Karnataka High Court
Sri M Nagaraj vs Sri M Munirathna on 28 March, 2019
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2019
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION Nos.52938-52940/2017 (GM-CPC)
BETWEEN:
1. SRI M. NAGARAJ,
S/O LATE MARLINGAPPA,
AGED ABOUT 69 YEARS,
2. SRI M N GIRISH
S/O SRI M. NAGARAJ,
AGED ABOUT 43 YEARS,
3. SRI M. N. GANGADHAR
S/O M. NAGARAJ,
AGED ABOUT 39 YEARS,
PETITIONER No.1 TO 3 ARE
RESIDING AT NO.41,
1ST MAIN ROAD, 13TH CROSS,
MALLATHAHALLI,
BENGALURU-560056.
... PETITIONERS
(BY SRI NISHANTH A. V., ADVOCATE)
AND:
1. SRI M. MUNIRATHNA
S/O LATE MARILINGAPPA.
AGED ABOUT 64 YEARS,
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2. SMT.GOWRAMMA
W/O SRI M MUNIRATHNA,
AGED ABOUT 57 YEARS,
3. SRI M. MAHESH KUMAR
S/O M. MUNIRATHNA,
AGED ABOUT 33 YEARS,
RESPONDENT No.1 TO 3 ARE
RESIDING AT NO.376,
ULLALU MAIN ROAD,
MUNESHWARA NAGAR,
BENGALURU-560056.
... RESPONDENTS
(BY SRI K. K. VASANTH, ADVOCATE FOR R1 TO R3)
......
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER DATED 12.10.2017 PASSED IN
O.S.552/2011 C/W 4332/2010 BY THE I ADDL. CITY CIVIL
AND SESSIONS JUDGE, BANGALORE AT ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
These writ petitions are filed by the plaintiffs challenging the Order dated 12.10.2017 made in O.S.No.522/2011 c/w O.S.No.4332/2010 directing the defendants to pay proper duty with penalty on the Partition Deed dated 15.08.1997.
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2. The petitioners herein are the plaintiffs and defendants are the respondents in O.S.No.522/2011 c/w O.S.No.4332/2010. The said suits were filed for the relief of declaration of title and consequential relief of permanent injunction in respect of suit schedule properties contending that they are the owners of the suit schedule properties. The defendants filed written statement and denied the plaint averments and sought for dismissal of the suits. Based on the pleadings of both the parties, the Trial court framed issues in both the suits. When the matter was posted for defendants' evidence, the defendants sought to produce the Partition Deed dated 15.08.1997. Though the plaintiffs opposed the production of the said partition deed on the ground that it is an unregistered document and not admissible in evidence, the Trial Court, without impounding the said partition deed as per the provisions of Section 33 of the Karnataka Stamp Act, 4 1957, proceeded to pass the impugned order directing the defendants to pay proper duty and penalty on the Partition Deed dated 15.08.1997. Hence the present writ petitions are filed.
3. I have heard the learned counsel for the parties to the lis.
4. Sri A.V. Nishanth, learned counsel for the petitioners/plaintiffs contended that the impugned Order passed by the Trial Court directing the defendants to pay proper duty and penalty on the alleged Partition Deed dated 15.08.1997, is contrary to the provisions of Section 33(1) of the Karnataka Stamp Act, 1957. He further contended that the impugned Order passed by the Trial Court is contrary to the provisions of Sections 33 and 34 of the Karnataka Stamp Act, 1957, and Section 49 of the Registration Act, 1908. An unregistered and insufficiently stamped document cannot be marked. The Trial Court without 5 proceeding under the provisions of Section 33(1) of the Karnataka Stamp Act, 1957, directed the defendants to pay proper duty and penalty and same cannot be sustained. Therefore, he sought to allow the writ petitions.
5. Per contra, Sri Vasanth, learned counsel for the respondents/defendants sought to justify the impugned Order and contended that the Trial court, taking into consideration the provisions of Sections 33 and 34 of the Karnataka Stamp Act, 1957, directed the defendants to pay proper duty and penalty on the partition deed dated 15.08.1997. Though the specific word 'impounded' is not used in the impugned Order, once the order is passed directing the defendants to pay duty and penalty on the document, it has to presumed that the document is impounded. Therefore, he sought to dismiss the writ petitions.
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6. Having heard the learned counsel for the parties, it is undisputed fact that the suits are filed for the relief of declaration and permanent injunction in respect of suit schedule properties. The unregistered partition deed can be relied upon only for collateral purpose. Before marking the document, the Trial Court ought to have passed the order as contemplated under Section 33(1) of the Karnataka Stamp Act, 1957. Then, the Court can direct the defendants to pay proper duty and penalty on the instrument. But, in the impugned Order, the Trial Court has observed that the document in question i.e., the partition deed which effects division and derives right in favour of the parties to the suit in respect of suit property, ought to have been registered with required stamp duty, but since the same is not registered as required, it cannot be marked unless it is duly stamped. Therefore, the Trial Court, directed the defendants to pay proper duty and penalty on the partition deed. Once the Order is passed by the Trial 7 Court directing the defendants to pay duty and penalty under Section 34 of the Karnataka Stamp Act, 1957, the presumption is that the Court has already impounded the document as contemplated under Section 33(1) of the Karnataka Stamp Act, 1957. But there is no specific word used in the impugned Order stating that the document in question is 'impounded'. At the same time, the Trial Court, ought to have directed the Office to calculate the stamp duty and penalty or should have directed the office to send the document to the concerned Deputy Commissioner to levy the stamp duty and penalty. The same is not done in the present case.
7. In view of the aforesaid reasons, the writ petitions are disposed of. The Trial Court is directed to send the Partition Deed dated 15.08.1997 to the Deputy Commissioner for levying stamp duty and penalty or direct the office to calculate the stamp duty and penalty payable on the instrument, in accordance with law. 8
8. Since the suits are filed in the year 2010 and 2011 and we are in 2019, the Trial Court is directed to expedite the suits itself, subject to cooperation of both the parties to the lis.
Sd/-
JUDGE kcm