### Unregistered Agreement for Sale is Admissible for Specific Performance if Possession is Retained Independent of Contract

The original plaintiff (Dnyanoba Jadhav) executed a sale deed of the suit property in 1961 in favor of Bhika Sorte (deceased defendant) as security for financial assistance.

Although the name of Bhika Sorte was entered into revenue records, the plaintiffs claimed they remained in continuous physical possession.

In 1996, a "suit agreement" was executed between the deceased plaintiff and Bhika Sorte for reconveyance of the property for Rs. 5,000, of which Rs. 3,000 was paid.

Following Bhika Sorte's death, his heirs refused to execute the sale deed, leading to a suit for specific performance.

The Trial Court and First Appellate Court concurrently decreed the suit in favor of the plaintiffs.

The appellants (defendants) challenged these findings in a Second Appeal, alleging the agreement was inadmissible and that the plaintiffs’ witnesses admitted the document was handwritten, whereas a typewritten one was produced.

1. Whether the Courts failed to consider admissions by the original plaintiff’s witnesses that the agreement was a handwritten document, and the effect of such non-consideration?

2. Whether the agreement (Exhibit-59) was inadmissible and could not be acted upon due to being unstamped under Section 34 of the Maharashtra Stamp Act read with Article 25 of Schedule I?

The Court applied Section 100 of the Code of Civil Procedure (CPC), which limits the High Court's jurisdiction in second appeals to "substantial questions of law," and Section 103 regarding the power to determine issues of fact in specific circumstances.

It applied Section 34 of the Maharashtra Stamp Act, 1958, which prohibits admitting unstamped or insufficiently stamped instruments in evidence or acting upon them.

Furthermore, it interpreted Explanation I to Article 25 of Schedule I of the Stamp Act, which deems an agreement to sell as a "conveyance" (attracting higher duty) only if possession is transferred in pursuance or furtherance of said agreement.

Precedents including Santosh Hazari v. Purushottam Tiwari and Yadarao Shrawane v. Nanilal Shah were cited to delineate the scope of interference with concurrent findings of fact.

Regarding the first issue, the Court found that the witnesses' references to a "written" document were interpreted by the lower courts as "in writing" rather than specifically "handwritten"; thus, there was no perversity in accepting the typed Exhibit-59.

On the second issue, the Court held that Section 34 of the Stamp Act did not bar Exhibit-59 because the plaintiffs did not claim to have received possession under the 1996 agreement; rather, they claimed they were always in possession due to the original nature of the 1961 transaction.

Since possession was not transferred "in pursuance or furtherance" of the suit agreement, it did not qualify as a "deemed conveyance" under Article 25, Explanation I, and thus did not require the higher stamp duty at the agreement stage.

The Court noted that full stamp duty would be payable upon the execution of the final sale deed as per the decree.

The Second Appeal was dismissed, and the judgments and decrees of the Trial Court and First Appellate Court for specific performance and confirmation of possession were upheld.