ORDER : 1. This writ petition has been filed by the petitioner aggrieved against the order dated 10.2.2022 passed by the Senior Civil Judge, Jaitaran (Pali), whereby, the application filed by the petitioner-defendant under Section 65 of the Evidence Act, 1872 (‘the Act’) seeking permission to lead secondary evidence has been rejected. 2. The non-petitioner-plaintiffs filed a suit for cancellation of release deed and for permanent injunction. The petitioner filed written statement and contested the suit. During the pendency of the proceedings, the plaintiffs filed an application seeking direction to the petitioner to produce the original memorandum of family settlement/partition dated 14.5.1978. The petitioner filed reply to the application and denied possession of the document and stated that the plaintiffs’ father - Jhumar Lal had made a photo copy of the original and had given to him. The trial court observing that as a specific indication has been made in the reply that the original document is not in possession of the defendant, the application was disposed of. 3. The petitioner, whereafter, filed an application under Section 65 of the Act with the averments that based on the written partition dated 14.5.1978, written statement has been filed, as the defendant was minor at the relevant time, being ‘Karta Khandaan’ the original of the deed was kept by father of the plaintiffs and other brothers; on account of filing of the suit when the defendant sought original, the same was refused and, therefore, along with the written statement a photocopy of the document was produced. It was further indicated that it has also been determined by the Court that the original is not in possession of the defendant and, therefore, the said photocopy needs to be produced as secondary evidence. Based on the said averments, permission to lead secondary evidence was sought. 4. Reply to the application was filed by the plaintiffs referring to the fact of notice issued for production of original of the partition deed and denial by the defendant and that in absence of the original, the contents of the document cannot be proved. Further plea was raised that as on the original document requisite stamp duty was not paid and was unregistered, for lack of requisite stamp duty and being unregistered the same is inadmissible in evidence and, therefore, the secondary evidence of such document cannot be led. Further plea was raised that as on the original document requisite stamp duty was not paid and was unregistered, for lack of requisite stamp duty and being unregistered the same is inadmissible in evidence and, therefore, the secondary evidence of such document cannot be led. Further averments were made with regard to the contents of the document and it was prayed that the application be dismissed. 5. The trial court after hearing the parties, by its order dated 10.2.2022 came to the conclusion that the defendant though repeatedly relied on the partition deed dated 14.5.1978 in the written statement, it was not disclosed that the original was not with him. It was further concluded that though the allegations were made regarding the document being in possession of father of the plaintiffs and other brothers and their refusal to hand over the original, in terms of the mandatory requirement of issuing notice, no notice was given and, therefore, for lack of notice in terms of Section 66 of the Act, the secondary evidence cannot be led. 6. The court also came to the conclusion that the document regarding which secondary evidence is sought to be led is neither sufficiently stamped nor registered and, therefore, on account of said aspect, the photocopy of such a document cannot be admitted in evidence and consequently, rejected the application. 7. It is submitted by learned counsel for the petitioner that the trial court fell in error in dismissing the application filed by the petitioner by holding that requisite notice under Section 66 of the Act has not been issued, ignoring the provisions of proviso (5) and (6) of Section 66 of the Act. 8. Submissions were made that the plaintiffs themselves made an application seeking production of the original from the defendant-petitioner, which necessarily means that they themselves were not in possession of the document and also apparently unaware of its whereabouts, as such the same would amount to the plaintiffs themselves admitting the loss of the document. 9. 8. Submissions were made that the plaintiffs themselves made an application seeking production of the original from the defendant-petitioner, which necessarily means that they themselves were not in possession of the document and also apparently unaware of its whereabouts, as such the same would amount to the plaintiffs themselves admitting the loss of the document. 9. Further submissions were made that it was the specific case of the petitioner that Jhumar Lal Ji had made a copy of the document and handed over to him and as Jhumar Lal Ji had admittedly died during the pendency of the suit, no notice in this regard could have been issued to him and, therefore, in light of proviso (5) and (6) to Section 66 of the Act, for lack of notice under Section 66 of the Act, the application filed by the petitioner could not have been rejected by the trial court. 10. Further submissions have been made that the second ground for rejection of application on account of the fact that the original of the document itself was not sufficiently stamped and unregistered and, therefore, the secondary evidence in this regard could not be led, also has no basis, inasmuch as, proviso to Section 49 of the Registration Act, 1908 (‘the Act of 1908’) clearly provides that an unregistered document can always be used for collateral purposes and as the purpose of the petitioner for producing the partition deed is for collateral purpose, it cannot be said that on account of the original itself being unregistered, the secondary evidence in this regard could not be led. 11. Submissions were made that insofar as the sufficiency of the stamp duty paid is concerned, the trial court, has in a cursory manner dealt with the said aspect and has not determined as to how the stamp duty paid on the original document was insufficient. 12. Further submissions have been made that insofar as the alleged deficiency of stamp duty is concerned, the same can very well be cured in terms of Section 39 of the Rajasthan Stamp Act, 1998 (‘the Act of 1998’), wherein, under proviso (e) deficient portion of the stamp duty can be paid even on a copy of any instrument and, therefore, rejection of the application by the trial court cannot be sustained. 13. 13. It was also sought to be emphasized that the aspect of admissibility of the document regarding which secondary evidence is sought to be led, cannot be determined at the stage of deciding the application under Section 65 of the Act and, therefore, the order impugned deserves to be quashed and set aside. 14. Reliance has been placed on the judgments in Roshan Singh and Others vs. Zile Singh and Others, AIR 1988 SC 881 , M/s K.B. Saha and Sons Pvt. Ltd. vs. M/s Development Consultant Ltd. AIR 2008 SC (Supp.) 850, Mahaveer Prasad vs. Sayra Devi, 2016 (2) WLC (Raj.) 448 and Keshu Ram vs. Sonaki Bai, 2018 (1) WLC (Raj.) 589. 15. Learned counsel for the respondents vehemently opposed the submissions. It was submitted that the trial court was justified in coming to the conclusion that the requirements of Section 66 of the Act, which is prerequisite for leading secondary evidence under Section 65 (a) of the Act have not been complied with inasmuch as besides the averments that the document was in possession of Jhumar Lal, it was alleged that the same was in possession of Jhumar Lal and other brothers, admittedly other brothers were still alive, however, no notice as required under Section 66 of the Act was issued to them and, therefore, the mandatory requirement of the Act has not been fulfilled. It was submitted that a bare look at the document in question would reveal that the document in question has been executed by Bhanwar Lal S/o Chogga Ji making reference to the partition of the property among father and five brothers, which had been signed by all and the document in question, therefore, necessarily falls within the definition of instrument of partition under Section 2(xx) of the Act, 1998 and needs requisite stamp duty as provided under the Act. 16. Submissions have been made that very fact that the document indicates that the partition has been done ‘today’ and ‘as under’ necessarily means that the same was a document of partition dividing the properties by metes and bounds and required registration. 17. 16. Submissions have been made that very fact that the document indicates that the partition has been done ‘today’ and ‘as under’ necessarily means that the same was a document of partition dividing the properties by metes and bounds and required registration. 17. It was further submitted that the petitioner has relied on the said document and contents thereof as sheet anchor of his defense and, therefore, it cannot be said that the same is sought to be used by him for collateral purposes and as such for lack of registration, when original itself was inadmissible in evidence, consequently secondary evidence of such an inadmissible document cannot be led. 18. Further submissions were made that the Court is obliged to examine the probative value of the document produced in the Court or its contents to decide the admissibility of the document in secondary evidence and, therefore, it cannot be said that the aspect of admissibility of the document cannot be examined at the stage of deciding the application under Section 65 of the Act. It was prayed that the order impugned does not call for any interference and the petition deserves dismissal. 19. Reliance has been placed on Rakesh Mohindra vs. Anita Beri and Others, (2016) 16 SCC 483 . 20. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 21. As noticed, the trial court has rejected the application seeking to lead secondary evidence on account of non-compliance of the provisions of Section 66 of the Act, and on account of inadmissibility as the original itself was neither registered nor bear the requisite stamp duty. 22. The suit was filed by the plaintiffs seeking cancellation of the release deed dated 10.6.2009 executed by the defendant no. 2 in favour of petitioner inter alia on the ground that he had no right to execute the document. 23. In the written statement, the petitioner-defendant no. 1 with reference to the partition deed dated 14.5.1978 claimed that based on the said document the land in question was given to defendant no. 1 and copiously referred to the said aspect of partition for the purpose of defending the release deed in his favour. 23. In the written statement, the petitioner-defendant no. 1 with reference to the partition deed dated 14.5.1978 claimed that based on the said document the land in question was given to defendant no. 1 and copiously referred to the said aspect of partition for the purpose of defending the release deed in his favour. Though the aspect of partition deed dated 14.5.1978, as noticed, was copiously stated in the written statement and a photo copy whereof was produced along with the written statement, the fact about existence of its original and/or the same being in whose possession was no indicated. The plaintiffs on account of reliance placed in the written statement, sought production of original by filing application under Order XI Rule 18 CPC to which a reply was filed by the petitioner regarding defendant no. 2-Jhumar Lal handing over a copy of the document to him and the original being not in his possession, based on which the application came to be disposed of by the trial court on 13.1.2015. Whereafter, on 26.9.2017 the present application came to be filed seeking permission to lead secondary evidence with the averments that the original was kept by father of the plaintiffs-Jhumar Lal Ji and other brothers i.e. plaintiffs and when original was demanded, the same was refused and, therefore, he may be permitted to lead secondary evidence qua the partition deed dated 14.5.1978. 24. The provisions of Section 65 (a) of the Act are clear, wherein, it is required for the purpose of leading secondary evidence that when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved and when after notice as mentioned in Section 66 of the Act, the same is not being produced, secondary evidence of the contents of the documents is admissible. 25. Admittedly, in the present case, in reply to the plaintiffs’ application under Order XI Rule 18 CPC seeking the petitioner to produce the original of the partition deed dated 14.5.1978, it was not indicated by the petitioner that the document was in possession of the plaintiffs. The only averment made was that the father of the plaintiffs Jhumar Lal gave photo copy of the original to the petitioner. In the written statement also the whereabouts of the original were not disclosed. The only averment made was that the father of the plaintiffs Jhumar Lal gave photo copy of the original to the petitioner. In the written statement also the whereabouts of the original were not disclosed. However, in the application seeking permission to lead secondary evidence, it was indicated that the original was kept by father of the plaintiffs and other brothers and when demanded the same was refused. 26. The provisions of Section 66 reveals that secondary evidence of the contents of the document under Section 65(a) of the Act shall not be given unless the party proposing to lead second evidence has previously given to the party in whose possession the document is, such notice to produce it. 27. Admittedly, though the allegation made is that the document was in possession of Jhumar Lal and other brothers i.e. plaintiffs, no notice has been issued to the plaintiffs to produce the document. 28. However, the very fact that the plaintiffs themselves got issued notice under Order XI Rule 18 CPC to the defendant for production of the original document necessarily means that they themselves were not in possession of the document in question as it cannot be assumed that the plaintiffs despite having possession of the original document would seek production of the original document from the defendant. 29. Proviso (5) and (6) of Section 66 of the Act render secondary evidence admissible, without issuance of notice in case when the adverse party had admitted the loss of the document and when person in possession of the document is out of reach or not subject to the process of the court, respectively. 30. Once neither the plaintiffs nor the defendant, who are admittedly party to the document, are in possession, proviso (5) to Section 66 of the Act would kick in and as admittedly Jhumar Lal, the other person for whom it was indicated that he supplied copy of the document to the petitioner had died, the provisions of proviso (6) of Section 66 would come into force and, therefore, on account of the applicability of proviso (5) and (6) it cannot be said that for lack of issuance of notice by the defendant to the plaintiffs he was not entitled to lead secondary evidence qua the document in question. 31. 31. The other aspect on which the application has been rejected pertains to the admissibility of the original itself on account of the same being unregistered and deficiently stamped. 32. A bare look at the document in question, as noticed hereinbefore, indicates that the document has been executed inter alia with the following indication: ^^vkids o esjs okiksrh ds tehu tk;nkn lEifr py o vpy lEifr dk vkt vki firkth o lHkh ikapks HkkbZ feydj vkilh cUVokMk fuEu Ádkj dj fy;k gSA ftldk bl bdjkj ij ikcUn jgwaxkA** 33. The said indication clearly shows that the partition in question took place by way of the said document. 34. The Hon’ble Supreme Court in Roshan Singh (supra) made distinction between the family arrangement and partition and held that subsequent memorandum of partition embodying the factum of partition would only be family arrangement and its registration was not necessary. However, as the present document cannot be said to a memorandum rather the same itself is a partition deed/instrument of partition dividing the properties by metes & bounds, the same requires registration under Section 17 (1) (b) of the Registration Act, 1908 and, therefore, the judgment in the case of Roshan Singh (supra) does not come to the aid of the petitioner. 35. The plea raised that the petitioner is entitled to use an unregistered document for collateral purposes under proviso to Section 49 of the Registration Act, also apparently is not available in the present case. 36. Hon’ble Supreme Court in the case of K.B. Saha (supra) inter-alia came to the following conclusion regarding admissibility of a document for collateral purposes: “21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that: 1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards. A collateral transaction must be independent of, or divisible from the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.” (Emphasis supplied) 37. The Hon’ble Supreme Court came to the conclusion that the collateral transaction must be independent of or divisible from the transaction to effect which the law required registration and the transaction must be a transaction not itself required to be effected by a registered document and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose. 38. In the present case reliance placed by the petitioner on the document in question/portion of the document in question, wherein, purportedly the property in question was allotted to him cannot be said to be independent of or divisible from the partition deed, therefore, it cannot be said that the petitioner could use the document in question for collateral purposes as claimed, despite the same being unregistered. 39. To the same effect is the judgment in the case of Roshan Lal (supra) as well. 40. So far as the submission made pertaining to the document being not sufficiently stamped is concerned, in view of the provisions of proviso (e) to Section 39 of the Act of 1998, on payment of deficient stamp duty on the copy of the document the same would not be inadmissible for lack of requisite stamp duty. However, insofar as the present case is concerned, once it is held that the document requires registration and the same cannot be used for collateral purposes, the said aspect goes in oblivion. 41. The submission made that the aspect of admissibility of the document could only be examined once the secondary evidence is permitted to be led cannot be countenanced in view of the judgment in the case of Rakesh Mohindra (supra), wherein, the Hon’ble Supreme Court inter-alia laid down as under: “20. 41. The submission made that the aspect of admissibility of the document could only be examined once the secondary evidence is permitted to be led cannot be countenanced in view of the judgment in the case of Rakesh Mohindra (supra), wherein, the Hon’ble Supreme Court inter-alia laid down as under: “20. It is well settled that if a party wishes to lead secondary evidence, the court is obliged to examine the probative value of the document produced in the court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law.” (Emphasis supplied) 42. In view of the above discussion, the order impugned passed by the trial court does not call for any interference, though for slightly different reasons. 43. Consequently, the petition has no substance and the same is, therefore, dismissed.