Sau. Bayabai W/O Ramrao ... vs Panjabrao Kashinath Gawande And ...
2016 Latest Caselaw 4156 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      




                                                  
                               NAGPUR BENCH, NAGPUR.




                                                 
     WRIT PETITION NO.4681 OF 2014


     1) Sau. Bayabai w/o Ramrao Suryavanshi,
         Aged 48 years, Occupation - Household,




                                       
         R/o At Post Hardaf, Tahsil-Hadgaon,
         District - Nanded.  
     2) Sau. Nanibai w/o Dattarav Wankhede,
         Aged 63 years, Occupation - Household,
                            
         R/o Uti, Taluka- Mahagaon, District-
         Yavatmal.                                         ....       PETITIONERS


                         VERSUS
      
   



     1) Panjabrao Kashinath Gawande,
         Aged 58 years, Occupation - Agriculture,





     2) Atmaram Kashinath Gawande,
         Aged 43 years, Occupation - Agriculture, 
       
         Both R-1 and 2 R/o Uti, Taluka-Mahagaon,
         District - Yavatmal.





     3) Sau. Godavaribai w/o Devrao Wankhede,
         Aged 58 years, Occupation - Household,
         R/o "Swami Samarth Niwas", 
         Nandanwan Colony, Near Pawade Wadi 
         Naka, Nanded, District - Nanded.

     4) Sau. Indirabai Sheshrao Tawar (Devsarkar),
         Aged 56 years, Occupation - Household,
         R/o Drongiri Nagar, in front of Drongiri 
         Temple, Hadgaon, Tq. Hadgaon, 



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         District - Nanded.




                                                             
     5) Sau. Gayabai w/o Prataprao Kavale,
         Aged 57 years, Occupation - Household, 
         R/o Dabhadi, Taluka - Kalmanuri,




                                                            
         District - Hingoli.

     6) Bhalchandra Panjabrao Gawande,
         Aged 31 years, Occupation - Agriculture, 




                                               
         R/o Uti, Taluka - Mahagaon, 
         District - Yavatmal.                                         ....       RESPONDENTS
                             
     ______________________________________________________________
                  Shri A.V. Khare, Advocate for the petitioners,
                            
           Shri S.U. Nemade, Advocate for the respondent Nos. 1 to 4,
           Shri Vivek Thote, Advocate for the respondent Nos.5 and 6.
      ______________________________________________________________
      


                                  CORAM : Z.A. HAQ, J.

DATED : 26 JULY, 2016.

th

ORAL JUDGMENT :

Heard Shri A.V. Khare, Advocate for the petitioners-

original plaintiffs, Shri S.U. Nemade, Advocate for the respondent-

original defendant Nos. 1 to 4 and Shri Vivek Thote, Advocate for the

respondent-original defendant Nos.5 and 6.

2. Rule. Rule made returnable forthwith.

3. The petitioners-plaintiffs take exception to the order

passed by the trial Court by which the objection (Exhibit No.64) of the

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plaintiffs opposing exhibiting of the partition-deed dated 01-05-1974

is rejected.

4. The plaintiffs have filed the civil suit praying for decree for

partition and separate possession. The defendants rely on a document

dated 01-05-1974 styled as "partition-deed", to oppose the claim of the

plaintiffs. The plaintiffs filed an objection (Exhibit No.64) contending

that the alleged partition-deed dated 01-05-1974 is not properly

stamped, it is not registered and it is not genuine document and

therefore, it is not admissible in evidence. The learned trial Judge has

rejected this objection by the impugned order. The learned trial Judge

has relied on the judgment given by the Hon'ble Supreme Court in the

case of Digambar Adhar Patil vs. Devream Girdhar Patil (died)

another reported in AIR 1995 SC 1728 and has concluded that the

document dated 01-05-1974 is not required to be compulsorily

registered.

5. The document (partition-deed) dated 01-05-1974 does not

refer to any earlier event of partition and it shows that the partition is

effected on 01-05-1974.

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6. In the judgment given by the Full Bench of this Court in

the case of Hemendra Rasiklal Ghia vs. Subodh Mody reported in

2008(6) Mh.L.J. 886, it is held that the document which is

inadmissible in evidence can be admitted at any stage deferring the

decision on the question of its admissibility until final judgment of the

case.

7. Considering the above proposition, it has to be held that

the order passed by the learned trial Judge directing exhibiting of the

document cannot be faulted with. However, the conclusions of the

learned trial Judge that the document is not required to be

compulsorily registered and it is admissible in evidence, are not proper

at this stage. The learned trial Judge is required to consider this aspect

at the time of arguments.

8. With the above modifications in the impugned order, the

petition is dismissed. In the circumstances, the parties to bear their

own costs.

                                                                            JUDGE

    adgokar




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                                              CERTIFICATE




                                                               

I certify that this Judgment uploaded is a true and correct copy of original signed Judgment.

Uploaded by : P.M. Adgokar. Uploaded on : 30-07-2016.

P.A. to Hon'ble Judge.