JUDGMENT N.K. Mody, J. 1. Being aggrieved by the order dated 31-7-12 passed by IVth Civil Judge Class II, Shajapur in Civil Suit No. 59-A/12, whereby application filed by the petitioner, wherein it was prayed that the documents dated 30-5-93 be impounded and sent to the Collector of Stamps was rejected, present petition has been filed. Short facts of the case are that respondent No. 1 filed a suit for specific performance alleging that vide agreement dated 30-5-93, respondent No. 1 entered into an agreement to sell the suit property for a consideration of Rs. 16,000/-, out of which Rs. 8,500/- were paid as earnest money. It was also alleged that since the sale deed was not executed, therefore, the decree of specific performance be passed. The suit was contested by the petitioner. At the stage of evidence an application was filed by the petitioner that the document of agreement to sale be sent to Collector of Stamp. The application was dismissed, hence this petition. 2. Learned Counsel for the petitioner argued at length and submits that impugned order passed by the learned Court below is illegal and deserves to be quashed. It is submitted that since the agreement was on the stamp paper of Rs. 10/- and there is a recital in the agreement relating to possession, therefore, the stamp duty was payable @ 7.5% of the total cost. It is submitted that learned Court below has rejected the contention of the petitioner only on the ground that the amendment in the Act has come in-force with effect from 12-8-02, therefore, it is nothing to do with the document of agreement to sale which was executed in the year 1993. It is submitted that amendment in the Stamps Act has nothing to do with the plea raised by the petitioner. It is submitted that since the agreement is virtually a sale-deed, therefore, it was required on the stamp paper of 7.5%. Learned Counsel placed reliance on a decision in the matter of Yogendra Verma Vs. It is submitted that amendment in the Stamps Act has nothing to do with the plea raised by the petitioner. It is submitted that since the agreement is virtually a sale-deed, therefore, it was required on the stamp paper of 7.5%. Learned Counsel placed reliance on a decision in the matter of Yogendra Verma Vs. Dharmendra, 2005 (2) M.P.H.T. 39 , wherein responsibility of evicting tenants from the property was of the purchaser and tenants were informed about this agreement and also right to recover rent and dealing with tenants was transferred and the purchaser was in full control of the property in question as he was in the constructive possession of the property, this Court held that agreement shall be deemed to be a conveyance liable for payment of stamp duty as per Article 23. Reliance is further placed on a decision in the matter of Smt. Vijaywanti Vs. Jiyanlal, reported in 2000 (1) MPJR 177, wherein part payment of sale price was made and possession was also obtained, this Court held that the document on its bare reading shows that possession of the property has been given to the purchaser, because of the explanation appended to article, the document would be deemed to be conveyance and stamp duty thereon would be leviable as is leviable on a conveyance. Lastly, reliance is placed on a decision in the matter of Shiv Kumar Saxena Vs. Manishchand Sinha, 2004 (4) M.P.H.T. 475 (DB), wherein in the agreement dated 9-4-91, it was recorded that 50,000 sq. ft. of open land to be sold was delivered to intending purchasers and in the plaint it was not described as agreement. Division Bench of this Court held that contents of the document make it clear that possession of property is transferred to the purchaser under the agreement. Hence, document will have to be stamped as a conveyance. It is submitted that petition be allowed and the impugned order be set aside. 3. Learned Counsel for the respondents supports the order and submits that as the agreement was not the sale deed itself, therefore, the petition be dismissed. 4. Article 23 of the Schedule 1-A of the Stamp Act reads as under:-- Cardinal principles before considering any question relating the stamp duty are as under:-- (i) Stamp duty is leviable on the instrument and not the transaction. 4. Article 23 of the Schedule 1-A of the Stamp Act reads as under:-- Cardinal principles before considering any question relating the stamp duty are as under:-- (i) Stamp duty is leviable on the instrument and not the transaction. (ii) The substance of the transaction embodied in the instrument determines the stamp duty and not the form or title of the instrument. (iii) In order to determine the nature of document and whether it is sufficiently stamped, the Court shall only look to the contents of the document as it stands and not any collateral circumstances which may be placed by way of evidence. In other words, for purposes of the stamp duty, the intention of the parties is to be gathered only from the contents of the instrument and not any outside material. (But where the stamp duty depends on the market value, outside material can be considered in the manner provided in the relevant stamp law). (iv) To find out the true character of an instrument for purpose of stamp duty, the document should be read as a whole and the dominant purpose of the instrument should be identified. (v) The instrument must be stamped according to its tenor though it cannot be given effect for some independent cause. (vi) The Revenue cannot contend that the object of the transaction was to achieve a purpose not disclosed in the document and, therefore, the document should be stamped as per such deemed, but undisclosed purpose. Similarly, the party liable to pay stamp duty cannot contend that the purpose disclosed in the instrument is not the actual purpose and therefore, he is not liable to pay stamp duty on the apparent tenor of the instrument. (vii) Once a document containing effective words of disposition is executed, it attracts stamp duty. The taxable event cannot be postponed by contending that it was intended to come into effect on a future date, on the happening of a particular contingency. 5. The agreement is dated 30-5-93, which is on the stamp paper worth Rs. 10/- and the transaction is of a plot measuring 840 sq. ft. and sale consideration was settled as Rs. 16,000/-, out of which Rs. 8,500/- were paid at the time of agreement. Possession was given to the intending purchaser with a right to use the plot as owner and with a further right to raise construction. 10/- and the transaction is of a plot measuring 840 sq. ft. and sale consideration was settled as Rs. 16,000/-, out of which Rs. 8,500/- were paid at the time of agreement. Possession was given to the intending purchaser with a right to use the plot as owner and with a further right to raise construction. So far as execution of sale-deed is concerned, as per the agreement, it was agreed that purchaser was to pay balance amount of Rs. 7,500/- while getting the sale-deed executed for which the seller will have no objection. 6. In the plaint also, it is alleged that under the agreement right of ownership was given and respondent No. 1 was also permitted to use the property in its own manner. 7. A party cannot be permitted to approbate and reprobate. One cannot claim the 'benefits' under a document by contending that it is a duly executed document, but at the same time contend that the 'document' is not conveyance, but an agreement. So long as the respondent No. 1 continue to claim in the plaint that on the basis of document respondent No. 1 came into possession as owner of the property, respondent No. 1 cannot escape liability to pay duty and penalty, nor request the Court to examine the document and hold that it is only an agreement for the purposes of stamp duty. 8. In view of this, petition filed by the petitioner is allowed and impugned order dated 31-7-12 is set aside and the learned Court below is directed to impound the document and sent it to Collector of Stamps for assessment of duty and penalty if any. With the aforesaid, petition stands disposed of.