IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 2ND DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.391/2019 (GM-CPC) BETWEEN:
SMT NANJAMANI, W/O LATE MADAPPA, AGED ABOUT 58 YEARS, R/AT DEVALAPURA VILLAGE, VARUNA HOBLI, MYSURU TALUK, MYSURU-571 203.
… PETITIONER (BY SRI. SANGAMESH R.B., ADVOCATE) AND 1. SIDDAPPA S/O NOT KNOWN TO THE PETITIONER, AGED ABOUT 48 YEARS, R/AT DEVALAPURA VILLAGE, VARNA HOBLI, MYSURU TALUK, MYSURU DISTRICT-571 203.
2. SMT. MAHADEVAMMA, W/O SURESH, D/O LATE MADAPPA, AGED ABOUT 34 YEARS, R/AT VARUNA VILLAGE, MSYURU DISTRICT-571 203.
3. SMT. SAVITA, W/O PRAKASH, D/O LATE MADAPPA, AGED ABOUT 31 YEARS, HUSKUR VILLAGE, NANJANAGUD TALUK-571 203.
4. MANJU, S/O LATE MADAPPA, AGED ABOUT 29 YEARS, 5. UMESHA, S/O LATE MADAPPA, AGED ABOUT 29 YEARS, NO.4 & 5, RESIDING AT DEVALAPURA VILLAGE, VARUNA HOBLI, MYSURU TALUK, MYSURU-571 203.
(R1 TO R5 SERVED) … RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 30.11.2018 PASSED IN O.S.NO.103/2015 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE & JMFC, MYSURU REGARDING THE ADMISSIBILITY OF THE DOCUMENT DATED 3.1.96 (PANCHAYAT PALU PARIKATH) (ANNEXURE-A) THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioner being the plaintiff in Civil Suit in O.S.No.103/2015 is knocking at the doors of the Writ Court for assailing the order dated 30.11.2018, a copy whereof is at Annexure-A, whereby the learned II Additional Civil Judge (Senior Dvn.), Mysuru, has held that the subject document not being compulsory registrable is admissible only for collateral purpose; despite service of notice, the respondents have chosen to remain unrepresented.
2. The learned counsel for the petitioner banking upon the decision of Apex Court in the case of SITA RAM BHAMA VS. RAMVATAR BHAMA, AIR 2018 SC 3057 argues that the subject document being compulsorily registerable under Section 17(1) of the Indian Registration Act, 1908, cannot be used even for collateral purpose in view of the interdiction enacted in Section 49 thereof. He further submits the said document is an instrument attracting the stamp duty; the duty having not been paid, it cannot be looked into for any purpose including collateral purpose. So arguing, he seeks allowing of the Writ Petition.
3. Having heard the learned counsel for the petitioner and having perused the Petition Papers, this Court declines to grant indulgence in the matter because of the finding of the Court below as to the subject document being a Memorandum of Partition as contra- distinguished from Partition Deed, cannot be faltered in arriving at such finding; the Court below has adverted to the text of the said document at para 7 of the impugned order;
b. nothing is shown as to how this document has to be construed as effecting the partition by itself and therefore, Section 17(1) of the Registration Act, 1908 is attracted; even otherwise also, document which is compulsorily registrable under Section 17(1) can be pressed into evidence for collateral purpose as provided under clause 3 of Section 49 of the said Act and that is how the reasoning of the Court below has been and therefore, it cannot be faltered;
c. no specific provisions of Karnataka Stamp Act, 1958 or any Article in the schedule thereto is brought to the notice of Court which states that even the Memorandum of Partition requires payment & stamp duty; even the records of the petition do not disclose the same point was urged in the Court below; therefore, such a contention cannot be urged before this Court for the first time; and d) the reliance placed upon the decision of the Apex Court supra does not come to the aid of the petitioner inasmuch as in the said case, the document in question itself had created the interest and such document was held to be compulsorily registrable which is not the case here; thus, the said document was held to be inadmissible in evidence even for collateral purpose because the law relating the stamp duty in the State of Rajasthan from which the said case arose, required payment of said duty; the facts of this writ petition are miles away from the said decision.
In the above circumstances, the Writ Petition being devoid of merits, stands dismissed.
However, it is open to the petitioner to take up all contentions as to otherwise admissibility of the said document.
Costs made easy.
Sd/- JUDGE DS