Ramniklal Shamji Patel & Ors. v. Jiyauddin Suleman Pira

10 wp 12721 of 2025.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION WRIT PETITION NO.12721 OF 2025 Ramniklal Shamji Patel and Ors. ...Petitioners versusJiyauddin Suleman Pira (deceased)through legal heirs Suffyua JiyauddinPira and Ors. …Respondents Mr. P.B.Shah with Mr. Kayval P. Shah, for Petitioners. CORAM: N.J.JAMADAR, J. DATE : 13 JANUARY 2026 P.C. 1.Heard the learned Counsel for the Petitioners. 2.The Petitioners – Plaintiffs assail the legality, propriety and correctnessof the order dated 20 February 2025 in SCS No.102 of 2021, passed by thelearned Civil Judge, Palghar, on an application below Exh.83 to impound theinstrument i.e. Agreement for Sale dated 3 May 2007, as it was insufficientlystamped, though it amounted to a conveyance under Article 25 of theMaharashtra Stamp Act, 1958. By the said order, the learned Civil Judgewas persuaded to impound the said Agreement for Sale and send it to theCollector of Stamps for determination of stamp duty and penalty thereon. 3.Mr. Shah, learned Counsel for the Petitioners, would urge that, thelearned Civil Judge completely misconstrued the nature and character of theAgreement for Sale and passed an impounding order without consideringSSP 1/5 10 wp 12721 of 2025.docthe pleadings of the parties. It was submitted that the learned Civil Judgefailed to note that the possession of the property, which was agreed to be soldunder the said Agreement for Sale, was never delivered to the Petitioners.Therefore, the Petitioners – Plaintiffs were constrained to institute a suit forspecific performance of the contract and delivery of possession of the suitproperty. By a selective reading of the recitals in the said Agreement forSale, the learned Civil Judge has recorded an erroneous finding that the saidAgreement amounted to a conveyance within the meaning of Article 25 of theStamp Act, 1958. 4.To lend support to this submission, Mr. Shah placed reliance on thedecisions of the Supreme Court in the cases of Shyamsundar RadheshyamAgrawal and Anr. V/s. Pushpabai Nilkanth Patil and Ors.1 and VeenaHasmukh Jain and Anr. V/s. State of Maharashtra and Ors.2. 5.Under Article 25 of the Schedule I appended to the Maharashtra StampAct, 1958, for a Conveyance, not being a transfer charged or exempted underArticle 59, if it relates to immovable property, situated within the limits of anyMunicipal Corporation, Municipal Council or Nagar Panchayat or Cantonmentarea, a stamp duty @ 5% of the market value of the property, which is thesubject matter of the conveyance, is required to be paid. Explanation I toArticle 25 provides that, for the purposes of the said Article, where in the case1(2024) 10 SCC 3242(1999) 5 SCC 725SSP 2/5 10 wp 12721 of 2025.docof agreement to sell an immovable property, the possession of any immovableproperty is transferred or agreed to be transferred to the purchaser before theexecution, or at the time of execution, or after the execution of, suchagreement, then such agreement to sell shall be deemed to be a conveyanceand stamp duty thereon shall be leviable accordingly. 6.In view of the said Explanation, the agreement for sale is to be treatedas conveyance, if possession is either handed over contemporaneous withthe execution of the agreement for sale, or is agreed to be handed over withina particular period. 7.In the case of Veena Hasmukh Jain and Anr. (supra), on whichreliance was placed by Mr. Shah, the Supreme Court enunciated that the dutyin respect of an agreement covered by the Explanation I is leviable as if it is aconveyance, if certain conditions are fulfilled. The relevant observations inparagraph No.8, read as under : “8.The duty in respect of an agreement covered by theExplanation is leviable as if it is a conveyance. Theconditions to be fulfilled are that if there is an agreement tosell immovable property and possession of such property istransferred to the purchaser before the execution or at thetime of execution or subsequently without executing anyconveyance in respect thereof, such an agreement to sell isdeemed to be a ‘conveyance’. In the event a conveyance isexecuted in pursuance of such agreement subsequently, thestamp duty already paid and recovered on the agreement ofSSP 3/5 10 wp 12721 of 2025.docsale which is deemed to be a conveyance shall be adjustedtowards the total duty leviable on the conveyance.” 8.It is necessary to note that, the expression “without executing theconveyance in respect thereof”, which was part of Explanation I, which wasconsidered by the Supreme Court in the case of Veena Jain (supra), came tobe deleted by Act 38 of 1994, with effect from 17 August 1994. 9.The thrust of the submission of Mr. Shah was that the possession of thesuit property was not handed over to the Plaintiffs under the said Instrument,and, therefore, it did not amount to conveyance. 10.I am afraid to accede to the broad proposition sought to be canvassedby Mr. Shah that the delivery of possession is a sine qua non, for anAgreement to sell to constitute a conveyance, within the meaning ofExplanation I to Article 25 of the Stamp Act, 1958. 11.In the case of Veer Kanth Raikar vs State of Maharashtra3, on whichreliance was placed by the learned Civil Judge, construing express text of theExplanation I to Article 25, it was held that the agreement for sale shall bedeemed to be a conveyance if the possession of immovable property istransferred or agreed to be transferred to the purchaser before execution or atthe time of execution or after the execution of such agreement. 12.From the bare reading of the Agreement for Sale dated 3 May 2007,32020 SCC Online Bom 392SSP 4/5 10 wp 12721 of 2025.docespecially clauses 10, 11, 13, 14, 15 and 16, it becomes abundantly clear thatthe intent of the parties was to execute a conveyance. Under the saidclauses, the Plaintiffs were authorized to construct buildings in accordancewith the plans and specifications, sell the flats, shops and other structurethereon to the prospective purchasers, amalgamate and/or sub-divide theproperty, prepare layout, sell any part of the said property to any third personand receive the consideration, and the vendors agreed and confirmed andgave irrevocable consent for the transfer of all rights, title and interest in thesaid property by the purchasers in favour of any third party. 13.Cumulatively, the Agreement for Sale has all the trappings ofconveyance. The mere fact that it was not explicitly recorded in the saidAgreement that the possession was delivered thereunder, does not denudethe said agreement for sale the character of conveyance. The learned CivilJudge, thus, committed no error in impounding the said instrument as itamounted to a conveyance and, yet, scribed on a stamp paper of Rs.100/-denomination only. 14.The Writ Petition, thus, stands dismissed. ( N.J.JAMADAR, J. )SSP 5/5