REVANSIDAPPA S/O HAYALAPPA AND ORS vs. SAIBANNA S/O HAYYALAPPA HOSMANI AND ANR

1 WP No.202824/2014 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 7TH DAY OF SEPTEMBER, 2018 BEFORE HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE WRIT PETITION NO.202824 OF 2014 (GM-CPC) BETWEEN: 1. REVANSIDDAPPA S/O HAYALAPPA AGE: 63 YEARS, OCC: ABL/ALSTOM EMPLOYEE R/O STRT, 5/7TH CROSS, ALSTOM COLONY SHAHABAD, DIST. GULBARGA – 585 102. 2. BEERAPPA S/O HAYALAPPA AGE: 61 YEARS, OCC: ABL/ALSTOM EMPLOYEE R/O LTRT, 11/4, 13TH CROSS ALSTOM COLONY SHAHABAD, DIST. GULBARGA- 585 102. 3. SUBHASHCHANDRA S/O HAYALAPPA AGE: 52 YEARS, OCC: GOVT. TEACHER R/O GOLA (K), TALUK: CHITTAPUR DIST. GULBARGA – 585 102. … PETITIONERS (BY SRI AMEET KUMAR DESHPANDE, ADVOCATE)

2 WP No.202824/2014 AND: 1. SAIBANNA S/O HAYALAPPA HOSMANI AGE: 67 YEARS OCC: ABL/ALSTOM EMPLOYEE AND AGRICULTURE R/O GOLA (K), TQ.CHITTAPUR DIST. GULBARGA – 585 102. 2. MALLIKARJUN S/O SAIBANNA AGE: 67 YEARS OCC: ABL/ALSTOM EMPLOYEE AND AGRICULTURE R/O GOLA (K), TQ.CHITTAPUR DIST. GULBARGA-585 102. … RESPONDENTS (BY SRI B.D.HANGARKI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 25.03.2014 PASSED ON THE ADMISSIBILITY ON 30.12.1996 IN O.S.NO.86 OF 2012 ON THE FILE OF SENIOR CIVIL JUDGE, CHITTAPUR, WHICH IS AT ANNEXURE-D, AND ETC. THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

3 WP No.202824/2014 ORDER Having heard learned counsel for the parties and having perused the material placed on record, this Court is not persuaded to consider interference in the impugned order dated 25.03.2014, as passed by the Court of Senior Civil Judge, Chittapur in O.S.No.86/2012 on the question of admissibility of the document dated 30.12.1996. In the suit filed by the respondents of this petition for declaration, recovery of possession and perpetual injunction in relation to the plaint schedule properties against the present petitioners, the defendants/petitioners, at the time of examining defendant No.2 in evidence as DW.1, proceeded to mark the documents in evidence, but an objection was raised on marking of the said document dated 30.12.1996, said to be an unregistered deed of partition. In the order impugned, the Trial Court has proceeded to construe the document in question and has found that by virtue of the said document, co-sharers received their respective shares and separate possession and, therefore, stamp duty

4 WP No.202824/2014 was required to be paid and the document was compulsorily registerable. Seeking to question the order aforesaid, learned counsel for the petitioners has endeavoured to argue that the Trial Court has not construed the document in question properly and that the document had only been of recording the past event of division of properties and hence, being only a memorandum of partition, does not require registration. Learned counsel has also referred to the decision of the Hon’ble Supreme Court in the case of Commissioner of Income Tax, Gujarat vs. Keshavlal Lallubhai Patel: AIR 1965 SC 866 and has contended that partition of joint family properties is not regarded as a transfer and, therefore, the document in question does not require registration. It is also submitted that the document could have been admitted in evidence for collateral purposes, as permissible under Section 49 of the Registration Act, 1908. The submissions do not make out a case for interference in this petition. It is not borne out if the document in question is at all attempted to be used for any collateral purpose. By way of the

5 WP No.202824/2014 said document, the defendants/petitioners appear to be seeking to establish that in the year 1996, the partition was effected amongst the co-sharers and separate shares were allotted. There is nothing of any collateral purpose nor any such collateral purpose has been specified by the petitioners. The decision in the case of Keshavlal Lallubhai Patel (supra), rendered on the questions as to whether conversion of self acquired property to joint family property was indirect transfer; and as to whether there was any transfer of assets, on partition after inclusion of self acquired property in common hotchpotch, within the meaning of Section 16(3)(a)(iii) and (iv) of the Indian Income Tax Act, 1922, has no application to the question involved in the present matter as regards the nature and character of the document in question. Apart from the above, the fact of the matter remains that the question before the Trial Court had essentially been of construction of a document sought to be produced in evidence. Construction of a document in the course of trial of the civil suit is clearly a matter within the jurisdiction of the Trial Court and a particular construction of the document cannot be said to be

6 WP No.202824/2014 leading to any jurisdictional error so as to call for interference under Article 227 of the Constitution of India. In the interest of justice, however, even with not interfering under Article 227 of the Constitution of India, this Court would leave it open for the petitioners to challenge the order impugned in the appeal, which may be filed against the eventual decree to be passed in the suit in question. Subject to the observations foregoing, this writ petition stands dismissed. Sd/- CHIEF JUSTICE sdu