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
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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
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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.”
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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
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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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