IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE B.VEERAPPA WRIT PETITION No.12819 OF 2019 (GM-CPC) BETWEEN :
1. SRI G N VEERABHADRAPPA S/O LATE G G NEELAKANTAPPA AGED ABOUT 72 YEARS, R/O NO.2043, SHREE CHANNAVEERESHWARA KRUPA 3RD A MAIN ROAD, S S LAYOUT B BLOCK BEHIND INDOOR STADIUM DAVANAGERE-577004 2. SRI CHANBDRASHEKAR G G S/O LATE G N GURUSHANTHAPPA AGED ABOUT 34 YEARS, R/O NO.2991, 7TH MAIN, M C C BLOCK DAVANAGERE-577004 3. SRI G N CHANNAVEERAPPA S/O LATE G NEELAKANTAPPA AGED ABOUT 62 YEARS, R/O NO.2991, 7TH MAIN, M C C BLOCK DAVANAGERE-577004 4. SRI G N MANJUNATHAPPA S/O LATE G NEELAKANTAPPA AGED ABOUT 59 YEARS, R/O NO.2991, 7TH MAIN, M C C BLOCK DAVANAGERE-577004 5. SRI G N SOMASHEKARAPPA S/O LATE G NEELAKANTAPPA AGED ABOUT 71 YEARS, R/O NO.417, SHANTHI NILAYA 13TH CROSS, 2ND MAIN ROAD S NIJALINGAPPA LAYOUT DAVANAGERE-577044 6. SRI G N SHAMBHULINGAPPA S/O LATE G NEELAKANTAPPA AGED ABOUT 55 YEARS, R/O NO.4101-5, 14TH CROSS, 8TH MAIN, SIDDAVEERAPPA BADAVANE, SHYAMANUR DAVANAGERE-577004 7. SRI G N NAGARAJ S/O LATE G NEELAKANTAPPA AGED ABOUT 51 YEARS, R/O NO.2043/7, 3RD MAIN, 1ST CROSS, S S LAYOUT B BLOCK DAVANAGER-577004 8. SMT B K SHANTHAMMA @ GOWRAMMA W/O KOTARABASAPPA D/O LATE G NEELAKANTAPPA AGED ABOUT 67 YEARS, R/AT NO.27, SRI CHAKRA 2ND CROSS, PARADISE COLONY 7TH PHASE J P NAGAR PUTTENAHALLI BANGALORE-560078 9. SMT ANASUYA W/O LATE NAGABHUSHAN D/O LATE G NEELAKANTAPPA AGED ABOUT 58 YEARS, R/O NO.2043/7, 3RD MAIN, 1ST CROSS, S S LAYOUT, B BLOCK DAVANAGERE-577004 10. SMT SHEEVALEELA W/O MURAGESH HOLUR D/O LATE G NEELAKANTAPPA AGED ABOUT 53 YEARS, R/O NO.3653, 4TH MAIN, 5TH CROSS, M C C B BLOCK DAVANAGERE-577004 ...PETITIONERS (BY SRI HAREESH BHANDARY FOR SRI VISHWAJITH SHETTY S., ADVOCATES) AND:
1. SRI G N RAJASHEKHARAPPA S/O LATE G NEELAKANTAPPA AGED ABOUT 70 YEARS, R/ATN O.4977/76, 3RD MAIN, 2ND CROSS S S LAYOUT, B BLOCK, DAVANAGERE-577004 2. SMT SUDHA G G W/O LATE G N GURUSHANTHAPPA AGED ABOUT 60 YEARS, R/O NO.2991, 7TH MAIN, M C C BLOCK, DAVANAGERE-577004 3. SRI KARIBASAPPA G G S/O LATE G N GURUSHANTHAPPA AGED ABOUT 36 YEARS, R/O NO.2991, 7TH MAIN, M C C BLOCK, DAVANAGERE-57700 . .. RESPONDENTS (BY SRI K.CHETHAN KUMAR, ADV. FOR C/R1 V/O DATED:15.04.2019 NOTICE TO R-2 AND R-3 IS DISPENSED WITH) THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER ANNEXUE-A DATED 12.03.2019 MADE ON MARKING OF DOCUMENTS BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE DAVANAGERE IN O.S.NO.32/2018 AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendants filed the present writ petition against the order dated 12.03.2019 made in O.S.No.32/18 on the Prl. Sr. Civil Judge and CJM, Davangere not allowing the defendant to mark the family arrangement deed on the ground that it is unregistered document and not admissible in evidence.
2. The Plaintiff filed the suit for partition and separate possession contending that the plaintiff and defendants are the members of joint family and suit schedule properties are joint family properties. Defendants filed their written statement denying the plaint averments and sought for dismissal of the suit. During the course of cross examination of PW1, counsel for the defendants has confronted the document family settlement deed and signature on the document. The plaintiff admitted his signature on Ex.D.1. The trial Court was of the opinion that document the Family Settlement Deed is un-registered document and not admissible in evidence, therefore, it is not permissible to mark, the same. Hence, the present writ petition.
3. I have learned counsel for the parties at lis.
4. Sri. Hareesh Bhandary, learned counsel for the petitioners/defendants 1 to 6 contended that the impugned order passed by the trial Court rejecting the marking of Family Settlement Deed on the ground that it is an unregistered document in admissible in evidence is erroneous and contrary to the material on record. He would further contend that the document i.e., Family Settlement Deed dated 14.7.1996 entered into between the widow and children of G.Neelakantappa need not be a registered document, it is permissible as it is a family arrangement. The trial Court though allowed the counsel for the defendant to confront the document, PW1- the plaintiff has admitted his signature on the Family Settlement Deed, which ought to have been marked for the purpose of severance in the family. Therefore, he sought to allow the writ petition.
5. Per contra, Sri Chethan Kumar, learned counsel for caveator/respondent no.1/plaintiff sought to justify the impugned order and contended that even the Family Settlement Deed should be registered under the provisions of Sections 17 and 49 of the Registration Act. Since, document is an unregistered one, trial Court is justified in holding that it is in admissible in evidence. Therefore, sought for dismissal of the writ petition.
6. Having heard the learned counsel for the parties, it is undisputed that plaintiff filed a suit for partition and separate possession contending that the suit schedule properties were jointly owned by the plaintiff and defendants as there was no partition. 2nd defendant filed written statement while defendants 4 to 6, 7 to 11 filed a memo adopting the written statement of defendant No.2. When the matter was posted for cross examination of PW1. During the cross examination of PW1, the Family Settlement Deed dated 14.07.1996 was confronted to the plaintiff – PW1, he has admitted his signature on the said deed. The same is marked as Ex.D.1. However, the plaintiff has seriously objected for the marking of Family Settlement Deed on the ground that it is un-registered and not permissible under Section 17 of the Registration Act. The trial Court refused to mark the family settlement deed on the ground that, it is an unregistered document and not admissible in evidence.
7. In view of the provisions of Sections 17 and 49 of the Registration Act that even if the family arrangement or relinquishment deed takes away the shares in respect of immovable property, it has to be registered compulsorily. My view is fortified by the dictum of the Hon’ble Supreme Court in the case of SITA RAM BHAMA vs RAMVATAR BHAMA reported in AIR 2018 SC 3057 at paras.10,12,13,15 and 16, it is held as under:
“10.The only question which needs to be considered in the present case is as to whether document dated: 09.09.1994 could have been accepted by the trial Court in evidence or trial Court has rightly held the said document dated:09.09.1994 as memorandum of family settlement. Plaintiff’s case is that earlier partition took place in the life time of the father of the parties on 25.10.1992 which was recorded as memorandum of family settlement on 09.09.1994. There are more than one reasons due to which we are of the view that the document dated: 09.09.1994 was not mere memorandum of family settlement rather a family settlement itself. Firstly, on 25.10.1992, the father of the parties was himself owner of both, the residence and shop being self-acquired properties of Devi Dutt Verma. The High Court has rightly held that the said document cannot be said to be a will, so that father could have made will in favour of his two sons, plaintiff and defendant. Neither the plaintiff nor defendant had any share in the property on the day when it is said to have been partitioned by Devi Dutt Verma. Devi Dutt Verma died on 10.09.1993. After his death plaintiff, defendant and their mother as well as sisters become the legal heirs under Hindu Succession Act, 1955 inheriting the property being a class I heir. The document dated 09.09.1994 divided the entire property between plaintiff and defendant which document is also claimed to be signed by their mother as well as the sisters. In any view of the matter, there is relinquishment of the rights of other heirs of the properties, hence, Courts below are right in their conclusion that there being relinquishment, the document dated 09.09.1994 was compulsorily registrable under Section 17 of the Registration Act.
12. We are, thus, in full agreement with the view taken by the trial Court as well as the High Court that the document dated 09.09.1994 was compulsorily registrable. The document also being not stamped could not have been accepted in evidence and order of trial Court allowing the application under Order XII Rule 3 CPC and the reasons given by the trial Court in allowing the application of the defendant holding the document as inadmissible cannot be faulted.
13. There is only one aspect of the matter which needs consideration, i.e., whether the document dated 09.09.1994 which was admissible in evidence could have been used for any collateral purpose. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. Further, an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. A two-Judge Bench judgment of this Court in Yellapu Uma Maheshwari and another V.Buddha Jagadeeswararao and others, 2015) 16 SCC 787: (2015 AIR SCW 6184 para 17), is appropriate. In the above case also admissibility of documents Ext. B-21 dated 05.06.1975 a deed of memorandum and Ext. B-22 dated 04.06.1975 being an agreement between one late Mahalakshamma, respondent No.1 plaintiff and appellant No.1 defendant came for consideration. Objection was taken regarding admissibility which was upheld both the High Court and Trail Court. Matter was taken up by this Court. In the above case, this Court held that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents. This Court after considering both the documents, B-21 and B-22 held that they require registration. In paragraph 15 following was held:
15.It is well-settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A through reading of both Exts. B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the admit of Section 17 (1) (b) if the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that 11 Exts. B-
21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition”.
15. Following the law laid down by this Court in the above case, we are of the opinion that document dated 09.09.1994 may be admissible in evidence for collateral purpose provided the appellant get the document impounded and to pay the stamp duty together with penalty as has been directed in the above case.
16. In the result, this appeal is partly allowed in the following manner:
The order of the trial Court as well as the High Court holding that the document dated 09.09.1994 required compulsory registration is upheld.
Following the aforesaid view of this Court in Yellapu Uma Maheshwari (2015 AOR SCW 6184) (supra), this appeal is partly allowed holding that deed dated 09.09.1994 is admissible in evidence for collateral purpose subject to payment of stamp duty and penalty.
8. In view of the aforesaid dictum of the Hon’ble Apex Court and in view of the provisions of Sections 17 and 49 of the Registration Act, the impugned order is just and proper. Petitioner has not made out any ground to interfere with the same in exercise of power under Article 227 of the Constitution of India. However, it is needless to observe that if the present petitioner wants to mark the said document for collateral purpose, it is open for him to pay stamp duty together with penalty after the document is impounded by the trial Court and pass appropriate orders in accordance with law.
With the above observations, writ petition is disposed of.
Sd/- JUDGE brn