IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.8241 OF 2017 (GM-CPC) BETWEEN:
SMT. VENKATAMMA, W/O LATE PULAGINTI NALLAPPA, AGED ABOUT 83 YEARS, R/AT GADIGAVARAHALLI VILLAGE, CHILAKALANERPU HOBLI, CHINTAMANI TALUK – 563123, CHIKKABALLAPURA TALUK. ... PETITIONER (BY SRI. SRINIVAS.V, ADVOCATE) AND:
SMT. SEETHAMMA, W/O LATE SUBRAMANYA SASTRI, AGED ABOUT 79 YEARS, R/AT 45, 9TH MAIN ROAD, 7TH CROSS, GELEYARA BALAGA, J C NAGAR, BANGALORE – 560006. ... RESPONDENT (RESPONDENT SERVED, UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN O.S.NO.301/2014 ON THE FILE OF THE CIVIL JUDGE [JR.DN] AT CHINTAMANI AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING – B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in the suit for specific performance in O.S.No.301/2014, is knocking at the doors of writ court for assailing the order dated 19.01.2016, a copy whereof is at Annexure – D whereby the subject agreement dated 29.05.2013, a copy whereof is at Annexure – B1 having been treated as sale deed, she has been directed to pay the deficit stamp duty and ten times penalty under the provisions of Chapter IV of Karnataka Stamp Act, 1957. After service of notice, the respondent/defendant has chosen to remain unrepresented.
2. Having heard the learned counsel for the petitioner and having perused the Petition Papers, reprieve needs to be granted to the plaintiff because:
(a) the court below is not justified in construing the subject instrument as and to be a conveyance merely because para 6 of the said document provides for deeming it to be one for the sale deed in a particular eventuality; the Apex Court in a catena of decisions has held that in construing the mofusil documents, the courts should not keep their common sense in cold storage; a document/instrument has to be construed after perusing all its parts and not stressing any particular paragraph as in island provision;
(b) the subject document going by its text and context, is only an agreement to sell as contradistinguished from sale deed since the interest in the subject property is not transferred thereby in proesenti.
In the above circumstances, this Writ Petition succeeds and the impugned order is set at naught.
No costs.
Sd/- JUDGE cbc