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® IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY 2015
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
WRIT PETITION NO.2995/2015 (GM-CPC)
BETWEEN:
1. SRI C CHINNAPPA
S/O LATE CHINNASWAMAPPA, AGED ABOUT 46 YEARS, PRESENTLY RESIDING AT NO.15, GROUND FLOOR, 1ST MAIN, 2ND CROSS, MEDAHALLI ENCLAVE,
PARVTHINAGAR, JYOTINAGAR MAIN ROAD, MEDAHALLI, VIRGONAGAR POST, BANGALORE 560049
2. CHANDRASHEKAR
S/O LATE PUVAPPA PUJARI, AGED ABOUT 60 YEARS, PRESENTLY RESIDING AT NO.6/A, KANNAPPA BUILDING,EKANTHA NAGARA, BEHIND SEE COLLEGE, AYYAPPA NAGARA, K.R PURAM,
BANGALORE 36 ... PETITIONERS (By Sri: SRIDHAR A G, ADV.) AND
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1. SMT H N BHAVANI NATESH
W/O K.NATESH, AGED ABOUT 46 YEARS,
RESIDING AT FLAT NO.33, 7TH MAIN, 7TH CROSS, MALLESHWARAM, BANGALORE 560003
2. P.CHANDRASHEKHAR RAO
AGE: MAJOR PARTNER IDEAL SOLUTIONS, RESIDING AT NO. 65 & 66, 4TH MAIN, 3RD BLOCK, WARD NO.12, MUNESHWARA TEMPLE ROAD,
HOODY VILLAGE, MAHADEVAPURA CMC, AYYAPPA NAGAR, BANGALORE 560036.
ALSO AT M/S IDEAL SOLUTIONS # 63, 1ST FLOOR, 5TH CROSS,
VASANTH NAGAR, BANGALORE 560052 REPRESENTED BY ITS PARTNER, SRI P. CHANDRASHEKAR RAO
... RESPONDENTS
(By Sri: H R ANANTHAKRISHNA MURTHY,ADV, FOR R1 NOTICE TO R2 D/W )
THIS W.P.IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE ORDER AT ANNX-A DT.13.1.2015 PASSED BY THE XII ADDL. CITY CIVIL JUDGE , BANGALORE IN EX.CASE NO.1069/2011, BY
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DIRECTING THE EXECUTION COURT PERMIT THE PETITIONRS TO MARK THE CERTIFIED COPY OF THE ABSOLUTE SALE DEED DT.6.10.2006 AND ETC.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 22.4.2015 COMING ON
FOR PRONOUNCEMENT OF ORDERS THIS DAY,
A.V.CHANDRASHEKARA, J., MADE THE FOLLOWING:
O R D E R
The order dated 13.1.2015 passed in execution
proceedings in Exn.P.1069/11 which is pending on the
file of the XII Additional City Civil Judge, Bengaluru, is
called in question.
2. During the course of his evidence, the objector
wanted to get a copy of the sale deed dated 6.10.2006
marked as an exhibit on his behalf. The learned judge
has not allowed the said document to be got marked on
the ground that it is still pending consideration before
the concerned Sub Registrar for under-valution. The
learned judge has held that the document now tendered
by the objector is yet to be registered as an absolute
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sale deed. He has further held that even for collateral
purpose also, the document cannot be marked.
3. The copy of the sale deed dated 6.10.2006
produced by the objector is not the certified copy of the
sale deed issued by the Sub Registrar, but a copy
obtained under the provisions of the Right to
Information Act and the same being got marked as an
exhibit in another judicial proceedings. It is this order
which is called in question in this petition on various
grounds as set out in the memorandum of petition filed
under Article 227 of the Constitution of India.
4. Heard the learned counsel for the parties. 5. The points that arise for consideration is as
follows:
(1) Whether the learned trial judge is
justified in refusing to allow the copy of the
sale deed dated 6.10.2006 being marked as
an exhibit on the ground that the very sale
deed is no sale deed in the eye of law?
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(2) Whether the document could be looked
into for collateral purposes under Section 49
of the Registration Act?
6. The decree holder, Smt.Bhavani Natesh has
obtained a decree in A civil suit O.S.1995/09 which was
pending on the file of City Civil Judge, Bengaluru, for
getting possession of the suit schedule property bearing
Khatha No.239 carved out of Survey No.50/2, Hoody
village, K.R.Puram Hobli, Bengaluru East Taluk.
7. During the pendency of the execution
proceedings, two persons namely, Chinnappa and
Chandrashekar chose to file an application under Order
XXI Rules 99 and 100, C.P.C. to hold an enquiry with
regard to their claim. During the course of cross-
examination of PW-2, Chinnapa, the learned counsel for
the applicant-objector chose to confront a copy of the
sale deed dated 6.10.2006 executed by C.Gopal,
Satishkumar and Harishkumar in favour of Chinnappa
relating to land measuring 1.31 acres in Survey
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No.50/2 of Hoody village, K.R.Puram Hobli, which is a
converted land. When an attempt was made to confront
the said document to PW-2, the learned judge has not
allowed the said document to be marked and has
passed an order assigning reasons as to why the said
document cannot be marked.
8. According to the learned judge, the document in
question is withheld by the authorities under the
Registration Act for the following reasons:
i) the document is under-valued; ii) it is not a certified copy of the certified
copy issued by the concerned Sub Registrar; and iii) the document cannot be looked into even for collateral purpose as per the proviso to Section 49 of the Registration
Act. 9. Learned counsel for the petitioners-objectors in
the executing court has relied on a decision of the
Hon’ble apex court in the case of RAYMOND LIMITED
AND ANOTHER .v. STATE OF CHHATTISGARH AND
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OTHERS reported in [2007] 3 SCC 79 to contend that
the document in question has been numbered as 7141
by the Sub Registrar’s Office and therefore it is deemed
to be duly stamped and not chargeable to duty and
hence can be received in evidence as an exhibit.
10. The document which the objector wants to get
marked through PW-2 is stated to be an absolute sale
deed dated 6.1.2006 said to have been executed in
favour of C.Chinnappa-objector by Gopal, Satishkumar
and Harishkumar relating to 1.31 acres of land in
Survey No.50/2 of Hoody village of which the suit
schedule property described in execution is a part and
parcel of the same. On perusing the copy of the
document dated 6.10.2006, it is seen that it was
presented on 6.10.2006 at 3.20 p.m. by C.Chinnappa,
the purchaser before the Sub Registrar, K.R.Puram,
Bengaluru East Taluk. No.7141 is the document
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number given to the said sale deed. There is a specific
endorsement on the said document and it is as follows:
‘This document is kept pending due to
under-valuation under Section 45-A of
the Stamp Act.’
The document so produced before the Sub Registrar
does not bear any certificate of registration. Section 60
of the Indian Registration Act mandates about the
certificate of registration. After complying with the
provisions of Sections 34, 35, 58 and 59 of the
Registration Act, the registering officer has to endorse
thereon the word ‘registered’ together with the number
and page number of the book in which the document
has been copied.
11. Section 60 of the Registration Act has two sub-
sections and the same is extracted below:
60. Certificate of registration.-(1) After such of the provisions of Secs.34, 35, 58 and 59 as apply to any document presented for
registration have been complied with, the
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Registering Officer shall endorse thereon a certificate containing the word “registered”, together with the number and page of the book in which the document has been copied.
(2) Such certificate shall be signed, sealed and dated by the Registering Officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act,
and that the facts mentioned in the endorsements referred to in Sec.59 have occurred as therein mentioned.
It is relevant to note the amendment carried out to
Section 60 of the Registration Act by the Karnataka
Government vide Act No.55/76. Section 10 of the
amended Act relating to Section 60 of the original Act is
as follows:
Karnataka.-(i) Amendments are the same as in kerala.
(ii) In sub-section (1) at the end the following shall be inserted, namely “or where the document is stored in an electronic or other device the certificate
shall contain the word “Registered” with Document No., Year, Book No. and Date”.
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12. The document will be deemed to be registered
only when there is a certificate of registration and the
word ‘registered.’ The number of the document, year,
book number and date should also find place in the said
document. Till the provisions of Section 60 are
complied with, there will be no registration in the eye of
law.
13. It is also useful to refer to Section 45-A of the
Karnataka Stamp Act, 1957. In terms of sub-section
(1) to Section 45-A of the Act, the registering officer is
empowered to keep pending the process of registration
of a document if he feels that the market value of the
property which is the subject matter of the instrument,
has not been truly set forth. He has to arrive at the
estimated market value and communicate the same to
the party. He has to keep the process of registration
pending till a reference is made to the Deputy
Commissioner for determination of the market value of
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the property and proper duty payable thereon. Sub-
section (2) of Section 45-A of the Act states about the
procedure to be adopted by the Deputy Commissioner
on receiving a reference from the registering officer
under Section 45-A (1) of the Act.
14. As per the decision of RAYMOND LIMITED AND
ANOTHER .v. STATE OF CHHATTISGARH AND
OTHERS reported in [2007] 3 SCC 79. Section 32(2) of
the Stamp Act, 1957, which is followed by the
subsequently formed state of Chattisgarh carved out of
Madhya Pradeshspeaks about the legal fiction created
by the use of the word ‘deemed.’ The effect of the words
found in Section 32(3) of the Stamp Act as amended by
the State of Madhya Pradesh and followed by the
subsequently formed state of Chattisgarh is relied upon.
15. Whether the facts of the present case are identical
to the facts presented in the case of RAYMOND, will
have to be looked into.
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16. As per the facts of the said case, M/s Raymond
Limited had a cement business in Madhya Pradesh in
1982 and it had intended to sell the same in favour of
M/s Lafarge (India) Limited on ‘slump sale’ basis. In
this regard, an application had been filed by the
appellant-Raymond for adjudication before the Collector
in terms of Section 31 of the Stamp Act. The collector of
the jurisdictional Janjgir District of the newly formed
state of Chhattisgarh chose to form a valuation
committee comprising of Sub-Divisional Officer
(Revenue) as Chairman and the Valuation Committee
assessed the value of the property in question at
Rs.42,18,31,288/-. On the basis of the value assessed
by the Committee, a sum of Rs.3,74,90,300/- was
assessed as stamp duty and Rs.33,75,601/- as
registration charges.
17. This order of the collector was accepted by the
appellant and the amount of stamp duty and
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registration charges as assessed were deposited. The
endorsement on the deed of conveyance was made by
the registering officer on 16.1.2001 by way of a
certificate in terms of Section 32 of the Stamp Act
whereupon the instrument was duly stamped. On
19.1.2001 a regular deed of conveyance was executed
by Raymond Limited in favour of the purchaser which
was registered on 21.1.2001.
18. It appears the State of Chhattisgarh had chosen
to file a revision petition before the Board of Revenue
seeking revision of the order dated 16.1.2001 passed by
the collector. On receipt of the revision petition, the
Board of Revenue served notice upon the appellant
which filed objections with regard to the very
jurisdiction of the Board to entertain the petition which
petition was ultimately dismissed. The matter was
taken up to the Hon’ble apex court wherein the Hon’ble
apex court had an opportunity to deal exhaustively with
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the scope of Sections 31, 32 and 56(4) of the Stamp Act
as amended by the State of Madhya Pradesh from time
to time.
19. What is ultimately held by the Hon’ble apex court
is that ‘Section 31 of the Stamp Act provides for the
Collector to determine the duty with which the instrument
would be chargeable, if an application in this behalf is
made. The power to determine stamp duty chargeable
for the instrument is contained in Section 31 and Section
32 merely provides for the consequences flowing from
such determination. The Collector, in the event of
fulfilling either of the conditions specified in clauses (a)
and (b) of sub-section (1) of Section 32, is mandated to
certify by endorsement on such instrument that the full
duty which is chargeable, has been paid. Sub-section (3)
of Section 32 of the Act raises a legal fiction. However
the said legal fiction is confined only to the effect that an
endorsement when made, the document shall be
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receivable in evidence and may be acted upon and
registered as if it had been originally duty stamped. The
legal fiction created under sub-section (3) of Section 32 of
the Act, therefore, does not state that the endorsement by
way of a certificate would be final or binding on the
parties.’ This is the observation as found in paragraphs
13 to 15 of the decision.
20. The Hon’ble apex court has further held that ‘sub-
section (2) of Section 56 of the Act does not refer to
Section 32, but the same, in its opinion, is not necessary.
Sub-section (4) of Section 56 was inserted by way of a
State amendment. The intention of the Legislature in
inserting the said provision is clear and explicit as by
reason thereof a power of revision has been conferred
upon the highest authority of Revenue in the State, viz.,
Board of Revenue. The revisional power is to be
exercised by the Board of Revenue either on its own
motion or on an application by any party. The term ‘any
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party’ used in the said provision is of some significance.
By reason of the said provision, not only the State, but
also the person who had filed an application under
Section 31 of the Act, may file a revision application
before the Board of Revenue. The term ‘any party’
therefore implies both the parties to the lis and not the
party filing an application under Section 31 of the Act
alone. The revisional power is to be exercised by the
Board so as to enable it to satisfy itself in regard to the
amount with which the instrument is chargeable with
duty. The revisional proceeding has a direct nexus with
determination of an instrument being charged with duty
and not the endorsement made thereupon at a
subsequent stage.’
21. Section 46 of the Karnataka Stamp Act, 1957,
contemplates about the recovery of duties and penalties,
and Section 46-A which has come into force with effect
from 1.4.1972, speaks about the recovery of stamp duty
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not levied or short levied. Section 45-B of the Act
speaks about the constitution of central Valuation
Committee by the State under the chairmanship of
Inspector General of Registration. The decision of the
Central Valuation Committee is final for the formulation
of policy, methodology and administration of the market
value guidelines in the State and may, for the said
purpose, constitute market valuation sub-committees in
each sub-district and district comprising of such
members as may be prescribed, for estimation and
revision of the market value guidelines in the State.
22. Section 45-A of the Act deals with the procedure
to be adopted in regard to the under-valued instruments
of conveyance. Sub-section (1) of Section 45-A enables
the registering officer under the Registration Act, 1908,
to impound the document presented for registration if
he is of the opinion that valuation is not properly set
forth. He can arrive at the estimated market value and
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communicate the same to the parties and impound the
document pending for registration and thereafter refer
the matter along with a copy of such instrument to the
Deputy Commissioner for determination of the market
value of the property and proper duty. Sub-section (2)
of Section 45-A speaks of the power of the Deputy
Commissioner in terms of Section 45-A(1). Sub-section
(3) of Section 45-A of the Act provides for the Deputy
Commissioner to impound the document within two
years from the date of registration if he is of the opinion
that the market value of the property has not been
properly set forth in the instrument.
23. On a combined reading of the above said
provisions, it is evident that even if the registering
officer has registered a document certifying it as written
on the requisite stamp paper, the Deputy Commissioner
has the power to impound such instrument if he is of
the opinion that the market value shown in the
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document does not truly depict the market value. Sub-
section (1) of Section 46-A of the Karnataka Stamp Act
also empowers the chief controlling revenue authority
about issuing notice to the person who had presented
the document for registration if he is of the opinion that
the market value of the property is not properly set forth
in the said document.
24. On going through the entire decision rendered in
the case of RAYMOND LIMITED (supra), it is evident
that even if a document is registered by the registering
officer after collecting necessary stamp duty and
registration fee, it is subject to the final decision that
may be taken by the State under Section 56(2) of the
Act on its own or any of the parties. The legal fiction
sought to be drawn in respect of a document presented
to the registering authority and the same being
registered will not be final and any party can invoke
Section 56(4) of the Act. Similar provision is found in
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the present Karnataka Stamp Act in Sections 45-A and
46-A.
25. In the present case, the document is already
impounded in the year 2006 by the registering authority
and the matter has been referred to the Deputy
Commissioner and no decision has yet been taken in
this regard. The document so issued is not a certified
copy of the sale deed presented for registration. On the
other hand, it is a copy obtained under the provisions
of the Right to Information Act and the same being
produced and marked in another judicial proceedings.
The copy now produced before this court is for the
purpose of confronting it to PW-2 is a certified copy of
the document produced in another judicial proceedings.
26. The process of registration is not yet complete.
The process of registration gets completed only after the
certificate is made under Section 60 of the Registration
Act. Even when a document is registered in accordance
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with law by the registering authority, the same is
subject to the decision to be taken by the chief
controlling authority under Section 46-A of the
Karnataka Stamp Act, 1957, no legal fiction could be
drawn in the present case. Hence the learned judge has
rightly refused to admit the document in evidence. No
fault could be found in regard to the procedure adopted
by the trial court. The decision relied by the learned
counsel for the petition is absolutely of no help to the
petitioner. Accordingly point no.(1) is answered in the
affirmative.
27. Point no.(2): The learned judge has come to the
conclusion that the document dated 6.10.2006 cannot
be looked into even for collateral purpose. Section 49 of
the Registration Act mandates that the document which
is compulsorily required to be registered is not
admissible in evidence if the same is not registered. But
the proviso to Section 49 provides for looking into the
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said document for collateral purpose. A collateral
transaction must be independent of or divisible from the
transaction which requires registration. In the case of
M/s K.B.SAHA AND SONS PRIVATE LIMITED .v. M/s
DEVELOPMENT CONSULTANT LIMITED reported in
2008 AIR SCW 4829, the Hon’ble apex court has dealt
with Section 49 of the Registration Act and the proviso
appended to the same. The relevant discussion is
found in paragraph 21 and the same is extracted below:
21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that;-
1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act. 2. Such unregistered document can
however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act. 3. A collateral transaction must be
independent of, or divisible from, the transaction to effect which the law required registration.
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4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that
is, a transaction creating, etc, any right, title or interest in immoveable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in
evidence for want of registration, none of its terms can admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
28. In the instant case, the petitioner herein has
relied on the copy of the sale deed dated 6.10.2006 to
contend that he is in physical possession and
enjoyment of the property which is a converted land
bearing No.50/2 of Hoody village, K.R.Puram,
measuring 1.31 acres. According to the decree holder,
the schedule property is part and parcel of Survey
No.50/2. In the application under Order XXI Rules 99
and 100, C.P.C. before the executing court by this
petitioner, a specific reference is made in paragraph 6.
As could be seen from the contents of the said
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application filed by the objector, reliance is placed on
the said document for his lawful possession which
includes title. Unless the document in question is
registered in accordance with law and as discussed in
the earlier paragraphs of this order, the present
document is not admissible in evidence even for
collateral purpose.
29. Though the learned judge of the trial court has
not made a specific discussion as to how the said
document is not admissible in evidence even for
collateral purpose, this court on perusing the
application and the document in question, is of the
opinion that the said document cannot be looked into
even for collateral purpose. Accordingly point no.2 is
answered in the negative.
30. Viewed from any angle, the order passed by the
learned judge is a detailed order adverting to the various
contentions raised by the learned counsel appearing
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before the executing court. No good grounds are made
out to invoke the supervisory jurisdiction vested under
Article 227 of the Constitution of India to interfere with
the well considered order passed by the trial court.
Accordingly the petition is liable to be dismissed.
31. In the result, the following order is passed:
O R D E R
The petition is dismissed. Parties to bear their
own costs.
Sd/- JUDGE
vgh*
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