Rajasthan High Court - Jaipur
Harshvardhan Singh vs Ranveer Singh And Ors. on 20 November, 1996
Equivalent citations: AIR1997RAJ211, 1997(1)WLC47
ORDER Shiv Kumar Sharma, J.
1. Put cauli flower in a wooden box and affix a slip of 'ROSES' over it. Colour of cauli flower shall not turn into 'pink' 'Cauli flower' shall remain 'cauli flower'. No matter you have kept it in a box of roses. Similarly if a document creates right in the property then unless it is registered, it cannot be taken into evidence. No matter it has been reduced into writing in the name and style of 'family settlement'.
2. This interesting situation has arisen in this revision petition, which has been filed against the order dated 26-7-1996 passed by the Additional District Judge No. 4 Jaipur City whereby the alleged family settlement was taken on record and objections raised by the petitioner regarding admisibility of the documents were rejected.
3. In a suit for partition filed by the plaintiff-petitioner, a document allegedly stated to be a family settlement, copy of which was available in the file of Jagir Commissioner, was summoned by the trial Court. At the time of cross-examination of Dr. Hari Singh, defendant-non-petitioner No. 14, it was contended by the counsel for the other defendant-non-petitioners that Dr. Hari Singh produced the said copy of the family settlement before the Jagir Commissioner and as such he could exhibit the said document. Dr. Hari Singh, the defendant-non-petitioner No. 14 and the plaintiff-petitioner objected to it and filed two separate applications stating therein that alleged family settlement being unstamped and unregistered could not have been admitted in evidence. It was also stated that alleged document was a copy of the original and unless application for seeking permission for adducing secondary evidence is filed it could not have been permitted to be exhibited.
4. The trial court dismissed both the applications by the impugned order which has been assailed in this revision.
5. I have given my anxious and thoughtful consideration to the arguments advanced by the learned counsel for the parties nd perused the impugned order as well as copy of the alleged family settlement.
6. Before adverting to the legal aspect of the case, it is necessary \o examine the nature of the document stated to be a 'family settlement'. A look at the document clearly demonstrates that it creates right in the property. In column number one it has been stated that the first party Rawat Surendra Singh shall retain possession of certain properties of Schedule A. as absolute and exclusive owner whereas second party Thakur Hari Singh and third party Mangi Mohan Kanwarji shall have no claim on these properties. Similarly transfer of interest in the property has been made in column No. two. As per column No. 5 Mahal of Thikana Nidhar will continue to be in the possession of the third party till her life and thereal'ter reverted back to Thikana and the first party relinquished all title over them.
7. Mr. Vidhya Bhushan Sharma learned counsel for the non-petitioner No. 1, 12 and 17 vehemently contended raising preliminary objections that the plaintiff obtained benefit of the said document before the Jagir Commissioner where it was got exhibited and Dr. Hari Singh did not make any objection regarding its inadmissibility. When the document was exhibited in the court of Jagir Commissioner, no such objection is tenable now. It has also been contended that no stamp is needed for the execution of family settlement and it is not compulsorily registrable. There is no jurisdictional error in the impugned order and it cannot be interfered with in revision.
8. Mr. D.D. Patodia learned counsel for the petitioner canvassed that revision is maintainable.
The alleged family settlement being unstamped and unregistered, could not have been admitted in evidence. The secondary evidence could not have been produced unless prior permission of the court is sought. The impugned order suffers from grave jurisdictional error as such deserves to be set aside.
9. The Supreme Court had occasion to draw a distinction 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 Kale v. Deputy Director of Consolidation . AIR 1976 SC 807) it has been observed that "the family arrangement may be even oral in which case no registration is necessary the registration would be necessary only if the terms of the family arrangement are reducing 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 on for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights of immovable property and is, therefore, not compulsorily registrable."
10. The alleged family settlement, in the case before me is not a memorandum, prepared after the family arrangement had already been made but, as already stated above, it creates rights in immovable property.
11. Section 17 of the Indian Registration Act, 1908 enumerated the documents requiring registration. Section 49 of the Indian Registration Act provides that no document required by Section 17 or by any provision of the Transfer of Property Act 1882 to be registered shall:
(a) affect any immovable property comprised therein,
(b) .....
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
12. In view of the law laid down by the Apex Court in Kale's case (supra) I have no option but to observe that alleged family settlement is compulsorily registrable document and it ought to have been executed on proper stamps.
13. Dealing with another argument of Mr. V.B. Sharma, the learned counsel that copy of the document was already exhibited in the court of Jagir Commissioner and no body objected its inadmissibility, it can be said that principles of estoppel are not applicable in such a situation. As is rightly held in Champa Lal v. Panna Lal 1951 Raj LW 258 by this court that the contents of a document which is required to be executed on stamp, if not stamped or is insufficiently stamped cannot be proved by secondary evidence. Section 36 of the Stamp Act is applicable only when an unstamped or insufficiently stamped instrument has to be admitted in evidence but where the instrument itself is not produced, the section has no application to the secondary evidence.
14. In the instant case also original document is not before the trial court and withouj property appreciating the legal position, the trial court permitted the secondary evidence to be exhibited. This court in Nihal Singh v. Singh Ram 1989 (1) Raj LR page 384 set aside in revision, the trial court's order holding a document as admissible in evidence for collateral purpose. It was held that an unstamped and unregistered document required under law to be stamped and registered cannot be admitted in evidence even for collateral purposes.
15. It is thus clear that trial court has acted illegally in exercise of its jurisdiction in allowing the alleged family settlement to be taken on record and in rejecting the application of the plaintiff petitioner and defendant No. 14. If the impugned order is not set aside, it would occasion failure of justice.
16. In the result the revision petition is allowed and the order dated 26-7-1996 of the trial court is set aside. No costs.