Surendra Singh and Others vs Narendra Singh and Others

Hon''ble Shri N.K. Mody, J.—Being aggrieved by the order dated 8.8.2011 passed by 1st Civil Judge Class II, Ratlam in Civil Suit No. 7-A/2011, whereby objection raised by the petitioners regarding admissibility of the document was rejected, present petition has been filed.

Short facts of the case are that respondents No. 1 to 5 filed a suit for declaration, which was contested by the petitioners. In the said suit at the stage of evidence memorandum of family arrangement dated 30.10.70 was filed. An objection was raised by the petitioners about admissibility of the document, which was rejected holding that for the collateral purpose document was admissible in evidence against which present petition has been filed.

Learned counsel for petitioners argued at length and submits that impugned order is illegal, incorrect and deserves to be set aside. It is submitted that since the document was a deed of partition, therefore, the document was required to be properly stamped and registered. It is submitted that said document was neither registered nor stamped, therefore, learned Court below committed error in passing the impugned order. Learned counsel placed reliance on a decision in the matter of Shiromani and Others Vs. Hem Kumar and Others, wherein the Hon''ble Apex Court held that document effecting partition of joint family properties and value of more than Rs. 100/- by metes and bounds registration is compulsory. It was further held that in absence of such registration it is inadmissible to prove title of any of the coparceners to any of the property. Further reliance is placed on a decision of this Court in the matter of Smt. Mamta Awasthy and Others Vs. Ajay Kumar Shrivastava, wherein in a suit for specific performance of contract certified partition deed produced as evidence and this Court held that document not duly stamped not admissible even for collateral purpose. It was further held that partition deed cannot be looked into for collateral purpose. Reliance is also placed on a decision in the matter of Chandra Prakash Soni Vs. Dwarka Prasad Soni and Others, , wherein this Court held that deed of partition reduced in writing in a formal document intended to be an evidence of partition is compulsorily registrable under the Act. It is submitted that in the facts and circumstances of the case petition filed by the petitioners be allowed and the impugned order passed by learned Court below be set aside.

Shri A.S.Garg, learned counsel for respondents No. 1 to 5, submits that no illegality has been committed by the learned Court below in passing the impugned order because by the said document the partition, which took place earlier verbally was recorded. Learned counsel placed reliance on a decision in the matter of Guljarilal Jain Vs. Ravikant Shirke, wherein Divisional Bench of this Court has held that the document which itself does not effect a partition but merely acknowledges the earlier partition does not require registration. Reliance is also placed on a decision in the matter of Roshan Singh Vs. Zile Singh, AIR 1988 SC 881 wherein Hon''ble Apex Court had a occasion to make a distinction between the document family arrangement and partition and held that subsequent memorandum of partition embodying factum of partition is only family arrangement and its registration is not necessary. On the strength of aforesaid position of law, learned counsel submits that the petition be dismissed.

From perusal of the document it is evident that said document was reduced in writing on 30.10.70. The said document is having a title to the effect "memorandum of partition". The specific averment is made in the document to the effect that the members of the family divided the agricultural property on 25.10.70 and the partition which took place on that day has been reduced in writing. Since vide document dated 30/10/70 no partition has taken place, but the partition which took place earlier on 25/10/70 was reduced in writing, therefore, this Court is of the view that keeping in view the position of Law no illegality has been committed by the learned trial Court in turning down the objection raised by the petitioners regarding admissibility of the document in evidence. In view of this, petition filed by the petitioners has no merits and the same stands dismissed.

No order as to costs.