Karnataka High Court
Sri. Balachandra R vs Shashidhar Gowda H D on 14 October, 2024
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NC: 2024:KHC:41536
WP No. 42994 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 42994 OF 2017 (GM-CPC)
BETWEEN:
SRI. BALACHANDRA R
S/O RAMAKRISHNA SETTY,
AGED ABOUT 52 YEARS,
AGRICULTURIST,
R/O TALAGUPPA VILLAGE,
TALAGUPPA HOBLI,
SAGAR TALUK-577 401
SHIVAMOGGA DISTRICT
...PETITIONER
(BY SRI. UMESH MOOLIMANI, ADVOCATE FOR
SRI. S.V. PRAKASH, ADVOCATE)
AND:
1. SHASHIDHAR GOWDA H D
S/O BASAVARAJAPPA GOWDA
AGED ABOUT 64 YEARS,
Digitally signed 2. INDUDHARA GOWDA
by S/O BASAVARAJAPPA GOWDA,
MARKONAHALLI
RAMU PRIYA AGED ABOUT 59 YEARS,
Location: HIGH
COURT OF
KARNATAKA 3. RAJAKUMAR GOWDA H.D.
S/O BASAVARAJAPPA GOWDA,
AGED ABOUT 49 YEARS,
4. SHIVAKUMARA GOWDA H D
S/O BASAVARAJAPPA GOWDA,
AGED ABOUT 42 YEARS,
RESPONDENTS 1 TO 4
ARE RESIDENT OF
HIRENELLUR VILLAGE,
TALAGUPPA HOBLI,
SAGAR TALUK-577 401
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WP No. 42994 of 2017
SHIVAMOGGA DISTRICT.
5. GIRIJAMMA
W/O BASAVARAJAPPA GOWDA,
AGED ABOUT 87 YEARS,
SINCE DEAD BY LRS
5(a) RATHNAMMA
S/O MALLAPPA
AGED ABOUT 65 YEARS,
R/O SYDURU, THALAGUPPA HOBLI,
SAGAR TALUK-577401,
SHIVAMOGGA DISTRICT.
5(b) SUVARNAMMA
W/O VEDAMURTHY,
AGED ABOUT 62 YEARS,
R/O GOTHURU,
HOSANAGARA TALUK-577418,
SHIVAMOGGA DISTRICT.
5(c) SUNANDA
W/O MALLIKARJUNA
AGED ABOUT 56 YEARS,
C/O MALLIKARJUNA,
KSRTC, SIRSI DEPO,
SIRSI TALUK-581401,
KARWAR DISTRICT.
5(d) SHYLASHREE
W/O SRIKANTHA
AGED ABOUT 50 YEARS,
R/O SORABA TALUK-577429,
SHIVAMOGGA DISTRICT
5(e) JAISHREE
W/O SOMASHEKAR
AGED ABOUT 48 YEARS,
R/O ANEGUDDE
HOSANAGARA TALUK-577418,
SHIVAMOGGA DISTRICT.
...RESPONDENTS
(BY SRI. CHINMAY KULKARNI, ADVOCATE FOR SRI. R. GOPAL,
ADVOCATE FOR RESPONDENT NOS.1, 2 AND 4;
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NC: 2024:KHC:41536
WP No. 42994 of 2017
NOTICE SERVED ON RESPONDENT NO.3;
NOTICE SERVED ON RESPONDENT NOS.5(a) TO 5(e))
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 21.08.2017 PASSED BY THE COURT OF ADDITIONAL CIVIL
JUDGE AND JMFC, SAGAR, IN O.S.NO.25/2013 [OLD NO.48/2010]
DIRECTING THE PETITIONER TO PAY THE DUTY WITH PENALTY ON
THE SUIT AGREEMENT DATED 16.02.2005 TREATING IT AS A
CONVEYANCE [BOND NO.20] IN ORDER TO ADMIT THE SAME IN
EVIDENCE PRODUCED AS ANNEXURE-D TO THE PETITION AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The plaintiff in O.S.No.25/2013 pending on the file of the Additional Civil Judge and JMFC, Sagar (henceforth referred to as 'Trial Court') has filed this writ petition challenging an order dated 21.08.2017 by which objection raised by the defendants to mark an agreement of sale was upheld.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioner herein was the plaintiff while the respondents were defendant Nos.1 to 5. -4-
NC: 2024:KHC:41536 WP No. 42994 of 2017
3. A suit in O.S.No.25/2013 (earlier numbered as O.S.No.48/2010) was filed for specific performance of an agreement of sale dated 16.02.2005. The plaintiff claimed that the defendants had executed the aforesaid agreement agreeing to sell the suit property for a total sale consideration of Rs.4,00,001/- and had received a sum of Rs.1,50,000/- and had agreed to conclude the sale transaction soon after a suit in O.S.No.73/1995 was disposed off. The plaintiff claimed that he was in unauthorized possession of the suit property prior to the execution of the agreement and therefore, he continued in possession of the suit property after the agreement was executed. He therefore, contended that there was no mention in the agreement regarding handing over possession of the suit property.
4. The suit was contested by the defendants who denied the execution of the agreement. They also denied the receipt of Rs.1,50,000/- as part of the agreed sale consideration. They contended that the agreement dated 16.02.2005 was concocted by the plaintiff. -5-
NC: 2024:KHC:41536 WP No. 42994 of 2017
5. Based on these contentions, the Trial Court framed the following issues and set down the case for trial:-
1. zÁªÁ D¹ÛAiÀÄ£ÀÄß ¥ÀæwªÁ¢AiÀÄgÀÄ 4,00,001-00 gÀÆUÀ½UÉ ªÀiÁgÁl ªÀiÁqÀ®Ä M¦à ¢: 16.05.2005 gÀAzÀÄ PÀæAiÀÄPÀgÁgÀÄ¥ÀvæÀ ªÀiÁrPÉÆnÖgÀÄvÁÛgÉAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
2. ¢: 16.02.2008 gÀAzÀÄ ¥ÀæwªÁ¢AiÀÄgÀÄ PÀæAiÀÄ PÀgÁj£À ¥Àæw¥sÀ®ªÁV 1,50,000-00 ºÀtªÀ£ÀÄß ¥ÀqÉ¢gÀÄvÁÛgÉAiÉÄà JAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
3. ¢: 12.03.2005 gÀAzÀÄ ¥ÀæwªÁ¢AiÀÄgÀÄ ¥Àæw¥sÀ®zÀ ¨sÁUÀªÁV gÀÆ.
80,000-00 ¥ÀqÉ¢gÀÄvÁÛgÉ JAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
4. ¸ÁUÀgÀzÀ ºÉZÀÄѪÀj »jAiÀÄ ¹«¯ï £ÁåAiÀiÁ®AiÀÄzÀ°è zÁR¯ÁzÀ C¸À®Ä zÁªÉ ¸ÀA. 73-1995 gÀ zÁªÉ «ZÁgÀuÉAiÀiÁV EvÀåxÀðªÁzÀ 3 wAUÀ¼À M¼ÀUÁV G½zÀ PÀæAiÀÄzÀ ¥Àæw¥sÀ®ªÀ£ÀÄß ¥ÀqÉzÀÄ ¥ÀæwªÁ¢AiÀÄgÀÄ 3 wAUÀ¼À M¼ÀUÁVAiÉÄà ªÁ¢AiÀÄ ºÉ¸Àj£À°è PÀæAiÀÄ¥ÀvÀæªÀ£ÀÄß £ÉÆAzÁ¬Ä¹PÉÆqÀ¨ÉÃPÀVvÀÄÛ JAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
5. ¢: 16.02.2005 gÀAzÀÄ PÀæAiÀÄPÀgÁgÀÄ ¥ÀvÀæªÀ£ÀÄß ¸ÀÆPÀÛ ¸ÁÖA¥ï ±ÀÄ®Ì ¥ÁªÀw ªÀiÁqÀzÉà EgÀĪÀ bÁ¥ÁPÁUÀzÀzÀ ªÉÄÃ¯É §gÉAiÀįÁVzÉ JAzÀÄ 1 jAzÀ 4£Éà ¥ÀæwªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÀÛgÉAiÉÄÃ?
6. 2005 gÀ°è ªÁ¢¬ÄAzÀ vÁªÀÅ 1,50,000-00 gÀÆ. ºÀtªÀ£ÀÄß ¸Á®ªÁV ¥ÀqÉzÀÄ CzÀ£ÀÄß ¸Á°AiÀiÁ£À ±ÉÃPÀqÀ 10gÀ §rØzÀgÀzÀ°è wÃgÀĪÀ½ ªÀiÁqÀ¨ÉÃPÁVvÀÄÛ JAzÀÄ ¥ÀæwªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
7. 2010 gÀ°è vÁªÀÅ ¥ÀqÉzÀ 1,50,000-00 gÀÆ. ºÀtªÀ£ÀÄß §rØ ¸ÀªÉÄÃvÀ ªÁ¢UÉ wÃgÀĪÀ½ ªÀiÁqÀ®Ä ºÉÆÃzÁUÀ, ªÁ¢AiÀÄÄ CzÀ£ÀÄß ¹éÃPÀj¹gÀĪÀÅ¢®è JAzÀÄ ¥ÀæwªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?-6-
NC: 2024:KHC:41536 WP No. 42994 of 2017
8. ¢£ÁAPÀ: 11.02.2010 gÀAzÀÄ ªÁ¢AiÀÄÄ ¸ÁUÀgÀzÀ G¥À£ÉÆAzÀt C¢üPÁjUÀ¼À PÀbÉÃjUÉ §A¢gÀ°®è JAzÀÄ ¥ÀæwªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ¥ÀqɸÀÄvÁÛgÉAiÉÄÃ?
9. ªÁ¢AiÀÄÄ PÀȶ ¨sÀÆ«ÄAiÀÄ£ÀÄß Rjâ¸À®Ä CºÀðvÉ ºÉÆA¢gÀĪÀÅ¢®è JAzÀÄ ¥ÀæwªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
10. ¢£ÁAPÀ: 16.02.2005 gÀ PÀæAiÀÄ PÀgÁgÀÄ¥ÀvÀæzÀ£ÀéAiÀÄ zÁªÁ D¹ÛAiÀÄ£ÀÄß PÀæAiÀÄPÉÌ ¥ÀqÉAiÀÄ®Ä vÁ£ÀÄ ¹zÀÝ ºÁUÀÆ GvÀÄìPÀ£ÁVgÀÄvÉÛÃ£É JAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
11. ªÁzÀ¥ÀvÀæzÀ°è PÉÆÃjgÀĪÀAvÉ ªÁ¢AiÀÄÄ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀð£ÉÃ?
12. ªÀiÁqÀĪÀ DzÉñÀ CxÀªÁ rQæ K£ÀÄ?
6. The plaintiff was examined as PW.1 and at the time of marking the agreement in question, the defendants raised a contention that the agreement was inadmissible in evidence in view of Section 17(1A) of the Registration Act, 1908. It was also contended that the plaintiff was bound to pay stamp duty since the possession was delivered under the agreement.
7. The Trial Court relied upon the judgment of a Coordinate Bench of this Court in Danappagouda Fakkiragouda Patil v. Kamalawwa and Another [2006 (4) KCCR 2439] and the order passed in W.P.No.7105/2008 and held that when the purchaser was already in possession of the property even prior to the agreement of sale and hence, there -7- NC: 2024:KHC:41536 WP No. 42994 of 2017 was no question of payment of duty and penalty. In so far registration of the agreement of sale under Section 17(1A) of the Registration Act is concerned, it held that Section 17(1A) was introduced with effect from 24.09.2001 and as the agreement in question was executed on 16.02.2005, the agreement had to be compulsorily registered and since it was not registered, it was inadmissible in evidence.
8. Being aggrieved by the said order, the plaintiff is before this Court in this writ petition.
9. The learned counsel for the petitioner/plaintiff submitted that the Trial Court has disallowed the marking of the agreement only on the ground that the said document was not registered. He contended that the effect of not registering the agreement of sale is also provided in Section 17(1A) of the Registration Act namely that the plaintiff cannot claim the benefit of Section 53A of the Transfer of Property Act, 1882. He therefore, contends that this does not make a document inadmissible.
10. Per contra, the learned counsel for the respondent Nos.1, 2 and 4/defendant Nos.1, 2 and 4 contended that the -8- NC: 2024:KHC:41536 WP No. 42994 of 2017 plaintiff claimed that he was in possession of the property even prior to the agreement of sale and that the defendants had consented to the plaintiff continuing in such possession under the agreement of sale and therefore, it is deemed that the plaintiff was put in possession under the agreement of sale and consequently stamp duty as payable under Article 5(e)(i) of the Karnataka Stamp Act, 1957 is payable. Thus, he contends that the Trial Court committed an error in holding that the plaintiff was exempt from payment of stamp duty. He also contended that since the plaintiff claimed to be in possession of the property under the agreement in question, the said agreement had to be compulsorily registered and if not, the said document could not be admitted in evidence.
11. I have considered the submissions made by the learned counsel for the plaintiff as well as the learned counsel for the defendant Nos.1, 2 and 4.
12. A perusal of the agreement of sale dated 16.02.2005, invariably shows that the plaintiff was in unauthorized illegal possession of the suit property even prior to the agreement of sale dated 16.02.2005. The agreement -9- NC: 2024:KHC:41536 WP No. 42994 of 2017 states that the plaintiff in order to compensate the defendants had offered to pay a sum of Rs.4,00,001/- towards sale of the suit property and that the defendants had agreed to convey the property and had received a sum of Rs.1,50,000/- being part of the agreed sale consideration. However, a suit was filed by the brothers of the defendants in O.S.No.73/1995 and hence, conclusion of the sale was postponed after the suit was decided. It therefore, points out to a fact that the plaintiff was not placed in possession of the suit property under the agreement but was in possession prior to the agreement itself. Therefore, the contention of the learned counsel for the defendants that the plaintiff was liable to pay stamp duty under Article 5(e)(i) of the Karnataka Stamp Act, does not appeal to this Court. This Court is therefore, of the opinion that for the present, the document is sufficiently stamped.
13. In so far as contention that the agreement of sale was not registered and therefore, inadmissible in evidence, Section 17(1A) of the Registration Act categorically declares the effect of non-registration of an agreement of sale, namely, that it shall have no effect for the purpose of Section 53A of the Transfer of Property Act. In the case on hand, the plaintiff is
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NC: 2024:KHC:41536 WP No. 42994 of 2017 not enforcing his right of part performance under Section 53A of the Transfer of Property Act but is seeking to enforce agreement of sale dated 16.02.2005. Thus, the agreement of sale cannot be held to be inadmissible on the ground that it is not registered.
14. In view of the contention of the defendants that the sale agreement dated 16.02.2005 was concocted and that the plaintiff was never in possession of the suit property prior to the agreement of sale and that the plaintiff has not narrated regarding possession in the agreement of sale to avoid stamp duty, the defendants deserve to be given appropriate liberty to raise these contentions at the appropriate stage.
15. In that view of the matter, this writ petition is disposed off with the following directions:-
(i) Writ petition is allowed in part.
(ii) The order dated 21.08.2017 passed by the Additional Civil Judge and JMFC, Sagar, in O.S.No.25/2013 is set aside.
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(iii) Agreement of sale dated 16.02.2005 is ordered to be marked.
(iv) If after the evidence, it is found that the plaintiff
was not placed in possession of the suit
property prior to 16.02.2005, then in view of the order of this Court dated 19.04.2024 passed in W.P.No.50624/2017, the plaintiff shall be liable to pay deficit stamp duty in accordance with law.
Sd/-
(R. NATARAJ) JUDGE PMR List No.: 1 Sl No.: 62