Karnataka High Court
Smt Mahadevamma vs Sri V K Govindan Nair on 10 July, 2025
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W.P. No.2088/2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.2088/2020 (GM-CPC)
BETWEEN:
1. SMT. MAHADEVAMMA
D/O SANNANARASAPPA JOGI
AGED ABOUT 58 YEARS
AGRICULTURIST
SINCE DEAD BY LR'S.
i) SRI. SHIVAJI
Digitally signed @ KOTE BAYALU SHIVAJI
by RUPA V
S/O NARASAPPA
Location: High AGED ABOUT 75 YEARS.
Court of
karnataka ii) SRI. SOMASHEKARAPPA
S/O SRI. SHIVAJI @
KOTE BAYALU SHIVAJI
AGED ABOUT 44 YEARS.
BOTH ARE R/AT.
BHAGAVATHIKERE
HANUMANTHAPURA VILLAGE
MYDOLALU POST
BHADRAVATHI TALUK
SHIVAMOGGA DISTRICT.
2. SMT. LAKSHAMMA
D/O SANNANARASAPPA JOGI
SINCE DEAD REP. BY LR'S.
a) HALESH
S/O LATE DIGAMBARA
AGED 20 YEARS.
b) PADMAVATHI
D/O LATE DIGAMBARA
AGED 13 YEARS, MINOR
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W.P. No.2088/2020
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REPRESENTED BY COURT GUARDIAN.
BOTH ARE R/AT
THYAVARACHATNALLI
SHIVAMOGGA TALUK AND
DIST-577401.
...PETITIONERS
(BY SRI. GIRISH M.K., ADV.,)
AND:
1. SRI. V.K. GOVINDAN NAIR
S/O LATE KELLAPPAN NAIR
AGED ABOUT 62 YEARS
AGRICULTURIST
R/O HOSAMANE
SHIVAMOGGA 577401.
2. SRI. RAVI
S/O SANNANARASAPPA JOGI
AGED ABOUT 33 YEARS
AGRICULTURIST
R/AT THYAVARACHATNALLI
SHIVAMOGGA TALUK
AND DIST-577401.
3. SMT. ANASUYA BAI
W/O RAVI
AGED ABOUT 28 YEARS
AGRICULTURIST
R/AT THYAVARACHATNALLI,
SHIVAMOGGA TALUK
AND DIST-577401.
...RESPONDENTS
(BY SRI. CHANDRASHEKARA K, ADV., FOR R1
R2 & R3 ARE SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT, IN
THE NATURE OF CERTIORARI BY QUASHING THE IMPUGNED ORDER
DATED 18.12.2019 REGARDING MARKING OF DOCUMENTS PASSED
IN O.S.NO.205/2011 BY THE PRINCIPAL CIVIL JUDGE AND JMFC,
SHIVAMOGGA PRODUCED VIDE ANNEXURE-F & ETC.
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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
This petition is filed seeking the following relief:
"Issue a Writ, in the nature of certiorari by quashing the
impugned order dated 18.12.2019 regarding marking of
documents passed in O.S.No.205/2011 by the Principal
Civil Judge & JMFC, Shivamogga produced vide
ANNEXURE-F."
2. Sri.Girish M.K., learned counsel for the petitioners
submits that in the suit O.S.No.205/2011 filed by respondent
No.1-plaintiff, the petitioners-defendant Nos.2 & 4 have raised
objection with regard to marking of the sale agreement dated
04.07.2008 on the ground that the said instrument is
deficiently stamped. It is submitted that the suit filed by
respondent No.1 is for specific performance of the agreement
of sale dated 04.07.2008 and in the said instrument it clearly
demonstrates that the defendants have handed over the
possession over the suit schedule property. It is further
submitted that respondent No.1, in paragraph No.5 of the
plaint, has made a specific assertion that after getting the
agreement of sale, he approached the Shimoga Urban
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Development Authority and got the acquisition dropped in
relating to the same land, except a portion of the land which is
reserved for 100 feet ring road, and the said entire act is at his
own cost. The averments in the plaint and the clause of the
agreement clearly indicate that the possession is handed over.
However, the respondent No.1-plaintiff has paid the stamp duty
of Rs.200/- on the said instrument which is required to be
impounded and direction is required to be issued to respondent
No.1 to pay the deficit stamp duty with penalty. It is also
submitted that the trial Court under the impugned order has
incorrectly came to the conclusion that respondent No.1-
plaintiff has also sought prayer for possession of the suit
schedule property, hence, it cannot be construed that
possession is handed over under the instrument and rejected
the prayer of the petitioners for impounding the instrument and
for direction to pay the stamp duty. In support of his
contention, he placed reliance on the following decisions:
i. G.Raghavendra vs. C.Harish1
ii. M.Puruthotham vs. Bhudevamma2
iii. Sandra Lesley Anna Bartels vs. P.Gunavathy3
LAWS (KAR) 2010 8 12
LAWS (KAR) 2014 3 179
ILR 2013 Kar 368 : LAWS (KAR) 2012 11 82
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iv. Sri.A.Babu Reddy vs. Sri.H.P.Sathyanarayana
Reddy and others in W.P.No.6049/2019 disposed of
on 31.10.2019.
Hence, he seeks to allow the petition with a direction to
the trial Court to impound the sale agreement dated
04.07.2008 and to assess the stamp duty & penalty on the said
instrument and further to direct the respondent No.1-plaintiff to
pay the same.
3. Per contra, Sri.Chandrasekhara K., learned counsel
appearing for respondent No.1-plaintiff submits that though in
the instrument it is written as possession is handed over, the
actual possession is with the petitioners. It is submitted that
the petitioners have played fraud on respondent No.1 as well as
on the Court as they entered into agreement of sale on
04.07.2008 and in collusion with other parties, filed
O.S.No.71/2011 and got the said suit compromised and
thereafter, entered into a registered partition deed between the
family members. By such act, the petitioners have played fraud
and sold the property to the third party on the strength of the
partition deed. It is further submitted that the conduct of the
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petitioners is required to be looked into and on that ground also
the writ petition is liable to be rejected. It is also submitted that
insofar as the issue with regard to the deficit Court fee is
concerned, the respondent No.1-plaintiff has sought the relief
of specific performance as well as the possession. It is
submitted that if the possession is with the respondent No.1-
plaintiff, he would not have sought the relief of possession.
Hence, the trial Court has rightly considered the said issue and
rejected the petitioners' prayer for impounding the document
and direction to pay the deficit Court fee & penalty. It is further
submitted that if the plaint averments indicate that the
respondent No.1-plaintiff is not in possession, the same is
required to be looked into as held by this Court in the case of
A.M.Sunil Kumar v. Manjunath4. Hence, he seeks to dismiss
the petition.
4. I have heard the arguments of learned counsel for
the petitioners, learned counsel for the respondent No.1 and
meticulously perused the material available record. I have
W.P.No.113704/2015 disposed of on 30.01.2020
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given my anxious consideration to the submissions advanced
on both sides.
5. The pleading and material on record indicate that
the respondent No.1 filed O.S.No.205/2011 against the
petitioners and others for the relief of specific performance of
agreement dated 04.07.2008 and further prayer to deliver
possession of the same with regard to the suit schedule
property. The petitioners filed written statement denying the
averments made in the plaint and asserted that they have
handed over the possession as mentioned in the instrument.
The respondent No.1 at the time of examining himself as PW-1
tried to produce Agreement of Sale dated 04.07.2008 and tried
to mark the same. The petitioners raised objection on the said
instrument by contending that the said instrument has been
deficiently stamped. Admittedly, a covenant in the subject
instrument is that the petitioners and others have delivered the
possession in favour of respondent No.1.
6. When things stood thus, the agreement of sale,
which is an unregistered instrument, and respondent No.1 has
paid Rs.200/- as stamp duty and he is liable to pay the stamp
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duty as per Article 5 of the Karnataka Stamp Act, 1957, (for
short, 'the Act'). However, the trial Court, considering the
contentions, rejected the prayer of the petitioners on the
ground that the respondent No.1 has sought delivery of
possession of the property in the suit and held that though
there is a mentioning of delivery of possession in the
instrument, but actual possession lies with the petitioners-
defendants, hence, there is no necessity of paying stamp duty
and penalty by respondent No.1-plaintiff. In my considered
view, the trial Court has committed grave error.
7. The Hon'ble Division Bench of this Court in the case
of the Sandra Lesley Anna Bartels referred supra at
paragraph Nos.11 & 12 has observed as under:
"11. There are two different circumstances under the
Stamp Act for impounding a document; (1) the Court has
power to impound the document, moment it appears to
the Court that such instrument is not duly stamped and
(2) or to wait till such document is tendered in the
evidence. A combined reading of Sections 33 and 34
clearly reveal that a discretion is granted to the Court
either to impound the document under Section 33 before
the same is tendered in evidence and even if a document
is not impounded under Section 33, the Court is bound to
impound the document when the same is tendered in the
evidence under Section 34. In other words, the Court
cannot say that it will wait till the document is tendered in
the evidence. It is only an option given to Court to
exercise the power under Sections 33 & 34 but the
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difference between Sections 33 and 34 is that, Section 34
can be enforced by a Court when a document has to be
received in the evidence but Section 33 can be invoked
not only by the Court, but, by every person in-charge of a
public office. A person in-charge of a public office has no
power to exercise the power vested under Section 34 of
the Act.
12. Court cannot say that it would impound the document
only when the document is tendered in evidence for
marking. There may be instances where duty and penalty
payable may be very high and the party may not choose
to rely upon such insufficiently stamped document in
order to avoid stamp duty and penalty. In such
circumstances, it would result in loss of revenue to the
exchequer. The power of impounding a document is to
collect stamp duty and penalty whenever there is an
escape of duty. Therefore, when it is brought to the notice
of the Court that a document is insufficiently stamped,
the Court exercising its power under Section 33 of the Act
has to pass an order at the first instance for impounding
the document. Though there is a discretion vested in the
Court to exercise powers under Sections 33 and 34 of the
Act, no Court can hold that it would wait till the document
is tendered in evidence. In such circumstances, there may
be chances of loss of revenue to the exchequer."
8. Keeping in mind the enunciation of law laid down by
this Court referred supra, I am of the considered view that it is
an obligation on the Court to impound the document the
moment it appears to the Court that such a document is not
duly stamped either it may be produced at the time of evidence
or otherwise.
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9. In the case on hand, the very instrument i.e., the
Agreement of Sale dated 04.07.2008 indicates that the
possession is delivered in favour of respondent No.1-plaintiff by
the parties to the instrument. When that being so, Article 5 of
the Act clearly applies and the respondent No.1 is liable to pay
the stamp duty on the same. Admittedly, for having observed
supra, I am of the considered view that the instrument which
the respondent No.1-plaintiff intends to rely upon is an
instrument having deficit stamp duty, hence, the same is liable
to be impounded under Section 33 of the Act and liable to be
charged under Section 34 of the Act.
10. The issue of payment of stamp duty is between the
party who refers the instrument and the State. The judgment
relied on by the learned counsel for the respondent No.1 has no
application to the facts and circumstances of the case as the
decision of the learned Single Judge is passed without
considering the Division Bench decision of this Court in the case
of Sandra Lesley Anna Bartels referred supra.
11. The contention of the respondent with regard to
fraud played by the petitioners may not be gone into in the
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present petition as the scope of the present petition is limited
with regard to deficiency of stamp duty on the instrument in
question. However, it is always open for the respondent No.1-
plaintiff to urge all the grounds available to him under the law
in the pending suit.
12. For the aforementioned reasons, I proceed to pass
the following:
ORDER
i. Writ petition is allowed.
ii. The impugned order dated 18.12.2019 passed
regarding marking of documents passed in
O.S.No.205/2011 by the Principal Civil Judge &
JMFC, Shivamogga, is hereby set aside.
iii. The trial Court is directed to impound the
agreement of sale dated 04.07.2008 and asses the
stamp duty and penalty and thereafter the
respondent No.1-plaintiff shall make good of the
same, thereafter, to rely on the same, if he
intends to rely.
No orders to cost.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
BSR
