Smt Bharathi v. Smt Kusuma

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF AUGUST, 2026 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.16617/2021 (GM-CPC)

BETWEEN:

SMT. BHARATHI D/O LATE RATHI SHETTY AND THIMMAPPA SHETTY AGED ABOUT 63 YEARS R/AT. NEERALA KRUPADHAMA BONDANTHILA VILLAGE VIA VAMANJOOR P O VAMANJOOR-575029 MANGALURU TALUK, D K.

REP. BY HER GPA HOLDER SMT. NEETHA SHETTY D/O SMT. BHARATHI W/O SRI. RAMESH G AGED ABOUT 40 YEARS R/AT NEERALA, KRUPADHAMA BONDANTHILA VILLAGE VIA VAMANJOOR P O VAMANJOOR-575029 MANGALURU TALUK, D K. …PETITIONER (BY SRI. M. SUDHAKAR PAI, ADV.,)

AND:

¶1SMT. KUSUMA D/O LATE RATHI SHETTY AND THIMMAPPA SHETTY AGED ABOUT 73 YEARS

by RUPA V Location: HIGH COURT OF KARNATAKA ((((((((((((HC-KAR, NC:(2026:KHC:42206( W.P.(No.16617/2021( ( ,,,,,,,,,, , CNR:(KAHC010330372021( ( ( R/AT,CASA-DA-MEMORIES, A,R,D'SOUZA,LANE, LOWER,BENDORE, KANKANADY,POST, MANGALURU,-575002,,D,K., ,

2., SRI.,LOKESH, S/O,LATE,RATHI,SHETTY, AGED,ABOUT,69,YEARS., ,

3., SRI.,PADMANABHA,SHETTY, S/O,LATE,NARAYANA,SHETTY, AGED,ABOUT,59,YEARS., ,

4., SMT.,RAJEEVI, D/O,PADMANABHA,SHETTY, AGED,ABOUT,51,YEARS., ,

5., SMT.,KALYANI,SHETTY, W/O,LATE,VITTALA,SHETTY, AGED,ABOUT,84,YEARS., ,

6., SRI.,RAMESH, S/O,LATE,VITTALA,SHETY, AGED,ABOUT,68,YEARS., ,

7., SRI.,RAGHURAMA, S/O,LATE,VITTALA,SHETTY, AGED,ABOUT,66,YEARS., ,

8., SRI.,SADASHIVA, S/O,LATE,VITTALA,SHETTY, AGED,ABOUT,63,YEARS., ,

9., SMT.,KAMALAKSHI, D/O,LATE,SANJEEVA,SHETTY,, AND,SEETHA,SHETTY, AGED,ABOUT,63,YEARS., , , ((((((((((((HC-KAR, NC:(2026:KHC:42206( W.P.(No.16617/2021( ( ,,,,,,,,,, , CNR:(KAHC010330372021( ( ( R2,TO,R9,ARE,ALL,R/AT,, HITHLU,MANE, KANNUR,VILLAGE,,P,O,PADIL, MANGALURU-575007,,D,K., ,

10., M/S.,MANDOVI,MOTORS, A,REGISTERED,COMPANY,, REP,BY,ITS,MANAGING,DIRECTOR, MR.,AROOR,PRAKASH,RAO, S/O,LATE,AROOR,UMASHANKAR,RAO, OFFICE,AT,OPP.,HOTEL,ROOPA,, BALMATTA,,MANGALURU-575001,,D,K., ,

11., SMT.,VIJAYA,BHARATHI,B.,RAI, W/O,MR.,K.B.,BALAKRISHNA,RAI, AGED,ABOUT,48,YEARS, R/AT,SRI,NAVADURGA,PRASAD, MANGALURU-BENGALURU,ROAD, KANNUR,VILLAGE,,P,O,PADIL, MANGALURU-575007,,D,K., …RESPONDENTS, , (BY,SRI.,G.,BALAKRISHNA,SHASTRY,,ADV.,,FOR,R3,&,R4, V/O/DTD:14.09.2021,,NOTICE,TO,R1,,R2,,R5,TO,R11,, STANDS,D/W), , , THIS,WRIT,PETITION,IS,FILED,UNDER,ARTICLE,227,OF, THE, CONSTITUTION, OF, INDIA,, PRAYING, TO, QUASH, THE, ORDER,DTD,10.08.2021,IN,MISC.CASE,NO.08/2021,AND,ALSO, THE, ORDER, DTD, 23.08.2021,, BOTH, IN, O.S.NO.164/2017, ON, THE, FILE, OF, PRL., SENIOR, CIVIL, JUDGE, AND, CJM,, MANGALURU,,DK,VIDE,ANNEXURE-Q,AND,R,RESPECTIVELY,TO, THE,WRIT,PETITION,&,ETC., , , THIS,PETITION,,COMING,ON,FOR,PRELIMINARY,HEARING, IN, 'B', GROUP,, THIS, DAY,, ORDER, WAS, MADE, THEREIN, AS, UNDER:, , ,

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

ORAL ORDER

This writ petition is filed challenging the order dated

10.08.2021 passed in Misc.Case No.8/20221 and the order dated 23.08.2021 passed in O.S.No.164/2017 on the file of the Principal Senior Civil Judge and CJM., Mangaluru D.K., (for short, 'the trial Court').

¶2Heard Sri.M.Sudhakar Pai, learned counsel for the petitioner, Sri.G.Balakrishna Shastry, learned counsel appearing for respondent Nos.3 and 4 and perused the material available on record.

¶3The petitioner herein had filed a suit in O.S.No.53/2015 seeking the relief of partition and other reliefs. The said suit came to be withdrawn. Later a suit in O.S.No.164/2017 is filed seeking relief of partition and other reliefs. In the said suit, defendant No.4 has produced a receipt dated 03.04.2017 which was opposed by the plaintiff. The defendant No.4 filed a memo

indicating that he is ready to pay ₹5,000/- towards the stamp duty on the receipt. The trial Court vide Order dated 23.03.2021 accepted the memo filed by the defendant No.4 and permitted him to pay the stamp duty of ₹5,000/- on the receipt dated 03.04.2017 and as per the permission, the defendant No.4 had paid the said amount and a memo to that effect was also filed.

¶4It is to be noticed that the petitioner-plaintiff filed an application seeking review of the order dated

23.03.2021 and consequential acceptance of the memo filed by defendant No.4. The trial Court numbered the said review application as Misc.Case No.8/2021 and on hearing both sides, vide order dated 10.08.2021, rejected the said review application by accepting the contention of the defendant No.4. Further, the trial Court vide order dated

23.08.2021 permitted the defendant No.4 to mark the receipt as exhibit. Thus, the orders dated 10.08.2021 and

23.03.2021 are challenged in this petition.

¶5The primary contention of the learned counsel for the petitioner-plaintiff is that the receipt which the defendant No.4 intends to mark as Exhibit in support of his contention is a relinquishment of right and the defendant No.4 is liable to pay the stamp duty and penalty as per Article 45A of the Karnataka Stamp Act, 1957.

¶6The learned counsel for the respondent Nos.3 & 4-defendant Nos.4 & 5 contented that the amount received by the plaintiff is in the form of compensation for withdrawal of the suit.

¶7It is the contention of the learned counsel for defendant No.4 that after withdrawal of the suit, the plaintiff has approached the defendant No.4 by contending that she has withdrawn the suit as she has no right over the suit schedule property and claimed that she has incurred expenditure towards the litigation and on such statement, a payment is made and the said payment is

recorded in the form of receipt and placed before the Court, hence, the same cannot be termed as relinquishment deed.

¶8On perusal of the orders under challenge before this Court, it is noticed that the trial Court without considering the nature of the document, at the first instance, accepted the payment made by defendant No.4 as the actual duty payable on the receipt which is an error. In my considered view, the trial Court is required to first ascertain the nature of the document placed before it as to whether the said document is only a receipt as contented by the defendant No.4 or a relinquishment deed as contented by the plaintiff and thereafter come to a conclusion whether the said instrument is liable to be charged with a duty or penalty, if any. In the absence of any such finding, by mere accepting the stand of the defendant No.4 and coming to a conclusion that the document is required to be marked may not be

appropriate. The trial Court has already marked the said document. The marking of said document has to be considered as a tentative marking subject to the trial Court recording the finding with regard to the nature of instrument first and its admissibility and the said finding is required to be recorded by framing appropriate issue and the said issue can be considered along with the other issues.

¶9It is needless to observe that if the trial Court comes to a conclusion that the receipt in question is a relinquishment deed or a receipt, acknowledgment, then the trial Court can always calculate the duty payable on it, if attracted and the penalty as well, and order to pay the same at the time of passing the final decree. Hence, I proceed to pass the following: ORDER i. The writ petition is allowed. ii. The impugned orders dated 10.08.20221 passed Misc.Case No.8/20221 and the order

dated 23.08.2021 passed in O.S.No.164/2017 on the file of the Principal Senior Civil Judge and CJM., Mangaluru D.K., are hereby set aside. iii. The trial Court is directed to frame an issue as to whether the receipt dated 03.04.2017 produced by defendant No.4 is a receipt or a relinquishment deed and record its finding and thereafter, if duty is payable, direct the defendant No. 4 to pay the duty and penalty as per the provisions of the Karnataka Stamp Act, 1957. iv. It is made clear that this Court has not expressed any opinion on the merits of the document/receipt dated 03.04.2017. No order as to costs.

Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR/List No.: 1 Sl No.: 23