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High Court of Karnataka
THE HONOURABLE MR. JUSTICE H.N. NAGAMOHAN DAS
Kuberappa & Others
Versus
T.C. Gopal & Others
W.P. No.9663 of 2008 (GM-CPC)
Decided on : 11-06-2009
Partition Deed - Admissibility of Unregistered Document - Sec.34 of Karnataka Stamp Act, Sec.49 of Registration Act - Sec.34 of Stamp Act mandates that no document shall be admitted in evidence for any purpose, unless it is duly stamped. The proviso to Sec.49 of the Registration Act 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. The word 'collateral transaction' means and includes a transaction between the parties in a deed which do not require registration. 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.
Fact of the Case:
Plaintiff filed a suit for partition and separate possession of his share in the property. Defendants relied on a partition deed dated 25.04.1987, which was objected by the plaintiff for being insufficiently stamped and unregistered. The Trial Court upheld the objections, leading to the writ petition by the defendants.
Finding of the Court:
The Court found that the partition deed relied on by the defendants was insufficiently stamped and unregistered, making it inadmissible in evidence unless duty and penalty were paid. The Court also clarified the admissibility of unregistered documents for collateral transactions under the Registration Act.
Issues: Admissibility of the partition deed dated 25.04.1987 in the suit for partition and separate possession.
Ratio Decidendi: The Court held that an unregistered document affecting immovable property may be received as evidence of a collateral transaction not required to be affected by a registered instrument. The word 'collateral transaction' includes a transaction between the parties in a deed which do not require registration.
Final Decision: The writ petition was allowed, and the impugned order of the Trial Court was quashed. The Trial Court was directed to calculate and notify the duty and penalty payable on the partition deed, and upon payment by the defendants, the partition deed could be admitted in evidence for limited and collateral purposes.
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. 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
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