Madhya Pradesh High Court
Rajesh vs Narayan (D) Thr Lrs Manju Bai Mahobe on 3 September, 2015
WP-20862-2013
(RAJESH Vs NARAYAN (D) THR LRS MANJU BAI MAHOBE)
03-09-2015
Mr.Sanjay Sarwate, learned counsel for the petitioners.
Mr.A.D.Mishra, learned counsel for the respondents.
Heard.
In this writ petition under Article 227 of the Constitution of India the petitioners have challenged the validity of the order dated 24.10.2013, by which, the trial Court has held that document dated 26.08.1981 as admissible in evidence in view of section 49 of Registration Act. I have heard learned counsel for the parties and have perused the record. From perusal of the record, it is evident that petitioners/plaintiffs filed a suit seeking the relief of partition. A written statement was filed by the defendants, in which, inter alia it was averred that suit property was subjected to partition by Suratiya in his lifetime on 26.08.1981, and a receipt was executed. By order dated 03.9.2012, the trial Court has held that document dated 26.8.1981 does not require registration and the same is admissible in evidence. Being aggrieved, the petitioners filed a Writ Petition No.17721/2012, which was disposed by a Bench of this Court vide order dated 04.2.2013, in which, it was, inter alia, held that document in question dated 26.8.1981 is a document of partition and compulsorily requires registration and stamp duty. It was also directed by a Bench of this Court that the trial Court shall proceed for permitting the doucment to be admitted in evidence after its registration and payment of stamp duty in accordance with law.
The trial Court by order dated 17.4.2013 referred the document dated 26.8.1991 to Collector of Stamps with a direction to submit his opinion whether or not the document is registrable or impoundable. The Collector vide memo dated 26.8.2013 submitted his finding that the document cannot be -2- registered but the same can be impounded. The petitioner thereafter made an application under section 151 of the Code of Civil Procedure raising an objection with regard to admissibility of the doucment on the ground that the same is not admissible in evidence as it is not registered. The aforesaid objection has been rejected by the trial Court on the ground that the same is admissible in view of section 49 of the Indian Registration Act.
The Supreme Court in the Case of Raghunath and others vs. Kedarnath, AIR 1969 SC 1316 has held that only those documents, which are required to be registered under hte provisons of Transfer of Property Act, fall within the proviso to Section 49 of the Registration Act. The partition deed is required to be registered under the provisions of Registration Act, therefore, proviso to section 49 of Registation Act is not attracted in so far as the partition deed is concerned. The trial Court has passed the impugned order in ignorance of law laid down in Raghunath (supra). The impugned order suffers from an error apparent on the face of record. It is accordingly quashed. The application preferred by petitioner under section 151 of the Code of Civil Procedure is allowed.
Let a copy of this order be sent to the trial Court by FAX. The writ petition is accordingly disposed of. C.C. as per rules.
(ALOK ARADHE) JUDGE