Allowed

Veerasangayya S/O. Gadigayya Mulimath v. Veerupakshayya S/O. Irayya Ganachari

Karnataka HC6 Apr 2022WP/100576/2022

Case brief

AI extract

What is this about?

The Karnataka High Court quashed an order rejecting an unregistered release deed. It held that such documents can be marked for collateral purposes like establishing possession if penalized for insufficient stamp duty, leaving admissibility for later stages.

What did the court decide?

The impugned order rejecting the document was quashed and the trial court directed to mark the document subject to relevancy and admissibility.

Veerasangayya S/O. Gadigayya Mulimath Vs Veerupakshayya… — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 06^TH DAY OF APRIL, 2022

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 100576 OF 2022 (GM-CPC)

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BETWEEN:

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VEERASANGAYYA S/O. GADIGAYYA MULIMATH AGE. 42 YEARS, OCC. AGRICULTURE, R/O. BEGUMPURPETH MUDAGAL, TQ. LINGASUGUR, DT. RAICHUR.

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JADISWAMY S/O. GADIGAYYA MULIMATH AGE. 39 YEARS, OCC. AGRICULTURE, R/O. BEGUMPURPETH MUDAGAL, TQ. LINGASUGUR, DT. RAICHUR.

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SMT. HAMPAVVA W/O. BASAYYA CHOWDIMATH AGE. 37 YEARS, OCC. HOUSEHOLD, R/O. BEGUMPURPETH MUDAGAL, TQ. LINGASUGUR, DT. RAICHUR.

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Digitallysigned bySAROJAHANGARAKI SAROJAHANGARAKI Location:DharwadDate:2022.04.1110:59:38+0530

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SMT. GANGAWWA W/O. GADIGAYYA MULIMATH AGE. 51 YEARS, OCC. HOUSEHOLD, R/O. BEGUMPURPETH MUDAGAL, TQ. LINGASUGUR, DT. RAICHUR.

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GURUSHANTAYYA S/O. GADIGAYYA MULIMATH AGE. 43 YEARS, OCC. AGRICULTURE, R/O. BEGUMPURPETH MUDAGAL, TQ. LINGASUGUR, DT. RAICHUR.

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…PETITIONERS

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(BY SRI. P G MOGALI.,ADVOCATE)

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AND:

VEERUPAKSHAYYA S/O. IRAYYA GANACHARI AGE. 56 YEARS, OCC. AGRICULTURE AND CONTRACTOR, R/O. MUDAGAL, TQ. LINGASUGUR, DT. RAICHUR

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SHANTAPPA S/O. TAVAREPPA GANTIHAL AGE. MAJOR, OCC. AGRICULTURE, R/O. BEGUMPURPET, MUDAGAL, TQ. LINGASUGUR,

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DT. RAICHUR

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KARIYAPPA S/O. DYAVAPPA CHENNUR AGE. 58 YEARS, OCC. AGRICULTURE, R/O. LINGASUGUR, TQ. LINGASUGUR,

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DT. RAICHUR

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BADANAGOUDA S/O. MALLANAGOUDA PATIL AGE. 81 YEARS, OCC. AGRICULTURE, R/O. BHUDINAGAD, TQ. GULEDGUDDA, DT. BAGALKOT

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SMT. YALLAVVA W/O. IRANAGOUDA PATIL AGE. 49 YEARS, OCC. AGRICULTURE, R/O. BHUDINAGAD, TQ. GULEDGUDDA, DT. BAGALKOT

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SMT. PARVATI W/O. KASHIVISHWANATH SHETTAR AGE. 61 YEARS, OCC. AGRICULTURE, R/O. HARAVIYAVAR STREET, GULEDAGUDDA, TQ. GULEDAGUDDA,

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DT. BAGALKOT

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IRANAGOUDA S/O. BASANAGOUDA PATIL AGE. 46 YEARS, OCC. AGRICULTURE, R/O. BHUDINAGAD, TQ. GULEDAGUDDA, DT. BAGALKOT

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…RESPONDENTS

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(BY SRI. SHIVARAJ S. BALLOLLI, ADVOCATE FOR R1 & R5 TO R7; SRI. BASAVANGOUDA T, ADVOCATE FOR R3; R4 – SERVED; R2 – N/D/W.)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI, QUASHING THE ORDER PASSED IN O.S.NO.23/2011 DT.25/11/2021 BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, BADAMI AT BADAMI VIDE ANNEXURE-C AND ETC.

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THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are before this Court seeking for the following

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reliefs:

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I. Issue a writ of certiorari, quashing the order passed in o.s.no.23/2011 dt.25/11/2021 by the learned Senior Civil Judge and JMFC., Badami at Badami vide Annexure-C. ‘

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II. Issue a writ of mandamus directing the Hon’ble court below to mark the Hakkubidugade Patra Dt. 1/10/1983 produced by the petitioners in O.S.No.23/2011 pending on the file of learned Senior Civil Judge and JMFC, Badami at.Badami.

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III. Issue any other writ, order or direction that are deemed proper and necessary by this Hon’ble court in the interest of justice and equity.

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The suit in O.S.No.23/2011 had been filed seeking for declaration that the plaintiff is the absolute and exclusive owner of the suit schedule ‘B’ property and alternatively for partition and separate possession of the properties.

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In the said suit, the defendants had sought to mark a document styled as Hakkubidugade Patra dated 01.10.1983, which is in the nature of a release deed. The said document came to be impounded. The necessary stamp duty and penalty levied thereon. Subsequently, while marking the document, objections were raised by the plaintiff on the ground that the said document is a compulsorily registrable document in terms of Section 17 of the Indian Registration Act, 1908 (hereinafter referred to as ‘the Act’, for brevity) and not having been registered, the same could not be marked even for collateral purposes.

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The trial Court accepting the said objection concluded that, by virtue of Section 49 of the Act, documents cannot be marked even for collateral purposes nor could the same be looked into.

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Sri. P. G. Mogali, learned counsel for the petitioners submits that, the petitioners wants to rely upon the said document only for collateral purposes to establish possession. They do not intend to rely upon the said document to establish title or release of interest under the aforesaid release deed. Hence

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he submits that the petitioners would be entitled to mark the document for collateral purposes.

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Sri. Shivaraj S.Ballolli learned counsel for the respondents No.1, 5 to 7 would however contend that the document being a release deed, is a compulsorily registrable document and the aspect of possession is not a collateral purpose, as such, it goes to the root of the matter since it is only under the release deed that the possession has been transferred. Therefore the aspect of possession in the present matter is not a collateral purpose.

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The short question that would arise for consideration of this Court is:

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

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There is no dispute as regards the document being unstamped or unregistered. The trial Court also finding that the said release deed was not properly stamped, by exercising powers under Section 34 of the Karnataka Stamp Act, 1958 has impounded the same and levied penalty.

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The Hon’ble Apex Court in the case of Yellapu Uma

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Maheswari & another Vs. Buddha Jagadheeswararao &

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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.”

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The Hon’ble Apex Court in the case of Shyam Narayan

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Prasad Vs. Krishna Prasad and Others reported in AIR

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

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“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

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

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This Court in Mahadeva Vs. The Commissioner, Mysore City Corporation and Others reported in 2003 (1) Kar.L.J.

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518 at para 9 and 10 has held as under:

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“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

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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.

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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.”

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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

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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 evidence. However, the admissibility thereof is to be decided subsequently.

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In view of the above, the point framed for determination in this case is no longer res integra . The Hon’ble Apex Court has clearly laid down the law relating to the same. Hence I answer the point raised by holding that, even if a document is not registered, the said document can be marked in evidence, admissibility being left upon for consideration at appropriate stage.

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In the present facts, applying the above, I am of the considered opinion that the order passed by the trial Court does not suffer from any legal infirmity.

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Sri. P. G. Mogali, learned counsel for the petitioners having submitted that he would rely upon the said release deed only for the purpose of possession and not to establish the title, the same would be collateral purpose. The admissibility and

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