Channamma and Others vs Shantkumar

N.S. Veerabhadraiah, J.

1 This is the defendants revision being aggrieved of the order passed in O.S. No. 34 of 1999 by the Civil Judge (Senior Division), Gulbarga, dated 23-6-2003 permitting the plaintiff to mark the certified copy of the map,

The brief facts are as follows.--

The suit of the plaintiff is for declaration and consequential reliefs. After completion of the pleadings and framing of issues, the case was posted for evidence. While the plaintiff was in the witness-box, produced a certified copy of map issued by the Corporation pertaining to the suit schedule property. The marking of the certified copy of the map was objected by the defendants on the ground that the map is an "instrument" coming within the meaning of Section 2(1) (j) and (k) of the Karnataka Stamp Act, 1957 (for short, "the Act") and that the document was to be impounded. Therefore, the plaintiff has to pay duty and penalty. After hearing the learned Counsels for the plaintiff and defendants, the learned Civil Judge (Senior Division), Gulbarga, permitted the plaintiff to mark the certified copy of the map holding that it is not an "instrument" to impound the document, ordering to pay duty and penalty. It is this order which is now questioned in the present revision.

Learned Counsel Sri Appa Rao contended that the certified copy of the map sought to be produced in the evidence is a document as defined u/s 2(1) (j) and (k) of the Act, i.e., in other words, the map is an "instrument". Therefore, for marking of the document the Court has to impound it, collect the stamp duty u/s 34 of the Act then permit the party to produce the same in evidence. In support of his contention, also relies on the decision in Hanumanumul Baid Vs. Ananthapadmanabha, Accordingly, prayed to set aside the impugned order by allowing the revision.

Learned Counsel Sri Basavaraj Kareddy for the respondent firstly, contended that what is sought to be produced is a certified copy of the map issued by the Corporation and that it is not an "instrument" so as to attract the provisions of Section 34 of the Act and to pay the duty and penalty. Further, contended that if the transaction were to take place between two parties under an "instrument", it attracts the Act. Therefore, the certified copy of the map, which is required to be produced does not come within the definition of Section 2(1) (j) and (k) of the Act. Secondly, contended that the revision u/s 115 of the CPC is not maintainable in view of the amended provisions. Even if this revision were to have been disposed of, it does not result in disposal of the suit in its entirety. Therefore, on this ground also prays to dismiss the revision.

In the light of the submissions, the point for consideration that arises is:

"Whether the certified copy of the map does come within the meaning of Section 2(1) (j) and (k) of the Karnataka Stamp Act? If so liable to be impounded as required u/s 34 of the Karnataka Stamp Act?"

It is not in dispute that what is required to be produced by the plaintiff is the certified copy of the map, issued by the Corporation. It is only in case if an "instrument" are chargeable, then the question of paying the duty and penalty does arise. Section 2(1) (j) and (k), thus reads;

"2. Definitions.--(1) In this Act, unless the context otherwise requires.--

(J) "Instrument" includes every document and record created or maintained in or by an electronic storage and retrieval device or media by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded;

(k) "Instrument of partition" means any instrument whereby co-owners of any property divide or agree to divide such property in severally and includes--

(i) a final order for effecting a partition passed by any Revenue Authority or any Civil Court;

(ii) an award by an Arbitrator directing a partition; and

(iii) when any partition is effected without executing any such instrument, any instrument or instruments signed by the co-owners and recording, whether by way of declaration of such partition or otherwise, the terms of such partition amongst the co-owners".

A reading of Section 2(1)(j) makes clear where a document creates some right or liability between the parties transferring certain rights, then it comes within the meaning of definition of an "instrument" and is chargeable. Section 2(1)(k) makes clear that where parties agreed to divide certain properties in a partition under an "instrument", then it is liable to be duly stamped. It is in respect of those documents if proper stamp duties are not paid, such documents have to be impounded and the duty and penalty has to be charged, if it is to be admitted in evidence,

In the present case, what is required to be produced is the certified copy of the map, only for the purpose of identifying the properties described in an "instrument". Therefore, I am of the opinion that the certified copy of the map does not come within the meaning of Section 2(1) (j) and (k) of the Act so as to direct to pay the duty and penalty. In the case of Hanumanumul Bald, supra, the documents referred to is a partition deed, which is unstamped. Therefore, unless the document is stamped, it cannot be admitted in evidence. But, the facts of the present case are entirely different. The Stamp Act does not provide for paying the duty and penalty in respect of sketches, maps, etc. If such thing were to be allowed, there will be no end to the litigation and that is also not the intention of the legislation in enacting the Stamp Act. 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".

Therefore, I do not find any infirmity as such to interfere with the impugned order. Accordingly, revision dismissed.