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S.B. CIVIL WRIT PETITION NO. 7875/2009
(Om Dutt @ Om Prakash Vs. Ganpat Lal & Ors.)
Date of Order :: 21st August 2009.
HON’BLE MR. JUSTICE DINESH MAHESHWARI
Mr.B.L.Choudhary for the petitioner
…
By way of this writ petition, the petitioner, defendant in a
suit for partition and perpetual injunction, seeks to question
the order dated 28.02.2009 (Annex.7) as passed by the
learned Trial Court whereby an application moved by the
plaintiff-respondent No.1 has been allowed and the questioned
document has been held inadmissible in evidence.
The plaintiff-respondent No.1 Ganpat Lal has filed the
suit aforesaid while arraying his three brothers including the
petitioner as the defendants; and, while asserting that the
properties as described in the plaint were the joint family
properties received by the parties from their father Mangilal
under his Will dated 17.06.1979 that was allegedly notarised
on 08.03.1984, the plaintiff has claimed 1/4th share therein.
The plaintiff has prayed for the decree for partition and
perpetual injunction with the allegations that the petitioner-
defendant No.1 had been attempting to take over the
properties by raising construction.
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The petitioner has taken various objections in his
written statement including the one relating to the non-joinder
of all the heirs of the father of the parties; has also questioned
the factum of the alleged Will; and has further averred that
there existed other immoveable and moveable properties of
the parties.
Relevant for the purpose of the instant writ petition is the
plea taken in the alternative in the written statement that after
the demise of the father of the parties on 14.03.1997, his five
sons sat together on 01.03.2001 with the responsible persons
of the community and voluntarily divided the properties. While
describing the different properties/portions given to the
brothers, the petitioner pointed out the terms of such deed
executed by the brothers on 01.03.2001 and then, submitted
that it was, in fact, a family settlement amongst the brothers
and the same had been acted upon.
The plaintiff proceeded to move the aforesaid
application with reference to Section 17 of the Registration
Act, 1908 and Section 35 of the Rajasthan Stamp Act, 1998
and contended that the document dated 01.03.2001 as
sought to be relied upon by the petitioner-defendant No.1 was
inadmissible in evidence for want of proper stamp duty and so
also for want of registration. The petitioner opposed the
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application with the submissions that a document of family
settlement was not compulsorily registerable; and even the
document compulsorily registerable could be used for
collateral purposes.
By the impugned order dated 28.02.2009, the learned
Trial Court proceeded to allow the application moved by the
plaintiff-respondent No.1 with reference to the definition of
instrument of partition as contained in Section 2 (xx) and the
provisions as contained in Section 39 of the Rajasthan Stamp
Act, 1998; the decisions of this Court including that in the case
of Smt.Jamna Bai Vs. Tulsi Ram: AIR 1997 Rajasthan 85;
and the contents of the document in question. While holding
the said document dated 01.03.2001 inadmissible in evidence,
the learned Trial Court ordered the same to be placed in part-
D of the record.
Seeking to question the order aforesaid, the learned
counsel for the petitioner has strenuously argued that when
the petitioner has clearly shown that the father of the parties
made an oral partition during his life time and the brothers
were given separate shares; and after the death of the father,
all the brothers made an oral partition and put that in writing on
01.03.2001 with the signatures of all including that of the
plaintiff-respondent No.1, he remains rather estopped from
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challenging the same. The learned counsel submitted that the
property in question being the ancestral property of the
parties, no new rights were created by way of the deed in
question that were only a family settlement duly signed by the
brothers; and such family settlement cannot be said to be
inadmissible in evidence. The learned counsel further
submitted that even when unregistered partition deed may not
be admissible in evidence as such, it could yet be looked into
for collateral purposes so as to consider the nature of
possession over the suit property but the learned Trial Court
has acted wholly illegally in removing the document from
consideration altogether. The learned counsel has referred to
and relied upon the decisions in Mahadeo (dead) through LRs
Vs. Vatsalabai: 2009 (1) Civil Court Cases 018 (Bombay);
Ranganayakamma and another Vs. K.S.Prakash (D) by L.Rs.
and others: 2008 (3) Apex Court Judgments 281 (SC); Maturi
Pullaiah and another Vs. Maturi Narasimham and others: AIR
1966 SC 1836; Bakhtawar Singh Vs. Gurdev Singh and
another: (1996) 9 SCC 370; and Malik Harikishan Singh Vs.
Malik Partap Singh and others: AIR 1938 Privy Council 189.
Neither the submissions aforesaid make out a case for
interference against the impugned order dated 28.02.2009 nor
the referred decisions could be considered supporting the
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case of the petitioner.
The fundamentals of the principles that a document not
creating any interest in the immoveable property does not
require registration; that the family settlement will need
registration only if it creates any interest in the immoveable
property in presenti in favour of the parties mentioned therein
but not otherwise (vide Maturi Pullaiah’s case supra); that the
memorandum regarding past oral partition of joint family as a
family settlement is not required to be registered (vide
Bakhtawar Singh’s case supra); and that if the deed of
partition is made by way of family arrangement, no registration
would have been required (vide Ranganayakamma’s case
supra) are neither of any doubt nor of debate but then, the
answer to the question as to whether a particular document is
subject to registration and stamp duty essentially depends on
its nature and contents.
The document in question (Annex.3) has been held by
the learned Trial Court to be a deed of partition and not a
memorandum or settlement; and such a construction cannot
be said to be improper or unjustified. The entire of the
document in question reads as under:-
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”श र म
बटव रन म द न क 1.3.2001
म ग ल ल S/o आसल ल ज ग व मण र (मण ररय पड ह र)
जत न ई उनक! ब!ट! भवरल ल, ओमपक श, क न र म,
गणप ल ल एव र ज!श बबन ककस नश! प ! क! व बबन ककस
ब व क! अपन! प+र! ह श हव स म, र ज -खश ममल ब/ठकर अपन!
ज आसल ल ज एव पप श म ग ल ल ज क2 अचल
समपत (मक न व जम न ) क बटव र तनमन पक र स! ककय
ह/ :-
1.श भवरल ल ज क ज+न बस क एक ख ल6 पल ट द य
गय (एक कचच झ पड व च र 6व र6)
2. श ओम पक श ज क ब ड क2 गल6 म, एक मय 6
क ट व पल ट द य गय
3. श क न र म ज क ज+न बस न ईय; क! प स
आस+ल लज क मक न क आध दहसस प+व= द श म, न ल
(स ढ6य? ) स! द य गय ।
4. श गणप ल ल ज क आसल ल ज क! मक न क
आध दहसस पशBम द श म, न ल (स ढ6य? ) स! द य गय ।
5. श र ज!श ज क ब ड क! स मन! म ग ल ल ज क
मक न जम न मय मक न बन हआ मशजल द य गय ।
Note. जब क र ज!श एव गणप ल ल ज क2 सहमत
ह ग ब क एक स थ रह सक ! ह/ इसम, ककस भ ई क क ई
ऐ र ज नह6 ह ग ।
नम हस कर
भवरल ल एस.
ओमपक श एस. .
कनरम एस. .
गणप ल ल एस. .
र ज!श एस. .
बटव र कर ! समय उपशसथ वयडH क! न म
1. ऊल ल न ई च/नपर
2. भ ख र म ज न ई ल रड
3. पखर ज ज न ई ल रड
4. ज!ठमल ज न ई पररह र नगर
5. क ल+र म ज न ई मण र गव घ ट6
6. मनन ल ल ज ज+न बस
7. पवशन र म ज न ई झ ल मण
उपशसथ वयडHय; क! हस कर
1.एस. .
2.एस. .
3.एस. .
4.एस. .
5.एस. .
6.एस. .
7, स ख एक मनन ल ल क2 ह/ कक म!र! स मन! प च भ ई र ज –
खश अपन! ब प- क2 समपत क बटव र ककय हM ज वH
ब! वH क म आव, ।
एस. .
मनन ल ल
1/3/2001"
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The document is itself clear in its recitals that the sons
of Mangilal have sat together and have carried out partition in
the manner stated in the five clauses of the document, each
specifying as to which portion was being given to which
brother. Even the attesting witnesses would state their
presence at the time of partition and the last attesting witness
Munnilal would further state that the five brothers have carried
out partition before him. There is not even a remote
suggestion that partition had already been affected or that the
document was only a memorandum or settlement.
Looking to the nature of document and its contents,
even the suggestion about its utility for so-called collateral
purpose does not appear correct. When the document has
itself been of carrying out partition; and is neither on requisite
stamp duty nor registered, it does not appear that this
document could be used even for any collateral purpose.
Looking to the nature and the contents of the document
in question, the ratio of the decision of this Court in the case
of Smt.Jamna Bai (supra) squarely applies wherein this Court
said,-
”9. It may be stated at the very outset that the
document in question was registerable and it ought to
have been written on proper stamps. The document is,
therefore, neither registered nor written on stamp papers.
It cannot be gainsaid that under Section 49 of the
Registration Act, a document can be allowed to be
admitted in evidence for a collateral purpose or to
8determine the nature and character of possession and
there cannot be any dispute regarding the correctness of
this proposition. However, in the present case, the
document suffers from second infirmity, namely, it was
not written on proper stamps. Hence, provisions of
Section 35 of the Stamps Act come into play and Section
35 provides that the document cannot be admitted in
evidence for any purpose. What is the exact connotation
of the words ”for any purpose”? This question came for
interpretation before Allahabad High Court in Mst.Bibo’s
case (AIR 1937 All 101) and it was held by Allahabad
High Court that the phrase undoubtedly implies each and
every purpose whatsoever without any exception and it
matters little whether the purpose is the main purpose or
a collateral one. In Nihalsingh v. Singhraj and others’
case (1989 (1) Rajasthan LR 384) (supra) this Court
concurred with the Allahabad High Court’s view. In fact,
the present case falls squarely within the ratio decidendi
of the Nihalsingh’s case. In that case also the document
in question was neither properly stamped nor registered.
The party wanted its reception in evidence for the
collateral purpose of proving the nature and character of
possession. It was held that such a document cannot be
admitted in evidence even for a collateral purpose. I fully
agree with this rule.”In the given circumstances, the order as passed by the
learned Trial Court cannot be said to be suffering from any
jurisdictional error so as to warrant interference by this Court
under Article 227 of the Constitution of India.
The petition fails and is, therefore, rejected.
However, in the interest of justice, it is made clear that
this Court has otherwise not commented on the merits of the
case and the learned Trial Court shall proceed with and
decide the suit on its merits in accordance with law.
MK (DINESH MAHESHWARI), J.
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