IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.27470 OF 2017 (GM - CPC) C/W WRIT PETITION NO.27469 OF 2017 IN W.P. NO.27470/2017 BETWEEN:
SMT NAFEESATH K K., W/O P M ABDUL BASHEER, MUSLIM, AGED ABOUT 39 YEARS, R/AT FANTASY RESIDENCY, K.R.R. RAO ROAD, KARANGALPADY, MANGALORE. ... PETITIONER (BY SRI.ANANDARAMA K., ADVOCATE) AND:
1. SRI. B JAYARAMA SHETTY, S/O LATE KORAGA SHETTY, AGED ABOUT 65 YEARS, R/AT PADUMATA, POST:KULAI, HOSABETTU VILLAGE, MANGALORE TALUK.
2. SMT. GULABI SHETTY, D/O LATE JARAPPA SHETTY, MAJOR, 3. SMT. SAROJINI M SHETTY, D/O LATE JARAPPA SHETTY, MAJOR, 4. SMT. YASHODA D SHETTY, D/O LATE JARAPPA SHETTY, MAJOR, 5. SMT. MEENAKSHI K BHANDARY, D/O LATE JARAPPA SHETTY, MAJOR, RESPONDENTS NO. 2 TO 5 ARE R/AT KULAI, KUDUKEROTTU HOUSE, HOSABETTU, MANGALORE.
6. SMT RATHNA, W/O LATE CHANDAYYA J SHETTY, AGED ABOUT 58 YEARS, 7. SMT SUNEETHA, D/O LATE CHANDAYYA J SHETTY AGED ABOUT 27 YEARS, 8. MS. MAMATHA, D/O LATE CHANDAYYA J SHETTY, AGED ABOUT 27 YEARS, 9. SRI. GIRISHA, S/O LATE CHANDAYYA J SHETTY, AGED ABOUT 25 YEARS, RESPONDENTS 6 TO 9 ARE R/AT KUDUKEROTTU HOUSE, KULAI, HOSABETTU POST, MANGALORE.
10. SMT YOGINI, D/O LATE JARAPPA SHETTY, MAJOR.
11. SRI. SHANKER J SHETTY, S/O LATE JARAPPA SHETTY, MAJOR RESPONDENTS NO.10 & 11 ARE R/AT KULAI, HOSABETTU POST, MANGALORE.
... RESPONDENTS (BY SRI.M.VISHWAJITH RAI, ADVOCATE FOR R1; NOTICE TO R6 TO R10 IS DISPENSED WITH VIDE ORDER DATED 06.02.2018;
R2, R3, R4, R5 AND R11 ARE SERVED AND UNREPREESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18.02.2017 AT ANNEXURE - G PASSED BY II ADDL. CIVIL JUDGE AND JMFC, MANGALURU, D.K., ON I.A.11 IN O.S.420/2009 AND CONSEQUENTLY, ALLOW I.A.NO.11 FILED BY THE PETITIONER/DEFENDANT NO.8 AND ETC., IN W.P. NO.27469/2017 BETWEEN:
MR. SYED ALAVI, S/O ASSAMUTI, AGED ABOUT 63 YEARS, R/AT FLAT NO.201, SKYLARK APARTMENTS, NEAR JYOTI CIRCLE, BALMATTA, MANGALORE – 575 002, D.K. DISTRICT.
(BY SRI.ANANDARAMA K., ADVOCATE) AND:
1. SRI. B JAYARAMA SHETTY, S/O LATE KORAGA SHETTY, AGED ABOUT 65 YEARS, R/AT PADUMATA, POST:KULAI, HOSABETTU VILLAGE, MANGALORE TALUK – 575 019.
2. SMT. JAYALAKSHMI SHETTY, W/O SRI JAGANNATHA SHETTY, MAJOR, D/O LATE SUSHEELA SHETTY, R/AT SAMPYA MOLE HOUSE, KURIYA VILLAGE, AMMUNJE ROAD, NEAR N.R.C., ARAYPU POST, PUTTUR, D.K. DISTRICT – 574 210.
3. P. M. ABDUL BASHER, S/O ABDUL AZEEZ, AGED ABOUT 46 YEARS, …PETITIONER R/AT FANTACY RESIDENCY, KRR RAO ROAD, KARANGALPADY, MANGALORE – 575 004.
4. MR. HAZI K K ABDULLA, S/O LATE MR.AHAMED HAZI, AGED ABOUT 70 YEARS, R/AT MUBARAK MAHAL, UDMA WEST, KASARGOD DISTRICT – 671 318, KERALA.
5. MR. T. ABOOBACKER, S/O LATE MUMAMMUNHI, AGED ABOUT 56 YEARS, R/AT THAHA MANZIL, MANIKOTH POST, KASARGOD DISTRICT – 671 316. KERALA.
6. N YATHIRAJ SHETTY, S/O B RAGHURAMA SHETTY, MAJOR, R/AT NAGI TOWERS, OPPOSITE CIRCUIT HOUSE, KADRI, MANGALORE – 575 003.
…RESPONDENTS (BY SRI.M.VISHWAJITH RAI, ADVOCATE FOR R1; NOTICE TO R3 AND R5 IS DISPENSED WITH VIDE ORDER DATED 12.04.2018;
R2, R4 AND R6 ARE SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18.02.2017 [ANNEXURE – G] PASSED BY II ADDL. CIVIL JUDGE AND JMFC, MANGALURU, D.K., ON I.A.NO.10 IN O.S.774/2008 AND CONSEQUENTLY, ALLOW I.A.NO.10 FILED BY THE PETITIONER/DEFENDANT NO.5 AND ETC., THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the 8th defendant in an injunctive suit in O.S.No.420/2009 is invoking the writ jurisdiction of this Court for assailing the order dated 18.02.2017, a copy whereof is at Annexure-G, whereby the learned II Additional Civil Judge, Mangalore, D.K. having rejected his application in I.A.No.11 filed under Sections 33 & 34 of the Karnataka Stamp Act, 1957, has refused to impound the subject instrument dated 08.10.1994 allegedly despite for want of proper duty.
2. After service of notice respondent No.1-plaintiff having entered appearance through his counsel resists the writ petition; and other respondents despite service of notice have chosen to remain unrepresented.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of a considered opinion that the impugned order is unassailable for the following reasons:
(a) the subject document dated 08.10.1994, a copy whereof is at Annexure-D is in mufuzil kannada language; it is nomenclatured as “s¹ÜgÁ¹ÛAiÀÄ «PÀæAiÀÄ JVæªÉÄAmï”; although the nomenclature of a document is not decisive, the text of several paragraphs therein shows that it is only an agreement to sell the immovable property concerned as contradistinguished from an accomplished sale as defined u/s. 54 of the Transfer of Property Act, 1882; the court below has accordingly construed the same and this Court exercising limited supervisory jurisdiction vested under Article 227 of the Constitution of India cannot run a race of opinions with that of the Court below;
(b) admittedly the documents is dated 08.10.1994 and the article 5(e) to came to be loaded to the schedule of the Act with effect from 01.04.1995 i.e., much after the transaction was enforced into; this Court has consistently construed these articles in the Schedule as being prospective in operation; therefore, though there is a clause mentioning delivery of possession in the said instrument, the duty contemplated under the subject article is not leviable;
(c) the reliance of the petitioner on the Full Bench decision of this Court in STATE GOVERNMENT vs. M.L.MANJUNATHA SHETTY, AIR 1972, MYSORE 263, does not come to their aid since broad parameters are laid down in the said decision for construing the documents which even if applied to the instant instrument, no other conclusion can be arrived at in variance with that of the Court below; and, (d) the contention that the value of the agreement being more than Rs.100/- the objection as to the admissibility of the said document should be kept open for being considered by the Court below does not merit acceptance inasmuch as under section 54 of the Transfer of Property Act, 1882, an agreement per se does not create any interest in the property; thus the issue as to admissibility pales into insignificance, because of the above finding.
In the above circumstances, this writ petition being devoid of merits is dismissed.
ORDER IN W.P.No.27469/2017 Petitioner being the fifth defendant in an injunctive suit in O.S.No.774/2008 is invoking the writ jurisdiction of this court for assailing the order dated 18.02.2017, a copy whereof is at Annexure-G whereby, the learned II Additional Civil Judge, Mangalore, D.K., having rejected petitioner’s application in I.A.No.10 filed under Sections 33 & 34 of the Karnataka Stamp Act, 1958, has refused to impound the subject documents.
2. After service of notice, first respondent-plaintiff having entered appearance through his counsel resists the writ petition, and other respondents having chosen to remain unrepresented, despite service of notice.
3. Having heard the learned counsel for the parties and having perused the petition papers, the document dated 29.11.1994, a copy whereof is at Annexure-D is rightly held to be only an agreement to sell as contradistinguished from an accomplished sale as defined under Section 54 of the Transfer of Property Act, 1882 and therefore, this instrument cannot be construed as a sale deed at all; this Court is in full agreement with the lower Court’s reasons assigned in the impugned order. Article 5(e) of the Act is not attracted since it is loaded to the statute book. Therefore, the question of impounding this instrument does not arise.
4. The other document at Annexure-E dated 08.05.1999, though is an agreement to sell, the possession vide paragraph 2 thereof having been delivered to the respondent-plaintiff, the same attracts the levy of duty on par with accomplished sale transaction as if it is a sale deed in view of article 5(e) in the schedule to the Act; therefore this instrument is liable to be impounded in terms of Section 33 and that duty plus ten times penalty as provided under Section 34 need to be levied.
In the above circumstances, this writ petition partly succeeds; the impugned order so far it relates to the agreement to sell dated 29.11.1994 is unassailable; however, the impugned order so far it relates to the agreement dated 08.05.1999, is set aside and the learned trial Judge is directed to impound the subject document and take steps for recovery of the deficit stamp duty along with penalty as prescribed under Section 34 of the Act.
It is needless to mention that if the deficit duty and the penalty are paid this document becomes admissible in evidence.
Accordingly both the petitions are disposed off. No costs.
Sd/- JUDGE DS