IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 8198 OF 2017 (GM-CPC) & WRIT PETITION NOS. 8361-62 OF 2017 (GM-CPC) BETWEEN:
SRI. BALAKRISHNA ALVA AGED ABOUT 59 YEARS, S/O. THYAMPANNA ALVA, R/AT NELLIDADI GUTHU, BAJPE, MANGALORE - 574142, DAKSHINA KANNADA DIST ... PETITIONER (BY SRI S RAJASHEKAR, ADVOCATE) AND 1. PRABHAKAR SHETTY AGED ABOUT 58 YEARS, S/O THIMMAYA SHETTY, SORAPARA MANE, SURATKAL, MANGALORE 575014 2. RAMANI SHETTY AGED ABOUT 60 YEARS, W/O. SHEKARA SHETTY, KALLAMUNDKOOR MEGINA MANE, BANNANGUDI POST, MANGALORE 574227 3. SHAKUNTHALA SHETTY (SABITHA) AGED ABOUT 55 YEARS, W/O. LATE. SADASHIVA SHETTY, DODDAGUTHU HOUSE, IRVALI POST AND VILLAGE, VLIA MOODUBIDRI 574144, MANGALORE D K DIST 4. SUMATHI SHETTY AGED ABOUT 53 YEARS, W/O. SAMPU SHETTY, HORAMANE MADHUR VILLAGE, BAJAGOLI, KARKALA, UDUPI DIST 574122 5. SUNDARA SHETTY AGED ABOUT 56 YEARS, S/O. LATE. THIMMAYYA SHETTY, SORAPARA MANE, SURATKAL, MANGALORE 575014 6. NALINI ALVA AGED ABOUT 60 YEARS, W/O. RAMESH ALVA, R/AT NELLIDABI GUTHU, BAJPE, MANGALORE D.K. DISTRICT 574142 7. SATHISH ALVA AGED ABOUT 58 YEARS, S/O. THYANPANNA ALVA 8. BHASKAR ALVA AGED ABOUT 56 YEARS, S/O. THYANPANNA ALVA 9. SATHISH ALVA AGED ABOUT 58 YEARS, S/O. THYANPANNA ALVA 10. MOHINI ALVA AGED ABOUT 45 YEARS, W/O. D RATHNAKAR ALVA 11. JITENDRA ALVA AGED ABOUT 27 YEARS, S/O. D RATHNAKAR ALVA 12. REKHA ALVA AGED ABOUT 25 YEARS, D/O. D RATHNAKAR ALVA 13. HIMAKAR ALVA AGED ABOUT 23 YEARS, S/O. D RATHNAKAR ALVA 14. DEVI PRASAD LAVA AGED ABOUT 15 YEARS, (MINOR) S/O. D RATHNAKAR ALVA SINCE MINOR REPRESENTED BY HER MOTHER - NATURAL GUARDIAN RESPONDESNT NO. RAT NELLIDABI GUTHU, BAJPE, MANGALORE D.K. DISTRICT 574142 RESPONDENT NOS. 6 TO 14 ARE ALL RESIDEING AT NELLIDADI GUTHU BAJPE, MANGALORE D.K.DISTRICT – 574 142 15. DISTRICT REGISTRAR DEPT. OF REGISTESRATION AND STAMP, OFFICE OF THE DISTRICT REGISTRAR, D.C. OFFICE, PREMISES, MANGALORE TALUK, D.K. DIST 575001 ... RESPONDENTS (R1 TO 5, R7, 10, 12, 13 & 14 ARE SERVED & UNREPRESENTED, NOTICE TO R3, 6, 8, 9 & 11 ARE HELD SUFFICIENT V.C.O DATED 24.04.2017) THESE WRIT PETITIONS ARE UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.27.9.2014 PASSED ON THE MEMO FILED BY DEFENDANT NO.1 IN O.S.NO.525/2013 BY THE V ADDL. CIVIL JUDGE AND JMFC, D.K. MANGALORE VIDE ANNEX-A. QUASH THE ORDER DTD.1.6.2016 PASSED BY THE DISTRICT REGISTRAR, MANGALORE IN CASE NO. COURT IMPOUND 19/2014-15 VIDE ANNEX-B. QUASH THE ORDER DTD.16.7.2016 PASSED IN O.S.NO.525/2013 BY THE V ADDL. CIVIL JUDGE AND JMFC, D.K. MANGALORE VIDE ANNEX-C.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the plaintiff in a partition suit in O.S.No.725/2015 is before this Court grieving against the order dated 27.09.2014 a copy whereof is at Annexure-A whereby the learned V Additional Civil Judge, Mangaluru, having impounded the subject document has directed the District Registrar to examine the same for the purpose of recovering the deficit stamp duty and the penalty payable thereon. The respondents having been served with notice, have chosen to remain unrepresented before this Court.
2. Having heard the learned counsel for the petitioner and having perused the writ petition papers, the impugned order cannot be sustained for the following reasons:
a) the subject document/instrument dated 05.12.1977 has been wrongly construed by the Court below as and to be a agreement to sell the property coupled with delivery of possession when the text and context of the same shows that it is only a memorandum of family arrangement which incorporates a particular arrangement between the parties for execution of conveyance after the expiry of non-alienation period;
b) the learned trial judge is swayed away by certain words in the subject instrument namely “AGREEMENTU YAANE TAHANAAME” etc; the renouned Kannada Lexicographer Rev. F. Kittel in his Kannada – English Dictionary, 1894 Edition, at Page No.702, published by J. Jetley for Asian Educational Services, New Delhi, states that “TAHANAAME” means “A Written Treaty”, and “TAHA” means “Peace or Agreement of opinion”; that being so, the said instrument could not have been construed as an agreement to sell coupled with delivery of possession that would attract levy of stamp duty on par with a sale deed under Article 20 of Schedule to the Karnataka Stamp Act, 1957; and c) it is a settled principle of interpretation of the documents that a document has to be construed with commonsense not giving undue importance to the vocabulary but to the intent as emerging from its text; thus, the subject document is not an instrument, which attracts levy of stamp duty and consequently the levy of any penalty at all.
In the above circumstances, these writ petitions succeed and the impugned order is set at naught.
All other contentions of the parties are kept open.
No costs.
Sd/- JUDGE Bsv