Rajasthan High Court - Jodhpur
Kishan Lal vs Dinesh (2025:Rj-Jd:33165) on 28 July, 2025
[2025:RJ-JD:33165]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 18796/2018
1. Kishan Lal S/o Chena Lohar, Aged About 55 Years, Jawad,
Tehsil And District Rajsamand.
2. Udailal S/o Chena Lohar,, Aged About 52 Years, Jawad,
Tehsil And District Rajsamand.
3. Suresh Chandra S/o Chena Lohar,, Aged About 40 Years,
Jawad, Tehsil And District Rajsamand.
4. Ramesh Chandra S/o Chena Lohar,, Aged About 48 Years,
Jawad, Tehsil And District Rajsamand.
5. Smt. Gopi Bai D/o Chena Lohar,, Aged About 58 Years,
Jawad, Tehsil And District Rajsamand.
6. Smt. Sundar Bai D/o Chena Lohar,, Aged About 38 Years,
Jawad, Tehsil And District Rajsamand.
7. Smt. Vardi Bai D/o Chena Lohar,, Aged About 75 Years,
Jawad, Tehsil And District Rajsamand.
----Petitioners
Versus
1. Dinesh S/o Hemraj Paliwal, Sakronda, Tehsil Mavli And
District Udaipur.
2. Hukamichand S/o Khemraj,, Chopati, Kankroli, Tehsil And
District Rajsamand.
3. Bhanwar Lal S/o Chena Lohar,, Jawad, Tehsil And District
Rajsamand. (Co-Defendant)
4. Smt. Shanti D/o Chena Lohar,, Jawad, Tehsil And District
Rajsamand. (Co-Defendant)
----Respondents
For Petitioner(s) : Mr. Deelip Kawadia
Mr. Pooshan
For Respondent(s) : Mr. Naresh Khatri
HON'BLE MR. JUSTICE SANDEEP SHAH
Order 28/07/2025
1. The present writ petition has been filed by the petitioners- defendants assailing the order dated 26.10.2016 passed by the learned Additional Senior Civil Judge, Rajsamand, whereby the application filed by the petitioners under Section 35 of the Rajasthan Stamp Act, 1998 (hereinafter referred to as 'the Act of 1998') has been rejected.
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2. Shorn of unnecessary details, the relevant facts for adjudication of the present writ petition are that the respondents- plaintiffs instituted a civil suit seeking specific performance of an agreement to sell dated 07.02.2002 along with a prayer for permanent injunction.
3. During the course of proceedings, the petitioners-defendants objected to the admissibility of the agreement to sell on the ground that the said agreement not only recorded receipt of the entire sale consideration but also mentioned delivery of possession to the plaintiffs. It was, thus, contended that the agreement attracted stamp duty as per the nature of a "conveyance" under Entry 21 of Schedule to the Act of 1998, and since the requisite stamp duty had not been paid, the document could not be admitted in evidence under Section 35 of the Act of 1998.
4. In opposition, the respondents-plaintiffs submitted that the agreement in question was executed on a stamp paper of Rs.100/-, and the same was valid in terms of Sections 90-B of the Rajasthan Land Revenue Act, 1956. It was contended that the agreement was only a procedure mandated under Act for the issuance of Patta and did not constitute a conveyance requiring payment of higher stamp duty.
5. The learned Trial Court, however, vide impugned order dated 26.10.2016, without deciding the controversy in hand and without considering the provisions of the Stamp Act, has proceeded to decide the application simply treating that the provisions of Section 90-B have been repealed and observed that as per Section 90-B only Patta remains to be issued. Therefore, there was no requirement for imposing proper stamp duty or penalty on the (Downloaded on 30/07/2025 at 09:41:26 PM) [2025:RJ-JD:33165] (3 of 6) [CW-18796/2018] agreement to sale. Being aggrieved against the same, the present writ petition has been filed.
6. Learned counsel for the petitioners-defendants submitted that in view of the specific recitals in the agreement, regarding the receipt of full consideration and delivery of possession, the document constitutes a "conveyance" within the meaning of Entry 21 of Schedule to the Act of 1998. Reliance is placed on the judgment of Hon'ble Supreme Court in "Avinash Kumar Chauhan v. Vijay Krishna Mishra", (2009) 2 SCC 532, wherein it was held that unless the document is duly stamped, the same cannot be admitted in evidence, even for collateral purposes.
7. Per contra, the learned counsel for the respondents-plaintiffs has attempted to support the impugned order by relying on the provisions of Section 90-B of the Rajasthan Land Revenue Act and contended that since the Patta was yet to be issued, the agreement does not attract stamp duty.
8. This Court, upon perusal of the agreement dated 07.02.2002, finds that paragraph 3 records payment of full consideration and paragraph 4 unequivocally states that possession has been handed over to the plaintiffs. Thus, the agreement in question, which in the present case has been executed on a stamp paper of Rs.100/-, cannot be said to be sufficiently stamped, as the agreement in question would not fall under Clause 5(c), since possession has been handed over by way of the said agreement. This, coupled with a perusal of Entry 21 of the Schedule to the Act of 1998, reveals that the explanation clarifies that when possession has been handed over, then at the time of execution of the instrument i.e., the agreement to sale (Downloaded on 30/07/2025 at 09:41:26 PM) [2025:RJ-JD:33165] (4 of 6) [CW-18796/2018] immovable property, the same shall be deemed to be a conveyance, and the stamp duty thereupon shall be chargeable accordingly. That being the case, it is clear that the agreement has not been sufficiently stamped and thus could not be permitted to be exhibited in evidence, and was required to be impounded while exercising powers under Section 37 (corresponding to Section 35 of the old Act) of the Rajasthan Stamp Act, 1998.
9. The Hon'ble Apex Court, in the case of "Avinash Kumar Chauhan v. Vijay Krishna Mishra", (2009) 2 SCC 532, has clearly held as under:-
"14. Indisputably 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 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 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."(Downloaded on 30/07/2025 at 09:41:26 PM)
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15. The said explanation has been inserted by M.P. Act 19 of 1989 with effect from 15th November, 1989. By reason of the said provision, thus, a legal fiction has been 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 legislature 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 Indian 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.
21. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes."
9.1 It is thus clear that a document, if not sufficiently stamped, cannot be permitted to be exhibited in evidence, nor can it be used even for collateral purposes. Furthermore, it is the bounden duty of the learned Trial Court to impound such a document and refer it to the Collector (Stamps) for determination of the proper (Downloaded on 30/07/2025 at 09:41:26 PM) [2025:RJ-JD:33165] (6 of 6) [CW-18796/2018] stamp duty, and only upon payment of the same can the document be taken on record or exhibited in evidence.
10. In light of the above, the learned Trial Court committed a jurisdictional error in summarily rejecting the application filed under Section 35 of the Stamp Act of 1998 without referring the document to the Collector (Stamps) for determination of proper stamp duty under Section 37 of the Act of 1998.
11. Accordingly, the present writ petition is allowed. The impugned order dated 26.10.2016 is quashed and set aside. The learned Trial Court is directed to impound the document dated 07.02.2002 and refer it to the Collector (Stamps) for determination of the proper stamp duty and penalty, if any, under the provisions of the Rajasthan Stamp Act, 1998. It is further directed that only upon payment of the adjudicated amount by the respondents-plaintiffs, the said document shall be taken on record and marked as an exhibit.
12. The learned Trial Court shall thereafter proceed with the matter in accordance with law.
13. Pending all applications, if any stand disposed of.
(SANDEEP SHAH),J 69-devrajP/-
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