Karnataka High Court
Smt Shivamma W/O Late Kuri Halappa vs Smt Kuri Karemma W/O Late Kuri ... on 28 June, 2024
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NC: 2024:KHC-D:8816
WP No. 100505 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO.100505 OF 2023 (GM-CPC)
BETWEEN:
1. SMT. SHIVAMMA W/O. LATE KURI HALAPPA,
AGED ABOUT 70 YEARS, OCC: HOUSEHOLD,
RESIDING AT DEVASAMUDRA VILLAGE,
HOSPETE TALUK, VIJAYANAGAR DISTRICT-583201.
2. SRI. K. SIDDAPPA S/O. LATE KURI HALAPPA,
AGED ABOUT 47 YEARS, OCC: AGRICULTURE,
RESIDING AT DEVASAMUDRA VILLAGE,
HOSPETE TALUK, VIJAYANAGAR DISTRICT-583201.
...PETITIONERS
(BY SRI. GURUBASAVARAJ S.M., DVOCATE)
AND:
1. SMT. KURI KAREMMA
W/O. LATE KURI HANUMANTHAPPA,
Digitally signed by AGED ABOUT 65 YEARS, OCC: HOUSEHOLD,
ASHPAK
KASHIMSA
MALAGALADINNI
RESIDING AT DEVASAMUDRA VILLAGE,
Location: HIGH
COURT OF
HOSPETE TALUK, VIJAYANAGAR DISTRICT-583201.
KARNATAKA
DHARWAD BENCH
Date: 2024.07.05
12:37:51 +0530 2. SRI. HOSAGERAPPA
S/O.LATE KURI HANUMANTHAPPA,
AGED ABOUT 45 YEARS, OCC: AGRICULTURE,
RESIDING AT DEVASAMUDRA VILLAGE,
HOSPETE TALUK, VIJAYANAGAR DISTRICT-583201.
...RESPONDENTS
(BY SRI. SATISH M.S., ADV. FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF
CERTIORARI QUASHING THE IMPUGNED ORDER DATED 22/06/2022
PASSED BY THE ADDL. CIVIL JUDGE AND JMFC HOSPET IN O.S. NO.
33/2017 WHICH IS PRODUCED AT ANNEXURE-G; ISSUE WRIT OF
MANDAMUS DIRECTING THE TRIAL COURT TO RESEND THE
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NC: 2024:KHC-D:8816
WP No. 100505 of 2023
IMPOUNDED DOCUMENT TO THE DEPUTY COMMISSIONER FOR RE
ASSESSMENT, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS PETITION IS COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by defendant Nos.1 and 2, who
have set-up an unregistered gift deed in defence. The present
petitioners/defendants while tendering this gift deed dated
08.03.2004, requested the Court to impound the document to
determine the deficit stamp duty. The Court has determined
the deficit stamp duty and petitioners are called upon to pay
Rs.27,940/- towards deficit stamp duty and penalty of
Rs.2,79,400/-.
2. Learned counsel for the petitioners placing reliance
on the judgment rendered by Hon'ble Apex Court in the case of
Gangappa and Another Vs Fakkirappa1 would point out that
Hon'ble Apex Court bearing in mind the facts on hand directed
the appellant therein to pay entire deficit stamp duty and
double the penalty instead of 10 times penalty.
3. Heard learned counsel appearing for the petitioners
and respondent.
(2019) 3 Supreme Court Cases 788.
NC: 2024:KHC-D:8816
4. Hon'ble Apex Court in the light of peculiar set of
facts exercising jurisdiction under Article 141 of the
Constitution of India, has modified the order and has directed
the plaintiffs to pay deficit stamp duty and double the penalty.
However, this Court under Article 227 of Constitution of India,
has no jurisdiction, as it is the trite law that Court, once it
impounds, has to determine deficit stamp duty and there is
absolutely no discretion vested with the Civil Court, while
imposing the penalty. The duty payable on the instrument is
prescribed by statute and the Civil Court having determined the
deficit stamp duty, is bound to impose 10 times penalty. The
language used to the proviso to Section 33 of the Act, clearly
mandates that under Sections 33 and 34 of the Act, 10 times
penalty has to be imposed.
5. This Court in catena of judgments has interpreted
the provisions of Sections 33 and 34 of the Act and have held
that plaintiffs have no option than depositing 10 times penalty.
Law is also clear that the authority/person impounding the
document under Section 37 of the Act, Section 38 of the Act
empowers Deputy Collector to refund deficit stamp duty or
modify the penalty imposed by the Court.
NC: 2024:KHC-D:8816
Reserving liberty to the petitioners/plaintiffs to seek
reference of the original document before the competent
authority and also to seek reduction, the captioned writ petition
stands disposed of.
Sd/-
JUDGE
AM
