Heard learned counsel for the parties.

Admissibility of a document dated 10.7.1997, styled or titled as memorandum of partition, it being unregistered and unstamped, is the core issue to be addressed in this writ petition.

Brief relevant facts leading to filing of this writ petition are that the plaintiff-petitioner filed a suit for possession, cancellation of sale deed and permanent injunction against the defendant-respondents with averments, interalia, that the property in dispute (a shop) alongwith some other property came in the share of her father-in-law-Shri Nand Kishore as a result of a family settlement dated 10.7.1997 effected between him and his son Shri Radhe Shyam (husband of the petitioner) and Shri Nand Kishore executed a registered Will dated 28.9.2004 in her favour and after the death of Shri Nand Kishore on 8.10.2004, she has become sole owner of the shop. It was further averred that defendant-respondent-Shri Arvind Kumar without any legal right or title executed a registered sale deed dated 18.3.2000 in favour of defendant-respondent-Smt. Kamla Devi and she on the strength of the said sale deed has illegally entered into possession of the property in dispute. In support of her claim made in the suit, petitioner relied upon the document in question i.e. alleged family settlement dated 10.7.1997. The respondent-Smt. Kamla Devi in her written statement not only denied execution of said document, but also raised an objection that it being unregistered and unstamped is inadmissible in evidence. When the petitioner during the course of her examination-in-chief wanted to exhibit the said deed, objection was raised on behalf of the respondent and learned trial Court by way of impugned order dated 5.9.2011 came to a conclusion that deed dated 10.7.1997 is a partition deed whereby the property mentioned in it was partitioned and thus it required compulsory registration and for want of registration it is not admissible in evidence. It is this order passed in Civil Suit No.47/2005 pending in the Court of Additional District Judge No.1, Sikar, is subject matter of challenge in this civil writ petition filed under Article 226 readwith Article 227 of the Constitution of India. It is to be noted that no finding was given by the learned trial Court about the admissibility of the document for want of stamp duty. The defendant-respondent claimed before the Court below that this document is a partition deed and not merely a memorandum of family settlement and for want of proper stamp duty and registration is inadmissible in evidence. According to her, from the language of the document, it clearly emerged that it is not mere record of a past event but partition was effected for the first time through this document itself and as per the provisions of the Stamp Act and the Registration Act, the document ought not only to be properly stamped but registered as well and as the document fell short of both these mandatory requirements, it was inadmissible in evidence.

It was urged by the learned counsel for the petitioner that trial Court has on a misconstruction of the terms of the document wrongly construed it to be an instrument of partition requiring compulsory registration under Section 17 of the Registration Act and, therefore, inadmissible in evidence for want of registration as per the Section 49 of the Act. It was submitted that recitals of the document manifest that there was oral partition between the parties to the document referred in it and thereafter it was executed only as a memorandum thereof. It was also submitted that it is well settled legal position that oral partition even of immovable property can be effected and later on it can be reduced or recorded in writing in the form of mere memorandum thereof. It was also submitted that although a label or nomenclature given to a document is not a real factor to determine the nature of the same but the test is of what was the real intention of the parties to execute a