Karnataka High Court
Sri.G.Raghavendra S/O Late Gangadhar vs C.Harish S/O J.C.Chandraiah on 16 August, 2010
Equivalent citations: AIR 2011 KARNATAKA 1, 2010 (4) AIR KANT HCR 525, 2009 (5) AIR KANT HCR 162, 2009 (5) AIR KAR R 162, 2009 A I H C 3193, (2010) 1 ALLMR 9 (KAR), 2010 (1) ALL MR 9 JS, (2009) ILR (KANT) 2386, (2009) 5 KANT LJ 180, (2011) 2 KANT LJ 17, (2010) 4 KCCR 2743, (2009) 2 HINDULR 386, (2009) 4 ICC 409, (2009) 2 KCCR 1507
Author: Aravind Kumar
Bench: Aravind Kumar
Q//
IN THE HIGH COURT OF KARNATAKA.
DATED THIS THE 16TH DAY OF AUGUST 2()IG',L%
BEFORE VA {A
THE HON'BLE MR. JUSTICE
WRIT PETITION Nos. 31201/2ooé».ANI_)" .33i3O-131/iiboév
Q!...'i§.7_I " %
WRIT PETITION NO, 321 13' gE2oo_9
W. P. No. 31201/2009.
BETWEEN:
1 SR1. G. RA,G'I1AVENDRA.. _ -
S/O LATEGANGADHAR, _
AGED .--£~.E.Ot¥.1*fr_-:33' .
R/AT1NO_.-6§/ 1 ?E'*a\.2jLA1N ROAD'.
V1; BLOCK JAYANAGAR, «
BANGALORE 3560002" _
REPREsVEr<«TEDIB&*IVH'xs ' -
GPA HOLDER _ ' __
MR. J.B. PADAMKIJMAR.
2 SR1, J.B. "PADAMKUMAR,
/.0 LATE BHAWARILAL 13.,
' AGED_ ABOUT 3 YEARS.
" = R/AT No.14, GROUND FLOOR,
1:91? IIIAING;-»!B' CROSS.
. "M.R. 'GARDEN.
._ sA.3sIJA¥ANAGAR.
BANGALORE 560 064.
" ...PE'I'IT£ONERS
V " ~. Sri. B.V. Shankaranarayana Rao, Adv.,}
C. HARISH.
S/O J.C. CHANDRAIAH,
AGED ABOUT 41 YEARS,
R/A. NO.12, I77" CROSS.
CUBBONPET.
BANGALORE-560 002. ._
SR1. C.P. PAUL,
S/O KP. PAULOSE, .
AGED ABOUT 63 YEARS, _V
R/A. No.43, 1ST FLOOR,
WHEELER ROAD,
COX TOWN, V
BANGALORE~560----005_. ;
Sri.V. GOVINDA RA.J.I},v. 2
s/0 O
AGE: "
R/A.NO§25;~--..._-';--_V *
KAcHARA_K;ANAHA§V'L1'O,A O_ * E
1360.084. _ --
sin: 13-. .
s/O"D1ODDA1\(1u:N13gcW2A.
AGE: M'nq'OR,.'~
V, R/O. VISH'»?ANAT}i.
- 'NAGE,NAHALLI;""'
:a,'1:_NAG._AR POST.
" 'BAL'\{G'ALQRE 560 032.
. . .RESPONDENTS
(B3; SI'1'. N.R. Naik for R-1}
1
W. i'.
No. 33130/ 2009
BETWEEN:
1
AND:
SR1. G. RAGHAVENDRA.
S/O LATE. GANGADHAR,
AGED ABOUT 33 YEARS.
RESIDING AT NO.66/ 1,
181" 'E' MAIN ROAD, 7TH BLOCK,
JAYANAGAR, BANGALORE 560,002.
REPRESENTED BY HIS GPA ._
HOLDER MR. J.B. PADAM ..
SR1. J.B. RADAMKUMAR,
S/O LATE BHAWARILAL
AGED ABOUT 3 YEARS, .
R/AT NO.14, GROUND FLOOR;
1ST MAIN, 'B' CROSS} : '*~
MR. GARDEN,
SANJAYANAGAR, _
BANGALORE -5,60 §_O64.
. . PETITIONERS
(By Sri. Biz.'j'S15;ar§ka§{aAarayana Rao, AdV.,]
.. .§SR1'.~ .;AcOB--.«.iOHN.
. é " Sm THOMAS JOGN,
- .. _V AGEIJABOUT 64 YEARS.
GEORGE,
D /Q GEORGE JOHN.
AGED ABOUT 34 YEARS.
MISS SARAH GEORGE,
V "D/O GEORGE JOHN,
V' ' ~'AGED ABOUT 37 YEARS.
RESPONDENTS 1 "PO 3
ARE R/ A. NO.3 1 ,
J.M.J. COMPLEX.
OPPOSITE TO NAL,
VIMANANAGAR POST,
BANGALOREWSBO 017.
{By Sri. NR. Naik for R1}
W. P. No. 33131/2009
BETWEEN: .
1 SRI. G. RAGHAVENI)R_£x,.
s/0
AGED 33 f
REs11t;1N'G11AT-rs{o'.6.e.,(1;._V"
1ST 'B'; M;:11\;v_RoAD,V '7?" .BLOCK,
JAXANAGAR;:,BANGALoRE..560 002.
REPRESENTED BY HIS GPA
HOL}Z)ER. MR:-.q;AB. KUMAR.
2 SRI."J_._I3. _PAD_AMKUMAR,
Vs,/0 BH.AWARI'LAL P.,
,, AGED ABOLJT 3 YEARS,
- 'WAT No. 14, GROUND FLOOR,
. ., EST .1\a;A1N., '3' CROSS.
-- " 'MR. ,
._ ,sANJ~A$z;A.:\zAGAR,
A ' 'BANGALORE 560 064.
...PETITIONERS
'A I '(By Sri. B.V. Shankaranarayana Rae, Adv.,}
~
1 SR}. ALEXANDER K. JOSEPH.
S/O LATE JOSEPH.
AGED ABOUT 58 YEARS,
REPRESENTED BY G.P.A.
HOLDER SMT. DOLLY E. ALEXANDER.
2 SMT. DOLLY E. ALEXANDER, V »
W/O ALEXANDER K JOSEPH'; "
AGED ABOUT 53 YEARS. =
RESPONDENTS 1 ANDV2 ARE A-
R/A. No.59/43, OUTER
CIRCULAR ROAD,
KELAPAUK GARDEN coma» _;~
CHENNAI-600010_[f ; . "
3 sRI.M.sH1VANAN.;A,' V
s/0 MAR4:yAPPA;_' _
AGED ABo?:JT44'YEARs, "
No.43?'/23%,11.1--??'CRQSS, A '
1TrA1\IIA1:jU;VILLAGE,'eA «_
EBANGALQRE-%560 035. .
4 SR1, M. KR1sHfN.A'RE'DI§Y,
s/0' P'AT1T.L' _
V .MUN1sWAMY= REDDY,
.. AGE: MAJOR, V
" R/A. ~<IjHUBARAr«1ALLI VILLAGE,
» _, VARIHLIR HOBLI,
V _ s.BANGAI,O'RE EAST TALUK,
" ._ BA1x;vGA1,'o'RE.
...RESPONDENTS
s1-1. N.R. Naik for R~1)
These Writ Petitions are filed under Articles 226 and
0' =.2'2?..of the Constitution of Enciia praying to quash the Order
dated 5.10.2009, passed by The Add}. City Civil Judge,
....E3anga1ore {CCH--4«»-1) in OS N0.7545/2006 {Annex--R}
connected with OS No.82-42/2006 and 8243/2006 in so far
as it relates to the Agreement to Sen dated 26.5.1995 at
Armex~K and the power of attorney dated 16.5.1996 at
Annex~L.
W. P. No. 32113/2009
BETWEEN:
1 Sm c. HARISH,
S/O J.C. CHANDRAIAH, ._
AGED ABOUT 43 YEARS,
R/A. No.12, 17m CROSS,
CUBBONPET, _
BANGALORE660 002. * _ _V
[.'.'pEf:f1I'1cj%NER
(By Sri. N.R. Naik, 'A§iv'.A,)"._ ; "
1 SR!-.~--~G,A fE;AGFi;~'§'.fEND'RA,
S./O LA'I'E_..GA1*lGAD'HAR, --
A(:}ED'AI3OU.'fF '
R/AT "r~:ro.65V/ 1 '13-! ..1vm,_1N ROAD.
V11 BLOCK JAYANAGAR,
BANGALORE. 560002
,, ._%.AAREPRESENV'--I'E3D BY HIS
. - 'GP-A HOLDER" """
' V. _, M_R;_J-.}u3'."~-PADAMKUMAR.
_ s/O%KL;P.ATPAULosE,
AGEDABOUT 62 YEARS.
., R/A; No.43, 1ST FLOOR.
' .. WHEELER ROAD,
_ _ "-«cox TOWN.
~'BANGALORE--56O 005.
3 SRLV. GOVINDA RAJU.
S / O VENKATARAMANAPPA,
AGED ABOUT 47 YEARS.
R/A. NO.25.
KAC AHALLI,
ST. THOMAS TOWN POST.
BANGALORE 560 084.
4 SRE. D. GANESH.
S/O DODDAMUNIYAPPA.
AGED ABOUT 47 YEARS,
R/ O. VISHVANATH,
NAGENAHALLI,
R.T. NAGAR POST, .
BANGALORE 560 032.
(By Sri. B.V. ShaI1l§aran;.tfayafiaV_RaozAdv")
This m-1t*p1ei:::¢n"ie; filed under Articles 226 and 227 of
the Constitutionef India p1fayiI1gi'tol"»q1"iash and set aside the
Order dated wide 1~'inne2;:FJ, not permitting to mark
the Generall=».P0weif o.f'2.Atto1"ney dated 30-8-1995 and
agreement --.of saie.'dated'i2.-645-1995, placed by the petitioner
'vide Annex--C and __direeted to the petitioner and R-2,
in OS No'.=_ 7545:2035; V 'on the file of City Civil Judge,
Bangalore Clity,l'Ba'r;gaivore"," produced at Annex--E and allow
the §;§i1nee;.
_ "petitions having been heard and reserved
for {orders oi1._2'8~7--20l0 coming on for pronouncement
of day the Court made the following:
ORDER
it -_por'der dated 5-10-2009 passed by the XLIII
-A Additional City Civil Judge, 0 Bangalore in w O.S.No.7545/ 2006 holding that agreement to "sell produced by the defendant as admissible in and the power of attorney dated 25-51995 . being impounded are impugned in these it
2. T he facts in nutsheilyare i by 2.1. A suit in O.S.No.V'}S§§_/2006__wa<sVi:n1e§W33, Sri.Raghavendra against a 'three others for permanent injunction._ items of the property whtchg in the plaint schedule Respondents 1 to 3 (invhivand 1 and 2 [in W.P.Ns';3a 131 reared two suits in O.S.1'Io.82éiu.'Z,/_2006 8243/2006 against the . i'"*petitioners"'herein respondents 10 and 11 alleging in the lands (suit schedule properties in /2006) had been purchased by them and on account of alleged interference they sought for 'pemitanent injunction. These three suits were clubbed M 9 together by order dated 1-4-2008 and after framing of the issues trial had commenced. 2.2. During the course of defendants' evidenctethe first respondent herein who had been examiiiedt-"Vas" V. D.W.1 sought to produce an agreement 255-1995 and General Power jtyattomey,.:~1 a£¢pddf 305-1995 alleged to haVe__beeri._"execuVte--d'..::by Srtchikkapillappa in favour ilotrindaraju and D.Ganesh and it 4 in o.s.No.7545/2005 ana..fesp5i1t§1eritsl;é;_s;nd 3 herein}. An objveetion;iififaisiedfiby the"'p4lajntiff to the marking of these.doctirnerrts._o'n_:T1:h:e--~ ground that they were not duly _sta1npfle'd_._:V i'--'.fterA'i1e.éiring the learned advocates, trial itsporderllldated 5--10---2009 held that there was of the immovable property delivered under thedtalglreement to sell dated 26-5-1995 and as dsueh itvwas admissible in evidence and it was also held duty paid on Agreement to sell was proper and
-sttfficient. It further held that power of attorney dated Q/i 3{}~5--1995 is to be impounded with a direction to pay proper stamp duty and penalty as required under Article 41 {e a) of the Karnataka Stamp Act, 1957.
3. W.P.No.31201/2009 and 33130 3: 33131./:2_OQ§3 are filed by the plaintiffs in OS ~ whereunder order dated 5--10--200A9..is it 2 ground that trial Court oughty "
agreement to seli dated 263--5:--:'i~995iWas 'inadrnissibije in evidence.
been filed by the first defendant contending that order of intpounidinygthe"Crenera1 Power of Attorney dated .a"26V¥i5a-.1EQQ5'i' is erroneous and it ought to be marked in the_ payment of Stamp duty.
2 Sri.B.V.Shankaranarayana Rao, learned A f::odtdi1a_.seI appearing for the petitioner in W.P.No.31201 and 33130-3}./2009 and first respondent in dz ll W.P.32113/2009 and Sri.N.R.Najk, learned counsel appearing for the petitioner in W.P.32118/2009 and first respondent in W.P.No.31201 and 33130-31/mos,
6. it is the contention of ~ that under Agreement to Sell ll (Annexure~J) as per clause (6) posses_sion delivered and hence he Woul'dv_%contend 5 " it
(e)(i) of the Karnataka;--Sztamp-'Aet:;-- is 'at-tragitted and stamp duty as payable' i.--e., stamp duty paid on a de_ed,_o'f_ coinveyai1c.eA"is_'payable inasmuch as even when. agreed to be delivered before conveyance 'gets attracted and trial Court coniiriitted a 'grave error in holding that Stamp duty is to be paid on the ground possession of the had not been delivered though under "the"agreement to sell in question possession is it gigreedllto be delivered. As such he contends that order trial Court requires to be set aside and prays for it wallowing of the writ petitions.
E2
7. He would also submit that under clause (6) of Agreement possession is "agreed to be delivered" and the transaction is to be read as a whole i.e., bothlthe agreement as well as General Power of _ considered as contemporaneous d,ocunie.i'1'ts;' --- .:He"would "
submit that to ascertain whether Karnataka Stamp Act is attracted "or: 1;ot,'tit be required to be examined as toyvhether (i)'*porssression is delivered under the agrcernenteitvselfiif (ii) possession is agreed to beydeiiveredlluniier 'the docuinent and if any of these 2 present then stamp duty as required' uiideris to be paid. He would subrriit "Act.'V'No.8 of 1995 to the Karnataka i3\fct:Vd'vJi_th from 1-44995 Article 5 (e) came to and even in a transaction where "po"s-sessieri' is agreed to be delivered" was brought U H K .V:wi,th'in svreep of Article 5(e)(i) and as such Stamp Duty is required to be paid accordingly. In support of his T "submission he relies upon the following judgments: tkz
(i) ILR 2006 Kar 3179.
HP. Basavarajappa Vs. K. Vyayalakshmi
(ii) ILR 2007 Kai' 4752.
Sri. J. Prakash vs. Smt so Another 4' d d' ' ' '
(iii) 2oo3(1) KLJ 513.
Mahadeva Mtjsore City Corporation ahd.i.OtheEs:" _
(iv) Order 1922/uzoios 7-10-2008. learned counsel appearing: for submit that defendants are not c1ei1niVng.Van3f.reiief under the agreement to sell ""c;ueStio1ai,A It«'is'"on}y for collateral purposes that is being produced--marked and when it is Apijodttced.-for collateral purposes and when no relief is 1011 the basis of said document proviso to
-Sectidon 49 of the Registration Act, 1908 would get d ...attracted and such documents can be looked into by the 4k"
\ tria} Court even when there is no Registration of said document or not properly stamped and as such he seeks for rejection of W.P.No.31201 / 2009 and allowing W.P.No.32113/2009. In support yo; submission he reiies upon Ahmed Vs. Rajanna and 0thers"rep.orted Kar 2864.
9. Having V *"h'eard*""'11.i_é: 'u'Iea1'ned'"'*Advocates appearing for the parties.t1ie*v'ibiloxifinfgpoints arise for my consideration'.
(i). 1 order passed by the tria} V' p the defendant to mark "the-.agr_een'ient to seli dated 26-5-1995 on V.the_g_ro>und it is admissible in evidence is to be sustained or reversed?
. A '*ti;;."\7i.fhether the order passed by the tzia} " 2 Court dated 5--1~2o 10 ordering impounding of General Power of attorney dated 30-8-1995 and directing the defendant to pay Stamp duty under W E5 Article 41 (ea) is to be upheld or reversed?
(iii) To what order?
10.Re:Point No.1: It thedcforitehiitiori'aof:_Tth»ei' learned counsel for the iE'i_rs-__t deferidantr.'v"th:a:t_:urider c1ause(6] of the agreernent -dated' l§995 the Vendors therein had Vag;~eeAd'--V.toi;ddelirrerlplpossession of the property to 3 and 4 in said clause to deliver Article 5(e)(i) of the attracted and same duty as a contreyanflce .(£lr.tic1e'i'20) on the market value of the wi11have____to be paid under Karnataka Stamp _ {6} of the agreement of sale dated 26--5--
"1995 'j_,5rrtic1e 5(e)(i) of Karnataka Stan:1p,1957 are extracte.d herein below:
"Clause.6. The vendor and the purchasers have agreed that the schedule property consists of grape plants and the vendor shall remove the said M 16 plants within a period of TWO MONTHS from the date of this agreement and handedover to the purchasers the actual vacant possession of the schedule property within the above stipulated period."
{Emphasis supplied by me} SCHEDULE __ .. _ ._ (STAMP DUTY ON INS'ifRUMEP€T--j.:'::j'., « Description of Instrument Proper Sta.rripVD£1ty': V Article 1. XXXX A y 3 Article 5. Agreement 'of _ _ _ (its records or) Memorandurii' 1 of an Agreehzent '
(a)
(e) if relating to "sale or V» _{ iI'nmoVab1e_Vprop(f:rty .....
. _ p_erforIfIance of the V' . V' co11'_tra.c~t._ A (i) ,- .possession of the Same duty as a convex» " p property is delivered yance (No.20) on the ' V "or is agreed to be market value of the delivered without property.
executing the conveyance.
M (2) For that purpose every such person shalt examine every instrument so chargeable and produced or coming before him, in order» "
ascertain whether it is stamped with a the value and description required' byj'.the"
force in the State of Karnatakaf :_i it instrument was executedgorfirst 'e.2cecuted.~75 A . ' Provided that
(a) nothing herein cr;nCtained.g' shatl it be deemed to or Ji.reIgeV'g'_'of examine or "if:_Vhe-»..does:.'Vnot.'think fit so to ____ H before him in _ proceeding other than C «at under Chapter XII or of the Code of Criminal Procedure; 1898,-
C 3 _ case ofa Judge of the High Court, '' ._tF';e".duty of examining and impounding ' dang instrument under this section may be delegated to such officer as the Court appoints in this behalf. AX (3) For the purposes of this section, in cases of doubt, the Government may determine~ (cu what offices shall be deemed to a offices; and
(b) who shall be deemed_,.to__be ,;9erseInel'in~'g charge of public o_ffices_. A. V
34. Instruments. _notl=.Ac:iuly inadmissible in evidence:,"~~..etc..? No chargeable with duty shally_b.e;'ad'm_itted in .euidence for any purpose by law or consent of parties reéce'ibe;ve-iuidence, or shall be registereall'lorlyauthenticated by any such" -any officer, unless such instrurnentis di,lly....$taITlped:
Prov"i'd_ed_th'a_t--u , instrument not being an chargeable (with a duty not ffteen paise) only, or a of crop Article 35(a) of the 'Schedule chargeable under clauses (a) and (b) of Section 3 with a duty of twentyjive paise shall, subject to all just exceptions, be admitted in evidence M
(b) 20 on payment of the duty with which the same is chargeable, or, in the case of instrument insufficiently stamped, of amount required to make up such__dut_i}j,_~ together with a penalty of C or, when ten times the" arriougnti proper duty or degficierit exceeds five rupees, of sum ten times such portion-.. ' 'C where a con,_tractt'or" agreerrienthof any kind is efiectedidby correspondence consusting "orf,rnor'tet. Cglehtters and '-- tetter*sV"E§ecirs the proper _ .star§:p.,_vtheecontract or agreement shall V' 'be deerned'to::be"duly stamped; i'C} nothing-. herein contained shall prevent the " admission of any instrument in evidence in any proceeding in a Court, other than a proceeding V. ."a;gnder Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been 53/ executed by or on behalf of the Government, or where it bears certificate of the (Deputy Commission-erii .. as provided by Section 32 or anylotliterhh provision of this Act (and has not been revisedvl'-in powers conferred by theV_'provtGiori$:'_Vof Chapter VI). - d
12. A perusal :,ee»ctions it would emerge that _ f:1\:r;l:'xene\»;f'eVrfl tendered in evidence stamped the document to'bewv--if§npounded and it would be the said document has suffered ofnistalnp duty with a Stamp of '3"'--..Athe_:':'Va}neaandxfldeeeription as required by the law in instant case when the document in dueeation. agreement to sell dated 26--5-- 1995 was broughfbefore the Court and sought for being received evidence on 10--8--2009 advocate for plaintiff had .,_r§aised objection to mark the said document on the 0%"
ground that it is not duly stamped. On account of the said objection being raised marking of the docurnent was kept in abeyance till the order on such was passed. '£'hereafterwards on 5--10~20OQ.Lorder. * to be passed by holding that it As seen from clause (6) of the agreed to remove the 4_p1ants~._ on the property agreed to be sold 'a'Eperiodl'of'tw'oE months from the date of agreenientll agreed by the vendor to 'lmand over 'thevl".p-iirciifiasers the actual vacant'pos'se:ssion§.4VVof.jtiae schedule property within the stipulated 'period Thus, it would clearly go to --shgow'uthat've'nd'orAhad agreed to deliver possession . Qreeijnentwtlol sell dated 266-1995 even before s--..g:sec'utioi1'oftsale-deed and Article 5(e)(i) cannot get attracted't.o§~the transaction in question.
13. Mr. Naik appearing for the respondents vvould contend that when the parties are Ci?' 23 producing a document and does not rely upon it for claiming any right under the said document and,'wh«en. is produced for collateral purposes it P- admissible in evidence as per prowso to Stvectiori' the Indian Registration Act "
attention of the Court to said-.pro{riso of_dS.ect.i'o11~~=e£9 of Registration Act which. reads" as under:
49. Effeetwt of documents__ required V.t"o_":»i,_;,_Vgdregistered. No docurrveynt {or by any prov}sio;rfi_4t";.'&_<VV.3_V.f" of Property Act, bedregdstered shall-
: property comprised P To) dconferxany power to adopt, or {(3} be received as evidence of any affecting such property or V A j_ cortfening such power.
it has been registered:
_ Z V 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 CV Act there is absolute bar for the document being received in evidence itself. Section 49 of the Registration Act deals with the effect of non--Regist_ratiorf'.'Tbf ~ document and provides that orpdooo:ne:%dV"w11r:ehp "
requires to be Registered under.V1awf' not then such document affect irrin1ovab1e"'f property comprised, ¥therein';"' "confirm any power to adopt or of any transaction conferring such power. it 49 provides for an unregfisteredjuinstrurnent beingfvreceived as an evidence of a contract' specific performance or as"
evidence as part performance of a contract for which the . ., off~Sectio"nWSf3A of the Transfer of Property Act or as evidenceffof~*any collateral transaction not required to be. eff_ecte«d by registered instrument. This Court in rmamainath Vs.Sxnt.Puttamma reported in ILR 1999 f 4634 has analysed the difference between Section Q' 26 34 of the Stamp Act and Section 49 of the Registration Act and has held to the following effect:
13. The dfierence between Section 34 of.
Karnataka Stamp Act and Section 49__;'of«' it Registration Act should also be bomeinit Section 34 says "no insb'urnen't"chaJ*figeahleiwith} dugy shall be admitted in:":4geu'ide?nce~. purpose, or shall be acted regi;ste:re.d V authenticated by ....unless:_"t'such "'t.-net: is duty stamped". S,Libi¢Ct.$6m[}ié:"&%;0;)iASiO#'iVVer1&;blirlg the Court to collectlléthe' the bar under Section 34 "absolute, _ instrument whicht'is.:not be admitted at alll'-.in" purpose. On the other = Registration Act which deals with l'e_f.)£'ect of non registration of proiiides that Q' a document which is V be registered under law is not H '- such document shall not affect ""any..':inirhovable property comprised therein, nor _ _cart...it confer any power to adopt nor can' it be V' V. _ received as evidence of any transaction affecting such property or conferring such power. But the proviso to Section 49 provides that an 58/' 27 unregistered instrument may be received as evidence of a contract in a suit for specific performance or as evidence of part performances-of a contract for the purpose of Section Transfer of property Act or as evidence.-:of"anfy-- collateral transaction not required to be by registered instrument, Forlexarrple, if deed is executed on a whitejpaplelr stamped, it can neither'tl9e*~..adn1iited . nor be used for any purpose;.,l3ut if deed is executed on requisite 1. but not registered and the' to admit registratior1,_the_n right to file a and rely on the sale deed; it "was not registered, as evidence of' for sale. Thus, thought both xsection of"the:Stamp Act (corresponding to _ of"ihe'Indian Stamp Act} and Section ' Qf'thefRegistration Act, both bar the document ._ as evidence, the bar is absolute "under Act {unless deficit duty and penalty is " and the bar is not absolute under Registration Act. 3 , 28 A similar issue had come up before this Court in Mahadeva Vs. Commissioner, Mysore' Coroporation reported in 2003(1) * the interpretation of the word "E6r'~any--'_4'pt1_r;)ose*" it in Section 34 of the Stamp pact the following effect:
6 The only c-2:)n'trot;ersy_'in regard to the use of such 'A:fn__'»detennining whether gt sought to be used ~-d;_VcotIct.terqt In Rana Vidya the Apex Court held unregistered lease deed foric-ugiears was not admissible in eoidehce tnsupport.-'of the creation of the lease in period; .y_et',-';he document could support the A pledthiccty the possession of the person, in whose V tits»; same was executed was that of a it .__44'Vtenc1nt'.t-.V.'To the same effect are the decision of the Supreme Court in Padma. Vithoba Chakkayya.
V " Mohd. Multani and Another and that of the "Privy Council in N. Varada Pillai and Another vs. Jeevarathnammal. The decision of this Court 61?' 29 in Raoji Appaji Kulkarni (dead) by 13,123 vs. Badibi and Others, and Abdul Razack Sabu H.K. Gopal Shetty, have following decisions reiterated the legal position V' declared that even when inadmissible for want of regtstraition, its ; i it admissible to show .'th__at Vchyaracterh 1 the" V possession of the persona whoseV_foi:ou'r: is executed. There is .therefore.'gainsaid-.thdt the unregistered sale" upon by the petitioner could of proving the into evidence . the deed was cow Section 17, but had not been -The view taken by the Courtylbelowldoes""notlfitherefore suffer from any {error indeed jnohgé of the two patties have been the'correctness of the order to the extent document to be admissible for a collateral" purpose.
V V y W 7. That a document is being admitted for a it collateral purpose does not however necessarily 'mean that it can be let in for that purpose--even when it is not duly stamped. Section 34 of the M 30 Kamataka Stamp Act, 1957, deals with instruments not duly stamped and inter provides that no instrument which is chargeable"
duty shall be admissible in evidence * purpose or shall be acted upon, rey'istered"~. or it authenticated by any person,' or_-«by any ofiicer unless such instrument is'd_ul~y start-iped. '' expression for any purpos'e'ru.sedV. in...Sec_l:'on::.§4' of the Karnataka Stamp is wide enough to include use of a collateral purpose or ;Raht.'jVv-Rattan vs. Pannan_dt1d;1; i' that the words for Section 34 of the l9'-5.7, to be given their natural' would include even a collateral the party relying upon the lilée the same to be admitted. The in this regard is apposite:
words for any purpose' in Section 35 of Vlaothe' Act, should be given their natural rneaningl and effect and would include a collateral purpose. Where an unstamped document is "admitted in proof of some collateral matter it is certainly admitted in evidence for that purpose which the Statute has prohibited. Consequently, an av 3% unstarnped partition deed cannot be used __to corroborate the oral evidence for the purposesii determining even the factum of partition A' from its terms".
8. It is therefore d§£f§ICU:i~tv'A.f?) submission made by Mr.V;Shettyéjustbecauset b an unregistered docurrientijrcan evidence for proving "a collateral"--~transaction,,iiany such use would to be marked as an exhibitde horsthe 5Section 34 of the Kat"-g'1atai¥.:a provisions of Sectiioni.'4§"":§A.c_tv"'xg_rerru1in limited to the conseqrierices*1::;3f of compulsorily said provision does not Adeaiipujithw the consequence that follow instrurrierit sought to be proved is not part is provided for separately byprovis--ions of Section 34 of the Karnataka 1957, which does not make any A'-~..exceptionAt in favour of documents sought to be admitted to evidence for proving a' collateral it "transaction. So long as an instrument is chargeable with duty, the provisions of Section 34 <4?' 32 would render it inadmissible in evidence for any purpose unless the same is duly stamped.
15. In View of the above propositionipf H down by this Court and enunciated therein to the facts ft from clause (6) of the agreenientjing fvfendor V has agreed to of the property agreed to before the execution of the purchasers.
Thus, agreed to deliver posseissionff of the sale deed the transactionin escape from the rigour or, of "Article V:'"5(e)(i) of the Act. Accordingly the by the learned cousnel for the if 'resp'or1de'n.t cannot be accepted and it is hereby rejected. Further, the contention of the learned counsel for the petitioner merits acceptance and accordingly it is 'accepted and point No.1 formulated herein above is held l in favour of the plaintiffs and against the defendants (RX 33 holding that defendant wouid not be entitled to.___Inark the agreement to sell dated 26-5-1995 withoutijjaymfent of proper Stamp duty. Hence, Order of the dated 5-10-2009 holding agieeementtyté fs-'::~y11xd dated A' 26-54995 is admissible sustained and it requires to'..quashed.
16. Re:PointVy N 0.2": it the "document in question namely the sought to be produced the .. evidence dated for rnarking of the said for document being iiflpouiided Stamp dutY- The trial Court hast"he1d.in t'he""order impugned that Article 41 [eaiisaattractedHto"1:he facts of the case. It is seen that e~r.:v"_j£}enera1 Power of Attorney dated £'i0:4r8Vb--1995"fle-jiiecuted by Sri.Chikkap1l1appa in favour of Sriyuths' V.Govinda Raju and D.Ganesha defendants 3 in O.S.No.7545/2006 {respondents 3 and 4 in No. 3 1 20 1 /2009) ciause (10) physical possession 4%/' F-
34 has been handed over to the agent namely Sriyuths V.Govinda Raju and D.Ga.nesha. It reads as underifi "10. In case either of the party agreement for sale default or infringesor _fail":to V' perform their part of obligation. agreement for sale even when .l ready, willing and aivcjiotts to'--pherformyits'Apart it obligations then the V. at compensate the party fault" of Rs.1,00,000/- an DAMAGES and the party notatfauihtl.shall'~1g}¢~'.Ig.jtitled to take legal 'fault for full OF SALE."
Under Art.ie1eV 41 »- of Attorney is given to proljnoteur or lndeveloper or whatever name called for purpese..ot:'construction, development sale or transfer whatsoever] any immovable property the that is payable on the instrument would be same has conveyance payable under Article 20. This (ea) to Article 41 has been amended with effect 'from 14-1995 and the document in question has been 4?"
executed on 30-8-1995 and as held by the trial Court and analysed in paragraph 12 of its order that specific mention in the document that it _ deemed to limit the authority or power to '* it any act ............. ..as may be '-._fou_nd--r' necessai'y::"r--._.anci admittedly on such autholrityx then l5owei'AV:llo{._'vAttorney holders have acted as if owriers oféthe said property and have by executing the sale deeds,:_'-- payable as a conveyances' Act under that General Power of Attorney has along with agreement to sell and , these " two Vadocnments are to be construed as A""con'tenij:>or'aneous"documents and transaction is to be as'v.orie'pi't.ransaction. Further these two documents namely.agreement to sell and General Power of Attorney are complementary and supplementary to each other. of the same question No.2 formulated herein it ..._above is to be answered by holding that order passed by AV 36 the trial Court does not suffer from any infinnity' and same merits acceptance and is upheld. 17 . Re:!'-'oint No.3 In View of the ' made herein above following ordrdfis-pas'sed:' j V'
(a) J W.P.1\!:o.s{3120'1 t'33e130 and 33131 / 2009 are dated 5-10-
ZOO9 passed"::bj7-- Civil Judge, Bangalore' % w'f'fi'.'::A'VQSd;1§io.?545/2006 C/w o.s.Ne';s242ft;Vg00a' 8d'»E;i3V/é0O6 {Am1exure--'Q') to the to sell (26--5--1995) is adrn:.issib1e'4'in:Vevideiieedis hereby quashed and it is held that 'said. xdocumevfitt is inadmissible in evidence without Vdagdpropfiate Stamp Duty as required under Ai'uE«ic1eV___'fi$'(e;)A{~i)iof the Karnataka Stamp Act 1957. 1' (b) W.P.N0.32113/2009 is hereby dismissed t "'.a1'":;d;the order dated 5-10-2009 {AnneXure--'Q'] holding _,._--that 1"-'0Wer of attorney dated 30--8--1995 is to be m"