Karnataka High Court
Smt Mahadevamma vs Sri V K Govindan Nair on 10 July, 2025
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NC: 2025:KHC:25332
W.P. No.2088/2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.2088/2020 (GM-CPC)
BETWEEN:
1. SMT. MAHADEVAMMA
D/O SANNANARASAPPA JOGI
AGED ABOUT 58 YEARS
AGRICULTURIST
SINCE DEAD BY LR'S.
i) SRI. SHIVAJI
Digitally signed @ KOTE BAYALU SHIVAJI
by RUPA V
S/O NARASAPPA
Location: High AGED ABOUT 75 YEARS.
Court of
karnataka ii) SRI. SOMASHEKARAPPA
S/O SRI. SHIVAJI @
KOTE BAYALU SHIVAJI
AGED ABOUT 44 YEARS.
BOTH ARE R/AT.
BHAGAVATHIKERE
HANUMANTHAPURA VILLAGE
MYDOLALU POST
BHADRAVATHI TALUK
SHIVAMOGGA DISTRICT.
2. SMT. LAKSHAMMA
D/O SANNANARASAPPA JOGI
SINCE DEAD REP. BY LR'S.
a) HALESH
S/O LATE DIGAMBARA
AGED 20 YEARS.
b) PADMAVATHI
D/O LATE DIGAMBARA
AGED 13 YEARS, MINOR
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NC: 2025:KHC:25332
W.P. No.2088/2020
HC-KAR
REPRESENTED BY COURT GUARDIAN.
BOTH ARE R/AT
THYAVARACHATNALLI
SHIVAMOGGA TALUK AND
DIST-577401.
...PETITIONERS
(BY SRI. GIRISH M.K., ADV.,)
AND:
1. SRI. V.K. GOVINDAN NAIR
S/O LATE KELLAPPAN NAIR
AGED ABOUT 62 YEARS
AGRICULTURIST
R/O HOSAMANE
SHIVAMOGGA 577401.
2. SRI. RAVI
S/O SANNANARASAPPA JOGI
AGED ABOUT 33 YEARS
AGRICULTURIST
R/AT THYAVARACHATNALLI
SHIVAMOGGA TALUK
AND DIST-577401.
3. SMT. ANASUYA BAI
W/O RAVI
AGED ABOUT 28 YEARS
AGRICULTURIST
R/AT THYAVARACHATNALLI,
SHIVAMOGGA TALUK
AND DIST-577401.
...RESPONDENTS
(BY SRI. CHANDRASHEKARA K, ADV., FOR R1
R2 & R3 ARE SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT, IN
THE NATURE OF CERTIORARI BY QUASHING THE IMPUGNED ORDER
DATED 18.12.2019 REGARDING MARKING OF DOCUMENTS PASSED
IN O.S.NO.205/2011 BY THE PRINCIPAL CIVIL JUDGE AND JMFC,
SHIVAMOGGA PRODUCED VIDE ANNEXURE-F & ETC.
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NC: 2025:KHC:25332
W.P. No.2088/2020
HC-KAR
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
This petition is filed seeking the following relief:
"Issue a Writ, in the nature of certiorari by quashing the impugned order dated 18.12.2019 regarding marking of documents passed in O.S.No.205/2011 by the Principal Civil Judge & JMFC, Shivamogga produced vide ANNEXURE-F."
2. Sri.Girish M.K., learned counsel for the petitioners submits that in the suit O.S.No.205/2011 filed by respondent No.1-plaintiff, the petitioners-defendant Nos.2 & 4 have raised objection with regard to marking of the sale agreement dated 04.07.2008 on the ground that the said instrument is deficiently stamped. It is submitted that the suit filed by respondent No.1 is for specific performance of the agreement of sale dated 04.07.2008 and in the said instrument it clearly demonstrates that the defendants have handed over the possession over the suit schedule property. It is further submitted that respondent No.1, in paragraph No.5 of the plaint, has made a specific assertion that after getting the agreement of sale, he approached the Shimoga Urban -4- NC: 2025:KHC:25332 W.P. No.2088/2020 HC-KAR Development Authority and got the acquisition dropped in relating to the same land, except a portion of the land which is reserved for 100 feet ring road, and the said entire act is at his own cost. The averments in the plaint and the clause of the agreement clearly indicate that the possession is handed over. However, the respondent No.1-plaintiff has paid the stamp duty of Rs.200/- on the said instrument which is required to be impounded and direction is required to be issued to respondent No.1 to pay the deficit stamp duty with penalty. It is also submitted that the trial Court under the impugned order has incorrectly came to the conclusion that respondent No.1- plaintiff has also sought prayer for possession of the suit schedule property, hence, it cannot be construed that possession is handed over under the instrument and rejected the prayer of the petitioners for impounding the instrument and for direction to pay the stamp duty. In support of his contention, he placed reliance on the following decisions:
i. G.Raghavendra vs. C.Harish1
ii. M.Puruthotham vs. Bhudevamma2
iii. Sandra Lesley Anna Bartels vs. P.Gunavathy3 1 LAWS (KAR) 2010 8 12 2 LAWS (KAR) 2014 3 179 3 ILR 2013 Kar 368 : LAWS (KAR) 2012 11 82 -5- NC: 2025:KHC:25332 W.P. No.2088/2020 HC-KAR iv. Sri.A.Babu Reddy vs. Sri.H.P.Sathyanarayana Reddy and others in W.P.No.6049/2019 disposed of on 31.10.2019.
Hence, he seeks to allow the petition with a direction to the trial Court to impound the sale agreement dated 04.07.2008 and to assess the stamp duty & penalty on the said instrument and further to direct the respondent No.1-plaintiff to pay the same.
3. Per contra, Sri.Chandrasekhara K., learned counsel appearing for respondent No.1-plaintiff submits that though in the instrument it is written as possession is handed over, the actual possession is with the petitioners. It is submitted that the petitioners have played fraud on respondent No.1 as well as on the Court as they entered into agreement of sale on 04.07.2008 and in collusion with other parties, filed O.S.No.71/2011 and got the said suit compromised and thereafter, entered into a registered partition deed between the family members. By such act, the petitioners have played fraud and sold the property to the third party on the strength of the partition deed. It is further submitted that the conduct of the -6- NC: 2025:KHC:25332 W.P. No.2088/2020 HC-KAR petitioners is required to be looked into and on that ground also the writ petition is liable to be rejected. It is also submitted that insofar as the issue with regard to the deficit Court fee is concerned, the respondent No.1-plaintiff has sought the relief of specific performance as well as the possession. It is submitted that if the possession is with the respondent No.1- plaintiff, he would not have sought the relief of possession. Hence, the trial Court has rightly considered the said issue and rejected the petitioners' prayer for impounding the document and direction to pay the deficit Court fee & penalty. It is further submitted that if the plaint averments indicate that the respondent No.1-plaintiff is not in possession, the same is required to be looked into as held by this Court in the case of A.M.Sunil Kumar v. Manjunath4. Hence, he seeks to dismiss the petition.
4. I have heard the arguments of learned counsel for the petitioners, learned counsel for the respondent No.1 and meticulously perused the material available record. I have 4 W.P.No.113704/2015 disposed of on 30.01.2020 -7- NC: 2025:KHC:25332 W.P. No.2088/2020 HC-KAR given my anxious consideration to the submissions advanced on both sides.
5. The pleading and material on record indicate that the respondent No.1 filed O.S.No.205/2011 against the petitioners and others for the relief of specific performance of agreement dated 04.07.2008 and further prayer to deliver possession of the same with regard to the suit schedule property. The petitioners filed written statement denying the averments made in the plaint and asserted that they have handed over the possession as mentioned in the instrument. The respondent No.1 at the time of examining himself as PW-1 tried to produce Agreement of Sale dated 04.07.2008 and tried to mark the same. The petitioners raised objection on the said instrument by contending that the said instrument has been deficiently stamped. Admittedly, a covenant in the subject instrument is that the petitioners and others have delivered the possession in favour of respondent No.1.
6. When things stood thus, the agreement of sale, which is an unregistered instrument, and respondent No.1 has paid Rs.200/- as stamp duty and he is liable to pay the stamp -8- NC: 2025:KHC:25332 W.P. No.2088/2020 HC-KAR duty as per Article 5 of the Karnataka Stamp Act, 1957, (for short, 'the Act'). However, the trial Court, considering the contentions, rejected the prayer of the petitioners on the ground that the respondent No.1 has sought delivery of possession of the property in the suit and held that though there is a mentioning of delivery of possession in the instrument, but actual possession lies with the petitioners- defendants, hence, there is no necessity of paying stamp duty and penalty by respondent No.1-plaintiff. In my considered view, the trial Court has committed grave error.
7. The Hon'ble Division Bench of this Court in the case of the Sandra Lesley Anna Bartels referred supra at paragraph Nos.11 & 12 has observed as under:
"11. There are two different circumstances under the Stamp Act for impounding a document; (1) the Court has power to impound the document, moment it appears to the Court that such instrument is not duly stamped and (2) or to wait till such document is tendered in the evidence. A combined reading of Sections 33 and 34 clearly reveal that a discretion is granted to the Court either to impound the document under Section 33 before the same is tendered in evidence and even if a document is not impounded under Section 33, the Court is bound to impound the document when the same is tendered in the evidence under Section 34. In other words, the Court cannot say that it will wait till the document is tendered in the evidence. It is only an option given to Court to exercise the power under Sections 33 & 34 but the -9- NC: 2025:KHC:25332 W.P. No.2088/2020 HC-KAR difference between Sections 33 and 34 is that, Section 34 can be enforced by a Court when a document has to be received in the evidence but Section 33 can be invoked not only by the Court, but, by every person in-charge of a public office. A person in-charge of a public office has no power to exercise the power vested under Section 34 of the Act.
12. Court cannot say that it would impound the document only when the document is tendered in evidence for marking. There may be instances where duty and penalty payable may be very high and the party may not choose to rely upon such insufficiently stamped document in order to avoid stamp duty and penalty. In such circumstances, it would result in loss of revenue to the exchequer. The power of impounding a document is to collect stamp duty and penalty whenever there is an escape of duty. Therefore, when it is brought to the notice of the Court that a document is insufficiently stamped, the Court exercising its power under Section 33 of the Act has to pass an order at the first instance for impounding the document. Though there is a discretion vested in the Court to exercise powers under Sections 33 and 34 of the Act, no Court can hold that it would wait till the document is tendered in evidence. In such circumstances, there may be chances of loss of revenue to the exchequer."
8. Keeping in mind the enunciation of law laid down by this Court referred supra, I am of the considered view that it is an obligation on the Court to impound the document the moment it appears to the Court that such a document is not duly stamped either it may be produced at the time of evidence or otherwise.
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NC: 2025:KHC:25332 W.P. No.2088/2020 HC-KAR
9. In the case on hand, the very instrument i.e., the Agreement of Sale dated 04.07.2008 indicates that the possession is delivered in favour of respondent No.1-plaintiff by the parties to the instrument. When that being so, Article 5 of the Act clearly applies and the respondent No.1 is liable to pay the stamp duty on the same. Admittedly, for having observed supra, I am of the considered view that the instrument which the respondent No.1-plaintiff intends to rely upon is an instrument having deficit stamp duty, hence, the same is liable to be impounded under Section 33 of the Act and liable to be charged under Section 34 of the Act.
10. The issue of payment of stamp duty is between the party who refers the instrument and the State. The judgment relied on by the learned counsel for the respondent No.1 has no application to the facts and circumstances of the case as the decision of the learned Single Judge is passed without considering the Division Bench decision of this Court in the case of Sandra Lesley Anna Bartels referred supra.
11. The contention of the respondent with regard to fraud played by the petitioners may not be gone into in the
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NC: 2025:KHC:25332 W.P. No.2088/2020 HC-KAR present petition as the scope of the present petition is limited with regard to deficiency of stamp duty on the instrument in question. However, it is always open for the respondent No.1- plaintiff to urge all the grounds available to him under the law in the pending suit.
12. For the aforementioned reasons, I proceed to pass the following:
ORDER i. Writ petition is allowed.
ii. The impugned order dated 18.12.2019 passed regarding marking of documents passed in O.S.No.205/2011 by the Principal Civil Judge & JMFC, Shivamogga, is hereby set aside.
iii. The trial Court is directed to impound the agreement of sale dated 04.07.2008 and asses the stamp duty and penalty and thereafter the respondent No.1-plaintiff shall make good of the same, thereafter, to rely on the same, if he intends to rely.
No orders to cost.
Sd/-
(VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 29