5. To attract the said provision there should be a recital in the agreement of sale to the effect that under the agreement the possession is delivered. Whether possession is actually delivered under the agreement or not is immaterial. Similarly, if possession is delivered earlier to the agreement or subsequent to the agreement is also immaterial. The recital that the possession would be delivered after five months would not amount to delivering possession under the agreement. Similarly, the recital that the possession is agreed to be delivered is not sufficient to attract the liability to pay stamp duty. There should be express recital that “without executing the conveyance”, the possession is agreed to be delivered. Admittedly, there is no recital in the agreement of sale to the effect that possession is delivered in part performance of the agreement. Nor is there any recital that such possession is agreed to be delivered without executing the conveyance. On the other hand, the recital in the agreement is to the effect that ‘the possession is being delivered after five months’ and that ‘on payment of the consideration, the seller shall execute the registered sale deed’. Therefore, Article 5(e)(i) of the Schedule to the Act is not attracted."
