the issue cannot be reopened
thereafter. In Sham Dhumatkar, this court held that a suit for
specific performance based on an unregistered agreement
for sale would be maintainable.
28.In Ramachandra Reddy, the Apex Court held that the
9(2001) 3 SCC 179
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jurisdiction to interfere in concurrent findings is limited. The
Apex Court reiterated the legal principles regarding the
exercise of jurisdiction under Section 100 of the CPC,
summarised by the Apex Court in Suresh Lataruji
Ramteke and Santosh Hazari as under:
“(a) Not previously settled by law of land or a binding
precedent.
(b) Material bearing on the decision of case; and
(c) New point raised for the first time before the High
Court is not a question involved in the case unless it
goes to the root of the matter.”
29. In Angadi Chandranna, the Apex Court held that only
if the first appellate court has failed to consider the law or the
evidence, has considered inadmissible evidence, or has
acted without evidence, can the second appellate court
exercise powers under Section 100 of the CPC. It is further
held that Section 103 permits the High Court to go into the
facts only when the courts below have not determined or
rendered any finding on a crucial fact, or when, after deciding
the substantial question of law, the facts of a particular case
demand re-determination. Therefore, it is held that there
must first be a decision on the substantial question of law, to
which the facts must be applied, to determine the issue in
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dispute and when the first appellate court in exercise of its
jurisdiction has considered the entire evidence and rendered
a finding, the High Court cannot re-appreciate the evidence
just because another view is possible, when the view taken
by the first appellate court is plausible and does not suffer
from vice in law.
30.In Yadarao Dajiba Shrawane, relied upon by the
learned counsel for the appellants, the Apex Court held that
when the judgment of the final court of fact is based on
misinterpretation of documentary evidence or on
consideration of inadmissible evidence or on ignoring
material evidence, the High Court in second appeal is
entitled to interfere with the judgment. It is further held that
the admission of parties or their witnesses is a relevant piece
of evidence and should be given due weight by courts, and a
finding of fact ignoring such admissions or concessions is
vitiated in law and can be interfered with by the High Court in
second appeal.
31.In view of the additional substantial question of law,
both parties were called upon to make their submissions on
the decisions of this court in Dharati Developers v.
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Madhukar Atmaram Patil
10
, and the decisions referred
therein, that is, Balwantgir Ganpatgir Giri through his LRs
Nanibai wd/o Balwant Giri v. Manasi Construction and
Developers
11
, and Bhupendrabhai Rambhai Patel v. Sau.
Lilabai Mahadeorao Labde
12
.
32.Learned counsel for the appellants submitted that
possession of the plaintiffs is based on the document Exhibit
59; therefore, it would attract payment of stamp duty. The
counsel for the respondents submitted that possession was
neither handed over in furtherance of the document at Exhibit
59 nor was it to be handed over pursuant to the said
document; therefore, the document will not be chargeable
with stamp duty.
33.This court in Dharati Developers referred to and
followed the legal principles settled in Balwantgir Ganpatgir
Giri and Bhupendrabhai Rambhai Patel and held that
when the Memorandum of Understanding shows that it is not
an agreement, but is just an understanding arrived at
between the parties by virtue of which no possession or title
is delivered and the possession is agreed to be delivered and
102017 SCC OnLine Bom 9810
112006 (5) Mh.L.J. 306
122010 (5) Mh.L.J. 990
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is to be delivered only at the time of agreement of sale it
cannot be considered as conveyance within the meaning of
the said Explanation-I to Article 25 of schedule I of the Stamp
Act.
34.In Balawantgir Ganpatgir Giri, this court held that
when the agreement was purely an agreement for sale, with
no recital of delivery of possession under the agreement, it
cannot be construed as a conveyance within the meaning of
Explanation I to Article 25 of Schedule I to the Stamp Act.
35. In Bhupendrabhai Rambhai Patel, the document in
question contained a recital that possession of the suit field,
as per measurement, was given by the defendant to the
plaintiff, and the plaintiff had accepted it; hence, it was held
to be chargeable to stamp duty as per Explanation I to Article
25 of the Stamp Act. It was therefore held that Section 34 of
the Stamp Act specifically states that such an instrument
chargeable with duty cannot be admitted in evidence for any
purpose and it cannot be acted upon by such person and
prohibits its use. Hence, the trial court’s order impounding
the document was upheld.
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CONSIDERATION OF SUBMISSIONS:
36. In light of the legal principles discussed in the
paragraphs above, I have carefully perused the entire record
and proceedings to consider the rival submissions. The suit
property admittedly was an ancestral property of the
deceased plaintiff. According to the plaintiffs, the sale deed in
favour of the deceased Bhika was executed solely as
security for the financial assistance provided by him. Hence,
at the time of execution of the sale deed, the rights to
reconvey and repurchase were agreed upon. With these
specific pleadings, the plaintiffs claimed to be always in
possession and further prayed for reconveyance based on
the suit agreement, which, according to the plaintiffs, was
executed by the deceased defendant, that is, Bhiku Sorte, by
accepting Rs. 3,000/- as an earnest amount. It was agreed
between the deceased plaintiff and the deceased defendant
that the balance of Rs. 2,000/- would be paid at the time of
registration of the sale deed. However, due to the death of
Bhiku Sorte, the sale deed could not be executed.
37. To support the contentions on the suit agreement
between the parties for reconveyance, it is pleaded by the
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plaintiffs that the deceased plaintiff had repaid an amount of
Rs. 1800/- which was availed by way of financial assistance
by the deceased defendant. However, for the interest amount
payable to the deceased defendant up to 1978, the
reconveyance was not executed immediately. Based on
these pleadings, the plaintiffs contended that they would be
entitled to reconveyance based on the suit agreement.
Therefore, it is not pleaded by the plaintiffs that they were put
in possession in pursuance of or in furtherance of the terms
and conditions of the suit agreement, i.e. agreement dated
25
th
January 1996. Since the plaintiffs never claim to be in
possession under the terms and conditions of the suit
agreement, there is no question that the document required
to be registered or stamped. The plaintiffs' prayer is for
confirmation of their possession as owners upon execution of
the sale deed, as physical possession has always been with
them.
38. A party is entitled to claim specific performance even of
an oral agreement, provided the concluded contract is
pleaded and proved. Therefore, a simple agreement for sale
need not be stamped or registered. In the present case, the
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plaintiffs seek specific performance of an agreement dated
25
th
January 1996 on the ground that the possession was
always with the plaintiffs independent of the said agreement
and the deceased defendant had agreed to execute the sale
deed in favour of the deceased plaintiff; hence, there would
not arise any question of payment of stamp duty as sought to
be argued on behalf of the appellants.
39. The trial court held that the document at Exhibit 117
constituted an outright sale in favour of Bhika Sorte and not a
sale subject to a repurchase condition. The trial court has
examined oral evidence in detail. The oral evidence of PW-3
and PW-4, who were the attesting witnesses to the suit
agreement at Exhibit 59, was examined in detail by the trial
court for the purpose of admitting the document in evidence,
and their contents were accepted as true and correct. The
trial court also considered the suggestions regarding whether
the agreement is handwritten or typed. To examine the
objection to the signature of Bhika Sorte on the document,
the trial court has compared the signature on the admitted
document at Exhibit 117, that is, the sale deed in favour of
Bhika Sorte, the nomination documents at Exhibits 122 and
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123 regarding gratuity and insurance and held that the
document at Exhibit 59 is signed by Bhika Sorte.
40. Thus, the contents of the document Exhibit 59 were
accepted to be correct, which records that the possession
was always with the deceased plaintiff. The trial court
examined the revenue record, which showed the deceased
plaintiff’s name in the cultivation column. The trial court has
discussed in detail the oral evidence of the plaintiffs and the
defendants and held that the plaintiff’s evidence in support of
their possession has not been rebutted by the defendants.
41. The first appellate court, being the last fact-finding
court, has reexamined the entire evidence. The judgment in
the appeal shows that the first appellate court reappreciated
all the evidence. While confirming the trial court’s findings on
the acceptance of Bhika’s signature on Exhibit 59, the first
appellate court has discussed in detail the documents at
Exhibits 117, 122 and 123. Nothing is shown in this second
appeal to point out any perversity in the findings recorded by
both courts in appreciating the evidence, except for referring
to the stray admissions regarding the questions put to the
plaintiffs’ witnesses regarding the document being
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handwritten. Those admissions are examined by both the
courts.
42. I have perused the evidence and the findings in respect
thereof. The answers given by the plaintiffs’ witnesses to the
questions about the document being handwritten show that,
according to them, it was a written document. Therefore, I do
not find any substance in the objections raised that the
plaintiffs’ case was that the document was handwritten and
that what was relied upon was a typewritten document. From
the pleadings and evidence, it is clear that, according to the
plaintiffs, the document at Exhibit 59 was a written document,
meaning thereby a document in writing.
43. As far as the issue of possession is concerned, both
courts have held that the plaintiffs were always in possession
and that, despite the document at Exhibit ‘117’, the
possession was never handed over to the defendants. The
defendants have failed to prove that the deceased defendant
was at any time in possession of the suit property. In view of
the concurrent findings of fact, the issue of possession is not
required to be examined in this second appeal, as no
question of law arose with reference to the findings of
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possession. The main controversy, therefore, to be decided
in the present case pertains to the first question of law
regarding the admissions relied upon by the appellants on
whether the document is handwritten or typed and whether
the appreciation of evidence by both courts is correct.
44. Learned counsel for the appellants has sought to
bifurcate the statements on the ground that the admissions
pertain to the handwritten document and not a typed one.
However, a careful perusal of the pleadings and the entire
evidence shows that the plaintiffs contended that the
document was in writing. Thus, from the pleadings and
evidence, it appears that there was no controversy as to
whether the document is typed or handwritten. Both courts
have therefore rightly accepted the document as a written
document of contract. The impugned judgments and
decrees, based on a correct appreciation of the evidence,
would not require any interference on the first question of law
framed at the time of admission of the second appeal.
45. So far as the additional question of law is concerned, it
pertains to the applicability of Section 34 of the Stamp Act,
which reads as under :-
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“34. 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 such person
or by any public officer unless such instrument is duly
stamped or if the instrument is written on sheet of paper with
impressed stamp such stamp paper is purchased in the
name of one of the parties to the instrument.
Provided that, -
(a)any such instrument shall, subject to all just
exceptions, be admitted in evidence on payment of,
(i) the duty with which the same is chargeable, or in the
case of an instrument insufficiently stamped, the amount
required to make up such duty, and
(ii) a penalty at the rate of 2 per cent of the deficient
portion of the stamp duty for every month or part thereof,
from the date of execution of such instrument:
Provided that, in no case, the amount of the penalty shall
exceed four times the deficient portion of the stamp duty.
(b)where a contract or agreement of any kind is effected
by correspondence consisting of two or more letters and any
one of the letters bears the proper stamp; the contract or
agreement shall be deemed to be duly stamped;
(c)nothing herein contained shall prevent the admission of
any instrument in evidence in any proceeding in a Criminal
Court, other than a proceeding under Chapter IX or Part D of
Chapter X of the Code of Criminal Procedure, 1973;
(d)nothing herein contained shall prevent the admission of
any instrument in any Court when such instrument has been
executed by or on behalf of the Government or where it
bears the certificate of the Collector as provided by section
32 or any other provision of this Act;
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(e)nothing herein contained shall prevent the admission of
a copy of any instrument or of an oral admission of the
contents of any instrument, if the stamp duty or a deficient
portion of the stamp duty and penalty as specified in clause
(a) is paid.”
46. The plain reading of Section 34 indicates that it
pertains to the admissibility of a document in evidence or to
acting upon it, which requires payment of stamp duty.
Therefore, the additional substantial question of law goes to
the root of the matter; hence, it is considered in reference to
the applicability of Section 34 to the document at Exhibit 59.
In the present case, Exhibit ‘59’ is an agreement for sale.
Learned counsel for the appellants relied upon Explanation I
to Article 25 of Schedule 1 of the Stamp Act to support his
submission that the document at Exhibit 59 would attract
stamp duty as the plaintiffs claim to be in possession
pursuant to the said document and because it is unstamped,
it cannot even be acted upon in support of the theory of
possession. Therefore, it is necessary to understand the
meaning of Explanation I to Article 25 of Schedule 1 of the
Stamp Act. The relevant extract of the Explanation I reads as
under:
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“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 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 32A 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.
Provided also that where proper stamp duty is paid on a
registered agreement to sell an immovable property, treating
it as a deemed conveyance and subsequently a conveyance
deed is executed without any modification, then such a
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conveyance shall be treated as other instrument under
section 4 and the duty of one hundred shall be charged”
47. Thus, from the wordings the aforesaid ‘Explanation I’ it
is clear that for the purpose of payment of stamp duty, an
agreement to sell immovable property is deemed to be a
conveyance only in the event of (i) handing over of
possession before execution of such an agreement as part
performance of such an agreement or (ii) handing over of
possession at the time of execution of such an agreement as
part performance of such an agreement, or (iii) handing over
of possession after execution of the agreement in
furtherance of such an agreement. In simple words, when
only possession is sought to be transferred in pursuance of
or in furtherance of an execution of an agreement to sell with
a requirement to execute a separate deed for conveying title
or if possession and title, both is sought to be transferred in
pursuance of or in furtherance of an agreement to sell,
without any further requirement to execute a sale deed to
convey the title, such agreements for sale shall be deemed
to be a conveyance for the purpose of payment of stamp
duty. Therefore, even when, for the transfer of title, a further
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deed of conveyance is required to be executed, but
possession is transferred in pursuance of or in furtherance of
the agreement for sale, such an agreement would attract
payment of stamp duty because possession is transferred in
pursuance of or in furtherance of the contract. Such a
requirement is a safeguard against the avoidance of stamp
duty.
48. By way of an illustration, when an agreement is
executed under the provisions of the Maharashtra Ownership
Flats (Regulation of the Promotion of Construction, Sale,
Management and Transfer) Act, 1963 (“MOFA”), possession
is handed over in pursuance of or in furtherance of that
agreement; therefore, such an agreement attracts stamp
duty, as no further document of conveyance is required to be
executed and the title and possession is transferred to the
purchaser, pursuant to such an agreement. Therefore, when
the transfer of possession is in pursuance or furtherance of
an agreement to sell, such an agreement would attract
payment of stamp duty.
49. The provisos to the said Explanation I, therefore, clarify
that where subsequently a conveyance is executed in
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pursuance of such an agreement for sale where stamp duty
is already paid on the ground that the agreement is deemed
to be a conveyance, an adjustment towards the total duty
leviable is provided, subject to any modification in the
agreement that may attract further charges. Therefore, the
object of Section 34 and the Explanation I to Article 25 of
Schedule 1 of the Stamp Act appears to be the prevention of
avoidance of payment of stamp duty.
50. In the present case, possession was already with the
deceased plaintiff by virtue of original ownership; however,
the title was transferred in 1961 in favour of the deceased
defendant, that is, Bhika Sorte, by executing a sale deed.
Therefore, at the time of execution of the suit agreement by
Bhika Sorte in favour of the deceased plaintiff, it was
recorded and agreed that the possession already with the
deceased plaintiff would be confirmed as the owner upon
execution of the sale deed. Therefore, the transfer of title and
confirmation of possession as owner was to occur contingent
upon the execution of a sale deed. Therefore, stamp duty
would be paid at the time of execution of the sale deed, as
title would be transferred only upon execution of the sale
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deed, and possession would be confirmed as owner only
after execution of the sale deed. Therefore, there is no
avoidance of payment of stamp duty. Hence, the payment of
stamp duty on the suit agreement for sale would have no
relevance with reference to Section 34 of the Stamp Act in
the present case.
51. It is not the plaintiffs’ case that the possession with
them was in pursuance of or in furtherance of the document
at Exhibit 59. Both courts have concurrently held that the
possession was always with the plaintiffs despite the sale
deed at Exhibit 117 in favour of Bhika Sorte. Accordingly, the
subsequent document at Exhibit 59 is accepted as an
agreement to sell by Bhika Sorte in favour of the deceased
plaintiff, confirming and recording that the possession was
always with the deceased plaintiff. Hence, there is no
substance in the arguments raised by relying upon Section
34 of the Stamp Act.
52. In the present case, stamp duty would be payable at
the time of execution and registration of the sale deed
pursuant to the impugned decree. Therefore, there would not
be any question of transfer of title by avoiding payment of
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stamp duty, as the title would be transferred to the plaintiffs
only upon execution and registration of the sale deed by
making payment of stamp duty, and only thereafter would the
possession stand confirmed as owners. Hence, even the
additional substantial question of law is accordingly
answered in favour of the respondents.
53. For the reasons recorded above, the impugned
judgments and decrees would not require any interference in
this second appeal. Hence, the second appeal is dismissed.
[GAURI GODSE, J.]
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