Karnataka High Court
Basavaraj S/O Rudrappa Sheelvant vs State Of Karnataka on 4 January, 2018
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4th DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
WRIT PETITION Nos.109558-109559 of 2017( KLR-RR/SUR)
BETWEEN
1. BASAVARAJ S/O RUDRAPPA SHEELVANT
AGE: 80 YEARS,
OCC: RETIRED FOR SERVICE,
R/O: 2ND MAIN, 3RD CROSS,
KALYANANAGAR, DHARWAD-580007.
2. JAYAKUMAR
S/O GURUSHANTAPPA SHEELVANT,
AGE: 67 YEARS, OCC: BUSINESS,
R/O: SIDDAMMANAVAR BUILDING,
C. BLOCK, 2ND CROSS, VIDYANAGAR, HAVERI.
... PETITIONERs
(By Sri. V M SHEELVANT, ADV.)
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF REVENUE,
VDHANA SOUDHA, BENGALURU.
2. THE CITY SURVEYOR,
TAHASILDARS OFFICE, HAVERI.
... RESPONDENTS
(By Sri. RAVI HOSAMANI, ADDL.GOVERNMENT ADVOCATE FOR R1-R2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ENDORSEMENT BEARING NO.CTS/MUT-SR-/16-17
DATED:NIL ISSUED BY THE 2ND RESPONDENT PRODUCED AT
2
ANNEXURE-C. DIRECT THE 2ND RESPONDENT TO ENTER THE
NAME OF THE PETITIONERS IN PURSUANCE OF ANNEXURE-B
TO THE PROPERTY BEARING CTS NO.2234 SITUATED AT
HAVERI DISTRICT.
THESE WRT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN B GROUP, THIS DAY, THE COURT, MADE THE
FOLLOWING:
ORDER
The present writ petitions have been filed by the petitioners praying to issue a writ of certiorari or any other appropriate writ, direction and quash the endorsement issued as per Annexure-C and also issue a writ of mandamus directing the 2nd respondent to enter the names of the petitioners in pursuance of Annexure-B to the property bearing CTS No.2234 situated at Haveri District, in the interest of justice.
2. It is the contention of the petitioners that there was an oral partition in the family on 02.05.2014. In order to avoid the dispute between the members of the family, a document has been reduced into writing containing the terms and recitals of the family arrangement made on 02.05.2014 and a written document was prepared as per Annexure-B on 28.05.2014 in respect of the property bearing 3 CTS No.2234 situated at Haveri. It is the further contention of the petitioners that they made an application to respondent No.2 to mutate their names to the said property. Though an application has been made and no objections have been filed by any other persons, respondent No.2 has not passed any orders for more than a year and after several requests, he has given an endorsement as per Annexure-C stating that the oral partition, which has been entered into between the parties, as per the document, requires to be registered. Being aggrieved by the said endorsement, the petitioners are before this Court.
3. The main grounds urged by the learned counsel for the petitioners are that the endorsement issued denying the mutation entry in the names of the petitioners is wholly illegal, arbitrary and liable to be quashed. Respondent No.2 has wrongly interpreted the document and has informed that the same requires to be registered before mutation. He further contended that respondent No.2 has failed to understand the law and under the Hindu Law, oral partition is permissible and if the partition takes places under the 4 document, the same is required to be compulsorily registered. The wrong understanding of law and the procedure has resulted in miscarriage of justice. He further contends that the petitioners are having statutory right to demand mutation entry in their names as the other co- sharers/legal representatives have endorsed their signatures on the memorandum of partition. He further contends that respondent No.2 is under statutory obligation to effect mutation entry as per the memo of partition in view of the law laid down by the Hon'ble Apex Court. On these grounds, he prayed for allowing the writ petitions.
4. Sri Ravi Hosamani, learned Additional Government Advocate vehemently argued by contending that if Annexure-C, is read in its entirety, the parties have relinquished their rights. In that light, the relinquishment deed is a compulsory registerable document and as such the endorsement issued by respondent No.2 is justifiable. He further contended that in view of amendment made to Section 6 of the Hindu Succession Act, 1956, partition means any partition made by execution of a deed of partition 5 has to be duly registered under the Registration Act, 1908. He further contended that the endorsement issued as per Annexure-C is an order passed under the Karnataka Land Revenue Act(hereinafter referred to as the 'KLR Act') and as per Section 49(c) of KLR Act, an alternative remedy is available to the petitioners. Under such circumstances, the petitions are not maintainable and the same are liable to be dismissed. He further contended that, on going through the recitals as per Annexure-B, the petitioners have to pay stamp duty under the Karnataka Stamp Act, 1957(hereinafter referred to as 'KS Act') and in order to avoid stamp duty and to save the registration fee, the present writ petitions have been filed. On these grounds, he prayed for dismissal of the writ petitions.
5. I have perused the records and the submissions made by the learned counsel and the Additional Government Advocate.
6. Before dealing with the respective contentions put forward by the learned counsel for the parties, I would like to discuss in general the effect and value of the family 6 arrangement entered into between the parties with a view to resolve the dispute once for all before this Court.
7. It is an admitted fact that there was an oral partition entered into between the parties on 02.05.2014 and subsequently, the same was reduced into writing on 28.05.2014. In the said document it has been clearly mentioned that they have entered into an oral partition and only in order to remember the arrangement which have been made between them, they have reduced the same into writing and thereafter a representation has been given for making necessary entries in the record of rights. Therefore, the question which arises for consideration is that:
Whether the document which has been reduced into writing between the parties requires registration as per sub section(2) of Section 17 of the Registration Act?
8. The nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of documents. The admissibility of a document entirely 7 depends upon the recitals contained in the documents not the pleadings. This proposition of law has been laid down in the case of Yellapu Uma Maheshwari and Another v.
Buddha Jagadheeswararao and Others, reported in (2015) 16 SCC 787 at para 15 as under:
"15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question A thorough reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition."8
9. It is well settled principle of law that registration would be necessary only if the terms of the family arrangement are reduced into writing. Therefore, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case, the memorandum itself does not create or extinguish any right in the immoveable properties and therefore it does not fall within the scope of Section 17(2) of the Registration Act. Therefore, it is not compulsorily registerable document. This proposition of law has been upheld by the Hon'ble Apex Court in the case of Kale and others v. Deputy Director of Consolidation and others reported in (1976) 3 Supreme Court Cases 119. For the purpose of brevity, I extract para 10 which reads as under:
10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, 9 the matter may be reduced into the form of the following propositions:
" (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandom itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has not title but under the arrangement the other party relinquishes all its claims 10 or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
10. The learned Additional Government Advocate by reading the recitals in Annexure-B contended that the relinquishment has been also included in the said deed and as such that the said document requires to be registered in accordance with the Registration Act. By going through Annexure-B, it clearly indicates that the parties are the relatives and there is an antecedent title of some sort between the parties and the agreement entered into in the parties has been already done as on 02.05.2014 and the same has been reduced into writing on 28.05.0214.
11. It is well settled principles of law that compromise or a family arrangement is based on the 11 assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines that the title as, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it, to the portions allotted to them respectively
12. This clearly goes to show that the recognition of right has been relinquished under the family arrangement. Then, under such circumstances, it is not a general relinquishment as stated under Section 17 of the Registration Act. In that light also, registration is not required.
13. It is the contention of the learned Government Advocate that in view of amendment to Section 6 of the Hindu Succession Act, partition has to be reduced into writing and it has to be registered. In that behalf, he referred to Explanation to sub section(5) of Section 6 of the Hindu Succession Act, 1956 which reads as under:
Explanation.- For the purposes of this section "partition" means any partition made by execution of a 12 deed of partition duly registered under the Registration Act, 1908(16 of 1908) or partition effected by a decree of a court.)
14. On going through the aforesaid explanation, partition means partition made by execution of a deed of partition duly registered under the Registration Act. That provision speaks in respect of relinquishment or a partition which is going to take place. When the partition takes place and if it is reduced into writing then it is compulsorily registerable under Section 17 of the Registration Act. In the instant case on hand, the document which has been entered into is a family arrangement and only for the purpose of record and for information, the same has been reduced into writing and the same is given for the purpose of mutation. Under such facts and circumstances, provisions of Section 6 of the Registration Act are not applicable to the facts of the case on hand.
15. Another contention which has been raised by the learned Additional Government Advocate is that as per Section 49 of the Karnataka Land Revenue Act, 1964 an alternative remedy is available to the petitioners and in that 13 light, writ petitions are not maintainable. For the purpose of brevity, I quote sub section(e) of Section 49 of the Act, which reads as under:
49. Appeals from original orders.-xxxxx
(e) if such an order is passed by a [Surveyor Officer below the rank of an Assistant Director of Land Records or Assistant Director for Settlement to the Assistant Director of Land Records or the Assistant Director for Settlement], as the case may be;
On going through the aforesaid provision, if, an order is passed by the Surveyor below the rank of an Assistant Director of Land Records or Assistant Director for Settlement to the Assistant Director of Land Records or Assistant Director for settlement, then, under such circumstances, an appeal lies. But as could be seen from Annexure-C, the endorsement which has been issued by the Surveyor, no order has been passed in pursuance of the representation given by the petitioners. He has directed only to get the documents registered and thereafter he has to give the said registered documents for the purpose of mutation. In that light, the provisions of Section 49 of the Karnataka Land Revenue Act is also not applicable. 14
16. By going through the records, it clearly indicate that respondent No.2 has exceeded his power and has erroneously given a reply as per Annexure-C. When a representation has been given as per Annexure-B to the effect that oral partition was effected in memory of the oral partition, it has been reduced into writing and as per that mutation has to be effected. Then, under such circumstances, respondent No.2 ought to have entered the mutation in accordance with law by giving full opportunity to the parties. By going through the endorsement, which has been issued as per Annexure-C, it is seen that no opportunity has been given and unilaterally an endorsement has been issued as per Annexure-C. In that light, Annexure- C, which has been issued, requires to be quashed. Accordingly, the same is quashed. However, it is observed that though the said document is not compulsorily registrable but if the petitioners want to rely upon the said document for collateral purpose, it is open for them to pay the stamp duty together with penalty and get the document impounded, then thereafter, concerned authority is at liberty 15 to use it for collateral purpose. In that light, it is hereby directed that, respondent No.2, taking into consideration and following the ratio laid down by the Hon'ble Apex Court, shall effect mutation entries within a period of three weeks from the date of receipt of a certified copy of this order by collecting necessary stamp duty from the writ petitioners in accordance with law.
Accordingly, writ petitions are disposed of.
Sd/-
JUDGE Kmv