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2019 Supreme(Kar) 1912
IN THE HIGH COURT OF KARNATAKA, BENGALURU
Krishna S.Dixit, J.
Smt. S G Thrupthi, W/O Ekantha Reddy And Ors. – Petitioners
Versus
Smt P Veena, D/O P N Prabhakara Reddy - Respondent
Writ Petition Nos. 51234-51235 & 52163 Of 2017
Decided On : 26-06-2019
Advocate Appeared:
For the Petitioner:Sri. D R Sundaresha, Advocate
For the Respondent:Sri. R Nataraj, Advocate
Headnote:
Karnataka Land Revenue Act, 1964 - Section 133 - Registration Act, 1908 - Section 17 - Transfer of Property Act, 1892 - Section 54 - Indian Evidence Act,1872 – Section 114 - Writ jurisdiction of this Court - Immovable property - Lower appellate Court fell in error in treating subject document as a sale deed when it is a deed of mortgage as was rightly held by trial Court keeping in view smallness of consideration for transaction qua hugeness of property comprised therein - Lower Appellate Court failed to see that even now original mother deed is still with petitioners who have again mortgaged subject property subsequent to alleged sale deed entries in revenue records still stand in name of petitioners - Above points having not been treated by lower Appellate Court in right perspective indulgence of this Court is warranted to set injustice at naught - Learned counsel for respondent per contra makes submission in justification of impugned orders contending that - Subject document having been duly executed and registered as a sale deed cannot be treated otherwise ordinarily a registered document is presumed to be true and valid till contra is proved – Held, Second contention that mother deed is still with petitioners and that they have mortgaged subject property again after alleged sale transaction does not yield any milk to petitioners - Section 54 of Transfer of Property Act, 1892 speaks of sale of immovable property - In TRANSFER of PROPERTY ACT Eleventh Edition at Page reads definition of sale indicates that in order to constitute a sale there must be transfer of ownership from one person to another all rights and interest in properties which are possessed by that person or transferred by him with his free consent to another person - Transferor cannot retain any part of his interest or right in that property or else it will not be a sale Going by this version retention of mother deed by petitioner pales into insignificance once sale deed is registered under Section 17 of Registration Act, 1908 - With this ownership of subject property passes on to buyer - Other contention that petitioners even now have possession of subject property again is liable to be rejected because their alleged subsequent mortgage of same in face of subject sale deed is irrelevant petitioners after sale as already stated above do not retain any interest rights or their shades whatsoever once ownership is transferred by registered sale deed by virtue of memo data quad non habit person sans a title cannot pass on one - Last contention of petitioners till date entries in revenue records do continue in their name only is of no avail - True it is that entries in Revenue Records have a presumptive value under Section 133 of Karnataka Land Revenue Act, 1964, but same evaporates once there is a registered sale deed which should be basis for mutating entries by revenue authorities on their own this having not been done presumption does not stand - Writ petitions dismissed
ORDER :
The petitioners being the defendants in an injunctive suit in O.S.No.293/2015 filed by the respondents herein are invoking the writ jurisdiction of this Court seeking invalidation of the order dated 07.10.2017 entered by the learned Senior Civil Judge, Pavagada in respondent’s M.A.No.6/2017 whereby the respondent’s application in IA No.1 filed under Order XXXIX Rule 1 & 2 having been favoured, the petitioners’ application in IA No.2 filed under Order XXXIX Rule 4 has been rejected. After service of notice, the respondent has entered appearance through her counsel and resists the writ petitions.
2. Learned counsel for the petitioners vehemently argues that:
(a) the lower appellate Court fell in error in treating the subject document as a sale deed when it is a deed of mortgage as was rightly held by the trial Court, keeping in view the smallness of consideration for the transaction qua the hugeness of the property comprised therein;
(b) the lower Appellate Court failed to see that even now the original mother deed is still with the petitioners who have again mortgaged the subject property subsequent to the alleged sale deed; the entries in the revenue records still stand in the name of the petitioners.
The above points having not been treated by the lower Appellate Court in the right perspective, the indulgence of this Court is warranted to set the injustice at naught.
3. The learned counsel for the respondent per contra makes submission in justification of the impugned orders contending that:
(a) the subject document having been duly executed and registered as a sale deed cannot be treated otherwise; ordinarily a registered document is presumed to be true and valid, till contra is proved;
(b) the petitioners have filed a civil suit in O.S.No.8809/2018 seeking a decree in effect for cancellation of the subject sale deed and that the trial Court there has not granted any interim relief to them;
(c) since the trial Court had erred in favouring the petitioners, the lower Appellate Court having considered all aspects of the matter has made the impugned order which does not have any demonstrable errors of law or jurisdiction.
So contending, the learned counsel seeks dismissal of the writ petition.
4. I have heard the learned counsel for the petitioners and the learned counsel for the respondents. have perused the petition papers.
5. The first contention of the petitioners that the subject document comprises only the transaction of mortgage as contra distinguished from a transaction of sale is bit difficult to accept, without manhandling its tenor, text & context. Regardless of the nomenclature, true it is, that a document has to be read in full to ascertain what transaction it affects; with that base line, this Court having perused the said document is of a prima facie opinion that it comprises the sale transaction. The Apex Court in the case of Prem Singh. vs. Birbal 2006 (5) SCC 353 at para 27 observes “There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption……” A non-testamentary document which is compulsorily registrable in law, if registered, Court may, subject to all just exceptions, presume its contents to be true u/s.114 of the Indian Evidence Act,1872. That being so, no fault can be laid at the threshold of the lower Appellate Court in construing the said document with its apparent tenor i.e. sale deed. The contention that the consideration for the sale transaction is inadequate regard being had to the hugeness of the property comprised therein, is difficult to treat in the absence of evidentiary material; even otherwise also, that may not constitute a very relevant factor for deciding the nature of transaction.
6. The second contention that the mother deed is still with the petitioners and that they have mortgaged the subject property again after the alleg
