SWAPNADIN LAHIRI Vs. TRIDIB DAS ROY

JUDGEMENT

(1.) 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 or Rs. 10/- was affixed on such agreement. According to the defendant, in view of Item No. 5(d) of the Schedule IA 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 document become instrument only when a right is created in the immovable property by virtue of such document.