OMPRAKASH versus LAXMINARAYAN & ORS.

Citation: [2013] 9 S.C.R. 923 · Decided: 07-10-2013 · Supreme Court of India · Bench: C.K. PRASAD · Disposal: Appeal(s) allowed

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Judgment (excerpt)

[2013] 9 S.C.R. 923 
OM PRAKASH 
v. 
LAXMINARAYAN & ORS. 
(Civil Appeal No. 9032 of 2013) 
OCTOBER 7, 2013 
[CHANDRAMAULI KR. PRASAD AND KURIAN 
JOSEPH, JJ.] 
STAMP ACT, 1899: 
s.35 rlw s.2(10), Schedule 1-A, Art. 23, as substituted by 
A 
B 
c 
s. 6 of Act 22 of 1990 - Instrument not duly stamped, 
inadmissible in evidence - "Conveyance" - Agreement to sell 
containing recital that possession had been handed over to 
purchaser - Held: In the instant case, the agreement to sell 0 
with possession is an instrument which requires payment of 
the stamp duty applicable to a deed of conveyance -- Duty 
as required, has not been paid and, therefore, trial court rightly 
held the same to be inadmissible in evidence. 
EVIDENCE: 
E 
Agreement to sell - Containing the recital of delivery of 
possession - Held: At the time of considering the question of 
admissibility of document, it is the recital therein which shall 
govern the issue -- It does not mean that the recital in the 
F 
document shall be conclusive but for the purpose of 
admissibility it is the terms and conditions incorporated therein 
which shall hold the field -- Deeds and Documents. 
During the trial of a suit for specific performance of 
contract, possession and permanent injunction in respect G 
of the suit land, admissibility of the agreement to sell was 
objected to by defendant no. 1 as the same contained a 
recital that possession had been handed over to the 
923 
H 
924 
SUPREME COURT REPORTS 
[2013) 9 S.C.R. 
A 
purchaser and, therefore, it was a conveyance on which 
the required stamp duty was not affixed. The trial court, 
accordingly, held the deed of agreement to be 
inadmissible. However, in the writ petition filed by the 
plaintiffs, the single Judge of the High Court accepted 
B their case that since the defendant denied the 
possession having been delivered, the recital in the 
agreement was of no consequence, and held the 
agreement to sell to be admissible in evidence. . 
In the instant appeal filed by the defendant, the 
C questions for consideration before the Court were: 
"whether the admissibility of a document produced by 
the party would depend upon the recital in the document 
or the plea of the adversary in the suit" and "whether the 
document in question is "conveyance" as defined under 
D the Stamp Act, 1899 and was duly stamped". 
Allowing the appeal, the Court 
HELD: 1.1 At the time of considering the question of 
E admissibility of document, it is the recital therein which 
shall govern the issue. It does not mean that the recital 
in the document shall be conclusive, but for the purpose 
of admissibility it is the terms and conditions 
incorporated therein which shall hold the field. In the 
F 
instant case, the agreement to sell acknowledges 
payment of the part of consideration money and further 
giving actual physical possession to the purchaser by the 
seller. [para 9] [929-F-H; 930-A] 
1.2 From a plain reading of s.2(10) of the Stamp Act, 
G 1899 defining "conveyance", it is evident that an 
instrument by which movable or immovable property is 
transferred, comes within the expression "conveyance". 
In the instant case, an immovable property has been 
transferred on payment of part of the consideration and 
H handing over the possession of the property. It is 
OM PRAKASH v. LAXMINARAYAN & ORS. 
925 
significant to note that by the Indian Stamp (Madhya A 
Pradesh Second Amendment) Act, 1990, Article 23 of 
Schedule 1-A has been substituted and Explanation 
added to it creates a legal fiction, in that the agreement 
to sell shall be deemed to be a conveyance and stamp 
duty is leviable on an instrument whereby possession 8 
has been transferred. Thus, the agreement to sell in 
question is a conveyance within the meaning of s.2 (10) 
of the Act and is to be duly stamped. [para 10 and 11] 
[930-E-F; 931-D-E] 
Avinash Kumar Chauhan v. Vijay Krishna Mishra, 2008 C 
(17) SCR 944 = (2009) 2 sec 532 - relied on. 
Laxminarayan & Ors. v. Omprakash & Ors., 2008 (2) 
MPLJ 416 - stood overruled (in Man Singh (deceased} 
through Lrs. Smt Sumranbai and Ors. vs. Rameshwar 
decided by Madhya Pradesh High Court on 22.1.2010). 
D 
1.3 From a plain reading of s.35, it is evident that an 
authority to receive evidence shall not admit any 
instrument unless it is duly stamped. An instrument not 
duly stamped shall be admitted in evidence on payment E 
of the duty with which the same is cbargeable or in the 
case of an instrument insufficiently st

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