ORDER :

1. On 22/9/2017, while issuing notice, the following substantial question of law was framed :-

“An objection being raised to the admissibility of documents at Exhibits-49 and 50 which aspect was not decided by the trial Court, whether the appellate Court was precluded from entertaining this objection in the light of provisions of Section 35 of the Maharashtra Stamp Act ?”

2. I have heard learned Counsel Shri A.V. Khare for the appellant and learned Counsel Shri P.K. Mishra for the respondent nos.1 (a to e) and 2. Respondent no.3 stands deleted by order dated 26/6/2018. None appears for the respondent nos.4 (a) to (e), though served.

3. To appreciate the back ground, it is necessary to state a few facts :-

(a) The suit property is a house bearing No.1149 known as ‘Parwati Bhavan’ on plot No.237, situated in Central Avenue Section – III, Middle Precincts Layout, Jagjiwanram Nagar, Nagpur.

(b) The plaintiff/Parwatibai Akre on 27/6/1994, executed an agreement of sale of the suit property in favour of the defendants for total consideration of Rs.3,10,000/- which is claimed to have been resettled as Rs.3,05,000/-, out of which a part consideration of Rs.40,000/- was received by her on the date of the agreement of sale. Sale-deed (Exh.49) was to be executed in three months.

(c) Parwatibai expired on 9/4/1995 leaving behind her the defendant no.1 as her only legal heir.

(d) Possession of portion of suit property is delivered to plaintiffs under the agreement of sale.

(e) By a supplementary agreement dated 29/9/1994 time was extended till 31/12/1994 (Exh.50).

(f) Plaintiffs claim to have paid consideration of Rs.2,55,000/- from time to time till 29/9/1994.

(g) On failure to execute sale-deed, notice was issued on 27/1/1995 to which reply was given on 20/3/1995, denying the transaction.

(h) Due to demise of Parwatibai, a notice was issued to defendant no.1 on 20/9/1995, calling upon defendant no.1 to execute sale-deed, and upon denial, suit for specific performance was filed.

(i) Written Statement was filed in which a plea was taken that the agreement was not properly stamped as required under Section 25 of the Maharashtra Stamp Act.

(j) The Trial Court decreed the suit granting specific performance. The Appellate Court dismissed the appeal.

4. The only question urged is that the Courts below ought not to have read the agreement of sale (Exh.49) and the supplementary agreement of sale (Exh.50), as they were insufficiently stamped and therefore, grant of a decree on its basis was clearly an illegality.

5. The submission of Shri Khare, learned Counsel for the appellant is that the documents (Exh.49 and 50) since they evinced delivery of possession and were written on stamp of Rs.20/-, the same were therefore insufficiently stamped, and therefore unless and until the same were impounded and proper stamp duty paid along with the penalty thereupon, the same could not have been read and relied upon by the Trial Court for grant of a decree for specific performance. Learned Counsel further contends that since it is an admitted position on record that the agreement of sale was not duly stamped and an objection to that effect, was raised in written statement, even though such an objection was not raised at the time of exhibiting the document during the course of evidence, it was the duty of the Trial Court, to have taken the objection as raised in the written statement into consideration and refused to exhibit the document unless and until the same was impounded and proper stamp duty with penalty was paid thereupon. He therefore submits that failure on part of the Trial Court to do so, has clearly resulted in an illegality, which goes to the root of the matter which has been carried forward by the Appellate Court, in light of which, the judgments need to be set aside. In support his contentions, he places reliance upon the following judgments :-

(1) 1978 (3) SCC 236 [Ram Rattan (dead) by legal representatives Vs Bajrang Lal and others]

(2) 2004 CJ (Bom.)