IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.26680 OF 2017 (GM-CPC) BETWEEN:
1. A.M.MUTHAPPA, AGED ABOUT 64 YEARS, S/O LATE MUDDAPPA, R/AT HONNAGUNDI, DEVANOOR VILLAGE, BALELE POST SOUTH KODAGU-571 219.
2 . A.C. ASHA, AGED ABOUT 55 YEARS, W/O LATE CHANGAPPA HONNAGUNDI, DEVANOOR VILLAGE, BALELE, VIRAJPET TALUK-571 219.
... PETITIONERS (BY SRI. PRABHUGOUD B.TUMBIGI, ADVOCATE FOR SRI. MANJUNATH G.S., ADVOCATE) AND:
1. A.D.PONNAPPA, SINCE DEAD BY HIS LR’S 1(a) SMT. A.P.PARVATHY AGED ABOUT 97 YEARS, W/O A.D.PONNAPPA, R/AT HONNAGUNDI DEVANOOR VILLAGE BALELE POST, SOUTH KODAGU-571 219.
1(b) . A.P.DHANIKA AGED ABOUT 66 YEARS, S/O A.D.PONNAPPA, R/AT HONNAGUNDI DEVANOOR VILLAGE BALELE POST, SOUTH KODAGU-571 219.
1(c). A.P.ASHOKA AGED ABOUT 64 YEARS, S/O A.D.PONNAPPA, R/AT B.H.E.L.(I.S.G.) PROF C.N.R.RAO CIRCLE OPP. I.I.S. MALLESHWARAM, BANGALORE-560 003.
2. A.M.DEVAIAH AGED ABOUT 70 YEARS, 3.. A.M.POONACHA, AGED ABOUT 68 YEARS, 4. A.M.KARUMBAIAH @ JOLLY AGED ABOUT 66 YEARS, S/O LATE MACHAIAH RESPONDENT NO.2 TO 4 ARE SON OF LATE MACHAIAH RESIDING AT DEVANOOR VILLAGE, BALELE POST, SOUTH KODAGU571 219.
5. MRS. AMMAVVA @ MINI AGED ABOUT 90 YEARS, W/O MANDEPANDAMADAPPA, D/O LATE MACHAIAH, RETIRED TEACHER PREMA VILLA, AMMATHI TOWN, VIRAJPET TALUK-571 219.
6. MRS.RANI AGED ABOUT 80 YEARS, W/O KECHETTIRAMADAPPA, D/O LATE MACHAIAH, VISHNU MAYA ESTATE CHETTALI, N.KODAGU-571 219.
7. A.M.THIMMAIAH AGED ABOUT 65 YEARS, S/O LATE MUDDAPPA, AMMATHI, VONTIANGADI YEDOOR HACHINAD, VIRAJPET TALUK-571 219.
8. SMT. LATHA AGED ABOUT 67 YEARS, W/O BOPPANDA GANAPATHY, D/O LATE MUDAPPA, AMMATHI, VONTIANGADI, YEDOOR HACHINAD, VIRAJPET TALUK-571 218.
9. SMT. RATHI AGED ABOUT 78 YEARS, W/O AMMAMICHANDAKAVERAPPA, D/O LATE MUDDAPPA, K.BOIKERI VILLAGE AND POST, VIRAJPET TALUK-571 218.
10 . KUMARI.DECHAMMA @ VARSHA AGED ABOUT 31 YEARS, D/O LATE CHENGAPPA, RESIDING AT HONNAGUNDI, DEVANOOR VILLAGE, BALELE POST, SOUTH KODAGU-571 218.
11. KUM.A.C.THANGAMMA @ MANISHA, AGED ABOUT 29 YEARS, R/AT HONNAGUNDI, DEVANOOR VILLAGE, BALELE POST, SOUTH KODAGU-571 218 12. A.B.GANAPATHY AGED ABOUT 61 YEARS, S/O LATE BHEEMAIAH DEVANOOR VILLAGE, BALELE VIRAJPET-571 218.
13. A.B.AIYANNA AGED ABOUT 55 YEARS, S/O LATE BHEEMAIAH DEVANOOR VILLAGE, BALELE VIRAJPET-571 218.
14 . SMT.A.B.CHONDAMMA AGED ABOUT 95 YEARS, W/O LATE BHEEMAIAH, C/O A.B.GANAPATHY, MIG, 21, 10TH CROSS, 6TH MAIN, SHARADADEVINAGAR, MYSORE-570 023.
15. THATHANANDA APPANNA @ TATA AGED ABOUT 75 YEARS, S/O LATE ACHAPPA AND LATE MACHAVVA, CHEMBEBELLORE VILLAGE, VIRAJPET TALUK-571 218.
16. MRS. RANI @ PARVATHY AGED ABOUT 73 YEARS, W/O BONDIRA GANAPATHY, D/O LATE MACHAVVA POOJAGRAHA, 10/21 CHRIST SCHOOL ROAD, BAVANINAGAR, BANGALORE-21 17. SMT. KANTHI AGED ABOUT 75 YEARS, NANDINERAVANDA, MANDANNA, D/O LATE BOJAMMA GONIKOPPAL, VIRAJPET TALUK-571 218.
18. MALETIRA NEELAMMA AGED ABOUT 80 YEARS, D/O LATE THANGAMMA, APPAIAH SWAMY ROAD, VIRAJPET-571 218.
19. SMT. KODENDERA THARA AGED ABOUT 78 YEARS, D/O LATE THANGAVVA KUNDA VILLAGE AND POST, VIRAJPET TALUK-571 218.
20. SMT. MALLENGADA YASHODA AGED ABOUT 76 YEARS, W/O M.K.POOVAIAH, D/O LATE THANGAMMA, RETIRED TEACHER, MUTHAMMA LAYOUT, GONIKOPPAL, VIRAJPET TALUK-571 218.
21. SMT. MOOKALERAJOYCY AGED ABOUT 69 YEARS, D/O LATE THANGAMMA, HALLIGATTU VILLAGE, PONNAMPET, VIRAJPET TALUK-571 218.
22. MURUVANDA PRAKASH AGED ABOUT 74 YEARS, S/O LATE MEDAPPA S/O LATE THANGAMMA, KOLATHODU BYGODU VILLAGE, HATHUR, VIRAJPET TALUK-571 218.
23. ADENGADA U TULSIKUMARI AGED ABOUT 47 YEARS, S/O LATE UTHAIAH RESIDING AT DEVANOOR VILLAGE, BALELE POST, SOUTH KODAGU-571 218.
... RESPONDENTS (BY SRI. DINESH S.KADLAS, ADVOCATE FOR R-23; NOTICE TO R-1 TO R-22 IS D/W V/O DTD:14/08/2017) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD:31.3.2017 PASSED BY THE SENIOR CIVIL JUDGE, VIRAJPET, IN O.S.NO.80/2007 PRODUCED VIDE AT ANNEXURE-C AND DIRECT THE HON’BLE TRIAL COURT TO CONSIDER THE PARTITION MEMORANDUM DTD: 27.09.1959 IN THE EVIDENCE AS ADMISSIBLE DOCUMENT AND ANY OTHER APPROPRIATE ORDER OR DIRECTION; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the defendants in a partition suit in O.S.No.80/2007 are invoking the writ jurisdiction of this court for assailing the order dated 31.03.2017, a copy whereof is at Annexure-C, whereby, the learned trial Judge has held the subject unregistered partition memorandum dated 27.09.1959 has inadmissible in evidence for want of registration & stamp duty. After service of notice, the respondents having entered appearance through their counsel oppose the Writ Petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, relief needs to be granted to the petitioners for the following reasons:
a) the text of the subject document a copy whereof is at Annexure-B, apparently shows that the transaction of partition having already been accomplished with the intervention of panchas, the same is later placed on record and therefore, the division of shares having already taken effect, and not by the said document, the same does not require registration under Section 17(1) of the Registration Act, 1908.
b) the subject document having been wrongly construed as a partition deed as contradistinguished from a mere Memorandum of partition, the impugned order has an error apparent on the face to the record since the said document is per se is not constitutive or declaratory of interest in the property but is only evidentiary of the same; and, c) the impugned order is infected with another error of same magnitude inasmuch as the memorandum of partition is equated to the instrument as defined under Section 2(J) of the Karnataka Stamp Act, 1957 which is incorrect; the memoranda of partition or the like do not answer the definition of instrument and therefore, are not amenable to the requirement of chapter IV of the said Act.
In the above circumstances, this writ petition succeeds; impugned order is set at naught; the subject document can be admitted to evidence if it is otherwise relevant and admissible.
All other contentions of the parties is kept open. No Costs.
Sd/- JUDGE DS