Sanjay Yadav, J.—I.A. No.14581/2016, an application for deleting the name of respondent No.1.

For the reasons find mention in the application the same is allowed. Let deletion be carried out during course of day.

2. Petitioner/plaintiff takes exception to order dated 07.05.2011; whereby, an application filed for impounding the insufficiently stamped mortgaged deed dated 17.03.2003 agreement of sale dated 13.09.2006 has been turned down by the trial Court.

3. The plaintiffs on the plea that on 17.03.2003, respondent No.1 executed a mortgage deed and placed in possession over the shop No.1 situated at Ward No.10 Cinema Marg, Chhatarpur, for a period of 3 years and thereafter an agreement of sale was entered between the petitioner and respondent No.1 on 13.09.2006, brought a suit for specific performance.

4. At the stage when the matter was posted for recording evidence, respondent/defendant raised objection as to admissibility of an insufficiently stamped instrument. It was to overcome the objection, petitioner/plaintiff sought impounding of the document in question.

5. W. P. No.12821/2011 The trial Court on the finding that the petitioners were actually placed in possession over the suit property by virtue of mortgage deed and thereafter the instrument nomenclatured as an agreement of sale was executed on 13.09.2006, is factually not an agreement of sale but recorded the transfer of property and being unregistered, declined to impound the same. The trial Court observed:

(Matter in other Language)

6. The trial Court has thus construed the agreement of sale as conferring an active title; whereas the document in question, i.e., agreement dated 13.09.2006 records the terms of agreement that

(Matter in other Language)

“The trial Court thus fell into a patent error in construing the documents as sale deed rather an agreement of sale. Section 17 of the Registration Act, 1908, though mandates that all instruments chargeable with duty and executed by any person in India shall be stamped before or at the time of execution. And Section 49 of 1908 Act stipulates-

“49. Effect of non-registration of documents required to be registered.—No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be W. P. No.12821/2011 registered shall—

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

7. Exception however, is carved out that where a suit for specific performance of the contract is filed vide proviso to Section 49 which mandates that “Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument. “ Thus, in the given facts of present case non registration of the agreement of sale will not be fatal to the suit for specific performance.

8. Furthermore, as the Agreement of Sale records that the possession has been given to the prospective purchaser, the Stamp Duty under the Stamp Act is as per entry 5 (e) (i) of Schedule I A which mandates- the same duty as a conveyance (No. 20) on the market value of the property.

Section 33 and 35 of Stamp Act provides for-

“33. Examination and impounding of instruments—(1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance in his functions W. P. No.12821/2011 shall, if it appears to him that such instrument is not duly stamped, impound th