IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.39563 OF 2014 (GM-CPC) BETWEEN:
1. SMT. M. BHAGYAMMA W/O RAMAKRISHNAPPA AGED ABOUT 57 YEARS 2. R NAGARAJ S/O RAMAKRISHNAPPA AGED ABOUT 38 YEARS BOTH ARE R/AT VISHWANATHANAGENAHALLI R.T.NAGAR POST BANGALORE-32 (BY SRI. HARISH H.V, ADV.,) AND M. YALE GOWDA S/O LATE D. MULIYAPPA AGED ABOUT 50 YEARS R/AT VISHWANATHANAGENAHALLI R.T.NAGAR POST BANGALORE-32 (BY SRI. C.M.DESAI AND SRI. ARVIND C. DESAI, ADV.,) … PETITIONERS … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DTD.4.6.2014 PASSED BY THE XXII ADDL. CITY CIVIL AND SESSIONS JUDGE AT BANGALORE, IN O.S.NO.5396/2010 VIDE ANNEX-A.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners being the defendants in respondent’s suit for partition & separate possession of the subject property in O.S.No.5396/2010 are invoking the writ jurisdiction of this Court for assailing the order dated 04.06.2014, a copy whereof is at Annexure-A, whereby the learned 22nd Additional City Civil Judge, Bengaluru having held the Adoption Deed and the Partition Deed to be admissible for collateral purpose has permitted the respondent – plaintiff to pay the deficit stamp duty on the subject partition deed. After service of notice, the respondents having entered appearance through their counsel who oppose the writ petition.
2. Learned counsel for the petitioners drawing the attention of the Court to the text of Section 49 of the Indian Registration Act, 1908 argues that the Adoption Deed recites as to creation & extension of interest in the immovable properties of the respective families and therefore the said documents being compulsorily registrable under Section 17(1) but having not been registered, could not have been admitted to evidence regarding the bar contained under Section 49(3) of the Act; this having not been adverted to by the Court below, the said document could not have been permitted to be pressed into evidence for collateral purpose without satisfying what that collateral purpose, is. So arguing, he seeks allowing of the writ petition.
3. Learned counsel for the respondent – plaintiff contends that the order of the Court below cannot be faltered; no fault is committed by the Court below in asking the plaintiff to pay the deficit stamp duty & the penalty as prescribed under Chapter IV of the Karnataka Stamp Act, 1959 inasmuch as, Section 33 imposes such an obligation on the Court to recover the same; once the document suffers payment of stamp duty coupled with penalty, the absolute bar against admission to evidence withers away; the said document although cannot be admitted in evidence to prove the transaction comprised therein, it is permissible to press the said document in evidence for collateral purposes and therefore, the writ petition being devoid of merits, is liable to be dismissed.
4. I have heard the learned counsel for the petitioners and the learned counsel for the respondent. I have perused the writ petition papers. I have adverted to the decision cited at the Bar.
5. The *Adoption Deed a copy whereof is at *Annexure-D to the writ petition in so many words speaks of not only creation of interest in the immovable property of the adoptive family but extinction of adopted son’s interest in the givers family; such a document is compulsorily registrable under the provisions of Section 17(1) of the Registration Act, 1908; the said document having not been so registered, the Court below is not correct in holding to the contrary and thus concluding that the same is admissible in evidence.
6. Admissibility of a compulsorily registrable document which is not so registered in evidence under Section 49(3) of the Registration Act is restrictive and conditional whereas, the admissibility of the same for non- payment of deficit stamp duty is absolute. Merely because, the deficit stamp duty and the penalty are paid on an instrument, that per se does not make it admissible in evidence in view of the bar enacted in Section 49(3) of the *Corrected Vide Court Order Dated 02.08.2019.
Indian Registration Act, for purposes other than collateral. The Stamp Act speaks of instrument whereas the Registration Act speaks of the document, the little difference between these two having been lost sight of, the impugned order to that extent is vulnerable.
7. The Partition Deed a copy whereof is at Annexure-E by its text & context is not a memorandum of partition inasmuch as, the partition has been effected by the said instrument itself; such an instrument being compulsorily registrable under Section 17(1) of the Registration Act cannot be pressed into evidence except for collateral purpose as rightly held by the Court below. But the error apparent on the impugned order lies in not specifying what that collateral purpose is.
In the above circumstances, this writ petition succeeds; the impugned order holding the document admissible otherwise than for collateral purpose is bad; further, in the absence of specification of what the collateral purpose is, these documents shall not be admitted to evidence till after the said purpose is specified.
However, the levy of deficit stamp duty and recovery of penalty under Chapter IV of the Karnataka Stamp Act, 1957 pursuant to impugned order is left intact.
No costs.
Sd/- JUDGE Bsv