The main legal point established is that the stamp duty provisions for agreement or conveyance do not apply to an unexecuted sale deed.

R. S. GARG, J.

( 1 ) SHORT facts necessary for disposal of the present petition are that respondent Mo. 1 Manik Darbar filed a suit for specific performance basically on the ground that the property in dispute was agreed to be sold for a sum of Rs. 4,90,500/-, entire amount was paid to the defendants viz. Narbada Prasad, Pramod Kumar Singh and vinod Kumar Singh, a document was written on stamp papers worth Rs. 115/- but, however the other two sellers refused to sign the said document and left the office of the Registrar of Conveyance, therefore, the suit was for a direction to the defendants to appear before the Registrar and execute the sale deed so also for other reliefs. During the trial the defendant filed an application that the document was worth for Rs. 5 lacs, stamp duty worth Rs. 60,000/- was to be paid, penalty would be ten times that is Rs. 6 lacs, therefore, the said amount of duty and penalty be asked to be deposited and only thereafter, the question of admissibility of the document be decided. The plaintiff appeared and submitted that the document in question was not an agreement but in fact it was an unexecuted sale deed not falling under item No. 5 of schedule. 1-A appended to Indian Stamps act, therefore, the defendant's objections be rejected.

( 2 ) THE learned Court below after hearing the parties came to the conclusion that the document would not come under the mischief of item No. 5 of Schedule 1-A nor would come under item No. 22 of Schedule 1-A of the Indian Stamp Act. Being aggrieved by the said order the defendant has filed this writ petition.

( 3 ) LEARNED counsel for the petitioner submitted that as the document is in relation to sale of an immovable property and it recites that possession of the property has already been delivered to the plaintiff, the plaintiff is bound to pay stamp duty payable on an agreement as provided under Art. 5 of the schedule 1-A. In the alternative it is submitted that if it is taken to be a conveyance as provided under Item 22 then too the plaintiff is required to pay stamp duty on the market value as provided under Item 22.

( 4 ) LEARNED counsel for the respondent No. 1 on the other hand submitted that item No. 5 of the Schedule 1-A apply to an agreement or memorandum of an agreement and as in the present case the document in question is not an agreement or memorandum of an agreement. Item No. 5 would not apply. It is also submitted that present would not be a conveyance because the document is neither a completed sale nor title in the property has been transferred in favour of the plaintiff. He submitted that the petition deserves to be dismissed.

( 5 ) WE have heard the parties at length, we have gone through the provisions of law and we have also gone through the contents of the documents.

( 6 ) SCHEDULE 1-A as applicable in Madhya pradesh clearly provides that proper stamp duty shall be as given in column No. 2 on a particular document well described in column No. 1 of Schedule 1-A.

( 7 ) ITEM No. 5 of Schedule 1-A undisputedly relates to agreement or memorandum of an agreement. Clause (e) provides that if the agreement or memorandum of an agreement relates to sale of immovable property when possession of the property is delivered or is agreed to be delivered without executing the conveyance, the stamp duty would be the same as payable on a conveyance on the market value of the property. Undisputedly the document in question is neither an agreement nor memorandum of an agreement. Undisputedly it is an unregistered/un-executed sale deed. If that be so, item No. 5 of Schedule 1-A shall not apply. Insofar as applicability of item No. 22 is concerned, we will have to first refer to clause 10 of Section 2 of Indian Stamp Act which provides the definition of 'conveyance'. According to said clause 10 a 'conveyance' includes a conveyance on sale and every instrument by which property whether movable or immovable is transferred inter-vivos and which is not otherwise