Karnataka High Court
Ademma W/O Basanagouda vs Smt.Gangamma, W/O Balavantareddy on 3 July, 2012
Author: A.N.Venugopala Gowda
Bench: A N Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 3rd DAY OF JULY, 2012
BEFORE
THE HON'BLE MR. JUSTICE A N VENUGOPALA GOWDA
WRIT PETITION NO. 81102/2010 (GM-CPC)
BETWEEN:
1. Ademma, W/o Basanagouda,
Age: 71 Years, Occ: Household,
2. Bhojanagouda, S/o Basanagouda,
Age: 56 Years, Occ: Agriculture,
Both are R/o Heggasanhalli village,
Tq: & Dist: Raichur.
......Petitioners
(By Sri Prakash Yeli, Adv.)
AND:
1. Smt. Gangamma, W/o Balavantreddy,
Age: 61 Years, Occ: Agriculture,
2. Vasanthareddy, S/o Balavantreddy,
Age: 36 Years, Occ: Agriculture,
3. Sureshreddy, S/o Balavantreddy,
Age: 31 Years, Occ: Agriculture,
All are R/o Bevinabenchi,
Now residing at
Rangapur Village,
Tq: & Dist: Raichur.
........Respondents
(By Sri Shivakumar Kalloor, Adv)
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This petition is filed under Articles 226/227 of the
Constitution of India, praying to issue a writ of certiorari, by
quashing the order dated 08.01.2010 passed by the learned
Addl. Senior Civil Judge and JMFC., at Raichur in O.S.No.
162/2004 produced as per Annexure-D.
This petition coming on for preliminary hearing in 'B'
group, this day, the Court made the following:
ORDER
Respondents have filed O.S.162/04, in the Court of Civil Judge (Sr. Dn.) at Raichur, against the petitioners to pass a decree of declaration and perpetual injunction, in respect of the property described in the schedule of the plaint. Petitioners have filed written statement and contested the suit. Based on the pleadings, six issues were framed by the learned Trial Judge on 05.07.2006. Plaintiffs have adduced evidence. Petitioners / defendants, during the course of their evidence, sought to mark through DW-1, an unregistered and insufficiently stamped sale deed dated 27.05.1987, which was objected to by the plaintiffs, on the ground that the instrument being unregistered and also insufficiently stamped, cannot be marked as an exhibit and relied upon even for collateral 3 purpose. Trial Court finding merit, upheld the objection and held that the document in question is not admissible in evidence and cannot be marked as an exhibit. It impounded the document and directed Office to send copy of the said deed to Sub-Registrar, Raichur, to ascertain the valuation of the suit property and stamp duty payable, as on the alleged date of sale. Feeling aggrieved, defendants have filed this writ petition.
2. Sri Prakash Yeli, learned advocate appearing for the petitioners contended that the unregistered deed of sale was sought to be put in evidence for collateral purpose and hence, provisions of Ss.34 and 35 of Karnataka Stamp Act (for short, the Act) are not attracted. He placed reliance on the proviso appended to S.49 of Registration Act and the decision in the case of BONDAR SINGH Vs. NIHAL SINGH reported in (2003) 4 SCC 161 and submitted that the impugned order being irrational be quashed.
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3. Sri Shivakumar Kalloor, learned advocate appearing for the respondents, on the other hand would support the impugned order and seek dismissal of the writ petition.
4. It is the case of the petitioners that husband of respondent No.1 was intending to sell the suit land for family and legal necessity, for consideration amount of `40,000/- and insisted petitioner No.1 to purchase the same and executed an unregistered sale deed on 27.05.1987, in favour of petitioner No.1, by receiving consideration amount of `40,000/- and on the same day handed over possession of suit land to petitioner No.1. According to the petitioners, possession of the suit property was delivered on 27.05.1987 and they being in possession, are exercising right over the land in question. Indisputably, the document is not sufficiently stamped and registered.
5. S.34 of the Act casts an obligation on all the authorities to impound a document if it is insufficiently stamped. A Court being an authority to receive a 5 document in evidence, has the obligation to give effect to the said statutory provision. The deed of sale was an instrument which required payment of stamp duty applicable to a deed of conveyance. According to the petitioners, the sale consideration amount paid on 27.05.1987 was `40,000/-. Adequate stamp duty admittedly has not been paid on the objected instrument. Therefore, the Trial Court is justified in not receiving the document in question as evidence and its marking as an exhibit.
6. In the case of AVINASH KUMAR CHAUHAN Vs. VIJAY KRISHNA MISHRA - (2009) 2 SCC 532, respondent intended to transfer his property and the consideration amount towards transfer was paid by appellant and possession of the property was also delivered. Litigation having cropped up, appellant filed a suit for recovery of money and in support of his case, a deed was sought to be marked and relied upon. The document was directed to be impounded. Plaintiff / appellant being unsuccessful before the High Court, in the Special Leave Petition, by relying upon the 6 decision of BONDAR SINGH (supra), it was contended that the deed was sought to be put in evidence not for the purpose of enforcement of the contract but only for the purpose of recovery of consideration amount and the same being collateral purpose, the provisions of Ss.34 and 35 of the Act is not attracted. Finding the contention to be devoid of merit, Apex Court has observed that in BONDAR SINGH (supra), the Court was not concerned with the provisions of Stamp Act and only interpretation of provisions of Registration Act was in question. After referring to catena of decisions, it was held that there is no merit in the appeal and the same was dismissed. The ratio of the said decision squarely applies to the instant case.
7. In the case of C.K. RAVI PRASANNA Vs. T.K. GOWRAMMA - ILR 2007 KAR 2807, it has been held as follows:
7. Section 34 of the Karnataka Stamp Act mandates that no document shall be admitted in evidence for any purpose, unless it is duly stamped. Section 34 of the Act puts a complete embargo and bar against admissibility of such a document which is not stamped or which is not duly stamped and the same cannot be used for any 7 purpose. In the instant case, under the agreement of sale dated 27.11.2004, the petitioner's possession and enjoyment of the schedule property is in part performance of the agreement. Therefore, the agreement of sale in question falls under Article 5E. Therefore, the stamp duty is payable as per the conveyance specified in Article 20.
Admittedly, the agreement of sale dated 27.11.2004 is insufficiently stamped. Therefore, the agreement of sale cannot be admitted in evidence unless duty and penalty is paid. Hence the impugned order passed by the Trial Court is in accordance with law. "
In the circumstances, the order passed by the Trial Court, impugned in this writ petition, is neither irrational nor illegal. Hence, writ petition is devoid of merit and is dismissed with no order as to costs.
Sd/-
JUDGE sac*