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Case Law Digest On Stamp and Registration
Case Law Digest On Stamp and Registration
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G. Rangaiah
vs
registration
under
Section
17 which
are
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SECTION 35 OF
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as evidence, the bar is absolute under Stamp Act (unless deficit duty and
penalty is paid) and the bar is not absolute under Registration Act,
Therefore under Section 34 of the Karnataka Stamp Act there is a bar for a
document being received in evidence and the same is absolute unless
deficit duty and penalty is paid. Therefore, for any purpose, the document
which is not duly stamped is inadmissible in evidence.
DOCUMENT NOT ADEQUATELY STAMPED OR REGISTERED CANNOT
BE ADMITTED EVEN FOR COLLATERAL PURPOSE 2009 SC
Hon'ble Supreme Court in Avinash Kumar Chauhan V. Vijay Krishna
Mishra - AIR 2009 SC 1489 submitted that the document in question
being inadmissible in evidence could not be relied upon even for
collateral purpose unless it was adequately stamped and was registered.
WHAT THE LAW SAYS IN SECTION 49 OF REGISTRATION ACT
The main provision in Section 49 provides that any document which is
required to be registered, if not registered, shall not affect any immovable
property comprised therein nor such document shall be received as
evidence of any transaction affecting such property. The proviso,
however, would show that an unregistered document affecting
immovable property and required by the 1908 Act or the Transfer of
Property Act, 1882 to be registered may be received as an evidence to the
contract in a suit for specific performance or as evidence of any collateral
transaction not required to be effected by registered instrument. By
virtue of the proviso, therefore, an unregistered sale deed of an
immovable property of the value of Rs 100 and more could be admitted in
evidence as evidence of a contract in a suit for specific performance of the
contract. Such an unregistered sale deed can also be admitted in evidence
as an evidence of any collateral transaction not required to be effected by
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Gangulappa
v.
Revenue
Divisional
Officer,
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case the trial court should have asked the appellant, if it finds that the
instrument is insufficiently stamped, as to whether he would remit the
deficient portion of the stamp duty together with a penalty amounting to
ten times the deficiency. If the appellant agrees to remit the said amount
the court has to proceed with the trial after admitting the document in
evidence. In the meanwhile, the court has to forward a copy of the
document to the Collector for the purpose of adjudicating on the question
of deficiency of the stamp duty as provided in Section 40(1)(b) of the Act.
Only if the appellant is unwilling to remit the amount the court is to
forward the original of the document itself to the Collector for the
purpose of adjudicating on the question of deficiency of the stamp duty.
The penalty of ten times indicated therein is the upper limit and the
Collector shall take into account all factors concerned in deciding as to
what should be the proper amount of penalty to be imposed.
ADMISSIBILITY OF UNREGISTERED PARTITION DEED
Siromani v. Hemkumar, A.I.R.1968 S.C.1299: Of course, the document
is admissible to prove an intention on the part of the coparceners to
become divided in status; in other words, to prove that the parties ceased
to be joint from the date of the instrument . .
Roshan Singh v. Zile Singh, A.I.R.1988 S.C.881 : It is well-settled that
the document though unregistered can however be looked into for the
limited purpose of establishing a severance in status, though that
severance would ultimately affect the nature of the possession held by the
members of the separated family co-tenants. . . . .
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Court.
Nagesh
Venkat
Rao
Desai
Srinivasacharya
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entitled to live in the house in the portion occupied by her till the full
payment of Rs. 40,800/- is made to her and she will not be liable to pay
any rent for the occupation of the portion and on the said payment, she
will not have any right and also no interest left in the said property". So
her right in the said property and her interest in the property ceases on
payment of the amount of Rs. 40,800 and not otherwise, not by the
operation of document itself. The document itself creates a right by itself
to get Rs. 40,800 and right to obtain the payment and on payment the
obligation of relinquishment of her right or interest in the property. It
does nothing more. . . .In that view of the matter, though there is no
dispute about the propositions, these two decisions would be applicable
to the facts of the instant case, we are of the opinion on an analysis of the
award that it did not create any right in any immovable property and as
such it was not compulsory to register it. - Captain Ashok Kashyap v
Mrs, Sudha Vasisht and Another, 1987(3) Kar. L.J. Sh. N. 15 , AIR 1987
SC 841.
WHETHER FAMILY ARRANGEMENT REQUIRES REGISTRATION
Family arrangement - Unregistered - Effect.1974(1) Kar. L.J. Jr. 120 Sh. N.
296.
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part of decree - Held view of High Court correct in law. Held:- Here we are
concerned with the question whether items 1 to 7 properties brought to
sale in execution of decree in O.S. No. 95 of 1953 are a part of decree or
order of the Court, relating to the subject-matter of the suit or proceeding.
We have already held that Items 1 to 7 of the properties mentioned in the
separate application, which was the subject-matter of the attachment
before the judgment, have become part of the decree and also the order of
the Court in the proceedings under Order 38, Rule 6 of C.P.C. Therefore,
the decree, though passed on compromise, formed part of the decree and
order of the Court in Court proceedings. The immovable properties whose
sale is impugned are not properties other than the subject-matter of the
suit or proceedings. Therefore, the view of the High Court is correct in
law. - S. Noordeen v V.S. Thiru Venkita Reddiar and Others, 1996(4)
Kar. LJ. 710 (SC).
AN AGREEMENT TO RECONVEY DOES NOT REQUIRE REGISTRATION
Sale of immovable property - Unregistered agreement to reconvey - Suit
for specific performance. An agreement to reconvey does not require
registration and is therefore admissible in evidence and a suit for specific
performance can be founded on it. AIR 1926 Bom. 131 dist. Narayanaswamy v Muniyamma, AIR 1974 Mys. 13 :1973(1) Mys. LJ.
310.
DECLARATION OF A RIGHT IN IMMOVEABLE PROPERTIES MADE IN
DECREE DOES NOT REQUIRE REGISTERED INSTRUMENTS TO
CONVEY THE TITLE
Exemption from registration - Decree or order of Court - Decree passed in
suit for declaration of title and possession, on becoming final without
being challenged in appeal, operates as res judicata, barring subsequent
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effect. - Rathnakar v H.S. Madhava Rao and Others, 1990<4) Kar. L.J.
541 : ILR 1991 Kar. 2190.
IF A PERSON EFFECTED A TRANSFER OF PROPERTY, HE CANNOT
THEREAFTER DEAL WITH THE SAME PROPERTY, IGNORING THE
RIGHTS ALREADY CREATED BY THE EARLIER TRANSFER EFFECTED
BY HIM
Ex. P-l, a sale deed dated 17-9-1962 executed by plaintiffs 1 and 2 in
favour of defendant was refused registration by the Sub-Registrar on
denial of execution by the plaintiffs 1 and 2, but was compulsorily
registered on 25-8-1964 by the order of the District Registrar dated 19-81964 under' Section 75(1) of the Registration Act. Meanwhile plaintiffs 1
and 2 executed sale deeds Exts. P-2 and P-3, dated 10/11-10-1962 of the
same property in favour of plaintiff 3 and they were registered on 11-101962. The sale deed Ext. P-l, dated 17-9-1962 in favour of defendant
prevailed over the sale deeds Exts. P-2 and P-3, dated 10/11-10-1962,
notwithstanding the fact, that the sale deed Ext. P-l was registered long
after the sale deed Exts. P-2 and P-3 registered. Section 75 only
determines the date of registration in respect of documents compulsorily
registered in pursuance of an order under Section 75(1). It does not deal
with the effect of registration of a document. That topic is dealt with by
Section 47. The right of priority will have to be determined by the
combined operation of the provisions of Sections 48 and 54 of T.P. Act and
Sections 47 and 48 of the Registration Act. Section 47 of the Act is
attracted to all successive sale deeds executed by the same vendor in
respect of the same property. The question of priority has therefore to be
determined only with reference to Section 48. Therefore if a person
effected a transfer of property, he cannot thereafter deal with the same
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years, that can be relied upon in proceedings under Section 21 of the Rent
Control Act, to prove that the respondent was a tenant. (1969)1 SCWR
341 relied upon. - Abdul touack v H.K. Gopal Shetty, AIR 1974 Mys. 7 :
1973(1) Mys. L.J. 541.
Unregistered lease deed - No total bar to reception in evidence - Can be
used for collateral purpose of proving nature of possession. Held: The
petitioners-plaintiffs case does heavily depend on this document. It may
be true that since the document is not a registered one, that there would
be certain restrictions as regards its evidentiary value and to what extent
the Court can look at it and what sort of inferences or conclusions can be
drawn. That does not mean that the learned Judge was justified in having
refused to admit the document in evidence. There is no total bar to the
reception in evidence of an unregistered document but that it will have to
be subject to the limitations prescribed in Section 49. - Gundu Pralhad
Patil and Others v Balu Shahu Vajantri and Another, 1996(3) Kar. L.J.
574A.
Unregistered lease could be looked into to understand nature of
possession. - Doddappa alias Sidranuippa Nagappa Yatgiri and Others v
Basavanneppa Basappa Chinniwalar, 1978(1) Kar. LJ. 414.
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document, i.e., copied in the book concerned but the said entry by itself is
not the original document. The entry may be a copy, in register or book,
from the original deed itself, which original deed is, as per Section 61(2)
of Registration Act, returned to person presenting it. So the copy of entry
which is given under Section 57 is not the copy from original deed itself
but the copy from the copy of deed only. Sub-section (5) of Section 57
makes provision for copy from copy of document given under Section
57(1), (2) and (3), admissible only for limited purpose namely of proving
the contents of the original document. Such a copy cannot be termed to be
certified copy of the original document, but a copy of the entry or of the
(copy) of the document. It may be a secondary evidence but not covered
by clause (f) of Section 65 of the Evidence Act. Before leading secondary
evidence, such as the certified copy thereof, the party concerned has to lay
foundation and establish reason for non-production nor availability of
original document. ... .In the present case, clauses (e) and (f) of Section 65
of the Evidence Act are not applicable. Therefore, in order to produce the
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57 of the
Registration
Act,
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Admittedly the sale deeds were executed by the plaintiffs. But they claim
that it was a document of collateral security. Since the mandatory
requirements of Section 58 of the Registration Act has been complied
with and there is no evidence to the contrary, the sale deeds are held
proved and are valid sale deeds. - Shekarappa and Another v Beerappa
and Another, 2000(3) Kar. L.J. Sh.N.18.
paid
in
his
presence
has
presumptive
value.
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'executed'. Being satisfied that the vendor has signed the sale deed is not
enough. The District Registrar must come to the conclusion that the
signature had been affixed after understanding the contents and tenor of
the document. Where the District Registrar refuses to summon witnesses
who are prima facie connected with the execution of the document, it
amounts to a denial of opportunity to the party to prove his contentions. Banasettappa v District Registrar, Bangalore, 1965(2) Mys. L.J. 733.
While disposing of an appeal under Section 72, the District Registrar has
no power or jurisdiction to direct payment of consideration to the
executant, as a condition precedent for getting the document registered. Doddahalli Shivanegowda v District Registrar, Bangalore, 1969(1)
Mys. L.J. 525.
DUTY OF SUB REGISTRAR
When a document is presented for registration before a Registrar, the
authority has to examine whether necessary general stamp paper has
been produced, properly executed and the executant admits execution of
the document, and if he is satisfied on all those matters, and necessary
registration fee is Paid, he is bound to register the same without
concerning himself with any other aspect and more so with the
requirement of the Karnataka Town and Country Planning Act, 1961.
Thus, refusal to register on the ground that the layout plan of the area has
not been approved by the Town Planning Authority is illegal. - Makam
Satyanarayana Setty v State ofKarnataka, 1982(2) Kar. LJ. Sh. N. 70.
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Plaintiff presented the sale deed executed by 1st defendant before the
Sub-Registrar on 18-8-1966. As the Sub-Registrar refused to register the
document plaintiff took up the matter in appeal to the District Registrar,
who directed the Sub-Registrar to register the sale deed. Accordingly, the
sale deed was registered on 27-9-1968. In the meanwhile 1st defendant
purported to sell the property to 2nd defendant on 27-12-1967 and got it
registered the same day. Held, that the document in favour of plaintiff
must be held to have been registered on the date it was first presented for
registration i.e., 18-8-1966 and must be deemed to have been registered
earlier than the sale to 2nd defendant for the purpose of determining
priority. - B.R. Gopalakrislina Setty v Kanakaiah Setty and Others,
1982(1) Kar. LJ. 161.
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three requirements: (i) the stamp must be of the proper amount; (ii)
should bear the proper description of stamp; (iii) the stamp must have
been affixed or used according to law for the time being in force. It is
evident from sub-section (2) of Section 33 that for determining whether
an instrument bears the proper stamp and thus complies with the
requirement of being 'duly stamped', the stamp duty payable on the
instrument must be determined only with reference to the terms of the
instrument and not evidence dehors or beyond the instrument. Section 33
does not contemplate an enquiry, with reference to material other than
the instrument itself, to reach a conclusion as to whether such instrument
is duly stamped or not. In other words, only the description, nature and
contents of the document and the consideration mentioned in the
instrument can be looked into, to find out whether instrument is 'duly
stamped'. If a property of the market value of Rs. 25,000/-, is conveyed
under a sale deed, mentioning the sale consideration as Rs. 10,000/- and
the stamp duty at the specified rate is paid on Rs. 10,000/- then it is duly
stamped for purposes of the Act, even though there may be
undervaluation regarding market value. This is so, because, to find out
whether there is undervaluation, an enquiry beyond the terms and
contents of an instrument, is required, to determine the market value.
Undervaluation cannot be assumed merely with reference to the terms or
contents of an instrument but can be determined only with reference to
external evidence relating to market value. Section 33 does not
contemplate or permit any such enquiry into the market value of the
property which is the subject-matter of the instrument, nor determination
whether there is any undervaluation. Thus, a deed of conveyance bearing
the necessary stamp duty at the specified rate on the consideration or
value mentioned therein, cannot be considered as 'not duly stamped' and
therefore cannot be impounded under Section 33. The Sub-Registrar can
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levied
under
under
Section
37(2)
so
that
the
Deputy
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the
Conveyance, Exchange or Gift was less than the market value. In such
case, action could be taken only under Sections 28 and 61 of the Act. The
combined effect of Section 28(1) and (2) and Section 61 and Rule 15-A
was that if there was any undervaluation, the person executing the
document could be prosecuted and punished under Section 61. Once
Section 45-A was made applicable, of course, the deficit stamp duty could
also be collected. But under no circumstances, penalty could be levied
under Section 39, in regard to undervalued instruments. - Huleppa
Balappa Karoshi v Sub-registrar, Chikodi, 1996(5) Kar. LJ. 605.
BOND
Definition of 'bond' and under Article 12 - Meaning of 'bond' - Schedule Article 30{c) - 'Security deposit' whether premium or fine under Section
105 of Transfer of Property Act or money advanced in addition to the rent
reserved. Security deposit is not the same thing as premium or fine as
explained under Section 105 of the Transfer of Property Act, or any
money advanced in addition to the rent reserved. Article 12 expressly
excludes the other kinds of bonds referred to in the Note appended to the
said Article, which are chargeable to duty, under the specific articles
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mentioned. What follows from the above is that the category of bonds
mentioned in the Note, are not exigible to duty as 'bond' in the generic
sense as defined in Section 2(l)(a) under Article 12. 'Bond' is a generic
term. A bond is an instrument in writing by which person binds himself
or commits legally to pay a certain sum of money to another on certain
conditions. Generally accepted definition of bond is that it is a certificate
of evidence of a debt, more fully described in Section 2(l)(a). The security
deposit does not answer the description of premium or a fine and the
same reason also hoJds good that it is not a bond in the generic sense.
Thus, the document is not exigible to stamp duty either as premium or as
bond in the generic sense. Chief Controlling Revenue Authority v M. V.
Owndrashckar and Others, ILR 1984 Kar. 1003 (FB): AIR 1985 Kant.
61 (FB).
BOND
If a document consists of only an obligation to repay the money, then it
may be considered as a bond. But when the document, in addition to the
undertaking to repay the money personally, also gives a right to the
creditor to recover the money by sale of a specific immoveable property,
it will not come within the ambit of 'bond' as defined by the Act.
Nflgablmsappa v Laxminarayana, ILR 1985 Kar. 1742.
MORTGAGE
Where petitioner executed a mortgage in 1956 and on Aug. 28, 1958
obtained further accommodation from the creditor and executed a
memorandum on Sep. 1, 1958 reciting that the title deeds already with
the creditor should be treated as deposit for the equitable mortgage in
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respect of the further advance and further recited the rate of interest and
other conditions, Held: the memorandum was not an instrument of
mortgage, but only an agreement relating to deposit of title deeds.
Shivacharanlal v State of Mysore, (1963)1 Mys. L.J. 107.
MORTGAGE
To constitute a mortgage there must be a transfer of right over or in
respect of property. See Bangalore City Municipal Corporation Act, S.
142, (1963)1 Mys. L.J.197.
MORTGAGE
Mortgage deed - Under the Stamp Act a document to be a mortgage must
effect a transfer. A document which has not been registered is not
chargeable to stamp duty as a mortgage. AIR 1953 Mad. 764 F.B.
followed. Malkajappa v C. Ayyamma, (1964)1 Mys. L.J. 299.
MORTGAGE
Essential ingredients of a mortgage deed - There can be no transfer of
interest in immoveable property if principal money secured is more than
one hundred rupees, unless the mortgage is effected by a registered
instrument signed by the Mortgager and attested by at least two
witnesses. If documents not registered, it cannot be said the documents
have transferred any interest in immoveable property. In such cases
liability for levy of duty and penalty, as a mortgage deed arises. - Vasudev
Pandurang v Basappa Hanumanthappa, ILR 1985 Kar. 547.
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CONVEYANCE
Transfers other than sale when amount to conveyance? See Arts. 19
and 44, (1966)1 Mys. LJ. 21 FB.
CONVEYANCE OR RELEASE
Where a document recited that there was an agreement to sell on
payment of consideration, but that a sale deed was not executed because
of the loss of stamp paper purchased for the purpose and that the
executant had lost his title to the property by prescription and as the
second party who had acquired title by adverse possession wanted a
reference deed for collateral purposes, therefore the deed was executed
under which the executant relinquished his right, title and interest in
favour of the other party, held, the document amounted to conveyance or
sale as defined in S. 2(d) of the Act and chargeable to stamp duty under
Art. 20 of the Sch. Though the word sale or purchase had not been used in
the document, the word 'hereby relinquished' whatever right, title or
interest the executant possessed indicated that by the document, the
rights possessed by the executant were being transferred in favour of the
other party. State by Sub-registrar v M.L. Manjunatha Shetty, AIR
1972 Mys. 263 (FB) : (1972)1 Mys. L.J. 508 (FB).
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respect of such instrument the Court can direct the party to pay the duty
and penalty as the case may be. But, mere production of the certified copy
of the map does not come within the meaning of definition of an
"instrument". - Channamma and Others v Shantkumar, ILR 2004(2)
Kar. 1052.
KAIDB LAND
Companies Act, 1956, Section 21 - Transfer of Property Act, 1882, Section
105 - Karnataka Industrial Areas Development Act, 1966, Section 14(d) Industrial plot allotted to company - Lease~cum-sale deed executed in
respect of - Company subsequently changing its name and presenting
supplementary agreement for registration in order to substitute its old
name by its new name in original lease-cum-sale deed, retaining terms
and conditions of lease-cum sale unaltered - Company under its new
name continuing to be same as it was under its old name except for
change of its business of manufacturing readymade garments to software
development - By reason of mere change of user of demised property
from carrying on one business to another, fresh transaction does not take
place - Stamp duty on consideration fixed under original agreement
Cannot again be demanded in respect of such supplementary agreement
which does not effect transfer or create any new right or liability in
respect of demised premises. Held: The appellant was permitted by the
third respondent herein to establish a software park. The execution of
supplementary agreement became necessary consequent upon the
change in the name of the company. By reason of such supplementary
agreement although it was permitted to establish a software park but by
reason thereof no fresh transaction was entered into. .... The said lease
was governed by Section 105 of the Transfer of Property Act, 1882. By
reason of the supplementary agreement, a restrictive covenant has been
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SETTLEMENT DEED-ATTESTATION
Transfer of Property Act, 1882, Section 123 - Indian Evidence Act, 1872,
Sections 68 and 72 - Deed of settlement - Proof of execution of - Since law
does not require attestation of such document though it is attested, it may
be proved by admission or otherwise, as though no attesting witnesses
existed - Examination of at least one of attesting witnesses, held, is not
obligatory. Held: The settlement deed is not a document required by law
to be attested. Section 72 of the Indian Evidence Act prescribes that an
attested document not required by law to be attested may be proved as if
it was unattested. The settlement deed though not required by law to be
attested, has been attested by attestors. But then under Section 72 of the
Indian Evidence Act, it is not obligatory on the part of the person
propounding the document to examine the attesting witness. The
testimony of the attesting witness is not the only evidence by which a
settlement deed can be established. It can be done by other kinds of
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SETTLEMENT OR GIFT
Settlement and gift -Though under both property is given without
consideration, however where gift under registered deed is for providing
for dependent, document is deed of settlement and not deed of gift - Since
document is intended to have immediate operation, it confers title to
property immediately on beneficiary. Held: The word 'settlement' as
defined under Section 2(24) of the Indian Stamp Act and Section 2(l)(q) of
the Karnataka Stamp Act is a non-testamentary disposition, in writing, of
movable or immovable properties made in consideration of marriage, for
the purpose of distributing property of the settlor among his family or
those for whom he desires to provide, or for the purpose of providing for
some person dependent on him or for any religious or charitable purpose
and includes an agreement in writing to make such a disposition and
where any such disposition has not been made in writing, any instrument
recording, whether by way of declaration of trust or otherwise, the terms
of any such disposition. When the document is executed for any of the
purposes mentioned in the above sections of the Indian Stamp Act or the
Karnataka Stamp Act, then it could be called a 'settlement deed'. There is a
clear distinction between the deed of settlement and a deed of gift and
both the documents are recognised as the mode of conveyance of the
property. A plain reading of the document-Exhibit P. 1 in question makes
it clear that what the deceased did under the settlement deed-Exhibit P. 1
was to distribute his properties referred to in that deed to his wife and
daughter for the purpose of providing for them who were dependent on
him and were als'o the members of his family. Thus, the document in
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question squarely falls within the term clause (b) of sub-section (24) of
Section 2 of the Indian Stamp Act which sub-section defines the term
'settlement' under the Indian Stamp Act and the same is the definition of
the word 'settlement' under the Karnataka Stamp Act also. A perusal of
the document shows that the purpose of the same was to distribute or to
settle the property of the deceased to his wife and daughter who were
dependent on him. Mrs. Devaki and Anothc.r v Mrs. Lingamma,
2002(3) Kar. L.J, 77A.
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apart
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invalid on the ground of crudities and inequities. In the instant case, the
impugned notification came to be made keeping in view the financial
position of the persons who are unequal in many respects. Therefore, the
impugned notification having been based on reasonable classification,
cannot be interfered with .... Section 19 of the Act entitles the State of
Kaniataka to demand proper stamp duty from persons who have
registered .their documents outside the State but the same are
subsequently enforced within the State of Kaniataka and therefore the
procedure initiated under Section 46-A of the Act, by the respondents is in
consonance with the said provisions of the Act. - Erappa and Others v
State of Karnataka and Others, 1991(2) Kar. L.J. 432B : ILR 1991 Kar.
3102.
PRODUCTION OF DOCUMENTS - DUTY OF COURT TO EXAMINE
DOCUMENT
Duty of Court to examine document independently whether it is duly
stamped or not, irrespective of whether objection against marking is
raised or not - Once Court admits document in evidence even wrongly,
such admission becomes final and cannot be called in question thereafter
on ground that document was not duly stamped. Held: A duty is cast upon
every Judge to examine every document that is sought to be marked in
evidence. The nomenclature of the document is not decisive. The question
of admissibility (with reference to Section 34 of Karnataka Stamp Act, or
Section 35 of Indian Stamp Act and Section 49 of Registration Act) will
have to be decided by reading the document and deciding its nature and
classification. The tendency to mark documents without inspection and
verification should be eschewed. Even while recording ex parte evidence
or while recording evidence in the absence of the Counsel for the other
side, the Court should be vigilant and examine and ascertain the nature of
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A combined reading of Sections 33, 34, 35, 36, 37 and 41 of the Karnataka
Stamp Act requires the following procedure to be adopted by a Court
while considering the question of admissibility of a document with
reference to the Stamp Act; (a) When a document comes up before the
Court, it has to examine and determine whether it is properly stamped.
When the other side objects to it, the Court should consider such
objection and hear both sides; (b) After hearing, if the Court comes to the
conclusion that the document has been duly stamped, it shall proceed to
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admit the document into evidence; (c) on the other hand, if the Court
comes to the conclusion that the document is not stamped or
insufficiently stamped, it shall pass an order holding that the document is
not duly stamped and determine the Stamp duty/deficit stamp duty and
penalty to be paid and fix a date to enable the party who produces the
document to pay the Stamp duty/deficit Stamp duty plus penalty; (d) If
the party pays the duty and penalty the Court shall certify that proper
amount of duty and penalty has been levied and record the name and
address of the person paying the said duty and penalty and then admit the
documr a in evidence as provided under Section 41(2); and the Court
shall send an authenticated copy of the instrument to the District
Registrar together with a Certificate and the amount collected as duty and
penalty, as provided under Section 37(l)(e). If the party does not pay the
duty and penalty, the Court will have to pass an order impounding the
document and send the instrument in original, to the District Registrar for
being dealt with in accordance with law as per Section 37(2) of the
Karnataka Stamp Act.
Document insufficiently stamped and document requiring registration
but not registered - Provisions of both Acts bar such documents being
received in evidence - Regarding insufficiently stamped document, bar is
absolute, subject to provision enabling Court to collect deficit Stamp duty
and penalty - Regarding unregistered document bar is not so absolute, as
unregistered instrument may be received as evidence of contract in suit
for specific performance or as evidence of part performance of contract of
sale of immovable property or as evidence of collateral transaction not
required to be effected by registered instrument. Held: The difference
between Section 34 of the Karnataka Stamp Act and Section 49 of the
Registration Act should also be borne in mind. Section 34 says "no
instrument chargeable with duty shall be admitted in evidence for any
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SUB-REGISTRAR
TO
REGISTRATION,
HAS
WHOM
NO
DEED
POWER
TO
IS
PRESENTED
IMPOUND
DEED
FOR
FOR
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the
was
presented
for
registration.
provisions of Section 35 of the Registration Act of 1908 when the SubRegistrar has refused to register the document presented before
him, he has to follow the procedure as provided under Section 71 of the
Act, 1908 the order of reference of the unregistered document made by
the Sub-Registrar to the Deputy Commissioner amounts to refusal to
register the document for which the Sub-Registrar was statutorily
obligated to assign his reasons for his refusal to register the document.
Upon such order the petitioner has got a statutory remedy under Section
72 of the Act, 1908. Therefore, the action of Sub-Registrar in not
registering the document and referring the document to the Deputy
Commissioner for examining as to whether the stamp duty paid on the
document is sufficient or not is bad in law. Therefore, the order passed by
the Deputy Commissioner on the reference is not in conformity with
either the provisions of the Karnataka Stamp Act or Indian Registration
Act. Therefore, the impugned order passed by him is wholly
unsustainable in law. . . . The plain reading of sub-sections (2) and (3) of
Section 45-A of the Act, 1957, it makes very clear that the Sub-Registrar
has got power to make reference of the conveyance deed after
registration of the document under Section 45-A of the Act, 1957.
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Therefore, the Deputy Commissioner of the area who has been notified for
the purpose of the provisions of the Karnataka Stamp Act, 1957 has to
examine the document with regard to the value of the property which is
the subject-matter of 'Conveyance' Deed, after registration of the
document by the Registering Authority under the provisions of the Indian
Registration Act, then only the second respondent can exercise his power
under Section 45-A(2) and (3) of the Act of 1957. - Dr. Uslm Motwn Das
v The Divisional Commissioner, Bangalore Division, Bangalore- and
Others, 2001(3) Kar. LJ.463.
LEASE DEED - STAMP DUTY INSUFFICIENCY
Document styled, as lease not properly stamped produced during the
course of eviction petition by the petitioner - Whether Trial Court was
right in holding it as inadmissible evidence. Held: Proviso (a) to Section
34 of the Karnataka Stamp Act, however, provides for a procedure to pay
the stamp duty and the prescribed penalty, if a party requires the
document to be admitted in evidence. That procedure is still available to
the petitioner - Hanumanumul Baid v Ananthapadmanabha, ILR 1992
Kar. 1133.
INSTRUMENT NOT DULY STAMPED - NOT ADMISSIBLE IN EVIDENCE,
NOT EVEN FOR COLLATERAL PURPOSES.
Section 34 of the Act mandates, no document shall be admitted in
evidence for any purpose, unless it is duly stamped. Section puts a
complete embargo and bar against admissibility of such a document
which is not stamped, or which is not duly stamped, and it cannot be
made use of for any purpose. - Doddabasappa v Gurubasappa
(Deceased) by LRs. and Others, 2001(4) Kar. L.J, 104A.
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COURT
SHOULD
APPLY
ITS
MIND
TO
THE
QUESTION
OF
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PALU-PATTI KARAR
Production of earlier Palu-patti Karar, not duly stamped and registered,
only to prove as to when joint status stood severed - Held, Palu-patti
Karar admissible in evidence; Order of Trial Court directing payment of
duty and penalty on the document set aside. In this Court what has been
contended is that once the Court came to the conclusion, it was admissible
in evidence for collateral purpose of only proving the severance of status
and not evidence of the partition, the Court was not correct in asking the
plaintiff to pay duty and penalty as if the document was not required to be
stamped. Undoubtedly, under the Karnataka Stamp Act an instrument of
partition is required to be duly stamped according to the provisions
contained there, i.e., on the market value of the largest of the shares. But,
that has already been done in the deed of partition executed in the year
1968 and duly registered in respect of the same properties pursuant to
what was agreed in the instrument in question. Therefore, the learned
Munsiff committed an error in coming to the conclusion that there can be
two partition deeds in respect of the same properties by holding the
instrument in question to be also a deed of partition. If parties have paid
duty on the instrument of partition of 1968, that will be the document
which will be effective being a registered document and the earlier palupatti has no other value except as evidence of severance of Joint status,
that is, the point of time to be reckoned for purpose of severance of status
- Narayan Rao, M.S. v M.S. Shivarama, 1988(2) Kar. L.J. 330.
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PALU-PATTI KARAR
Documents not required to be registered - Document merely reciting
properties which were assigned to respective brothers in previously
concluded partition of joint Hindu family does not declare any right and
hence there is no necessity of registering such document - Such document
produced, not as suit document, but only for collateral purpose of
evidencing possession of property, is admissible as evidence in suit for
perpetual injunction.Document refers to the items of the properties which
were given to the brothers. It is only a list of articles given to the
respective brothers on 31-3-1976 under the heading 'division regarding
family amenities and properties'. ... In this case, the document in question
is not a suit document. It is only produced for collateral purposes to show
that the respondent is in possession of the property. According to the
parties, the partition had taken place in the year 1957. Document
came^nto being only to show the items of the property allotted to the
shares of each brother. Therefore, the learned Court below has come to
the conclusion that it is nothing but a palupatti or memorandum of
partition. .... The same was produced only to show severance of the
coparcenary joint family n the same is indicating the list of properties
allotted to each brother by virtue of earlier partition effected amongst
them. Partition list which are mere records of previously completed
partition between the parties can be admitted in evidence even though
they are unregistered to prove the facts of partition..... Even if the
document is not admissible in evidence because of the bar imposed by the
provisions of Sections 17 and 49 of the Registration Act, still the party is
not precluded from adducing oral evidence to show that a particular
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duty and penalty is that of the Court. Section 34 of Karnataka Stamp Act
prohibits the reception in evidence of documents which are insufficiently
stamped. But a proviso is added thereto according to which the same is
chargeable and the person having authority to receive evidence may
impose such duty together with the penalty as specified therein. The
exercise of jurisdiction under the proviso to Section 34 arises when a
document is actually tendered in evidence but it might have been
produced much earlier by one or other of the parties to the litigation.
When a document chargeable to duty and produced into Court in
connection with a proceeding before it is found by that Court to be either
not stamped at all or insufficiently stamped it is bound to impound it. Idea
of impounding it is to enforce collection of duty or deficient duty together
with penalty. When a document comes before the Court for the purpose of
being used in evidence, the first jurisdiction of determining the duty and
penalty is that of the Court. It is only when that stage has crossed and the
document is not tendered in evidence that it ceases to be a document
impounded by the Court. In cases where party has produced certain
document and expressly makes his intention clear that he would not rely
upon that document in support of his causes pleaded, then that would
amount to his not producing for purposes of placing reliance on that
document by way of legal evidence then the question of Court exercising
its powers under Section 34 of the Karnataka Stamp Act would not arise
and the Court has nothing more to do with it as a Court but as impounding
authority has to send the same to the Deputy Commissioner under subsection (2) of Section 37, since Stamp Act is a fiscal legislation and its
object is to collect revenue. The only question that requires consideration
is whether the security deposit of Rs. 7,500/-comes under ambit of
Section 30(c) of the Karnataka Stamp Act for purposes of payment of
additional stamp duty than the one that is already paid on the document.
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STAMP OBJECTION
Document insufficiently stamped admitted in evidence - Such document
cannot be rejected in evidence when law provides for recovery of deficit
stamp duty with penalty and same has in fact been recovered - Stamp Act
is a fiscal measure enacted to secure revenue for State and not enacted to
arm litigant with weapon of technicality to meet case of his opponent Court is not required to consider admissibility of document in evidence
from stand point of stamp law - Once Court, rightly or wrongly, admits
document in evidence, admission cannot be called in question at any stage
of suit or proceeding on ground that document is insufficiently stamped.
Held.-Instruments cannot be rejected on the ground that they are
inadmissible on the ground of being not properly stamped when the
requisite duty and penalty is recoverable and recovered. .... .In the instant
case, the Karnataka Stamp Act, or any enactment providing for recovery
of stamp duty on specified instruments, is a fiscal enactment intended to
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STAMP OBJECTION
Document admitted in evidence - Determination of question as to
sufficiency of stamp duty paid thereon - Court postponing determination
of question at later stage while admitting document in evidence, it
amounts to admission of document subject to objection - It is obligatory
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STAMP OBJECTION
Document tendered in evidence - Admissibility questioned by party
opposite on ground that document was not duly stamped - Court, in order
to ensure uninterrupted recording of evidence, marking it as exhibit
pending adjudication of objection - Such marking of document tentatively,
held, is not conclusive of its admissibility and does not give it immunity
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STAMP OBJECTION
Unregistered and unstamped sale deed - Production of, in evidence Objection to - Direction issued by Court, while judicially determining
objection, to party relying upon such instrument to pay stamp duty and
penalty before admitting it in evidence to prove nature of his possession
of property - Provisions of Stamp Act make no exception in favour of
document sought to be admitted in evidence even for proving collateral
transaction, and prescribe condition subject to which such document can
be admitted in evidence - Order of Trial Court, held, needs no
interference. Held: Even when a document is inadmissible for want of
registration, the same is admissible to show the character of the
possession of the person in whose favour it is executed. There is therefore
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no gainsaid that ihe unregistered sale deed relied upon by the petitioner
could for the limited purpose of proving the nature of his possession be
let into evidence notwithstanding the fact that the deed was compulsorily
registrable under Section 17, but had not been so registered. . . . That a
document is being admitted for a collateral purpose does not however
necessarily mean that it can be let in for that purpose even when it is not
duly stamped. Section 34 of the Karnataka Stamp Act, 1957, inter alia
provides that no instrument which is chargeable to duty shall be
admissible in evidence for any purpose or shall be acted upon, registered
or authenticated by any person or by any public officer unless such
instrument is duly stamped. The expression 'for any purpose' used in
Section 34 of the Karnataka Stamp Act/1957, is wide enough to include
use of any document for a collateral purpose or transaction. ... It cannot be
accepted that just because an unregistered document can be admitted in
evidence for proving a collateral transaction, any such use would entitle
the document to be marked as an exhibit de hors the provisions of Section
34 of the Karnataka Stamp Act, 1957. The provisions of Section 49 of the
Act remain limited to the consequences of no n-registration of
compulsorily registrable documents. The said provision does not deal
with or stipulate the consequence that follow if an instrument sought to
be proved is not duly stamped. That part is provided for separately by
provisions of Section 34 of the Karnataka Stamp Act, 1957, which does
not make any exception in favour of documents sought to be admitted in
evidence for proving a collateral transaction. So long as an instrument is
chargeable with duty, the provisions of Section 34 would render it
inadmissible in evidence for any purpose unless the same is duly
stamped. . . . The proviso to Section 34 prescribes the conditions subject
to which a document which is not duly stamped can be admitted in
evidence. It inter alia provides for payment of the duty with which the
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STAMP OBJECTION
Sections 34 to 37 - Held, have no relevance to enquiry under Section 45A
of Act - Scope explained.
Section 34 of the Act has no relevance to the action taken in the present
case under Section 45A. That section comes into operation when a person
produces a registered document which even, according to the nature of
transaction and the valuation of the property as discernible from the
document itself is insufficiently stamped. According to the provision, if a
document which is insufficiently stamped is produced before a Court,
Tribunal or Authority, it would be in-admissible evidence but could be
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admitted in evidence, if the party concerned pays the penalty at the rate
provided in the proviso. Similarly Section 37 provides as to how
instruments impounded should be dealt with. That also has no relevance
for this case. Pushpa, M. v State of Karnalaka, 1987(1) Kar. L.J. 77.
UNSTAMPED AGREEMENT TO SELL
Suit for specific performance filed on basis of - Such instrument required
to be stamped under law but not stamped is not admissible in evidence
for any purpose, unless stamp duty and penalty are paid - Expression "any
purpose" includes issue of interlocutory order of injunction to restrain
other party from alienating suit property during pendency of suit.Held:
Section 34 of the Karnataka Stamp Act, 1957, inter alia provides that no
instrument chargeable with duty shall be admitted in evidence for any
purpose by any person having by law or consent of parties authority lo
receive evidence, or shall be acted upon, registered or authenticated by
any such person or by any public officer, unless such instrument is duly
stamped. Proviso to Section 34 makes such documents
admissible
in
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payment of the stamp duty and the penalty on the agreement to sell
before it could issue an injunction in raVour of the appellants on that
basis. Instead of doing so, the Court below appears to have taken an
indulgent view by which it has issued an injunction but made its
continuance subject to the payment of the stamp duty and penalty on the
same by the appellants. The error committed by the Court below is thus
for the benefit of the appellants. The Court may well have been justified in
ignoring the document so long as it was not properly stamped and the
penalty on the same not paid. - KB. Jayaram and Another v
Navineethamma and Others, 2003(5) Kar. LJ. 225.
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deficit Stamp duty and Rs. 9,950/- being ten times the deficit duty as
penalty, in all Rs. 10,945/-. K Amarnath v Smt. Puttamma, 2000(4)
Kar. LJ. 55F.
COURT SHOULD APPLY ITS MIND ABOUT ADMISSIBILITY OF
DOCUMENT
Proper procedure to be followed by Courts enumerated.Held: Marking of
a document is a ministerial act whereas, admitting a document in
evidence is a judicial act. Before a document is let in evidence, there
should be a judicial determination of question whether it can be admitted
in evidence or not. In other words, the Court admitting a document must
have applied its mind consciously to the question whether the document
was admissible or not. ..... Even if in the affidavit filed by way of
examination-in-chief, the defendant is referring to the document on which
he relies on and has given an exhibit number to the said document, the
same has to be ignored by the Court and the witness should be called
upon to enter the witness-box and if he wants to rely on the said
documents, to tender the said documents in evidence, before the Court. ....
The proper procedure to be followed by the Courts after the amendment
of the Code of Civil Procedure would be as under, (a) When the case is
posted for evidence, the examination-in-chief of a witness shall be on
affidavit unless ordered otherwise; (b) When the affidavit is sought to be
filed on the date the case is posted for evidence, the Court should insist
that the witness whose affidavit is sought to be filed enters the witnessbox, takes oath and thereafter he/she shall hand over the affidavit
containing his/her examination-in-chief to the Court. In other words, the
Court should not receive the affidavit containing the examination-in-chief
of a witness by his/her Counsel, thus preventing the possibility of the
witness disowing such affidavit; (c) After the affidavit is received through
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the witness, the Court shall call upon the witness whether he/she has any
documentary evidence to tender and if the witness tenders any
documentary evidence, the same shall be received by the Court subject to
objection raised by the opposite party; (d) If objections are raised, the
Court should judicially determine the question whether it can be admitted
in evidence or not, then and there if the objection relates to insufficiency
of stamp duty; (e) If the Court decides to admit the document, then it shall
follow the procedure prescribed under Order 13, Rule 4(1) of the CPC and
mark the document. - Krishna v Sanjeev, 2003(7) Kar. LJ. 38 : ILR 2003
Kar. 3716.
SUB-REGISTRAR HAS IMPOUNDED THE DOCUMENT
Stamp duty - Reference of document for determination of - Deputy
Commissioner to whom impounded document was sent, has to return
same to impounding officer after he has dealt with same - Reference was
not valid and legal for non-compliance with procedure prescribed. Held:
The Sub-Registrar has impounded the document presented for
registration under Section 33 of the Act and referred to the 2nd
respondent under Section 37(2) of the Act. The 2nd respondent did not
follow the procedure prescribed under sub-section (1)of Section 39 of the
Act but referred the document for determination under Section 53 of the
Act to first respondent. Since the document falls under Article 40- B (b) of
the Act for the purpose of payment of stamp duty, it was not at all a
matter for the Sub-Registrar to make the reference under Section 37(2) of
the Act. Therefore, the reference made was not legal and valid. In fact,
reference of the document was wholly unwarranted. - Y.C. Susheela Devi
and Others v State of Karnataka and Others, 2002(3) Kar. L.J. 413B.
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MARKET-VALUE
Guidelines issued regarding the general market-value in the area Validity.There is nothing like a general market value of immovable
properties in a city or a locality and the same cannot be pre-determined
on any notional or hypothetical considerations and the market value of
the particular property has necessarily to be fixed on a particular date
with due regard to the factors enumerated in the statute. The general
market value fixed by the Deputy Commissioner which is not authorised
by Section 45-A of the Act or the Rules and in derogation of them,
unnecessarily restricting the power of the Registering Officers as also his
own determination to be made as and when a case arises before him, is
without jurisdiction and illegal. When there is under-valuation which
necessarily results in under payment of stamp duty, Section 45A
empowers the Registrar to make a reference to the Deputy Commissioner,
who is empowered to initiate proceedings, determine the proper
valuation and recover the difference of stamp duty payable thereon under
the Act. Kulkarni, M.G. and Others v State of Karnataka and Others,
ILR1985 Kar. 2152.
UNDER VALUATION
Instrument of conveyance - Under valuation - Reference, when and
how made - Procedure stated - Order of Reference to contain reasons Order of Reference without setting out reasons invalidates the reference Explained - The language of Section 45A is very clear. The condition
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precedent for making a reference is, there must be reasons for the SubRegistrar to believe that the market value of the property has not been
truly set out in the document presented for registration. From this it
follows that the reasons must be recorded. However brief it may be, it is
the duty of the Sub-Registrar to record reasons for his belief that the true
market value has not been set out in the document and thereafter refer
the matter to the Deputy Commissioner for adjudicating the real market
value of the property under sub-section (2) of Section 45A of the Act. The
Sub-Registrar cannot simply record the market value of the property
according to him in a sheet and send the documents to the Deputy
Commissioner. The documents must be sent as enclosure to the order of
reference. It is also open to the Sub-Registrar to make an inquiry as
contemplated in Rule 3 ol the Karnataka Stamp (Prevention of Under
Valuation of Instruments) Rules, 1977. This Rule also supports the view
that an order of reference must contain reasons and the documents
should be sent along with the reasons recorded by the Sub-Registrar. As
this procedure has not been followed, it should be held that there is no
valid reference at all. - Sanjay Kumar v The Sub-registrar and Another,
1989(2) Kar. LJ. 7.
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respondent. Petitioner, if aggrieved by the final order, can file an appeal. Stamp duty payable on deed of sale of - Sale deed executed by Karnataka
Industrial Areas Development Board in respect of industrial site allotted
on lease-cum-sale basis in 1985, more than decade ago - Stamp duty is
payable on market value of industrial site on date of execution of sale
deed and not on sale consideration mentioned in sale deed - Concession of
paying stamp duty on consideration mentioned in sale deed and not on
market value on date of sale, which is available in respect of sale deeds
executed by statutory bodies like BDA, KHB, etc., has not been extended to
sale deed executed by KIADB - Proceedings initiated to ascertain market
value of industrial site on date of sale effected by KIADB, held, is not
without jurisdiction. Held: The concession extended to deeds of
conveyance executed by BDA, KHB and House Building Co-operative
Societies and other Bodies under the proviso to Article 20 of the Schedule
to the Act (that is payment of stamp duty only on the consideration
mentioned in the deed of sale and not on the market value on the date of
sale) has not been extended to sale deeds executed by KIADB; therefore
proceedings regarding undervaluation can be initiated in regard to sale
deeds executed by KIADB; and the fact that the price mentioned in such
deeds of conveyance is the true and correct price paid by the purchaser,
has no relevance to the determination of market value on the date of sale,
which is the criterion for payment of stamp duty on deed of conveyance.
'Sale price' or 'consideration for the sale' ceased to be the basis for
payment of stamp duty in the case of conveyance. In its place, the 'market
value' of the property on the date of sale became the basis for calculating
the stamp duty payable on conveyance in view of the Amendment to
Article 20 by the Karnataka Stamp (Amendment) Act, 1975. Therefore
proceedings initiated under Section 45-A of the Act in regard to a sale
deed executed by KIADB are not without jurisdiction. -M/s. Pals
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APPELLATE POWER
Section 45-A is amended and appellate power of District Judge withdrawn
and invested in Divisional Commissioner -
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http://sbncaselaw.blogspot.com/search/label/KARNATAKA%20CASES%20ON
%20LANDS
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DISTRICT REGISTRAR
IS QUASI-JUDICIAL AUTHORITY
CANNOT
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appearance of the parties before the so-called Court. While the orders
indicate that a notice dated 28-8-2002 had also been issued which is also
not responded by the petitioner, there is no reason as to why the
concerned authorities should have issued yet another notice dated 28-82002 even before the period of 21 days from the date of issue of the
notice dated 16-8-2002 had not expired... It is a matter of utmost regret
that a public authority who deals with civil rights of parties, do not
function in a transparent and fair manner. This Court cannot help but take
note of the fact that the office of Sub-Registrar and Office of the District
Registrar for determination of undervaluation are notorious for their
nefarious activities and have been subject-matter of adverse scrutiny and
comment by vigilant institutions like the Lokayuktha for corruption and
bribary charges. . . Procedure which is not transparent, which does not
call upon the parties to appear on a particular date, for giving
representation or producing documents, a procedure where parties are
kept in dark as to what may happen in the future, this Court cannot help,
but observe is an arbitrary procedure vitiating the proceeding. Perhaps a
fair and transparent procedure is not evolved by the authorities
concerned only for extraneous reasons and for pressurizing the helpless
citizens who are involved in such litigation... It is but necessary that any
notice issued by the 1st respondent should indicate the date of hearing of
the case that is fixed for the appearance of parties and the parties should
be apprised of that date. . . Under the circumstances, the impugned orders
are clearly unsustainable, being not only arbitrary, but also for violating
the principles of natural justice. - Smt. B. Razia Rnzak v The District
Registrar, Prevention of Undervaluation of the Instruments,
Bangalore and Another, ILR 2003 Kar. 3233 : AIR 2003 Kant. 486.
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KIADB LANDS
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District Registrar/Deputy
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reviewing or recalling the said order except filing an appeal under Section
45-A(5) of the Act or an application under Section 67-A(2) of the Act. ....
There is no inherent power to review. A power to review must be
conferred specifically by the statute and when conferred should be
limited to the circumstances stated in the "power conferring section" and
not beyond. So understood, the power to review his own order should be
limited to the two situations referred to in Section 67-A(2) of the Act. But,
what the Deputy Commissioner now proposes to do vide his show-cause
notice is to conduct a de novo enquiry under the guise of exercising his
power of review which is impermissible in law. - Shantesh Gureddi v
State of Karnataka and Another, 2003(6) Kar. L.J. 149A.
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the duty already collected on the security deposit under item (d) of Article
5, whichever is greater. The second proviso to Article 20 makes it clear
that if conveyance is executed pursuant to a lease-cum-sale agreement
referred to in Article 5{d), the duty on such conveyance shall not exceed
Rs. 10/- or the difference of duty payable on such conveyance and the
duty already collected on the security deposit under Article 5(d)
whichever is greater. Therefore, it is clear that the petitioner will not have
to pay stamp duty once over again when the sale deed has to be executed
under the terms of the lease-cum-sale agreement. If the petitioner has to
pay stamp duty by way of conveyance at one stage or the other, at what
stage the duty will have to be collected is also in the discretion of the
legislature and if the legislature prescribes, such duty shall be collected at
the earliest point of time of the transaction, no exception can be taken
thereof. - G.S. Rajashekar v Bangalore Development Authority,
Bangalore and Another, 1995(5) Kar. L.J. 1A (DB).
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Every sale may not involve a release and similarly every release may not
result in conveyance or sale. But where the release is by a co-owner of his
share in the common property which is legally capable of being
transferred in favour of another co-owner, for a consideration of a sum of
money coming outside the common property, the transaction amounts to
a sale of the undivided share.
The adjectival clause 'which is not otherwise specifically provided for by
Schedule' in the definition of 'conveyance' in S. 2(d) of the Mysore Stamp
Act does not govern the words 'conveyance on sale' but governs only the
words 'every instrument by which property is transferred inter vivas'. It is
only when an instrument effects a transfer other than a sale, it requires
further examination whether such an instrument is not otherwise
specifically provided for by the Schedule before the instrument can be
regarded as coming within the definition of the term 'conveyance'. 8 Mys.
CCR. 294 not followed.
On the dissolution of the firm, the erstwhile partners will be co-owners of
the properties of the firm. Until such property is distributed among the
partners according to their rights, each of the partners will have an
undivided share or interest in such property.
There is no material distinction between the share of a co-owner in a
particular immovable property and a co-owner's rights and interests in
the assets of the partnership, for the purpose of determining whether the
instrument is a conveyance or a release. The extinguishment of the
interest of the releasing co-owner and the enlargement of the interest of
the other co-owner can amount to a conveyance of the undivided interest
of the former to the latter. The use of any particular words like release,
relinquish, assign or transfer in an instrument does not conclusively
determine the nature of the instrument. The substance of the transaction
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produced is the certified copy of the map, only for the purpose of
identifying the properties described in an "instrument". Therefore, the
certified copy of the map does not come within the meaning of Section
2(l)(j) and (k) of the Act so as to direct to pay the duty and penalty. The
Karnataka Stamp Act does not provide for paying the duty and penalty in
respect of sketches, maps, etc. If the transaction takes between two or
three persons under the instrument and is not charged properly, in
respect of such instrument the Court can direct the party to pay the duty
and penalty as the case may be. But, mere production of the certified copy
of the map does not come within the meaning of definition of an
"instrument". Channamma and Others v Shantkumar, ILR 2004(2)
Kar. 1052.
SETTLEMENT DEED-ATTESTATION
Transfer of Property Act, 1882, Section 123 Indian Evidence Act, 1872,
Sections 68 and 72 Deed of settlement Proof of execution of Since
law does not require attestation of such document though it is attested, it
may be proved by admission or otherwise, as though no attesting
witnesses existed Examination of at least one of attesting witnesses,
held, is not obligatory. Held: The settlement deed is not a document
required by law to be attested. Section 72 of the Indian Evidence Act
prescribes that an attested document not required by law to be attested
may be proved as if it was unattested. The settlement deed though not
required by law to be attested, has been attested by attestors. But then
under Section 72 of the Indian Evidence Act, it is not obligatory on the
part of the person propounding the document to examine the attesting
witness. The testimony of the attesting witness is not the only evidence by
which a settlement deed can be established. It can be done by other kinds
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Section 2 of the Indian Stamp Act which sub-section defines the term
'settlement' under the Indian Stamp Act and the same is the definition of
the word 'settlement' under the Karnataka Stamp Act also. A perusal of
the document shows that the purpose of the same was to distribute or to
settle the property of the deceased to his wife and daughter who were
dependent on him. Mrs. Devaki and Anothc.r v Mrs. Lingamma,
2002(3) Kar. L.J, 77A.
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recover a huge amount of Rs. 13,39,34,033.80 and he has also paid the
requisite Court fee of Rs. 8,77,0007-. The preliminary objection of the
Trial Court is that all the stamp papers have not been defaced by the
plaintiff or by his Counsel by putting his signature. . . . When such Court
fee stamp papers are produced, the purpose of defacing is to ensure that it
is not used in any other case. In the present case neither the plaintiff nor
the plaintiff's Counsels have signed the stamp papers, but it is clear that
the cause title of the parties have been duly typed. Therefore, it satisfies
the requirement of Section 13 of the Karnataka Stamp Act, 1957. . . . Even
otherwise, on filing of the papers with the Court along with the stamp
papers, the Court office puts the seal of the Court on all the stamp papers
and will punch the stamps. Thereby, it also results in defacing of the
stamp papers... . There is no other provision in the Civil Rules of Practice
or under the High Court Rules describing the manner as to in what way
the stamp papers have to be defaced. Therefore, if the requirement of
Section 13 of the Karnataka Stamp Act is complied, it suffices the matter.
Accordingly, the Trial Court is directed to register the case and proceed in
accordance with law. Shetty's Construction Company Private
Limited, Hubli v Krishna Bhagya Jala Nigam Limited, Bangalore and
Others, ILR 2004 Kar. 1467 :
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A combined reading of Sections 33, 34, 35, 36, 37 and 41 of the Karnataka
Stamp Act requires the following procedure to be adopted by a Court
while considering the question of admissibility of a document with
reference to the Stamp Act; (a) When a document comes up before the
Court, it has to examine and determine whether it is properly stamped.
When the other side objects to it, the Court should consider such
objection and hear both sides; (b) After hearing, if the Court comes to the
conclusion that the document has been duly stamped, it shall proceed to
admit the document into evidence; (c) on the other hand, if the Court
comes to the conclusion that the document is not stamped or
insufficiently stamped, it shall pass an order holding that the document is
not duly stamped and determine the Stamp duty/deficit stamp duty and
penalty to be paid and fix a date to enable the party who produces the
document to pay the Stamp duty/deficit Stamp duty plus penalty; (d) If
the party pays the duty and penalty the Court shall certify that proper
amount of duty and penalty has been levied and record the name and
address of the person paying the said duty and penalty and then admit the
documr a in evidence as provided under Section 41(2); and the Court
shall send an authenticated copy of the instrument to the District
Registrar together with a Certificate and the amount collected as duty and
penalty, as provided under Section 37(l)(e). If the party does not pay the
duty and penalty, the Court will have to pass an order impounding the
document and send the instrument in original, to the District Registrar for
being dealt with in accordance with law as per Section 37(2) of the
Karnataka Stamp Act.
Document insufficiently stamped and document requiring registration
but not registered Provisions of both Acts bar such documents being
received in evidence Regarding insufficiently stamped document, bar is
absolute, subject to provision enabling Court to collect deficit Stamp duty
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as evidence of the contract for sale. Thus, though both Section 34 of the
Stamp Act (corresponding to Section 35 of the Indian Stamp Act) and
Section 49 of the Registration Act, both bar the document being received
as evidence, the bar is absolute under Stamp Act (unless deficit duty and
penalty is paid) and the bar is not absolute under Registration Act. K.
Amarnath v Smt. Puttamma, 2000(4) Kar. L.J. 55.
SUB-REGISTRAR
TO
REGISTRATION,
HAS
WHOM
NO
DEED
POWER
TO
IS
PRESENTED
IMPOUND
DEED
FOR
FOR
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should
not
have
refused
to
when
the
Sub-
1908
the
order
of
reference
of
the
unregistered
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in not registering the document and referring the document to the Deputy
Commissioner for examining as to whether the stamp duty paid on the
document is sufficient or not is bad in law. Therefore, the order passed by
the Deputy Commissioner on the reference is not in conformity with
either the provisions of the Karnataka Stamp Act or Indian Registration
Act. Therefore, the impugned order passed by him is wholly
unsustainable in law. . . . The plain reading of sub-sections (2) and (3) of
Section 45-A of the Act, 1957, it makes very clear that the Sub-Registrar
has got power to make reference of the conveyance deed after
registration of the document under Section 45-A of the Act, 1957.
Therefore, the Deputy Commissioner of the area who has been notified for
the purpose of the provisions of the Karnataka Stamp Act, 1957 has to
examine the document with regard to the value of the property which is
the subject-matter of 'Conveyance' Deed, after registration of the
document by the Registering Authority under the provisions of the Indian
Registration Act, then only the second respondent can exercise his power
under Section 45-A(2) and (3) of the Act of 1957. Dr. Uslm Motwn Das
v The Divisional Commissioner, Bangalore Division, Bangalore- and
Others, 2001(3) Kar. LJ.463.
LEASE DEED STAMP DUTY INSUFFICIENCY
Document styled, as lease not properly stamped produced during the
course of eviction petition by the petitioner - Whether Trial Court was
right in holding it as inadmissible evidence. Held: Proviso (a) to Section
34 of the Karnataka Stamp Act, however, provides for a procedure to pay
the stamp duty and the prescribed penalty, if a party requires the
document to be admitted in evidence. That procedure is still available to
the petitioner - Hanumanumul Baid v Ananthapadmanabha, ILR 1992
Kar. 1133.
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COURT
SHOULD
APPLY
ITS
MIND
TO
THE
QUESTION
OF
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prejudice the case of either party before the Trial Court. But what is
important to note is that the admissibility of the document Ex. P-l which is
not stamped was a serious question to be considered by the Trial Court at
the time of marking the document. There is nothing on record to show
that the Trial Court had applied its mind consciously to the question
whether the document was admissible or not. By no stretch of
imagination could it be said in this case that the document has been
admitted in evidence. The proper order that could be passed is to keep
open the question of the admissibility of the document Ex. P-l leaving it to
be decided by the Trial Court at the time of the final decision of the suit. Narasamma and Another v Arjun M. Menda and Others, 1995(5) Kar.
L.J. 574.
PALU-PATTI KARAR
Production of earlier Palu-patti Karar, not duly stamped and registered,
only to prove as to when joint status stood severed - Held, Palu-patti
Karar admissible in evidence; Order of Trial Court directing payment of
duty and penalty on the document set aside. In this Court what has been
contended is that once the Court came to the conclusion, it was admissible
in evidence for collateral purpose of only proving the severance of status
and not evidence of the partition, the Court was not correct in asking the
plaintiff to pay duty and penalty as if the document was not required to be
stamped. Undoubtedly, under the Karnataka Stamp Act an instrument of
partition is required to be duly stamped according to the provisions
contained there, i.e., on the market value of the largest of the shares. But,
that has already been done in the deed of partition executed in the year
1968 and duly registered in respect of the same properties pursuant to
what was agreed in the instrument in question. Therefore, the learned
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the instant case, the agreement entered into between the parties, which is
a basic document for claiming the relief of specific performance and for
injunction, clearly provides for sale of immovable property and it also
recites that the possession has been delivered. Therefore, the document in
question clearly falls within the scope of Article 5(e) of the Karnataka
Stamp Act and its Explanation (II). If the Legislature thought that it would
be appropriate to collect duty at the stage of the agreement itself, if it
fulfills certain conditions instead of postponing collection of such duty till
the completion of the transaction by execution of a conveyance deed in as
much as all substantial conditions of a conveyance have already been
fulfilled, such as an agreement if relating to sale of immovable property,
where, in part performance possession of the property is delivered and
what remains to be done is a mere formality of paying the balance and of
execution of sale deed, it would be necessary to collect duty at a later
stage itself though right, title and interest may not have passed as such.
Still by reason of the fact that under the terms of the agreement there is
an intention of sale and possession of the property has also been
delivered, it is certainly open to the State to charge such instruments at a
particular rate, which is same as a conveyance on the market value of the
property, and that is exactly what has been done in the present case.
Therefore, it cannot be said that the impugned order made by the Trial
Court suffers from any such illegality or material irregularity so as to call
for interference in revision. The document, which is insufficiently
stamped, cannot be permitted to be used for collateral purpose in view of
Section 34 of the Karnataka Stamp Act which clearly prescribes that no
instrument chargeable with duty shall be admitted in evidence for any
purpose. In the instant case, the proper stamp duty payable under the
Karnataka Stamp Act being not paid and when the document was sought
to be used in evidence, the Court below was justified in passing the
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Duty payable comes under Section 30(c) of the Act covered by fine,
premium or money advanced. Held: When a document comes before the
Court for the purpose of being used in evidence, the first jurisdiction of
determining the duty and penalty is that of the Court. Section 34 of
Karnataka Stamp Act prohibits the reception in evidence of documents
which are insufficiently stamped. But a proviso is added thereto according
to which the same is chargeable and the person having authority to
receive evidence may impose such duty together with the penalty as
specified therein. The exercise of jurisdiction under the proviso to Section
34 arises when a document is actually tendered in evidence but it might
have been produced much earlier by one or other of the parties to the
litigation. When a document chargeable to duty and produced into Court
in connection with a proceeding before it is found by that Court to be
either not stamped at all or insufficiently stamped it is bound to impound
it. Idea of impounding it is to enforce collection of duty or deficient duty
together with penalty. When a document comes before the Court for the
purpose of being used in evidence, the first jurisdiction of determining the
duty and penalty is that of the Court. It is only when that stage has
crossed and the document is not tendered in evidence that it ceases to be
a document impounded by the Court. In cases where party has produced
certain document and expressly makes his intention clear that he would
not rely upon that document in support of his causes pleaded, then that
would amount to his not producing for purposes of placing reliance on
that document by way of legal evidence then the question of Court
exercising its powers under Section 34 of the Karnataka Stamp Act would
not arise and the Court has nothing more to do with it as a Court but as
impounding authority has to send the same to the Deputy Commissioner
under sub-section (2) of Section 37, since Stamp Act is a fiscal legislation
and its object is to collect revenue. The only question that requires
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STAMP OBJECTION
Document insufficiently stamped admitted in evidence Such document
cannot be rejected in evidence when law provides for recovery of deficit
stamp duty with penalty and same has in fact been recovered Stamp
Act is a fiscal measure enacted to secure revenue for State and not
enacted to arm litigant with weapon of technicality to meet case of his
opponent Court is not required to consider admissibility of document
in evidence from stand point of stamp law Once Court, rightly or
wrongly, admits document in evidence, admission cannot be called in
question at any stage of suit or proceeding on ground that document is
insufficiently stamped. Held.Instruments cannot be rejected on the
ground that they are inadmissible on the ground of being not properly
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STAMP OBJECTION
Document admitted in evidence Determination of question as to
sufficiency of stamp duty paid thereon Court postponing determination
of question at later stage while admitting document in evidence, it
amounts to admission of document subject to objection It is obligatory
to decide question before disposing of suit finally Immunity from
objection contemplated in Section 35, is not attracted to documents
admitted subject to objection. Held: In the present case, the Court below
has postponed the determination of question of stamp duty. At the time
when the document was produced and filed at the stage of evidence
objection was raised, but the Court below postponed it for decision later
on. So, it had not decided the question of admissibility of the document for
want of stamp duty. At that stage, it had only been taken on record for the
purpose of avoiding delay, subject to determination of the question, later
on. May it be an irregularity, may it be for purpose of avoiding any delay
in course of recording of evidence and interruption. There may be some
irregularity, but it did not bar the jurisdiction of the Court to determine
that question. A document which has been taken on record subject to
objections, clearly indicates that the question of admissibility is to be later
on decided, and the same has not been decided at the stage when it was
filed, section makes it obligatory to decide that question. .... The taking of
document subject to objections clearly indicated in the present case Court
has not applied its mind, and has not determined the question of
admissibility of document to attract Section 35 of the Karnataka Stamp
Act. Doddabasappa v Gurubasappa (Deceased) by LRs. and Others,
2001(4) Kar. LJ. 104A.
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STAMP OBJECTION
Document tendered in evidence Admissibility questioned by party
opposite on ground that document was not duly stamped Court, in
order to ensure uninterrupted recording of evidence, marking it as exhibit
pending adjudication of objection Such marking of document
tentatively, held, is not conclusive of its admissibility and does not give it
immunity from being questioned Order subsequently passed by Trial
Court holding that document was not duly stamped and directing party
tendering same to pay deficit stamp duty with penalty Order, held,
does not call for interference in revision.Held: In the present case mere
marking of a document as exhibit is not conclusive for the purpose of
giving it any immunity from questioning under Section 35 of the Act,
because, admittedly the document was not admitted after judicial
application of mind and the marking was only for the sake of convenience
and the issue of admissibility was postponed to facilitate uninterrupted
recording of evidence. . . In this view of the matter, direction of the Trial
Court to the plaintiffs to pay deficit duty with penalty as provided under
clause (a) of the proviso to Section 34 of the Act cannot be said to be
suffering from any error requiring interference by this Court. Riyaz
Khan and Others v Modi Mohammed Ismail and Others, 2002(3) Kar.
LJ. 551A.
STAMP OBJECTION
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objection, to party relying upon such instrument to pay stamp duty and
penalty before admitting it in evidence to prove nature of his possession
of property Provisions of Stamp Act make no exception in favour of
document sought to be admitted in evidence even for proving collateral
transaction, and prescribe condition subject to which such document can
be admitted in evidence Order of Trial Court, held, needs no
interference. Held: Even when a document is inadmissible for want of
registration, the same is admissible to show the character of the
possession of the person in whose favour it is executed. There is therefore
no gainsaid that ihe unregistered sale deed relied upon by the petitioner
could for the limited purpose of proving the nature of his possession be
let into evidence notwithstanding the fact that the deed was compulsorily
registrable under Section 17, but had not been so registered. . . . That a
document is being admitted for a collateral purpose does not however
necessarily mean that it can be let in for that purpose even when it is not
duly stamped. Section 34 of the Karnataka Stamp Act, 1957, inter alia
provides that no instrument which is chargeable to duty shall be
admissible in evidence for any purpose or shall be acted upon, registered
or authenticated by any person or by any public officer unless such
instrument is duly stamped. The expression 'for any purpose' used in
Section 34 of the Karnataka Stamp Act/1957, is wide enough to include
use of any document for a collateral purpose or transaction. ... It cannot be
accepted that just because an unregistered document can be admitted in
evidence for proving a collateral transaction, any such use would entitle
the document to be marked as an exhibit de hors the provisions of Section
34 of the Karnataka Stamp Act, 1957. The provisions of Section 49 of the
Act remain limited to the consequences of no n-registration of
compulsorily registrable documents. The said provision does not deal
with or stipulate the consequence that follow if an instrument sought to
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STAMP OBJECTION
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of
the
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MARKET-VALUE
Guidelines issued regarding the general market-value in the area Validity.There is nothing like a general market value of immovable
properties in a city or a locality and the same cannot be pre-determined
on any notional or hypothetical considerations and the market value of
the particular property has necessarily to be fixed on a particular date
with due regard to the factors enumerated in the statute. The general
market value fixed by the Deputy Commissioner which is not authorised
by Section 45-A of the Act or the Rules and in derogation of them,
unnecessarily restricting the power of the Registering Officers as also his
own determination to be made as and when a case arises before him, is
without jurisdiction and illegal. When there is under-valuation which
necessarily results in under payment of stamp duty, Section 45A
empowers the Registrar to make a reference to the Deputy Commissioner,
who is empowered to initiate proceedings, determine the proper
valuation and recover the difference of stamp duty payable thereon under
the Act. Kulkarni, M.G. and Others v State of Karnataka and Others,
ILR1985 Kar. 2152.
UNDER VALUATION
Instrument of conveyance - Under valuation - Reference, when and
how made - Procedure stated - Order of Reference to contain reasons Order of Reference without setting out reasons invalidates the reference Explained - The language of Section 45A is very clear. The condition
precedent for making a reference is, there must be reasons for the Sub-
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Registrar to believe that the market value of the property has not been
truly set out in the document presented for registration. From this it
follows that the reasons must be recorded. However brief it may be, it is
the duty of the Sub-Registrar to record reasons for his belief that the true
market value has not been set out in the document and thereafter refer
the matter to the Deputy Commissioner for adjudicating the real market
value of the property under sub-section (2) of Section 45A of the Act. The
Sub-Registrar cannot simply record the market value of the property
according to him in a sheet and send the documents to the Deputy
Commissioner. The documents must be sent as enclosure to the order of
reference. It is also open to the Sub-Registrar to make an inquiry as
contemplated in Rule 3 ol the Karnataka Stamp (Prevention of Under
Valuation of Instruments) Rules, 1977. This Rule also supports the view
that an order of reference must contain reasons and the documents
should be sent along with the reasons recorded by the Sub-Registrar. As
this procedure has not been followed, it should be held that there is no
valid reference at all. Sanjay Kumar v The Sub-registrar and
Another, 1989(2) Kar. LJ. 7.
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http://sbn-caselaw.blogspot.com/2007/05/case-law-onregistrations-in-karnataka.html
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http://sbncaselaw.blogspot.com/search/label/KARNATAKA%20CASES%20ON
%20LANDS
http://sbn-caselaw.blogspot.com/search/label/LAND%20CASES
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only take action under Sections 28 and 61 of the Karnataka Stamp Act.
Even after Section 45-A of the Act came into effect, the registration of the
document could not be kept pending on the ground of undervaluation. It
therefore follows that the Sub-Registrar could not have kept the sale
deeds dated 20-10-1982 and 4-3-1982 pending on the ground that the
properties sold thereunder were undervalued. Therefore, the notices
dated 30-11-1983 holding that documents were undervalued and
demanding deficit stamp duty as a condition precedent for registration,
were illegal and without jurisdiction. Therefore, when the said notices
dated 30-11-1983 were quashed on the ground that the Sub- Registrar
had no authority to keep the registration of the sale deeds pending, the
Sub-Registrar had no alternative but to register the documents.
Veerabhadrappa and Another v Jagadishgouda and Others, 2002(5)
Kar. L.J. 55A
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DISTRICT REGISTRAR
IS QUASI-JUDICIAL AUTHORITY
CANNOT
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notice issued by the 1st respondent should indicate the date of hearing of
the case that is fixed for the appearance of parties and the parties should
be apprised of that date. . . Under the circumstances, the impugned orders
are clearly unsustainable, being not only arbitrary, but also for violating
the principles of natural justice. Smt. B. Razia Rnzak v The District
Registrar, Prevention of Undervaluation of the Instruments,
Bangalore and Another, ILR 2003 Kar. 3233 : AIR 2003 Kant. 486.
KIADB LANDS
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District Registrar/Deputy
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pay stamp duty by way of conveyance at one stage or the other, at what
stage the duty will have to be collected is also in the discretion of the
legislature and if the legislature prescribes, such duty shall be collected at
the earliest point of time of the transaction, no exception can be taken
thereof. G.S. Rajashekar v Bangalore Development Authority,
Bangalore and Another, 1995(5) Kar. L.J. 1A (DB).
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Stamp duty for leases Need for practical, logical and reasonable
structure of Inconsistencies in existing structure It is for
Government to remove such inconsistencies. R.V. Raveendran, J., Held: To
avoid the prevalent confusion and uncertainty in regard to Stamp duty in
these matters and to encourage parties to execute proper deeds relating
to leases and register them, the Legislature/Government may consider a
more practical, logical and reasonable structure of Stamp duty regarding
leases and lease agreements. While logic need not be a hallmark of taxing
statutes, apparent inconsistencies may be pointed out for rectification in
the interests of revenue, to encourage public to enter into lease deeds and
pay Stamp duty instead of resorting to oral agreements coupled with
delivery of possession. One area where the anomaly is glaring is the
prescription of same Stamp duty on the amount paid as premium and
advance/deposit. .... In fact the Stamp duty on a sale of a property for Rs.
1,00,0007- and lease of the same property for one year with a refundable
advance of Rs. 1,00,0007- is the same. The anomaly of same Stamp duty
on premium (non-refundable consideration for the lease) and advance
(refundable deposit) requires to be rectified. Be that as it may. K.
Amarnath v Smt. Puttamma, 2000(4) Kar. L.J. 55G.