IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE WRIT PETITION NO.6157 OF 2013 (GM-CPC) (By Sri.Mahesh K.V. & Sri.H.Mujtaba, Advs.

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04 TH DAY OF JUNE, 2015 BEFORE THE HON BLE MR.JUSTICE MOHAN M. SHANTANAGOUDAR WRIT PETITION NO.6157 OF 2013 (GM-CPC) BETWEEN: B.V.Ramachandre Gowda S/o Late V.Venkategowda Aged about 66 years Residing at Kestur Road Byrpatna, Doddamalur Post Channapatna Taluk Bangalore Rural District Bangalore. (By Sri.Mahesh K.V. & Sri.H.Mujtaba, Advs.).. Petitioner AND: 1. Smt.Kempamma W/o Sri.G.A.Rame Gowda D/o V.Venkate Gowda Aged about 67 years 2. Sri.Ravi S/o Sri.Rame Gowda Aged about 40 years Both are residing at Byrapatna Village Malur Hobli Channapatna Taluk Bangalore Rural District Bangalore.... Respondents

2 2 (By Sri.B.T.Inder Shekar Adv. For R1 & R2) **** This writ petition is filed under Articles 226 & 227 of the Constitution of India, with a prayer to quash the order dated vide Annexure-A passed by the learned Senior Civil Judge and JMFC, Channapatna in O.S.No.19/12. This writ petition coming on for Preliminary Hearing in B Group, this day the Court made the following:- O R D E R By the impugned order dated , the court below has directed to pay the deficit stamp duty and penalty in respect of the unregistered deed dated , which is titled as panchayat parikat. 2. The petitioner herein filed a suit for declaration and for possession of certain property. In the said suit, the plaintiff/petitioner herein produced and wants to rely upon a document dated (titled as panchayat parikat) to show that there was a partition among the brothers. At the time of recording the evidence of the plaintiff, the said document is sought to be marked. It is also relevant to note that what was sought to be produced and marked before the trial Court was certified copy of the deed dated

3 inasmuch as the original of the same is stated to have produced in some other litigation between the parties. The production and marking of the same was objected to by the defendants on the ground that the deed in question is a partition deed and therefore, the same needs to be impounded till the stamp duty and penalty is paid as required under the provisions of the Karnataka Stamp Act, The Trial Court has upheld the contentions of the defendants and directed the plaintiff to pay the deficit stamp duty and penalty as prescribed under Karnataka Stamp Act, 1957 in respect of the document in question. It is further ordered that till such time, the documents will not be marked in evidence. 4. This Court does not find any ground to interfere with the impugned order. It is contended by the learned Advocate for the petitioner that the document in question is merely a memorandum of partition and not a deed of partition; that the deed records certain facts, which had happened long before (date of the deed) and

4 4 therefore, the same need not be registered. It is further submitted by the learned Advocate for the petitioner that the certified copy cannot be impounded in law. He relies open the judgments of the Apex Court in the case of Jupudi Kesava Rao vs. Pulavarthi Venkata Subbarao and Others reported in AIR 1971 SC 1070 and in the case of Hariom Agrawal vs. Prakash Chand Malviya reported in Appeal (Civil) 4696/2007 disposed of on The aforementioned judgments of the Apex Court are not applicable to the facts of this case inasmuch as the Apex Court has decided those matters while interpreting the provisions of Indian Stamp Act, In the matter on hand, the matter has to be decided keeping in mind provisions of Karnataka Stamp Act, Section 3 of the Karnataka Stamp Act, 1957 reads thus: 3. Instruments chargeable with duty.- Subject to the provisions of this Act and the exemptions contained in the Schedule, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as

5 5 the proper duty therefor, respectively, that is to say, (a) every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in the territories of the State of Karnataka on or after the commencement of this Act; and (b) every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed out of the State of Karnataka on or after that day, relates to any property situate, or to any matter or thing done or to be done, in the territories of the State of Karnataka and is received in the territories of the State of Karnataka Provided that no duty shall be chargeable in respect of, (1) any instrument, executed by, or on behalf of, or in favour of, the State Government in cases where, but for this exemption, the State Government would be liable to pay the duty chargeable in respect of such instrument;

6 6 6. It is clear from the explanation to Section 3 that where no proper duty has been paid on the original of an instrument which is chargeable with an amount indicated in the Schedule as proper duty therefor, then a copy of such instrument whether certified or not and whether a facsimile image or otherwise of the original shall be chargeable with duty of an amount which is indicated in Schedule as proper duty for the original of such instrument, and all the provisions of this chapter and chapters IV, VI, VII and VIII of this Act shall mutatis mutandis be applicable to such copy of the original. Thus, it is amply clear that even the certified copy, which is sought to be produced and marked, is liable to be charged with stamp duty. Till such time the same cannot be marked. 7. I have carefully perused the document dated , which is titled as panchayat parikat. The entire document has to be read homogenously. One stray sentence cannot be bifurcated to be read in isolation. If the document is read in its entirety, it becomes clear that

7 7 from onwards the parties have divided in status and their properties are divided by metes and bounds, which means till (i.e., the date of deed) the parties were united in status and the properties were joint. Thus, it is clear that from , the division is stated to have taken place. If it is so, the document dated cannot be said to be the memorandum of partition recording the earlier partition but, it can be safely concluded that the said deed is a deed of partition dated Therefore, the stamp duty as prescribed in the Karnataka Stamp Act, 1957 needs to be paid. Hence, no interference is called for. Petition fails and the same is dismissed. SS SD/- JUDGE