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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*