IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.VEERAPPA WRIT PETITION NO. 47817 OF 2017 (GM-CPC) BETWEEN:
SRI. R JAYARAM, S/O T R RAMEGOWDA, AGED 50 YEARS, RESIDING AT THIKKAMARANAHALLI VILLAGE, KASABA HOBLI, CHANNAPATTANA TALUK, RAMANAGARA DISTRICT.
(BY SRI. RAJU S, ADVOCATE) AND:
1. SMT. VIJAYA W/O LATE VENKATE GOWDA, AGED ABOUT 51 YEARS, 2. SMT. T V JALAJA, D/O LATE VENKATE GOWDA, AGED ABOUT 22 YEARS 3. KUM. T V SHILPA, D/O LATE VENKATE GOWDA, AGED ABOUT 21 YEARS, 4. KUM T V NIRMALA, D/O LATE VENKATE GOWDA, AGED ABOUT 20 YEARS, … PETITIONER 5. SRI. T V RAJKUMAR, S/O LATE VENKATE GOWDA, AGED ABOUT 22 YEARS, NOS.1 TO 5 ARE RESIDING AT K NO.49, THITTAMARANAHALLI, KASABA HOBLI, CHANNAPATTANA TALUK, RAMANGARA DISTRICT – 572 159.
T R RAMEGOWDA @ PUTTEGOWDA, S/O LATE RAMEGOWDA, SINCE DECEASED BY HIS LRs. (ALL THE LEGAL HEIRS OF LATE T R RAMEGOWDA ARE ALREADY ON RECORD) T.R. KRISHNE GOWDA, SINCE DEAD BY HIS LRs.
6. SMT. VARALAKSHMI, W/O LATE T R KRISHNEGOWDA, AGED ABOUT 43 YEARS, 7. SRI. K CHETHAN, S/O LATE T R KRISHNEGOWDA, AGED ABOUT 20 YEARS, 8. SRI. K DARSHAN, S/O LATE T R KRISHNEGOWDA, AGED ABOUT 11 YEARS, MINOR REPRESENTED BY HIS NATURAL GUARDIAN MOTHER SMT VARALAKSHMI.
6 TO 8 ARE RESIDING AT NO. 209/10, MAHESHWARI NAGARA, 7TH CROSS, T DASARAHALLI, BENGALURU -560 078.
SMT. KAMALAMMA, SINCE DEAD BY HER LRs.
9. SRI. DODDE GOWDA, S/O LATE PUTTASWAMY GOWDA, AGED ABOUT 67 YEARS, 10. SRI RAMAKRISHNA, S/O DODDEGOWDA, AGED ABOUT 37 YEARS, 11. SRI. D YOGESH, S/O DODDEGOWDA, AGED ABOUT 27 YEARS, 12. SMT. SHASHI, W/O NARAYANA SWAMY, AGED ABOUT 39 YEARS, 9 TO 12 ARE RESIDING AT B V HALLI, CHANNAPATTANA TALUK, RAMANAGARA DISTRICT – 572 159.
13. SMT. D KUMUDINI, W/O RAJU, AGED ABOUT 34 YEARS, BOODIGUPPE, HAROHALLI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT- 572 159.
14. SMT. GOWRAMMA, W/O PUTTASWAMY GOWDA, MAJOR, RESIDING AT KONEGAL, K P DODDI POST, RAMANAGARA DISTRICT – 572 159.
15. SMT. SUNANADA, W/O PUTTASWAMY GOWDA, MAJOR, NO.156/1, NEAR SRI VIDYANIKETHANA SCHOOL, VIDYA NAGAR, T DASARAHALLI, BENGALURU – 560 057.
16. SMT. HEMAVATHY, W/O K P MOHAN, MAJOR, C/O NINGEGOWDA, LECTURER, KUVEMPU EXTENSION, IJOORU, RAMANAGARA DISTRICT – 572 159.
… RESPONDENTS (BY SRI. PRAKASH M H, ADVOCATE FOR R1 TO 5 V.C.O DATED 10.11.2017, NOTICE TO R6 TO R16 IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CAL FOR RECORDS IN O.S.5/2003 ON THE FILE OF PRINICPAL CIVIL JUDGE AND JMFC, CHANNAPATNA AND QUASH/SET ASIDE THE ORDER DATED 08.09.2017 PASSED IN O.S.5/2003 BY THE LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAPATNA VIDE ANNEX-J.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The defendant No.2 filed the present writ petition against the order dated 08.09.2017 holding that the Settlement Deed dated 10.07.1994 is not marked as document on behalf of defendant No.2 as it is inadmissible in evidence.
2. The respondents 1 to 5 filed suit for partition and separate possession in respect of suit schedule properties morefully described in the plaint schedule (8 items) contending the suit schedule properties are Joint family properties of the plaintiffs and defendants and there was no partition.
3. The defendant No.2 filed written statement denying the plaint averments and contended that there was a Settlement Deed dated 10.07.1994 and as per the said document, Khata has been transferred in the name of respective parties and the respondents are not entitled to any share in the suit schedule properties and the respondents 1 to 5 are not in joint possession and enjoyment of the suit schedule properties and therefore sought for dismissal of the suit.
4. When the matter was posted for defendant’s evidence, defendant No.2 produced Settlement Deed dated 10.07.1994 claiming that the suit item No.1(b) property along with another site has been given to him by virtue of the said settlement deed by his father and prays to mark the said document on his side as ‘D’ series. The trial Court refused to mark the said document on the ground the Settlement Deed is inadmissible in evidence and it is unregistered and not duly stamped. Hence the present writ petition is filed.
5. I have heard the learned counsel for the parties to the lis.
6. Sri S.Raju, learned counsel for the petitioner contended that the impugned order passed by the trial Court rejecting to mark the unregistered Settlement Deed dated 10.07.1994 is erroneous and contrary to material on record. He further contended that the trial Court failed to notice that the Settlement Deed or Partition Deed entered into between the family members need not be registered under Section 17 of the Registration Act. The learned Judge ought to have permitted the petitioner to mark the document. He further contended that mere marking of documents cannot be construed as admissible in evidence. Just because, all the documents have been marked as Exhibit, it does not mean that the party producing the same will definitely get the relief on the basis of the said document.
7. In support of his contentions the learned counsel relied upon the decision of this Court in the case of K.ANJANEYA SETTY vs. K.H.RANGIAH SETTY reported in ILR 2002 KAR 3613 to the effect that there is no total prohibition for receiving unregistered documents in evidence and the same can be received in evidence to prove any collateral transaction.
8. He also relied upon other unreported judgment of this Court in W.P.No.17931/2006 (GM-CPC) to the effect that the document ie., Settlement Deed in question is only a piece of evidence to show that the partition was effected between the parties. A family arrangement can be arrived at orally and normally it would be recorded to show that the partition is effected and the same can be marked.
9. Per contra, Sri M.H.Prakash, learned counsel for respondents 1 to 5 sought to justify the impugned order and contended that the alleged Settlement Deed relied upon by defendant No.2 is concocted and created and does not bind on the plaintiffs. He further contended that the alleged partition deed is an unregistered document and is not duly stamped. Therefore the same is inadmissible in evidence and sought for dismissal of the writ petition.
10. Having heard the learned counsel for the parties, it is undisputed fact that the suit filed by the plaintiffs for partition and separate possession contending the suit schedule properties are Joint family properties of the plaintiffs and defendants and there was no partition. Defendant No.2 filed written statement and during the course of evidence, defendant No.2 sought to produce unregistered Settlement Deed dated 10.07.1994. The Trial Court refused to mark the said document on the ground that it is unregistered and not duly stamped and it is inadmissible in evidence. Though learned counsel for the petitioner Sri S.Raju tried to persuade this Court there is no total prohibition for receiving unregistered documents in evidence and the same can be received in evidence to prove any collateral transaction, the fact remains that the document sought is to prove there was a partition by the defendants and if that document is admitted the very suit is not maintainable.
11. An unregistered document is not admissible in evidence even for collateral purposes to show the factum of possession under the provision of Sec.49 of Registration Act, 1908 and it cannot be marked. The Hon’ble Supreme Court considering the provisions of Sec.17 and Sec.49 of Registration Act, 1908 held that even for collateral purpose unless and until the stamp duty and penalty is paid, the unregistered Settlement Deed cannot be marked in the case of SITA RAM BHAMA vs. RAMVATAR BHAMA, AIR 2018 SC 3057 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 inadmissible. The plaintiff claimed the 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 inadmissible 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 Maheswari and another vs. Buddha Jagadheeswararao and others, (2015) 16 SCC 787, 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 by the High Court and trial 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 thorough 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 ambit of Section 17(1)(b) of 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 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.”
12. In view of the above, the impugned order passed by the trial Court refusing to mark the Settlement Deed dated 10.07.1994 is inadmissible in evidence is in accordance with law. The petitioner has not made out any ground interfere under Article 227 of the Constitution of India. Accordingly the writ petition is dismissed.
However, it is open for the petitioner to pay stamp duty and penalty and thereafter he can seek for marking of the document in accordance with law.
Sd/- JUDGE Snb/