Karnataka High Court
Sri C Chinnappa vs Smt H N Bhavani Natesh on 2 July, 2015
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY 2015
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
WRIT PETITION NO.2995/2015 (GM-CPC)
BETWEEN:
1. SRI C CHINNAPPA
S/O LATE CHINNASWAMAPPA,
AGED ABOUT 46 YEARS,
PRESENTLY RESIDING AT
NO.15, GROUND FLOOR,
1ST MAIN, 2ND CROSS,
MEDAHALLI ENCLAVE,
PARVTHINAGAR,
JYOTINAGAR MAIN ROAD,
MEDAHALLI, VIRGONAGAR POST,
BANGALORE 560049
2. CHANDRASHEKAR
S/O LATE PUVAPPA PUJARI,
AGED ABOUT 60 YEARS,
PRESENTLY RESIDING AT NO.6/A,
KANNAPPA BUILDING,EKANTHA NAGARA,
BEHIND SEE COLLEGE,
AYYAPPA NAGARA, K.R PURAM,
BANGALORE 36 ... PETITIONERS
(By Sri: SRIDHAR A G, ADV.)
AND
2
1. SMT H N BHAVANI NATESH
W/O K.NATESH,
AGED ABOUT 46 YEARS,
RESIDING AT FLAT NO.33,
7TH MAIN, 7TH CROSS,
MALLESHWARAM,
BANGALORE 560003
2. P.CHANDRASHEKHAR RAO
AGE: MAJOR
PARTNER IDEAL SOLUTIONS,
RESIDING AT NO. 65 & 66,
4TH MAIN, 3RD BLOCK,
WARD NO.12,
MUNESHWARA TEMPLE ROAD,
HOODY VILLAGE, MAHADEVAPURA CMC,
AYYAPPA NAGAR,
BANGALORE 560036.
ALSO AT M/S IDEAL SOLUTIONS
# 63, 1ST FLOOR, 5TH CROSS,
VASANTH NAGAR,
BANGALORE 560052
REPRESENTED BY ITS PARTNER,
SRI P. CHANDRASHEKAR RAO
... RESPONDENTS
(By Sri: H R ANANTHAKRISHNA MURTHY,ADV, FOR R1
NOTICE TO R2 D/W )
THIS W.P.IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE ORDER AT ANNX-A DT.13.1.2015
PASSED BY THE XII ADDL. CITY CIVIL JUDGE ,
BANGALORE IN EX.CASE NO.1069/2011, BY
3
DIRECTING THE EXECUTION COURT PERMIT THE
PETITIONRS TO MARK THE CERTIFIED COPY OF THE
ABSOLUTE SALE DEED DT.6.10.2006 AND ETC.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 22.4.2015 COMING ON
FOR PRONOUNCEMENT OF ORDERS THIS DAY,
A.V.CHANDRASHEKARA, J., MADE THE FOLLOWING:
ORDER
The order dated 13.1.2015 passed in execution proceedings in Exn.P.1069/11 which is pending on the file of the XII Additional City Civil Judge, Bengaluru, is called in question.
2. During the course of his evidence, the objector wanted to get a copy of the sale deed dated 6.10.2006 marked as an exhibit on his behalf. The learned judge has not allowed the said document to be got marked on the ground that it is still pending consideration before the concerned Sub Registrar for under-valution. The learned judge has held that the document now tendered by the objector is yet to be registered as an absolute 4 sale deed. He has further held that even for collateral purpose also, the document cannot be marked.
3. The copy of the sale deed dated 6.10.2006 produced by the objector is not the certified copy of the sale deed issued by the Sub Registrar, but a copy obtained under the provisions of the Right to Information Act and the same being got marked as an exhibit in another judicial proceedings. It is this order which is called in question in this petition on various grounds as set out in the memorandum of petition filed under Article 227 of the Constitution of India.
4. Heard the learned counsel for the parties.
5. The points that arise for consideration is as follows:
(1) Whether the learned trial judge is justified in refusing to allow the copy of the sale deed dated 6.10.2006 being marked as an exhibit on the ground that the very sale deed is no sale deed in the eye of law?5
(2) Whether the document could be looked into for collateral purposes under Section 49 of the Registration Act?
6. The decree holder, Smt.Bhavani Natesh has obtained a decree in A civil suit O.S.1995/09 which was pending on the file of City Civil Judge, Bengaluru, for getting possession of the suit schedule property bearing Khatha No.239 carved out of Survey No.50/2, Hoody village, K.R.Puram Hobli, Bengaluru East Taluk.
7. During the pendency of the execution proceedings, two persons namely, Chinnappa and Chandrashekar chose to file an application under Order XXI Rules 99 and 100, C.P.C. to hold an enquiry with regard to their claim. During the course of cross- examination of PW-2, Chinnapa, the learned counsel for the applicant-objector chose to confront a copy of the sale deed dated 6.10.2006 executed by C.Gopal, Satishkumar and Harishkumar in favour of Chinnappa relating to land measuring 1.31 acres in Survey 6 No.50/2 of Hoody village, K.R.Puram Hobli, which is a converted land. When an attempt was made to confront the said document to PW-2, the learned judge has not allowed the said document to be marked and has passed an order assigning reasons as to why the said document cannot be marked.
8. According to the learned judge, the document in question is withheld by the authorities under the Registration Act for the following reasons:
i) the document is under-valued;
ii) it is not a certified copy of the certified copy issued by the concerned Sub Registrar; and
iii) the document cannot be looked into even for collateral purpose as per the proviso to Section 49 of the Registration Act.
9. Learned counsel for the petitioners-objectors in the executing court has relied on a decision of the Hon'ble apex court in the case of RAYMOND LIMITED AND ANOTHER .v. STATE OF CHHATTISGARH AND 7 OTHERS reported in [2007] 3 SCC 79 to contend that the document in question has been numbered as 7141 by the Sub Registrar's Office and therefore it is deemed to be duly stamped and not chargeable to duty and hence can be received in evidence as an exhibit.
10. The document which the objector wants to get marked through PW-2 is stated to be an absolute sale deed dated 6.1.2006 said to have been executed in favour of C.Chinnappa-objector by Gopal, Satishkumar and Harishkumar relating to 1.31 acres of land in Survey No.50/2 of Hoody village of which the suit schedule property described in execution is a part and parcel of the same. On perusing the copy of the document dated 6.10.2006, it is seen that it was presented on 6.10.2006 at 3.20 p.m. by C.Chinnappa, the purchaser before the Sub Registrar, K.R.Puram, Bengaluru East Taluk. No.7141 is the document 8 number given to the said sale deed. There is a specific endorsement on the said document and it is as follows:
'This document is kept pending due to under-valuation under Section 45-A of the Stamp Act.' The document so produced before the Sub Registrar does not bear any certificate of registration. Section 60 of the Indian Registration Act mandates about the certificate of registration. After complying with the provisions of Sections 34, 35, 58 and 59 of the Registration Act, the registering officer has to endorse thereon the word 'registered' together with the number and page number of the book in which the document has been copied.
11. Section 60 of the Registration Act has two sub- sections and the same is extracted below:
60. Certificate of registration.-(1) After such of the provisions of Secs.34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the 9 Registering Officer shall endorse thereon a certificate containing the word "registered", together with the number and page of the book in which the document has been copied.
(2) Such certificate shall be signed, sealed and dated by the Registering Officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in Sec.59 have occurred as therein mentioned.
It is relevant to note the amendment carried out to Section 60 of the Registration Act by the Karnataka Government vide Act No.55/76. Section 10 of the amended Act relating to Section 60 of the original Act is as follows:
Karnataka.-(i) Amendments are the same as in kerala.
(ii) In sub-section (1) at the end the following shall be inserted, namely "or where the document is stored in an electronic or other device the certificate shall contain the word "Registered" with Document No., Year, Book No. and Date".10
12. The document will be deemed to be registered only when there is a certificate of registration and the word 'registered.' The number of the document, year, book number and date should also find place in the said document. Till the provisions of Section 60 are complied with, there will be no registration in the eye of law.
13. It is also useful to refer to Section 45-A of the Karnataka Stamp Act, 1957. In terms of sub-section (1) to Section 45-A of the Act, the registering officer is empowered to keep pending the process of registration of a document if he feels that the market value of the property which is the subject matter of the instrument, has not been truly set forth. He has to arrive at the estimated market value and communicate the same to the party. He has to keep the process of registration pending till a reference is made to the Deputy Commissioner for determination of the market value of 11 the property and proper duty payable thereon. Sub- section (2) of Section 45-A of the Act states about the procedure to be adopted by the Deputy Commissioner on receiving a reference from the registering officer under Section 45-A (1) of the Act.
14. As per the decision of RAYMOND LIMITED AND ANOTHER .v. STATE OF CHHATTISGARH AND OTHERS reported in [2007] 3 SCC 79. Section 32(2) of the Stamp Act, 1957, which is followed by the subsequently formed state of Chattisgarh carved out of Madhya Pradeshspeaks about the legal fiction created by the use of the word 'deemed.' The effect of the words found in Section 32(3) of the Stamp Act as amended by the State of Madhya Pradesh and followed by the subsequently formed state of Chattisgarh is relied upon.
15. Whether the facts of the present case are identical to the facts presented in the case of RAYMOND, will have to be looked into.
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16. As per the facts of the said case, M/s Raymond Limited had a cement business in Madhya Pradesh in 1982 and it had intended to sell the same in favour of M/s Lafarge (India) Limited on 'slump sale' basis. In this regard, an application had been filed by the appellant-Raymond for adjudication before the Collector in terms of Section 31 of the Stamp Act. The collector of the jurisdictional Janjgir District of the newly formed state of Chhattisgarh chose to form a valuation committee comprising of Sub-Divisional Officer (Revenue) as Chairman and the Valuation Committee assessed the value of the property in question at Rs.42,18,31,288/-. On the basis of the value assessed by the Committee, a sum of Rs.3,74,90,300/- was assessed as stamp duty and Rs.33,75,601/- as registration charges.
17. This order of the collector was accepted by the appellant and the amount of stamp duty and 13 registration charges as assessed were deposited. The endorsement on the deed of conveyance was made by the registering officer on 16.1.2001 by way of a certificate in terms of Section 32 of the Stamp Act whereupon the instrument was duly stamped. On 19.1.2001 a regular deed of conveyance was executed by Raymond Limited in favour of the purchaser which was registered on 21.1.2001.
18. It appears the State of Chhattisgarh had chosen to file a revision petition before the Board of Revenue seeking revision of the order dated 16.1.2001 passed by the collector. On receipt of the revision petition, the Board of Revenue served notice upon the appellant which filed objections with regard to the very jurisdiction of the Board to entertain the petition which petition was ultimately dismissed. The matter was taken up to the Hon'ble apex court wherein the Hon'ble apex court had an opportunity to deal exhaustively with 14 the scope of Sections 31, 32 and 56(4) of the Stamp Act as amended by the State of Madhya Pradesh from time to time.
19. What is ultimately held by the Hon'ble apex court is that 'Section 31 of the Stamp Act provides for the Collector to determine the duty with which the instrument would be chargeable, if an application in this behalf is made. The power to determine stamp duty chargeable for the instrument is contained in Section 31 and Section 32 merely provides for the consequences flowing from such determination. The Collector, in the event of fulfilling either of the conditions specified in clauses (a) and (b) of sub-section (1) of Section 32, is mandated to certify by endorsement on such instrument that the full duty which is chargeable, has been paid. Sub-section (3) of Section 32 of the Act raises a legal fiction. However the said legal fiction is confined only to the effect that an endorsement when made, the document shall be 15 receivable in evidence and may be acted upon and registered as if it had been originally duty stamped. The legal fiction created under sub-section (3) of Section 32 of the Act, therefore, does not state that the endorsement by way of a certificate would be final or binding on the parties.' This is the observation as found in paragraphs 13 to 15 of the decision.
20. The Hon'ble apex court has further held that 'sub- section (2) of Section 56 of the Act does not refer to Section 32, but the same, in its opinion, is not necessary. Sub-section (4) of Section 56 was inserted by way of a State amendment. The intention of the Legislature in inserting the said provision is clear and explicit as by reason thereof a power of revision has been conferred upon the highest authority of Revenue in the State, viz., Board of Revenue. The revisional power is to be exercised by the Board of Revenue either on its own motion or on an application by any party. The term 'any 16 party' used in the said provision is of some significance. By reason of the said provision, not only the State, but also the person who had filed an application under Section 31 of the Act, may file a revision application before the Board of Revenue. The term 'any party' therefore implies both the parties to the lis and not the party filing an application under Section 31 of the Act alone. The revisional power is to be exercised by the Board so as to enable it to satisfy itself in regard to the amount with which the instrument is chargeable with duty. The revisional proceeding has a direct nexus with determination of an instrument being charged with duty and not the endorsement made thereupon at a subsequent stage.'
21. Section 46 of the Karnataka Stamp Act, 1957, contemplates about the recovery of duties and penalties, and Section 46-A which has come into force with effect from 1.4.1972, speaks about the recovery of stamp duty 17 not levied or short levied. Section 45-B of the Act speaks about the constitution of central Valuation Committee by the State under the chairmanship of Inspector General of Registration. The decision of the Central Valuation Committee is final for the formulation of policy, methodology and administration of the market value guidelines in the State and may, for the said purpose, constitute market valuation sub-committees in each sub-district and district comprising of such members as may be prescribed, for estimation and revision of the market value guidelines in the State.
22. Section 45-A of the Act deals with the procedure to be adopted in regard to the under-valued instruments of conveyance. Sub-section (1) of Section 45-A enables the registering officer under the Registration Act, 1908, to impound the document presented for registration if he is of the opinion that valuation is not properly set forth. He can arrive at the estimated market value and 18 communicate the same to the parties and impound the document pending for registration and thereafter refer the matter along with a copy of such instrument to the Deputy Commissioner for determination of the market value of the property and proper duty. Sub-section (2) of Section 45-A speaks of the power of the Deputy Commissioner in terms of Section 45-A(1). Sub-section (3) of Section 45-A of the Act provides for the Deputy Commissioner to impound the document within two years from the date of registration if he is of the opinion that the market value of the property has not been properly set forth in the instrument.
23. On a combined reading of the above said provisions, it is evident that even if the registering officer has registered a document certifying it as written on the requisite stamp paper, the Deputy Commissioner has the power to impound such instrument if he is of the opinion that the market value shown in the 19 document does not truly depict the market value. Sub- section (1) of Section 46-A of the Karnataka Stamp Act also empowers the chief controlling revenue authority about issuing notice to the person who had presented the document for registration if he is of the opinion that the market value of the property is not properly set forth in the said document.
24. On going through the entire decision rendered in the case of RAYMOND LIMITED (supra), it is evident that even if a document is registered by the registering officer after collecting necessary stamp duty and registration fee, it is subject to the final decision that may be taken by the State under Section 56(2) of the Act on its own or any of the parties. The legal fiction sought to be drawn in respect of a document presented to the registering authority and the same being registered will not be final and any party can invoke Section 56(4) of the Act. Similar provision is found in 20 the present Karnataka Stamp Act in Sections 45-A and 46-A.
25. In the present case, the document is already impounded in the year 2006 by the registering authority and the matter has been referred to the Deputy Commissioner and no decision has yet been taken in this regard. The document so issued is not a certified copy of the sale deed presented for registration. On the other hand, it is a copy obtained under the provisions of the Right to Information Act and the same being produced and marked in another judicial proceedings. The copy now produced before this court is for the purpose of confronting it to PW-2 is a certified copy of the document produced in another judicial proceedings.
26. The process of registration is not yet complete. The process of registration gets completed only after the certificate is made under Section 60 of the Registration Act. Even when a document is registered in accordance 21 with law by the registering authority, the same is subject to the decision to be taken by the chief controlling authority under Section 46-A of the Karnataka Stamp Act, 1957, no legal fiction could be drawn in the present case. Hence the learned judge has rightly refused to admit the document in evidence. No fault could be found in regard to the procedure adopted by the trial court. The decision relied by the learned counsel for the petition is absolutely of no help to the petitioner. Accordingly point no.(1) is answered in the affirmative.
27. Point no.(2): The learned judge has come to the conclusion that the document dated 6.10.2006 cannot be looked into even for collateral purpose. Section 49 of the Registration Act mandates that the document which is compulsorily required to be registered is not admissible in evidence if the same is not registered. But the proviso to Section 49 provides for looking into the 22 said document for collateral purpose. A collateral transaction must be independent of or divisible from the transaction which requires registration. In the case of M/s K.B.SAHA AND SONS PRIVATE LIMITED .v. M/s DEVELOPMENT CONSULTANT LIMITED reported in 2008 AIR SCW 4829, the Hon'ble apex court has dealt with Section 49 of the Registration Act and the proviso appended to the same. The relevant discussion is found in paragraph 21 and the same is extracted below:
21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that;-
1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.23
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc, any right, title or interest in immoveable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
28. In the instant case, the petitioner herein has relied on the copy of the sale deed dated 6.10.2006 to contend that he is in physical possession and enjoyment of the property which is a converted land bearing No.50/2 of Hoody village, K.R.Puram, measuring 1.31 acres. According to the decree holder, the schedule property is part and parcel of Survey No.50/2. In the application under Order XXI Rules 99 and 100, C.P.C. before the executing court by this petitioner, a specific reference is made in paragraph 6. As could be seen from the contents of the said 24 application filed by the objector, reliance is placed on the said document for his lawful possession which includes title. Unless the document in question is registered in accordance with law and as discussed in the earlier paragraphs of this order, the present document is not admissible in evidence even for collateral purpose.
29. Though the learned judge of the trial court has not made a specific discussion as to how the said document is not admissible in evidence even for collateral purpose, this court on perusing the application and the document in question, is of the opinion that the said document cannot be looked into even for collateral purpose. Accordingly point no.2 is answered in the negative.
30. Viewed from any angle, the order passed by the learned judge is a detailed order adverting to the various contentions raised by the learned counsel appearing 25 before the executing court. No good grounds are made out to invoke the supervisory jurisdiction vested under Article 227 of the Constitution of India to interfere with the well considered order passed by the trial court. Accordingly the petition is liable to be dismissed.
31. In the result, the following order is passed:
ORDER The petition is dismissed. Parties to bear their own costs.
Sd/-
JUDGE vgh*