[Cites 5, Cited by 0]
Bombay High Court
Shri. Vivek Kashinath Patil vs Shri. Sandip Kashinath Patil And Ors. on 4 December, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:53092
32-wp11397-2015 final.doc
MPB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11397 OF 2015
Shri. Vivek Kashinath Patil ... Petitioner
V/S.
Shri. Sandip Kashinath Patil
and Ors. ... Respondents
Ms. Swati H. Sagvekar for the petitioner.
Mr. Onkar V. Warange for Respondent Nos, 1 to 3
CORAM : AMIT BORKAR, J.
DATED : DECEMBER 4, 2025
P.C.:
1. Rule. Rule is made returnable forthwith with consent of
the parties.
2. The petitioner has invoked the supervisory jurisdiction
under Article 227 of the Constitution. The petitioner is the original
defendant. He challenges the order dated 7 October 2015 passed
by the Civil Judge Senior Division, Palghar in Civil Suit No. 35 of
2010. By the said order, the Trial Court permitted the plaintiff, in a
suit seeking reopening of partition, to lead oral evidence regarding
a document described as a Memorandum of Understanding.
3. The Trial Court examined the material placed before it. It
recorded a clear finding that the documents on record prima facie
indicate that a family arrangement had been executed. A copy of
that document had been handed over to Defendant No. 1. Once
32-wp11397-2015 final.doc
such material was before the Court, Defendant No. 1 was under a
duty to produce the original. The plaintiff had issued notice calling
upon Defendant No. 1 to produce the original document. Despite
such notice, Defendant No. 1 did not produce the Deed of family
arrangement. In these circumstances, the Court held that the
plaintiff was entitled to lead oral evidence.
4. The defendant challenged this finding. He relied on the
judgment of a co-ordinate Bench of this Court in Kanchan Bajrang
Powar versus Aappa Dagdu Powar (Writ Petition No. 1194 of
2022) decided on 12 March 2025. He submitted that a reading of
both the documents described as Memorandum of Understanding
shows that they operate as deeds of partition. According to him,
the partition stood effected by these documents. He submitted that
such documents create fresh rights, title and interest within the
meaning of Section 17B of the Registration Act, 1908. He argued
that the documents require compulsory registration. An
unregistered document of that nature is inadmissible in evidence.
He therefore contended that the impugned order is erroneous.
5. The learned Advocate for the plaintiff opposed the
petition. He submitted that the documents were executed on
stamp duty of Rs. 5. He submitted that the nature and contents of
the instrument show that the stamp duty paid was sufficient. He
further submitted that the original document was in the possession
of Defendant No. 1. Despite due notice, Defendant No. 1 failed to
produce it. He submitted that these facts satisfy the requirements
of Section 65 of the Indian Evidence Act, 1872. He therefore
submitted that the Trial Court committed no error in permitting
32-wp11397-2015 final.doc
the plaintiff to lead secondary evidence.
6. I have heard the learned advocates for both sides. I have
examined the record. I have considered the nature of the
document and the reasons recorded by the Trial Court. The
question before the Court is narrow. It concerns the admissibility of
secondary evidence when the document sought to be proved is
unregistered and insufficiently stamped.
7. The decision of this Court in Kanchan Bajrang Powar
provides clear guidance. In that case, the Trial Court had refused
permission to lead secondary evidence of a partition deed. The
refusal was founded on two grounds. The document was
unregistered. The document was insufficiently stamped. The Co
ordinate Bench examined the statutory position and the bar
created by the Stamp Act. Paragraph 24 of the judgment records a
clear conclusion that when a document is insufficiently stamped,
the Court cannot look into it. Secondary evidence of such a
document cannot be permitted. The defect of insufficient stamp
cannot be cured when only a copy is produced. The Court noted
that since a copy cannot be impounded, the document cannot be
validated by payment of deficit stamp duty or penalty. This
reasoning rests on settled principles. The Court is duty bound to
enforce mandatory statutory requirements. When a document
itself is inadmissible, its copy cannot gain better footing.
8. The consequence of the above discussion is clear. If the
document is unregistered and the law mandates its registration,
the Court cannot admit it in evidence for proving the terms of
32-wp11397-2015 final.doc
partition. Secondary evidence of such an instrument cannot be
allowed. The proposition laid down by the Co ordinate Bench
reflects the correct legal position. I accept it. Applying that position
to the present case, the Trial Court erred in granting leave to the
plaintiff to lead secondary evidence. The plaintiff seeks to rely on a
document which bears the character of a partition deed. Such
document attracts compulsory registration. An unregistered
instrument of this nature cannot be admitted in evidence. The Trial
Court overlooked this settled position.
9. On a plain reading of the two documents, it is clear that
the parties divided their properties through the instrument in
question. The language shows that the division was effected in the
present. It does not record a past settlement already acted upon.
The document therefore operates as a deed of partition. Such
document creates rights and interests in immovable property. It
attracts the requirement of compulsory registration. In absence of
such registration, the document cannot be received in evidence.
10. Hence, Rule is made absolute in terms of prayer clause
(b).
11. The writ petition is disposed of.
(AMIT BORKAR, J.)
