Dr. Y. Srinivasa Rao,
M.A (English Lit.)., B.Ed., LL.M., Ph.D in Law of Torts,
Chief Metropolitan Magistrate, Vijayawada.
In a fiscal Statute, one has to go by the plain language. The transfer of property necessarily involves conveyance and such conveyance requires payment of stamp duty and some of the deeds of conveyance require compulsory registration as was observed in Gaddam Laxmaiah and others Vs. Commissioner and Inspector General, Registration and Stamps, Hyderabad and others, 2017 (4) ALT 213 (DB). It is well-settled law that the Stamp Act is a fiscal measure enacted to secure the revenue for the State, and not to arm the opponent with a weapon of technicality. The object of charging stamp duty stamp duty is to secure revenue for the State on transactions, the consideration in respect of which, are determined by market forces created by the activities of the State, as is observed in Suram Bapu Reddy Vs. Janagam Laxmi, 2019 (2) ALT 149 (DB). Deficit Stamp duty mistake could be rectified under Section 41-A of the Act and now it was sought to be rectified, it cannot be held that there was a violation of principles of natural justice and beyond the jurisdiction of Section 41-A, as was held in Uppu Yanaiah Vs. Chief Controlling Revenue Authority and Commissioner and Inspector General of Registration and Stamps, A.P., Hyderabad and others, 2017 (5) ALT 25. If the petitioner was aggrieved of the demand of deficit Stamp duty, he should have availed the remedies at that point of time by challenging the order of the second respondent, but after paying the amount voluntarily, he cannot seek refund of the Stamp duty under Section 45 (2) of the Act, as is held in Rama Lace Industries, rep. by its Partners K. Narender Kumar and K. Raghavendra Kumar Vs. Chief Controlling Revenue Authority and Inspector General of Registration and Stamps, A.P., Hyderabad and others, 2017 (4) ALT 379.
The levy of the stamp duty and penalty is always in relation to the document which is to be marked before the Court and such levy cannot depend upon the pleadings of the parties, as is pointed out in Kota Ganta Rao Vs. Kamineni Anjaneyulu (died) and others, 2023 (1) ALT 676. The rule is such that when plaintiff filed suit seeking specific performance on the basis of possessory agreement of sale Unless the document is sufficiently stamped it cannot be marked even for collateral purpose. It was held in P.N.Varalakshmi (died) and others Vs. K. Chandra and another, 2023 (1) ALT 415 that merely because the document is assigned an exhibit number, it cannot be treated as an admission of the same in evidence, as required under Section 36 of the Act. In the matter of collection of deficit stamp duty, the District Registrar is no way verifying the truth or otherwise of the said document nor certifying the execution of such document by the person who is shown to have executed such document unlike registration of a document under the provision of the Registration Act, 1908 nor he is entitled to undertake any such exercise, as was held in P. Balabhaskar Reddy and others Vs. State of Telangana, rep. by its Principal Secretary, Revenue Department and others, 2023 (3) ALT 144. In a case of suit filed for partition also, even for collateral purpose of showing possession of the property, when an unregistered document is sought to be filed in evidence it must necessarily be stamped as required under law as pointed out in Yerra Narasimha Rao Vs. Yerra Koteswara Rao and others, 2022 (6) ALT 118.
Impound the document:
‘Impound’ means to keep in custody of the law (vide Suresh Nanda v. CBI (1) 2008 (2) ALT (Crl.) 344 (SC) = (2008) 3 SCC 674). What is required under Section 33 of the Act is only to impound the document when it is not duly stamped. (vIde Jetti Madhumai Vs. Chigurupati Girija Lakshmi and another, 2022 (4) ALT 479). The documents of agreement of sale executed before 01.04.1995. They do not require stamp duty on par with sale deed, but they can be received in evidence, if they are executed on stamp paper worth ` 100/- as was held in Sirigiri Obulesu Vs. Duggineni Venkateswarlu, 2022 (4) ALT 612. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive in evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped.
Duty of the Court:-
If an insufficiently stamped document comes before a Court, a duty is cast upon the Court to impound the document by following the procedure under the stamp Act and ensure that the requisite stamp duty is paid Only after the requisite stamp duty is paid, the document becomes admissible in evidence, Tatineni Venkata Subba Rao (died LRs brought on record) Vs. Kodali Jayalaxmi Devi, Kanur, Krishna District, 2018 (4) ALT 1. Subsequent conduct of the party is not important and the recitals in the document are important. As was held in Ms. Stella Mary Vs. M. Devender Reddy, 2017 (5) ALT 532, instrument not duly stamped is liable for impounding and can be admitted in evidence on payment of duty chargeable together with the penalty payable, if any on such instrument. It was held in S. Mohan Krishna Vs. V. Varalakshmamma and others, 2017 (5) ALT 264, that it is the duty of court, who is competent to receive a document in evidence, to determine judiciously about the admissibility of the document if it is insufficient or unstamped to levy stamp duty and penalty by exercising power under Section 33 of Stamp Act.
When a document is not duly stamped, but it is tendered for evidence, the first duty of the Court is to act in accordance with Section 33 of the Indian Stamp Act, 1899, which mandates that the Court shall impound the document. Failure to adjudicate on a fact that was presented before it for adjudication is failure to exercise jurisdiction and then such order suffers from that illegality requiring interference. The trial Court shall verify these documents and evaluate the need for payment of any stamp duty and penalty and then proceed in accordance with law after consultation with the petitioner as to whether the petitioner is inclined to pay the stamp duty and penalty at the Court or would have it done at the office of the learned Registrar, as was held in P. Venkayamma Vs. Bhimavarapu Bhimeswara Prasad and another , 2022 (5) ALT 760.
In S. Kaladevi’s case, the Apex Court has relied upon its earlier judgment in K.B. Saha & Sons Private Limited v. Development Consultant Limited [(2008) 8 SCC 564 = 2009 (5) ALT 32.1 (DN SC)]. In the said judgment, the Apex Court has culled out certain principles which are as under:
“1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.”
One more principle observed is such that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.
It is relevant to note that in Omprakash v. Laxminarayan (2) (2014) 1 SCC 618 = 2014 (1) ALT 47.3 (DN SC), the Apex Court had an occasion to deal with the provisions of the Act, 1899 and admissibility of document and also the question as to 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 the Act, 1899 and is duly stamped. In the said decision, suit for specific performance of contract was founded on the unregistered agreement to sell dated 27.12.2000. Considering the question of admissibility of document, the Apex Court held that it is the recital therein which shall be decisive. Whether the possession in fact was given or not in terms of the agreement to sell is a question of fact which requires adjudication. But, 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 document shall be conclusive but for the purpose of admissibility, it is the terms and conditions incorporated therein which shall hold the field. The said agreement to sell therein is squarely falls in the definition of ‘conveyance’ within the meaning of Section – 2(10) of the Act, 1899. Thus, the Apex Court held that the provisions of Section 47-A of the Act, 1899 shall apply mutatis mutandis to such agreement which is deemed to be a conveyance as aforesaid, as they apply to a conveyance under that section. Therefore, the Stamp Duty, as per the provisions of the Act, 1899 needs to be paid. Anumandla Janardhan Vs. Keshapaka Mallaiah, died per L.Rs. 2022 (4) ALT 733. If any insufficiently stamped instrument is found, the same shall be impounded as was observed in Madgal Srihari Vs. Bandari Krishna (Died), 2022 (3) ALT 616. Instrument not duly stamped is inadmissible in evidence for any purpose until the payment of duty.
Document marked cannot be demarked:
During the cross-examination no objection can be raised on the ground of insufficiency of stamp-duty. As such, the document, which is already marked as exhibit A1, cannot be demarked as is held in Jatti Veera Venkata Satyam Vs. Bosukonda Chinnadevi and others, 2022 (3) ALT 345. In R. Venkataramana Reddy Vs. R. Radha Krishna Reddy and others , 2020 (1) ALT 247, when once a document or instrument is admitted in evidence, upon marking it as an exhibit, it is an invariable and an inviolable necessity to follow Order-13, Rule-4 CPC. When the bar to question an instrument, once admitted in evidence is so absolute in terms of Section 36 of Stamp Act, having regard to the nature of this enactment (Stamp Act) it is neither permissible to interpret its provisions in any other manner than what they convey and signify. Language of Section 36 of Stamp Act did not permit any elasticity nor it is malleable. It cannot be stretched to such an extent, importing what is not stated in it, to make this provision completely nugatory. It has its own effect. It also provides for collection of stamp duty including penalty on an instrument, taking recourse to Section 61 of Stamp Act. Therefore, no new device can be deployed by procedural means or adaptation. A careful reading and understanding of rulings of Hon’ble Supreme Court in Javer Chand v Pukhraj Surana and R.V.E.Venkatachala Gounder leaves no manner of doubt that the bar under Section 36 of Stamp Act in respect of an instrument, once admitted in evidence, stands. It did not and cannot pale to insignificance. Once a document admitted in evidence it gets insulated thereunder, from the operation of Section 35 of the Stamp Act, subject to exception laid down in Section 36 itself.
Explanation-I to Article 47-A of Schedule I-A of the Stamp Act, 1899 states that an agreement of sale followed by or evidencing delivery of possession of property agreed to be sold shall be chargeable as a sale under the said Article. Vide. Y. Vijayalakshmi and others Vs. Ashish Aggrawal and others, 2019 (6) ALT 333.
The Full Bench in Smt. Katta Sujatha Reddy and another Vs. Siddamsetty Infra Projects Pvt. Ltd. and others , 2022 (3) ALT (SC) 104, held that If the agreement of sale is coupled with possession, it requires Stamp Duty and Stamp duty has to be paid as per Schedule 1A of Article 47A of the Stamp Act. The document containing the recital to execute another document having recital of delivery of possession cannot said that it is a release deed and it is an agreement of sale followed by and evidencing delivery of possession of the property, which require stamp duty as per Explanation I of Article 47-A of Schedule I-A of Indian Stamp Act, as was pointed out in K. J.K. Setty Vs. K.N. Setty, 2022 (3) ALT 296. It was held in Paturi Veera Venkata Narasimha Rao and another Vs. Rayudu Venkata Krishna Rao, 2022 (3) ALT 115, any agreement of sale which evidences delivery of possession would fall within the ambit of Article 47-A of Schedule-1 A of the Indian Stamp Act,1899. Crucial point to be noted is that when the sale certificate was issued under the authority of Central enactment, i.e., SARFAESI Act, the value set forth in the said document cannot be doubted and it can be taken as market value of the property for the purpose of registration, as was held in State of Andhra Pradesh, rep. by its Principal Secretary, Revenue Registration 1 Department, Amaravathi, Guntur and others Vs. Marvel Financial Services Ltd., and another, 2022 (2) ALT 450 (DB).
Loss of Original document:
Loss of original document If the original document which was filed in Court was deficitly stamped and lost or misplaced while in the custody of the Court, it can be reconstructed by the Court by exercising its inherent powers, in which case, the reconstructed document, by virtue of legal fiction, assumes the character of original document for all purposes, including the Stamp Act. Ref. Kasireddy Satyanarayana Vs. State of Andhra Pradesh and others, 2021 (5) ALT 581. It was held that If the original document was duly stamped and lost in the hands of the party, he may produce its copy in Court and seek to admit the same as secondary evidence on proving that the original was lost.
No instrument chargeable with duty shall be admissible in evidence:-
No instrument chargeable with duty shall be admissible in evidence for any purpose by any person having by law or consent of parties, authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, as was held in Nune Munthala Rama Laxmi Vs. Canara Bank formerly Syndicate Bank, 2021 (5) ALT 272 (DB).
Jurisdiction of the Registrer:- Once an insufficiently stamped document is submitted for registration, the registering authority has a right to keep the said document pending, for collection of deficit stamp duty and imposition of penalty, if any, under Section 33 of the Indian Stamp Act, 1899. (Para 13), vide Mandala Anjaneyulu and another Vs. District Registrar, Medchal-Malkajgiri District at Keesara and others, 2020 (6) ALT 134. 1). There is no period of limitation for registration of a document, once the document is presented and accepted for registration. 2). Once a sale deed is presented for registration, the recitals made therein were admitted by the vendors/executants in the presence of witnesses subsequent death of the party will not change the character of the document. 3). The document shall be presented for registration where the whole or some portion of the property is situate. 4). Limitation for presenting the document is 4 months from its execution.
The concept of imposition of penalty of ten times of a sum:
The concept of imposition of penalty of ten times of a sum equal to ten times of the proper duty or deficiency thereof has occurred in other provisions of the Act as well. The purpose of penalty generally is a deterrence and not retribution When a discretion is given to a public authority, such public authority should exercise such discretion reasonably and not in oppressive manner. The Full Bench in Trustees of H.C. Dhanda Trust Vs. State of Madhya Pradesh and others, 2020 (5) ALT (SC) 172 (F.B). Section 40 of Indian Stamp Act, 1899 provides for Collectors power to stamp instruments impounded. Section 40(1) which is relevant for the present case which is as follows:
“40. Collectors power to stamp instruments impounded. — (1) When the Collector impounds any instrument under Section 33, or receives any instrument sent to him under Section 38, sub-section (2), not being an instrument chargeable with a duty not exceeding ten naye paise only or a bill of exchange or promissory note, he shall adopt the following procedure: —
(a) if he is of opinion that such instrument is duly stamped or is not chargeable with duty,he shall certify by endorsement thereon that it is duly stamped, or that it is not so chargeable, as the case may be;
(b) if he is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of five rupees; or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees: Provided that, when such instrument has been impounded only because it has been written in contravention of Section 11 or Section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section.”
According to Section 40(1)(b) if the Collector is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the of the proper duty or the amount required to make up the same, together with a penalty of the five rupees; or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or of the deficient portion thereof. The statutory scheme of Section 40(1)(b) as noticed above indicates that when the Collector is satisfied that instrument is not duly stamped, he shall require the payment of proper duty together with a penalty of the five rupees. The relevant part of Section 40(1)(b) which falls for consideration in these appeals is: “or, if he thinks fit, an amount not exceeding ten times the amount of the proper duty or deficient portion thereof.”
Sale certificate – whether registration and stamp duty is necesssary:
Registration is not compulsory for any Certificate of Sale for the property sold by a public auction by a Civil or a Revenue Officer Authorised Officer of the Bank is neither a Civil nor a Revenue Officer. Sale certificate issued by authorized officer under the SARFAESI Act is not exempt from registration charges or Stamp duty as was held in Munirathnam Reddy Kamasani and another Vs. District Registrar, Chittoor District and others, 2020 (6) ALT 19.
In A. Archana Vs. D. Uma Maheswara Reddy, 2019 (5) ALT 299, it was observed that in respect of an unregistered mortgage deed being admissible in evidence, in terms of proviso to Section 49 of the Registration Act, 1908, could be considered by permitting to exhibit the same as a part of evidence. After reviewing the law, basing on the rulings of various High Courts including the High Court at Hyderabad, with reference to the application of Section 17(1)(c) as well as Section 49 of Registration Act, it was observed in paragraph-27 as under:
“As per the above decisions of various High courts, including this Court, an unregistered mortgage deed can be admitted in evidence for collateral purpose of recovery of money covered by an unregistered mortgage deed without touching upon the right regarding the property when there is a personal covenant to repay the debt, which is severable from other parts of the document.” See. Bhojram v. Wadla Gangadhar, 2004 (2) ALT 367.
Objections as to Stamp duty should be decided then and there itself:
In Bipin Shantilal Panchal v. State of Gujarat and another AIR 2001 SC 1158, the Supreme Court has made it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. In Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries) and others (3) (2010) 8 SCC 423, the Supreme Court held that the issue of admissibility of documents cannot be left open and hanging by the trial Court and should be decided as and when such objection is raised. In the cited case, it was observed as under:
On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial Court should not have “marked” as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded. See. M. Pentamma Vs. B. Seshagiri Rao , 2016 (5) ALT 580.
Registration – Stamp duty : Certain Deeds:
1. The deed is a gift settlement deed and it is to take effect on the day of its execution and that the rights created thereunder are to take effect from that day. 2. A Will is not a compulsorily registerable document. 3. Even if a testator chooses to register a Will, no stamp duty would be paid on the value of the properties bequeathed under the Will as no such stamp duty is collectable on a deed of Will. See. Ande Sambasiva Rao Vs. Gunti Rama Subba Rao and another, 2019 (5) ALT 136. 4) When Award has not been stamped, it cannot be enforced under Sections 48 and 49 of the Arbitration and Conciliation Act, 1996, as was held by the Dvivison Bench, in Shriram Epc Limited Vs. Rioglass Solar Sa, 2018 (5) ALT (SC) 41 (DB). 5. No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having the authority to receive evidence or shall be acted upon Therefore, before admitting in evidence, the CC of unregistered partition deed, the trial Court is obligated under law to examine whether its original is properly/duly stamped, Sure Ranga Murali Krishna Reddy Vs. Sure Yerri Vara Prasada Reddy and others, 2018 (4) ALT 616. 6. Stamp duty is payable on a security bond executed by a surety/guarantor undertaking to pay the debt covered by promissory note to the creditor if principal debtor fails to pay, under Article 48 of Schedule 1-A of Stamp Act, 1899. (Para 10.3), vide A. Shakunthala Vs. A. Mangamma and another, 2016 (3) ALT 683. 7. When the document on the face of it is a possessory contract of sale and when plaintiff in the suit claims delivery of possession thereunder, stamp duty on such a document executed only on stamp paper worth ` 100/-, is liable to be paid as if it is a sale under Explanation to Article 47-A of Schedule 1-A of Stamp Act. (Para 33), vide Syed Yousuf Ali Vs. Mohd. Yousuf and others, 2016 (2) ALT 557. 8. The document in question is a deed of partition and not a memorandum of partition or a list of partition recording past partition and that, therefore, the document in question is required to be charged with duty and that as it is not charged with any duty. It is inadmissible in evidence until requited stamp duty and penalty are paid as per the provisions of the Indian Stamp Act. See. Koyya Ganga Venkata Satya Bhaskara Rao Vs. Koyya Rama Krishnudu and others, 2019 (3) ALT 53. 9. All leases of immovable property irrespective of their duration executed after 1-4-1999 are compulsorily registerable as per State amendment of Registration Act. (Para 29), Kiran Bansal Vs. T. Chandra Kala and another, 2015 (6) ALT 670. Though a document (original) inadequately stamped can be validated under Section 35 of Stamp Act, 1899 by paying deficiency and penalty, a photo copy of such document cannot be validated under that provision. (Paras 32 and 33). 10. Question of adducing secondary evidence by producing a xerox copy of document does not arise when the existence of original document itself is not believable, especially when the original document is liable for stamp duty and registration. (Para 2), vide Bachu Laxmipathi Vs. Bachu Kistaiah and others, 2015 (5) ALT 795.
In V. Madhusudhan Rao and others Vs. S. Nirmala Bai and others , 2019 (3) ALT 79, it was held that a document which is not stamped as required under law cannot be received in any evidence for any purpose Section 35 of the Indian Stamp Act, 1899 makes this very clear The proviso to Section 35 of the Indian Stamp Act, deals with this Thus, the defect of Stamp duty or deficit stamp duty is a curable defect, but till the stamp duty/penalty is paid, the document is totally inadmissible for any purpose Section 49 of the Registration Act, states that no document which has to be registered shall be received in evidence of any transaction effecting such property unless it is registered Therefore, it is now clear that (1) a collateral transaction is a transaction which is independent of, or divisible from, the transaction which by law requires registration This Court is of the opinion that the sale deed in question cannot be received in evidence as it is not registered It cannot also be received for a collateral purpose for the simple reason that the possession is not a collateral transaction that is independent or divisible from transfer recorded in the sale deed The impugned order is therefore set aside and the civil revision petition is allowed.(Paras 9, 11, 15, 17 and 18).
Fixation of Market value :
The relevant principles to be followed while determining the market value have been crystallized by the Supreme Court in (AIR 1992 SC 2298). Market value under Section 23 of the Act cannot be fixed on the basis of the rates mentioned in the Basic Valuation Registers maintained for the purpose of detection of undervaluation and collection of proper stamp duty, vide U.M. Ramudu and others Vs. Revenue Divisional Officer-cum-Land Acquisition Officer, Adoni, Kurnool District and others, Bhargav Samanna and others v. Special Tahsildar and Land Acquisition Officer, Visakhapatnam Municipality, 2016 (5) ALT 105 (DB).
Collection of deficit stamp duty – Duty of District Registrar:
In the matter of collection of deficit stamp duty, the District Registrar is no way verifying the truth or otherwise of the said document nor certifying the execution of such document by the person who is shown to have executed such document unlike registration of a document under the provision of the Registration Act, 1908 nor he is entitled to undertake any such exercise. Registering authorities are not entitled to refuse registration of a document on mere ground that the title of the executants of the respective document is based upon the validated document. See. P. Balabhaskar Reddy and others Vs. State of Telangana, rep. by its Principal Secretary, Revenue Department and others, 2023 (3) ALT 144. The suit and other connected proceedings shall go on according to law, without waitng for the return of the documents from the Collector. In Chintalapudi Annapurnamma and another vs. Andukuri Punnayya Sastry and others, 2000 (3) ALT 159 (DB); Y. Peda Venakayya Vs. R.D.O. Guntur, 1981 (2) ALT 1.
Registration of an instrument is a notice by way of definite recorded information to the world at large to enable public to verify records and enquire there from right, title and obligations if any on any immovable property. Even if the document is sought to be admitted in a suit for specific performance or as evidence of any collateral transaction, it must be properly stamped. Once the instrument is duly impounded, it is as good as originally duly stamped. Though the instrument is not admissible for the purpose of proving a concluded transaction transferring an interest, yet it can be received in evidence for collateral purposes. The effect of non-registration is that such a document shall not affect any immovable property covered by it or confer any power to adopt and it cannot be received as evidence of any transaction objecting such property or conferring such power. The question of impounding by Court arises when tendered in evidence to exhibit and not from mere filing with plaint. An agreement containing a specific recital of delivery of possession or indicating delivery of possession even in the past, it is liable for stamp duty as a sale under the explanation to Art.47-A of Schedule 1-A of the Stamp Act. In a suit for specific performance if the agreement does not contain a specific recital of delivery of possession it is not liable for stamp duty. Aspects as to whether or not the original, if any, is duly stamped and whether or not such original is compulsorily registrable and whether or not any stamp duty and penalty are collectable and if collectable, the same can be collected on the Photostat copy are left open for appropriate consideration by the trial Court at a stage when the Photostat copy comes to be first tendered in evidence. Nomenclature of or the caption given to the document is not determinative but the nature or the substance of the transaction contained in the document is only the determinative factor. In view of Section 35 of the stamp Act, unless stamp duty and penalty due in respect of the instrument is paid, the Court cannot act upon the instrument, which means that it cannot act upon the arbitration agreement also, which is a part of the instrument. When there is no recital in the agreement of sale as to delivery of possession and when there is nothing to show that possession was delivered though the agreement, the agreement is not liable to be stamped as a sale deed under Article 47-A of stamp Act Delivery of possession should be intimately and inextricably connected with the agreement to attract the said provision. Merely because the document is assigned an exhibit number, it cannot be treated as an admission of the same in evidence, as required under Section 36 of the Act, vide P.N. Varalakshmi (died) and others Vs. K. Chandra and another, 2023 (1) ALT 415. The levy of the stamp duty and penalty is always in relation to the document which is to be marked before the Court and such levy cannot depend upon the pleadings of the parties.