GOMAL LAND

As per section 39 of the Karnataka Land Revenue Code, 1888 The Survey Officer or Deputy
Commissioner shall reserve the property of the Government, which is not in the lawful
occupation of any person or aggregate of persons, for free pasturage for village cattle, for
forest reserves or for other public or municipal purposes. Further the said section 39 of the
Act also restrict the power of the Revenue Officer/Tahsildhar/Deputy Commissioner from
appropriating the lands in terms of the powers conferred on them undersection 36 of the Act,
specially assigned for such purposes without the sanction of the Deputy Commissioner.

Rule 11 (iii) of the Rules under Karnataka Revenue Code, 1888 restrict the power of Deputy
Commissioner in appropriating the lands reserved for special purposes. The Rule 11 (iii)
reads as follows:

(iii) Where lands which have been set apart for the purpose with the sanction of the Revenue
Commissioner or other authority have appropriated for a different purpose, the previous
sanction of the Revenue commissioner for such other authority shall, if likewise obtained.”
Thus the previous sanction must be obtained from the Revenue Commissioner for
appropriating the lands reserved for the special purposes which includes the lands reserved
for grazing purposes (pasturage)

As per Rule 43-G the Rules under Karnataka Land Revenue Code, 1988 if the grant is made
free of cost, or is made at a price which is less than the full market value the granted land
shall not be alienated for a period of 15 years from the date of grantee taking possession of
the land, after the grant. (Rules 43 G as substituted vide Notification bearing no. RD 4 LAD
60 dated 10/05/1960)

The aforesaid Section 39 of the Karnataka Land Revenue Code, 1888 was also incorporated
in the Karnataka Land Revenue Act, 1964. Section 71 of the Karnataka Land Revenue Act,
1964 deals with the reservation of property for special purposes including for pasturage etc.,
Similarly, Rule 11 (iii) of the Rules Under Karnataka Land Revenue Code, 1888 also find
place in the Karnataka Land Revenue Rules, 1966, Rule 97 of the Karnataka Land Revenue
Rules, 1966 deals with the “Providing Free Pasturage”.

Section 71 of the Karnataka Land Revenue Act, 1964 reads as follows:

“71. Lands may be assigned for special purposes and when assigned, shall not be otherwise
used without sanction of the Deputy Commissioner: Subject to the general orders of the State
Government, Survey Officers whilst survey operations are proceedings under this Act, and at
any other time the Deputy Commissioner, may set apart lands, which are the property of the
State Government and not in the lawful occupation of any person or aggregate of person in
any village or portions of a village for free pasturage for the village cattle, for forest reserves
or for any other public purposes and lands assigned specially for any such purpose shall not
be otherwise used without the sanction of the Deputy Commissioner and in the disposal of
lands under section 69 due regard Shall be had to all such special assignments.”

Rule 97 of the Karnataka Land Revenue Rules, 1966 reads as follows:

“97. Providing free Pasturage: (1) Government land shall be set apart for free pasturage for
the cattle four goats, sheeps of each village at the rate of twelve hectares for every hundred
heads of cattle.

Explanation: In calculating the heads of cattle or calves or cow or buffalo shall be taken as
equivalent to one head of cattle.

(2) If there is sufficient forest area in the village concerned or in the adjoining village to
enable the village cattle to graze, the area to be set apart as free pasturage may be reduced
correspondingly.

(3) If there is no grazing land available in a village, or the land available falls short of the
extent prescribed under sub-rule (1) the deficit may be made up by setting apart Government
land available in the adjacent village

(4) The Deputy Commissioner shall determine the extent of land necessary to be set apart for
free pasturage in any village. If in the opinion of the Deputy Commissioner the extent of
pasturage should exceed the minimum prescribed in sub-rule (1) he may so set apart such
larger extent as may be necessary. If on the contrary he considers that the area already so
set apart is much larger than what is really required, he may reduce it to the prescribed
minimum. Where, he considers that the extent of free pasturage may be reduced below the
prescribed limit, he should do so only after obtaining the prior permission of the Divisional
Commissioner. Provided that no such permission shall be necessary where the reduction
below the prescribed limit is for the purpose of:

(i) distribution of house sites to the siteless person and

(ii) grant of land to persons belonging to Scheduled Castes and Scheduled Tribes for
agricultural purposes, who are ordinarily residents of such village

(iii) Regularisation of unauthorised cultivation under Chapter XII-A”

Thus, if the Gomal land is to be appropriated for any other purposes including agricultural
purposes, even if the Deputy Commissioner considers that the land reserved for the said
purposes is in excess of what is required for such village, he shall conduct an enquiry, shall
give an opportunity to the villagers and subsequently shall also take permission from the
Divisional Commissioner.

The issue with regard to grant of Gomal Land in favour of any person by the Deputy
Commissioner came before the Hon’ble High Court of Karnataka at Several times. The one
important judgment passed by the Hon’ble High Court of Karnataka relating to the grant of
Gomal Land is in K. P. Manjunatha Vs State of Karnataka reported in Air 1976 KAR 158.
In the said judgment, the Hon’ble High Court of Karnataka held that Deputy Commissioner
shall provide an opportunity to the villagers and shall consider their objections for grant of
Gomal Land.

Hon’ble High Court of Karnataka also held “Though it may not be practicable to give
individual notices to all the villagers having the right of free pasturage in Gomal lands, the
Revenue Authorities can give public notice to the villagers by affixing a copy of such notice
in the village chavadi, or by beat of tom tom or publication in a newspaper having
circulation in the village or in any other reasons able manner. Hearing of Objections of such
person to the proposed grant in the Gomal need not necessarily be a personal or oral
hearing. A mahazar cannot take the place of notice to persons in the village and
consideration of their objections. In the absence of such notice, there is no certainty that all
person who desire to object to the proposed grant of land in the Gomal, will know that
Mahazar will be held and that they can express their objections at such mahazar.”

The Hon’ble High Court of Karnataka in the case of Javaregowda vs Divisional

Commissioner, Mysore reported in 1976 (2) KAR L. J. Short Notes, ITEM No. 80
interpreting the scope of Rule 97 (4) of the Rules has held thus:

“Rules 97 (4) imposes a limitation on the power of the Deputy Commissioner to reduce the
extent of free pasturage which is already below the prescribed limit. He could do so only
after obtaining prior permission of the Divisional Commissioner. The Deputy Commissioner
must make out a case for reducing free pasturage below the prescribed minimum and then
obtain permission from the Divisional Commissioner for appropriation.”

Case Laws:

 1990 SCC Online Kar 467: (1990) 3 Kant LJ 137 – K. P. Acharya V. State of
Karnataka
 1976 SCC Online Kar 49” AIR 1976 Kar 158: (1976) 1 Kant LJ 380 : ILR 1976
Kar 946 K.P. Nanjunath V State of Karnataka
 Manu/KA/0520/2008 Writ Petition Nos. 48588 and 49754/2004 Chinnaswamy
Reddy son of Thomassappa and Ors vs State of Karnataka
 Sampath Kumar vs Principal sectary, Department of Revenue, Government of
Karnataka and others 2013
 H P Suryanarayanchari Vs Karnataka Lokayukta Manu/KA/2299/2014
 Bandyamma vs Assistant Commissioner ILR 1993 KAR 2694 b, 1994 (1) Kar LJ
 N. Venkata Reddy, S/O V Narayanappa vs The State of Karnataka Secretary 2013
 L. Nagaraj and Others vs Doddaih (Deceased) by LR, 2001
 Smt. Jayamma vs the Revenue Secretary, 2014
 In the High Court of Mysore: Somnath Iyer & Ahmed Ali Khan
 D V Girish and others vs State of Karnataka Writ Petition No. 6860/2008 (KLR-
LG-PIL)

The above property was granted by the competent Authority under Drakast Rules in the
proceedings bearing No. D. D. No. 360 in favour of ___

Whether the sale of granted lands is in violation of Karnataka Schedule Caste and
Schedule Tribes (PTCL) Act, 1978?

Applicability of The Karnataka Schedule Caste and Schedule Tribes (Prohibition of Transfer
of Certain Lands) Act 1978

The Karnataka Schedule Caste and Schedule Tribes (Prohibition of Transfer of Certain
Lands) Act 1978, hereinafter referred to as “The Act” came into effect as Karnataka Act No.
2 of 1979 with the effect from 01/01/1979

Section 4 of The Karnataka Schedule Caste and Schedule Tribes (Prohibition of Transfer of
Certain Lands) Act 1978 reads as follows:
“(1) Notwithstanding anything in any law, agreement, contract or instrument, any transfer of
granted land made either before or after the commencement of this Act, in contravention of
the terms of the grant of such land or the law providing for such grant, or sub-section (2)
shall be null and void and no right, title or interest in such land shall be conveyed nor be
deemed ever to be have conveyed by such transfer. (2) shall be null and void and no right,
title or interest in such land shall be conveyed nor be deemed ever to have conveyed by such
transfer.

(2) No person shall after the commencement of this Act, transfer or acquire by transfer any
granted land without the previous permission of Government

(3) the Provisions of Sub-section (1) and (2) shall apply to the sale of any land in execution
of a decree or order of a civil court or of any award or order of any order authority.”

Thus, Section 4 of The Karnataka Schedule Caste and Schedule Tribes (Prohibition of
Transfer of Certain Lands) Act 1978 can be summarized as follows:

1. The Sale or Transfer of the granted land made before commencement of the Act and if the
said transfer is in contravention of the terms of the grant of such land or law providing for
such grant the Sale or Transfer is null and void.

2. The Sale of Transfer of the granted land made after the commencement of the Act and
without prior permission of the Government the Sale or Transfer is null and void.

The Hon’ble High Court of Karnataka in Behamanna vs Deputy Commissioner,

Chitradurga District and others reported in ILR 2010 KAR 5011 also held that “under
section 4(2) two conditions are imposed. One with regard to alienation made prior to
01/01/1979 and another sale to be effected after commencement of the Act, with effect from
01/01/1979. So far as the granted land which were not alienated even after the completion of
the period of non-alienation stipulated under the grant would be invalid, if such transfer is
taken place without prior permission of the Government. So far as the transaction of sale
taken place prior to 01/01/1979 would be valid provided the alienation period has been
completed as per the grant.”

In the instance case the property bearing Sy. No. ___ of ___Village was granted in favour of
___ under Darkashts Rules which was in force in the year 1932, as disclosed in the
Application filed by the legal heirs of the Grantee. During the period of the said grant i.e.
1932, except the Government order dated 12/09/1929 bearing No. R. 2122/2-81/L.R> 368-
28-5 there was no rule framed by the State Government. As per Government Order dated
29/09/1924, the non-alienation period prescribed was 10 years, later it was extended to 20
years by virtue of the Government order date 12/09/1929.

The Hon’ble High Court of Karnataka in its judgement in Mariyappa vs Dr. N.

Thimmarrayappa reported in ILR 2004 Kar 3298 and 2004 (5) Kar. LJ 255, held that in the
absence of any rule authorizing imposition of condition of non-alienation, such condition
cannot be imposed based on a GO, in such case, sale of land would not be hit by Section 4 of
the PTCL Act.

The Hon’ble High Court of Karnataka in its Judgment passed in Writ Petition No. 6374/2012
between Sri. Jayarammappa vs State of Karnataka and others observed as follows:

1. “It is not in dispute that at the time when the grant was made, the relevant GO that
held the field was the Government Order dated 29/09/1924. As per this Government
Order, the non-alienation period prescribed was 10 years. This said non-alienation
period was later-on enhanced to 20 years by the virtue of the Government Order dated
29/09/1929. There was no provision made for obtaining prior permission of the
Deputy Commissioner to effect sale either before the expiry of the period of 20 years
or after the expiry of the period of 20 years. When the non-alienation period itself
could be only for a maximum period of 20 years, question of imposing any
condition even after the expiry of 20 years that the land cannot be sold without
taking the permission of Deputy Commissioner, does not arise.”
2. “From reading of Section 36, it is clear that the grant of Government land was
required to be regulated by the rules that might have been framed by the Government
under Section 233 of the code. Admittedly, there was no such rule as on date of grant
regulating the grant of the Government land. When the law prescribes a thing to be
done in particular manner, it should be done only in that manner. As stated earlier, the
disposal of the Government land under Section 36 of the Code is by the Deputy
Commissioner subject to the orders of the Revenue Commissioner as authorised by
the Rules. If that is so in the absence of such rules framed by the State Government
regulating the grant of land no condition to be imposed restraining alienation of the
land by an order issued in exercise of executive power.”

In the present case the grant certificate is not made available for our perusal and hence the
conditions prescribed in the said Grant is not known. However, as observed by the The
Hon’ble High Court of Karnataka in Writ Petition No. 6374/2012 between Sri.
Jayarammappa vs State of Karnataka and others, there should not be any condition to be
imposed restraining alienation of the land by an order issued in exercise of the executive
power, however, even assuming the effect of the Government Orders dated 29/09/1924 and
12/09/1929, the non-alienation period should have been for 20 years and hence the sale after
lapse of 34 years i.e., in the years 1966, is not hit by the provisions of the Karnataka Schedule
Caste and Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, 1978.

In view of the aforesaid facts of the case and position of law as declared by the Hon’ble High
Court of Karnataka, it is clear that the claim of the applicants cannot be upheld and further
there is no violation of the provisions of the Karnataka Schedule Caste and Schedule Tribes
(PTCL) Act, 1978. Hence Applicants claim is rejected.

Case laws

N Venkata Reddy S/O V Narayanappa vs The State of Karnataka Secretary to Land Revenue
10 July 2013 Writ Petition NO. 2837/2009

Writ Petition No. 6860/2008 (KLR-LG-PIL)

Further Reading

As per the Government of Karnataka Circular number: R D: 74: LGP: 2005 dated
24/12/2005, the gomal land is to be reserved for public caused, and an order has been issued
that no proposal should be made for such lands to be granted to individuals or organizations.
A petition filed for the sanction of scheme of amalgamation of M/s. iPolicy Networks Ltd.
(Transferor company 1) and M/s. Tech Mahindra(R&D Services) Ltd. (Transferor company
2) with M/s. Tech Mahindra Ltd.(Transferee Company) came up for hearing on 4/04/2008.
An objection was raised by Sh. Dhan Raj, Regional Director on the grounds that since the
appointed date was fixed in the future ie, 1.04.2008, the members of the board of directors
and the shareholders did not have enough information to form their opinions regarding the
financial position of the company and so their approvals to the scheme are not well defined.
He further added that the accounting standard-14 ie, accounting for amalgamation has not
been complied with.

The court rejected all these objections as the petitioners, represented by Advocate Sh Ashim
Vachher, submitted before the court that, the transferor companies were subsidiaries to the
transferee company and further that they were amalgamating with their parent company.
They further submitted that they will follow the accounting standard- 14 after the merger. An
affidavit of Sh A. K. Chaturvedi, Official Liquidator further stated that the transferee company
had no investigation proceedings pending as under Section 235 to 251 of the Companies
Act, 1956, and that all their activities are in the interests of the shareholders or creditors or
the public.

The court keeping in regard the above statements, held that scheme of sanction of
amalgamation should be granted. Since the scheme of amalgamation of Transferor
Company 2 was already granted by the High Court of Karnataka on 3/04/2008, the court
ordered that all the property, rights and powers, liabilities and duties, all proceedings
pending and against the transferor company 1 to be transferred to the transferee company
without any deed or act as according to Section 394(2) of The Companies Act 1956. It
further ordered for cancelling of allotment and issue of equity shares of the transferor
company 1 after the amalgamation. And lastly, the transferor company 1 was ordered to
deliver a certified copy of this order to the Registrar of Companies for registration within 5
weeks of the passing of this order. On completion, the transferor company 1 will be
dissolved and will be merged with its parent company. And the expenses of Rs 10,000/-
shall be deposited in the Common Pool Fund of O.L within 2 weeks of the passing of the
order.

‘Gomal land’ means land meant of grazing, and specially reserved for grazing purpose in the
villages. The Karnataka Land Revenue Act classifies the land as patta land which is occupied
by persons either they can use for grazing or cultivation. Gomal land (grazing land) is
specifically reserved from time immemorial in every State for the purpose of grazing of the
cattle in the village. It is well-known act that in the village, earlier to Land Ceiling and
Tenancy laws, some of the landlords used to own vast lands. About 80 to 90% population of
the village had no lands, but used to have cows, buffaloes, sheep, goats, poultry, etc. Taking
these factors into consideration, even in those days of Rulers' rule, certain lands were
reserved for grazing to facilitate these poor people of the society to use this land for grazing
their cattle so that they could survive. They are considered to be essential for village life.
Grant of gomal land by the government
Section 71 and 72 of the Karnataka Land Revenue Act, 1964 provide for the grant of gomal
land by the Government.
Section 71 reads as follows - Lands may be assigned special purposes and when
assigned, shall not be otherwise used without sanction of the Deputy Commissioner.
This section says that, with orders from the state government, the Deputy Commissioner, may
set apart few lands which are the property of the State Government and not any person or
aggregate of persons in any village etc, for free pasturage for the village cattle, for forest
reserves etc. These assigned lands shall not be used without the sanction of the Deputy
Commissioner.
Further section 72 reads as follows – Regulation of use of pasturage. This section provides
that the right of grazing on free pasturage lands extends only to the cattle of the villages to
which these lands belong to and they shall be regulated by the State Government rules and
regulation. And the decision made by the Deputy Commissioner regarding any dispute will
be final.
Section 71 and 72 provide powers to the Deputy Commissioner on the order of the State
government to grant these gomal lands.
In addition to these 2 sections, the procedure for granting gomal lands in provided under Rule
97 of the Karnataka Revenue Rules, 1966.
Rule 97(4) of the Karnataka Revenue Rules,1966, reads as , The Deputy Commissioner shall
determine the extent of land necessary to be set apart for free pasturage in any village, also
gives power to the government to grant gomal lands.
Rule 97(4) also says that, if the Deputy Commissioner feels that the pasturage should exceed
the minimum ie, 12 hectares for every 100 heads of cattle, cattle including cow, buffaloes,
goats, sleep, calves, may set apart such a larger extent. And in contrary, if he feels that the
land set apart is too large, he may reduce the same to the minimum. He can also reduce the
extent of the free pasturage below minimum as well, with permission of the Divisional
Commissioner.
Exception – He doesn’t need the permission of the Divisional Commissioner, when the
reduction is for the purpose of distribution of hose sites to the siteless person, grant of land to
SC or ST for agricultural purpose, regularisation of unauthorized cultivation or for
reservation of land for burial-ground for the residents of such village.
Kinds of grants :
Granted land can be classified with reference to Government rules or orders and the period of
prohibition imposed at the time of grant.
Under the Karnataka Land Grant Rules, 1969, land may be granted by the government for
agricultural purposes to any person who has attained the age of majority, with a gross annual
income not exceeding Rs.8000 and who is a bona fide agriculturist cultivating the land
personally or has a bona fide intention of taking up cultivation. Persons who own more than
four hectares of garden or wetland or more than eight hectares of dry or rain-fed wetland are
ineligible.
These rules provide that at least 50 per cent of land shall be granted to persons belonging to
Scheduled Castes or Scheduled Tribes, 10 per cent for ex-servicemen and soldiers, five for
backward tribes, 10 per cent for political sufferers and 25 per cent for others. Under the
category of “others,” priority shall be given first to landless persons residing in the village in
which the land is situated, then to persons holding an insufficient extent of land in the same
village followed by landless persons residing in other villages in the same or adjacent taluk
and thereafter to others.

The grantee shall not alienate the land for a period of 15 years from the date of grant.
However, the rules also provide that the grantee may alienate land after a period of five years
subject to obtaining permission from the Deputy Commissioner and on such conditions as
may be specified by the Deputy Commissioner.

The other conditions which are imposed include:

The land shall be brought under cultivation by the grantee within three years from the date of
taking possession
The grantee shall cultivate the land personally.

In case of land granted to SC/ST, even after the expiry of 15 years from the date of grant,
permission should be obtained from the State Government before such land is transferred by
the grantee under the provisions of Section 4 of the Karnataka Scheduled Caste and
Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act, 1978.

The rules provide that if any of the conditions are contravened by the grantee, the grant shall
be liable to be cancelled and land resumed to the government free from encumbrance. In view
of the restrictions, one has to fully satisfy himself that the grantee had satisfied all the
conditions of the grant before considering the purchase of such land.

INAM
Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954
It extends to the whole of Karnataka Area except Bellary District. It applies to Personal inam,
khayamgutta villages, kodagi or bawadi daswandam inams and miscellaneous inams.
It means a grant of a village, portion of a village, land or total or partial exemption of land
revenue, entered in the register of inams, quit-rent register, alienation register, or any revenue
account maintained by or under the authority of government.
Inam is defined under Section 2(5) of Mysore (Personal and Miscellaneous) Inams Abolition
Act, 1954 as Inam includes an inam village and a minor inam.
Inam village as under Section 2(7) means an alienated village whether Sarvamanya, Jodi or
Khayamgutta or a portion of such village.
And Minor Inam as under Section 2(10) means an alienated holding other than an inam
village, situated in an alienated village or an unalienated village.
Inam lands are those which are given by way of grants or gifts. Section 4 of the act says that
Kadim tenants of inamdar need to be registered as occupants of their holdings and Section 5
lays down that permanent tenants of inamdar need to be registered as occupants on certain
conditions. He shall further be liable to pay to the government, premium for acquisition of
ownership of such land, an amount equal to 20 times such land revenue. The said premium
shall be payable in not more than 10 annual instalments along with the annual land revenue
and in default of such payment, he amount will be recoverable as arrears of land revenue due.
As under Section 11, every person, kadim or permanent or quasi-permanent tenant etc, is
liable to pay land revenue to the Government.

Mysore (Religious and Charitable) Inams Abolition Act, 1955

It extends to the whole of Karnataka Area except Bellary District. It applies to Religious
inams including the Sringeri Jahgir and Charitable Inams.
It means a grant of a village, portion of a village, land or total or partial exemption of land
revenue, entered in the register of inams, quit-rent register, alienation register, or any revenue
account maintained by or under the authority of government as Devadaya inam or
Dharmadaya inam.
Inam village under this act, as given under Section 2(7) means an alienated village whether
Sarvamanya or Jodi or a portion of such village

Karnataka Certain Inams Abolition Act, 1977

It extends to the whole of Karnataka. It applies to all inams including inams in enclave
villages other than those referred to in The Bombay Personal Inams Abolition Act, 1952, The
Bombay Service Inams (Useful to Community) Abolition Act, 1953, The Bombay Merged
Territories and Areas(Jagir Abolition) Act, 1953, The Bombay Merged Territories
Miscellaneous Alienations Abolition Act, 1955, The Hyderabad Abolition of Inams Act,
1955, The Madras Estates(Abolition and Conversion into Ryotwari) Act, 1948, The
Karnataka (Personal and Miscellaneous) Inams Abolition Act, 1954, The Karnataka
(Religious and Charitable) Inams Abolition Act, 1955, The Bombay Paragana and Kulkarni
Vatans (Abolition) Act, 1950, The Karnataka Village Offices Abolition Act, 1961 and The
Karnataka (Sundur Area) Inams Abolition Act, 1976.
Inam under this act is defined under Section 2(e). Inam includes an inam village and a minor
inam, a jagir, whether personal, religious, charitable or otherwise.
Inam land or Inam village as under Section 2(g) means a land or village, as the case maybe,
held as an inam in trust or owned by a person for his own benefit.
Personal inam as under Section 2(k) means a grant of village or land with total or partial
exemption from the payment of land revenue made to a person and entered in the land
records as an inam, other than a ‘devadaya’ or ‘ dharmadaya’ and does not include religious
or charitable inam
Lastly, Religious or charitable inams under Section 2(m) means grant of a village, portion of
a village or land with total or partial exemption from the payment of land revenue made to or
for the benefit of a religious or charitable institution (includes a temple).
 INDIAN LAW REPORTS APRIL1 INDIAN LAW REPORTS
KARNATAKA SERIES
Vol. No. 67, 1st APRIL 2017, Part 7
REPORTS : 1583 - 1824
Citation : I.L.R. 2017 KAR
ILR 2017 KAR 1583
SUBHRO KAMAL MUKHERJEE, CJ AND BUDIHAL R.B., J
Sri Shantesh Gureddi and Another vs. The Commissioner, Bruhat Bangalore Mahanagara
Paliki and Others
CODE OF CIVIL PROCEDURE, 1908 – ORDER 1 RULE 10(2) – Addition of parties –
Pendency of appeal before the Karnataka Appellate Tribunal, arising out of Section 321(1)
and (3) of the Karnataka Municipal Corporations Act, 1976 – Complainants before the
Corporation, alleging construction by the owner of the premises in violation of the sanctioned
building plan, sought for impleadment in the proceedings – Rejection of application by the
Tribunal – Learned Single Judge allowed the application – Intra-Court Appeal –
HELD,
The power to add a party to a proceeding is not of initial jurisdiction, but of a discretionary
nature. The Hon’ble Single Judge, in exercise of his sound discretion, felt that they are proper
parties. No prejudice will be caused to the appellants if those persons are added as parties
before the Tribunal. On the contrary, better justice is always done if a lis is decided upon a
contested hearing.
FURTHER HELD,
Some of the residents of the locality have pointed out that another resident of the same
locality has constructed a building in deviation of the sanctioned building plan. The
Municipal Authorities have passed an order of demolition. Against it, an appeal was filed by
the residents and there is an order of status quo. – There is no attempt on the part of the
authorities of the Mahanagara Palike to get that order vacated and get the alleged
unauthorized construction demolished. – Under the apprehension that the matter may not be
pursued before the Tribunal properly, some of the complainants have come forward seeking
for their addition as parties. – The discretion exercised by the Hon’ble Single Judge in
directing addition of the parties cannot be interfered with.
Writ Appeals are dismissed.
 ILR 2017 KAR 1743
B.S. PAIL, J
G.S Siddaraju vs. State of Karnataka, represented by its Principal Secretary, Revenue
Department and Others
KARNATAKA LAND REVENUE ACT, 1964 (for short ‘the Act’) – SECTION 95(1) –
Exercise of power by the Tahsildhar – Direction issued to demolish the construction made by
the petitioner, after taking necessary approval from the Deputy Commissioner – Alleged
violations of provisions of Section 95(2) of the Act – Construction of farm house by the
petitioner in his agricultural land for its convenient use or better cultivation – Requirement of
filing an application under Section 95(1) –
HELD,
If the agricultural land is so required to be used for erecting a farm house or farm building,
then the agriculturist is not required to file an application seeking conversion of land as
contemplated under sub-Section (2) of Section 95.
FURTHER HELD,
(a) An agriculturist can erect building in his agricultural land for its more convenient use
or better cultivation, provided such farm building or farm house so erected is not more
than 10% of his holding subject to maximum of such extent of land as may be
prescribed. – In other words, if the farmer has got 10 acres of land, he cannot be found
fault with for putting up construction utilizing a bigger area in his agricultural land,
say up to 1 acre provided he uses such construction for his own residence for the
purpose of agricultural operations, tethering of cattle or for storing agricultural
implements or products including for residence of himself and his family members,
his servants and dependents.

(b) Merely because the construction put up is a bigger one, it cannot be held that the
construction loses the characteristic of a farm building unless it falls within the
mischief of proviso to sub-Section (1) of Section 95 of the Act which states that such
farm house erected shall not be more than 10% of his holding or that it does not
satisfy the explanation appended to sub-Section (1) of Section 95 of the Act which
states that farm building or a farm house means a house attached to a farm and
construction made in a portion of agricultural land, used for the residence of the
agriculturist or used for the purpose of keeping agricultural equipments and tethering
cattle or that the house shall be used by farmer for his own use and shall not be let out
for commercial activities to any individual or agency.

(c) There is no finding recorded in the instant case that construction put up has been let
out either for commercial use to any other person or agency. In such circumstances,
 the Tahsildar was not right and justified in making an interference based on the
structure put up that as the building was bigger one, it could not be regarded as a farm
house/ building.
Writ Petition is Allowed.
ILR 2017 KAR 1795
B.VEERAPPA, J
Paramvah Studios Pvt. Ltd., and Another vs. Lahari Recording Company
CODE OF CIVIL PROCEDURE, 1908 – PROVISO TO ORDER 39 RULE 3 – Duty of the
Court to record the reasons for its opinion that the object of granting the injunction would be
defeated by delay –
HELD,
(a) The provisions of Order 39 Rule 3 proviso of CPC clearly depicts that before granting
ex-parte temporary injunction, the Trial Court should record the reasons as to why the
notice to the defendants has been dispensed with.

(b) The requirement of giving reasons for the opinion of the Court that the object of
granting the injunction would be defeated by delay, as laid down in the proviso, is
mandatory and if it is not complied with, the order is illegal.

FURTHER HELD,
In the present case, no such reasons are assigned by the Trial Court for dispensation of
notice/summons to defendants/petitioners before passing the impugned order which is
erroneous and contrary to the provisions of Order 39 Rule 3 of CPC. – Impugned Order is
contrary to the mandatory proviso to Order 39 Rule 3 CPC.
Writ Petitions are Allowed.
 ILR 2017 KAR 1811
(DHARWAD BENCH)
G. NARENDAR, J
Shri Bharamappa vs. Smt. Akkatai and Others
CODE OF CIVIL PROCEDURE, 1908 – ORDER 1 RULE 10(2) READ WITH ORDER 22
RULE 10 – Court may strike out or add parties – Application filed by the plaintiff for
impleading the proposal defendant No. 11 – Application was allowed by the Trial Court after
recording the evidence – Finding of Trial Court, prima facie case for impleading the
proposed defendant No. 11 is made out – Challenge to –
HELD,
The provisions of sub-Rule (2) clearly mandates and vests a discretion in the Court to add or
delete a party whom it deems necessary for effectually and completely adjudicating and
settling all the disputes.
FURTHER HELD,
In the instant case, it is not disputed that the property allegedly bequeathed in favour of the
proposed defendant are part of the suit property, over which the plaintiff is seeking for
partition. A decree, without arraying the legatee, would stand frustrated and would only result
in multiplicity of proceedings. Hence, the proposed defendant is a necessary party for
complete adjudication of the dispute subsisting between the parties. – CODE OF CIVIL
PROCEDURE, 1908 – (1) ORDER 22 RULE 10 – (2) ORDER 22 RULE 5 – DISCUSSED.
Writ Petition is Disposed off.

INDIAN LAW REPORTS

KARNATAKA SERIES
Vol. No. 66, 1st APRIL 2017, Part 15
REPORTS : 3341 - 3588
Citation : I.L.R. 2016 KAR
ILR 2016 KAR 3509
 ASHOK B. HINCHIGERI, J
Mahadev and Others vs. The State of Karnataka, Department of Revenue and Others
A) KARNATAKA LAND REVENUE ACT, 1964 – SECTION 94-A(6)(a) AND
KARNATAKA LAND REVENUE RULES, 1966 – RULES 108-D(2) AND 108-
D(3) – Recommendation made by the Committee for Regularization of Unauthorized
Occupation for grant of land – Committee resolved to grant the land – Power of the
Tahsildar to deny or withhold the grant of the land in derogation of the resolution
passed by the Committee for the Regularization of the Unauthorized Occupation –
HELD,
Once the fifth respondent Committee recommends the grant of the lands, the Tahsildar
has no discretion in the matter. He has no option but to issue the grant order and Saguvali
Chit on such terms as are permissible in law. The Tahsildar, who is the member Secretary
of the Committee cannot act as an Appellate Authority and sit in judgement over its
orders or recommendations. The Member Secretary has no veto-power as such. The
mandate of law is that he has to only operationalize the recommendations of the
Committee.
FURTHER HELD,
However, if the resolution recommending the grant is illegal, irregular or if the applicant
for the grant of the land is ineligible or if the land itself is not available for grant, then the
remedy for the Tahsildar is to prefer an appeal before the Assistant Commissioner
invoking Rule 108-K of the Karnataka Land Revenue Rules, 1966. It is for the Assistant
Commissioner to take the decision in the matter of cancellation of the grant.
B) KARNATAKA LAND REVENUE ACT, 1964 – SECTION 94-A – Regularization of
certain cases of unauthorized occupation by the Committee – Committee to consider
the application as per the law prevailing on the date of making the application –
HELD,
It is a cardinal principle of construction that every statute is prima facie prospective,
unless it is expressly or by necessary implication made to have retrospective operation.
Unless there are words in the statute sufficient to show the intention of the Legislation to
affect the existing rights, it is deemed to be prospective only. In the absence of anything
in the enactment to show that it is to have retrospective operation, it cannot take away or
impair a right acquired under the existing laws or attach a new disability.
FURTHER HELD,
In the instant case, admittedly the application for the grant of the land was made in 1991.
In 1991, there was no prohibition in granting the land which lied within a radius of 5 kms
from the periphery of Shivamogga City. The prohibition or embargo is introduced
subsequently. – The application for the grant of the land has to be examined with
reference to the law which was in force at the time of making the application, but not as
per the law, which is amended subsequent to the filing of the application.
Writ Petitions are Allowed.
 INDIAN LAW REPORTS
KARNATAKA SERIES
Vol. No. 67, 1st February 2017, Part 3
REPORTS : 571-840
Citation : I.L.R. 2017 KAR
ILR 2017 KAR 679
Dr. VINEET KOTHARI,J
Mr. Jai M. Patil vs. The Commissioner, Bangalore Mahanagara Palike and Another
KARNATAKA MUNICIPAL CORPORATION ACT, 1976 (the ‘Act’ for short) –
SECTION 108-A(3) AND BBMP PROPERTY TAX RULES, 2009 (for short ‘Property Tax
Rules, 2009’) – RULE 11 – Property Register in Form A and Form B – Property Tax
collected from the owner/occupier in respect of property assessed to tax and in respect of un-
assessed properties – Petitioner’s property assessed to tax annually for last five years and ‘A’
Khata Certificate was issued – Bruhat Bengaluru Mahanagara Palike (BBMP) refused to
accept annual payment of property tax on the ground that the property in question was
constructed with certain deviations – Challenge to –
HELD,
Provisions of Section 108-A(3) of the Act and Rule 11 of the Property Tax Rules, 2009
clearly indicate that while the collection of revenue and Property Tax is saved and allowed by
Section 108-A(3) of the Act irrespective of the deviations and violations of the building by-
laws, while permitting BBMP to undertake action for the removal of such violations and
encroachments even later on, irrespective of the assessment and collection of the Property
Tax under Section 108-A of the Act, the distinction in Form A and Form B Registers
maintained under the Property Tax Rules, 2009 is only to the extent of the properties assessed
to tax to be enlisted in Form A and properties not yet assessed, to be enlisted in Form-B.
FURTHER HELD,
a) In view of the fact that the petitioner’s property in question already stood assessed
and the petitioner has paid the Property Tax annually for last five to six years and ‘A’
Khata Certificate was also issued to him, there appears to be no justification on the
part of the respondent-BBMP to contend that the petitioner’s property namely one of
the Flats of the said building, is to be included in Form B under Rule 11 of the
Property Tax Rules, 2009. It is not the property not yet assessed to Property Tax by
the concerned authority despite issuing ‘A’ Khata Certificate and there appears to be
no valid reason as contended in the Affidavit filed by the Assistant Revenue Officer
that the property in question continued to be registered in Form B.
 b) The distinction between Form A and Form B under Rule 11 only depends upon the
factum of assessment of Property Tax already made and yet un-assessed properties.
There is no denial of fact in the present case that the property of petitioner, namely
Flat No.A6 was already assessed to Property Tax and not only ‘A’ Khata Certificate
was issued to him but even, the Property Tax for the period from 2008-09 to 2013-14
was collected from him on that basis, as would appear from the details given in the
writ petition. Therefore, the inclusion of the petitioner’s name and the property in
Form B under Rule 11 of the Property Tax Rules, 2009 is not only controverted by
the evidence placed on record, but has not been disputed and cannot be disputed by
the respondent-BBMP. The inclusion of the said property under Form B on the basis
of alleged deviations and violation of the building bye-laws has nothing to do with
Rule 11 of the property Tax Rules, 2009. Neither the entry of the petitioner’s
property in Form A under Property Rules, 2009 nor Section 108-A(3) of the Act
precludes the respondent-BBMP from taking action against the Builder or Developer
for the violation of building bye-laws and the construction raised beyond the
sanctioned plan. – The respondent-BBMP is directed to accept the payment of
Annual Property Tax from the petitioner on the basis of ‘A’ Khata Certificate issued
in his favour.
Writ Petition is Allowed.
 ILR 2017 KAR 691
(KALABURAGI BENCH)
A.N. VENUGOPALA GOWDA, J
Gurunathappa vs. Subhash
A. REGISTRATION ACT, 1908 – CLAUSE (b) OF SUB-SECTION (1) OF
SECTION 17 – Registration of agreement of sale – Agreement of sale to be
compulsorily registered, whenever, the possession of the immovable property is
delivered thereunder. – Application filed by the defendant under Section 17(1A)
and 49 of the Act to dismiss the suit as not maintainable, as the agreement of sale
has not been registered. – Rejection of application – Pleaded against –

HELD,
Section 17(1A) of the Act requires an agreement of sale to be compulsorily registered,
whenever, the possession of the immovable property is delivered thereunder. Otherwise, it
cannot affect the immovable property comprised therein by virtue of Section 49 of the Act.
Section 54 of the Transfer of Property Act, 1882 categorically states that a contract for sale
itself does not create any interest in or charge on such property. The amended proviso to sub-
Section (1A) of Section 17 of the Act makes clear, that if the benefit of Section 53-A is to be
available, then contract(s) of sale shall be registered. If not registered then they shall have no
effect for the purpose of the Section 53-A. The provision has been made applicable for
contract for sale executed on or after the commencement of the Registration Act, 1908 and
Other Related Laws (Amendment) Act, 2001, which came into force on 24.09.2001.
FURTHER HELD,
In the instant case, the alleged agreement of sale has come into being on 09.02.1998. There is
no recital in the suit instrument to the effect that the possession of the property was delivered
by the defendant. The plaintiff is not claiming the benefit of Section 53-A of T.P. Act, 1882.
As the instrument on which the suit has been founded is merely an agreement of sale and not
a sale transaction, does not fall within the purview of Clause (b) of sub-Section (1) of Section
17 of the Act. In view of the proviso to Section 49, Trial Judge is justified in rejecting
I.A.No. 2, as the plaintiff has sought execution of the deed of conveyance of the suit property
by instituting the suit for specific performance.
B. TRANSFER OF PROPERTY (AMENDMENT) SUPPLEMENTARY ACT,
1929 – proviso to Section 49 – Unregistered document affecting immovable
property may be put in evidence of any collateral transaction not required to be
effected by registered document –
HELD,
The proviso was inserted in the Section by the Transfer of Property (Amendment)
Supplementary Act, 1929. Proviso makes clear that an unregistered document affecting an
immovable property may be put in evidence in a suit for specific performance. If the
document is put in evidence and embodies the contract between the parties, it is sufficient to
support the claim.
FURTHER HELD,
Section 54 of the T.P. Act, 1882 specifically provides that an agreement for sale by itself
does not create any interest in or charge on the property agreed to be sold. An Agreement of
Sale cannot be treated as a conveyance for the purpose of the Registration Act, 1908. An
Agreement of Sale is compulsorily registered document under Clause (b) to sub-Section (1)
of Section 17 of the Registration Act, 1908 if the instrument operates to create, declare,
assign, limit or extinguish, whether in present or in future, any right, title or interest, whether
vested or contingent, of the value of one hundred rupees and upwards, to or in immovable
property.
(1) TRANSFER OF PROPERTY ACT, 1882 – SECTION 53-A AND 54 – (2)
REGISTRATION ACT, 1908 – SECTIONS 17(1) AND 49 – DISCUSSED
Writ Petition is Rejected.
Sri Bapugouda Siddappa, Advocate for Petitioner.
INDIAN LAW REPORTS FEB15

INDIAN LAW REPORTS

KARNATAKA SERIES
Vol. No. 67, 15th February 2017, Part 4
REPORTS : 841 - 1104
Citation : I.L.R. 2017 KAR
ILR 2017 KAR 1003
(DHARWAD BENCH)
ASHOK B. HINCHIGERI AND P.S. DINESH KUMAR, JJ
The Special land Acquisition Officer, Upper Krishna Project,
Bagalkot vs. Sharanabasappa and Another
LAND ACQUISITION ACT, 1894 – SECTION 18 – reference – Acceptance of consent
award accepted without protest, extinguishes the legal right to maintain a reference for
enhancement of compensation, more so, when the land-owners agreed not to seek any
enhancement. – When a person interested in the land has opted for consent award under
Section 11(2) of the Land Acquisition Act, he is not entitled to seek any reference for
enhancement of compensation under Section 18. – The right and entitlement to seek reference
would arise only when the amount of compensation was received under protest in writing
which would manifest the intention of the owner of non-acceptance of the award.
FURTHER HELD,
(a) The claimants have agreed to receive the compensation of Rs. 1,14,000/- per acre.
The agreement executed by them is at Ex.R3. They have also executed the indemnity
bond which is at Ex.R4. They have also received the agreed compensation, as is
evident from their acknowledgement in Form No.1, which is at Ex.R6. They have not
even stated that they are receiving the amounts under protest. Therefore, they are
estopped from seeking the reference invoking Section 18 of the Act insofar as the
consent award pertains to the land.

(b) The justification given by the Reference Court for passing the impugned award is that
another Reference Court has allowed the Reference in respect of consent award. It is
most untenable, to say the least. The Reference Court’s judgements do not lay any
precedent. The Reference Court is not a Court of records. Under Article 141 of the
Constitution of India, the law declared by the Hon’ble Supreme Court, shall be
binding on all the Courts within the territory of India. Article 144 states that all the
authorities, civil and judicial in the territory pf Indian, shall act in aid of the Hon’ble
Supreme Court.

(c) The Reference under Section 18 is valid only and strictly for the purpose of
examining what compensation is to be paid towards the buildings, trees and other
improvements on the land. The matter is remanded to the Reference Court for the
purpose of adjudicating as to what is the market value of the buildings, trees and other
improvements on the land as on the date of the issuance of the preliminary
notification.

Miscellaneous First Appeals are Disposed of.

 ILR 2017 KAR 1081
Dr. VINEET KOTHARI, J
Rashmi Thakeria vs. Official Liquidator of Natural Textiles Private limited
CODE OF CIVIL PROCEDURE, 1908 – SECTION 151 – Application filed, seeking
direction to the Official Liquidator to supervise the sale of the secured creditor, who is trying
to undersell the assets – Assets of the company in liquidation are taken over by the secured
creditor under the provision of Securities and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (SARFAESI Act) – Direction sought to the
Official Liquidator to supervise the sale of secured assets of the company to ensure and
recover the best possible price for the assets – Interference by the High Court –
HELD,
Such intervention of the Company Court is no longer permissible in view of the binding
precedent rendered by the Hon’ble Supreme Court of India in the case of Pegasus Assets
Reconstruction P. Ltd. vs. M/s. Haryana Concast Limited and another – 2016 (4) SCC 47. – a
secured creditor has the right to enforce its security interest without the intervention of the
Court or Tribunal. At the same time, SARFAESI Act takes care that in case of grievance, the
borrower, which in the case of a company under liquidation would mean the liquidator, will
have the right of seeking redressal under Sections 17 and 18 of the SARFAESI Act. – At the
post sale stage, the rights of the persons or parties having any stake in the sale proceeds are
also taken care of by sub-Section (9) of Section 13 and its five provisos. – There is no
plausible reason as to take recourse to any provisions of the Companies Act and permit
interference in the proceedings under the SARFAESI Act, either by the Company Judge or
the Liquidator. – The applicant, shareholder as well as Official Liquidator of the company in
liquidation are permitted to raise objections, if any, before the competent Tribunal under
Section 17 of the SARFAESI Act, at appropriate stage.
Company Application No. 969/2015 as well as Official Liquidator Report No. 341/2015 are
disposed of.

ILR 2017 KAR 1089

(KALABURAGI BENCH)
A.N. VENUGOPALA DOWDA, J
Vaijinath and Others vs. Shankramma, since deceased by LRs and Another
CODE OF CIVIL PROCEDURE, 1908 – ORDER 7 RULE 11 – Grant of time to furnish
correct valuation and to pay the requisite Court Fee – Failure on the part of the plaintiff to
furnish correct valuation and to pay the requisite Court Fee – Dismissal of suit – Appeal filed
under Order 43 Rule 1 – Maintainability of appeal –
HELD,
Order passed under Order 7 Rule 11 CPC is a decree in terms of Section 2(2) CPC. – Order
43 CPC has no application to such decree as Order 43 CPC cannot be invoked to assail such a
decree. By invocation of power under Section 104 CPC, an appeal can be preferred against
the orders shown in sub-rules of Rule (1) of Order 43 and not others.
FURTHER HELD,
As an order passed under Order 7 Rule 11 CPC, when finds no place either in Section 104
CPC or under any sub-clause of Order 43 Rule 1 CPC and when Section 105 specifically
enjoins that no appeal shall lie, in exercise of its original jurisdiction or appellate jurisdiction
except in respect of cases otherwise provided, the appeal being not maintainable, the Court
below in ignorance of the relevant provisions of the Code, has passed the impugned
judgement, which being illegal, cannot be sustained.
 (1) CODE OF CIVIL PROCEDURE, 1908 – SECTION 104 – INVOCATION OF
POWER UNDER – (2) CODE OF CIVIL PROCEDURE, 1908 – SECTION 2(2) –
MEANING OF DECREE – (3) CODE OF CIVIL PROCEDURE, 1908 – ORDER 43
RULE 1 – APPEALS FROM ORDERS – DISCUSSED.
Miscellaneous Second Appeal is Allowed.

INDIAN LAW REPORTS

KARNATAKA SERIES
Vol. No. 67, 1st March 2017, Part 5
REPORTS : 1105-1360
Citation : I.L.R. 2017 KAR
ILR 2017 KAR 1121
H.G RAMESH AND JOHN MICHAEL CUNHA, JJ
Smt. Lakshmamma and Another vs. The Special Land Acquisition Officer, UTP, Shimoga
and Another
LAND ACQUISITION ACT, 1894 – SECTION 18(1) – Reference under – Determination of
the value of the subject matter of the reference in the absence of claiming any specific
amount in the application –
HELD,
There is no requirement in law to state the claim amount in the application under Section
18(1) of the Act or before the Reference Court. – Under the Act or the Rules framed under
the L.A. Act in Karnataka, a landowner is not required to claim any specific amount in his
application for reference under Section 18(1) of the Act or before the Reference Court.
Suffice, if he states that the determination of market value of the land is inadequate and seeks
for its determination by Civil Court.
FURTHER HELD,
In the absence of any specific amount claimed in the application filed under Section 18(1) of
the Act or before the Reference Court, the amount of compensation awarded by the
Reference Court together with the amount of compensation claimed before the Appellate
Court shall be deemed to be the value of the subject matter of the reference proceeding before
the Reference Court. – The Court fee payable on an appeal under Section 54 of the Act is
governed by Section 48 of the Karnataka Court-Fees and Suits valuation Act, 1958.
Miscellaneous First Appeal is Disposed of.
 ILR 2017 KAR 1246
A.S. BOPANNA, J
Arvind Kumar vs. Smt. Shital Verma
CODE OF CIVIL PROCEDURE, 1908 – SECTION 89 – Settlement before the Mediation
Centre – Agreement between the parties for dissolution of marriage – Confirmation of the
terms of settlement before the Court – terms of settlement is not illegal or opposed to public
policy –
HELD,
The Court can look into the terms agreed in the settlement to take note as to whether any of
the terms is illegal, unconscionable or opposed to public policy. If that test is satisfies and the
parties confirm the terms of settlement, the same is required to be accepted and the
proceedings be terminated in terms of the settlement.
FURTHER HELD,
When the Memorandum has been entered into in the Mediation and when the petition is taken
up before the Court, both parties stand by the agreement, there is no reason to discard such
agreement though it is entered into in a petition under Section 13(1)(ia) and (ib) of the Hindu
marriage Act, 1955 and the consideration for dissolution of marriage is being made by the
agreement of the parties
Writ Petition is Disposed of.
 ILR 2017 KAR 1319
G.NARENDAR, J
The Bangalore Development Authority vs. Sri. Bhagavandas Patel
(A) CODE OF CIVIL PROCEDURE, 1908 – ORDER 41 RULE 27 – Production of
additional evidence in Appellate Court – Production of public documents as
additional evidence – Public documents relates to acquisition proceedings,
preliminary and final notification etc., in respect of the suit schedule property –
HELD,
The additional evidence is necessary for decision in the appeal. – The application falls within
the exception carved out under Clause (b) of Rule 27 of Order 41 of CPC which provides that
additional evidence may be permitted by the Appellate Court for any other substantial cause
and to enable a complete adjudication and pronouncement of a judgement.
(B) CODE OF CIVIL PROCEDURE, 1908 – ORDER 6 – Pleadings generally – Evidence
without corresponding pleadings – Plea without evidence –
HELD,
No amount of plea without corroborating evidence and all evidence without corresponding
pleadings cannot go on to establish a fact. The Civil Courts are required to act and adjudicate
based on pleadings and evidentiary material placed before it.
FURTHER HELD,
The plaint is bereft of any pleadings which goes to identify the suit schedule property as one
that is beyond the boundaries of the lands acquired by the defendant or that the same is
comprised in a survey number which is not the subject matter of acquisition. Hence, the first
issue is held against the plaintiff. – The suit schedule property is a part of the layout called
Anandaram Slum which has been formed out of lands acquired by the defendant under the
acquisition notifications produced as Exs.D1 and D2. – The suit is not maintainable as the
Civil Court is devoid of jurisdiction to entertain and take cognizance of the suit under Section
9 of the CPC in view of the bar under the Land Acquisition Act, 1894.
(C) CODE OF CIVIL PROCEDURE, 1908 – SECTION 9 – Courts to try all civil suits
unless barred – Suit schedule property is a part of layout which has been formed out
of lands acquired by the defendant – Acquisition of land by BDA – Land vests with
BDA – Suit for declaration of title and consequential relief of permanent injunction –
Specific assertion in the written statement with materials about the acquisition of suit
lands – Jurisdiction of Civil Court to entertain the suit –
HELD,
Suit is not maintainable and Civil Court has no jurisdiction to entertain the suit under Section
9 of CPC.
(1) BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 – SECTION 64 – (2)
CODE OF CIVILPROCEDURE, 1908 – (A) ORDER 41 RULE 27(b) – (B)
SECTION 9 – (3) INDIAN EVIDENCE ACT, 1872 – SECTION 101 –
DISCUSSED.
Regular First Appeal is Allowed.
INDIAN LAW REPORTS MAR15

INDIAN LAW REPORTS

KARNATAKA SERIES
Vol. No. 67, 15th March 2017, Part 6
REPORTS : 1361-1582
Citation : I.L.R. 2017 KAR
ILR 2017 KAR 1470
B.S PATIL, J
M. Somashekar and Others vs. State of Karnataka, Department of Industries and Commerce
and Others
A) KARNATAKA INDUSTRIAL AREAS DEVELOPMENT ACT, 1966 (for short “the
KIAD Act”) – SECTION 28(1) – Acquisition under – Applicability of the provisions of Right
to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (for short “the New Act”) – Effect of sub-Section (2) of Section 24 of
the New Act –
HELD,
(a) Karnataka Industrial Development Act is a complete code by itself and provisions of
Land acquisition Act namely Central Act 1 of 1894 have been made mutatis mutandis
applicable in respect of Enquiry and Award by the Deputy Commissioner, Reference
to the Civil Court, Apportionment of compensation and Payment of compensation in
respect of acquired land as is clear from Section 30 of the KIAD Act.

(b) The New Land Acquisition Act insofar as it provides for right to fair compensation
would be applicable even where the acquisition was under the State law namely
Karnataka Industrial Areas Development Act wherever the acquisition was
incomplete and Award was not passed or possession was not taken for five years or
more from the date of passing of award. By virtue of Section 24(2) cases where
acquisition had resulted in passing of the award five years or more prior to the
commencement of the New Act but physical possession of the same had not been
 taken or compensation had not been paid the proceedings shall be deemed to have
lapsed.

(c) However, the State would be entitled to initiate fresh proceedings in accordance with
the provisions of the New Act. The scope, purpose and object of the provisions in the
New act including Section 24(2), if carefully considered, it cannot be equated to or
restricted for the scope and object of Section 11A introduced by the Amending Act,
Act 68/1984.

FURTHER HELD,
(a) The purpose and intent behind provision of Section 24(2) enacted by the parliament in
the New Act is to ensure that a person who has not been paid compensation for
several years cannot be forced to part with his land for payment of compensation
under the provisions of the Old land Acquisition Act which provisions were regarded
as insufficient and inadequate for ensuring payment of comprehensive fair
compensation package for the land owners by adopting a scientific method for
calculation of market value coupled with a comprehensive rehabilitation and
resettlement package for land owners including subsistence allowance, jobs, houses,
transportation allowance and resettlement allowance etc. This is evident from the
many laudable objects contained in the statement of objects and reasons to the New
Land Acquisition Act.

(b) Section 24 of the New Act in essence deals with determination of compensation and
payment thereof in respect of acquired lands prior to the New Land Acquisition Act
came into force. The effect of Sub-Section 2 of the Section 24 would be that cases
where acquisition was initiated prior to the new Land Acquisition Act came into force
which had not been completed despite lapse of five years or more from the date of
passing of Award by paying compensation or by taking physical possession of the
land, the said proceedings cannot be continued under the Old Act would be
unrealistic, unfair and result in depriving the owners of their legitimate right for fair
compensation guaranteed under article 300A of the Constitution read with Article 14
of the Constitution. Therefore, if the Government intends to acquire such land, it has
to initiate fresh proceedings whereupon compensation shall be payable based on the
market value of the land as on the date of publication of preliminary notification.

(c) When it comes to payment of compensation, it includes determination of

compensation, the market value payable, the solatium, interest and other amounts as
provided under the New Act and also necessarily includes payment of the same
compensation to such of the old cases which fall under Section 24. No discrimination
can be made with reference to the purpose of acquisition or the provisions of law
under which the acquisition is made in the matter of extending the benefits regarding
payment of compensation as the same will tantamount to discriminatory treatment
violative of the rights of land owners under Article 14 of the Constitution. Therefore,
provisions of Section 24 have to be held to be applicable even in case where the land
is acquired under Karnataka Industrial Areas Development Act. – (1) RIGHT TO
 FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION,
REHABILITATION AND RESETTLEMENT ACT, 2013 – SECTION 24(2) – (2)
LAND ACQUISITION ACT, 1894 – SECTIONS 4(1), 6(1) AND 11A –
DISCUSSED.

B) CONSTITUTION OF INDIAN – Legislation by incorporation – Meaning of – HELD,

Legislation by incorporation amounts ‘to writing those sections into the New Act as if they
had been actually written in it with pen or printed in it’.
FURTHER HELD,
(a) The repeal of the provisions of the earlier Act or any amendment or alteration in it can
have no effect on the adopting Act because it had become part of the new statute and
remained untouched by what happened to the parent Act.

(b) If the amendment made to the Land Acquisition Act by enacting a new legislation is
not imported into the KIAD Act, it would render the KIAD Act wholly unworkable
offending Article 14 especially in the context of the provisions under Section 34(2) of
the Act. Therefore, the fact that the KIAD Act incorporates certain provisions of the
Land Acquisition Act regarding payment of compensation etc., and therefore, it is a
legislation by incorporation does not make any difference in protecting the interest of
the land loosers in getting fair compensation and other benefits as provided in Section
24(2) of the Act.
Writ Petitions are Allowed.
 ILR 2017 KAR 1533
B. VEERAPPA, J
Sri B.S. Mahesha vs. The Secretary, Karnataka Secondary Education Examination Board and
Others
CODE OF CIVIL PROCEDURE, 1908 – SECTION 96 – Regular First Appeal – Suit for
declaration and correction of date of birth – Suit filed after lapse of forty-seven years and
after completion of twenty-five years of service – Maintainability of suit – HELD, The suit is
not maintainable in view of the provisions of article 58 of the Indian Limitation Act, 1963.
Article 58 of the Limitation Act provides three years limitation to file a suit for any
declaration from the date when the right to sue first accrues.
FURTHER HELD,
Admittedly, the appellant-plaintiff filed the suit for declaration to change his date of birth,
after a lapse of forty-seven years and after completion of twenty-five years of service while
he was working as Deputy General Manager in Tata Consulting Engineers Limited, stating
that he came to know in the year 2008 in another suit filed for partition that his correct date of
birth is 29-09-1959 and the suit for declaration was filed on 31-01-2013 i.e., after the lapse of
more than four to five years. – the appellant/plaintiff has not adduced any oral evidence, nor
produced any documentary evidence to prove his date of birth as 29-09-1959 that too at the
fag end of his service as Deputy General Manager. – The Trial Court after considering the
entire materials on record, both oral and documentary evidence, has recorded a finding of fact
that the appellant/plaintiff failed to prove his date of birth as 29-09-1959 and his date of birth
is wrongly shown as 21-09-1956.
Regular first Appeal is Dismissed.

INDIAN LAW REPORTS MAR15

INDIAN LAW REPORTS

KARNATAKA SERIES
 Vol. No. 67, 15th March 2017, Part 6
REPORTS : 1361-1582
Citation : I.L.R. 2017 KAR
ILR 2017 KAR 1470
B.S PATIL, J
M. Somashekar and Others vs. State of Karnataka, Department of Industries and Commerce
and Others
A) KARNATAKA INDUSTRIAL AREAS DEVELOPMENT ACT, 1966 (for short “the
KIAD Act”) – SECTION 28(1) – Acquisition under – Applicability of the provisions of Right
to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (for short “the New Act”) – Effect of sub-Section (2) of Section 24 of
the New Act –
HELD,
(d) Karnataka Industrial Development Act is a complete code by itself and provisions of
Land acquisition Act namely Central Act 1 of 1894 have been made mutatis mutandis
applicable in respect of Enquiry and Award by the Deputy Commissioner, Reference
to the Civil Court, Apportionment of compensation and Payment of compensation in
respect of acquired land as is clear from Section 30 of the KIAD Act.

(e) The New Land Acquisition Act insofar as it provides for right to fair compensation
would be applicable even where the acquisition was under the State law namely
Karnataka Industrial Areas Development Act wherever the acquisition was
incomplete and Award was not passed or possession was not taken for five years or
more from the date of passing of award. By virtue of Section 24(2) cases where
acquisition had resulted in passing of the award five years or more prior to the
commencement of the New Act but physical possession of the same had not been
taken or compensation had not been paid the proceedings shall be deemed to have
lapsed.

(f) However, the State would be entitled to initiate fresh proceedings in accordance with
the provisions of the New Act. The scope, purpose and object of the provisions in the
New act including Section 24(2), if carefully considered, it cannot be equated to or
restricted for the scope and object of Section 11A introduced by the Amending Act,
Act 68/1984.

FURTHER HELD,
(d) The purpose and intent behind provision of Section 24(2) enacted by the parliament in
the New Act is to ensure that a person who has not been paid compensation for
several years cannot be forced to part with his land for payment of compensation
under the provisions of the Old land Acquisition Act which provisions were regarded
 as insufficient and inadequate for ensuring payment of comprehensive fair
compensation package for the land owners by adopting a scientific method for
calculation of market value coupled with a comprehensive rehabilitation and
resettlement package for land owners including subsistence allowance, jobs, houses,
transportation allowance and resettlement allowance etc. This is evident from the
many laudable objects contained in the statement of objects and reasons to the New
Land Acquisition Act.

(e) Section 24 of the New Act in essence deals with determination of compensation and
payment thereof in respect of acquired lands prior to the New Land Acquisition Act
came into force. The effect of Sub-Section 2 of the Section 24 would be that cases
where acquisition was initiated prior to the new Land Acquisition Act came into force
which had not been completed despite lapse of five years or more from the date of
passing of Award by paying compensation or by taking physical possession of the
land, the said proceedings cannot be continued under the Old Act would be
unrealistic, unfair and result in depriving the owners of their legitimate right for fair
compensation guaranteed under article 300A of the Constitution read with Article 14
of the Constitution. Therefore, if the Government intends to acquire such land, it has
to initiate fresh proceedings whereupon compensation shall be payable based on the
market value of the land as on the date of publication of preliminary notification.

(f) When it comes to payment of compensation, it includes determination of

compensation, the market value payable, the solatium, interest and other amounts as
provided under the New Act and also necessarily includes payment of the same
compensation to such of the old cases which fall under Section 24. No discrimination
can be made with reference to the purpose of acquisition or the provisions of law
under which the acquisition is made in the matter of extending the benefits regarding
payment of compensation as the same will tantamount to discriminatory treatment
violative of the rights of land owners under Article 14 of the Constitution. Therefore,
provisions of Section 24 have to be held to be applicable even in case where the land
is acquired under Karnataka Industrial Areas Development Act. – (1) RIGHT TO
FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION,
REHABILITATION AND RESETTLEMENT ACT, 2013 – SECTION 24(2) – (2)
LAND ACQUISITION ACT, 1894 – SECTIONS 4(1), 6(1) AND 11A –
DISCUSSED.

B) CONSTITUTION OF INDIAN – Legislation by incorporation – Meaning of – HELD,

Legislation by incorporation amounts ‘to writing those sections into the New Act as if they
had been actually written in it with pen or printed in it’.
FURTHER HELD,
(c) The repeal of the provisions of the earlier Act or any amendment or alteration in it can
have no effect on the adopting Act because it had become part of the new statute and
remained untouched by what happened to the parent Act.
 (d) If the amendment made to the Land Acquisition Act by enacting a new legislation is
not imported into the KIAD Act, it would render the KIAD Act wholly unworkable
offending Article 14 especially in the context of the provisions under Section 34(2) of
the Act. Therefore, the fact that the KIAD Act incorporates certain provisions of the
Land Acquisition Act regarding payment of compensation etc., and therefore, it is a
legislation by incorporation does not make any difference in protecting the interest of
the land loosers in getting fair compensation and other benefits as provided in Section
24(2) of the Act.
Writ Petitions are Allowed.

ILR 2017 KAR 1533

B. VEERAPPA, J
Sri B.S. Mahesha vs. The Secretary, Karnataka Secondary Education Examination Board and
Others
CODE OF CIVIL PROCEDURE, 1908 – SECTION 96 – Regular First Appeal – Suit for
declaration and correction of date of birth – Suit filed after lapse of forty-seven years and
after completion of twenty-five years of service – Maintainability of suit – HELD, The suit is
not maintainable in view of the provisions of article 58 of the Indian Limitation Act, 1963.
Article 58 of the Limitation Act provides three years limitation to file a suit for any
declaration from the date when the right to sue first accrues.
FURTHER HELD,
Admittedly, the appellant-plaintiff filed the suit for declaration to change his date of birth,
after a lapse of forty-seven years and after completion of twenty-five years of service while
he was working as Deputy General Manager in Tata Consulting Engineers Limited, stating
that he came to know in the year 2008 in another suit filed for partition that his correct date of
birth is 29-09-1959 and the suit for declaration was filed on 31-01-2013 i.e., after the lapse of
more than four to five years. – the appellant/plaintiff has not adduced any oral evidence, nor
produced any documentary evidence to prove his date of birth as 29-09-1959 that too at the
fag end of his service as Deputy General Manager. – The Trial Court after considering the
entire materials on record, both oral and documentary evidence, has recorded a finding of fact
that the appellant/plaintiff failed to prove his date of birth as 29-09-1959 and his date of birth
is wrongly shown as 21-09-1956.
Regular first Appeal is Dismissed.
INDIAN LAW REPORTS MAY1

INDIAN LAW REPORTS

KARNATAKA SERIES
Vol. No. 67, 1st MAY 2017, Part 9
REPORTS : 2063-2296
Citation : I.L.R. 2017 KAR
ILR 2017 KAR 2094
H.G RAMESH, J
Vinod Sequeira vs. Mrs. Rita F. Monteiro and Another
A) KARNATAKA STAMP ACT, 1957 – ARTICLE 5(e)(i) – Determination of the
correct stamp duty – Order passed by the Trial Court impounding an agreement of
sale and directing the plaintiff/petitioner to pay the deficit stamp duty and penalty –
Challenge to – Document to fall within the ambit of Article 5(e)(i) – Requirements –
HELD,
 An agreement for sale of immovable property, to fall within the ambit of Article 5(e)(i),
either possession of the property was stated to have been delivered under the agreement
or was agreed to be delivered without executing the conveyance, in part performance of
the contract.
FURTHER HELD,
The stamp duty chargeable on a document has to be determined only on the basis of the
recitals made in the document and by referring to the provision of law under which the
document was chargeable to duty as on the date of its execution and not by referring to
the pleadings of the parties or the prayer made in the plaint. The document has to be
constructed as it stands for determining the proper stamp duty, although the name given
to the document may not be decisive of its character. It is not permissible to go behind the
document and to hold enquiry as to the true nature of the transaction to determine the duty
payable on the document. – The reasoning of the Trial Court in the impugned order is
wholly erroneous as it has taken into consideration the averments and the prayaer made in
the plaint to determine the stamp duty chargeable on the document.
B) KARNATAKA STAMP ACT, 1957 – EXPLANATION-I TO ARTICLE 5(e) –
Agreement of sale dated 25.11.2003 – Applicability of Explanation-I to article 5(e) –
HELD,
It is relevant to state that Explanation-I to Article 5(e) of the Schedule to the Act has no
bearing on the agreement of sale dated 25.11.2003. Explanation-I was inserted subsequent
to the agreement. It is only prospective and not retrospective as it is really explanatory in
nature but is substantive.
FURTHER HELD,
Explanation-I will apply to an agreement, if it refers to a power of attorney already
granted separately by the seller to the purchaser in respect of the property which is the
subject matter of the agreement. Explanation-I will not apply to the agreement in question
as the Explanation is prospective. However, the agreement in question does not refer to
any power of attorney already granted to the purchaser. – The impugned order is liable to
be set-aside. – If the petitioner/plaintiff has paid the duty and penalty as per the impugned
order, he is entitled for refund of the same.
Writ Petition is Disposed of.
 ILR 2017 KAR 2118
(KALABURAGI BENCH)
A.N. VENUGOPALA GOWDA, J
Annapurna vs. The Deputy Commissioner, Raichur and Others
KARNATAKA LAND REVENUE ACT, 1964 – SECTION 25 – Power of review by the
Revenue Courts – Limitations – re-appreciation of the record of the case is impermissible in
review jurisdiction, as the same is within the domain of the original or Appellate Authority –
HELD,
The review power cannot be exercised on the ground that the decision was erroneous on
merits. – Power of review may be exercised on the discovery of new and important matter or
evidence which, after exercise of due diligence was not within the knowledge of the person
seeking review or could not be produced by him at the time when the order was made; it may
be exercised where some mistake or error apparent on the face of the record is found; it may
also be exercised on any analogous ground.
FURTHER HELD,
A review cannot be equated with the original hearing of the case and is by no means an
appeal in disguise, whereby, an erroneous decision is re-heard and corrected and lies only
when there is a material error manifest on the face of the order, undermining its soundness or
resulting in miscarriage of justice. Re-appreciation of the record of the case is impermissible
in review jurisdiction, as the same is within the domain of the original or Appellate Authority
and cannot be undertaken in exercise of review power as mere possibility of two views on the
subject cannot be a ground for review. Reiteration of an argument which was not accepted in
the first instance is not enough to re-open a concluded case as review jurisdiction cannot be
equated with the original or appellate jurisdiction of the forum concerned. – The order passed
by the second respondent ignoring the limits of the review power cannot stand judicial
scrutiny as it has been passed in ignorance of the ratio of law laid down by the Full Bench in
C.N Nagendra Singh vs. Special Deputy Commissioner, Bangalore District – (2000) Kar. L.J
391.
Writ Petition is Rejected.

ILR 2017 KAR 2164

K.N PHANEENDRA, J
Sri L. Nanjunda Murthy and Another vs. Sri S. Suresh Reddy and Others
A) CODE OF CIVIL PROCEDURE, 1908 – ORDER 21 RULE 90 – Application to set-
aside sale on the ground of irregularity or fraud – Rejection of – Appealed against –
sale shall not be set-aside merely on the ground of irregularity or fraud, Court has to
satisfy itself whether any substantial injury has been occurred to the applicant –
Fraud, pleading and proof – Requirement of –
HELD,
Sub-Clause (2) of Order 21 Rule 90 of CPC clarifies that, the sale shall not be set-aside
merely on the ground of irregularity or fraud in putting or conducting it, unless upon the facts
it is proved to the satisfaction of the Court that, the applicant has sustained injury by the
reason of such irregularity or fraud. Under Sub-Clause (3) of the provision says that the sale
shall not be set-aside under this rule, on any ground which the applicant could have taken on
or before that date on which the proclamation of sale was drawn. The explanation to the
provision further clarifies that mere absence or defect in attachment of the property sold shall
not by itself a ground for setting aside the sale under this Rule.
FURTHER HELD,
(a) On meaningful reading of the provision, it is clear that though there is a fraud or a
material irregularity or defect, if the said irregularity or fraud alleged, are not proved,
the sale cannot be set-aside. Even if it is proved, the Court has to look into whether
any substantial injury has been occurred to the applicant and he had absolutely no
opportunity to question the defects in the sale proclamation before the date on which
proclamation was drawn. In this background, the Court has to examine first as to
whether there is any material irregularity or fraud has been alleged and proved to the
satisfaction of the Court and thereafter, test the said two aspects with reference to sub-
Rule (2) and (3) of Order 21 Rule 90.

(b) In order to establish fraud, the party must be distinctly raise the same in the pleadings
with sufficient pleadings and it has to be proved to the satisfaction of the Court with
cogent and convincing evidence. Mere pleading in the affidavit which is specifically
and categorically denied by the other side does not amount to proof of the alleged
fraud. Fraud is both a civil wrong and a criminal act which leads to severe
consequences. The word fraud cannot be equated to material irregularity, but it stands
on the higher footing than the material irregularity. Therefore, it should be established
beyond doubt to show that the fraud has been played and resulted in substantial injury
to the judgement debtor.

(c) In this background, if the records are seen, except stating in the affidavit nothing has
been elucidated by way of evidence or examining the person who was the highest
bidder in the spot was prevented from appearing and participating in the Court Sale
before the Court. He is the proper person to say that in any manner he was prevented
from appearing before the Court to participate in the Court Sale. In the absence of
such materials, mere pleading is not sufficient to prove fraud. The fraud alleged in this
particular case cannot said to have been proved by the judgement debtor.

(d) There must be an express plea as to substantial injury suffered by the judgement
debtor, however, it can also be ascertained if it is implicit in the allegations made in
the application. It is the bounden duty of the Court to ascertain even otherwise on the
basis of the overall facts and materials on record whether any substantial injury has
been occurred due to the material irregularity or any fraud played in conducting the
sale. If the court is of the opinion that there is no substantial injury, even if it is
established the existence of material irregularity or fraud, the Court cannot interfere
with the sale proceeding.

B) CODE OF CIVIL PROCEDURE, 1908 – ORDER 21 RULE 66 – Proclamation of

sale by public auction – Insertion of sub-Clause € to Order 21 Rule 66(2) of CPC –
Karnataka High Court Amendment –
HELD,
The Karnataka High Court has inserted sub-Clause (e) to Order 21 Rule 66(2) of CPC by way
of amendment in the year 1977. It is stated that the value of the property as stated by the
decree holder and the value of property as stated by the judgement debtor by virtue of the
insertion of the above said sub-Clause (e), the Court has to mention the value of the property
as stated by the judgement debtor in the proclamation of sale. Earlier to this amendment,
Form No.29 did not contain these two columns. Therefore, it is the duty of the Court to make
it known to the parties their obligation to furnish the value of the property and therefore to fill
up the relevant columns. Otherwise, it amounts to a material irregularity.
FURTHER HELD,
From the factual aspects as noted in the order sheet, from 3.08.2015 upto 11.09.2015, the
judgement debtor had sufficient opportunity to submit before the Court the exact value of the
property, or bring it to the notice of the Court about the alleged material defect in the sale
proclamation. Both decree holder and judgement debtor had opportunity to furnish the
estimated value of the property so as to mention the same in the sale proclamation in the
schedule. Therefore, Order 21 Rule 90 CPC cannot be invoked to set-aside the sale, as the
judgement debtor had sufficient opportunity to take up such contention before the Court at
the earliest point of time, if he does not take, then he is precluded from taking such objections
later.
Miscellaneous First Appeal is Dismissed.

INDIAN LAW REPORTS MAY15

INDIAN LAW REPORTS

KARNATAKA SERIES
Vol. No. 67, 15st MAY 2017, Part 10
REPORTS : 2297 - 2522
Citation : I.L.R. 2017 KAR
ILR 2017 KAR 2393
SUBHRO KAMAL MUKHERJEE, CJ AND BUDIHAL R.B., J
Emerald Haven Estates Ltd. vs. State of Karnataka, Forest, Ecology and Environment
Department and Others
KARNATAKA FOREST ACT, 1963 (for short ‘the Act’) – SECTION 99 READ WITH
KARNATAKA FOREST RULES, 1969 – Notice issued by Respondent No.2, a Forest
officer within the meaning of sub-Section (6) of Section 2 of the Act, proposing an inquiry,
claiming that the estate fell within the reserved forest area – Direction to produce the original
records of the estate property – Competency of Respondent No.2 to initiate proceedings –
HELD,
(a) Respondent No.2 is a Forest officer within the meaning of sub-Section (6) of Section
2 of the Act and, therefore, is not competent to inquire into and determine the
existence, nature and extent of the right, title and interest claimed by the writ
petitioner, inasmuch as it may be determined by a Forest Settlement Officer appointed
under Clause (c) of sub-Section (1) of Section 4 of the Act.

(b) The Clause (c) of sub-Section (1) of Section 4 of the Act provides for appointment of
Forest Settlement Officer to inquire into and determine the existence, nature and
extent of any rights claimed by or alleged to exist in favour of any person in or over
any land comprised within such limits or in or over any forest produce, and to deal
with the same as provided in the Chapter II of the Act.
FURTHER HELD,
(a) Forest Settlement Officer is a different person from a Forest Officer. It was expressly
provided under sub-Section (20 of Section 4 of the Act that an officer appointed as
Forest Settlement Officer shall be a person not holding any forest office except that of
a Forest Settlement Officer. However, the State Government may appoint a Forest
Officer to represent it in the inquiry under Chapter II by the Forest Settlement Officer.
(b) The proceeding was initiated for the purpose of ascertaining the rights of the writ
petitioner, proceeding on the assumption that the property has been a reserved forest.
The initiation of the proceeding and the inquiry by the respondent No.2, who has been
a Forest Officer, is without jurisdiction. Thus, the entire initiative by the respondent
No.2 is void ab initio.
KARNATAKA FOREST ACT, 1963 – (1) SUB-SECTION (6) OF SECTION 2 – ‘FOREST
OFFICER’ – (2) CLAUSE (c) OF SUB-SECTION (1) OF SECTION 4 – ‘APPOINTMENT
OF FOREST SETTLEMENT OFFICER’ – (3) SUB-SECTION (14) OF SECTION 2 –
“RESERVED FOREST” – DISCUSSED.
Writ Petition is Disposed of.
 ILR 2017 KAR 2407
H.G. RAMESH, J
Madireddy vs. Chowdareddy and Others
KARNATAKA STAMP ACT,1957 (‘the Act” for short) – SECTION 34 – Payment of deficit
stamp duty and penalty – Order passed by the Trial Court directing defendants Nos.1 and 3 to
pay the deficit stamp duty and penalty on the agreement of sale – Who could be directed to
pay the stamp and penalty under Section 34 of the Karnataka Stamp Act, 1957? –
HELD,
Direction to pay the stamp duty and penalty as contemplated under Section 34 of the Act
could be given only to the person who wants to tender an insufficiently stamped document to
be admitted in evidence and if he is entitled to recover the duty and penalty so paid by him
from any other person as per Section 43 of the Act, he may recover the same from the other
person as provided in the said Section.
FURTHER HELD,
In the present case, as Defendant Nos.1 and 3 did not tender the agreement of sale dated
10.04.2006 to be admitted in evidence, the Trial Court’s direction to them to pay the duty and
penalty on the said document is unsustainable in law.
Writ Petition is Disposed of.
 ILR 2017 KAR 2410
(DHARWAD BENCH)
B.S. PATIL, J
Hemanagouda vs. The Land Acquisition Officer & Assistant Commissioner, Koppal and
Another
CODE OF CIVIL PROCEDURE, 1908 – SECTION 115 – Dismissal of revision as barred by
time – Maintainability of revision under Section 115 of CPC or maintainability of appeal
under Section 54 of the Land Acquisition Act as amended by Karnataka amendment –
HELD,
Dismissal of reference as barred by time cannot be regarded as an award passed by the
Reference Court inasmuch as no amount is awarded as provided under Section 26 of the L.A.
Act let alone under various clauses of Section 23(1) of the L.A. Act. Therefore, there is no
deemed decree as provided under sub-Clause (2) of Section 26 and hence, appeal against
such order dismissing the reference as barred by time does not lie under Section 54(1) of the
L.A. Act, an appeal shall lie from an award or from any part of the award, of the Court in any
proceedings under the Act. Since, there is no award in the instant case an appeal does not lie
against the order under challenge. Therefore, the remedy for petitioners is to file a writ
petition challenging the order passed.
FURTHER HELD,
In the instant case, reference made to the Civil Court has been dismissed as barred by time. If
the order of the Reference Court had gone in favour of the claimants then the Court below
would have held that reference was within time. In that event the proceedings before the
Court below would not get disposed of finally, but would be pending for adjudication on
merits. Therefore, as per proviso to Section 115(1) revision petition cannot be entertained to
vary or reverse or set-aside the order passed by the reference Court.
Civil Revision Petitions are Disposed of.

ILR 2017 KAR 2466

(DHARWAD BENCH)
A.N. VENUGOPAL GOWDA, J
Basappa gachchi, since dead by LRs and Others vs Rabkavi Banahatti city Municipal
Council, rep. by its Commissioner, Bagalkot
TRANSFER OF PROPERTY ACT, 1882 – SECTION 53A – Claim for benefit under –
Conditions to be fulfilled by a party –
HELD,
To claim the benefit under the provision of Section 53A, the condition to be fulfilled are (i)
the contract should have been in writing signed by or on behalf of the transferor, (ii) the
transferee should have got possession of the immovable property covered by the contract, (iii)
the transferee should have done some act in furtherance of the contract and (iv) the transferee
has either performed his part of the contract or is willing to perform his part of the contract. –
a party can take advantage of the provision only when he satisfies all the conditions,
aforesaid. All the postulates are sine qua non and a party cannot drive benefit by fulfilling
one or more conditions.
FURTHER HELD,
 (a) Lower Appellate Court has failed to examine the factual aspects as to whether the
respondent has done some act in furtherance of the contract and has either performed
its part of the contract or is willing to perform his part of the contract to take
advantage of Section 53A of the Act. It has not examined whether the respondent has
satisfies all the conditions contemplated under Section 53A of the Act for taking the
shelter behind the provision, despite the abatement of suit filed for passing decree of
specific performance.

(b) As the Court below has not bestowed its attention to the relevant aspects and failed to
record findings on material aspects, there is abdication of duty cast on it. Plea under
Section 53A of the Act rises a mixed question of law and fact. The performance or
willingness to perform the contract is one of the essential ingredients of the plea of
part performance. Being a final Court on facts, First Appellate Court is required to
record findings on all the issues. That is not forthcoming in the impugned Judgement,
which is unsound. – CODE OF CIVIL PROCEDURE, 1908 – SECTION 100 –
REGULAR SECOND APPEAL – DISCUSSED.

Regular Second Appeal is Allowed / Remanded for fresh consideration.

ILR 2017 KAR 2496

(DHARWAD BENCH)
S. SUJATHA, J
Sri Madeppa @ Sivalingappa @ Madiwalappa and Others vs. Sri Madiwalappa and Others
CODE OF CIVIL PROCEDURE, 1908 – ORDER 7 RULE 11 (a) AND (d) – Rejection of
plaint – Dismissal of application – Revision against – Rejection of plaint only on the basis of
plaint averments, not on the basis of defence set up in the written statement –
HELD,
Plaint can be rejected on any one of the grounds enumerated in clauses (a) to (e) of Order 7
Rule 11 of CPC, but no plaint can be rejected on the basis of the defence taken by the
defendant in the written statement. That should be established only on the pleadings of the
plaint. Mere fact that the plaintiffs may not succeed will not be a ground for rejecting the
plaint. The only averments to be looked into is plaint averments and nothing else.
FURTHER HELD,
A perusal of the plaint averments in its entirety discloses that there is cause of action for the
plaintiffs to institute the suit. – It is well established principle that a triable issue need not be
rejected at the threshold.
Civil Revision Petition is Dismissed.

LEASE DEED

This Lease Deed, herein referred as ‘Deed’ is executed at Bangalore, on this day of Month, 2017
by

1. Mr. S/o. Mr. , aged about years, Occupation: , resident of :

2. Mr. S/o. Mr. , aged about years, Occupation: , resident of :
3. Mr. S/o. Mr. , aged about years, Occupation: , resident of :
4. Mr. S/o. Mr. , aged about years, Occupation: , resident of :

Hereinafter referred as ‘Lessors’ which term or expression shall, unless it be contrary to or

repugnant to the context or meaning thereof, be deemed to mean and include his/her legal heirs,
executors, administrators, of ONE PART;

AND BETWEEN

SAI SILKS (KALAMANDIR) LIMITED, a company incorporated and registered under the Companies
Act, 1956, TIN: U52190TG2008PLC059968, having its Registered Office at # 6 – 3 – 790 / 8, Flat No.1,
Bathina Apartments, Ameerpet, Hyderabad – 500 016, being represented by its Director, , s/o.
, aged years, Hyderabad, herein referred as ‘Lessee’ which term or expression unless it be
contrary or repugnant to the context or meaning thereof, be deemed to mean and include its
successors – in – interest, permitted assigns of SECOND PART.

WHEREAS:

I. Whereas Lessors herein Joint absolute owners and possessors of the Schedule Property an
extent of Square Feet, having Sub – Cellar, Cellar, Ground, First, Second, Third and Fourth
Floors in the Premises bearing No. , purchased under the registered sale deeds,

II. The lessors as part of their business expansion are constructed a commercial building on the
schedule property of all lessors with Sub – Cellar, Cellar, Ground, First, Second, Third and
Fourth Floors and are willing to let the premises for lease. The Lessee herein above named is
desirous of taking on lease basis have approached the Lessors and the Lessors have agreed
to give the said entire Schedule property on lease basis to the Lessee herein, for the tenure,
terms and conditions as mutually agreed as enunciate hereunder;

III. The parties to this Deed unequivocally are desirous of execution of this Deed with an
intention to allow the Lessee to conduct its business operations and run the Showroom to
sell the Silk sarees, garments, apparels, dress materials, gold, silver jewellery including
precious and semi precious stones and such other goods to compliment its business needs;

In order to avoid future litigation against each other, both the parties herein have come to an
understanding and decided to reduce their understating into writing by executing this Lease Deed
with the terms and conditions as under:-
NOW THIS LEASE DEED WITNESSETH AS FOLLOWS:

1. In consideration of the lease amount herein reserved and the terms, conditions and
covenants to be observed by the parties hereto, the Lessors do hereby grant permission to
the Lessee for use and occupation of the entire with Sub – Cellar, Cellar, Ground, First,
Second, Third and Fourth Floors of the Schedule property for a total period of ( ) years
commencing from and ending on with an initial lock-in period of ( ) years during
which period either party shall not issue a notice to quit/ vacate on the opposite party. The
lease rent per month is Rs. /- (Rupees Only) and shall be subject to an progression of
by % on expiry of every ( ) years on last paid rent during lease. The lease period may
be extended after completion of ( ) years for such further period subject to the mutual
terms and conditions as may be agreed by the parties at that time in writing with an
execution of fresh lease deed;

2. The Lessee shall pay the rent to the Lessors by separate crossed bank cheques drawn in
favour of the Four Lessors respectively with equal rent sharing percentage on or before 10 th
day of every succeeding tenancy month for every completed calendar month of tenancy
during the lease period. The Lessee shall deduct the applicable Income Tax from time to time
and issue the IT-TDS certificates in favour of the Lessors within two months on completion of
every financial year;

3. The Lessors handed over the possession of the Schedule property to the Lessee on this day
for lease along with initial fitment purposes with a rent-free period of till . In the
event the lessee starts the business before the fitment period ends, rent will be paid from
that day onwards;

4. The Lessors and Lessee hereby agreed that, the Lessee have to pay an amount of Rs. /-
(Rupees Only) as refundable deposit and the deposit will not carry any interest.

5. The Lessors hereby confirm the receipt of a sum of Rs. /- (Rupees Only) towards the
Interest Fee Refundable Security Deposit issued by separate crossed bank cheques
drawn in favour of the four lessors respectively with equal sharing of the refundable deposit.

6. The Lessee hereby paid afore said amount of Rs. /- (Rupees Only) to the Lessors, in
manner of Rs. /- (Rupees only) to each lessor, detailed below;

A.
B.
C. , all the Cheques are drawn on , which shall be returned by the Lessors to the Lessee
herein, subject to deduction of such arrears, if any, at the time of vacating the Schedule
property; The balance amount of Rs. /- (Rupees Only) shall be given by the Lessee
on or before . The Lessors also agreed for the same.

7. The Lessors hereby allow Lessee to use and occupy the Schedule property on lease for the
sole purpose to carry the business operations and to run the businesses in such brands as
would suit its business needs from time to time;
8. During the subsistence of this Deed, the electricity consumption charges are to be borne by
the Lessee without reference to the Lessors. However, the Lessors will arrange to get 250
KVA connection from the electricity department by depositing the required amount as
applicable for the same. Any additional electricity consumption apart from the 250 KVA
provided by the Lessors, lessee will arrange the same by consulting the electricity
department and the additional / deposit charges will be borne by the lessee;

9. On the expiry of this lease, the Lessors shall not object the Lessee without any demur, to
remove all their belongings, articles and things from the Schedule property and handover
vacant and peaceful possession of the Schedule property to the Lessors without any damage
of the building.

10. Nothing contained herein shall be construed as creating any right, interest, easement,
tenancy or sub-tenancy or statutory tenancy of the schedule property in favour of the
Lessee, other than the leaseholder rights for use and occupation to enjoy the schedule
property hereby granted;

11. The Lessors hereby allow Lessee and their shop-in-shop business franchisees, business
associates to put the name board, visual merchandising in the schedule property as
earmarked by the Lessor without causing any inconvenience to other tenants of the complex
and the applicable taxes shall be paid by the Lessee;

12. The Lessor shall pay the property tax, and Lessee shall pay the water and drainage charges,
from time to time pertaining to the Schedule property during the tenancy period to the
competent authorities;

13. The Lessee herein agreed to do all the required civil works in the said premises as required
by the Lessee, with the expenses of Lessor.

14. The Lessee shall use the schedule property for the commercial / business purpose and for no
other purpose whatsoever, by fixing up the necessary equipment like air-conditioners,
furniture, lighting equipment, name boards as would suits business needs.

15. The Lessee shall obtain and keep in force adequate insurance cover of all their stocks,
inventories, equipment, furniture and fittings to protect against any loss and damage due to
natural disasters, fire accident, civil commotion, riot, storm, tempest, flood or any inevitable
accident or electrical break down or any other irresistible force or an act of God causing
damage to the Lessee’s goods kept in the Schedule property, and the Lessors shall not claim
any right or interest over any of the insurance claims that may arise and adjudicated in
favour of Lessee with respect to the insurance policy taken by the lessee, on account of
happening of any risk;

16. The Lessors shall not hold the lessee responsible or liable for any damage to the Schedule
property resulting from outbreak of riot, political disturbance or earthquake, storm, war,
civil disturbances, lightning and or any acts of God or other conditions over which the lessee
and or Lessors have no control. In case the schedule property at any time during subsistence
of this lease is destroyed and damaged by fire, act of god, riot, war, etc., and such like
 clauses not within the control of the Lessors and Lessee, the continuance of the
performance of this Lease Deed shall be mutually decided by both parties;

17. LESSEE ALTERNATIONS:

1. The Lessee can do any additions / modifications or alternations to the schedule property
in the form of changing and developing front elevation / internal steps etc., as to the
store look and to suit the business needs without altering the basic structural design of
the schedule property after consultation and confirmation by the Lessors.

18. No amendments / corrections / changes / or additions shall be effective or binding upon the
parties hereto unless reduced in writing and signed by the parties hereto;

19. The Lessee shall be entitled to use the entire cellar for the parking of their customers, staff
and their personal vehicles and lessors have no objection in this regard;

20. Any notice to be given shall be by registered post acknowledgement due at the address
mentioned above or such other address as may be intimated by the parties from time to
time;

21. The parties agree to submit themselves to the exclusive jurisdiction of Courts at Hyderabad;

22. Any dispute or difference which may arise between the Parties, with regard to construction,
meaning and effect of this Lease Deed and or use and occupation of the Schedule property
or part thereto shall be resolved by mutual discussions and in case of non-attainment of
consensus, the parties shall have the resources available under the Law;

23. This Lease Deed may be terminated, subject to the aforesaid initial Lack-in period, in any of
the following manner;

a. By the Lessee upon giving 180 (one hundred eighty) days advance notice in writing
to the lessor without assigning any reasons.

b. By the Lessor upon giving 180 (one hundred eighty) days advance notice in writing to
the lessee in the event of breach of terms and conditions of this Lease Deed by the
Lessee and non-payment of lease amount for a consecutive period of three months
by the Lessee OR any damage to the structural stability by the acts of Lessee and not
on account of Act of God, as certified by a Chartered Engineer chosen by both
parties of demised premises by the Lessee and which has not been rectified by the
Lessee despite the Lessor having given in writing to the Lessee.
c. By efflux of time stipulated in this Lease Deed;

24. The Lessor agreed to remove the existing old hoardings of the building or schedule property
further, the Lessee may be allowed to utilize the existing additional plinth area about for
the Lunch room and the Toilets.

25. The Lessor agreed to do all the Vassthu correction in the Schedule Property as per
requirement of Lessee.
26. The service tax on the renal amount shall be paid by the Lessors herein, and the Lessors
agreed for the same.

SCHEDULE PROPERTY
All that premises of Square Feet, having , Karnataka State, with all easement rights
including the rights to use and enjoy the present and future water, drainage and electricity
service connections, bounded by:

North :
South:
East:
West:

In witness whereof, the parties hereto have hereunto set their respective hands, out of their
free will and consent, on the day, month and year herein above first mentioned.

Mr. For Sai Silks (Kalamandir) Limited

(Lessor 1)

Mr. Mr. – Director

(Lessor 2) (Lessee)

Mr.
(Lessor 3)

Mr.
(Lessor 4)

WITNESSES:
1.
2.
REDEMPTION OF MORTGAGE
What is the impact of not discharging mortgage by the borrower?
If the borrower does not discharge the mortgage, the mortgagee may either enforce the
security in the property as under Section 67 or proceed against the mortgagor against his
personal liability as under Section 68 of The Transfer of Property Act, 1882.
Section 67 – Right to foreclosure or sale ie, the mortgagee can debar a mortgagor from his
right to redeem the mortgage or even sell it at any time after the mortgage-money has become
due to him, before a decree has been made for redemption, or the mortgage-money is paid or
deposited.
Section 68 – Right to sue for Mortgage-money ie, the creditor is entitled to sue the debtor on
the debt amount and to obtain a simple money decree against him or claim compensation
when the mortgagee is deprived of his security.
Further, if the borrower approached the lender and requests for extension of time for
payment, the lender may extend the time along with an increase in the interest rate.

What is the period of redemption?

When a mortgage takes place, there exists a right of the mortgagee to buy back the property
without any encumbrances by paying the loan. This right arises out of equity, and is
commonly known as the right to redemption. It is codified under Section 60 of the Transfer of
Property Act, 1882. Any obstruction to this right is void as it constitutes a clog on the equity
of redemption.

Section 60 of Transfer of Property Act, 1882, provides for the right of the mortgagor to
redeem the mortgage. As under it, the mortgagor has a right, on payment or tender, at a
proper time and place, of the mortgage - money, to recover the mortgage property from the
mortgagee, all the documents relating to it, deliver the possession thereof, at any time after
the principle amount has become due. This right is a statutory and a legal right, therefore any
provision incorporated in the mortgage deed to prevent or hamper this right, is void. This
called as clog on redemption.

There is no fixed period of redemption of the mortgage. The period of redemption will be
prescribed in the mortgage deed with consent of both the parties.

Time period was not the essence in case of right of redemption in few cases. In Achaldas
Durgaji Oswal v Gangabisan Heda (2003) 3 SCC 614, a suit was filed by the mortgagee for
the foreclosure of the property, and another suit was filed by the mortgagor. Lower court
asked mortgagor to pay off the amount within 3 months, but he was not able to do so. Instead,
he paid off the amount after a period of 3 years and at that point of time his suit was rejected
by the lower court on ground of exceeding the limitation period as decided by the court.
Lower court’s decree was reversed by the High Court, which was upheld by the Supreme
Court. It was held by the Supreme Court that “the right of redemption of mortgagor being a
statutory right, the same can be taken away only in terms of the proviso appended to Section
60 of the Act which is extinguished either by a decree or by act of parties. Admittedly, in the
instant case, no decree has been passed extinguishing the right of the mortgagor nor such
right has come to an end by act of the parties.”

In K.Vilasini and Ors v Edwin Periera CIVIL APPEAL NO. 5476 OF 2008, a suit was filed
by the mortgagor for the foreclosure but it was prayed by the mortgagor that he would pay
the amount and required some time. The time was granted by the court with the consent of
the mortgagee, but mortgagor was not able to pay the amount in the stipulated time. He later
deposited the amount claimed to redeem his property. The same was decreed by the court and
confirmed by the High Court. Supreme Court also decreed in favour of the mortgagor stating
that mortgagee had himself allowed mortgagor to pay off the amount and also took part in the
proceedings therein.

Further, Section 62 of the Transfer of Property Act, specifically talks about the right of
usufructuary mortgagor to recover possession of the mortgaged property. Section 62 says
that,

In case of usufructuary mortgage, the mortgagor has a right to recover possession of the
property together with the mortgage-deed and all documents relating to the mortgaged
property which are in the possession or power of the mortgagee,-

(a) where the mortgagee is authorized to pay himself the mortgage-money from the rents
and profits of the property,-when such money is paid;

(b) where the mortgagee is authorized to pay himself from such rents and profits or any
part thereof a part only of the mortgage-money, when the term (if any) prescribed for the
payment of the mortgage-money has expired and the mortgagor pays or tenders to the
mortgagee the mortgage money or the balance thereof or deposits it in court hereinafter
provided.

In Ram Kishan And Ors. vs Sheo Ram And Ors. AIR 2008 P H 77, (2008) 149 PLR 1, it
was held that, in case of unsufructuary mortgage, when there is no time period fixed for
redemption, the right to seek redemption would not arise on the date of mortgage but will
arise on the date when the mortgagor pays or tenders to the mortgagee or deposits in Court,
the mortgage money or the balance thereof. Thus, it was held that once a mortgage always a
mortgage and is always redeemable.

If the mortgagor doesn’t redeem the mortgage, does he lose title by the
lapse of time?
Yes, the mortgagor loses his title over the mortgaged property if he does not redeem it over
the lapse of the redemption period as prescribed under the mortgage deed. The title over the
mortgaged property gets transferred to the lender and he becomes the absolute owner of the
property. He then has the right to lease it or sell it as well.

For redemption, what is the period under Limitation Act, 1963?

Article 61(a) of the Limitation Act, 1963 provides for the time limit during which a suit for
redemption of a mortgaged property can be filed. It prescribes a period of 30 years to redeem
or recover possession of immovable property mortgaged and the time begins from when the
right to redeem or recover possession accrues. This was laid down in Govindan Nair vs
Abraham on 27 September, 2002

In Sangar Gagu Dhula vs Shah Laxmiben Tejshi And Ors. AIR 2001 Guj 329, (2001) 1
GLR 697, a question was raised as to the period of limitation to file a suit. The court held
that, the period of limitation to file a suit will be the period of redemption as under the
mortgage deed plus the period of limitation ie, 30 years as given under Section 61(a) of the
Limitation Act, 1963.
Section 30(a) of the Limitation Act, 1963 provides that any suit for which the period of
limitation is shorter than the period of limitation prescribed by the Limitation Act, 1908, may
be instituted within a period of 7 years next after the commencement of this act, or within the
period prescribed for such suit by the Limitation Act of 1908. 1908 Act prescribed 60 years
and the 1963 Act prescribes for 30 years as under Section 61(a) as the limitation for a suit for
redemption of mortgage. Therefore, with effect of Section 30(a), the suit for redemption of
mortgage can be filed within 37 years, ie, 30 years prescribed as under Section 61(a) and 7
years as under Section 30(a). This was laid down in Santa Singh v Prakash Singh, AIR
2004 P&H 261.
The right of redemption accrues from the very first day unless restricted under the mortgage
deed. When there is no restriction, mortgagors have a right to redeem the mortgage from the
very date when the mortgage was executed. This was laid down in Sampuran Singh and
Others v Smt. Niranjan Kaur, ILR 1999 Kar 3101.

Muslim Inheritance
Heritable property – No distinction between ancestral and self-acquired property. There is no such
thing as joint Mohammedan family.

Birth right is not recognised.

Classes of heirs:

There are 3 classes of heirs

1) Sharers
2) Residuaries
3) Distant Kindred
Sharers:
Sharers are those surviving relations who are entitled to certain share in the deceased’s property.

1) Father – 1/6th share

2) True Grandfather – 1/6th share, provided there is no father
3) Husband – 1/4th share, provided he has child or child of a son
1/2 share, if he has no child or child of a son
4) Wife – only one – 1/8th share, provided she has child or child of a son
1/4th share, if she has no child or child of a son
2 or more – 1/8th share
5) Mother – 1/6th share, provided she has child
1/3rd share, when she has no child
6) True Grandmother – only one - 1/6th share, provided there is no mother
2 or more – 1/6th share
7) Daughter – only one – 1/2 share
2 or more – 2/3rd share
Condition – there should be no son, if there is a son, she is entitled to get a share under
residuaries
8) Son’s Daughter - only one – 1/2 share
2 or more – 2/3rd share
9) Son’s Son’s Daughter - only one – 1/2 share
2 or more – 2/3rd share
10) Uterine brother or sister - only one – 1/6th share
2 or more – 1/3rd share
11) Full sister - only one – 1/2 share
2 or more – 2/3rd share
12) Consanguine sister - only one – 1/2 share
2 or more – 2/3rd share

Residuaries:
If there are no sharers, or if there is residue left after distributing to the sharers, the residue is
inherited by the residuaries.

I. Descendants:
1. Son
Note : Daughter takes as a residuary with the son, the son gets double portion of
what the daughter gets
2. Son’s Son

II. Ascendants:
3. Father
4. True Grandfather

III. Descendants of father:

5. Full Brother
6. Full Sister
7. Consanguine Brothers
8. Consanguine Sister
 9. Full Brother’s Son
10. Consanguine Brother’s Son
11. Full Brother’s Son’s Son
12. Consanguine Brother’s Son’s Son

IV. Descendants of true grandfather:

13. Full Paternal Uncle
14. Consanguine Paternal Uncle
15. Full Paternal Uncle’s Son
16. Consanguine Paternal Uncle’s Son
17. Full Paternal Uncle’s Son’s Son
18. Consanguine Paternal Uncle’s Son’s Son
19. Male Descendants of more remote true grandfather

Distant Kindred:
If there are no sharers or residuaries, the inheritance is divided amongst Distant Kindred.

If the only sharer be a husband or wife, and there be no relation belonging to the class of
Residuaries, the husband or wife will take his or her share, and the remainder of the estate will be
divided among Distant Kindred.

Distant Kindred are divided into 4 classes

I. Descendants of the deceased-

1. Daughter’s children and their descendants.
2. Children of son’s daughters and their descendants

II. Ascendants of the deceased-

1. False grandfathers
2. False grandmothers

III. Descendants of parents-

1. Full brother’s daughters and their descendants
2. Consanguine brother’s daughters and their descendants
3. Uterine brother’s children and their descendants
4. Daughters of full brother’s sons and their descendants
5. Daughters of Consanguine brother’s sons and their descendants
6. Sister’s (full, consanguine or uterine) children and their descendants

IV. Descendants of immediate grandparents (true or false)-

1. Full paternal uncle’s daughters and their descendants
2. Consanguine paternal uncle’s daughters and their descendants
3. Uterine paternal uncles and their children and their descendants
4. Daughters of full paternal uncle’s son and their descendants
5. Daughters of Consanguine paternal uncle’s son and their descendants
6. Paternal aunts (Full, Consanguine or Uterine) and their children and their
descendants
7. Maternal uncles and aunts and their children and their descendants
Section 45 of Karnataka Stamp Act, 1957

Non- liability for loss of instruments sent under Section 37 –

(1) If any instrument sent to the Deputy Commissioner under Section 37(2) is lost, destroyed or
damaged during transmission, the person sending the same shall not be liable for such loss,
destruction or damage.
(2) The person in possession is required to make a copy at the expense of such person and
authenticated by the person impounding such instrument

Section 45-A of Karnataka Stamp Act, 1957

Instrument of conveyance, etc., undervalued how to be dealt with –

(1) If the registering office, has a reason to believe that the market value of the property has not
been truly set forth, he shall after arriving at the estimate value published by the Committee,
communicate the same to the parties; unless the parties pay the duty on the basis of such
valuation, the process of the registering will be pending; refer the matter, along with a copy
to the Deputy Commissioner for the determination of the market value and proper duty
payable thereon.
(2) On receipt, the Deputy Commissioner will give the parties reasonable opportunity to be
heard, after holding an inquiry, will determine the market value and the duty payable (within
90 days from the date of receipt). The difference in the amount of duty, if any, is payable by
the person liable to pay the duty.
(3) Deputy Commissioner may, file a suo moto, within 2 years from the date of registration, call
for and examine the instrument for the purpose of satisfying himself regarding the market
value of the property. If he has a reason to believe that the market value is not been truly
set forth, the same process as under subsection 2 needs to be followed.
Exception – does not include any instrument registered before the commencement of this
Amendment Act- 1975
(4) Order of Deputy Commissioner shall be communicated to the person liable to pay the duty.
A copy of the same should be sent to the registering officer.
(5) Any person aggrieved by the order of Deputy Commissioner, may prefer an appeal before
the Divisional Commissioner of the Revenue Division. For the appeal. The aggrieved party
must admit 50% of the difference in the amount of duty as determined by Deputy
Commissioner. If the stamp duty is found to be sufficient, then the amount will be returned
back. If it is deficient, he shall pay the deficient amount along with interest of 12% per
annum on the difference amount calculated from the date of execution of the document.

Section 45-B of Karnataka stamp Act, 1957

Constitution of a Committee for estimation of property

The Committee will estimate the market value of the property in the subject matter and also publish
the same in the prescribed manner.

Case Laws:

M.G Kulkarni v State of Karnataka

Citation :
ILR 1985 KARNATAKA 2152
1984(2)KarLJ341
In the above case, question was raised on whether, the consideration as specified in the instrument
is of relevance during determination of market value of the property. It was also challenged that the
Deputy Commissioner power of revising the site values was without authority of law and was
opposed to section 45-A. The court in this case held that, the market value as referred under Section
45-A shall be the price that would have fetched in the open market as on the date of the execution.
This method is known as comparable sales method. The order states that, “whether there has been
a proper valuation of a property and if so, whether the same has been properly set out in the
instrument with reference to that very property which is the subject matter of the instrument
presented for registration is essentially a question of fact. When there is a proper valuation, a
correct statement thereto and payment of correct stamp duty, no other question arises under the
act. But, when there is under valuation which is necessarily results in under payment of stamp duty,
section 45-A empowers the Registrar to make 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.” Further, consideration whether paid or not has no
relevance to the stamp duty payable thereto.

Raj Trust and Anr. V State of Karnataka and Ors.

Citation:
AIR2001Kant472
ILR 2001 KARNATAKA 5501
2001(3)KCCR2151

In the above case, the court held that, if the District Registrar has passed orders in determining
market value of properties by applying the amended provisions of the act, instead of applying the
unamended provisions as under Section 45-a(2), then it totally suffers from error in law and lacks
jurisdiction. Since the unamended provisions need to be considered, the fact that 50% pre deposit
by the aggrieved party also cannot be considered.

Smt. Santosh Achcha vs. State of Karnataka by its Secretary Revenue Department and Ors.

Citation:
ILR 2008 KARNATAKA 2413

In the above case, petitions were filed challenging section 45a and 45b of the Karnataka Stamp Act
as illegal and arbitrary and ultra virus of Stamp Act and Registration Act. The petitioner’s registration
was kept pending due to which he suffered tremendous loss and injury. He further argues by saying
that, the registering authorities will have to act in accordance with the procedures prescribed under
the registration act and there is no process by which the registration can be kept pending for
payment of stamp duty and therefore the section should be quashed. The court held that, although
withholding of documents for the want of registration is against the provisions of registration act,
safeguards have been provided under section 45a and 45b wherein when the authority forms an
opinion as to the market value of the property to be registered, it has to be communicated to the
party to pay the proper market value and if the party pays the proper amount, then there is no
question keeping the pending documents. Only if a dispute arises, will the Deputy Commissioner
give the parties a reasonable opportunity to be heard and after inquiry, determine the market value
and duty payable. Therefore, the court held that, section 45a and 45b were not unconstitutional or
unreasonable or arbitrary.

Huleppa Balappa Karoshi vs. Sub-Registrar

Citation:
ILR 1995 KARNATAKA 3589
1996(5)KarLJ605

In this case, the court held that, in areas where section 45a is not in force, there could be no action
under section 33 and 39 or 45a. In such cases, action could be taken only under section 28 and 61.
The combined effect of section 28(1) and (2) and section 61 was that if there was an undervaluation,
the person executing the document could be prosecuted and punished under section 61. Once
section 41a was made applicable, the deficit stamp duty could also be collected. But under no
circumstance, penalty could be levied under section 39, in regard to undervalued instruments.

Hindustan Cement Products vs. The District Registrar for Detection of Undervaluation of Stamps

Citation:
2003(4)KCCR2930

In the above case, the court held that, the registration fee payable is only on the market value which
is mentioned in the document itself. It further held that, any differential registration fee payable on
the basis of the market value of the property as on the date of registration is unsustainable. The
demand for differential amount is illegal. And that there was no under valuation of property to
attract the provisions of section 45a.

Ramappa, Anandaraju, Chikkaputtamma

Narayanappa, Venkatesh, Krishnappa, Chennarayapaa,

Chikkaputtamma, Nagarajappa, Ashwath, Sriramappa,

Dayanandini, Ganesh

Facts:

Plaintiff 1 – Ramappa – husband of Doddaputtamma –

d/o Papaiah@Muniswamy

Plaintiff 2 – Anandaraju – s/o Ramappa and

Doddaputtamma

Plaintiff 3 – Chikkaputtamma – d/o

Papaiah@Muniswamy, wife of Ramappa

Defendant 1 – Narayanappa – s/o Papaiah@Muniswamy

Defendant 2 – Venkatesh – s/o Narayanappa

Defendant 3 – Krishnappa – s/o Papaiah@Muniswamy

Defendant 4 – Chennarayapaa – s/o Krishnappa

Defendant 5 – Chikkaputtamma

Defendant 6 – Nagarajappa – s/o Papaiah@Muniswamy

Defendant 7 – Ashwath – s/o Nagarajappa

Defendant 8 – Sriramappa – s/o Papaiah@Muniswamy

Defendant 9 – Dayanandini

Defendant 10 – Ganesh

Papaiah@Muniswamy died leaving behind his sons (def 1, 3, 6, 8) and one daughter(def 5 or pltf 3).
His elder daughter, Doddaputtamma, had died 28 years back, leaving behind her husband(pltf 1) and
her son(pltf2). Before Papaiah@Muniswamy’s death, he along with his sons sold his property to Def
9 and registered a sale deed . The sale deed by def 9 from def 1, 2 ,3, 4, 6, 7, 8 was registered on
25/07/05. Def 9, after possession sold it to def 10. The sale deed by def 10 from def 9 was registered
on 11/05/11. The plaintiffs files a suit against the defendants on the ground that the defendants do
not have any exclusive right or title over the property and therefore both the sale deeds are null and
void.

Issue:

1. Whether the sale deeds registered on 25/07/05 and 11/05/11 are valid or not?
2. Whether defendants 1,2,3,4,6,7,8 have right and title over the property or not?

Analysis:

The plaintiffs argued that the property is a joint family property and an ancestral property, therefore
they have a right and title over the property. They further said that the sale deeds are not binding on
them and therefore claimed for partition and that they are entitled jointly to get 2/7 th share in the
property.

The defendants argues by proving that the land was a self acquired property and not a joint family
property or an ancestral property as, Papaiah@Muniswamy purchased the land with his
independent income. Therefore, he is the only absolute and exclusive owner of the land.
Defendant 10 stated that, the ancestral property was inherited by Papaiah@Muniswamy and his
brother, Muniyappa. They further sold it to Anwar Khan. In 1972, Muniswamy, with his own income
repurchased the land from Anwar Khan, thereby becoming the absolute owner.

They also referred to a past case, where,

Chenarayappa died leaving behind his 3 sons, Munivenkatappa, Muniswamppa@Papaiah and

Muniyappa. Muniyappa had filed a suit against the other 2 claiming for 1/3th property. It was
concluded by a joint compromise petition which gave Papaiah@Muniswamy and Muniyappa right
and title over the property.

My Arguments:

The property is not an inherited property. It is a self acquired property as Papaiah@Muniswamy

repurchased it from Anwar Khan with his independent income. Therefore, there is no question of
joint family property. Therefore, plaintiff 1, 2 do not have a right over the property.

Papaiah@Muniswamy along with his sons had sold the property on 25/07/05 ie, before the Hindu
Succession Act amendment. The Hindu Succesion act amendment, made on 05/009/05, provides for
equal share for sons and daughters. If the daughter is dead, then her son is entitled to get her share.
But since the sale deed was registered before the amendment was passed and since the amendment
is not retrospective, the daughters are not entitled to get a share in the property.Therefore,
Chikkaputtamma(pltf 3) and Doddaputtamma do not have any right or title over the property. And
since Doddaputtamma is not entitled to get a share in the property, her husband(pltf 1) and her
son(pltf 2) are subsequently not entitled to get a share in the property.

Decision:

Def 1, 2, 3, 4, 6, 7, 8 have a right and title over the property, and therefore, both the sale deeds
registered on 25/07/05 and 11/05/11 are valid.
Section 45 of Karnataka Stamp Act, 1957

Non- liability for loss of instruments sent under Section 37 –

(3) If any instrument sent to the Deputy Commissioner under Section 37(2) is lost, destroyed or
damaged during transmission, the person sending the same shall not be liable for such loss,
destruction or damage.
(4) The person in possession is required to make a copy at the expense of such person and
authenticated by the person impounding such instrument

Section 45-A of Karnataka Stamp Act, 1957

Instrument of conveyance, etc., undervalued how to be dealt with –

(6) If the registering office, has a reason to believe that the market value of the property has not
been truly set forth, he shall after arriving at the estimate value published by the Committee,
communicate the same to the parties; unless the parties pay the duty on the basis of such
valuation, the process of the registering will be pending; refer the matter, along with a copy
to the Deputy Commissioner for the determination of the market value and proper duty
payable thereon.
(7) On receipt, the Deputy Commissioner will give the parties reasonable opportunity to be
heard, after holding an inquiry, will determine the market value and the duty payable (within
90 days from the date of receipt). The difference in the amount of duty, if any, is payable by
the person liable to pay the duty.
(8) Deputy Commissioner may, file a suo moto, within 2 years from the date of registration, call
for and examine the instrument for the purpose of satisfying himself regarding the market
value of the property. If he has a reason to believe that the market value is not been truly
set forth, the same process as under subsection 2 needs to be followed.
Exception – does not include any instrument registered before the commencement of this
Amendment Act- 1975
(9) Order of Deputy Commissioner shall be communicated to the person liable to pay the duty.
A copy of the same should be sent to the registering officer.
(10)Any person aggrieved by the order of Deputy Commissioner, may prefer an appeal before
the Divisional Commissioner of the Revenue Division. For the appeal. The aggrieved party
must admit 50% of the difference in the amount of duty as determined by Deputy
Commissioner. If the stamp duty is found to be sufficient, then the amount will be returned
back. If it is deficient, he shall pay the deficient amount along with interest of 12% per
annum on the difference amount calculated from the date of execution of the document.

Section 45-B of Karnataka stamp Act, 1957

Constitution of a Committee for estimation of property

The Committee will estimate the market value of the property in the subject matter and also publish
the same in the prescribed manner.
Case Laws:

M.G Kulkarni v State of Karnataka

Citation :
ILR 1985 KARNATAKA 2152
1984(2)KarLJ341
In the above case, question was raised on whether, the consideration as specified in the instrument
is of relevance during determination of market value of the property. It was also challenged that the
Deputy Commissioner power of revising the site values was without authority of law and was
opposed to section 45-A. The court in this case held that, the market value as referred under Section
45-A shall be the price that would have fetched in the open market as on the date of the execution.
This method is known as comparable sales method. The order states that, “whether there has been
a proper valuation of a property and if so, whether the same has been properly set out in the
instrument with reference to that very property which is the subject matter of the instrument
presented for registration is essentially a question of fact. When there is a proper valuation, a
correct statement thereto and payment of correct stamp duty, no other question arises under the
act. But, when there is under valuation which is necessarily results in under payment of stamp duty,
section 45-A empowers the Registrar to make 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.” Further, consideration whether paid or not has no
relevance to the stamp duty payable thereto.

Raj Trust and Anr. V State of Karnataka and Ors.

Citation:
AIR2001Kant472
ILR 2001 KARNATAKA 5501
2001(3)KCCR2151

In the above case, the court held that, if the District Registrar has passed orders in determining
market value of properties by applying the amended provisions of the act, instead of applying the
unamended provisions as under Section 45-a(2), then it totally suffers from error in law and lacks
jurisdiction. Since the unamended provisions need to be considered, the fact that 50% pre deposit
by the aggrieved party also cannot be considered.

Smt. Santosh Achcha vs. State of Karnataka by its Secretary Revenue Department and Ors.

Citation:
ILR 2008 KARNATAKA 2413

In the above case, petitions were filed challenging section 45a and 45b of the Karnataka Stamp Act
as illegal and arbitrary and ultra virus of Stamp Act and Registration Act. The petitioner’s registration
was kept pending due to which he suffered tremendous loss and injury. He further argues by saying
that, the registering authorities will have to act in accordance with the procedures prescribed under
the registration act and there is no process by which the registration can be kept pending for
payment of stamp duty and therefore the section should be quashed. The court held that, although
withholding of documents for the want of registration is against the provisions of registration act,
safeguards have been provided under section 45a and 45b wherein when the authority forms an
opinion as to the market value of the property to be registered, it has to be communicated to the
party to pay the proper market value and if the party pays the proper amount, then there is no
question keeping the pending documents. Only if a dispute arises, will the Deputy Commissioner
give the parties a reasonable opportunity to be heard and after inquiry, determine the market value
and duty payable. Therefore, the court held that, section 45a and 45b were not unconstitutional or
unreasonable or arbitrary.

Huleppa Balappa Karoshi vs. Sub-Registrar

Citation:
ILR 1995 KARNATAKA 3589
1996(5)KarLJ605

In this case, the court held that, in areas where section 45a is not in force, there could be no action
under section 33 and 39 or 45a. In such cases, action could be taken only under section 28 and 61.
The combined effect of section 28(1) and (2) and section 61 was that if there was an undervaluation,
the person executing the document could be prosecuted and punished under section 61. Once
section 41a was made applicable, the deficit stamp duty could also be collected. But under no
circumstance, penalty could be levied under section 39, in regard to undervalued instruments.

Hindustan Cement Products vs. The District Registrar for Detection of Undervaluation of Stamps

Citation:
2003(4)KCCR2930

In the above case, the court held that, the registration fee payable is only on the market value which
is mentioned in the document itself. It further held that, any differential registration fee payable on
the basis of the market value of the property as on the date of registration is unsustainable. The
demand for differential amount is illegal. And that there was no under valuation of property to
attract the provisions of section 45a.
http://www.lawyersclubindia.com/articles/Property-Registration-Some-Frequently-Asked-
Questions-1348.asp

1 [94A. Regularisation of certain cases of unauthorised occupation by constituting

committee etc.—(1) Subject to such rules as may be prescribed, the State Government shall, by
notification, constitute for 3 [each constituency of the Legislative Assembly] 3 a committee
consisting of such number of members 2 [not exceeding five]2 of whom one shall be a member of
Legislative Assembly for the purpose of grant of land under sub-section (4). (2) The Tahsildar of the
concerned taluk shall be the Secretary of the committee. 3 [(2A) The State Government may, if it is
of the opinion that it is necessary, constitute one or more additional committees for a taluk for the
purpose of grant of land under sub-section (4) consisting of such number not exceeding five, as may
be prescribed and the State Government shall nominate from among the members one of them as
the Chairman and another as the Secretary of the committee. When an additional committee is
constituted, the Deputy Commissioner shall determine the jurisdictions of the committee and the
additional committee and transfer the pending applications to the respective committee.]3 (3) The 4
[committee or additional committee]4 shall follow such procedure as may be prescribed. (4) Nothing
in section 94 shall prevent the committee constituted under sub-section (1), 3 [or additional
committee constituted under sub-section (2A)]3 , but subject to such rules as may be prescribed, if
any, to grant to the person liable to be evicted under that section, the land which he had
unauthorisedly occupied prior to the 6 [first day of January, 2005]6 (hereinafter referred to as the
said date) or any portion thereof, if he satisfies the prescribed conditions (including the extent of the
land held and unauthorisedly occupied by him) and makes 6 [within a period of one year from the
date 1964: KAR. ACT 12] Land Revenue 491 of commencement of the Karnataka Land Revenue
(Amendment) Act, 2018]6 (hereinafter referred to as the Amendment Act), an application for such
grant in such form along with such fees as may be prescribed and on payment of the amount
payable under sub-section (5
Circular dated 20.08.2009 bearing No. RD 57 LPG2008 (page 23)

Circular dated 15.01.2007 bearing No. RD 83 LPG2006 (page 73)