Karnataka High Court
Smt Gowramma vs B Muniswamy S/O Basappa on 10 February, 2016
Author: R.B Budihal
Bench: R.B Budihal.
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY 2016
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
WRIT PETITON No.10718/2012 (GM-CPC)
BETWEEN:
1. SMT GOWRAMMA
AGED ABOUT 74 YEARS
2. N SUNDARA RAJU
AGED ABOUT 54 YEARS
3. N THULASI RAJU
AGED ABOUT 51 YEARS
4. N DHANANJAYA
AGED ABOUT 43 YEARS
5. N YOGESHA
AGED ABOUT 41 YEARS
6. N NARAYANASWAMY
AGED ABOUT 38 YEARS. ... PETITIONERS
P-1 IS THE WIFE AND P-2 TO P-6 ARE
CHILDREN OF LATE K NANJUNDAPPA
ALL ARE R/AT NO.16, SANEGURUVANAHALLI
BASAVESHWARANAGARA
BANGALORE-560 079.
PETITIONERS NO.1, 3 TO 6 ARE
REPRESENTED BY THEIR GPA HOLDER
N SUNDARA RAJU, WHO IS PETITIONER NO.2.
(BY SRI S SHAKER SHETTY, ADV.
FOR SRI ARVIND M NEGLUR, ADV.)
2
AND
1. B MUNISWAMY
S/O BASAPPA
2. SMT MANGAMMA
W/O MUNISWAMY
RESPONDENT NOS. 1 AND 2
SINCE DEAD BY THEIR LRS.
1(A). SMT. B.M.NAGARATHNA
D/O LATE B.MUNISWAMY
& MANGAMMA
W/O A.CHANDRASHEKAR
AGED ABOUT 53 YEARS
1(B). SHRI B.M.VENKATACHLLAM
S/O LATE B.MUNISWAMY
& MANGAMMA
AGED ABOUT 51 YEARS
1(C). SHRI B.M.RAMESH
S/O LATE B.MUNISWAMY
& MANGAMMA
AGED ABOUT 49 YEARS
1(D). SMT. B.SHYLAJA
W/O LATE B.M.NAGABHUSHANA
DAUGHTER-IN-LAW OF
LATE B MUNISWAMY & MANGAMMA
AGED ABOUT 35 YEARS
1(E). KUM. HARINI
D/O LATE B.M.NAGABHUSHNA
AGED ABOUT 15 YEARS
3
NO.1(E) & 1(F) ARE MINORS
REPRESENTED BY THEIR MOTHER
AND NATURAL GUARDIAN
SMT. B SHYLAJA
1(G). SHRI B.M.CHANDRASHEKAR
S/O LATE B.MUNISWAMY
& MANGAMMA
AGED ABOUT 43 YEARS
1(H). SMT. B.M.HEMALATHA
D/O LATE B.MUNISWAMY
& MANGAMMA
AGED ABOUT 40 YEARS
ALL ARE R/AT VIJINAPURA
BEHIND VIKAS HIGH SCHOOL
DOORAVANINAGARA POST
BANGALORE-560 016.
3. N RATHNAM REDDY
S/O BYRAPPA
R-1 TO R-3 ARE R/AT
VIJINAPURA
BEHIND VIKAS HIGH SCHOOL
DOORAVANI NAGAR
BANGALORE-560 016.
4. SMT P V RATHAMMA
W/O DAMODAR REDDY
4TH DEFENDANT DEAD BY HER LRS
4(A). P DAMODAR REDDY
S/O LATE RAMAKRISHNA
4(B). UMASHANKAR REDDY
S/O LATE RAMAKRISHNA REDDY
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R-4(A) & (B) ARE
R/A NO.912,
II STAGE,
D BLOCK, RAJAJINAGAR,
BANGALORE-560 010.
5. B N RAMADASAPPA
SINCE DECEASED BY LR
5(A). SMT ASHWATHAMMA
W/O LATE B N RAMADASAPPA
R/AT BELLURU VILLAGE
NARASAPURA POST,
KOLAR TALUK & DISTRICT.
6. K S THANTRY
S/O LATE KRISHNA THANTRY
NO.40, BDA QUARTERS,
A/3, DOMLUR, BANGALORE-71
7. SANDEEP PARVATIKAR
S/O GOVINDA RAO
NO.9, 4TH CROSS, VICTORIAL LAYOUT,
BANGALORE-47
8. MAHABOOB BASHA
S/O MASTANA
NO.153, 3RD CROSS,
JEEVANAHALLI,
BANGALORE
9. B ABDUL SALAM
S/O T O BASHU
NO.E 60, NORTH II LANE,
DOORAVANI NAGAR POST,
BANGALORE
10. SMT MUTHAMMA
W/O DHARMARAJ
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NO.57, 6TH CROSS,
A.T.STREET
VASANTHANAGAR
BANGALORE. ... RESPONDENTS
(BY SRI V NAGAREDDY, ADV. FOR R-1(G) - ABSENT
V/O DTD: 5.2.14, SERVICE HELD SUFFICIENT I.R.O.
R-3, R-4 (A) & (B), & R-6 TO R-10 - UNREPRESENTED
V/O DTD: 27.2.15, SERVICE HELD SUFFICIENT I.R.O.
R-1(A) TO 1(F) & 1(H) - UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DT.10.3.11 PASSED IN OS.NO.15754/00
TITLED AS ORDERS ON OBJECTIONS RAISED IN
RESPECT OF THE MARKING OF THE PALUPATTI
DT.20.3.1984 BY THE XXVIII ADDL. CITY CIVIL
JUDGE, MAYOHALL UNIT, BANGALORE IN
OS.NO.15754/00 WHICH IS AT ANN-D,
CONSEQUENTLY, DIRECT THE COURT BELOW TO
ADMIT THE CERTIFIED COPY OF THE PALUPATTIN
DT.20.3.1984 IN EVEDENCE & READ THE DOCUMENT
IN EVIDENCE IN OS.NO.15754/00.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This Petition is filed by the petitioners-plaintiffs to quash the order dated 10.03.2011 passed in O.S.No.15754/2000 tilted as "orders on objections raised in respect of marking of the palu-patti dated 6 20.03.1984 by the XXVIII Addl. City Civil Judge, Mayohall Unit, Bengaluru, which is at Annexure-D and to direct the Court below to admit the certified copy of the palu-patti dated 20.03.1984 in evidence and read the same in evidence.
2. The brief facts of the petitioners case as pleaded in the petition are that petitioners are plaintiffs in O.S.No.15754/2000 before the City Civil Court (Mayo Hall), Bengaluru, and the respondents are the defendants in the said suit. Petitioners filed the suit for declaration and perpetual injunction. Petitioners are asserting their title to certain properties through their predecessors, lake K.Nanjundapa. According to the plaint averments Chikkakariyappa father of K.Nanjundappa during his lifetime effected an oral partition of the family properties in the year 1982, which was later confirmed and reduced into writing under a palu-patti dated 20.03.1984. 7
P.W.1 lead his examination-in-chief by filing his affidavit. At paragraph No.5 of the said affidavit, P.W.1 deposed that in the year 1982 there was oral partition in the family of his father and it was followed by execution of a palu-patti dated 20.03.1984 and under the said oral partition, father of P.W.1 i.e., K.Nanjundappa acquired certain properties including the suit schedule properties. The said palu-patti dated 20.03.1984 is the suit document in O.S.15208/2001, which was marked as Ex.P-1 without there being any objection. Certified copy thereof have been marked in O.S.Nos.15799/2000, 16185/2000, 15445/2000, 15840/2001 and 15207/2001 under Section 76 of the Evidence Act in the very same Court (CCH-29). Of these cases, O.S.NO.15840/2001 came to be decreed in favour of the plaintiffs therein on the basis of the palu- patti. The copy of the certified copy of untitled document palu-patti dated 20.03.1984 is produced and marked as Annexure-B. The copy of the deposition in O.S.No.15208/2001 where the said palu-patti came to 8 be originally marked as Ex.P-1, which is produced and marked as Annexure-C. In the present suit i.e., O.S.No.15208/2001, when a certified copy of the palu- patti was sought to be marked as an exhibit, it was opposed by the defendants. The Trial Court upheld the objections and refused to permit the plaintiffs to mark the documents i.e., palu-patti. Petitioners are aggrieved by the order of rejection of marking of the said document.
3. Heard the arguments of the learned counsel appearing for the petitioners-plaintiffs.
Though the respondents were served with a notice, they remained absent and there is no representation.
4. Learned counsel for the petitioners during the course of his arguments has submitted that the documents sought to be marked was a certified copy issued by the very same Court under the provisions of Indian Evidence Act. Therefore the Court below ought 9 not to have refused to admit the document in evidence. The document sought to be marked has been marked in six other cases in the same Court and one of the case has been decreed on the basis of the said document. Under such circumstances, the defendants therein are estopped from raising any objection for marking the said document. The order passed by the Trial Court upholding the objections and refusing to mark the said document is bad in law. Hence, he has submitted that the said order is illegal. Hence he has submitted to allow the petition and to set-aside the order passed by the Trial Court.
In support of his arguments learned counsel for the petitioners has relied upon the following decisions:
i. ILR 2002 KAR 3613 in the case of
K.Anjaneya Setty vs. K.H.Rangiah
Setty;
ii. ILR 2008 KAR 2159 in the case of
Veerappa and Others vs. Smt.Halavva and others;
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iii. AIR 2011 SC 1695 in the case of Hafeeza Bibi and Ors. v. Shaikh Farid (dead) by LRs. and Ors.
iv. (1988) 1 Kant.LJ 583 in the case of Ananda Setty vs. Chowdasetty.
5. I have perused the grounds urged in the petition, the document, which is said to be the palu- patti and the order passed by the Trial Court dated 10.03.2011, which is challenged in this petition.
6. The document in question, which was tendered in evidence before the Trial Court is produced in this petition as at Annexure-B. The recitals in the said document shows that the father and sons divided the properties to the share of respective persons as mentioned in the said document, there is no specific mention in the said document that earlier there was a partition in the family and for the purpose of the memory, they have prepared the memorandum or the palu-patti.
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7. However, looking to the plaint averments in the suit at paragraph No.4 it is mentioned that the deceased Chikkakariyappa during his lifetime effected an oral partition of the family properties in the year 1982 which was later confirmed and reduced to writing under palu-patti dated 20.03.1984. When P.W.1 gave his evidence in examination-in-chief by filing the affidavit before the Trial Court, in paragraph No.5 of the said affidavit, P.W.1 has deposed that in the year 1982 there was an oral partition in the family of his father and it was followed by execution of palu-patti dated 20.03.1984. When the objections were raised by the defendants for marking the certified copy of the document palu-patti, which was tendered in evidence, the Trial Court by its order dated 10.03.2011 upheld the objections and refused to permit the plaintiffs to mark the document i.e., palu-patti. It is no doubt true, when any document, which is insufficiently stamped, brought to the notice of the Court, the Court has to 12 impound the document and to collect the duty and penalty on the said document by invoking Section 33 of the Karnataka Stamp Act, 1957, but the Court cannot ignore/reject the document altogether from consideration. The parties can rely upon such unregistered document for collateral purpose also i.e., to show the division of properties though they are not entitled to claim the reliefs basing on such unregistered document, but the Court can look into the said document for collateral purpose as provided under Section 49 proviso of the Registration Act.
In this connection, I have perused the decision of this Court reported in ILR 2002 KAR 3613 in the case of K.Anjaneya Setty vs. K.H.Rangiah Setty, wherein it is held by this Court as under:
"INDIAN REGISTRATOIN ACT, 1908 (CENTRAL ACT NO.16 OF 1908) -
SECTION 49 AND KARNATAKA STAMP ACT, 1957 (KARNATAKA ACT NO.22 OF 1957) - SECTION 35 - There is no total prohibition for receiving unregistered 13 documents in evidence. Un-Registered Partition Deed could be received in evidence to prove any collateral transaction.
In another decision of this Court reported in ILR 2008 KAR 2159 in the case of Veerappa and Others vs. Smt.Halavva and Others this Court laid down the proposition as under:
(A) CODE OF CIVIL PROCEDURE, 1908 - SECTION 100 - Regular Second Appeal - Original document 'palu patti' -
Prayer of the defendant to mark as exhibit - Rejection of - Palu patti is a record of partition - Division amongst the members of the family who all own the properties - Whether there is an impediment under the Evidence Act to exhibit the document - HELD, The document having been described as 'palu patti' i.e., a record of the partition, that cannot be construed as a partition deed and therefore requirement of registration does not arise and also as it was not any transfer of interese immovable property, 14 particularly, as it was a division amongst the members of the family who all own the properties, there being no transfer of interest in immovable property, necessitating registration in terms of Section 17 of the Registration Act, 1908 and not being on any stamp paper also being not any impediment to admit the document as even if it was not stamped or insufficiently stamped it could have been at the best a case for duty and penalty and not for keeping out the document itself - FURTHER HELD, Even in terms of the proviso to Section 49 of the Registration Act, 1908, assuming that the property was required to be registered either under the Registration Act, 1908 or under any of the provisions of the Transfer of Property Act, 1882, it could still be received in evidence to prove collateral transactions which were not required to be effected by a registered instrument and in this view of the matter also, the Courts below committed a serious error in not permitting the 15 defendants to exhibit the 'palu patti' in support of their case.
In the decision of this Court reported in (1988) 1 Kant LJ 583 in the case of ANanda Setty vs. Chowdasetty this Court laid down the proposition as uner:
Registration Acts and Rules -
Registration Act, 1908 - S.49-Palupatti or a memorandum of partition -
Unregistered - Whether admissible in evidence - Held, S.49 makes it makes it obligatory that documents which are required to be registered and which are not registered shall not be admitted in evidence except for the limited purpose referred to in the explanations to that section - Palupatti or a memorandum of partition can only be admitted in evidence for the purpose of proof of the factum of partition, but never for the purpose of proving the contents or even possession of the properties mentioned therein. (Para 4).
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8. In the case on hand, no doubt, the document according to the plaintiffs case is a palu-patti, which is produced as at Annexure-B, however, when the objections was raised for its admissibility in evidence and marking the same, the Trial Court considered the objections and passed the detailed order.
9. Perused the said order passed by the Trial Court. It is held by the Trial Court that the document dated 20.03.1984 is a deed of partition and the same is inadmissible in the evidence of P.W.1. Even if it is the opinion of the Trial Court, by invoking Section 33 of the Karnataka Stamp Act, 1957, the Trial Court ought to have impounded the document and collected the duty and penalty and thereafter it could have considered the said instrument in the evidence of P.W.1, as per the procedure contemplated under Sections 36 and 37 of the Karnataka Stamp Act, 1957. The Trial Court has not followed the said procedure and rejected the document altogether from consideration, which 17 procedure is not legal. Therefore, the order passed by the Trial Court totally rejecting the said document from consideration is illegal and not sustainable in law. Accordingly, petition is allowed and impugned order passed by the Trial Court dated 10.03.2011 passed in O.S.15754/2000 produced as per Annexure-D is hereby set-aside.
Sd/-
JUDGE BSR