Research › Search › Judgment

Karnataka High Court · body

2009 DIGILAW 392 (KAR)

Kuberappa v. T. C. Gopal

2009-06-11

H.N.NAGAMOHAN DAS

body2009
JUDGMENT :- Nagamohandas, J. Petitioners and respondent No.3 are defendants and respondent No.1 is the plaintiff before the Trial Court. In this order for convenience, the parties are referred to their status before the Trial Court. 2. Plaintiff filed O.S.No.203/2005 against the defendants for partition and separate possession of his 7/30th share in the plaint schedule property. The defendants 1 to 3 filed written statement inter alia contending that on 25.04.1987, a partition had already taken place and therefore the question of again partitioning plaint schedule properties will not arise. On the basis of pleadings, the Trial Court framed issues and the plaintiff completed his evidence on his side. At the time of evidence of DW-1 he tried to produce the partition deed dated 25.04.1987. Learned Counsel for the plaintiff objected for marking the partition deed dated 25.04.1987 on the ground that it is not duly stamped and that the same is unregistered. The Trial Court after hearing both the parties passed the impugned order upholding the objections raised by the plaintiff and refused to admit the partition deed dated 25.04.1987 in the evidence of DW-1. Hence this writ petition by defendants 1 to 3. 3. Heard arguments on both the side and perused the entire writ papers. 4. It is not in dispute that the partition deed dated 25.04.1987 relied on by defendants 1 to 3 is not duly stamped and the same is not registered. The Trial Court noticed from the averments of the partition deed dated 25.04.1987, a division of immovable properties belonging to the joint family had taken place in the deed. Further the defendants do not dispute that the value of the immovable property divided in the partition deed is more than Rs.100/-. On the basis of these admitted facts, the partition deed dated 25.04.1987 is insufficiently stamped and it requires compulsory registration but not registered. 5. Sec.34 of Karnataka Stamp Act (for short, Stamp Act) specifies that an insufficiently stamped document cannot be admitted in evidence unless duty and penalty is paid. I had the occasion to consider the scope of Sec.34 of the Stamp Act in C.K. Raviprasanna Vs. T.K. Gowramma ILR 2007 Karnataka 2807 and I held as under:- “7. Section 34 of the Karnataka Stamp Act mandates that no document shall be admitted in evidence for any purpose, unless it is duly stamped. I had the occasion to consider the scope of Sec.34 of the Stamp Act in C.K. Raviprasanna Vs. T.K. Gowramma ILR 2007 Karnataka 2807 and I held as under:- “7. Section 34 of the Karnataka Stamp Act mandates that no document shall be admitted in evidence for any purpose, unless it is duly stamped. Section 34 of the Act puts a complete embargo and bar against admissibility of such a document which is not stamped or which is not duly stamped and the same cannot be used for any purpose. In the instant case, under the agreement of sale dated 27.11.2004, the petitioner’s possession and enjoyment of the schedule property is in part performance of the agreement. Therefore, the agreement of sale in question falls under Article 5 E. Therefore, the stamp duty is payable as per the conveyance specified in Article 20. Admittedly, the agreement of sale dated 27.11.2004 is insufficiently stamped. Therefore, the agreement of sale cannot be admitted in evidence unless duty and penalty is paid. Hence the impugned order passed by the Trial Court is in accordance with law” 6. Therefore, the partition deed dated 25.04.1987 relied on by the defendants 1 to 3 is insufficiently stumped and the same is inadmissible in evidence unless duty and penalty is paid on this document. In the event of defendants 1 to 3 pays duty and penalty on this partition deed, then the Trial Court shall admit the same in evidence. 7. The Trial Court on going through the averments in the partition deed dated 25.04.1987 held that a division had taken place in respect of immovable properties. The defendants 1 to 3 do not dispute the fact that the value of the immovable properties partitioned in the deed dated 25.04.1987 was more than Rs.100/-. Sec.49 of the Registration Act specifies that no document required registration under Sec. 17 of the Registration Act if not registered shall not be received as evidence of any transaction affecting such property unless it has been registered. But the proviso to Sec.49 of the Registration Act further specifies that an unregistered document affecting immovable property may be received as evidence of a contract in a suit for specific performance under Chapter 2 of the Specific Relief Act or for any collateral transaction not required to be affected by registered instrument. But the proviso to Sec.49 of the Registration Act further specifies that an unregistered document affecting immovable property may be received as evidence of a contract in a suit for specific performance under Chapter 2 of the Specific Relief Act or for any collateral transaction not required to be affected by registered instrument. Thereby it is clear from the proviso to Sec.49 of the Registration Act that an unregistered document which requires compulsory registration under Sec.17 of the Act can be received in evidence to prove collateral transaction which do not required registration. 8. The word ‘collateral transaction’ mentioned in the proviso to Section 49 of the Registration Act means and include that a transaction between the parties in a deed which do not require registration. All and every transaction between two parties do not require registration. In such of the transaction specified under Section 17 of the Act are compulsorily registrable. There may be transaction between the parties in a particular deed which requires compulsory registration under Section 17 of the Act and there may also be transaction which do not require registration. Therefore an unregistered document requires compulsory registration under Section 17 of the Act can be received in evidence to prove collateral transaction which do not require registration. Say for example, status of a party, the relationship between the parties, the nature of properties, severance of status among member of the family are all transaction between which do not require registration. 9. The word ‘collateral transaction’ mentioned in the proviso to Section 49 of the Registration Act came up for consideration before the Supreme Court in Roshan Singh And Others Vs Zile Singh And Others AIR 1988 SC 881 and it is held as under:- .“It is well settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants. The document Ex.P12 can be used for the limited purpose and a collateral purpose of showing that subsequent division of the properties allotted was in pursuance of the original intention of divide”. 10. The document Ex.P12 can be used for the limited purpose and a collateral purpose of showing that subsequent division of the properties allotted was in pursuance of the original intention of divide”. 10. A division bench of this Court in Umakant Rao Vs Lalitabai and Others 1988 (2) KLJ 155 held that: “a document contains matters relating to the relationship between the parties, the nature of properties, the severance of status of members of joint family are all collateral in nature which do not require registration” 11. In view of the law declared by the Apex Court and this Court in the decisions referred to supra, the partition deed dated 25.04.1987 though unregistered is admissible in evidence for limited and collateral purpose of showing the severance of status between the parties to the suit. The Trial Court without examining the scope of Sec.34 of Stamp Act and Sec.49 of the Registration Act committed an illegality in passing the impugned order. Therefore, the impugned order is liable to be quashed. For the reason stated above, the following:- Order (I) The writ petition is hereby allowed. (II) The impugned order dated 11.02.2008 in O.S.No.203/2005 passed by the Civil Judge (Sr. Dn) Sagar, is hereby quashed. (III) The Trial Court to calculate and notify to the defendants 1 to 3 the duty and penalty payable on the partition deed dated 25.04.1987. (IV) In the event of defendants 1 to 3 paying duty and penalty as notified, then the partition deed dated 25.04.1987 can be admitted in evidence for limited and collateral purpose. (V) Ordered accordingly.