JUDGMENT 1. - Instant writ petition is directed against the order dated 12.10.2012 & allied order 23.07.2012 passed by the Additional District Judge (Fast Track) No. 2, Jaipur City, Jaipur ( for short, the trial court) in Civil Suit No. 177/2009 titled as Ratan Kumari v. Bhagwan Sahai & ors. , whereby the objections raised by the plaintiff-petitioner regarding admissibility of release dated 15.10.2007 has been disallowed and the application filed by the plaintiff-petitioner seeking deletion of exhibits marked on certain documents has been rejected. 2. Brief facts of the case giving rise to this writ petition are that the petitioner-Ratan Kumari is the plaintiff in the suit titled as Ratan Kumari v. Bhagwan Sahai & ors., bearing Suit No. 177/2009 pending in the trial court. The Suit, as prayed, is principally for partition of a property namely; Plot No. E-25, Gokhle Marg, C-Scheme, Jaipur. The suit was originally filed impleading Bhagwan Sahai, the brother of plaintiff-petitioner; Naveen Kumar, son of plaintiff-petitioner's deceased sister Kanchan Kumari and Smt. Mohan Kanwar, mother of the plaintiff-petitioner. The plaintiff-petitioner claimed herself to be entitled to the extent of h share in the above property and accordingly sought division of property by metes and bounds in the suit along with other ancillary relief. 3. During the course of the suit, a document termed as Release deed dated 15.10.2007 came to be executed and registered allegedly by Smt Mohan Kanwar in favour of her son Bhagwan Sahai. The plaintiff-petitioner alleging that the same was executed fraudulently and against the mandatory provisions of law, sought quashing of the registration of such Release deed by filing a separate writ petition namely; SB. Civil Writ Petition No. 10543/2008 which is also being disposed of simultaneously by a separate order. But in the partition suit, the plaintiff-petitioner questioned the admissibility of the deed in evidence, mainly for want of proper stamp duty. The trial court was not impressed by the contentions raised by the plaintiff-petitioner and held that as the Release deed was a registered document and the plaintiff-petitioner failed to raise any objection in this regard on an earlier occasion, upon the certified copy of the deed hence, the release deed was admissible in evidence. 4. The plaintiff-petitioner also raised objection with regard to the methodology that was adopted for marking exhibits on the documents relied upon by the defendant-respondent-Bhagwan Sahai. 4. The plaintiff-petitioner also raised objection with regard to the methodology that was adopted for marking exhibits on the documents relied upon by the defendant-respondent-Bhagwan Sahai. It was also contented on behalf of the plaintiff-petitioner that the exhibits were not marked in the affidavit of the defendant-respondent-Bhagwan Sahai presented under Order 18 CPC and were marked later on in the oral testimony when Bhagwan Sahai entered into the witness box to verify the contents of his affidavit and such procedure adopted was illegal. The trial court was also not impressed by this contention raised by the plaintiff-petitioner and rejected the application moved in this behalf vide order dated 23.07.2012. The plaintiff-petitioner moved a review application seeking review of this order and also moved another application raising objection about the admissibility of the Release deed for want of proper stamp duty. The trial court vide its order dated 12.10.2012 rejected both the applications of the plaintiff-petitioner. Feeling aggrieved by the orders dated `12.10.2012 and 23.07.2012 the plaintiff-petitioner has filed this writ petition. 5. Learned counsel for the plaintiff-petitioner contented that the orders of the court below suffered from serious legal infirmity and has inflicted grave injustice upon the plaintiff-petitioners. He contented that the Release deed was prima facie not properly stamped and hence was inadmissible in evidence according to Section 39 of the Stamps Act. He contended that the property covered under the release deed was not "ancestral" and hence the stamp duty of Rs. 100 was insufficient. He also contented that the deed was got executed fraudulently and its registration was already under challenge in another writ petition, bearing SB. Civil Writ Petition No. 10543/2008 pending before this court and hence the trial court committed a manifest error in holding that the Release deed was admissible in evidence. 6. Learned counsel for the defendant-respondents, on the other hand, supported the orders passed by the court below and contented that the orders were just and proper, the Release deed was a registered instrument which raises a presumption of its validity and the other objections raised by the plaintiff-petitioner regarding exhibiting the documents during oral testimony was more of form than substance. 7. Heard learned counsel for the parties and carefully perused the material available on record including the orders impugned. 8. 7. Heard learned counsel for the parties and carefully perused the material available on record including the orders impugned. 8. Before adverting to the Release deed, as far as objection of the plaintiff-petitioner with respect to the procedure adopted by the respondents for marking exhibits on the documents is concerned, this court is fully satisfied that the objection is more of form and procedure than substance. Generally, the parties, while submitting there evidence by way of affidavit as per Order 18 C.P.C., mention the exhibits in the affidavit and when the witnesses enter into the witness box to verify the contents of the affidavit, exhibits are marked upon the documents. In the instant case, though the exhibits were not mentioned in the affidavit, but when Bhagwan Sahai entered into the witness box to verify the contents of the affidavit, exhibits were marked during oral testimony. In the opinion of this court by mere adoption of such a procedure, no prejudice can be said to have caused to the plaintiff-petitioner and hence no fault can be found in the orders impugned passed by the trial court in this behalf. 9. Before touching the question of admissibility of the Release deed it would be fruitful to refer the relevant provisions of the Rajasthan Stamp Act in this behalf. The Schedule as per Section 3 of the Rajasthan Stamp Act is as under:- 48. Release, that is to say any instrument,(not being such a release as is provided for by Section 26(2) where by a co-owner, co-sharer or coparcener renounces his interest, share, part or claim in favour of another co-owner, co-sharer or co-parcener. (a) if the release deed of an ancestral property or part thereof is executed by or in favour of brother or sister (children of renouncer's parents) or son or daughter or son of predeceased son or daughter of predeceased son or father or mother or spouse of the renouncer or the legal heirs of the above relatives. One hundred rupees (b) in any other case. Same duty as on conveyance (No.21) for the amount equal to the market value of the share, interest, part or claim renounced. 10. It would also be fruitful to quote Sections 39 and 53 of the Stamp Act which read as under:- "Sec.39. One hundred rupees (b) in any other case. Same duty as on conveyance (No.21) for the amount equal to the market value of the share, interest, part or claim renounced. 10. It would also be fruitful to quote Sections 39 and 53 of the Stamp Act which read as under:- "Sec.39. Instruments not duly stamped inadmissible in evidence, etc.- No instrument chargeable with duty under this Act shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. Provided that,- (a) any such instrument shall, subject to all just exceptions, be admitted in evidence on payment of.- (i) the duty with which the same is chargeable, or in the case of an instrument insufficiently stamped, of the amount required to make up such duty, and (ii) a penalty of one hundred rupees or, ten times the amount of deficient portion thereof, which ever is higher. (b) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp; the contract or agreement shall be deemed to be duly stamped. (c) nothing herein contained shall prevent the admission of any instrument as evidence in any proceeding in a criminal court, other than a proceedings under Chapter IX or Part D of Chapter X of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974). (d) nothing herein contained shall prevent the admission of any instrument in any court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by Section 36 or any other provision of this Act. (e) nothing herein contained shall prevent the admission of a copy of any instrument or of an oral account of the contents of any instrument, if the stamp duty or a deficient portion of the stamp duty and penalty as specified in clause (a) is paid. (f) nothing herein contained shall prevent the admission of any instrument in evidence in any court when stamp duty on such instrument has already been paid in advance in the form of a consolidated lump sum. (f) nothing herein contained shall prevent the admission of any instrument in evidence in any court when stamp duty on such instrument has already been paid in advance in the form of a consolidated lump sum. (g) nothing herein contained shall prevent the admission of any instrument in any court when such document has been executed by or on behalf of the Government or where it bears the Certificate of the Collector as provided by section 36 or any other provision of this Act. Section 53. Determination of the correct nature of the document and the recovery of proper duty- (1) Notwithstanding anything contained in the Registration Act, 1908 (Act 16 of 1908) and the rules made thereunder as in force in Rajasthan, where the registering officer has, while registering a document or instrument, reasons to believe that the nature of the document or instrument has not been correctly mentioned, he may, either before or after registering such document or instrument, send it, in original, to the Collector for taking action under sub-section (3). (2) When through mistake or otherwise any instrument which is misclassified and not duly stamped, is registered under the Registration Act, 1908 (Act No. 16 of 1908), the registering officer may call for the original instrument from the party and, after giving the party liable to stamp duty an opportunity of being heard and recording the reasons in writing and furnishing a copy thereof to the party, impound it and on failure to produce such original instrument by the party, a true copy of such instrument taken out from the registration record shall, for the purposes of this section, be deemed to be the original of such instrument and send it to the Collector for taking action under sub-section (3). (3) On receipt of document or instrument under sub-section (1) or (2), the Collector shall, after giving the parties a reasonable opportunity of being heard, determine the correct nature of the document or instrument and the duty including penalty not exceeding ten times the deficient stamp duty chargeable and surcharge, if any, payable thereon and may require the payment of the duty including penalty and surcharge, if any, so determined or the amount required to make up the same. (4) Where it appears to a person having by law or consent of parties authority to receive evidence or a person incharge of a public office, during the course of inspection or otherwise, except an officer of a police, that a document or an instrument has not been correctly mentioned while registering it, such person shall forth with make a reference to the Collector to determine the correct nature thereof. (5) The Collector may, suo motu or on a reference made under sub-section (4) or otherwise call for and examine any document or instrument not referred to him under sub-section (1) or (2), from any person referred to in sub-section (4) or executant or any other person for the purpose of satisfying himself as to the correctness with regard to the nature of the document or instrument and if he is satisfied, after giving the parties a reasonable opportunity of being heard, that the nature of document or instrument had not correctly been mentioned or determined, he may determine the correct nature of the document or instrument and the duty, if any, payable thereon together with a penalty not exceeding ten times the deficient stamp duty chargeable on it and require payment of duty including party, if any, so determined or the amount required to make up the same. (6) Where for any reason the original document or instrument called for by the Collector under sub-section (5) is not produced or cannot be produced, he may call for a certified copy of the document or instrument from the registering officer concerned and exercise the power conferred upon him in sub-section (5)." 11. A bare glance at Section 53 of the Stamps Act amply clarifies that where it appears to a civil Court, That a document tendered before it, has not been correctly mentioned while registering it, the court nature thereof. The Collector is vested with the powers to examine any document suo-moto or on the executant. The contentious Release deed dated 15.10.2007 contains the following averments. The Collector is vested with the powers to examine any document suo-moto or on the executant. The contentious Release deed dated 15.10.2007 contains the following averments. " tks fd IykV bZ&25 xks[kys ekxZ] lh&Ldhe] t;iqj dh Hkwfe ij esjs izFke i{k Jherh eksgu daoj ifr Lo0 Jh guqeku lgk; th jkor ds uke ds dz; dh xbZ Fkh mlesa esjs izFke i{k Jherh eksgu daoj iq= ds mRiUu gksus ij eq>s tkeuk esa iq= ds fy, tks jkf'k feyh mldk Hkh dqN va'k yxk FkkA mijksDr IykV fd Hkwfe esa 'kuS% 'kuS% fuekZ.kkr djk;s x;s vkSj orZeku esa edku ua0 bZ&25 tks 1100 oxZet gS] esa nks eaftyh bekjr cuh gqbZ gSA ;g fd mijksDr of.kZr edku ua0 bZ&25 ds laca/k esa esjs ( izFke i{k Jherh eksgu daoj ) ifr Lo0 Jh guqeku lgk; th jkor us fnukad 27-02-1976 dks yS.M ,.M fcfYMax VSDl foHkkx esa ;g 'kiFk i= Hkh is'k fd;k Fkk fd mijksDr of.kZr edku ua0 bZ&25 esa la;qDr :i ls vk/kk fgLlk vfoHkkftr esjk Lo0 Jh guqeku lgk; th jkor gS ; vk/kk fgLlk vfoHkkftr gS vkSj blesa esjk ( izFke i{k Jherh eksgu daoj ) o esjs iq= Mk0 Hkxoku lgk; dk vfoHkkftr fgLlk pyk vk jgk gSA ;g fd eSa izFke i{k Jherh eksgu daoj esjs iq= Mk0 Hkxoku lgk; jkor o mldh iRuh Jherh fxjhjkt jkor dh lsokvksa ls izlUu gwaA esjk iq= vkKkdkjh o gksugkj gS o viuh cgu ds vuko';d o fujFkZd ckrksa dks Hkh cnkZLr djrk vk;k gSA eSa izFke i{k Jherh eksgu daoj mijksDr IykV uEcj bZ&25 esa esjs Lo0 ifr Jh guqeku lgk; th dh e`R;q ds ckn mudh Lohd`fr ds ckj ftruk Hkh vfoHkkftr la;qDr fgLlk esjk izFke i{k Jherh eksgu daoj vkrk gS mu lcdk eS R;kx esjs ,d ek= iq= Mk0 Hkxoku lgk; jkor ftldk Hkh mijksDr IykV bZ&25 esa l;qDr fgLlk gS] ds fgr esa R;kx djrh gwaA esjh izFke i{k Jherh eksgu daoj vU; iq=h o nksfgrs dk esjs fgLls dh R;kx dh xbZ vf/kdkj ugha gksxkA esjk iq= gh esjs gd rd vkbZ laifr esa ;fn U;k;ky; esa i{kdkj curk gks vkSj fgLlk izkIr djuk gks rk izkIr djsxkA " 12. As per Article 48(a) of the Schedule of the Stamp Act, if the Released deed is with respect to an ancestral property, a stamp duty of only Rs. As per Article 48(a) of the Schedule of the Stamp Act, if the Released deed is with respect to an ancestral property, a stamp duty of only Rs. 100/- is prescribed otherwise in any other case, the same stamp duty as on conveyance is prescribed. The trial court ought to apply its mind to prima-facie assess whether the averments in the Release deed specially those mentioned herein before, made the Release deed a Release deed of ancestral property as per Article- 48(a) of the Schedule of the Stamp Act or is otherwise a Release deed as per Article 48(b) and if, after such prima-facie assessment, the court reached to a conclusion that the instrument had not been correctly mentioned while registering it, it was obligatory on the part of the trial court as per Section 53 (4) to make a reference to the Collector to determine the correct nature thereof. 13. In the instant case the trial court without applying its mind upon the relevant provisions of the Stamp Act, in a mechanical manner, by merely observing that as the document was a registered document, it was admissible in evidence and has held the document to be admissible in evidence. Therefore, this part of the order cannot be sustained. 14. In the result, the Writ Petition is party allowed the order of the trial court holding the release deed dated 15.10.2007 to be admissible in evidence is quashed and set-aside and the rest part of the order is sustained. The trial court is directed to decide the admissibility of the Release deed dated 15.10.2007 with respect to the issue of proper stamp duty leviable in the light of the relevant provisions of the Stamp Act, referred to herein before. The trial court is free to assess whether the instrument has been correctly mentioned looking only to the averments in the Release deed and further whether a reference to the Collector is required as per Section 54 (4) of the Stamps Act to determine the correct nature thereof without being influenced by any observations made herein above.Petition Allowed. *******