JUDGMENT
N.L. Untwalia, J.
1. One Nandlal Agarwala died leaving behind four sons and a widow. The widow and one of the sons, who is a minor instituted Title Suit No. 491 of 1962 in the court of the Munsif 1st court, at Dhanbad for eviction of another son from the suit premises. The case of the plaintiffs opposite party is that, on amicable partition between the sons and the widow of Nandlal Agarwala, the house in question was allotted to the plaintiffs’ share. Thereafter, the defendant was inducted as a tenant on the suit premises on a monthly rental of Rs. 60/-.
2. At the hearing of the suit, a document, which purports to have been executed, as written in the execution portion of the document by the scribe, on the 23rd March, 1960, but was actually signed by the parties on the 13th April, 1960, was tendered in evidence in support of the plaintiffs’ case. This document was characterised as a Panchnama, or if, I may use the expression, also as a yad-dasht of partition, on behalf of the plaintiffs. An objection was raised on behalf of the defendant that the document was an instrument of partition within the meaning of Sub-section (15) of Section 2 and Article 45 of the Indian Stamp Act, as also within the meaning of the Registration Act. Proper stamp duty has not been paid on the instrument, nor is it a registered one. The defendant, therefore objected to the document being taken in as a piece of evidence.
3. The learned Munsif has decided:
The recitals in this document do not show that this document it-sell is the deed of partition…. But it will be just a memorandum and therefore it will not be necessary for this document to be registered as a deed of partition on which requisite stamp duty has to be paid.
Thereafter, taking the view that it will not be lawful to reject the document from going into evidence as it can be taken for a collateral purpose under Section 49 of the Registration Act, he has directed that the document should be marked as an exhibit in the case and admitted into evidence to be considered with all other materials to be produced by the parties in support of their respective cases. The defendant has come up in revision to this Court.
4. I shall read a few passages from the official translation of the document which has been marked ‘X’ for identification in the court below. It ought to be stated that it has not been exhibited yet. The document recites:
For the purpose of removing the said want of peace and for convenience of enjoying and possessing the said properties, the parties, in consultation with the local
panchbhadras (five gentlemen) and their well-wishes, relatives and friends, have partitioned the said properties in the following manner according to their mutual consent and desire.
* * *
The parties (concerned) together with their sons, grand-sons, etc. heirs and representatives in succession, shall continue to enjoy and possess their respective properties received by them (as their respective shares) under this deed of partition, for ever, in great happiness, being competent to make all kinds of transfer, etc, such as sale, etc. thereof.
* * * The parties (concerned) shall pay the rent and municipal tax, etc. in respect of their own properties respectively received by them under the said arrangement (as their respective shares). To this effect, the parties, of their own accord, in sound state of health and in clear conscience, executed this deed of partition.
5. There cannot be the least doubt that the document in question is an instrument of partition within the meaning of Sub-section (15) of Section 2 and Article 45 of the Indian State Act. The learned Munsif is clearly wrong in his view that the document is not a deed of partition but it is only a memorandum of partition. On reading the document as a whole, and, especially the passage, which I have extracted above, it is clear to me that the parties agreed to divide, and divided, their properties as mentioned in the document. The document is, therefore, chargeable to stamp duty as provided in Article 45 of the Stamp Act as amended by the Bihar Act. The document cannot be exhibited unless it is impounded and proper stamp duty and penalty are charged. The question of charging proper stamp duty and penalty on the document has got to be decided before it is taken into evidence because, under Section 36 of the Stamp Act, such a document, when admitted into evidence, cannot be later on excluded from evidence on the ground of insufficiency of stamp or failure of the court to impound it. In Javer Chand v. Pukhraj Surana A.I.R. 1961 S.C. 1955 it was pointed out, to quote the placitum:
Where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, the party challenging the adminissibility of the document has to be alert to see that the document is not admitted in evidence by the court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross examination of their witnesses, Section 36 comes into operation.
6. I do not propose to express any opinion of mine as to whether the document has been rightly directed to be taken into evidence for a collateral purpose under Section 49 of the Registration Act. The learned Munsif has taken this view. It will be open to the appellate court, however, when an appeal is filed and the point is reagitated, to examine this question as to whether this document could be taken in evidence for a collateral purpose under Section 49 of the Registration Act. The matter of impounding of the document and charging of the proper stamp duty and requisite penalty has got to be gone into before the document is taken into evidence. I may also point out that it is not open to the party to withdraw the document now and escape the payment of the proper stamp duty and the penalty.
7. In the result, I allow the application in revision partly to the extent indicated above, modify the order of the learned Munsif, and direct him to impound the document in question by following the procedure according to law for the charging of the proper stamp duty and the requisite penalty, and thereafter to admit the document in evidence as he has directed it to be admitted under Section 49 of the Registration Act. I will make no order as to costs.