Research › Search › Judgment

Rajasthan High Court · body

2013 DIGILAW 1015 (RAJ)

Hukam Singh Mehta v. LRs. of late Nathu Singh

2013-05-16

VIJAY BISHNOI

body2013
JUDGMENT 1. - By this petition, the petitioner has challenged the order dated 23.10.2008 passed by the Additional District Judge (Fast Track) No.2, Udaipur (for short 'the learned court below' hereinafter) in Civil Original Suit NO.376/2003, whereby the learned court below has decided the Issue No.8 in favour of the respondent and against the petitioner has held that the memorandum of partition deed dated 10.4.2001 is not properly stamped and registered and, therefore, not admissible in evidence. 2. Brief facts, necessary for disposal of this writ petition are that the petitioner-plaintiff filed a suit for specific performance of the contract, possession, permanent injunction and declaration against the defendant/non-petitioners before the learned court below seeking the decree of specific performance of contract and it was also prayed that the sale deed executed by non-petitioner No.1 in favour of the non-petitioner No.2 may be declared void ab initio and the possession over the suit property may be delivered to the petitioner and a decree for permanent injunction was also sought. The non-petitioner No.1 resisted the suit and filed written statement, however he denied the partition between the brothers dated 21.12.2000 and also denied to have executed the deed dated 10.01.2001, whereby it was agreed between the parties for selling out of the suit premises on the consideration of Rs. 12 lacs. The non-petitioner No.2 also filed the written statement and resisted the suit. 3. The learned court below, on the basis of pleadings of the parties, framed as many as 11 issues, out of which the issue no.8 is reproduced hereunder " 8- vk;k oknh o izfroknh la[;k 1 ds e/; fu"ikfnr ifjokfjd le>kSrk 31-12-2000 o la'kksf/kr vkilh le>kSrk 10-4-2001 lk{; esa xzkgkz ugha gS\-----izfr0 la[;k 2 " 4. The Issue No.8 was to the effect as to whether the family settlement between the petitioner-plaintiff and defendant/non-petitioner No.1 dated 31.12.2000 and the amended settlement dated 10.04.2001 are not admissible in evidence. 5. The non-petitioner No.2 filed an application on 12.09.2008 under Order 14 Rule 2 read with section 151 CPC and prayed that Issue No.8 may be decided before cross-examination of the petitioner-plaintiff. The petitioner-plaintiff filed a reply to the said application and claimed that no such objection can be raised at this stage when the document has already been exhibited and admitted in evidence. The petitioner-plaintiff filed a reply to the said application and claimed that no such objection can be raised at this stage when the document has already been exhibited and admitted in evidence. It was also claimed on behalf of the petitioner-plaintiff that the factum of partition has been admitted by the non-petitioner No.1 in a sale-deed executed by him and as such now at this stage, no objection can be raised regarding admissibility of the documents. 6. The learned court below, vide impugned order dated 23.10.2000, allowed the application filed by the non-petitioner No.2 under Order 14 Rule 2 CPC and decided Issue No.8 as a preliminary issue in the manner that the document dated 10.04.2001 is not properly stamped nor it is a registered document and, therefore, the same is not admissible in evidence. The court below further observed that the document dated 31.12.2000 is also not admissible in evidence. 7. Being aggrieved with the above, this writ petition has been preferred by the petitioner. 8. Despite service of show cause notice as well as of admission, no one has appeared on behalf of the Respondents to contest the writ petition. 9. The learned counsel for the petitioner has contended that the documents in question are very much admissible in evidence as per the provisions of section 49 of the Indian Registration Act, however, the learned court below has illegally observed that the documents in question are not admissible in evidence. The learned counsel for the petitioner has further argued that the documents in question are memorandum of partition and the same are neither required to be registered nor required to be on the stamp and, therefore, the learned court below has completely misconceived in holding that such document is compulsorily registerable and must be on the proper stamp. It has further been argued by the learned counsel for the petitioner that the non-petitioner NO.1 along with his sons, acted upon that partition and sold the shop by the registered sale-deed, in which he himself admitted that there was a partition arrived at between the brothers after the death of their mother and in such circumstances, the objections raised by the non-petitioner No.1 before the trial court are not tenable and the learned trial court has wrongly upheld the said objections. 10. 10. The learned counsel for the petitioner has further argued that the Issue No.8 cannot be decided as preliminary issue because as per sub-rule (2) of Rule 14, the issues related to the jurisdiction of the court or in respect of a bar to the suit created by any law for time being in force can only be decided as preliminary issues and not the Issue No.8, which relates to the admissibility of documents. The learned counsel for the petitioner has placed reliance upon the judgments of this Court in Mahendra Kumar v. Smt. Manni Devi & Ors., reported in 2001 WLC, 703 ; Kedar Singh Chouhan v. Shri Bhagwan Singh, reported in 2000 DNJ (Raj.) 380 ; and Smt. Pushpa Kanwar & Anr. v. Suraj Prasad Gupta, reported in 1997 WLC (Raj.) UC 377 . 11. This Court has considered the submissions made on behalf of the petitioner and has perused the documents annexed with the writ petition. For proper adjudication of the controversy, section 49 of the India Registration Act is reproduced hereunder: "49.Effect of non-registration of documents required to be registered:- No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall - (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument." 12. In view of the provisions of section 49 of the Indian Registration Act and particularly in view of second part of section 49, this Court feels difficulty in holding that unregistered documents affecting the immovable property is admissible in evidence in a suit for specific performance. It is also observed that the respondent No.1 himself has relied upon the memorandum of partition/partition-deed while selling the shop falling in his share as per the said partition-deed. It is also observed that the respondent No.1 himself has relied upon the memorandum of partition/partition-deed while selling the shop falling in his share as per the said partition-deed. In the case in hand, the petitioner has filed the suit for specific performance of contract and therefore, the documents dated 31.12.2000 and 10.04.2001 produced by the petitioner along with his affidavit ipso facto, cannot be held to be inadmissible in evidence only for the reason that the same are not registered as required by section 17 of the Indian Registration Act or by any provision of Transfer of Properties Act, 1882. Nature of the document is to be taken into consideration and the provisions of section 49 of the Indian Registration Act are also to be taken into consideration while dealing with such documents in a suit for specific performance of contract. The fact that the respondent No.1 himself has relied upon the said documents is important fact and the learned trial court has not appreciated the said fact in right perspective. 13. In view of the discussions, this petition filed by the petitioner deserves to be allowed and is hereby allowed. The impugned order dated 23.10.2008 passed by the Additional District Judge (Fast Track) No.2, Udaipur is set aside and the learned trial court is directed to take into consideration the documents dated 30.12.2000 and 10.04.2001 produced by the petitioner along with his affidavit as admissible in evidence in accordance with law.No order as to costs.Petition Allowed. *******