An agreement for sale of immovable property is an instrument within the meaning of Section 2(14) of the Indian Stamp Act, 1899, and therefore, stamp duty is payable as if it was a conveyance as mentioned in Item No. 23 of Schedule 1A.

Bhaskar Bhattacharya, J.: The only question that arises for determination in these two revisional applications is what is the stamp duty payable on an agreement for sale of immoveable property in terms of Schedule 1A, Item No. 5(d) as inserted by West Bengal Act XVII of 1990 with effect from January 31, 1994.

2. C.O. No. 1410 of 1999 arises out of a suit for specific performance of contract for sale of immoveable property wherein, when the agreement for sale was tendered for marking the same as exhibit, the defendant took a plea that the said instrument should be impounded inasmuch as only a stamp of Rs. 10/- was affixed on such agreement. According to the defendant, in view of Item No. 5(d) of the Schedule 1A of the Indian Stamp Act, 1899 as applicable in the State of West Bengal, stamp duty should be paid as' if the same was a conveyance as mentioned in Item No. 23 of the said Schedule and accordingly it should be 5% of the market value of the property.

3. By order dated May 28, 1999 the learned trial Judge has turned down such objection with a finding that an agreement for sale does not create any right, title or interest in the immovable property and as such the said document cannot be said to be an instrument. According to the learned trial Judge, a document become instrument only when a right is created in the immoveable property by virtue of such document.

4. However, in C.O. No. 1764 of 1999, the learned trial Judge has directed to assess the disputed document according to market value after accepting the contention of the defendant therein.

5. I have heard Mr. Subhrokamal Mukherjee on behalf of the petitioner in C.O. No. 1410 of 1999 and Mr. Jiban Ratan Chatterjee on behalf of the plaintiff/opposite party and Mr. Jana appearing on behalf of the petitioner in C.O. No. 1764 of 1999.

6. Mr. Mukherjee, the learned advocate appearing on behalf of the petitioner in C.O.No. 1410 of 1999 has contended that in view of the amendment of the Item No. 5(d) of Schedule 1A of the Indian Stamp Act as applicable in the State of West Bengal with effect from January 31, 1994, in case of an agreement of sale or lease-cum-sale of immoveable property, stamp duty payable will be same as payable on a conveyance as mentioned in Item No. 23 of the said Schedule.

7. Mr. Chatterjee, the learned advocate appearing on behalf of the opposite party has however opposed the aforesaid contention of Mr. Mukherjee and has contended that by an agreement for sale no interest is created in the property and such agreement cannot be said to be an instrument so as to apply the said provision.

8. It appears from the definition of 'instrument' as mentioned in section 2(14) of the Indian Stamp Act, instrument includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded.

9. On the other hand, according to section 2(10) of the aforesaid Act, 'conveyance' includes a conveyance on sale and every instrument by which property, whether moveable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by Schedule 1 or by Schedule 1A, as the case may be.

10. The aforesaid two definitions make it abundantly clear that in order to become an instrument, what is necessary is that by such document, any right or liability is; or purports to be, created, transferred, limited, extended, extinguished or recorded. It is not necessary that any right or interest must be created in the immovable property as contended by Mr. Chatterjee.

11. Mr. Chatterjee in this connection has relied upon a decision of the Apex Court in the case of Veena Hasmukh Jain & Anr. vs. State of Maharashtra & Ors., reported in AIR 1999 SC 807 and contends that in the instant case the agreement sought to be enforced being a pure agreement for sale and there being no clause for transfer of possession either before or immediately after the execution of the said agreement or for delivery of f