Advocates:
['MA SIDDIQUI', '', 'SIKANDER KHAN', 'NA SIDDIQUI']

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

: O R D E R :

S.B. CIVIL WRIT PETITION NO.3643/2014

Mahendra Singh

vs.

Dhirender Singh & Ors.

Date of Order

::

04^th December, 2014

PRESENT

HON'BLE MR. JUSTICE ARUN BHANSALI

Mr. Sikander Khan, for the petitioner.

-----

BY THE COURT:

This writ petition under Article 226 and 227 of the

Constitution of India has been filed by the petitioner aggrieved

against order dated 20.03.2014 passed by the trial court,

whereby, the application filed by defendant No. 2 under Order

XIII, Rule 3 read with Section 151 CPC, Section 17 of the

Registration Act, 1908 ('Registration Act') and the Rajasthan

Stamp Act, 1998 ('Stamp Act') has been allowed and the

document, which has been termed as Sahamati Patra has been

rejected as inadmissible in evidence.

The petitioner-plaintiff filed a suit for cancellation of sale

deed and permanent injunction against transferor his brother

Dhirendra Singh and transferee Gopal; in the affidavit in

evidence filed by the plaintiff, a document titled Sahamati Patra

was marked as Exhibit-1.

An application was filed by defendant No. 2 – Gopal, inter

alia, raising objection that the document was not properly

stamped and registered and, therefore, the same cannot be

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admitted in evidence and the same be ordered to be deleted

from the evidence affidavit and be ordered to be put in Part-D.

A reply was filed by the plaintiff alleging that the

application has been filed for prolonging the litigation; the

document was not a deed of partition but was family

arrangement; the parties had took possession of their respective

shares as per agreement even before execution of the

document, whereafter their father, as a memorandum of oral

agreement, executed the same as family arrangement,

registration whereof was not necessary; the nature of the

document cannot be determined at this stage and the same

could only be determined after the evidence was over.

The trial court after hearing the parties and on considering

various clauses of the document, came to the conclusion that it

cannot be said that the document was family arrangement only

and/or the same was memorandum of settlement and, therefore,

it cannot be said that no stamp duty was leviable; if the

document was a partition deed, the same should bear stamp

according to law and the same was unstamped and in view of

the provisions of Section 39 of the Stamp Act, the insufficiently

stamped document is not admissible in evidence for any purpose

and, therefore, the document was inadmissible in evidence; the

trial court further came to the conclusion that in terms of Section

17(1)(b) of the Registration Act, the registration of the document

was also necessary and under Section 49 of the Registration Act

also the document was inadmissible.

It is submitted by learned counsel for the petitioner that

the trial court committed grave error of law in coming to the

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conclusion that the document was unstamped and unregistered

and, therefore, the same was not admissible in evidence; it was

submitted that the nature of document is such that neither any

stamp duty is payable nor the registration was compulsory and,

therefore, the provisions of Section 39 of the Stamp Act and/or

Section 49 of the Registration Act are not attracted and,

consequently, the order passed by the trial court deserves to be

quashed and set aside.

I have heard learned counsel for the petitioner and have

perused the copy of the document, which has been placed on

record of this writ petition by learned counsel for the petitioner.

A bare look at the document reveals that the same bears

signatures of father Inder Singh and the four brothers; further,

the document starts with the narration that “the executants

agree regarding the partition of the property as under” and

whereafter exh