Bombay High Court
VYANKATI NARBAJI MORE THROUGH POA OMSINGH BABUSINGH GEHLOTversusSHIVKARANSINH NARSINH THAKUR
- Disposal
- DISPOSED OFF
- Bench
- S G CHAPALGAONKAR
Holding
The writ petition is dismissed as the agreement to sell was properly admitted in evidence and the trial court’s refusal to entertain the petitioner's objection is upheld.
Summary
The petitioner challenged a civil‑court order that had refused to reject an agreement to sell dated 01‑04‑2022 on the ground that it was executed on a Rs 100 stamp paper, was not registered under Section 17 of the Registration Act, 1908 and was insufficiently stamped. The trial court had admitted the agreement as Exhibit 46 and dismissed the petitioner's application under Order XIII‑Rule 3 of the CPC. The petitioner argued that the document required registration and proper stamping before it could be admitted, invoking Sections 34 and 35 of the Maharashtra Stamp Act and Section 17 of the Registration Act. The High Court held that the agreement, being a covenant without a stipulation of possession, was not liable to stamp duty, that the proviso to Section 49 of the Registration Act permits admission of unregistered documents for collateral purposes, and that objections to admissibility must be raised at the time of tender, not after admission. It further noted that once admitted, a document cannot be questioned on stamp‑duty grounds except under Section 58 of the Maharashtra Stamp Act. Consequently, the Court found no merit in the writ petition and dismissed it, upholding the trial court’s decision.
Issues considered
- Whether an agreement to sell executed on insufficiently stamped paper and unregistered can be admitted as evidence under the Maharashtra Stamp Act and Registration Act.
- Whether an objection to admissibility of such a document can be raised after it has been marked as an exhibit.
- Whether Order XIII‑Rule 3 of the CPC permits the court to reject the document at the stage of admission.
Legislation cited
- Code of Civil Procedure — s. Order XIII Rule 3
- Maharashtra Stamp Act — s. 34, 35, 58
- Registration Act, 1908 — s. 17(1)(a), 49
- Transfer of Property Act — s. 53
Subjects
- specific performance
- agreement to sell
- stamp duty
- registration
- admissibility of evidence
- civil procedure
- unregistered instrument
Judgment
2026:BHC-AUG:26040
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WP-6060-2026
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6060 OF 2025
Shri Vyankati S/o. Narbaji More,
Age : 51 years, Occu. : Business,
R/o. Vasarni, Tq. & Dist. Nanded,
Through his power of attorney holder
Shri Omsingh s/o. Babusingh Gehlot,
Age : 56 years, Occu. : Business,
R/o. Lohargalli, in front of Ganesh Talkies,
Nanded, Dist. Nanded. … Petitioner
(Orig. Defendant)
Versus
Shri Shivkaransinh S/o. Narsinh Thakur,
Age : 56 years, Occu. : Business,
R/o. Gadipura, Near Habib Talkies,
Nanded, Dist. Nanded. … Respondent
(Orig. Plaintiff)
...…
Mr. A. A. Mukhedkar, Advocate fo Petitioner.
Mr. G. R. Syed, Advocate for Respondent.
......
CORAM : S. G. CHAPALGAONKAR, J.
DATED : 17th JUNE, 2026
ORDER :
1. The petitioner impugns order dated 20.03.2025 passed
by Civil Judge, Senior Division, Nanded below Exhibit 47 in Special
Civil Suit No. 188 of 2023, whereby petitioner’s application for de-
exhibiting agreement to sell dated 01.04.2022 came to be rejected.
2. Respondent/plaintiff filed Special Civil Suit No.188 of
2023 against petitioner/defendant seeking a decree of specific
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performance of contract in respect of land Gut No.62/C situated at
Vasarni, Nanded. It is alleged that on 01.04.2022, an agreement to
sell in respect of suit property was executed by petitioner/
defendant in favour of respondent/plaintiff for consideration of
Rs.1,25,000/-, and possession of property was delivered.
Petitioner/defendant filed written statement denying execution of
agreement and delivery of possession. On basis of pleadings of
parties, Trial Court framed issues. Respondent/plaintiff recorded
his evidence.
3. Respondent/plaintiff filed evidence affidavit and
referred to agreement to sell in his evidence. Accordingly,
agreement to sell was admitted at Exhibit 46. At this stage,
petitioner-defendant filed application below Exhibit 47 seeking
rejection of document on ground that it was executed on a stamp
paper of Rs.100/-. It has not been registered in terms of Section
17(1) of Registration Act, 1908. Further, it is not sufficiently
stamped. As such, it is not admissible in evidence and is liable to be
rejected in terms of Order XIII, Rule 3 of Code of Civil Procedure.
The Trial Court rejected petitioner's prayer vide impugned order
dated 20.03.2025. Hence, this Writ Petition.
4. Mr. Mukhedkar, learned Advocate appearing for
petitioner endeavors to impress upon this Court that, in light of
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specific pleadings in plaint regarding delivery of possession on
basis of alleged agreement to sell dated 01.04.2022, the document
could not have been admitted in evidence unless it complies with
requirements in terms of Section 34 of Maharashtra Stamp Act. He
would further submit that Section 17 of Registration Act, 1908
requires compulsory registration once it has been recorded in
document containing a contract to transfer immovable property
for consideration. He would further submit that Rule 3 of Order
XIII of the CPC empowers the Court to reject a document which is
inadmissible. Therefore, Trial Court committed patent illegality
while exhibiting document and rejecting petitioner's application
filed under Order XIII, Rule 3 of CPC.
5. Perusal of agreement to sell dated 01.04.2022 shows
that although it is a covenant whereby petitioner and respondent
agreed for sale of property, there is no stipulation about delivery of
possession. In this backdrop, document is not susceptible to
payment of stamp duty. So far as objection as to non-registration is
concerned, the proviso to Section 49 of Registration Act makes an
exception to general rule and permits unregistered document to be
admitted in evidence for collateral purposes and collateral
transactions not required to be effected by a registered document.
Apparently, circumstances as stipulated in Rule 3, Order XIII of
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CPC are not discernible from contents of document dated
01.04.2022.
6. Pertinently, objection has been raised after document
was already admitted in evidence and marked as Exhibit 46. It is
trite that objection about admissibility of document has to be raised
when document is tendered in evidence and not after the same is
marked as an exhibit. Reference can be given to law laid by this
Court in case of Mr. Farookh Ahmed Meman v. Mr.Kadeer Kadar
Meman, 2016 (1) Mh.LJ. 867.
7. Further section 35 of Maharashtra Stamp Act
prescribes that once an instrument has been admitted in evidence,
such admission shall not, except as provided in Section 58 of the
Act, be called in question at any stage of same suit or proceeding on
the ground that instrument has not been duly stamped.
8. The cumulative reading of Section 35 with Section 58 of
Maharashtra Stamp Act makes it crystal clear that the Stamp Act
is enacted to secure revenue for the State on certain classes of
instruments. The non payment of stamp duty is a curable defect
and it can be cured at any stage. However, once a document is
admitted in evidence, such admission cannot be questioned except
under Section 58 of the Act.
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9. In present case, the Trial Court has appropriately
considered the relevant provisions of Maharashtra Stamp Act
while declining to entertain petitioner’s application. Pertinently,
Section 17(1)(a) of Registration Act comes into operation only
when party wants to take benefit of section 53 of Transfer of
Property Act and not otherwise.
10. The suit based on unregistered agreement to sell for
specific performance of contract is permissible. However, it is
always open for Court to examine validity, enforceability and proof
of contents thereof on the basis of evidence laid by parties during
trial.
11. In that view of matter, this Court finds no substance in
Writ Petition. Hence, Writ Petition stands dismissed.
(S. G. CHAPALGAONKAR, J.)
Tandale
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