IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.3231/2006 BETWEEN:
1. T.K.VENKATRAMAIAH S/O LATE KRISHNAIAH MAJOR R/AT PANDAVAPURA TOWN MANDYA – 571 434 2. CHANNEGOWDA S/O CHIKKAHYDEGOWDA R/AT THONNORU VILLAGE KASABA HOBLI PANDAVAPURA TALUK MANDYA – 571 434 3. THIMMEGOWADA SINCE DEAD BY HIS LRS a) SIDDAMMA W/O LATE THIMMEGOWDA AGED ABOUT 55 YEARS b) T.PANKAJA W/O BASAVARAJ AGED ABOUT 25 YEARS c) SHANKARA S/O LATE THIMMEGOWDA AGED ABOUT 27 YEARS d) KUMARA S/O LATE THIMMEGOWDA AGED ABOUT 31 YEARS R3(a) TO R3(d) ARE R/AT THONNUR VILLAGE PANDAVAPURA TALUK MANDYA DISTRICT … APPELLANTS (BY SRI V.SRINIVAS, ADVOCATE) AND:
1. T.K.RAMAKRISHNAIAH SINCE DEAD BY HIS LRs 1(a). S.V.SUSHEELAMMA W/O LATE T.K.RAMAKRISHNAIAH AGED ABOUT 66 YEARS 1(b). T.R.PRASANNA S/O LATE T.K.RAMAKRISHNAIAH AGED ABOUT 47 YEARS 1(c). T.R.VENU S/O LATE T.K.RAMAKRISHNAIAH AGED ABOUT 45 YEARS 1(d). T.R.SATISHA S/O LATE T.K.RAMAKRISHNAIAH AGED ABOUT 41 YEARS R1(a) TO R(d) ARE R/AT THONNUR VILLAGE KASABA HOBLI PANDAVAPURA TALUK MANDYA DISTRICT – 571 434 … RESPONDENTS (BY SRI RAGHUPATHY T.N., ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 17.08.2006 PASSED BY THE ADDITIONAL CIVIL JUDGE (SENIOR DIVISION), SRIRANGAPATNA IN R.A.NO.90/2000 AND TO CONFIRM THE JUDGMENT AND DECREE DATED 18.09.2000 PASSED BY THE CIVIL JUDGE (JUNIOR DIVISION), PANDAVAPURA IN O.S.NO.9/1999.
THIS RSA COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal of the defendants arises out of the judgment and decree dated 17.08.2006 passed by the Additional Civil Judge (Senior Division), Srirangapatna in R.A.No.90/2000. By the impugned judgment and decree, the First Appellate Court allowed the appeal of the plaintiff and reversed the judgment and decree dated 18.09.2000 passed by the Civil Judge (Junior Division), Pandavapura in O.S.No.9/1999 and decreed the suit of the plaintiff for declaration and mandatory injunction.
2. Respondent was the plaintiff and the appellants were the defendants before the trial Court. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial Court. During the pendency of the appeal before this Court, the sole respondent and appellant No.3 died and their legal representatives were brought on record.
3. Plaintiff T.K.Ramakrishnaiah, defendant No.1 T.K.Venkataramanaiah and their father late Krishnaiah were admittedly the members of the joint Hindu family. There was partition between the plaintiff and defendant No.1, their father and mother on 12.05.1976 under a document. According to the plaintiff, the said partition was under Ex.P10. Plaintiff claimed that under the said partition deed, parties agreed that if at all any of the sharer intended to sell the properties, they shall sell the properties so partitioned to the other sharer and thus there was right of pre-emption available to the sharer.
4. Plaintiff contended that despite such agreement of pre-emption under the partition deed and despite he exercising that right by issuing notices to the defendants, defendant No.1 sold item No.1 of ‘B’ schedule properties to defendant No.3 on 23.06.1992 and item No.2 of ‘B’ schedule properties to defendant No.2 on 06.07.1992. Plaintiff claimed that the said properties are purportedly sold for consideration of Rs.19,000/- and Rs.7,000/-. The said price according to him was inflated rate, though the actual value of the properties was much lesser than that. Thus the plaintiff sought for declaration that he has right of pre-emption to buy item Nos.1 and 2 of ‘B’ schedule properties and to hold that sales in favour defendant Nos.2 and 3 was void and direction to the defendants to execute conveyance deed in his favour in respect of item Nos.1 and 2 of ‘B’ schedule properties by receiving Rs.2,000/- and Rs.3,000/- respectively.
5. Defendant Nos.1 to 3 filed written statements denying any agreement regarding pre-emption. They contended that pre-emption clause in the agreement was fabricated. Service of notice by the plaintiff was also denied and thus sought for dismissal of the suit.
6. On the basis of such pleadings, the trial Court framed the following issues:
1. Do the plaintiff prove that he has got a right of pre-emption to buy items 1 and 2 of ‘B’ schedule properties and he is entitled for the declaratory relief sought against the defendants?
2. Do the plaintiff prove that the sale-deeds executed by the 1st defendant in favour of the 2nd and 3rd defendants are void?
3. Do the plaintiff prove that he is entitled for possession of items 1 and 2 of ‘B’ schedule properties?
4. Whether the Court fee paid is proper?
5. For what Order or Decree?
7. Plaintiff examined himself as PW.1. He was cross-examined by defendant No.2 alone. Defendant Nos.1 and 3 did not cross-examine him or lead their evidence. Plaintiff produced Ex.P1 to Ex.P12. Out of that the crucial document was Ex.P10, the alleged partition deed. The said document was unstamped and unregistered. Therefore, on objections by the other side regarding admissibility of the said document, the said document was marked subject to admissibility of the document. Defendant No.2 was examined as DW.1 and on his behalf, his sale deed was marked as Ex.D1.
8. The trial Court after hearing the parties dismissed the suit on the following grounds:
(i) Ex.P10 the partition deed is unregistered one.
Therefore, inadmissible in evidence. That cannot be relied by the defendants to assert the right of pre-emption;
(ii) Except for Section 22 of the Hindu Succession Act, 1956 (‘the Act’ for short) right of pre-emption is alien to the Hindus. Section 22 of the Act applies only at pre-partition stage, in case of intestate succession;
(iii) Since in the case on hand, the partition had already taken place, defendant No.1 becomes absolute owner. The plaintiff does not get right of pre-emption; & (iv) After division of the properties one sharer has no right to challenge the alienation made by other sharer. Therefore, pre-emption agreement, if any is invalid.
9. Plaintiff carried the matter before the Additional Civil Judge (Senior Division), Srirangapatna in R.A.No.90/2000. The First Appellate Court by impugned judgment and decree allowed the appeal and reversed the judgment and decree of the trial Court and decreed the suit as prayed for on the following grounds:
(i) Since the parties were Hindus and governed by the Act, restriction on alienation by way of pre-emption does not amount to prohibition in perpetuity. Therefore, Section 10 of the Transfer of Property Act, 1882 is not applicable;
(ii) Ex.P10 the partition deed is an admitted document. Though defendant No.1 alleged that Clause regarding pre-emption is concocted, he failed to substantiate that contention;
(iii) Despite notice of the plaintiff exercising right of pre-emption, defendant No.1 sold the properties to defendant Nos.2 and 3 and thereby infringed the plaintiff’s right of pre-emption; and (iv) The trial Court has misread Section 10 of the Transfer of the Property Act, 1882;
10. This Court admitted the appeal to consider the following substantial question of law:
“Whether the lower appellate Court was justified in decreeing the suit for specific performance on the basis of palupatti which was not registered”?
11. Sri V.Srinivas, learned Counsel for the appellants seeks to assail the impugned judgment and decree of the First Appellate Court on the following grounds:
(i) Ex.P10 original partition deed is admittedly unstamped and unregistered. Therefore that was totally inadmissible in evidence;
(ii) The First Appellate Court ignored Section 49 of the Registration Act, 1908 and Section 34 of the Karnataka Stamp Act, 1957;
(iii) Section 22 of the Act confers right of pre-emption only in cases of immovable properties of an intestate. Once the division is effected amongst co-owners, the sharers become absolute owner and no right of pre-emption accrues to the other party.
(iv) Even if agreement is treated as agreement of pre-emption simplicitor, that was not supported by any consideration. Therefore, void as per Section 25 of the Indian Contract Act, 1872 and unenforceable; & (v) In the suit, no declaration was sought regarding sale deed executed by defendant Nos.2 and 3. Therefore, the suit as framed was not maintainable;
12. In support of his contentions, he relies upon the following judgments:
(i) Dhobei Rout v. Pahali Rout1 (ii) Haren Sarma vs. Renu Borthakur & Ors.etc.2 (iii) Jeewanram v. Lichmadevi3 1 AIR 1998 Orissa 74 2 AIR 2007 Gauhati 70 3 AIR 1981 Rajasthan 16 (iv) Ananda Setty v Chowdasetty4 (v) G.Rangaiah vs Govindappa & Ors.5 13. Per contra, Sri Raghupathy T.N., learned Counsel for the respondents seeks to support the impugned judgment and decree of the First Appellate Court on the following grounds:
(i) Plaintiff claims right of pre-emption under Ex.P10 as agreement of pre-emption simplicitor and not under Section 22 of the Act;
(ii) Even if Ex.P10 is unregistered, the proviso to Section 49 of the Registration Act, 1908 provides for receiving that in evidence, in a suit for specific performance or as evidence for the purpose of a collateral transaction which does not require registration;
(iii) The agreement of pre-emption is not compulsorily registrable. Therefore, that can be looked into for collateral purpose treating Ex.P10 as agreement of pre-emption simplicitor; & 4 1988(1) Kar.L.J.583 5 AIR 2008 Kar 151 (iv) Ex.P10 could be received in evidence, even in the absence of any mention of consideration in the same. The plaintiff offered to the defendants to pay Rs.3,000/- and Rs.5,000/- as consideration. Therefore, it is deemed that the agreement contained the consideration clause.
14. In support of his contention, he relies upon the following judgment:
1. Ram Baran Prasad vs. Ram Mohit Hazra & Ors6 15. The case of the parties depend on Ex.P10 the alleged partition deed. Even the defendants admitted that there was partition between the plaintiff, defendant No.1 and their father on 12.05.1976. The defendants contended that Clause regarding pre-emption was interpolated. However, the defendants neither cross-examined the plaintiff nor entered the witness box to deny that. Learned Counsel for the appellants fairly did not canvass that point.
16. Admittedly, Ex.P10 is an unregistered and unstamped document. The trial Court had marked the document subject to the objections regarding admissibility.
6 AIR 1967 SC 744 On that ground only, the trial Court rejected the claim of the plaintiff and dismissed the suit. Unfortunately, the First Appellate Court did not even refer to that question.
17. Having regard to the substantial question of law formulated by this Court for hearing, now the question is “Whether the plaintiff could seek specific performance of the alleged agreement of pre-emption under Ex.P10?”.
18. Plaintiff’s Counsel strenuously argued that Section 49 of the Registration Act, 1908 bars reception of documents in evidence which requires registration. Except for the cases provided under the proviso to Section 49 of the Registration Act, 1908, the documents which are compulsorily registrable under Section 17 of the Registration Act, 1908, if unregistered are inadmissible in evidence.
19. Ex.P10 is partition deed. Subject matter of the deed is immovable properties. Value of those properties admittedly exceed Rs.100/-. Therefore, as per Section 17 of the Registration Act, 1908, the said document was compulsorily registrable one.
20. The right of pre-emption set up by the plaintiff had it’s source from Ex.P10 and that was not independent contract. Only if Ex.P10 could be looked into, Clause regarding right of pre-emption was getting its life. The transaction of partition under Ex.P10 and Clause of pre- emption were interwoven.
21. First of all the plaintiff before the trial Court did not take up the contention that he has independent agreement of pre-emption. In para 5 of his plaint, he himself states that his right of pre-emption flows from partition. He cannot introduce such new plea for the first time in the second appeal.
22. Under such circumstances, this Court is not convinced by the arguments that Ex.P10 shall be treated as agreement of pre-emption simplicitor and falls under the proviso to Section 49 of the Registration Act, 1908. Further, even assuming that agreement was agreement of pre- emption simplicitor, that was liable for levy of stamp duty as per Article 5(e)(ii) of the Schedule to the Karnataka Stamp Act, 1957. However, Ex.P10 was not compliant of Sections 33 to 37 and Article 5(e)(ii) of the Schedule to the Karnataka Stamp Act, 1957.
23. Plaintiff did not make any efforts to pay the duty and penalty and make the said document a valid document to avoid its exclusion from the evidence by virtue of Section 34 of the Karnataka Stamp Act, 1957. This Court in G.Rangaiah’s case referred to supra in paras 31 and 32 held as follows:
“31. If the document is one transferring any interest in the immovable property of the value of more than Rs.100/- under the provisions of the Transfer of Property Act, 1882 and under Section 17 of the Registration Act, 1908, registration of the document is inevitable. Non-registration attracts the effect of Section 49 of the Registration Act, 1908 and does not affect any immovable property comprised therein i.e., there is no partition but continues to be remained joint is the effect of Section 49 of the Registration Act, 1908. In fact, in the present case, even the proviso is of no value to the defendants as what is sought to be proved is only partition under Exhibit D1 and not any collateral purpose. Even assuming for argument sake that the document is not one transferring any interest in the immovable property, in the sense that, not making any difference to the interest of the parties in the properties mentioned in the document which existed even before the document was executed, the provisions of Karnataka Stamp Act, 1957 is nevertheless attracted to a recording of an earlier partition i.e., even to a palu patti as is obvious on a reading of the provisions of Section 2(k)(iii). That again attracts Section 34 of the Karnataka Stamp Act, 1957 and the conclusion of inadmissibility in evidence follows. If the document is inadmissible in evidence, it is of no use to contend that it has been proved by other evidence such as oral evidence.
32. While no oral evidence can be led either to supplement or detract from any document and even under the provisions of the Evidence Act, the documentary evidence excludes oral evidence, the oral evidence is only corroborative of the documentary evidence under Exhibit D1 and cannot stand independently. If a statutory provision excludes the admissibility of a document and therefore also affects the transfer of interest under the document, such an embargo cannot be got over by leading oral evidence to the contrary. The effect of the provisions of Section 49 of the Registration Act, 1908 and section 34 of the Karnataka Stamp Act, 1957 is to render illegal an act done contrary to it and such illegality cannot be cured by resorting to any other mode except the very remedial action if any provided under the very statute.”
(Emphasis supplied) 24. In this case also, no remedial action was taken by the plaintiff to cure that illegality or to sustain Ex.P10 by making good the deficit duty or paying the penalty. Therefore, the plaintiff could not rely on Ex.P10 to prove his case of right of pre-emption. Once the agreement is in violation of any law, no specific performance of such agreement is enforceable. Further the said agreement did not spell about consideration. If one party offers to pay consideration subsequent to the contract, such offer cannot be infused in the document with retrospective effect.
25. In Ram Baran Prasad’s case relied upon by the learned Counsel for the respondents, the question of want of consideration had not fallen for consideration. Therefore, that judgment does not advance the case of the plaintiff. Since learned Counsel for the plaintiff did not seek to advance arguments relying on Section 22 of the Hindu Succession Act, there is no need to discuss about the citations relied upon by the learned Counsel for the appellant in that regard.
26. So far as Ananda Setty’s case relied upon by learned Counsel for the appellants, it was held that unregistered partition can only be admitted in evidence for the purpose of proof of factum of partition, but never for purpose of proving contents or even possession of properties mentioned therein.
27. In the light of the discussions and the judgment of this Court in Ananda Setty’s case and G.Rangaiah’s case, the First Appellate Court was not justified in decreeing the suit for specific performance on the basis of unregistered and unstamped palupatti. Substantial question of law is answered accordingly.
The appeal is allowed. The impugned judgment and decree dated 17.08.2006 passed by the Additional Civil Judge (Senior Division), Srirangapatna in R.A.No.90/2000 is hereby set aside and the judgment and decree dated 18.09.2000 passed by the Civil Judge (Junior Division), Pandavapura in O.S.No.9/1999 is hereby confirmed.
As per Section 33 of the Karnataka Stamp Act, 1957 whenever a document which requires stamp but not duly stamped comes before the Court, a duty is cast on the Court to proceed in accordance with Sections 33 to 37 of the Karnataka Stamp Act, 1957. In this case, the Courts below have not done that exercise. At least at this stage it requires to be done. Therefore, the trial Court shall proceed to impound the document and take appropriate steps for recovery of duty and penalty from the plaintiff in accordance with law, soon after receiving the records from this Court.
Sd/- JUDGE KSR