Karnataka High Court
K.Manmjunath S/O Siddaramappa ... vs Basavaraj S/O Late Virupaxappa ... on 2 September, 2010
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE o2ND DAY OF SEPTEMBER;..':201u(): E
BEFORE
THE I-ION'BLE MR. JUSTICE ANADD ' K
WRIT PETITION NO.83586 T2009 (Qn1--cPTEC--i{V
BETWEEN
K. Manjunath,
S/o. Siddaramappaj' A _ _ A
Huvinabhavi, E
Aged about 27 §,'ea3i$,7.._.. ' ' V' V
Occ:Agricu1ture {St If;3u_siness_, E
R/0.Mar1Vi,.vi11ag'e., V' E
Taluk: Lir1gsgur_,A"7._» _ --
District. Raichur«584.:'iAf2..4a.V4A"-.__" _ ' : Petitioner
(By Sri. Amee{Kun1aT Die'-svhpande, Advocate)
" DDDDD
1."eV.B1'as'gi_va,raj,:'i .'
S"/_o".' gate .Vir_up'aXappa Kulkarni,
Aged__ about '52Ayears, Occ: Agriculture,
V . R/0. 'Dee-fnasumadra Village,
Sindkianur, Dist. Raichur«58-4 121
1 2- V' Rao,
-X.-S/'D. Hanmantha Rae Kulkarni,
%ed about 69 years,
" " V _ Occ: Agriculture,
,.,;\:§
R/o. Deenasumadra Village,
Tq. Sindhanur,
District. Raichur ~-- 584 121. : Respo1j1de:n_ts_v
(By Smt. Anita Kulkarni, Advocate for R-1)
This writ petition is filed.;u3:1der aejidfi
227 of the Constitution of India, praeyirigl
order dated 31.10.2009 passedA"'bvy' the sgaeidleipaie 'Civil,
Judge (Junior Division) Sindhanur "15/2008
on the objections torInark..*iri--.evide.nce theuiiregistered
and unstamped doeiirnen-t__ deed as at
Annexure--D. _ '
This on ::for__pre1imina1'y hearing in
'B' group. the the following:
VEWORDER
V. _vThel'"wrVit petitiorileorning on for preliminary hearing
'group is eonsidered for final disposal, having regard
"to. tiiejifaets circumstances of the case.
pg Heard the learned counsel for the petitioner
.. add' the learned counsel for the respondents.
3. The petitioner herein is the first defendant in a pen_ding civil suit, which is filed by the responde:n.tfNvo.1 herein, for the relief of declaration of oxvi1ershfip..fand,p injunction. The declaration sought' is ':ajregi_s.tered' * .4 gift deed is not binding on the plaintiff. it the plaintiff-respondent that .__the_: of the plaintiff while joint. shad flNo.,.7.0:§ to run a business and although' made in the name of defevndarit wherein it was alleged was allotted to the fandflfthat, there was also a comprornise hetween the plaintiff and defendant'4'No.2V.in another civil suit in O.S.No.539/ 2006 f if .datec1:,.,'1'2."l.0fl.2OO7.WThe suit was contested and the plaint were denied. During the course of evidence, the p'iaintiff~respondent no.1 sought to produce a ..docurnent which was styled as a partition deed. On an ' '._o'bjection being raised as to its admissibility and marking "of the same, on account of want of registration, the trial .5 Court has rejected the objection, on the footing that the document could be marked for a collateral purpos'e_,l_e_Ven though it is an unregistered and unstarnpcti To arrive at this conclusion, the trial _'Court]has4_'reiied'pp upon the authorities referred "to question, therefore, is Whether the was justified in holding that the"'docurnent 'question could be marked for a col1ate;_ral'" though it was not registered 'and ' ' 4_,__V'1V'lie upon the decision in the case._ Vs. K.H.Ra.ngiah Setty (ILR 2002 i3s1'3),"io the argument put forth that th:E;:':..'dOCun]é'r1t..V:vvfihQfi1gh unregistered and unstamped, , relied upon for a collateral purpose. The "facts of t"ri;ati:=case were as follows:
if The plaintiff therein had filed a suit for the relief of
-..Vld»ecliaration to declare that he was entitied to half share 2 ..Sin the suit property and for partition and separate Ear the plaintiff for the relief of permanent injunctionpand as the said document, namely, the Settlement D'eed_:'was marked, after overruling the objections and it was in that backgroundmthatp to whether the document could tttinedther.
suit before this Court, in th:'a't..p>decided for consideration.
5. This Court decisions of the Apex itliough Section 49 of the receiving documents in evidence, under Section 17, which are cornpvults-orily it was observed that the proviso to the Section provides for receiving such do'c.u_merits-.4V.'in_ the circumstances narrated therein. clear that there is no total prohibition
-V for receiving unregistered documents in evidence and it V' was settled law that an unregistered partition deed be received in evidence to prove any collateral transaction. Therefore, it was held that even if an unregistered document is marked, it would i_n»,_n.oC~.way affect the interest of the parties. Mere documents does not take away_t»he__righ'tHof' . 1 party to contend that such a docurneiit upon as it is not registeredI"~.,_A SiniiI.ar1y,V tithe law' declares that for a eoilateraiifulzrpose, than-..u1:iregistered document could be it clear that such a docurnent under those for the Courts would be subject to objections, perlnitting Vthed adduce evidence instead of putting <iue:stioi1sC"~.to"". the Counsel at the time of .argurfi"entts.,, etc. H ttttt H ' Court has also relied on yet another judgrrient in the case of AIR 2003 so 1905 (Bondar Singh 2 and Cjtthers Vs. Nihal Singh and Others), which is also 'reported in ILR 2003 KAR 2253.
RES The facts were the plaintiffs therein had filed a suit for declaration that they had become the ownJe.rs~..4of.o_the land in suit by adverse possession, and for_.a{n"iI1§_u--neti_o11v to restrain the defendant from »_inte:*ierin;.c_§ , the . plaintiffs possession. The suit was tdee'reed."~ Hov(revef',i1.ean appeal filed against the Appellate Court and u.fa's--alloi.ired by the High Court and the The same was carried One of the questions' was that the land Which' owtiedfi by Fakir Chand, the the appellants and Fakir Chand sold to one Tola Singh, predecessor- iIvi}i1~1t;etrest off"----t-he plaintiffs, by an unstamped, 'sale deed and whether the said document iaipiiid heated upon.
at The Supreme Court has held that under the law sale deed is required to be properly stamped and we 5 registered before it conveyed title to the vendee. However. the legal position is clear that a doouvrn:enit~._like a sale deed, in that case before it, even' admissible in evidence could belooked loo14Iate-r_aI » _ purposes. It was held by the collateral purpose to be seenlis the" nature.:of,possession V of the plaintiffs overgthe deed in question showed that of the plaintiffs over the "hr unauthorised.
Therefore? the Supreme Court held that deed could be looked into for collateral ». .
8.. 'I'heA~..L<l:1uestion therefore, that arises for » ioionsideration is whether in the case on hand, whether H was justified in permitting the marking of a which was admittedly an unstamped and if unregistered partition deed on the ground that it was i so»! 13 that sense, the interest of the separated member continues to extend over the whole joint property as before. Such a transaction does not purportiorli do any of the things referred to~.in__thatVSeetion" _ Supreme Court concluded, documents, referred to iri.,_v4't'h_at c'as_e,' .y(ra,_s""..e'vidence of partition only in the forrneri-sense' therefore, were not compulsorily registrable_'under:' and shall not come within which 'prohibits the recepitioln~.'iritlo_ A any document effecting ityifaslvlheld that the documents were rightly' i'eceiifed'inl"evidence for a limited purpose. it 11. InV"Iv.'1:Va:1:tV'tap~a1li Chelamayya's case supra, the » 1quest.ivo3:1 arose for consideration was as regards the H by arbitrators, under the provisions of the Arbitration Act, 1940. The appellants before the Apex xCourt were made liable to pay certain amounts lpersonaily, to the respondents, along with interest and A, aim' document would not affect immovable properties of the appellants. It cannot also be received as evidence-__of any transaction affecting the said property as -the charge. But the Apex Court observed tl'1_eC,:
does not indicate that the docu"rne'nt« cannotlbe received T in evidence at all and if pp.underV._the. Evid_encve'~ document was receivable 'irmevidence collateral purpose, Section 49 position has been duly' Act 21 of 1929, Section. The Apex Court to pay a sum of money which payable by the appellants to create a liability for the first but merely' worked out the liability, but the same 'cannot about the charge which was created for The Court concluded that the case "tvvo distinct matters, one being a personal lliabnility to pay a certain amount and the second, an Alladditional relief to recover that amount from the I8 close interpretation of the content of the document, held that, while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causing a change relation to the property divided such a document, would require "regi'stration"
Section 17 (1)(b) of the Aet.ljiaut inereiyl recites that, there hasin time been 'partition, is not a declaration of will, of fact, and it does not of the matter would be? V apart of the partition incidental recital of a previotislv and it was well settled thata mere iistof properties allotted at a partition is not art. llliflstrumentlllllbflv partition and does not require tegisteetteeeee has held that Section i7{i){b) lays down that avdootilment for which registration is compulsory .should.~'t)y its own force operate, or purport to operate, to it '~_lcrea'te, or declare some right in immovable property.