Karnataka High Court

Sri Prabhu vs Smt.Shanta on 30 March, 2022

Bench: Suraj Govindaraj

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                                                           WP No. 109727 of 2016


                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                DATED THIS THE 30TH DAY OF MARCH, 2022

                                                  BEFORE
                              THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
                               WRIT PETITION NO. 109727 OF 2016 (GM-CPC)
                      BETWEEN:

                      1.    SRI PRABHU
                            S/O CHANAMALLAPPA BELLUBBI,
                            AGED ABOUT 55 YEARS,
                            OCC: WEAVING,

                      2.    SRI DUNDAPPA
                            S/O SHIVAPUTRAPPA MACHAKANUR,
                            AGED ABOUT 59 YEARS,
                            OCC: BUSINESS,

                      3.    SRI CHANDRASHEKAR
                            S/O BASAPPA KALLOLLI,
                            AGED ABOUT 44 YEARS,
                            OCC: WEAVER,

                      4.    SRI PRABHU
                            S/O GIRMALAPPA KANKANWADI,
                            AGED ABOUT 44 YEARS,
                            OCC: WEAVER,
SAROJA
HANGARAKI             5.    SRI IRAPPA
                            S/O CHANNAPPA GUNADAL,
Digitally signed by
SAROJA HANGARAKI
Location: Dharwad
                            AGED ABOUT 50 YEARS,
Date: 2022.04.04
14:34:54 +0530              OCC: WEAVER,

                            ALL R/AT BANAHATTI,
                            TQ JAMKHANDI,
                            DIST BAGALKOTE.

                                                                 ...PETITIONERS

                      (BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
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                                     WP No. 109727 of 2016




AND:

1.   SMT.SHANTA
     W/O MAHADEV BADDUR,
     AGED ABOUT 57 YEARS,
     OCC: WEAVING,
     R/AT ARALIKATTI ONI,
     MANGALWAR PETH,
     BANAHATTI, TQ JAMKHANDI,
     DIST BAGALKOTE.

2.   SMT LALABI
     W/O IMAMSAB NADAF @ PINJAR,
     AGED ABOUT 50 YEARS,
     OCC: WEAVING,
     R/AT NEAR WATER TANK ROAD,
     BANAHATTI, TQ JAMKHANDI,
     DIST BAGALKOTE.

3.   THE COMMISSIONER,
     CITY MUNICIPAL COUNCIL,
     RABAKAVI-BANAHAATTI,
     OFFICE AT RAMPUR,
     TQ JAMKHANDI,
     DIST BAGALKOTE.

                                         ...RESPONDENTS
(R1: SHANTA - SD.
 SRI. ANIL KALE & SRI. V. S. KALASURMATH, ADVS FOR R2;
 SRI. R. K. KULKARNI, ADV. FOR R3)
                              ---

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER PASSED BY THE CIVIL JUDGE,
BANAHATTI PASSED IN O.S.NO.27 OF 2007 DATED;28.11.2016,
ON I.A.NO.IX, COPY AS PER ANNEXURE-E AND ALLOW
I.A.NO.IX AND ALLOW THE WRIT PETITION.

     THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
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                                           WP No. 109727 of 2016


                             ORDER

1. The petitioners are before this Court seeking for the following

reliefs:

a. Issue a writ in the nature of certiorari or any other writ or direction and quash the order passed by the Civil Judge, Banahatti passed in O.S.No.27/2007 dated 28.11.2016 on I.A.No.IX, copy as per Annexure-E and allow I.A.No.IX and allow the writ petition and /or, b. Pass such other order or orders as this Hon'ble Court deems fit in the facts and circumstances of the case.

2. O.S.No.27/2007 had been filed for the relief of permanent

injunction restraining the defendants from interfering with the

possession of the petitioners/plaintiffs in the suit schedule

property. Defendant No.2 had filed a written statement

therein, contending that the defendant had purchased the

suit schedule property vide unregistered sale deed dated

04.05.2005 and as such, during the course of evidence, the

said unregistered sale deed was sought to be produced and

marked as an exhibit.

3. The plaintiffs filed an application under Section 34 of the

Karnataka Stamps Act read with Section 151 of CPC, which

came to be numbered as I.A.No.IX, contending that the said

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document being an unregistered and void document, cannot

be marked in evidence.

4. The trial Court considering the said objection and after

hearing the parties, partly allowed the said application

impounding the unregistered sale deed dated 04.05.2005,

directing the defendants to make payment of duty and

penalty on the document and thereafter permitted the

defendants to mark the said unregistered sale deed for

collateral purpose. It is the said order, which is challenged

before this Court.

5. Sri. Mrutyunjaya Tata Bangi, learned counsel for the

petitioners, by relying upon the decision of the Hon'ble Apex

Court in the case of Yellapu Uma Maheswari & another Vs.

Buddha Jagadheeswararao & Others reported in 2015 AIR

SCW 6184, submits that when a document, which is

compulsorily registrable is not registered, is not admissible in

evidence and therefore, the present sale deed, which is

compulsorily registrable not having been registered, could

not have been marked in evidence. He also relies upon the

decision of the Hon'ble Apex Court in the case of Shyam

WP No. 109727 of 2016

Narayan Prasad Vs. Krishna Prasad and Others reported

in AIR 2018 SC 3152 in support of the aforesaid contention.

6. Sri. Anil Kale, learned counsel appearing for respondent

No.2 submits that defendant No.2 being willing to make

payment of the stamp duty on the document being

impounded, the admissibility or otherwise of the document in

evidence cannot be gone into at the time of marking the

document but would have to be considered at the

appropriate stage, once the document is impounded and

defendant has paid the stamp duty and penalty the

document needs to be marked, which cannot be refused by

the trial Court. In this regard, he relies upon the decision of

this Court in the case of Mahadeva Vs. The Commissioner,

Mysore City Corporation and Others reported in 2003 (1)

Kar.L.J. 518 and as such he submits that the order passed

by the trial Court being proper and correct, the above petition

is liable to be dismissed.

7. Heard Sri. Mrutyunjay Tata Bangi, learned counsel for the

petitioner and Sri. Anil Kale, learned counsel for respondent

No.2. Perused the records.

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8. The short question that would arise for consideration of this

Court is:

"Whether a document though compulsorily registrable not having been registered, can be objected to at the time of marking during the course of evidence?

9. There is no dispute as regards the document being

unstamped or unregistered. In fact the claim of defendant

No.2 is that, she had purchased the property under an

unregistered sale deed. The trial Court also finding that the

said sale deed was not properly stamped, by exercising

powers under Section 34 of the Karnataka Stamp Act, 1958

has impounded the same and levied penalty.

10. Sri. Anil Kale, learned counsel for respondent No.2 has

submitted that respondent No.2/defendant No.2 has no

objection to make payment of penalty levied.

11. The Hon'ble Apex Court in the case of Yellapu Uma

Maheswari & another Vs. Buddha Jagadheeswararao &

Others reported in 2015 AIR SCW 6184, at paragraph 18

has held as under:

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"18. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy Gari Vankat Reddy , AIR 1969 A.P. (242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and relevance."

12. The Hon'ble Apex Court in the case of Shyam Narayan

Prasad Vs. Krishna Prasad and Others reported in AIR

2018 SC 3152 at paragraphs 22 and 23 has held as under:

"22. It is clear from the above judgment that the best evidence of the contents of the document is the document itself and as required under Section 91 of the Evidence Act the document itself has to be produced to prove its contents. But having regard to Section 49 of the Registration Act, any document which is not registered as required under law, would be inadmissible in evidence and cannot, therefore, be produced and proved under Section 91 of the Evidence Act. Since Exhibit P2 is an unregistered document, it is inadmissible in evidence and as such it can neither be proved under Section 91 of the Evidence Act nor any oral evidence can be given to

WP No. 109727 of 2016

prove its contents. Therefore, the High Court has rightly discarded the exchange deed at Exhibit P2" .

13. This Court in Mahadeva Vs. The Commissioner, Mysore

City Corporation and Others reported in 2003 (1) Kar.L.J.

518 at para 9 and 10 has held as under:

"9. The proviso to Section 34 prescribes the conditions subject to which a document which is not duly stamped can be admitted in evidence. It inter alia provides for payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, the amount which is required to make up such duty together with the prescribed penalty. Suffice it to say that there is no conflict between what is permitted by the proviso to Section 49 of the Registration Act on the one hand and Section 34 of the Karnataka Stamp Act, 1957, on the other. The demand of duty and penalty in terms of the proviso to Section 34 before the document could be marked in token of its having been admitted in evidence did not therefore suffer from any error of law to warrant interference. As a matter of fact, whenever an objection regarding the admissibility of an instrument on the ground of its being unstamped or insufficiently stamped is raised, the Court is required to determine the objection before proceeding any further, unlike other cases where an objection to the admissibility of a document on any other ground may be examined at a later stage and the document tentatively marked to avoid delay in recording of the evidence. The decisions of the Supreme Court in Ram Rattan (dead) by L.Rs v. Bajrang Lal and Ors., , and Bipin Shantilal Panchal v. State of Gujarat and Anr., AIR 2001 SC 1158 : (2001)3 SCC 1 : 2001 Cri. L.J. 1254 (SC), and that of a Single Bench of this Court in Riyaz Khan, and Ors. v. Modi Mohammed Ismail and Ors., 2002(3) Kar. L.J. 551 : ILR 2002 Kar. 3369, clearly settle the legal position in this regard.

WP No. 109727 of 2016

10. The only other question that was argued by Mr. Shetty was whether the amount of duty and penalty on the sale deed relied upon by him could be determined by the Court itself or a reference to the Registrar of Stamps was necessary. There is no provision in the Karnataka Stamp Act, 1957, nor has Mr. Shetty brought any to my notice which would envisage a reference to the Registrar of Stamps for determining the duty payable on any instrument. The scheme of Section 34 of the Karnataka Stamp Act, 1957, also does not envisage any such reference being made before the document could be marked. The amount of duty payable on the sale deed (in the absence of any material to show that the property had been undervalued) is relatable to the consideration that was paid and received by the parties to the transaction. The penalty amount leviable on the instrument also didn't require or call for any enquiry which could possibly call for a reference to the Registrar. The Court below was therefore justified in holding that the duty payable on the instrument as also the penalty had to be calculated by the Court and not by the Registrar as argued by the plaintiff."

14. A perusal of the above paragraphs in the aforesaid decisions

would clearly indicate that, if an unregistered document is

brought up for marking during the course of evidence, in the

event of the said document not being stamped adequately,

or the stamping being improper, the said Court can impound

the document and levy penalty. It is only after the penalty is

paid upon the impoundment, that the Apex Court as also this

Court have held that, the document can be marked in

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evidence. However, the admissibility thereof is to be decided

subsequently.