Unregistered agreements for the sale of property without possession delivery are not conveyances and do not require stamping, valid for evidence in specific performance cases.

JUDGMENT :

SIDDHESHWAR S. THOMBRE, J.

1. Heard. Rule. Rule made returnable forthwith. Heard the petition finally with the consent of the parties at the stage of admission.

2. By way of the present petition, the Petitioners are assailing the order dated 13.10.2022 passed below Exhibit-22 by the learned 5^th Joint Civil Judge, Senior Division, Latur in Special Civil Suit No.47/2021, whereby the Application filed by the Original Defendants/Respondents for impounding the agreement to sell dated 23.11.2020 came to be allowed.

3. The suit was filed for specific performance of contract. In the said suit, the Defendants filed an application below Exhibit-22 contending that the agreement of sale dated 23.11.2020, allegedly executed by the Original Defendants/Respondents in favour of the Original Plaintiffs/Petitioners, was an unregistered document, and therefore, cannot be read in evidence unless it is impounded.

4. The learned Counsel for the Petitioners invited the attention of this Court to the document sought to be impounded, placed at Page No.38 of the paper-book. She submits that the agreement is in respect of sale of property without delivery of possession, and therefore does not require registration. She further submits that the document is not a conveyance and hence is not compulsorily registrable. In support of her contentions, reliance is placed on the Judgment of the Hon’ble Supreme Court in S. Kaladevi Vs. V.R. Somasundaram & Ors., Civil Appeal No. 3192 of 2010 [Arising out of SLP (C) No. 1451 of 2009], decided on 12.04.2010 and submits that the impugned order deserves to be set aside.

5. Per contra, the learned Counsel for the Respondents/Original Defendants submits that the agreement of sale dated 23.11.2020 was executed on a stamp paper of Rs.100/- and is insufficiently stamped. Therefore, the said document cannot be read in evidence unless proper stamp duty is paid. He supports the impugned order and relies upon the Judgment of the Hon’ble Supreme Court in Bidyut Sarkar and Another Vs. Kanchilal Pal (Dead) through LRs. and Another, 2024 SCC Online SC 2603.

6. Having heard the learned Counsel for the parties, there is no dispute that the suit is for specific performance of contract. Upon perusal of the agreement placed at Page No.38 of the paper-book, it is clear that the recitals specifically state that the possession would be handed over only after execution of sale deed. Thus, the said agreement to sell is without delivery of possession and it cannot be treated as a conveyance. The Maharashtra Stamp Act, 1958 defines the conveyance under Section 2 (g) as follows :

“ Conveyance ” includes—

(i) a conveyance on sale.

(ii) every instrument.

(iii) every decree or final order of any Civil Court.

(iv) every order made by the High Court under section 394 of the Companies Act, 1956 or every order made by the National Company Law Tribunal under sections 230 to 234 of the Companies Act, 2013 or every confirmation issued by the Central Government under sub-section (3) of section 233 of the Companies Act, 2013, in respect of the amalgamation, merger, demerger, arrangement or reconstruction of companies (including subsidiaries of parent company); and every order of the Reserve Bank of India under section 44A of the Banking Regulation Act, 1949 in respect of amalgamation or reconstruction of Banking Companies; by which property, whether moveable or immoveable, or any estate or interest in any property is transferred to, or vested in, any other person, inter vivos and which is not otherwise specifically provided for by Schedule I:

Explanation.—An instrument whereby a co-owner of any property t