Satishkumar vs Srinivas and Others

A.S. Bopanna, J.—The petitioners in both these petitions are the plaintiffs in O.S. No. 17/2008.

The plaintiffs have instituted the suit seeking a decree for possession of the suit house described in paragraph 2 of the plaint. The first defendant has opposed the claim of the plaintiffs. In the pending suit, the first defendant has filed I.A. No. 14 seeking that defendants No. 2 and 3 be struck out as they have no interest in the subject matter. The trial Court on consideration of the application has allowed the application. The said order dated 19.02.2013 is assailed in W.P. No. 101706/2013. Though the learned counsel for the plaintiffs contends that the very nature of the pleading would disclose that no cause of action is pleaded against defendants No. 2 and 3, the leave to seek deletion should have been at the instance of defendants No. 2 and 3 and not by defendant No. 1. Therefore, if these aspects of the matter is kept in view, an application in I.A. No. 14 filed by respondent No. 1 would not have been maintainable and therefore the Court below should not have allowed the said application. Accordingly, the order dated 19.02.2013 is set aside. However, liberty is reserved to defendants No. 2 and 3 to file such application if they deem necessary to do so. If such application is filed, the Court below shall consider the same on its merits without being influenced by any observations herein.

The issue in W.P. No. 82721/2012 relates to the order dated 14.03.2012. The plaintiff in the course of the evidence, in justification of the claim put forth in the plaint claiming right to the property has relied upon a letter dated 06.09.1994 said to have been addressed by defendant No. 1 to the President of TMC, Sedam. When the said document was sought to be marked in evidence, at the first instance, defendant No. 1 had opposed the marking of the said document. The document was marked as Ex. P2 subject to objections. Subsequently, defendant No. 1 by an application under Section 33 of the Karnataka Stamp Act filed I.A. No. 11 seeking that the admissibility of the said document marked as Ex. P2 be decided before the suit is proceeded further. The filing of the said application as also the consideration of the validity of the said document was opposed by the plaintiff. The trial court by the order impugned dated 14.03.2012 has allowed such application and also pronounced upon its decision and the document has been marked as Ex. P2. In that regard, it is held that the document at Ex. P2 is not admissible in evidence and the same has been impounded to be forwarded to the Deputy Commissioner by collecting the stamp duty and penalty thereof amounting to Rs. 5,51,100/-. The plaintiff claiming to be aggrieved by the said order is before this Court in this petition.

Learned counsel for the petitioner would submit that the Court below at the first instance having marked the document subject to objections could have considered that issue only at the time of finally deciding the suit and there was no occasion for the Court below to allow the application by accepting the contention of defendant No. 1 and consider the validity of the document itself at this stage. It is further contended that the conclusion as reached by the Court below is not justified and the manner in which the Court below has construed the document to arrive at a conclusion that the same is to be impounded, is not justified.

Learned counsel for the respondents on the other hand with reference to the order passed by the Court below would contend that the Court below has taken into consideration the various decisions relied on to determine the nature of the document and in that view, when the plaintiff was claiming right under the said document to the immovable property, the Court below was justified in coming to the conclusion that the document was not properly stamped and therefore is to be impounded. Hence, the learned counsel contends that the order does not call for interference.

In the light of the rival contentions, I have perused the petition papers including the document which was marked as Ex. P2 which is the subject matter of controversy and also the order impugned herein. In that light, a perusal of the order passed by the Court below would indicate that a major portion of the order is devoted to take note of the decisions of the Hon''ble Supreme Court and the different Courts with regard to the manner in which a document is required to be construed and the consideration that is to be made when a document is to be considered as a conveyance and appropriate stamp duty is required to be paid.

In that light, the Court below has thereafter taken note of the contents of the document at Ex. P2 and on taking note that the said document, refers to the statement of defendant No. 1 that he is the absolute owner of the property has further referred to the subsequent paragraph of the document to indicate that defendant No. 1 has thereafter stated in the said letter about the right being made over to the plaintiff with regard to one portion of the property. In view of such contents therein, it is concluded that the property to which the plaintiff did not have a right, but defendant No. 1 was the absolute owner of the property has been conveyed under the said document i.e., the portion that has been referred therein and therefore, when such transfer of immovable property is there, the stamp duty is required to be paid.

Having taken note of the analysis made in the order, I find it necessary to refer to the document dated 06.09.1994 which is marked as Ex. P2. At the outset, though the contents of the letter is no doubt in the manner as has been taken note by the trial Court, what is relevant for the instant purpose is that it is not a document to which the plaintiff and defendants are parties whereby the properties are being apportioned as per the share as has been mentioned therein. The said document is only a communication independently addressed by defendant No. 1 to the President, TMC, Sedam. The fact as to whether such communication was addressed and thereafter whether mere change of revenue entries would be sufficient to claim title to the property are the issues which would arise for consideration in the suit. The said document cannot be considered as a document whereunder the title is being conveyed. The document being only a letter addressed to the revenue authority, the nature of the right made out by relying on such document is an aspect which may arise for consideration, but the document by itself cannot be considered as a gift deed as stated by the Court below nor a deed of conveyance, but is only a document to be relied for collateral purpose.

Therefore, whether by such document ultimately any right would be available to the plaintiff is a matter which would have to be considered by the Court below in the light of such evidence that would be adduced and not independently by the said document as a transfer of title. Hence, if these aspects are kept in view, the said document by itself is only a communication by defendant No. 1 to the revenue authorities. As such the document cannot be impounded as a document being one of conveyance and the stamp duty not being paid on the said document.

In that light, the marking of the said document as Ex. P2 and the validity of the said document will only depend on the other evidence which is to be adduced. Therefore, if these aspects are kept in view, the order impugned is not justified. The order dated 14.03.2012 is accordingly set aside. However, while considering the document which is marked as Ex. P2, ultimately the Court below shall keep in view these aspects of the matter and arrive at its conclusion in accordance with law.

In terms of the above, the petitions stand disposed of.