Smt Jayamma vs Smt M V Malini
2022 Latest Caselaw 5907 Kant

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 01ST DAY OF APRIL, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE E.S. INDIRESH

     WRIT PETITION NO.21404 OF 2021 (GM-CPC)

BETWEEN

    1. SMT. JAYAMMA
       W/O LATE S E PARAMESH
       AGED ABOUT 67 YEARS
       R/AT BASAVANAHALLI EXTENSION
       HALASULIGE POST
       SAKALESHPURA TALUK
       HASSAN DISTRICT-573 127.

    2. SRI SUDEESH
       S/O LATE S E PARAMESH
       AGED ABOUT 47 YEARS
       R/AT BASAVANAHALLI EXTENSION
       HALASULIGE POST
       SAKALESHPURA TALUK
       HASSAN DISTRICT-573 127.

    3. SRI SANDEESH S P
       S/O LATE S E PARAMESH
       AGED ABOUT 38 YEARS
       R/AT BASAVANAHALLI EXTENSION
       HALASULIGE POST
       SAKALESHPURA TALUK
       HASSAN DISTRICT-573 127.

    4. SMT. PRIYA S P
       D/O LATE S E PARAMESH
       AGED ABOUT 35 YEARS
                                  2




          R/AT BASAVANAHALLI EXTENSION
          HALASULIGE POST
          SAKALESHPURA TALUK
          HASSAN DISTRICT-573 127.

                                                    ...PETITIONERS
(BY SRI SIDDAMALLAPPA P M, ADVOCATE)

AND

SMT. M V MALINI
W/O H M VISHWANATH
AGED ABOUT 57 YEARS
R/AT HANJAGODANAHALLI VILLAGE
HANUBAL HOBLI
SAKALESHPURA TALUK
HASSAN DISTRICT-573 127.

                                                   ....RESPONDENT
(BY SRI   B S SUDHINDRA, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 30TH SEPTEMBER, 2021 PASSED IN ORIGINAL SUIT
NO.01 OF 2021 BY THE LEARNED SENIOR CIVIL JUDGE AND
JMFC, SAKALESHPURA AS PER ANNEXURE-C TO THE EXTENT OF
DIRECTING THE DECREE SHALL BE REGISTERED IN THE SUB-
REGISTRAR OFFICE PAYMENT OF REQUIRED STAMP DUTY ON
CONSIDERATION AMOUNT.

       THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

This writ petition is filed by the legal representatives of the

defendants in Original Suit No.1 of 2021 on the file of the Senior

Civil Judge and JMFC, Sakaleshpur, Hassan, challenging the part

of the order dated 30th September, 2021 directing the defendant

to pay stamp duty on the consideration amount.

2. The relevant facts, for adjudication of this writ petition

are that the respondent herein has filed Original Suit No.1 of

2021 on the file of the trial Court seeking relief of declaration,

title and consequential relief. During the pendency of the

proceedings, the parties arrived at a compromise and

accordingly the matter was referred to Lok Adalat on 30th

September, 2021 and the same was settled between the parties

by way of compromise petition before the Lok Adalat, as the

legal representatives of the defendant agreed to pay the

consideration amount of Rs.19,00,000/- to the plaintiff. The trial

Court, after disposal of the suit in terms of compromise petition,

directed the defendant to pay stamp duty on the sum of

Rs.19,00,000/- said to have been shown in the compromise

petition. Feeling aggrieved by the same, legal representatives of

the defendants have presented this writ petition.

3. I have heard Sri B.M. Siddamallappa, learned counsel

appearing for the petitioner and Sri B.S. Sudhindra, learned

counsel appearing for the respondent.

4. Sri B.M. Siddamallappa, learned counsel appearing for

the petitioner, drew the attention of the Court to the settlement

arrived at between the parties as well as the compromise

petition entered into between the parties and accepted by the

trial Court and argued that the amount shown in the compromise

petition cannot be considered as a consideration in view of the

right created insofar as the suit schedule property. He further

contended that since the matter has been settled between the

parties before the Lok Adalat and in that view of the matter, the

trial Court should not have directed the defendant to pay the

stamp duty on the aforesaid sum of Rs.19,00,000/-. He also

referred to the law declared by the Hon'ble Apex Court in the

case of MOHAMMEDE YOUSUF v. RAJKUMAR made in CA No.800

of 2020 decided on 05th February, 2020 and argued that the

impugned order passed by the trial Court is contrary to the law

declared by the Hon'ble Apex Court and as such, sought for

interference of this court in this writ petition.

5. Sri B.S.Sudhindra, learned counsel appearing for the

respondent does not dispute the contention of the learned

counsel appearing for the petitioner.

6. Referring the submission made by learned counsel

appearing for the parties, it is not in dispute that the suit is filed

by the plaintiff seeking declaration with consequential relief of

possession in respect of the suit schedule property. It is also not

in dispute that the suit came to be disposed of in terms of the

compromise petition filed before the trial Court under Order

XXIII Rule 3 of Code of Civil Procedure as per order dated 30th

September, 2021. I have also examined the finding recorded by

the trial Court directing the parties to register the compromise

petition and pay stamp duty on the amount of Rs.19,00,000/-

mentioned in the compromise petition wherein the suit has been

disposed of in terms of compromise and therefore, the said

compromise petition will not create any right of interest over the

parties to the compromise petition in terms of Section 17 and

17(1)(a) of the Registration Act, 1908 (for short, hereinafter

referred to as 'Act'). In this connection, I have carefully

considered Section 17(2)(vi) of the Act. The same reads as

under:

"17. Documents of which registration is compulsory:

(1) xxx xxxxxx

(2) Nothing in clauses (b) and (c) of sub-section (l) applies to--

(vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding;"

8. Perusal of the language employed in the aforementioned

provision would enure to the benefit of the parties to the

compromise petition since the payment of Rs.19,00,000/- by the

defendant to the plaintiff cannot be construed as consideration in

any way of conveyance made between the parties. The Hon'ble

Apex Court in the aforementioned case, at paragraph 14 of the

judgment, has observed thus:

"14. In facts of the present case, the decree dated 04.10.1985 was with regard to property, which was subject matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and present case is covered by the main exception crafted in Section 17(2)(vi), i.e., "any decree or order of a Court". When registration of an instrument as required by Section 17(1()(b) is specifically excluded by Section 17(2)(vi) by providing that nothing in clause (b) and (c) of sub-section (1) applies to any decree or order of the Court, we are of the view that the compromise decree dated 04.10.1985 did not require registration and learned Civil Judge as well as the High Court erred in holding otherwise. We, thus, set aside the order of the Civil Judge dated 07.01.2015 as well as the judgment of the High Court dated 13.02.2017. The compromise decree dated 04.10.1985 is directed to be exhibited by the trial court. The appeal is allowed accordingly."

9. In that view of the matter, I am of the view that the

direction issued by the trial Court to register the compromise

petition and to pay stamp duty on the amount mentioned in the

compromise petition, does not arise in the circumstance of the

case. Accordingly, writ petition is allowed. Order dated 30th

September, 2021 passed by the trial Court is set aside. In view

of allowing of the writ petition, trial Court is directed to draw up

the decree in terms of the compromise entered into between the

parties.

Sd/-

JUDGE

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