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2019 DIGILAW 1647 (RAJ)

Bhagwatilal Laddha v. Geeta Devi

2019-05-24

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - The petitioner has preferred this writ petition under Article 227 of the Constitution of India, claiming the following reliefs: "(i) Quash the impugned order dated 19.01.2019 (Annexure-5) passed by the learned Additional District Judge No.3, Bhilwara in Civil Original Suit No. 79/2012; and (ii) the application filed by the humble petitioner under section 151 CPC may kindly be allowed with costs throughout; and (iii) the family settlement dated 11.10.2005 tendered by the respondents in their evidence before the learned trial court be ordered/declared as inadmissible in evidence; and (iv) any other appropriate relief which this Hon'ble Court deems fit, necessary in the facts and circumstances of the present case be granted in favour of the petitioner; and (v) Cost of the writ petition kindly ordered to be awarded to the petitioner. 2. The respondents filed a civil suit for declaration and injunction against the petitioner stating inter alia that the husband/father of the respondents and brother-present petitioner are sons of Late Shri Daulat Ram Laddha, hence, they are brothers and the bone of contention was the property admeasuring 40x19.5 sq. yards situated in Azad Mohalla, Bhilwara. 3. The present dispute arises out of an application before the learned trial court being preferred by the petitioner to take a family settlement dated 11.10.2005 on record to be read as an evidence in the matter. The application was heard and vide order dated 30.08.2016, the document dated 11.10.2005 was declared as inadmissible in evidence on count of the same not being registered and not being stamped. Thereafter, the respondents preferred a writ petition against the order dated 30.08.2018 being S.B. Civil Writ Petition No.12438/2016 (amended) decided by this Hon'ble Court vide order dated 05.07.2017, which reads as under: "By way of the present writ petitions, the petitioners have challenged the order dated 30.08.2016 whereby, the learned Additional District Judge No. 3, Bhilwara (for short, "learned trial Court") has refused the parties to lead evidence in relation to the document, a family settlement dated 11.10.2005 executed between the parties, as, according to the Court below, the document required registration. After arguing the matter for quite some time, learned counsel appearing for the petitioners, Mr. After arguing the matter for quite some time, learned counsel appearing for the petitioners, Mr. Ashwini Kumar Babel, dropped his arguments in relation to the compulsory requirement of registration of the document under consideration namely, the family settlement dated 11.10.2005, while seeking leave to raise grounds in relation thereto, in an appeal, if required to be filed by the petitioners against the final judgment and decree passed by the learned trial Court. He, however, in the alternative submitted that the document in question be permitted to be relied upon for co-lateral purposes, as permitted under section 49 of the Registration Act, 1908 for which, he is prepared to pay the requisite stamp duty, payable on it. In the facts of the present case, the liberty prayed for is granted. The petitioner is permitted to raise ground in relation to the requirement of registration qua the document dated 11.10.2005 or effect of the interlocutory order dated 30.08.2016, in an appeal, if required to be filed against the final judgment and decree. If the petitioner does not have the original of the family settlement dated 11.10.2005, he may, however, furnish a photocopy thereof before the learned trial Court for the purpose of determination of the Stamp Duty. The learned trial Court would impound and transmit the same to the Collector (Stamps) for adjudication of the proper stamp duty thereupon. It is clarified that mere payment of the stamp duty on the photocopy of the document in question shall not by itself render the document, family settlement dated 11.10.2005, admissible in evidence and the same shall be subject to the requirement of law, including, the provisions as contained under Sections 65 and 66 of the Evidence Act. With the observations foregoing, these writ petitions stand disposed of." 4. Pursuant to the said order, the document in question was sent to Collector (Stamps) and was impounded. However, the petitioner again filed an application under section 151 CPC on 09.10.2018 submitting that merely paying stamp duty upon the said family settlement would not entitle the respondents to get the document read as an evidence. The learned trial court however, rejected the application vide order dated 19.01.2019 holding that the family settlement has been stamped in accordance with the order passed by this Hon'ble Court passed in S.B. Civil Writ Petition No. 12438/2016, and hence, the same is admissible in evidence. 5. The learned trial court however, rejected the application vide order dated 19.01.2019 holding that the family settlement has been stamped in accordance with the order passed by this Hon'ble Court passed in S.B. Civil Writ Petition No. 12438/2016, and hence, the same is admissible in evidence. 5. Learned counsel for the petitioner makes a limited submission that the learned trial court had a legal obligation arising out of the order passed by this Hon'ble Court to consider the admissibility of the document in accordance with law, in light of the provisions of Sections 65 and 66 of the Evidence Act, as well as on evidentiary value of the document in question upon it being not registered but stamped while keeping into consideration the mandate of section 49 of the Registration Act. 6. On the other hand, learned counsel for the respondents submits that no objection was raised by the petitioner regarding Sections 65 and 66 of the Evidence Act in his application, and therefore, the impugned order has not decided the issue and it shall be still open for the petitioner to raise that issue in future as and when law permits. 7. Learned counsel for the respondents however, submits that the impugned order is justified as the same does not construe that the family settlement dated 11.10.2005 can be read in evidence beyond what permitted in law, that is, for collateral purposes, and its evidentiary value, shall be in accordance with section 49 of the Registration Act and the fact that the Hon'ble Court has already decided that it can be stamped so as to be taken on record while deciding the writ petition No.12438/2016. 8. After hearing learned counsel for the parties as well as perusing the record of the case, this Court is of the opinion that once the issue of Sections 65 and 66 of the Evidence Act has not been raised by the petitioner in his application under section 151 CPC, there was no question that the trial court has decided it at this stage, and hence, it shall remain open for the petitioner to take such objection strictly in accordance with law. 9. 9. However, as far as the impugned order holding that once the document is stamped and has been taken on record, it shall be completely read in evidence, this Court clarifies that the evidentiary value of the family settlement dated 11.10.2005 shall be to the extent of section 49 of the Registration Act for collateral purposes and the evidentiary value of the document in question shall be accordingly determined. 10. With the aforesaid observations, the present petition is disposed of. Stay petition No.1986/2019 also stands disposed of accordingly.