Partly allowed

Smt Shahanawaz Begum v. Sri a Abdul Gani

Karnataka HC23 Oct 2024WP/56654/2018

Case brief

AI extract

What is this about?

Writ petition by defendants against Trial Court's review order permitting plaintiffs to mark an unregistered sale deed and insufficiently stamped agreement in a suit for khatha recording. The High Court set aside permission to mark the unregistered sale deed as contrary to Section 49 of the Registration Act and restored the earlier order; directed duty and penalty be collected on the agreement.

What did the court decide?

Impugned review order set aside as to the unregistered sale deed; order dated 08.01.2018 restored; Trial Court to call upon plaintiff to pay stamp duty and penalty on the agreement of sale.

Smt Shahanawaz Begum Vs Sri a Abdul Gani — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:45744 WP No. 56654 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 56654 OF 2018 (GM-CPC)

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BETWEEN:

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SMT. SHAHANAWAZ BEGUM AGED ABOUT 87 YEARS, W/O LATE AZEEZ AHMED KHAN RESIDING AT 4061/4, 6^TH CROSS, MAHADEVAPURA ROAD, UDAYUAGIRI, MYSURU.

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SRI. A. AKRAM AHMED KHAN AGED ABOUT 65 YEARS, W/O LATE AZEEZ AHMED KAHN RESIDING AT 4061/4, 6^TH CROSS, MAHADEVAPURA ROAD, UDAYUAGIRI, MYSURU.

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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SMT. SABIHA AZEEZA KHANUM AGED ABOUT 55 YEARS D/O LATE AZEEZ AHMED KHAN RESIDING AT 4061/4, 6^TH CROSS, MAHADEVAPURA ROAD, UDAYUAGIRI, MYSURU.

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(BY SMT. AISHWARYA HEGDE, ADVOCATE FOR SRI. GURURAJ R., ADVOCATE)

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…PETITIONERS

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AND:

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SRI. A. ABDUL GANI AGED 86 YEARS, S/O LATE ABDUL RAHMAN, RESIDING AT NO.2894, M 104, B.N. ROAD, MANDI MOHALLA, MYSURU - 577001

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1(a) SRI. AFSAR NAYAZI S/O LATE A. ABDUL GHANI, AGED ABOUT 63 YEARS, FLAT NO.7, "VISHRAM APARTMENTS", 15/1, DAVIS ROAD, RICHARDS TOWN, BANGALORE NORTH, FRASER TOWN, BANGALORE-560005.

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1(b) SRI. ASIF NAYAZI S/O LATE A. ABDUL GHANI, AGED ABOUT 57 YEARS, DOOR NO.3, POSTAL COLONY, 2^ND STAGE, RAJEEV NAGARA, UDAYAGIRI, MYSURU-570019.

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1(c) SRI. SHARIQ NADEEM S/O LATE A. ABDUL GHANI, AGED ABOUT 48 YEARS, DOOR NO.2894, M-104, B.N. ROAD, MANDI MOHALLA, MYSURU-570021.

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1(d) SMT. ASIFA PARVEEN D/O LATE A. ABDUL GHANI, W/O SYED IMDAD HUSSAIN, AGED ABOUT 56 YEARS, FLAT NO.G-1, GROUND FLOOR, JAY PEE TOP APARTMENTS, BOHRA LAYOUT, BANGALORE SOUTH, GOTTIGERE, BANGALORE-560083.

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1(e) SMT. NAFEESA PARAVEEN A., D/O LATE A. ABDUL GHANI, W/O BASHEER KHAN, AGED ABOUT 48 YEARS, DOOR NO.1257, MILL ROAD, COIMBATORE-641011, TAMILNADU

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1(f) SMT. RAYEESA PARVEEN D/O LATE A. ABDUL GHANI, W/O ABDUL MUJAHID, AGED ABOUT 48 YEARS, DOOR NO.6, HAPPY HOME, 1 B MAIN ROAD, MOTHER THERESA COLONY,

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MOTHER THERESA CHURTCH, RAJEEVA NAGARA, 2^ND STAGE, MYSURU-570019.

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SMT. AYESHA BI AGED ABOUT 72 YEARS W/O SRI A. ABDUL GAM RESIDING AT NO.2894, M 104, B.N. ROAD, MANDI MOHALLA, MYSURU.

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MYSORE CITY CORPORATION MYSORE, MYSORE DISTRICT REPRESENTED BY ITS COMMISSIONER

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THE ZONAL COMMISSIONER ZONAL OFFICE-7, LASHKAR MOHAILD, MYSORE CITY CORPORATION, MYSURU.

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AMENDMENT CARRIED OUT AS PER COURT ORDER DATED 29.08.2024.

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…RESPONDENTS

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(BY SMT. GEETHADEVI M.P., ADVOCATE FOR RESPONDENT NO.3;

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SRI. H. SUNIL KUMAR, ADVOCATE FOR RESPONDENT NO.2 AND ALSO FOR RESPONDENT NOS.1(a) TO 1(f); NOTICE TO RESPONDENT NO.4 IS SERVED)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 25.06.2018 PASSED ON I.A.NO. V IN O.S.NO. 327/2015 ON THE FILE OF III ADDL. I. C.J. AND JMFC MYSORE AT ANNEXURE-E.

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

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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NC: 2024:KHC:45744 WP No. 56654 of 2018

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ORAL ORDER

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The defendant Nos.3 to 5 in O.S No.327/2015 on the file of 3^rd Additional I Civil Judge and JMFC, Mysore, have filed this petition challenging an order dated 25.06.2018, by which the Trial Court allowed the application filed by the plaintiffs under Order 47 Rule 1 of Code of Civil Procedure and reviewed the order dated 08.01.2018.

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The suit in O.S No.327/2015 was filed for declaration that the impugned communication bearing No.MYNAPA/VAKA7/SAA/708/2014-15 dated 03.11.2014 was illegal, null and void and for consequential mandatory injunction to direct the defendants to record the Khatha of the suit property in the name of the plaintiffs jointly.

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3.(i) The suit was contested by the defendant Nos.3 to 5, who denied the assertions made by the plaintiffs in the plaint and also denied their entitlement for the reliefs.

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(ii) After issues were framed, the suit was set down for recording the evidence of the plaintiff. The plaintiff was examined as PW1. An agreement of sale dated 17.09.1964 and an unregistered sale deed dated 28.03.1965 was sought to be

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marked. The Trial Court, in terms of an order dated 08.10.2018, rejected the request of the plaintiffs to mark the unregistered sale deed as an exhibit and directed collection of duty and penalty on the agreement of sale dated 17.09.1964. Later, the plaintiffs filed I.A No.5 under order 47 Rule 1 of Code of Civil Procedure, to review the order dated 08.01.2018. The Trial Court by a cursory order allowed the application and reviewed the order dated 08.01.2018 and permitted the plaintiff to mark the agreement as well as the unregistered sale deed. Being aggrieved by the said order, the defendant Nos.3 to 5 before this Court in this writ petition.

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The learned counsel for the defendant Nos.3 to 5 submitted that agreement of sale was not duly stamped and hence could not have been marked as an exhibit until sufficient stamp duty was paid. He contends that the unregistered sale dated 28.03.1965 could not have been received as evidence in view of Section 49 of the Registration Act, 1908. He also contended, though there was no error in the order dated 08.01.2018, the Trail Court cursorily reviewed the order and allowed the plaintiffs to mark the said documents. He therefore

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contends that, the impugned order passed by the Trial Court warrants interference.

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Per contra, learned counsel for the plaintiffs contended that agreement of sale dated 17.09.1964, could not have been excluded from evidence even if, sufficient stamp duty was not paid thereon. He contended that Trial Court was bound to impound the documents at the first instance and direct the collection of deficit duty and penalty in accordance with law. In so far as the unregistered sale deed is concerned, the learned counsel who contends that said documents could be marked for collateral purposes and admissibility of the document could be looked into at the time of trial.

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I have considered the submission learned counsel

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for the plaintiffs and learned counsel for the defendant Nos. 3 to 5.

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The order dated 08.01.2018 passed by the Trial Court refusing to mark the unregistered sale deed dated 28.03.1965 was justified in view of Section 49 of Registration Act, 1908, which mandated that a compulsorily registerable document if not registered, cannot be received as evidence.

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For the purpose of reference, Section 49 of Registration Act,

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1908 is extracted below:

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"49. Effect of non-registration of documents required to be registered — No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall—

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(a) affect any immovable property comprised therein, or

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(b) confer any power to adopt, or

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(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:

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[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.]"

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A reading of Section 49 of the Registration Act,

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makes it more than clear that for an unregistered document to be marked even for a collateral purpose, there are two requisites that have to be complied namely:

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i) That the suit should be one for specific performance.

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ii) It should contain particulars of any collateral transaction not required to be effected by registered instrument.

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iii) In the case on hand, the sale deed dated 28.03.1965 could not be treated as collateral transaction as the plaintiff claimed title to the property and hence, the said document could not have been received as evidence. Therefore, the Trial Court committed an error in reviewing its earlier order dated 08.01.2018 and permitted the plaintiffs to mark unregistered sale deed. The contentions of the learned counsel for the plaintiff that the said document could be marked and admissibility may be looked into later is not justified in view of the language in Section 49 which prescribes the receipt of any document as evidence, if not registered in accordance with the Registration Act, 1908.

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In so far as the agreement of sale dated 17.09.1964 is concerned, once the said insufficiently stamped document is produced before the Court, it was without

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exception, bound to impound it under Section 33 of the Karnataka Stamp Act. If the plaintiff offered to pay the stamp duty and the penalty, the Court was entitled to receive the stamp duty and penalty and mark the document as an evidence and forward the stamp duty and penalty to the appropriate authorities under Section 37 of the Karnataka Stamp Act. In the instant case, the Trial Court without directing the plaintiff to pay the duty and penalty, could not have allowed the said document to be marked as evidence.

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10. In that view of the matter, the impugned

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order passed by the Trial Court warrants interference. Hence, the following

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order:

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i) Writ petition is allowed in part;

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ii) The impugned order dated 25.06.2018

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is set aside, in so far as it relates to allowing the plaintiff to mark the unregistered sale deed dated 28.03.1965.

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The order dated 08.01.2018, disallowing

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the plaintiff from marking unregistered sale deed dated 28.05.1965 is restored.

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iii) In so far as the agreement of sale dated 17.09.1964 is concerned, the Trial Court shall call upon the plaintiff to pay stamp duty and penalty and thereafter, proceed in accordance with law.

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Sd/(R. NATARAJ) JUDGE

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THM List No.: 1 Sl No.: 25

Smt Shahanawaz Begum v. Sri a Abdul Gani

Case brief

What is this about?

What did the court decide?

Smt Shahanawaz Begum v. Sri a Abdul Gani

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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