JUDGMENT
Kulwant Sahay, J.
1. The suit out of which the present appeal arises was instituted by the plaintiffs-appellants for partition of joint family properties, their share being 8 annas.
2. The defence of the defendants was that there had been a previous partition of all the joint family properties in Assin, 1329 and a fresh partition could not be effected. The learned Subordinate Judge has given effect to the contention of the defendants and has dismissed the suit.
3. The learned Advocate for the appellants does not very properly contest the findings of the Subordinate Judge on the merits : in fact the evidence seems to be overwhelming in support of the; findings of fact arrived at by the learned Subordinate Judge. The learned Advocate has, however, taken an objection to the effect that Ex. B which purports to be a list showing the allotments of the properties to the plaintiffs and the defendants is either a deed of partition or an award. If it is a deed of partition, the document is invalid for want of registration ; if it is an award, it is invalid for want of stamp duty, and in either case the document is not admissible in evidence, and if this ‘document is excluded no oral evidence is admissible.
4. Now looking at the document, Ex. B, it is clear that it is not a deed of partition, it is not a document executed by anybody, it is not signed by the parties to the partition, and it can in no sense be treated as a deed of partition. It may be treated as an award of the arbitrators who effected the partition and it ought to have been stamped with the proper stamp duty. But the document has been admitted by the learned Subordinate Judge in evidence and Section 36 of the Stamp Act provides that where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called ‘ in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped.
5. It is contended that objection to the admissibility of the document was taken before the learned Subordinate Judge and Section 36 would apply only to cases where a document is admitted without objection. There seems to be no justification for this contention. Section 36 is quite clear that once a document is admitted in evidence, the admission of such a document cannot be questioned whether the document was admitted with objection or without objection. It is, therefore, too late now for the learned Advocate for the appellant to contend that the document, cannot be used as evidence in this appeal.
6. The learned Advocate for the appellant then refers to a passage in the judgment of the learned Subordinate Judge where it is stated that the defendants stated before his that they were ready to take for themselves the share given to the plaintiffs and that the plaintiffs were at liberty to take the shares given to them and he says that such exchange ought to be made now. The offer was made to them in the Court below and the respondents refused to accept the offer. Now it is too late for them to compel the defendants to exchange the shares.
7. There is no substance in this appeal and it must be dismissed with costs.
Ross, J.
8. I agree.
