The Calcutta High Court in a Division Bench decision set aside a trial court's dismissal of a specific performance suit, holding that procedural defects in the plaint and agreement do not vitiate the claim where the property is sufficiently described and consensus ad idem is established, while directing remand for stamp duty impoundment under the Indian Stamp Act.
Background & Facts
The Dispute
The appellant, Amarendra Nath Mitra, filed a suit for specific performance of an agreement for sale of a 1/7th share of property belonging to the predecessor-in-interest of the respondents, Sm. Sudha Mitra and others. The agreement was evidenced by a money receipt (Exhibit 1) which recorded the broad terms and conditions of the transfer. The suit proceeded ex parte as the defendants/respondents did not appear despite service of summons.
Key Facts
- The agreement for sale was contained in a money receipt (Exhibit 1) executed by the predecessor-in-interest of the defendants/respondents, agreeing to transfer his 1/7th share in the subject property to the plaintiff/appellant
- The property in respect of which the 1/7th share was agreed to be conveyed was categorically described in the agreement itself
- No formal schedule was attached to the plaint, though paragraph 6 of the plaint described the property
- The agreement was not signed by the plaintiff/appellant
- There were no attesting witnesses to the agreement
- The agreement was insufficiently stamped in terms of Schedule IA of the Indian Stamp Act, as amended in West Bengal
- The respondents did not contest the suit in the trial court
Procedural History
- Title Suit No. 144 of 2013: Filed before the Civil Judge, Senior Division at Sealdah, District South 24 Parganas
- July 24, 2023: Impugned judgment and decree passed by the learned Trial Judge dismissing the suit on four grounds: (i) no schedule in plaint, (ii) agreement insufficiently stamped, (iii) no witness to agreement, (iv) no signature of plaintiff on agreement
- FA 120 of 2025: First Appeal filed before the High Court at Calcutta
- 03.09.2026: Affidavit of service filed indicating substituted service of notice of appeal on respondents; appeal heard and judgment pronounced same day
- 03.09.2026: Division Bench (Justice Sabyasachi Bhattacharyya and Justice Sandip Kumar De) delivered judgment allowing the appeal
Relief Sought
The appellant sought specific performance of the agreement for sale of the 1/7th share of the property as evidenced by Exhibit 1, and in the alternative, proper adjudication of stamp duty and decree upon payment of deficit duty.
The Legal Issue
The central questions were: (i) whether the absence of a formal schedule in the plaint vitiates a specific performance suit where the property is sufficiently described in the agreement and plaint; (ii) whether Section 68 of the Indian Evidence Act, 1872 requires attestation of an agreement for sale; (iii) whether an agreement unsigned by the plaintiff can be enforced based on the plaintiff's conduct establishing consensus ad idem; and (iv) whether an insufficiently stamped agreement for sale warrants outright dismissal of the suit or mandates impoundment under the Indian Stamp Act.
Arguments Presented
For the Appellant
Learned counsel for the appellant advanced four principal contentions. First, on stamp duty, reliance was placed on Sections 3 and 4 of the Indian Stamp Act, 1899 (as amended in West Bengal), arguing that where a transaction comprises several documents, it suffices if one is sufficiently stamped; the agreement for sale being a prelude to the sale deed, the balance stamp duty would be payable along with the sale deed. Second, the property was sufficiently described in paragraph 6 of the plaint read with the money receipt, rendering the absence of a formal schedule non-fatal. Third, the money receipt containing the terms of the agreement constituted a binding promise equatable with an agreement for sale, as held in Bommaka Nagabhushana Reddy v. W. Srinivasa Rao (2002) 9 SCC 664, where the Supreme Court observed that a promise to transfer property conveys the same meaning and effect as an agreement for sale. Fourth, Section 68 of the Evidence Act does not impose an independent duty of attestation unless a separate statute so requires; citing Gurmail Singh v. Sukhdev Singh (Punjab & Haryana High Court), counsel submitted that no statute mandates attestation of an agreement for sale.
For the Respondent
The respondents did not appear or contest the suit in the trial court, nor did they enter appearance in the appeal. Substituted service of notice of appeal was effected, and the court dispensed with further service.
The Court's Analysis
The Division Bench found substance in three of the four arguments advanced by the appellant.
On the absence of a formal schedule, the Court examined the money receipt (Exhibit 1) and paragraph 6 of the plaint, concluding that the broad contours, terms, and conditions of the agreement were substantially contained therein. The document itself comprised the agreement sought to be enforced. The particular property was categorically described in the agreement, and read with paragraph 6 of the plaint, amply described the subject property. The relief sought was specific performance of a particular agreement, not corporeal rights in the property as such; hence, the lack of a schedule did not vitiate the suit.
On attestation, the Court endorsed the reasoning in Gurmail Singh v. Sukhdev Singh. Section 68 of the Evidence Act merely provides that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness is called. The foundational prerequisite is that some independent statute casts a duty of attestation. Section 68 per se does not impose such duty. There is no law known to the Court which requires an agreement for sale to be attested. Accordingly, Section 68 is not attracted to an agreement for sale, and the Trial Judge erred in law on this ground.
On the plaintiff's signature, the Court relied on Bommaka Nagabhushana Reddy holding that a promise to transfer property is an agreement for sale. The money receipt executed by the predecessor-in-interest of the defendants bound them. The plaintiff, by his conduct - filing the suit and asserting rights under the agreement - categorically made himself amenable to the agreement and submitted to it. Thus, consensus ad idem was explicit from the agreement as regards the predecessor-in-interest, and evident from conduct as regards the plaintiff. Oral evidence led by the plaintiff further supported mutual agreement, ruling out any requirement of further signature.
On stamp duty, however, the Court rejected the appellant's argument. Section 3 of the Indian Stamp Act was not germane. Section 4 applies only where several instruments are employed for completing a sale. In a specific performance suit, only one document - the agreement for sale - exists as on date. The sale deed would come into existence only subject to the outcome of the suit. The contingency of a future sale deed cannot be the premise for Section 4. Accepting the appellant's logic would render Sections 35 and 36 of the Stamp Act nugatory, as no agreement for sale would ever need impoundment. Since Exhibit 1 was insufficiently stamped, the bounden duty of the Trial Judge was to direct impoundment and thereafter pass a decree for specific performance on the basis of uncontroverted evidence. The Trial Judge erred in dismissing the suit outright on the ground of insufficient stamp duty.
"For Section 4 to be applicable, there has to exist at present several instruments which together comprise an already-concluded sale."
The Verdict
The appeal (FA 120 of 2025) was allowed. The impugned judgment and decree dated July 24, 2023 passed by the Civil Judge, Senior Division at Sealdah in Title Suit No. 144 of 2013 was set aside. The suit was remanded to the Trial Court on a limited remand for the sole purpose of directing impoundment of Exhibit 1. Upon impoundment and assessment of correct stamp duty, the Trial Judge shall grant the plaintiff/appellant an opportunity to deposit the assessed stamp duty, treating the document as an agreement for sale of the 1/7th share. Upon such deposit within the time granted or extended by the Trial Judge, a decree for specific performance shall be passed in favour of the plaintiff/appellant. In default of payment, the suit shall be dismissed. The exercise is expected to conclude as expeditiously as possible, preferably within two months of the trial court records reaching the court. The trial court records are to be sent down by special messenger at the cost of the appellant, to be deposited within one week from the date of judgment. Interim orders, if any, stand vacated. There will be no order as to costs.
What This Means For Similar Cases
Insufficient Stamp Duty Does Not Bar Specific Performance
Courts cannot dismiss specific performance suits solely on the ground of insufficient stamp duty on the agreement for sale. The Indian Stamp Act mandates impoundment of the insufficiently stamped instrument and provides a mechanism for curing the defect by payment of deficit duty. Section 4 of the Act applies only where multiple instruments evidencing a concluded sale exist simultaneously; it does not extend to a standalone agreement for sale where the sale deed is a future contingency. Practitioners should:
- Plead for impoundment under Sections 35, 36, and 40 of the Indian Stamp Act when stamp deficiency is raised
- Ensure agreements for sale are adequately stamped at execution to avoid procedural delays
- Seek remand for impoundment and adjudication if the trial court dismisses on stamp grounds
Attestation Not Required for Agreements for Sale Absent Statutory Mandate
Section 68 of the Evidence Act does not impose a freestanding requirement of attestation. It operates only where an independent statute mandates attestation for a particular instrument. No Indian statute requires attestation of an agreement for sale. Trial courts err in dismissing suits for lack of attesting witnesses to such agreements. Lawyers should:
- Challenge any finding that an agreement for sale requires attestation under Section 68
- Cite Gurmail Singh v. Sukhdev Singh and the present judgment to establish that attestation is statute-specific
- Note that registration requirements under the Registration Act, 1908 are distinct from attestation under the Evidence Act
Consensus Ad Idem Established by Conduct Even Without Signature
A party's conduct - including filing a suit for specific performance and asserting rights under an agreement - can establish consensus ad idem even where that party has not signed the document. The executing party's signature binds them, and the non-signing party's subsequent conduct manifests assent. Oral evidence of mutual agreement further reinforces this. Practitioners should:
- Lead oral evidence of mutual agreement and part performance to supplement documentary evidence
- Argue that conduct (filing suit, taking possession, making payments) constitutes acceptance
- Distinguish cases where statute mandates signature (e.g., Section 54 Transfer of Property Act for sale deeds) from agreements for sale
