Gujarat High Court
Harijan Pratap Hendu- Thro Legal Heirs vs Luhar Chelabhai Trikambhai on 13 August, 2025
NEUTRAL CITATION
C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9387 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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HARIJAN PRATAP HENDU- THRO LEGAL HEIRS & ORS.
Versus
LUHAR CHELABHAI TRIKAMBHAI & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8
MR VIJAY H NANGESH(3981) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 13/08/2025
ORAL JUDGMENT
TABLE OF CONTENTS THE SHORT FACTS OF THE CASE.......................................................................................3 SUBMISSIONS OF THE PETITIONER-DEFENDANT NO.1....................................................4 SUBMISSIONS OF RESPONDENT NO.1-PLAINTIFF............................................................7 POINT FOR DETERMINATION................................................................................................ 8 ANALYSIS................................................................................................................................ 8 CONCLUSION........................................................................................................................ 23 Page 1 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined
1. Heard learned Advocate Mr. Shegun Choksi for learned Advocate Mr. S. P. Majmudar for the petitioners and learned Advocate Mr. Vijay H. Nangesh for the respondent No.1. Though served, none appeared for the rest of the respondents.
2. The present writ application is filed under Article 227 of the Constitution of India, seeking the following reliefs:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 25.04.2013 passed by the learned Principal Senior Civil Judge, Dhanera in Regular Civil Suit No.31 of 1999 below Exh.184 (at ANNEXURE-L hereto);
(B) During the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to stay proceedings of Regular Civil Suit No.31 of 1999 pending before learned Principal Senior Civil Judge, Dhanera;
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
3. The petitioner has challenged the order dated 25th April, 2013, passed by the Principal Senior Civil Judge, Dhanera in Regular Civil Suit No.31 of 1999 below Exh.184, whereby the Trial Court has ordered to exhibit documents which were produced by respondent No.1 on the record of the suit. The petitioner, being aggrieved with the impugned order, has preferred this application. It appears that pending present Page 2 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined writ application, original petitioner died, so his legal heirs are brought on record. Nonetheless, herein after they would be treated as petitioner.
4. As far as possible, the parties will be referred to as per their original positions before the Trial Court. THE SHORT FACTS OF THE CASE
5. The petitioner herein is the original defendant No.1, whereas respondent No.1 is the original plaintiff and the rest of the respondents are the original defendants of Regular Civil Suit No.31 of 1999, pending before the Principal Civil Judge, Dhanera.
5.1. The plaintiff has challenged the execution of sale deed dated 30th December, 1998, executed by original defendants No. 2 to 4 in favour of the petitioner/defendant No.1 and sought a declaration that it is illegal and not binding on him. According to the plaintiff, the suit land is agricultural land and defendants No.2 to 4 have no right to execute sale deed in favour of defendant No.1 being undivided ancestral land. The plaintiff also sought for permanent injunction. 5.2. It appears that during the pendency of the suit, few documents have been submitted by the plaintiffs and vide order dated 25th April, 2013, passed below Exhibit 184 in the Page 3 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined suit by the Trial Court, the documents which are sought to be produced, i.e. Mark 4/1, 4/2, 67/1 and 67/2, have been ordered to be exhibited and thereby received in evidence. 5.3. The defendant No.1, having objected its exhibit, more particularly documents produced at Mark 67/1 and 67/2 on the ground that those documents are in relation to any immovable property wherein there is a transfer of right in favour of plaintiff, unless it is registered as per Section-17 of the Registration Act, such documents could not have been received in evidence and given exhibit.
5.4. After hearing the parties, the Trial Court has turned down such objection of defendant No.1 by placing reliance upon Section-49 of the Registration Act, 1908 (hereinafter referred to as "Act, 1908") and accordingly passed the impugned order. Hence, the present application.
SUBMISSIONS OF THE PETITIONER-DEFENDANT NO.1
6. Learned Advocate Mr. Choksi would submit that the Trial Court has committed jurisdictional error by exhibiting documents which are produced at Mark 67/1 and 67/2 inasmuch as both these documents are required to be compulsorily registered as per Section-17 of the Act, 1908. It is submitted that once such documents are not registered, they could not have been received in evidence. Page 4 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025
NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined 6.1. Learned Advocate Mr. Choksi would submit that the Trial Court has committed serious error of law by placing reliance upon the proviso to Section-49 of the Act, 1908, which would not be applicable to the facts of the present case. It is submitted that the document produced at Mark 67/2 would be a relinquishment deed in relation to the suit land in question, whereby the plaintiff contending that defendant No.2, who happens to be the aunt of the plaintiff, has relinquished her right in favour of the plaintiff in relation to the suit land dated 10th December, 1993.
6.2. Learned Advocate Mr. Choksi, would further submit that when any right, title or interest is transferred in favour of the plaintiff by way of such relinquishment deed allegedly executed by defendant No.2 in favour of the plaintiff, such document requires to be compulsorily registered as per Section-17 of the Registration Act. It is submitted that failure of its registration, as per Section-49 of the Registration Act read with Section-35 of the Gujarat Stamp Act, it would not be admissible and thereby could not be exhibited. 6.3. Learned Advocate Mr. Choksi, would further submit that considering the nature of the suit and the relief as sought for, which directly touches the title of suit land for which the alleged relinquishment deed was executed by defendant No.2 Page 5 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined in favour of the plaintiff, such suit proceedings cannot be considered as a collateral proceeding. It is submitted that the sale deed executed by defendants No. 2 to 4 in favour of defendant No.1 would have a direct bearing upon alleged relinquishment, as the plaintiff has not only referred such document in his plaint but is also claiming right over the land as well on strength of such relinquishment deed. 6.4. Learned Advocate Mr. Choksi would further submit that the Trial Court has completely misconstrued the proviso to Section-49 of Act, 1908, thereby committed a serious error of law while passing impugned order i.e. exhibit the documents produced at Mark 67/1 and 67/2.
6.5. Learned Advocate Mr. Choksi, would further submit that the document at Mark 67/1 might not have a direct bearing on the suit land in question, but as it is creating interest in immovable property by virtue of such execution of agreement between the plaintiff and his brother, as per said provision of law, the same is also required to be compulsorily registered. Thereafter, it could have been received in evidence. 6.6. To buttress his argument, he relies upon the following decision.
(i) Sita Ram Bhama V/s. Ramvatar Bhama reported in 2018 (15) SCC 130 : 2018 AIJEL-SC-61959.Page 6 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025
NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined 6.7. Making the above submissions, learned Advocate Mr. Choksi would request to allow the present application. SUBMISSIONS OF RESPONDENT NO.1-PLAINTIFF
7. Per contra, learned Advocate Mr. Nangesh would submit that there is no error, much less any gross error of law, committed by the Trial Court while exhibiting the documents which are produced on record by the plaintiff. It is submitted that the Trial Court has correctly observed the provisions of law and thereafter received the documents in evidence by giving them exhibit.
7.1. Learned Advocate Mr. Nangesh would submit that the objection which has been raised by defendant No.1 is misconceived and as such, both these documents which are produced on record are only for collateral purpose and the same can be received in evidence as per the proviso to Section-49 of the Act, 1908.
7.2. Learned Advocate Mr. Nangesh would further submit that this Court cannot interfere under Article 227 of the Constitution of India because of some error of law committed by the Trial Court, unless it is pointed out to this Court that such error is so gross in nature which required to be interfered with by this Court.
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NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined 7.3. Learned Advocate Mr. Nangesh would further submit that during the pendency of the present writ application, the suit has already progressed and reached the stage of final argument. This Court may not disturb the impugned order and as such, the Trial Court may be directed to adjudicate and decide the suit as expeditiously as possible. 7.4. Making the above submissions, learned Advocate Mr. Nangesh would request not to interfere with it. POINT FOR DETERMINATION
8. Whether the document which requires compulsory registration but not registered and even not duly stamped could have been received in evidence by the Trial Court by exhibiting it for a collateral purpose?
ANALYSIS
9. The facts which are narrated hereinabove are not in dispute.
The suit is for declaration and injunction whereby the plaintiff is seeking declaration in relation to the suit land situated at Survey No. 198 at Village Bapla, Taluka Dhanera, District Banaskantha, whereby the plaintiff challenged the sale deed dated 30th December, 1998, executed by defendants No. 2 to 4 in favour of defendant No.1, contending, inter alia, that the suit land being undivided ancestral land of the plaintiff and defendants No. 2 to 4, such Page 8 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined execution of the sale deed in favour of defendant No.1 is illegal.
10. It is further averred in the plaint that defendant No.2 has executed relinquishment deed dated 10th December, 1993, in favour of the plaintiff in relation to the suit land in question, whereby the plaintiff agreed to take care of herself being her real aunt.
11. Now, in view of the aforesaid facts and circumstances of the present case, when the plaintiff has submitted such relinquishment deed at Mark 67/2, which was ordered to be exhibited by the Trial Court, the question would arise as to whether such document requires compulsory registration under Section-17 of the Act, 1908 and so also whether it can be received in evidence for a collateral purpose as has been done by the Trial Court.
11.1. There is no cavil on the point that any instrument whereby any right, title or interest is created in favour of the parties as regards to immovable property having worth more than Rs.100/-, requires compulsory registration under Section-17 of the Act, 1908. A bare reading of the document produced at Mark 67/2 would definitely show that defendant No.2 at given point of time on 10th December, 1993, relinquished her right in favour of the plaintiff in relation to suit land itself. Page 9 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025
NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined 11.2. Thus, in view of the aforesaid, when any document which is required to be registered having not registered, it cannot be received in evidence, which can be confirmed by reading the following provisions of law:
"The Registration Act, 1908 Section-49. Effect of non-registration of documents required to be registered.
- No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882),] [Added by Act 21 of 1929, Section 10.] to be registered shall
(a)affect any immovable property comprised therein, or
(b)confer any power to adopt, or
(c)be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) 2[ ,3*** or as evidence of any collateral transaction not required to be effected by registered instrument.]"
"The Stamp Act, 1899 Section-35. Instruments not duly stamped inadmissible in evidence, etc.
-No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such Page 10 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined instrument is duly stamped : Provided that--
(a) any such instrument 1[shall] be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of any instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure 1898 (V of 1898);
(e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act."
"Gujarat Stamp Act, 1958 "34. Instrument not duly stamped in admissible in evidence etc :-
No instrument chargeable with duty [(not being an instrument referred to in sub-section (1) of section 32A ),] shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, Page 11 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined registered or authenticated by any such person or by any public officer unless such instrument is duly stamped: Provided that -
(a) any such instrument not being an instrument chargeable with a duty of twenty naye paise and less shall, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, [together with a penalty as per clause (b) of sub-section (1) of section 39 of the Act.]
(b) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
(c) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (V of 1898);
(d) nothing herein contained shall prevent the admission of any instrument in any Court, when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act."
(emphasis supplied)
12. The conjoint reading of the aforesaid provisions would clearly indicate that the document which is sought to be produced on record, having not been registered and so also duly stamped, it cannot be admitted in evidence.
13. The Trial Court have relied upon the proviso to Section-49 of Page 12 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined the Act, 1908, thereby is of the opinion that such document can be received in evidence for collateral purposes. As per the proviso to Section-49 of the Act, 1908 if any document which is to be treated as evidence for any collateral transaction which is not going to be effected by registered instrument, then such evidence, though it requires compulsory registration under law, can be received in evidence.
14. The Trial Court appears to have lost sight of the fact that the suit is in relation to the land which is mentioned in the relinquishment deed itself whereby defendant No.2 alleged to have relinquished her right over suit land in favour of plaintiff which is the subject matter of the suit. It is not in dispute that such deed requires to be duly stamped and registration as transferring right from immovable property. Further, the plaintiff is seeking declaration in relation to the very same suit land, questioning the sale deed executed by defendant Nos. 2 to 4 in favour of defendant No.1. Therefore, the document produced at Mark 67/2 i.e. the relinquishment deed, which is relied upon by the plaintiff as evidence, is not for any collateral transaction, but it would have a direct bearing on the issue germane in the suit. According to my view, the relinquishment deed, which is required to be Page 13 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined compulsorily registered, having not been registered, cannot be received in evidence by the Trial Court in the present suit proceedings, which touches the right, title, and interest of the plaintiff claiming such right by placing reliance upon such document, which requires compulsory registration.
15. At this stage, it would be apt to refer few observations made by the Honourable Apex Court in relation to the issue germane in the present matter. In the case of Sita Ram Bhama (supra), it was held as follows:
"14. After holding the said documents as inadmissible, this Court further proceeded to consider the question as to whether the documents B-21 and B-22 can be used for any collateral purpose. In the above context, the Court accepted the submission of the appellant that the documents can be looked into for collateral purpose provided the appellant-defendant to pay the stamp duty together with penalty and get the document impounded. In paras 16 and 17, the following has been laid down:
"16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of the Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy v. Chinnappareddigari Venkata Reddy [Chinnappareddigari Peda Mutyala Reddy v. Chinnappareddigari Venkata Reddy, 1967 SCC OnLine AP 4 : AIR 1969 AP 242] has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for Page 14 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance.
17. Accordingly, the civil appeal is partly allowed holding that Exts. B-21 and B-22 are admissible in evidence for collateral purpose subject to payment of stamp duty, penalty, proof and relevancy."
(emphasis supplied)
16. Likewise, considering above referred provisions of Stamp Acts also, if deed/document is not duly stamped then also it cannot be admitted in evidence. There is nothing on record to show that relinquishment deed was duly stamped as alleged deed executed only on Rs. 50/ stamp. It is now also well settled law that unduly stamped document cannot be received in evidence.
17. It would be apt to refer and to rely upon decision of Honourable Apex Court in a case of Avinash Kumar Chauhan V/s Vijay Krishna Mishra reported in (2009) 2 SCC 532 , wherein held thus:
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NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined "24. In this case, by reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible. (See Pandey Oraon Vs. Ram Chandler Sahu, 1992 Supp2 SCC 77 and Amrendra Pratap Singh Vs. Tej Bahadur Prajapati and others, 2004 10 SCC 65) The Registration Act, 1908 provides for such a contingency in terms of the proviso appended to section 49 thereof, which reads as under:-
"49. Effect of non-registration of documents required to be registered. No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument."
25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes.
26. The view we have taken finds support from the decision of the Privy Council in Ram Rattan Vs. Parmananad, 1946 AIR(PC) 51, wherein it was held:-
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NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined "That the words 'for any purpose' in section 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms."
The said decision has been followed in a large number of decisions by the said Court.
27. In Bhaskarabhotla Padmanabhaiah and others Vs. B. Lakshminarayana and others ,1962 AIR(AP) 132, it has been held:- (AIR p.134, para 9) "9. In this case, the learned Subordinate Judge has observed that what the plaintiff was trying to prove was not the division in status but to show that the property was divided under the partition deed. In any case, the fact that the document is inadmissible due to want of being stamped is clear. For, in Ram Rattan Vs. Parmanand, 1946 AIR(PC) 51, their Lordships of the Privy Council held that the words 'for any purpose' in S. 35 of the Stamp Act should be given their natural meaning and effect and would include a collateral purpose and that an unstamped partition deed cannot be used to corroborate the oral evidence for the purpose of determining even the factum of partition as distinct from its terms."
It was furthermore held:- (Bhaskarabhotla case, AIR p.134, para 10) "10. In the result, I agree with the learned Munsif-Magistrate that the document is 'an instrument of partition' under Sec. 2(15) of the Indian Stamp Act and it is not admissible in evidence because it is not stamped. But, I further held that if the document becomes duly stamped, then it would be admissible to evidence to prove the division in status but not the terms of the partition." Page 17 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025
NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined
28. In Sanjeeva Reddi Vs. Johanputra Reddi, 1972 AIR(AP) 373, it has been held:-
"9. While considering the scope of section 35 of the Indian Stamp Act we cannot bring in the effect of non-registration of a document under section 49 of the Indian Registration Act. Section 17 of the Indian Registration Act deals with documents, the registration of which is compulsory and section 49 is concerned only with the effect of such non-registration of the documents which require to be registered by section 17 or by any provision of the Transfer of Property Act. The effect of non-registration is that such a document shall not affect any immovable property covered by it or confer any power to adopt and it cannot be received as evidence of any transaction affecting such property or conferring such power. But there is no prohibition under section 49 to receive such a document which requires registration to be used for a collateral purpose i.e. for an entirely different and independent matter. There is a total and absolute bar as to the admission of an unstamped instrument whatever be the nature of the purpose or however foreign or independent the purpose may be for which it is sought to be used, unless there is compliance with the requirements of the provisos to section 35. In other words if an unstamped instrument is admitted for a collateral purposes. It would amount to receiving such a document in evidence for a purpose which section 35 prohibits. There is nothing in the case of B. Rangaiah Vs. B. Rangaswamy,1970 2 AWR 181, which supports the contention of the petitioner. That was a case as pointed out by Kuppuswami, J., where there were two instruments though con-' tained in one document one a settlement in favour of the 4th defendant therein and the other a will. It was therefore held that part of the instrument which constitutes a will did not require any stamp and will be admissible in evidence for proving the bequest contained therein. It was for that reason that the learned Judge said that section 35 of the Stamp Act has no application Page 18 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined to a case where one of the separate instruments relating to one such matters would not at all be chargeable under the Act as in the case before him."
29. In T. Bhaskar Rao Vs. T. Gabriel and others, 1981 AIR(AP) 175, it has been held:-
"5. Section 35 of the Stamp Act mandates that an instrument chargeable with duty should be stamped so as to make it admissible in evidence. Proviso A to section 35 of the Stamp Act enables a document to be received in evidence on payment of stamp duty and penalty if the document is chargeable, but not stamped or on payment of deficit duty and penalty, if it is insufficiently stamped. The bar against the admissibility of an instrument which is chargeable with stamp duty and is not stamped is of course absolute whatever be the nature of the purpose, be it for main or collateral purpose, unless the requirements of proviso (A) to section 35 are complied with. It follows that if the requirements of proviso (A) to section 35 are satisfied, then the document which is chargeable with duty, but not stamped, can be received in evidence."
It was further held: (Gabriel Case, AIR p. 177, para 7) "7. It is now well settled that there is no prohibition under section 49 of the Registration Act, to receive an unregistered document in evidence for collateral purpose. But the document so tendered should be duly stamped or should comply with the requirements of section 35 of the Stamp Act, if not stamped, as a document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under section 35 of the Stamp Act." (See also Firm Chuni Lal Tukki Mal Vs. Firm Mukat Lai Ram Chanda and others,1965 AIR(All) 164 and Chandra Sekhar Misra Vs. Gobinda Chandra Das, 1966 AIR(Ori) 18.) (emphasised supplied) Page 19 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined
18. The conjoint reading of aforesaid would lead to only conclusion that relinquishment deed produced at Mark 67/2 is not at all admissible in evidence as neither considered it for collateral purpose nor registered and so also not duly stamped. Thus, according to my view, the document produced at Mark 67/2 i.e. the relinquishment deed, could not have been received in evidence and accordingly could not have been exhibited. To that extent, the impugned order passed by the Trial Court requires interference by this Court, as the error committed by the Trial Court is a jurisdictional error which requires to be corrected by this Court exercising its power under Article 227 of the Constitution of India.
19. So far as other document which was produced at Mark 67/1 i.e. the agreement executed between the plaintiff and his brother dated 01.12.1988 is concerned, it is neither in relation to the suit land nor does it create any right in favour of the plaintiff by virtue of the very agreement. The plain reading of the agreement would indicate that something had happened in the past for the land situated at Survey No. 146/2 at Village Bapla, Taluka Dhanera, District Banaskantha, the same was reduced to writing. Even such type of document does not requires to be compulsorily registration and so also not a case of defendant No.1 that it Page 20 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined was not duly stamped.
20. The judgment which has been placed reliance upon by learned Advocate Mr. Choksi, Sita Ram Bhama (supra), wherein it referred to a previous decision of the Honourable Supreme Court of India in the case of Kale and others V/s. Deputy Director of Consolidation and others reported in (1976) 3 SCC 119, where it held that in a case where a document is merely family arrangement, then it does not require any compulsory registration. The relevant passage referred in the Sita Ram Bhama (supra) read thus:
"11. Pertaining to family settlement, a memorandum of family settlement and its necessity of registration, the law has been settled by this Court. It is sufficient to refer to the judgment of this Court in Kale v. Director of Consolidation [Kale v. Director of Consolidation, (1976) 3 SCC 119] . The propositions with regard to family settlement, its registration were laid down by this Court in paras 10 and 11: (SCC pp. 126-27) "10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence; (3) The family arrangement may be even oral in which case no registration is necessary;Page 21 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025
NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.
11. The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently."
(emphasis in original) Page 22 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined
21. According to my view, the document produced at Mark 67/1 does not require any registration as it does not create any right, title or interest in favour of the plaintiff by virtue of such agreement/document itself. So, to that extent, I do not find any gross error committed by the Trial Court when it allowed the document produced at Mark 67/1 to be received in evidence thereby given exhibit.
CONCLUSION
22. In view of the foregoing discussions and reasons, I am of the view that the Trial Court could not have ordered to exhibit the relinquishment deed produced at Mark 67/2, which is in complete misreading of the proviso to Section-49 of the Act, 1908 and so also overlooked S. 35 of Indian Registration Act, 1899 read with S. 34 of the Gujarat Stamp Act, 1958.
23. Having reached the aforesaid finding, the impugned order requires to be interfered with partially, to the extent that the document produced at Mark 67/2 i.e. the relinquishment deed, could not have been received in evidence being not admitted in law and consequently could not have been exhibited.
24. In view of the aforesaid, the impugned order dated 25th April, 2013, passed by the Principal Civil Judge, Dhanera below Exhibit 184 in Regular Civil Suit No. 31 of 1999 is Page 23 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025 NEUTRAL CITATION C/SCA/9387/2013 JUDGMENT DATED: 13/08/2025 undefined disturbed, thereby partially quashed and set aside to the aforesaid extent it allowed Mark 67/2 to be received in evidence and given exhibit. If the Trial Court has already given exhibit to Mark 67/2, it should de-exhibit it i.e. Relinquishment deed is order not to be exhibited.
25. The rest of the impugned order passed by the Trial Court is not disturbed, thereby the documents produced at Mark 4/1, Mark 4/2 and Mark 67/1, can be received in evidence having exhibited.
26. In view of the aforesaid conclusion, the present writ application is hereby partly allowed to the aforesaid extent only. Rule is made absolute to the aforesaid extent only. No order as to costs. Interim relief, if any, stands vacated forthwith. As the suit is of the year 1999, if the parties to the suit extend their cooperation and support, the Trial Court may expedite the hearing and adjudication of the suit accordingly.
(MAULIK J.SHELAT,J) Nilesh Page 24 of 24 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 22:14:50 IST 2025