Rajasthan High Court - Jodhpur
Om Dutt @ Om Prakash vs Ganpat Lal & Ors on 21 August, 2009
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
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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 3 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 4 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 5 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 8 determine 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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