[2024:RJ-JP:29329]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 144/2005
Deep Chand (since deceased) through LR’s:-
(1) Smt. Shanti Devi Jain W/o Late Shri Deep Chand Ji Jain,
aged about 65 years, r/o village & Post Dujod, Tehsil and District
Sikar (wife)
2. Smt. Premlata Jain W/o shri Abhay Kumar Jain D/o Late Shri
Deep Chand Ji Jain, aged about 59 years, r/o village & post
Kochhor, District Sikar (Raj.). (daughter).
3. Naresh Kumar jain S/o Late Shri Deep Chand Ji Jain, aged
about 55 years, R/o village & Post Dujod, Tehsil and District
Sikar (son).
4. Mahendra Kumar Jain s/o Late Shri Deep Chand Ji Jain, aged
about 51 years, r/o Flat No.E-301, Oxford View, 32/36, D. H.
Road, Kolkata-700008 (son)
5. Smt. Manju Jain w/o Shri Nirmal Kumar Jain D/o Late Shri
Deep Chand Ji Jain, aged about 47 years, R/o village & post
Maroth, Tehsil Nawa, District Nagour, Rajasthan (daughter).
6. Smt. Suman Jain W/o Shri Naresh Jain D/o Late Shri Deep
Chand Ji Jain, aged about 41 years, r/o village & post Kochhor,
District Sikar (daughter)
----Petitioners/Defendants
Versus
1. Shri Laxmi Narain Jain (since deceased) through his LR’s:-
1/1. Shri Surendra Kumar Jain S/o Late Shri Laxmi Narain Jain,
r/o village & Post Dujod, Tehsil and District Sikar.
…….Respondent-plaintiff
2. Addl. District Judge (Fast Track) No. 2, Sikar.
----Respondent
For Petitioner(s) : Mr. Arvind Gupta
For Respondent(s) : Mr. Jitendra Mishra for
Mr. Ajeet Bhandari, Sr. Advocate
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
12/07/2024
REPORTABLE
1. In the instant writ petition filed under Article 227 of the
Constitution of India by petitioner-defendant, interim order dated
15.10.2004 passed in Civil Suit No.14/2004 titled as Laxmi Narain
Vs. Deep Chand Jain, by the Additional District Judge (Fast Track)
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No.2, Sikar, has been challenged whereby and whereunder the
objection of petitioner-defendant in respect of not receiving the
document of deed of partition dated 01.11.1958 in plaintiff’s
evidence and to delete the exhibit from that document, has been
rejected and the document has been held to be admissible in
evidence.
2. From perusal of the record, it transpires that at the time of
issuance of notice to the respondent-plaintiff, further proceedings
of the present civil suit was stayed. Notice was served upon the
plaintiff and advocate put in appearance on his behalf, however
thereafter, during the course of this writ petition, sole respondent-
plaintiff passed away and his son Surendra Kumar Jain was
allowed to be substituted as respondent No.1/1 vide order dated
09.12.2013. The counsel appearing for respondent-plaintiff asked
time to seek instructions from respondent No.1/1 but later on, he
disclosed that he did not receive any instructions. In that view, the
Coordinate Bench of this Court, vide orders dated 08.09.2014 and
03.11.2014, directed the Office to inform the respondent No.1/1
about this writ petition. As per Office report, the information to
the respondent No.1/1 has been given, however, he has not cared
to put in appearance.
3. Heard learned counsel for petitioners-defendants and
perused the material available on record.
4. It appears from the record that the respondent-plaintiff-
Laxmi Narain Jain filed a civil suit for partition and permanent
injunction in respect of an immovable property, situated at Sikar,
stating inter alia that the plaintiff and the defendant are two sons
of Chhaganlal Jain and his share in immovable property is liable to
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be divided equally between both of them. It was pleaded by the
plaintiff that through a document dated 01.11.1958, both parties
had agreed to divide the share of their father Chhaganlal Jain
equally, however since the defendant refused to divide the
property, therefore, the suit has to be instituted.
5. It appears that the petitioner-defendant submitted written
submissions and denied the document of partition dated
01.11.1958 as also disputed, admissibility of such document in
evidence, being unregistered. According to the defendant, this
document of partition requires essential registration in view of
Section 17 of the Indian Registration Act, 1908 (for short “the Act
of 1908”).
6. It appears that issues were framed and in the evidence of
plaintiff, the document of partition deed dated 01.11.1958 was
exhibited.
7. At this juncture, the petitioner-defendant moved an
application dated 13.10.2004 under order 13 Rule 3 r/w Order 18
(4) (1) CPC, raising an objection to delete the document of
partition from exhibit and to hold the document as inadmissible in
evidence, on the ground that the document is not registered,
being a deed of partition, the same is required to be registered
under Section 17 of the Indian Registration Act, 1908. The said
application was replied by the respondent-plaintiff on the same
day, it means on 13.10.2004, stating inter alia that the document
of partition is a memorandum of partition and is a family
settlement between the family members, which is not required to
be registered, hence, the provision of Section 17 of the Act of
1908 does not apply to this document. However, the objection of
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admissibility of document raised by the defendant may be
considered at the time of final hearing and deciding the suit.
8. The Trial Court, vide order impugned, considered the issue of
admissibility of the document of partition and reached to the
conclusion that the document is in form of a family settlement, as
much as a memorandum of partition, hence, does not require any
registration, as such held that the document dated 01.11.1958 is
admissible in evidence and accordingly, the application filed by the
defendant was dismissed.
9. The contention of learned counsel for the petitioner-
defendant is that from bare perusal of the document of partition
dated 01.11.1958, which has been placed on record as Annexure-
1, it reveals that observations/ findings recorded by the Trial
Court, holding the document as memorandum of partition, are
perverse. Since this document speaks about parting immovable
properties in half and half share between the plaintiff and
defendant, this document falls within purview of a partition deed
and same requires registration in view of Section 17 of the Act of
1908 but since the document is unregistered, the document
deserves to be declared as inadmissible in evidence and de-
exibhited. His contention is that the Trial Court committed serious
illegality and jurisdictional error in declaring this document as
admissible in evidence and receiving the same in evidence.
10. Heard. Considered.
11. Taking into consideration the mode of objection, raised by
the defendant in respect of non-admissibility of the document of
partition in evidence, fundamentally on account of its non-
registration in view of Section 17 of the Indian Registration Act,
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1908, this Court is of the considered opinion that undisputedly the
document in question is not registered. The objection raised by
the defendant is incurable. It is worthy to note that the objection
is not pertaining to insufficiency of stamp.
12. In the opinion of this Court such mode of objection could be
noted by the Trial Court and subject to such objection, the
document of partition dated 01.11.1958 can be allowed to receive
in evidence and exhibited as much as the issue of admissibility/
non-admissibility of the document can be considered and decided
finally at the time of final hearing and deciding the suit on merits.
Even in the reply filed by the plaintiff to the application of
defendant dated 13.10.2004 (Ann.3), the plaintiff also took the
similar stand that the document be allowed to be exhibited and
the issue of admissibility of this document may be considered at
the time of final decision.
13. In the opinion of this Court, such mode of objection which is
incurable, does not waive even if, the document is allowed to be
exhibited and can be raised at later stage of proceedings,
therefore, it was not incumbent upon the Trial Court to decide
such objection, then and there rather the Trial Court should have
adopted the procedure, by keeping the document on record
marked exhibit and to defer the issue of its admissibility/ non-
admissibility in evidence, for want of registration, to be considered
at the time of final hearing and deciding the suit on merits.
However, the Trial Court proceeded to decide the issue of
admissibility, vide interim order and placing reliance on the
judgment of the Hon’ble Supreme Court in the case of Kale &
Others vs Deputy Director Of Consolidation Ors.[AIR 1976
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[2024:RJ-JP:29329] (6 of 8) [CW-144/2005]
SC 807], held that the document falls within purview of a
memorandum of partition and family settlement, as such its
registration is not required.
14. In the case of R. V. E. Venkatachala Gounder Vs.
Arulmigu Viswesaraswami & V.P. Temple and Anr. [(2003)
8 SCC 752], the Hon’ble Apex Court in para No.20 discussed the
mode of objection in respect of admissibility of documents in
evidence. It would be apropos to reproduce the relevant portion of
the judgment from para No.20, which reads as under:-
“The objections as to admissibility of documents in
evidence may be classified into two classes:- (i) an
objection that the document which is sought to be proved
is itself inadmissible in evidence; and (ii) where the
objection does not dispute the admissibility of the
document in evidence but is directed towards the mode of
proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has
been marked as 'an exhibit', an objection as to its
admissibility is not excluded and is available to be raised
even at a later stage or even in appeal or revision. In the
latter case, the objection should be taken before the
evidence is tendered and once the document has been
admitted in evidence and marked as an exhibit, the
objection that it should not have been admitted in
evidence or that the mode adopted for proving the
document is irregular cannot be allowed to be raised at
any stage subsequent to the marking of the document as
an exhibit. The later proposition is a rule of fair play.”
(Emphasis supplied)
15. In facts of the present case, the objection in respect of the
document in question pertains to non-registration of the document
which falls within first category. Thus, even if the document is
allowed to be exhibited in evidence, the objection of want of
registration does not waive and can be considered by the Trial
Court at the time of deciding the suit finally on merits and at that
time, the objection of admissibility of document in evidence can be
dealt with and decided by the Trial Court.
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16. At this juncture, it would not be out of place to refer an
another Judgment of the Hon’ble Apex Court delivered in the case
of Bipin Shantilal Panchal Vs. State of Gujarat and Anr.
[(2001) 3 SCC 1], wherein the Hon’ble Apex expounded the
modus operandi to be followed by the Trial Court in respect of
receiving documents in evidence, to which the objection about
their admissibility, is raised by the opposite party, during the
course of trial. Dealing with such an issue, the Hon’ble Apex Court
opined and held in para 14 of the judgment as under:-
“When so recast, the practice which can be a better
substitute is this; whenever an objection is raised during
evidence taking stage regarding the admissibility of any
material or item of oral evidence the trial court can make a
note of such objection and mark the objected document
tentatively as an exhibit in the case (or record the
objected part of the oral evidence) subject to such
objections to be decided at the last stage in the final
judgment. If the court finds at the final stage that the
objection so raised is sustainable the judge or magistrate
can keep such evidence excluded from consideration. In
our view there is no illegality in adopting such a course.
(However, we make it clear that if the objection relates to
deficiency of stamp duty of a document the court has to
decide the objection before proceeding further. For all
other objections the procedure suggested above can be
followed.) “ (Emphasis Supplied)
17. This Court is of considered opinion that the proposition of
law, as expounded by the Hon’ble Apex Court in above referred
two judgments, ought to have been followed by the Trial Court in
the present case as well, while dealing with the objection in
respect of receptibility of the document of partition in plaintiff’s
evidence, more particularly, when the objection was pertaining to
its non-registration.
18. In addition to above, the Trial Court failed to consider that
the plaintiff himself in reply to application dated 13.10.2004
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(Ann.3) acceded to this extent that the document in question may
be allowed to be exhibited subject to deciding its admissibility in
evidence at the final stage. Similar is the proposition of law as has
been referred hereinabove but the same was not followed, by this
Court.
19. As a final result, this Court finds that the impugned order
deserves to be quashed to the extent of declaring the document in
question dated 01.11.1958, as admissible in evidence, however,
the document, which has already been exhibited in the plaintiff’s
evidence shall remain on record. The issue of its admissibility in
evidence, taking into consideration the requirement of its
registration or not, in view of Section 17 of the Indian Registration
Act, 1908, shall be considered and decided by the Trial Court at
the time of deciding the suit finally.
20. With aforesaid observations, the instant writ petition stands
disposed of.
21. Interim stay order dated 15.10.2004 comes to an end since
the writ petition itself has been decided.
22. Before parting with the order, it is made clear that this Court
has not given its opinion on merits about admissibility/ non-
admissibility of the document in question dated 01.11.1958 in
evidence and the Trial Court shall be free to consider the objection
of petitioner-defendant afresh in accordance with law.
23. Let copy of this order be sent to the Trial Court forthwith, to
proceed in the suit pending since 2004.
(SUDESH BANSAL),J
TN/269
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