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2010 DIGILAW 545 (KAR)

HALLERA DYAMAPPA v. TARIHALLI KARIBASAPPA

2010-04-16

B.MANOHAR

body2010
ORDER Petitioners are the defendants in the suit in O.S. No. 138 of 2005 pending on the file of the Civil Judge (Junior Division), Harapanahalli. Being aggrieved by the order of the learned Civil Judge, dated 3-6-2009 in not permitting the defendants to mark the unregistered documents during the evidence of D.W. 1 defendants filed this writ petition. 2. The few facts of the case are as follows.- The plaintiff filed a suit for declaration declaring that the plaintiff is the owner of the suit schedule property and to grant a decree of permanent injunction restraining the defendants, their agents from causing obstruction and interfering with the peaceful possession and enjoyment of the suit schedule property. The plaintiff also contended that he has been in possession and enjoyment of the schedule land. Pursuant to the notice issued by the learned Civil Judge, the defendants have filed written statement contending that during the lifetime of the father of the plaintiff namely Basappa, there was family partition on 25-10-1941. In the said partition, the suit schedule property was allotted to the share of Nanjappa who is the father of the first defendant and grandfather of defendants 2 and 3. Further, in the year 1977, there was a partition in the defendants' family and schedule property was allotted to the father of defendants 2 and 3. However, in the year 1999 once again there was partition between Baramappa and Nanjappa. The plaintiff was fully aware of the said fact of partition and holding of the said property by the defendants. Therefore, the defendants contended that the suit filed by the plaintiff is not maintainable. 3. On the basis of the pleadings of the parties, the learned Civil Judge (Junior Division) framed 8 issues. On the basis of the said issues, parties led evidence. During the course of evidence of D.W. 1, the defendants wanted to mark 3 partition deeds of the years 1941, 1977 and 1999 to say that there was already family partition. However, the Court below refused to mark the said partition deeds on the ground that they are unregistered documents and the same cannot be marked in the evidence. The defendants being aggrieved by the action of the learned Civil Judge refusing to mark those three unregistered documents at the time of evidence of D.W. 1, filed the present writ petition. 4. The defendants being aggrieved by the action of the learned Civil Judge refusing to mark those three unregistered documents at the time of evidence of D.W. 1, filed the present writ petition. 4. Learned Counsel appearing for the petitioners contended that the action of the Trial Court in refusing to mark the three documents is unsustainable and against the settled principles. It is further contended that the marking of the said documents is very much necessary to show that there was already settlement between the parties. The order is not a speaking order and no reasons have been assigned for marking of the said three documents. Further, the learned Counsel for the petitioners relied upon a judgment in the case of Chikke Gowda and Another v L. Govinde Gowda1 and another judgment in the case of Siromani v Hemkumar and Others1, to contend that the unregistered partition deed can be looked into for collateral purposes. The learned Counsel also submits that in the present case also, the petitioners have relied upon the unregistered documents only for collateral purposes and action of the learned Civil Judge is contrary to law. He further submitted that the Trial Court has misconstrued the document produced by the petitioners as partition deed, in fact, it is only family arrangement, which was orally agreed between the family members. Accordingly, sought for allowing the writ petition. 5. Per contra, Sri V. Srinivas, learned Counsel appearing for the respondent contended that Section 17 of the Registration Act, 1908 is mandatory in nature. Unless the document is registered, it cannot be marked as evidence. He further contended that Section 35 of the Karnataka Stamp Act, 1957 mandates that no documents should be admissible in evidence for any purpose unless it is duly stamped. Further Section 34 of the Karnataka Stamp Act puts a complete embargo or bar against the admissibility of said documents, which are not duly stamped and sought for dismissal of the writ petition. 6. I have heard the arguments of the learned Counsel appearing for the both the parties and perused the entire writ papers. 7. It is not in dispute that the defendants have relied upon three unregistered palupatti to show that there was already family partition in the years 1941, 1977 and 1999. Pursuant to the said partition, the respective parties are in possession of the said properties. 7. It is not in dispute that the defendants have relied upon three unregistered palupatti to show that there was already family partition in the years 1941, 1977 and 1999. Pursuant to the said partition, the respective parties are in possession of the said properties. Hence, the suit filed by the plaintiff is not maintainable. However, the palupatti relied upon by the defendants is not registered. Unless the documents are registered, the same is not admissible in evidence. This Hon'ble Court in a judgment in the case of Kuberappa and Others v T.C. Gopal and Others2 has clearly held that Section 34 of the Karnataka Stamp Act, 1957 mandates that no document shall be admitted in evidence for any purpose unless is duly stamped..... "All and every transactions between two parties do not require registration. In such of the transactions specified under Section 17 of the Registration Act require compulsory registration. There may be transactions between the parties in a particular deed which requires compulsory registration under Section 17 of the Registration Act and there may also be transactions which do not require registration. Therefore an unregistered document require compulsory registration under Section 17 of the Registration Act can be received in evidence to prove collateral transactions 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 members of the family are all transactions between which do not require registration". 8. In view of authoritative pronouncement of this Hon'ble Court, it is clear that unless the three partition deeds relied upon by the defendants are registered and duly stamped, the same is inadmissible in evidence. I find no error or illegality in the order passed by the learned Civil Judge (Junior Division) refusing to mark three unregistered documents in the evidence of D.W. 1. Hence, I pass the following: ORDER The writ petition is dismissed. In the event, defendants 1 to 3 pay duty and penalty as notified, then the partition deeds referred to above can be admitted in evidence for the limited and collateral purposes.