JUDGMENT : Sanjeev Prakash Sharma, J. Moorti Mandir Baba Ramdev Virajman Rajendrapura, Hathi Bhata, Ajmer (plaintiff-petitioner) filed a suit for permanent injunction against the defendant-respondents before the learned trial court claiming that the property in dispute having been bestowed upon them by way of gift by one Smt. Laxmi Devi who also has written a document dated 31/03/1989 mentioning that she has already handed over the demised property to the adjacent temple of Baba Ramdev Ji two years back for which she has a document on Rs.5/- stamp paper so that it may be used in future. Affidavit of one Mr. Jeetmal, in support of the aforesaid averments, was filed and the said document written by Smt. Laxmi Devi was marked by the court below as Exhibit-1. 2. The defendant-respondent challenged the said action of the court below in marking the document dated 31/03/1989 as Exhibit-1 on the ground that it is neither registered nor properly stamped. 3. Accepting the said objection, the learned trial court has passed the order impugned dated 15/09/2009 cancelling the said document as an Exhibit on the ground that it is not registered in terms of Section 17 of the Indian Registration Act and was therefore, not admissible in evidence. 4. The plaintiff-petitioner preferred a review petition before the learned trial court seeking review of the order dated 15/09/2009. However, the learned trial court passed an order dated 24/11/2009 in review, which is also impugned herein, whereby the trial court has refused to review its order dated 15/09/2009 on the ground that the documents were not appropriately stamped. 5. Learned counsel for the plaintiff-petitioner relies on the law laid down by the Apex Court in the case of Sainath Mandir Trust Vs. Vijaya and others, (2011) 1 SCC 623 wherein it was held as under :- 19. It is no doubt true that the gift deed was an unregistered instrument and no title could pass on the basis of the same under Section 123 of the Transfer of Property Act. However, when the document is in the nature of a dedication of immovable property to God, the same does not require registration as it constitutes a religious trust and is exempt from registration. 6. Learned counsel for the plaintiff-petitioner also relies on the law laid down by the Apex Court in the case of Moorti Shri Adeshwar Bhagwan Jain Swetamber Mandir, Bharatpur Vs. 6. Learned counsel for the plaintiff-petitioner also relies on the law laid down by the Apex Court in the case of Moorti Shri Adeshwar Bhagwan Jain Swetamber Mandir, Bharatpur Vs. Shimbhunath Singh, (2007) AIR(Rajasthan) 46 wherein it was held as under :- 6. In view of the above decisions the question No. 1 formulated by this Court is answered that Exhibit-3, gift-deed dated 16-2-1908 executed by Mst. Koka Devi in favour of plaintiff Moorti Shri Adeshwar Bhagwan, is a document whereby disputed property was dedicated to God and was not required to be registered and was admissible in evidence for all purposes and not only for collateral purposes. 7. Learned counsel for the plaintiff-petitioner also relies on the judgment passed by coordinate Bench of this Court in the case of I.B.P. Company and another Vs. Smt. Chandrabai and others, (1999) 2 RajLR 302 wherein it was held as under :- 9. This Court takes judicial notice of the fact that invariably almost in all civil suits wherein either application under Sub-rules (1) or (2) Rule 2 of Order 13, CPC is allowed or rejected the party against whom the order is passed rushed up in revision under the amended Sec. 115, CPC and now this Court is flooded with such revisions. One of the reason for filing such revisions is that aggrieved party considers that once a document is received in evidence either under Sub-rule (1) or Sub-rule (2) or Rule 2 of Order 13, CPC its relevancy, admissibility and reliability can not be questioned at subsequent stage. The aforesaid notion is misconceived for the reasons discussed hereinabove within the meaning of Rule 3 of Order 13, CPC. The reception of documents under Sub-rules (1) or Sub-rule (2) of Rule 2 of Order 13, CPC is within the discretion of the trial court subject to re-assessment by the appellate courts in appeal. It is pertinent to observe that if documents tendered either under Sub-rule (1) of Rule 2 or Sub-rule (2) of Rule 2 of Order 13, CPC are rejected by the trial courts, then it can be re-agitated under Sub-rule (1) (a) of Rule 27 or Order 41, CPC before the appellate courts instead of invoking the revisional jurisdiction under the amended Sec. 115, CPC. 13. 13. The aforesaid argument of the learned counsel for the revisionists is not acceptable for the simple reason that the stage for examining the relevancy, admissibility and reliability of these documents received in evidence by the learned trial court in exercise of its discretion under sub-rule (2) of Rule 2 of Order 13, CPC in the present case would reach at the end of the trial of the suit while delivering its judgment on merits between the parties but not at this stage as discussed hereinabove. It is made clear that the points which are being raised in the present revision petition can be raised by the revisionists at the time of the end of trial of the suit at the stage of final argument before the learned trial court. In disputably, the final decision given by the learned trial court would be appealable, therefore, the revisionists would be further entitled to re-agitated these points before the appellate court in appeal as well. 8. Per-Contra, learned counsel for the defendants-respondents submits that in terms of Section 39 of the Rajasthan Stamps Act, 1998, the document (Annexure-2) dated 31/03/1989 could not be admitted in evidence in view of the provisions of Section 39 of the Rajasthan Stamps Act, 1998 which provide as under :- 39. Instruments not duly stamped inadmissible in evidence, etc. 8. Per-Contra, learned counsel for the defendants-respondents submits that in terms of Section 39 of the Rajasthan Stamps Act, 1998, the document (Annexure-2) dated 31/03/1989 could not be admitted in evidence in view of the provisions of Section 39 of the Rajasthan Stamps Act, 1998 which provide as under :- 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 1 [(ii) a penalty at the rate of two percent of the amount of the deficient duty per month or part thereof for the period during which the instrument remained insufficiently stamped or twenty five percent of the deficient stamp duty, whichever is higher, but such penalty shall not exceed to two times of the deficient stamp duty.] (b) Where a contract or agreement of any kind is affected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp; the contract of 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. (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. 9. Learned counsel for the defendants-respondents relies on the judgment rendered by the Supreme Court in the case of New Central Jute Mills Co. Ltd. and others Vs. State of W.B. and others, (1963) AIR(SC) 1307 wherein the Supreme Court has observed in Para 14 as under :- 14. Primarily, the liability of an instrument to stamp duty arises on execution. Execution in India itself made the instrument liable to stamp duty under s.3 (a) as it stood before the amendment. Under s. 3(c) execution out of India, where the instrument relates to property situated or any matter or thing done or to be done in India together with the further fact that the instrument is received in India, made the instrument chargeable with duty. In amending to Stamp Act what the State legislatures substantially did was to treat the particular State as equivalent to India. Thus, after the amendment by the U.P. legislature the position in law is that execution of an instrument in Uttar Pradesh is made the primary dutiable event and liability to stamp duty arises on such execution. Apart from that, liability also arises where the instrument though executed out of Uttar Pradesh relates to property situated or any matter or thing done or to be None in Uttar Pradesh, and is received in Uttar Pradesh. It may be mentioned that the changes in the law made by the other State legislatures are exactly similar. 10. Learned counsel for the defendants-respondents thus asserts that the liability for execution required that proper stamp duty be paid on the document and it is thereafter alone that the gift could be recognized and read in evidence. 11. It may be mentioned that the changes in the law made by the other State legislatures are exactly similar. 10. Learned counsel for the defendants-respondents thus asserts that the liability for execution required that proper stamp duty be paid on the document and it is thereafter alone that the gift could be recognized and read in evidence. 11. Learned counsel for the defendants-respondents alternatively submits that even if the registration was not required but the requirement of stamp duty on the document was necessitated in terms of Section 42 of the Rajasthan Stamps Act, 1998, which follows the earlier provisions, as they were prevalent under the Rajasthan Stamp Law (Adaptation) Act, 1952. The document was thus required to be impounded and it was only after the proper stamp duty having been paid, the instrument could be admitted in evidence and therefore, the learned trial court has not committed any illegality and the order impugned cannot be held to be erroneous. 12. It is further submitted by learned counsel for the defendants-respondents that in Mohammedan Law, where an oral gift has been made, the Supreme Court has observed that the same is required to be proved in evidence. In support thereof, the learned counsel for the plaintiff-petitioner relies on the judgment of the Apex Court in the case of Hafeeza Bibi and others Vs. Shaikh Farid (Dead) by LRS. and others, (2011) 5 SCC 654 and submits that a document can only be read as a piece of evidence and can be marked as exhibit only after the same is put to test during recording of evidence. 13. Learned counsel for the plaintiff-petitioner further submtis that objection relating to a document being marked as an exhibit has to be taken at initial stage itself. He relies on the observations made by the Apex Court in the case of Dayamathi Bai (Smt.) Vs. K.M. Shaffi, (2004) 7 SCC 107 wherein the Apex Court has held as under :- 13. We do not find merit in this civil appeal. In the present case the objection was not that the certified copy of Ex.P1 is in itself inadmissible but that the mode of proof was irregular and insufficient. Objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. We do not find merit in this civil appeal. In the present case the objection was not that the certified copy of Ex.P1 is in itself inadmissible but that the mode of proof was irregular and insufficient. Objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record (See: Order XIII Rule 3 of Code of Civil Procedure). This aspect has been brought out succinctly in the judgment of this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Another, (2003) 8 SCC 752 to which one of us, Bhan, J., was a party vide para 20 : "20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras, (1966) AIR(SC) 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. 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 when 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 latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." 14. To the same effect is the judgment of the Privy Council in the case of Gopal Das & Anr. v. Sri Thakurji & Ors., (1943) AIR(Privy Council) 83, in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Similarly, in Sarkar on Evidence, 15th Edition, page 1084, it has been stated that where copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage." 14. Having heard learned counsel for both the parties and after thoroughly considering the law as cited before this Court and the law as laid down by the Apex Court, this Court finds that the question, which needs to be addressed, is whether the document can be said to be a gift deed, in the opinion of this Court, the same is not a gift deed but a statement mentioning about the gift having already taken place two years back. The document Annexure-2 dated 31/03/1989, as written on Rs.5/- stamp paper, is an affidavit mentioning of gift and not a gift deed itself. The same has been signed by two witnesses and is duly notarized. The document essentially mentions about the oral gift having been already made earlier and adducing the said facts in writing the document proceeds with facts relating to the property which the lady had already given out in gift to the temple of Baba Ramdev Ji. The gift was an oral gift and therefore, the same was not required to be registered. 15. In the case of Rajangam Ayyar Vs. Rajangam Ayyar (2), (1922) AIR(Privy Council) 266, their Lordships of Privy Council held that a document, which does not by itself convey property but merely gives a right to call for another document does not require registration. Section 123 of the Transfer of Property Act only applies to transfer by one living person to another. 16. In the case of Ramalinga Chetti Vs. Sivachidambara Chetty, 1919 (42) Mad. 440, it has been held that no document was necessitated for the dedication of property to charity. Section 123 of the Transfer of Property Act only applies to transfer by one living person to another. 16. In the case of Ramalinga Chetti Vs. Sivachidambara Chetty, 1919 (42) Mad. 440, it has been held that no document was necessitated for the dedication of property to charity. In the view of this Court, a gift to the idol or to the temple of the idol conveys the same meaning and it cannot be said to be a gift to a living person. A jurisdic person is not necessarily a living person and by no stretch of imagination can it be presumed that the God or temple of God can be assigned to perform the execution or registration of a deed in its favour. 17. The aforesaid view is what has been held by the Full Bench in the case of Tangella Narasimbhaswami, Dharmakartha of Shri Kodanda Ramchandra Moorty Vs. Madini Venketalingam and others, (1927) AIR(Madras) 636, as noted. 18. In the case of Moorti Shri Adeshwar Bhagwan Jain Swetamber Mandir, Bharatpur Vs. Shimbhunath Singh, the Rajasthan High Court has also followed the same view. The Supreme Court in the case of Sainath Mandir Trust Vs. Vijaya and others has also held so. Therefore, the order impugned dated 15/09/2009, so far as it denies the document to be treated as admissible as exhibit in evidence, on account of not being registered, is set aside. 19. While reviewing the earlier order, the trial court has proceeded to also examine the aspect regarding insufficiency of stamp duty and has held that the stamp duty on the document was required to be that as required under Entry 31 of the Schedule appended to the Rajasthan Stamps Act as it was a gift deed and in view of Section 39 of the Rajasthan Stamps Act, it could not have been admitted in evidence. 20. While discussing the nature of document, this Court has already stated herein above that the document cannot be said to be a gift deed and it only is an instrument writing down the factum of an oral gift. It is in the nature of a simple affidavit duly supported by two witnesses and the donor has recorded the transaction of gift in writing. 21. It is in the nature of a simple affidavit duly supported by two witnesses and the donor has recorded the transaction of gift in writing. 21. While dealing with the matter in relation to gift or hiba under the Mohammedan Law, the Apex Court in the case of Hafeeza Bibi and others Vs. Shaikh Farid (Dead) by LRS. and others has held as under :- 27. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting a valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan Law. 22. Thus, even the said gift under the Mohammedan Law is not required to be registered. 23. The stamp duty, therefore, would not be required to be of the same value as that of a gift deed. However, this Court does not concur to the view taken by the coordinate Bench of this Court in the case of I.B.P. Company and another Vs. Smt. Chandrabai and others that the stage for examining the relevancy, admissibility and reliability of documents, as exercised under sub-rule 2 of Rule 2 of Order 13 CPC, could be taken up only at the final stage of arguments in the trial in view of the law laid down by the Apex Court in the case of Dayamathi Bai (Smt.) Vs. K.M. Shaffi wherein the Apex Court has discussed at length and held that the stage at which objection to admissibility of evidence should be taken is when it is tendered and not subsequently. K.M. Shaffi wherein the Apex Court has discussed at length and held that the stage at which objection to admissibility of evidence should be taken is when it is tendered and not subsequently. In view thereof, the law as laid down by coordinate Bench of this Court in the case of I.B.P. Company and another Vs. Smt. Chandrabai and others stands implied overruled by the judgment rendered by the Apex Court in the case of Dayamathi Bai (Smt.) Vs. K.M. Shaffi. 24. The question, however, still remains whether the document (Annexure-2) could be marked as an exhibit and admitted in evidence merely because it was placed alongwith an affidavit of the plaintiff's witness and in the view of this Court, the document, as noted above, is not itself a deed and is merely a recital of an oral gift having already been executed. Thus, it is no more than an affidavit relating to gift which is required to be proved and therefore, while it may having been marked as Exhibit-A alongwith affidavit of the witness, the same can only be marked as an exhibit and admitted in evidence once it is placed as a piece of evidence by the plaintiff while recording their evidence in the Court giving fair opportunity to the respondents for rebuttal. In other words, the document is required to be proved in evidence to have been written by the deponent by leading evidence in support thereof. 25. Thus, in the circumstances, while upholding the action of the trial court in deleting the document as an exhibit, the reasons assigned for deleting the same, are found to be erroneous and unjustified. 26. Accordingly, the writ petition is partly allowed to the extent as above. The trial court is directed to proceed accordingly.