Allowed

Sri H.M. Srinath v. Sri. Muninagappa

Karnataka HC5 Oct 2020WP/26149/2015

Case brief

AI extract

What is this about?

Writ petition filed by plaintiffs to quash an order allowing evidence of an unregistered relinquishment deed. The High Court held the deed required registration and quashed the order, finding the trial Court misinterpreted earlier observations by the High Court as a mandatory direction.

What did the court decide?

The order dated 05.06.2014 passing the impugned application is quashed and the application is dismissed.

Sri H.M. Srinath Vs Sri. Muninagappa — Property and Title | Karnataka HC (2020)

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W.P. No.26149 OF 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF OCTOBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO.26149 OF 2015 (GM-CPC)

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BETWEEN:

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SRI. H.M. SRINATH S/O SRI. MUNIRAYAPPA

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AGED ABOUT 42 YEARS

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R/AT HUNGENAHALLI VILLAGE

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KASABA HOBLI

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MALUR TALUK-563101

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SRI. MUNIRAYAPPA

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S/O GULLA BYRAPPA

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MAJOR

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R/AT KASABA HOBLI

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MALUR TALUK-563101 ... PETITIONERS

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(BY SRI.A MADHUSUDHANA RAO, ADVOCATE-THROUGH VC)

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AND:

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SRI. MUNINAGAPPA S/O SRI. BYCHAPPA AGED ABOUT 72 YEARS

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SRI. H.M. CHANDRAPPA S/O SRI. MUNINAGAPPA AGED ABOUT 51 YEARS

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SRI. H.M. BYCHE GOWDA S/O SRI. MUNINAGAPPA AGED ABOUT 62 YEARS

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SRI.VENKATESH GOWDA S/O SRI. MUNINAGAPPA AGED ABOUT 45 YEARS

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W.P. No.26149 OF 2015

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SRI. H.B. DYAVEERAPPA S/O SRI. BYCHAPPA AGED ABOUT 76 YEARS

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ALL ARE RESIDENTS OF HUNGENAHALLI VILLAGE KASABA HOBLI, MALUR TALUK KOLAR DISTRICT-563101 ... RESPONDENTS

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(BY SRI.G.PAPI REDDY, ADVOCATE FOR R1 TO 5 - THROUGH VC)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED ORDER DATED 05.06.2014 PASSED IN O.S.NO.40/2011 ON I.A.NO.VII BY THE LEARNED SENIOR CIVIL JUDGE & JMFC, MALUR VIDE ANNEXURE-K ALLOW THIS W.P. WITH COSTS.

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*********

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY THROUGH VIDEO CONFERENCE THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners who are the plaintiffs in O.S.No.40/2011 pending on the file of the Senior Civil Judge and JMFC, Malur are before this Court seeking for quashing of the order dated 5.6.2014 passed by the trial Court allowing Interlocutory application No.7 (IA-7) filed under Section 151 of Code of Civil Procedure, 1908 (‘CPC’ for short).

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The suit in O.S.No.237/2003 was filed seeking for declaration that the plaintiffs are the absolute owners and in possession and enjoyment of the suit schedule

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W.P. No.26149 OF 2015

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property, as also for permanent injunction restraining the defendants from interfering with their possession. In defence thereto, the defendants contended that there was a partition between the family members and in that partition, the property, subject matter of the suit came to be allotted to the defendants and therefore it was contested that the plaintiffs are not entitled to the relief sought for.

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During the course of cross-examination of PW-1, the document styled as ‘Hakku Bidugade Patra’ was sought to be confronted to said PW-1 to be marked in evidence, however, on objection being raised by the counsel for the plaintiffs, the request was refused and the document was not marked in evidence. Subsequently, evidence of DW-1 was led on behalf of the defendants, once again on objection being raised by the plaintiffs, the said request came to be rejected and the documents was refused to be marked in evidence.

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Aggrieved by the same, the defendants filed W.P.No.31198/2014 which came to be allowed by this

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W.P. No.26149 OF 2015

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Court vide its order dated 2.9.2014 prior to issuance of notice to the respondents. This court vide its order permitted the petitioners therein viz., defendants to approach the trial Court with an application seeking leave of the court to mark the document since this Court was of

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the opinion that there were no efforts which had been made by the defendants earlier for the marking of the said documents.

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Pursuant to the order of this Court, the defendants filed an application under Section 151 of CPC on 6.11.2014 and in the said application, the following reliefs were sought:

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"UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE, THE DEFENDANTS IN THE ABOVE CASE BEGS TO SUBMIT AS FOLLOWS:

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That for the reasons mentioned in the accompanying Affidavit of the Defendant No:3, this Hon'ble Court may be pleased to permit the Defendants to mark the Settlement Deed dated 20.02.1992 which is named as "Hakku Bidugade patra" in view of the Addl. Issue framed by this Hon'ble Court and in addition to that there is Direction by the Hon'ble High Court of Karnataka, Bangalore in W.P:31198/2014 dated 02.09.2014 and allow this Application in the ends of Justice and Equity".

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W.P. No.26149 OF 2015

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In the affidavit filed in support of the application at

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paragraph 3 thereto, the following averments have been

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made:

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"3. I swear that the Xerox copy of the Settlement Deed was already produced alongwith the Written Statement and at the time of Evidence the Original was confronted to the PW-3 and on technical ground the said document was not marked and the Defendants have no alternative except to file this Application for marking the said Document and for the said purpose, we have approached the Hon'ble High Court of Karnataka, Bangalore in W.P:31198/2014 and in the said W.P. the Hon'ble High Court of Karnataka directed these Defendants to approach this Hon'ble Court to mark the said document in accordance with Law".

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The said application came to be objected to by the plaintiffs contending that the request for marking the said ‘Hakku Bidugade Patra’ had already been rejected twice by the trial Court and as such the present application was also not maintainable and they sought for the application to be rejected.

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The trial court vide its order dated 5.6.20145 held that the documents styled as Hakku bidugade patra would amount to a relinquishment deed and unless it is stamped and registered, the same could not be marked as an exhibit, however, relying on submissions made by the

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defendants as regards the observations made by this Court in W.P.No.31198/2014 considered the order to be a direction of this Court to mark the said document in evidence and therefore, directed the marking of the Hakku Bidugade Patra as an exhibit subject to making payment of deficient stamp duty and ten times penalty.

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It is aggrieved by the said order, the plaintiffs are before this court contending that the order passed by the trial court is not proper and complete misinterpretation of the orders of this Court in W.P.No.31187/2014 and the document styled as Hakku Bidugade Patra being the relinquishment deed unless registered could not be exhibited, more so in view of the fact that under Section 17(2) of the Indian Registration Act, a relinquishment deed is a compulsorily registerable document.

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Sri.Madhusudana Rao, learned counsel for the

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petitioners submitted that the entire order has been passed under a misconception of the directions said to have been issued by this Court. There is no independent application of mind by the trial Court and as such, the

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W.P. No.26149 OF 2015

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writ petition has to be allowed and the impugned order ought to be set-aside.

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Per contra, Sri.Papi Reddy, learned counsel for the respondent-defendants in the suit would submit that admittedly there is a partition deed executed between the fathers of the plaintiff and defendants in terms whereof a large portion of the subject matter of the suit land was allotted to the father of the defendants, but relinquishment deed only goes further to add 23 guntas which had been wrongly left out in the partition deed so as to record the allotment of the said 23 guntas to the defendants, at the most the said relinquishment deed is an addendum or is supplementary to the partition deed and partition deed not being compulsorily registerable, this document would not be compulsorily registerable. In view thereof, he submits that the order passed by the trial Court is proper and correct and does not require any interference.

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Heard Sri.A.Madhusudhana Rao, learned counsel for the petitioners and Sri.G.Papi Reddy, learned counsel for the respondents. Perused papers.

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W.P. No.26149 OF 2015

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The points that arise for consideration in this writ petition are:

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i) Whether the relinquishment deed is required to be registered and stamped?

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ii) Whether the order passed by the trial Court is just and proper ?

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iii) What order ?

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POINT NO.1 : Whether the relinquishment deed is required to be registered and stamped ?

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Relinquishment deed has the effect of relinquishing a right over an immovable property held by one person in favour of another person, who also holds a right in the said property i.e. the said document only could be executed by a person having a right to a person who also holds a right in the property. In the present case, 23 guntas of land is stated to have been relinquished under the relinquishment deed dated 20.02.1992. Thus is by way of said relinquishment, there is transfer of 23 guntas of land which would require compulsory registration in terms of Section 17(2) of Indian Registration Act.

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W.P. No.26149 OF 2015

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POINT NO.2: Whether the order passed by the trial Court is just and proper?

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The entire order of the trial Court on IA-7 is virtually passed on the observations made by this Court in W.P.No.31198/2014 which has been subplanted by defendants in their application filed under section 151 of CPC, wherein the defendants have sought to contend as if there is a direction by this court to allow the application and mark the documents. The prayer and para 3 of the said application is extracted hereinabove for easy reference. There is no such direction which has been issued by this court. As could be seen from the perusal of the order dated 2.09.2014 in W.P.No.31198/2014 this court had only observed that it would be open for the petitioners to make efforts before the court to mark the said document and in this regard necessary application could have been filed. That order necessarily implied that once an application is filed, the trial Court ought to have independently applied its mind on the available facts and law and come to a decision. Instead of so doing, on the basis of misinterpretation made by the defendants, the

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trial court succumbing to the said misinterpretation came to a conclusion that this Court had directed the marking of the said document and allowed the application. The said order therefore, cannot be countenanced either in law or on facts. In view thereof, the order dated 5.6.2014 passed by the Senior Civil Judge and JMFC, Malur on IA-7 in O.S.No.40/2011 is hereby quashed. IA-7 is dismissed.

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The writ petition is accordingly allowed.

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Sd/JUDGE

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Sri H.M. Srinath v. Sri. Muninagappa

Case brief

What is this about?

What did the court decide?

Sri H.M. Srinath v. Sri. Muninagappa

Case brief

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What did the court decide?

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