Sri Anantharamaiah Vs Sri Rachaiah, Deceased by Hir Lrs

SRI ANANTHARAMAIAH S/O LATE SIDDAIAH, AGED ABOUT 60 YEARS, R/O HOSAMANE, VIJAYANAGARA, 3RD CROSS, BHADRAVATHI, SHIVAMOGGA DISTRICT, BY PROFESSION MANUAL LABOURER

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…PETITIONER

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(BY SRI. KARTHIK S TAYUR, ADVOCATE)

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AND:

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Digitally signed SRI RACHAIAH, by SHARADAVANI DECEASED BY HIR LRS B

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Location: HIGH COURT OF KARNATAKA

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SMT. JAYAMMA, W/O LATE RACHAIAH, AGED ABOUT 65 YEARS, R/O III CROSS, KHATA NO. 295, VIJAYANAGARA EXTENSION, HOSMANE, BHADRAVATHI, SHIVAMOGGA DISTRICT - 577 301.

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SRI. S.R. INDRESH KUMAR S/O LATE RACHAIAH

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HC-KAR

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AGED ABOUT 47 YEARS, R/O III CROSS, KHATA NO 295, VIJAYANAGARA EXTENSION, HOSMANE, BHADRAVATHI, SHIVAMOGGA DISTRICT - 577 301.

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SHIVAKUMAR S.R. S/O LATE RACHAIAH AGED ABOUT 40 YEARS, R/O III CROSS, KHATA NO. 295, VIJAYANAGARA EXTENSION, HOSMANE, BHADRAVATHI, SHIVAMOGGA DISTRICT - 577 301.

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CHETAN KUMAR S R S/O LATE RACHAIAH AGED ABOUT 35 YEARS, R/O III CROSS, KHATA NO. 295, VIJAYANAGARA EXTENSION, HOSMANE, BHADRAVATHI, SHIVAMOGGA DISTRICT - 577 301.

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S.R. KIRAN KUMAR S/O LATE RACHAIAH AGED ABOUT 30 YEARS, R/O III CROSS, KHATA NO. 295, VIJAYANAGARA EXTENSION, HOSMANE, BHADRAVATHI, SHIVAMOGGA DISTRICT - 577 301.

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RASHMI

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D/O LATE RACHAIAH AGED ABOUT 25 YEARS, R/O III CROSS, KHATA NO. 295, VIJAYANAGARA EXTENSION,

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HC-KAR

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HOSMANE, BHADRAVATHI, SHIVAMOGGA DISTRICT - 577 301.

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…RESPONDENTS

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(R1 TO R5 SERVED;

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NOTICE TO R6 DISPENSED WITH VIDE ORDER DATED 03.12.2025)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE IMPUGNED ORDER (AT ANNEXURE-J) DTD 04.08.2023 ON THE FILE OF THE IV ADDITIONAL CIVIL JUDGE AND JMFC, AT BHADRAVATHI, SHIVAMOGGA DISTRICT, AND ALLOW THE INTERLOCUTORY APPLICATION NO.10 (ANNEXURE-G) PERMITTING THE PETITIONER TO ADDUCE SECONDARY EVIDENCE AND ETC.,

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

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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This writ petition is filed under Article 227 of the Constitution of India with a prayer to set aside the order dated 04.08.2023 passed on I.A.No.10 in O.S.No.434/2015 by the Court of IV Additional Civil Judge and JMFC, Bhadravathi.

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HC-KAR

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Heard the learned counsel for the petitioner.

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Respondents who are served have remained unrepresented before this Court.

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Petitioner herein has filed O.S.No.434/2015 before the jurisdictional Civil Court at Bhadravathi, seeking the relief of ejectment and damages. In the said suit, I.A.No.10 was filed on behalf of the petitioner under Section 65 of the Indian Evidence Act, 1972, with a prayer to permit the plaintiff to lead secondary evidence and to produce the rent agreement dated 10.05.2000 under which the defendants were allegedly put in possession of the suit schedule property. The said application was opposed by the defendants by filing objections. The trial Court has rejected I.A.No.10 and being aggrieved by the same, the petitioner is before this Court.

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Learned counsel for the petitioner submits that the petitioner has laid the foundational facts for the purpose of permitting him to lead the secondary evidence. The trial court has, however rejected the application for the reason that the instrument in question, which is a lease deed is compulsorily registrable and the same is also insufficiently stamped and

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therefore, the same cannot be admitted in evidence in view of the judgment of the Hon'ble Apex Court in the case of Hariom Agravwal Vs. Prakash Chand Malviya , reported in AIR 2008 SC 166 . He submits that the explanation to Section 3 of the Karnataka Stamp Act, 1957, specifically provides for impounding even photostat copy of the instrument and therefore, the trial Court was not justified in rejecting I.A.No.10 merely for the reason that the instrument is the photostat copy of the original document.

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Perusal of the material on record would go to show that at paragraph No.5 of the plaint in O.S.No.434/2015, it is specifically averred that the original of the lease deed dated 10.05.2000 is in the custody of the defendants, who is none other than the elder brother of the plaintiff. According to the plaintiff, the suit schedule property was allotted to his share under a registered partition deed dated 28.06.2003 and the said document has been marked as Ex.P.1, before the trial.

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Prior to filing of I.A.No.10, the petitioner has issued

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a notice calling upon the defendant to produce the original of the lease deed dated 10.05.2000 and in reply, the defendant

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HC-KAR

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has stated that he is not in possession of the original or copy of the said lease deed dated 10.05.2000 and therefore, there is no question of he producing or showing the same to the Court. Therefore, I am of the opinion that the petitioner had laid the foundational facts for the purpose of permitting him to lead the secondary evidence on the lease deed dated 10.05.2000 by producing the photostat copy of the same, which is in his custody.

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The trial Court has rejected the application primarily on the ground that the photostat copy of the document which is in possession of the petitioner is not properly stamped and the same is also hit by Section 17 of the Registration Act, 1908, placing reliance on the judgment of the Hon'ble Supreme Court in the case of Hariom Agravwal (supra). The judgment in the case of Hariom Agravwal was rendered considering the provisions of Indian Stamp Act, 1899, whereas in the Karnataka Stamp Act, 1957, the explanation to Section 3 clearly provides that even a copy of the instrument, if found not properly stamped, shall be chargeable with duty as indicated in the Schedule of the Act of 1957 and all the provisions of

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HC-KAR

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Chapter II, IV, VI, VII and VIII of the Act of 1957 shall mutatis mutandis be applicable to even a photostat copy of the original.

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This Court in the case of Smt.Sulochana Vs.

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Sri.B.K. Mariyappa disposed of in W.P.No.49429/2019 on 25.11.2025 having appreciated the explanation to Section 3 of the Karnataka Stamp Act, 1957, has held that photostat copy of the original, which was produced and marked before the Court by way of secondary evidence, can be charged with duty if it is found the said document is insufficiently stamped. Under the circumstances, I am of the opinion that the trial Court was not justified in rejecting I.A.No.10 for the reason that a photostat copy of the original cannot be charged for stamp duty if it is found insufficiently stamped.

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The document in question, which is a lease deed in the present case is unregistered and therefore, in view of Section 49 of the Indian Registration Act, the same becomes inadmissible in view of Section 17 of the Act. However, even such a document can be relied on for collateral purposes, as held in the case of Rana Vidhya Bhushan Singh Vs. Shri Rati Ram reported in (1969) 1 UJ 86. The Hon'ble Supreme

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Court in the said case in paragraph No.5 has observed as follows:

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5. The agreement was unregistered. It could not create in favour of the defendant the right of a tenant for a period of fifteen years. The agreement was on that account inadmissible in evidence to support that claim. But in support of the plea that his possession was that of a tenant the defendant was entitled to rely upon the recitals contained in that agreement of lease. Section 49 of the Indian Registration Act, 1908, insofar as it is relevant to this appeal provides :

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"No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall-

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(a) affect any immovable property comprised therein, or

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(b) x x x x x

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(c) be received as evidence of any transaction affecting such property for x x x x 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,. to be registered may be received as evidence x x x x x of any collateral transaction not required to be effected by registered instrument.

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A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by Mulla in his Indian Registration Act, 7th En., at p. 189 :

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"The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it."

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It may be sufficient to refer to the judgment of this Court in Padma Vithoba Chakkavva v. Mohd. Multani (1). In that case one R executed a usufructuary mortgage of certain lands in favour of M. He later executed a sale deed of the same lands in favour of Rajanna. Rajanna found it difficult to obtain possession. Rajanna, R & M entered into an arrangement under which the sale deed was cancelled by making endorsements on the deed and the lands were

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thereafter sold by R to M. After the death of Rajanna his legal representative filed a suit against M for possession of lands. M pleaded that the sale deed of 1923 was cancelled. The plaintiff urged that the endorsement was ineffective, as it was not registered and the sale deed in favour of M passed no title to him. In dealing with the question that the endorsement of cancellation was inadmissible in evidence, Venkatarama Aiyar, J. observed at p. 236 :

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"The endorsement of cancellation on the back of the sale deed in favour of Rajanna dated December 21, 1923, has been held .... to be inadmissible in evidence as it is not registered. The result of it is only that there was no retransfer of title by Rajanna to the second defendant, and the family would in consequence continue to be the owner, and that is why the appellant is entitled to redeem. But the endorsement taken along with the sale deed by the second defendant in favour of the first defendant is admissible in evidence to show the character of possession of the latter."

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Under the circumstances, I am of the opinion that the impugned order cannot be sustained. Accordingly, the following:

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ORDER

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i. The petition is allowed.

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ii. The impugned order dated 04.08.2023 passed on I.A.No.10 in O.S.No.434/2025 is set aside and consequently, the prayer made in I.A.No.10 is granted.

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Sd/-

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(S VISHWAJITH SHETTY)

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JUDGE

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rv

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List No.: 1 Sl No.: 24

Sri Anantharamaiah v. Sri Rachaiah, Deceased by Hir Lrs

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Sri Anantharamaiah v. Sri Rachaiah, Deceased by Hir Lrs

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