Karnataka High Court

Sri Jayasheel Reddy vs Smt Sudharshini A on 27 October, 2025

Author: S Vishwajith Shetty

Bench: S Vishwajith Shetty

                                                 -1-
                                                              NC: 2025:KHC:42498
                                                             WP No. 9209 of 2024


                    HC-KAR



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                             DATED THIS THE 27TH DAY OF OCTOBER, 2025
                                               BEFORE
                          THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
                             WRIT PETITION NO. 9209 OF 2024 (GM-CPC)
                   BETWEEN:

                   1.   SRI JAYASHEEL REDDY
                        (WRONGLY MENTIONED AS JAYASHEEL G)
                        S/O K GOPAL REDDY
                        AGED ABOUT 44 YEARS.

                   2.   SMT. SUMITHA K
                        W/O JAYASHEEL G
                        AGED ABOUT 39 YEARS.

                        BOTH ARE RESIDING
                        AT NO.121, 7TH AVENUE
                        RAINBOW, JUNNASANDRA
                        SARAJPURA ROAD
                        BANGALORE - 560 035.
                                                                    ...PETITIONERS
                   (BY SRI JANARDHANA G, ADV.)
                   AND:
Digitally signed
by NANDINI M       1.   SMT. SUDHARSHINI A
S                       D/O T.M. ACHUTHAN
Location: HIGH          W/O V. GOPAL KUMAR
COURT OF
KARNATAKA               AGED ABOUT 58 YEARS
                        RESIDING AT 1ST FLOOR
                        NO. 1 AM 313, 3RD CROSS
                        KASTHURI NAGAR,
                        EAST OF NGEF, BENGALURU - 560 043.

                   2.   SRI T.M. ACHUTHAN
                        S/O LATE KARUNAKARAN
                        AGED ABOUT 83 YEARS.

                   3.   SMT. AMBIKA
                        (SINCE DECEASED)
                                  -2-
                                                 NC: 2025:KHC:42498
                                               WP No. 9209 of 2024


 HC-KAR



4.   SRI A. UDAY KUMAR
     S/O T.M. ACHUTHAN
     AGED ABOUT 55 YEARS.

     RESPONDENT NOs2 TO 4 ARE
     RESIDING AT NO. 1, AM-313
     GROUND FLOOR, 3RD CROSS
     KASTHURI NAGAR, EAST OF NGEF
     BENGALURU - 560 043.
                                                         ...RESPONDENTS
(BY SRI NAGARAJ S, ADV., FOR R-1;
SRI JAGADISH KUMAR, ADV., FOR R-4)


     THIS WP IS FILED UNDER ARTICLE 227 OF THE CONTITUTION
OF INDIA PRAYING TO QUASH THE ORDER 17/02/2024 PASSED BY
THE ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-29),
BENGALURU IN OS NO. 25657/2020 VIDE ANNEXURE-D.

      THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY


                           ORAL ORDER

1. This writ petition under Article 227 of the

Constitution of India is filed by defendant nos.4 and 5 with a

prayer to set aside the order dated 17.02.2024 passed in

O.S.No.25657/2020 by the Court of Addl. City Civil & Sessions

Judge, Bengaluru.

2. Heard the learned counsel appearing for the parties.

NC: 2025:KHC:42498

HC-KAR

3. Suit in O.S.No.25657/2020 is filed by respondent

no.1 herein before the jurisdictional civil Court at Bengaluru

seeking the relief of partition, separate possession, declaration

and for consequential relief of permanent injunction against the

defendants. In the said suit, contesting defendants have filed a

detailed written statement opposing the said claim. During the

course of plaintiff's evidence, a document styled as

Memorandum of Family Settlement was sought to be marked

on behalf of the plaintiff and the same was opposed by the

defendants on the ground that the said document is a

compulsorily registrable document as provided under Section

17 of the Registration Act, 1908. The Trial Court vide order

impugned had rejected the objections raised on behalf of the

defendants for marking of document styled as Memorandum of

Family Settlement with an observation that admissibility of

document as evidence is kept open and the document is

marked subject to objections. Being aggrieved by the said

impugned order dated 17.02.2024 passed in

O.S.No.25657/2020, defendant nos.4 and 5 are before this

Court.

NC: 2025:KHC:42498

HC-KAR

4. Learned counsel for the petitioners having

reiterated the grounds urged in the petition submits that the

document in question is a compulsorily registrable document

and he has referred to Section 17 of the Registration Act, 1908

in support of his arguments. He submits that once a document

is marked even the question with regard to admissibility of the

document as evidence cannot be raised. He has referred to

Sections 33, 34 and 35 of the Karnataka Stamp Act in support

of his arguments. He has also placed reliance on the judgment

of this Court in the case of B. TIPPESWAMY V. GOWRAMMA

- 2008(6) KAR. L.J. 552 in support of his arguments.

5. Per contra, learned counsel for the contesting

respondents has opposed the prayer made in the petition and

has argued in support of the impugned order.

6. The document which is said to be marked on behalf

of the plaintiff is said to be a Memorandum of Family

Settlement and according to defendants, the said document is a

compulsorily registrable document as provided under Section

17(2) of the Registration Act. Even it is presumed that, the

NC: 2025:KHC:42498

HC-KAR

document in question is compulsorily registrable document, the

Trial Court has marked the document in question subject to

objection, keeping open the admissibility of document as

evidence.

7. Section 49 of the Registration Act provides for

effect of non registration of document required to be registered

and Section 49(c) of the Registration Act clearly states that no

document required by Section 17 to be registered shall be

received as evidence of any transaction affecting any such

property or conferring such power, unless it has been

registered.

8. From the aforesaid provision it is very clear that the

document cannot be received as evidence, if the same is a

compulsorily registrable document unless it has been

registered.

9. In the case on hand, the document in question is

only marked and admissibility of document as evidence has

been kept open by the Trial Court. Marking of a document itself

does not establish proof of said document. Marking of

NC: 2025:KHC:42498

HC-KAR

document is a ministrial act of the Court and the same would

not amount to proof of said document.

10. In the case of B. TIPPESWAMY (supra) this Court

has considered the question of admissibility of a document

which is not registered and also of admissibility of a document

which is not properly stamped and the question of marking

such a document subject to proof of admissibility of document

as evidence has not been considered.

11. The Hon'ble Supreme Court in the case of G.M.

SHAHUL HAMEED V. JAYANTHI R. HEGDE reported in 2024

INSC 493 considering Sections 33, 34 & 35 of the Karnataka

Stamp Act has held that, notwithstanding Section 35 of the said

Act, even if a document which is insufficiently stamped is

marked without there being any proper adjudication by the

Court concerned, it is always open for the said Court to take

action as provided under Section 33 the Act to impound the

document and to call upon the parties to pay deficit stamp duty

and penalty on the document, which is already marked.

NC: 2025:KHC:42498

HC-KAR

12. Similar view has been taken by the Hon'ble

Supreme Court in the case of BIDYUT SARKAR & ORS V.

KANCHILAL PAL (DEAD) THROUGH LRS. & ORS (2024)

INSC 704, wherein a reference was made to Section 36 of the

Indian Stamp Act which is in pari materia to Section 35 of the

Karnataka Stamp Act, and in paragraph no.29 it is observed as

follows:

"29. The Trial Court had placed reliance upon the aforesaid two judgments and had also extracted the relevant part from the said judgments. The facts in the 1978 case of Ram Rattan (dead) by L.Rs. (supra) were quite similar wherein an instrument had been exhibited with objection but therein also the said objection had not been removed or cured. This Court held that such an instrument would not be admissible in evidence and Section 36 of the Stamp Act would not be attracted. The relevant paras of this judgment are reproduced below:

6. When the document was tendered in evidence by the Plaintiff while in witness box, objection having been ralised by the Defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned Trial Judge to apply his mind to the objection raised and to decide the objects in accordance with law.

Tendency sometimes is to postpone the decision to avoid interruption in the process of recording evidence and, therefore, a very convenient device is resorted to, of marking the document in evidence subject to objection. This, however would not mean that the objection as to

NC: 2025:KHC:42498

HC-KAR

admissibility on the ground that the instrument is not duly stamped is judicially decided; it is merely postponed. In such a situation at a later stage before the suit is finally disposed of it would none-the-less be obligatory upon the court to decide the objection. If after applying mind to the rival contentions the trial court admits a document in evidence, Section 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The court, and of necessity it would be trial court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting Section 36 (see Javer Chand v. Pukhraj Surana) [ MANU/SC/0036/1961: 1961:INSC: 183: AIR 1961 SC 1655). The endorsement made by the learned Trial Judge that "Objected, allowed subject to objection", clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted."

13. In the case on hand, the Trial Court had overruled

the objection raised by defendants for marking of the said

document and the question of admissibility of document as

NC: 2025:KHC:42498

HC-KAR

evidence is kept open and therefore it is always open for the

defendants to urge the question of admissibility of the said

document as evidence before the Trial Court at appropriate

stage. Under these circumstances, I do not find any merit in

this writ petition.

14. Accordingly, the writ petition is dismissed with an

observation that parties are always at liberty to urge the