Karnataka High Court
Kashiraya S/O Bhimanna Chappar vs Gangabai W/O Bhimanna Chappar And Ors on 19 November, 2015
Author: A.S.Bopanna
Bench: A.S. Bopanna
-1-
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF NOVEMBER, 2015
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
WRIT PETITION NO.202699/2015 (GM-CPC)
BETWEEN:
Kashiraya S/o Bhimanna Chappar
Age: 52 years,
Occ: Agriculture,
R/o Honawad Village,
Tq. & Dist. Bijapur - 586 101.
.... Petitioner
(By Sri Ajay Kumar A.K., Advocate for
Sri Ashok S. Kinagi, Advocate)
AND:
1. Gangabai W/o Bhimanna Chappar
Age: 77 years,
Occ: Household work,
R/o Honawad Village,
Tq. & Dist. Bijapur - 586 101.
2. Baburao S/o Bhimanna Chappar
Age: 54 years,
Occ: Teacher, R/o Terdal,
Tq. Jamkhandi,
Dist. Bagalkot - 587 301.
3. Apparaya S/o Bhimanna Chappar
Age: 50 years, Occ: Teacher,
R/o Honawad Village,
Tq. & Dist. Bijapur - 586 101.
-2-
4. Ashok S/o Bhimanna Chappar
Age: 48 years,
Occ: Agriculture,
R/o Honawad Village,
Tq. & Dist. Bijapur - 586 101.
5. Mahadevi W/o Suresh Dhulked
Age: 47 years,
Occ: Household work,
R/o Shrirnal, Tq. Indi,
Dist: Bijapur - 586 209.
6. Jakkawwa W/o Annaraya Dhulked
Age: 45 years,
Occ: Household work,
R/o Shirnal, Tq. Indi,
Dist: Bijapur - 586 209.
.... Respondents
(By Sri Umesh Mamadapur, Advocate for R1 to R6)
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to issue order or writ or
direction in the nature of certiorari quashing order on
marking of document dated 09.03.2015 in O.S.No.5/2008 by
the I Addl. Civil Judge & JMFC-I, Vijayapur vide Annexure-'C'
and consequently reject the permission for marking
document.
This Writ Petition coming on for preliminary hearing in
'B' Group this day, the Court made the following:
ORDER
The petitioner is before this Court assailing the order dated 09.03.2015 passed in O.S.No.5/2008. The petitioner herein is the plaintiff in O.S.No.5/2008. -3-
2. In a suit filed seeking for partition and separate possession of the share of the plaintiff, the defendants have relied upon a document styled as 'Kararu Patra' to deny the claim put forth by the plaintiff. When the said document was sought to be marked, the plaintiff has raised objection to the same since the said document is not properly stamped and registered. The Court below while considering the objections put forth, has by the order impugned arrived at the conclusion that the 'Kararu Patra' does not require any kind of registration. It is in that view, the petitioner/plaintiff is before this Court in this petition.
3. Learned counsel for the petitioner while assailing the said order would contend that the 'Kararu Patra' as relied upon by the defendants is in the background of the contention urged by the defendants with regard to earlier partition. If that be the position, the said document would have to be construed as a document of partition relied upon by the defendants and if the same is to be -4- marked in evidence it can only be done if it is properly stamped and registered in accordance with law.
4. The learned counsel has relied on the decision in the case of Smt. Laxmibai and Others vs. Vaijinath [2011 (3) KCCR 1871] to contend that this Court has held that an instrument of partition requires registration and is to be properly stamped. The learned counsel has also relied on the decision in the case of Smt. Malliga Paneer Selvam Vs. Sri Raja Sathyanarayana Shetty and Others (2007 (3) KCCR 1698).
5. From the decisions relied, by the later decision this Court has held that when an objection is raised with regard to the marking of a document, the Court is required to decide upon the same and thereafter proceed with the matter. In the instant case, the trial Court by the order impugned has decided and has arrived at a conclusion that the said document does not require registration.
-5-
6. In the decision in the case of Smt. Laxmi Bai this Court has no doubt held that an instrument of partition requires registration, but in the very same decision it has also been held that if an instrument of partition merely recites that there has been a partition in the past, the mere statement of fact need not be registered.
7. Apart from the decision that has been relied on by the learned counsel for the petitioner, the position of law is well settled that the registration as contemplated is necessary only if a partition is effected under the said document and a memorandum recording an earlier partition does not require such registration. If in that light the 'Kararu Patra' which is the subject matter in the instant petition is taken note, the entire document has been extracted in the impugned order. A perusal of the same would indicate that it only recites that the predecessors of the parties had entered into a partition and as per the share that has been assigned therein the said document acknowledges that the elders have -6- thereafter handed over the share. Therefore the purport of the document is not to partition the properties under the said document but is only in the nature of an acknowledgment of an earlier partition.
8. If that be the position, under the instant facts the document concerned does not require registration. The Court below was therefore justified in its conclusion. Hence I see no merit in this petition. The same is accordingly disposed of.
Sd/-
JUDGE swk