The main legal point established in the judgment is that the determination of whether a document amounts to a 'conveyance' under the Stamp Act depends on the specific facts and circumstances of each case, and objections to insufficiency of stamp duty should be raised when the document is tendered as evidence.

JUDGMENT :

1. Rule. Rule made returnable forthwith. Mr. Sandeep Salunkhe, the learned counsel for the respondents waives service. Heard finally by consent of the parties.

2. The challenge in this petition, is to the common order dated 22-8-2019 (Below Exh.176 and 177) passed by the learned Senior Civil Judge at Pune, in Special Suit No. 935/2012. By the impugned order, the learned Trial Court, has refused to impound the agreement of sale dated 11-9-2009 and to refer it to the Collector of Stamps for determination of deficit stamp duty and penalty.

3. The facts necessary for the disposal of the petition, may be stated thus—

The first respondent has filed the aforesaid suit against the second respondent (defendant No. 1), the petitioners (defendant Nos. 2 and 3) and the third respondent (defendant No. 4) for cancellation of documents, specific performance, declaration and permanent injunction etc.

4. The subject matter of dispute happens to be ¼th joint share of the defendant No. 1 out of land, bearing survey No. 185 of Muze Wakad, Taluka Mulshi, District Pune, along with structures standing thereon, within the limits of Pimpri Chinchwad Municipal Corporation (PCMC), more specifically described in plaint para No. 1. According to the plaintiff, the defendant No. 1 for himself and on behalf of the Hindu Undivided Family (‘the HUF’ for short) has executed an agreement of sale dated 11-9-2009 in favour of the plaintiff which is a not arised document, thereby agreeing to sale the suit property to the plaintiff for a consideration of Rs.3 Lakhs per acre.

5. The plaintiff learnt that the defendant No. 1 has executed a sale deed on 2-3-2010 in respect of 4H 28R from out of the suit property in favour of defendant No. 2 and has failed to execute the sale deed as agreed in the agreement dated 11-9-2009. It is in these circumstances that the suit is filed for declaration, cancellation of sale deed and for specific performance etc.

6. The suit claim is resisted on behalf of the petitioners and others.

7. The first respondent (original plaintiff) filed his affidavit in examination-in-chief (Exh.144) on 6-7-2019 and on the same date, his further examination-in-chief was recorded on oath in which the plaintiff tendered the original agreement of sale dated 1-19-2009 which was marked as Exh.146. It appears that the cross-examination on behalf of the defendants was deferred till the next date. On the next date, an additional affidavit of examination-in-chief (Exh.175) was filed and after his further examination-in-chief was recorded, the plaintiff was cross-examined on behalf of the defendant No. 1.

8. It may be mentioned that there was no objection raised to the agreement of sale being marked as Exh.146 during the course of the chief examination. On 9-8-2019, the defendant No. 1 filed application (Exh.176) while the defendant Nos. 2 and 3 filed application (Exh.177) for impounding of the agreement of sale on the ground that it is insufficiently stamped. The contention is that the said agreement of sale would be a ‘conveyance’, within the meaning of Explanation (I) to Article 25 of the Maharashtra Stamp Act (the ‘Act’ for short) particularly in view of para 5 and 13 of the said agreement.

9. The application was opposed on behalf of the plaintiff on the ground that only notional possession has been delivered by virtue of the said agreement, and not the physical possession.

10. The learned trial Court by the impugned order has rejected both these applications, inter alia on the ground that the instrument having already been ‘admitted in evidence’, could not have been called in question in view of section 35 of the said Act. Secondly, it has been found that the physical possession was agreed to be given at the time of sale deed or final payment of the consideration. Thus, the trial Court has refused to accept that the agreement would be a ‘conveyance’ within t