Rajasthan High Court - Jaipur
Nasiruddin S/O Late Shri Sultanuddin vs Mohammad Yakub S/O Late Shri ... on 6 February, 2019
Author: Veerendr Singh Siradhana
Bench: Veerendr Singh Siradhana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 948/2019
Nasiruddin S/o Late Shri Sultanuddin, Aged About 54 Years, B/c
Musalman R/o H. No. 2929, Mohalla Chabuksavaran, Rasta Foota
Khurra, Chaukri Ramchandra Ji, Jaipur (Raj.)
----Petitioner
Versus
Mohammad Yakub S/o Late Shri Fakhuriddin Ali, B/c Musalman,
R/o H. No. 3857, Kumharon Ki Nadi, Rasta Foota Khurra, Chaukri
Ramchandra Ji, Jaipur (Raj.)
----Respondent
For Petitioner(s) : Mr. Kapil Bardhar For Respondent(s) :
HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Order 06/02/2019 By order dated 22nd November, 2018, objections pleaded by the petitioner-defendant as to document dated 11 th January, 2012 and 17th January, 2013, for not being sufficiently stamp in terms Section 33 and 35 of the Stamp Act, 1899, were declined; of which the petitioner-defendant is aggrieved of.
Learned counsel for the petitioner referring to contents of the documents dated 11th January, 2012 and 17th January, 2013, asserted that these documents are not admissible in evidence in the face of provisions of Section 33 and 35 of the Stamp Act, 1899, and therefore, were required to be impounded.
Referring to opinion of the Apex Court of the land in the case of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra: AIR 2009 (Downloaded on 06/06/2021 at 12:38:44 AM) (2 of 4) [CW-948/2019] Supreme Court 1489 and Yellapu Uma Maheshwari and Another Vs. Buddha Jagadheeswararao and Ors.: (2015) 16 SCC 787 so also opinion of the Calcutta High Court in the case of Efcalon Tie Up Private Limited Vs. West Bengal Financial Corporation; learned counsel would contend that the documents, in fact, pleaded relinquishment of rights in respect of immovable property, and therefore, were required to be registered under the Registration Act, 1908.
The Court below considering the objections of the counsel for the respondent-plaintiff so also on a critical examination of the opinions referred to hereinabove, declined the application of the petitioner.
Heard and considered.
Indisputably, the suit has been filed on the basis of registered mortgage deed dated 4th January, 2012; Even, the cause of action is on the basis of the mortgage deed, undeniably a registered document. The documents in reference to which objections were pleaded are subsequent to the mortgage deed. And both these documents are in the nature of Memorandum of Understanding contemplatiing explanation of the time period of the mortgage deed dated 4th January, 2012. Subsequent, documents objected to on the plea of the documents being unregistered; but fact remains that these documents did not create new right(s). Hence, the impugned order made by the Court below, declining the prayer of the petitioner-defendant, suffers with no illegality muchless material illegality so as to warrant any interference by this Court in exercise of writ jurisdiction under Article 227 of the Constitution of India. (Downloaded on 06/06/2021 at 12:38:44 AM)
(3 of 4) [CW-948/2019] The opinions referred to and relied upon would reflect that the declaration of law of the Apex Court in this reference, was entirely in a different factual matrix. In the case of Efcalon Tie Up Private Limited (supra), the entire claim was staked on the basis of MOU, which was an unregistered document.
In the case of Avinash Kumar Chauhan (supra), the opinion was expressed by the Apex Court of the land in view of the undisputed fact of the matter, wherein a member of the Scheduled Tribe intended to transfer a house and land admeasuring 10150 sq. ft. situated at Village Gariyaband, District Raipur. A sum of Rs. 2,70,000/- fixed by way of consideration towards the aforementioned transfer was paid to the respondent by the appellant. Possession of the said property had also been delivered. Thus, the factual matrix of the case at hand is entirely different and distinguishable.
Similarly, in the case of Yellapu Uma Maheshwari (supra), the opinion of the Supreme Court was specifically in a factual matrix, wherein certain immovable properties were bequeathed by registered will by one J in his lifetime and later on suit for partition of properties was filed in the year 2004. Whereas, in the instant case at hand, no new rights have been created by the documents objected to on the plea of the documents being not registered.
For the reasons aforesaid and in the factual matrix of the case at hand so also for the reasonings recorded by the Court below while declining the application of the petitioner-defendant; the order impugned cannot be construed to be suffering with any material illegality so as to warrant any interference by this court in exercise of writ jurisdiction under Article 227 of the Constitution of India.
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(4 of 4) [CW-948/2019] In the result, writ application fails, and is, hereby dismissed.
(VEERENDR SINGH SIRADHANA),J M.Meena/202 (Downloaded on 06/06/2021 at 12:38:44 AM) Powered by TCPDF (www.tcpdf.org)