Gujarat High Court
Harijan Pratap Hendu- Thro Legal Heirs vs Luhar Chelabhai Trikambhai on 13 August, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9387 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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HARIJAN PRATAP HENDU- THRO LEGAL HEIRS & ORS.
Versus
LUHAR CHELABHAI TRIKAMBHAI & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No.
1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8
MR VIJAY H NANGESH(3981) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 13/08/2025
ORAL JUDGMENT
TABLE OF CONTENTS
THE SHORT FACTS OF THE CASE.......................................................................................3
SUBMISSIONS OF THE PETITIONER-DEFENDANT NO.1....................................................4
SUBMISSIONS OF RESPONDENT NO.1-PLAINTIFF............................................................7
POINT FOR DETERMINATION................................................................................................ 8
ANALYSIS................................................................................................................................ 8
CONCLUSION........................................................................................................................ 23
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1. Heard learned Advocate Mr. Shegun Choksi for learned
Advocate Mr. S. P. Majmudar for the petitioners and learned
Advocate Mr. Vijay H. Nangesh for the respondent No.1.
Though served, none appeared for the rest of the
respondents.
2. The present writ application is filed under Article 227 of the
Constitution of India, seeking the following reliefs:
"(A) YOUR LORDSHIPS may be pleased to issue a writ of certiorari
or a writ in the nature of certiorari or any other appropriate writ,
order or direction quashing and setting aside the impugned order
dated 25.04.2013 passed by the learned Principal Senior Civil Judge,
Dhanera in Regular Civil Suit No.31 of 1999 below Exh.184 (at
ANNEXURE-L hereto);
(B) During the pendency and final disposal of the present petition
YOUR LORDSHIPS may be pleased to stay proceedings of Regular
Civil Suit No.31 of 1999 pending before learned Principal Senior Civil
Judge, Dhanera;
(C) Pass any such other and/or further orders that may be thought just
and proper, in the facts and circumstances of the present case."
3. The petitioner has challenged the order dated 25th April,
2013, passed by the Principal Senior Civil Judge, Dhanera in
Regular Civil Suit No.31 of 1999 below Exh.184, whereby the
Trial Court has ordered to exhibit documents which were
produced by respondent No.1 on the record of the suit. The
petitioner, being aggrieved with the impugned order, has
preferred this application. It appears that pending present
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writ application, original petitioner died, so his legal heirs
are brought on record. Nonetheless, herein after they would
be treated as petitioner.
4. As far as possible, the parties will be referred to as per their
original positions before the Trial Court.
THE SHORT FACTS OF THE CASE
5. The petitioner herein is the original defendant No.1, whereas
respondent No.1 is the original plaintiff and the rest of the
respondents are the original defendants of Regular Civil Suit
No.31 of 1999, pending before the Principal Civil Judge,
Dhanera.
5.1. The plaintiff has challenged the execution of sale deed dated
30th December, 1998, executed by original defendants No. 2
to 4 in favour of the petitioner/defendant No.1 and sought a
declaration that it is illegal and not binding on him.
According to the plaintiff, the suit land is agricultural land
and defendants No.2 to 4 have no right to execute sale deed
in favour of defendant No.1 being undivided ancestral land.
The plaintiff also sought for permanent injunction.
5.2. It appears that during the pendency of the suit, few
documents have been submitted by the plaintiffs and vide
order dated 25th April, 2013, passed below Exhibit 184 in the
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suit by the Trial Court, the documents which are sought to be
produced, i.e. Mark 4/1, 4/2, 67/1 and 67/2, have been
ordered to be exhibited and thereby received in evidence.
5.3. The defendant No.1, having objected its exhibit, more
particularly documents produced at Mark 67/1 and 67/2 on
the ground that those documents are in relation to any
immovable property wherein there is a transfer of right in
favour of plaintiff, unless it is registered as per Section-17 of
the Registration Act, such documents could not have been
received in evidence and given exhibit.
5.4. After hearing the parties, the Trial Court has turned down
such objection of defendant No.1 by placing reliance upon
Section-49 of the Registration Act, 1908 (hereinafter referred
to as "Act, 1908") and accordingly passed the impugned
order. Hence, the present application.
SUBMISSIONS OF THE PETITIONER-DEFENDANT NO.1
6. Learned Advocate Mr. Choksi would submit that the Trial
Court has committed jurisdictional error by exhibiting
documents which are produced at Mark 67/1 and 67/2
inasmuch as both these documents are required to be
compulsorily registered as per Section-17 of the Act, 1908. It
is submitted that once such documents are not registered,
they could not have been received in evidence.
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6.1. Learned Advocate Mr. Choksi would submit that the Trial
Court has committed serious error of law by placing reliance
upon the proviso to Section-49 of the Act, 1908, which would
not be applicable to the facts of the present case. It is
submitted that the document produced at Mark 67/2 would
be a relinquishment deed in relation to the suit land in
question, whereby the plaintiff contending that defendant
No.2, who happens to be the aunt of the plaintiff, has
relinquished her right in favour of the plaintiff in relation to
the suit land dated 10th December, 1993.
6.2. Learned Advocate Mr. Choksi, would further submit that
when any right, title or interest is transferred in favour of the
plaintiff by way of such relinquishment deed allegedly
executed by defendant No.2 in favour of the plaintiff, such
document requires to be compulsorily registered as per
Section-17 of the Registration Act. It is submitted that failure
of its registration, as per Section-49 of the Registration Act
read with Section-35 of the Gujarat Stamp Act, it would not
be admissible and thereby could not be exhibited.
6.3. Learned Advocate Mr. Choksi, would further submit that
considering the nature of the suit and the relief as sought for,
which directly touches the title of suit land for which the
alleged relinquishment deed was executed by defendant No.2
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in favour of the plaintiff, such suit proceedings cannot be
considered as a collateral proceeding. It is submitted that the
sale deed executed by defendants No. 2 to 4 in favour of
defendant No.1 would have a direct bearing upon alleged
relinquishment, as the plaintiff has not only referred such
document in his plaint but is also claiming right over the land
as well on strength of such relinquishment deed.
6.4. Learned Advocate Mr. Choksi would further submit that the
Trial Court has completely misconstrued the proviso to
Section-49 of Act, 1908, thereby committed a serious error of
law while passing impugned order i.e. exhibit the documents
produced at Mark 67/1 and 67/2.
6.5. Learned Advocate Mr. Choksi, would further submit that the
document at Mark 67/1 might not have a direct bearing on
the suit land in question, but as it is creating interest in
immovable property by virtue of such execution of agreement
between the plaintiff and his brother, as per said provision of
law, the same is also required to be compulsorily registered.
Thereafter, it could have been received in evidence.
6.6. To buttress his argument, he relies upon the following
decision.
(i) Sita Ram Bhama V/s. Ramvatar Bhama reported in 2018
(15) SCC 130 : 2018 AIJEL-SC-61959.
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6.7. Making the above submissions, learned Advocate Mr. Choksi
would request to allow the present application.
SUBMISSIONS OF RESPONDENT NO.1-PLAINTIFF
7. Per contra, learned Advocate Mr. Nangesh would submit that
there is no error, much less any gross error of law,
committed by the Trial Court while exhibiting the documents
which are produced on record by the plaintiff. It is submitted
that the Trial Court has correctly observed the provisions of
law and thereafter received the documents in evidence by
giving them exhibit.
7.1. Learned Advocate Mr. Nangesh would submit that the
objection which has been raised by defendant No.1 is
misconceived and as such, both these documents which are
produced on record are only for collateral purpose and the
same can be received in evidence as per the proviso to
Section-49 of the Act, 1908.
7.2. Learned Advocate Mr. Nangesh would further submit that
this Court cannot interfere under Article 227 of the
Constitution of India because of some error of law committed
by the Trial Court, unless it is pointed out to this Court that
such error is so gross in nature which required to be
interfered with by this Court.
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7.3. Learned Advocate Mr. Nangesh would further submit that
during the pendency of the present writ application, the suit
has already progressed and reached the stage of final
argument. This Court may not disturb the impugned order
and as such, the Trial Court may be directed to adjudicate
and decide the suit as expeditiously as possible.
7.4. Making the above submissions, learned Advocate Mr.
Nangesh would request not to interfere with it.
POINT FOR DETERMINATION
8. Whether the document which requires compulsory
registration but not registered and even not duly stamped
could have been received in evidence by the Trial Court by
exhibiting it for a collateral purpose?
ANALYSIS
9. The facts which are narrated hereinabove are not in dispute.
The suit is for declaration and injunction whereby the
plaintiff is seeking declaration in relation to the suit land
situated at Survey No. 198 at Village Bapla, Taluka Dhanera,
District Banaskantha, whereby the plaintiff challenged the
sale deed dated 30th December, 1998, executed by
defendants No. 2 to 4 in favour of defendant No.1,
contending, inter alia, that the suit land being undivided
ancestral land of the plaintiff and defendants No. 2 to 4, such
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execution of the sale deed in favour of defendant No.1 is
illegal.
10. It is further averred in the plaint that defendant No.2 has
executed relinquishment deed dated 10th December, 1993, in
favour of the plaintiff in relation to the suit land in question,
whereby the plaintiff agreed to take care of herself being her
real aunt.
11. Now, in view of the aforesaid facts and circumstances of the
present case, when the plaintiff has submitted such
relinquishment deed at Mark 67/2, which was ordered to be
exhibited by the Trial Court, the question would arise as to
whether such document requires compulsory registration
under Section-17 of the Act, 1908 and so also whether it can
be received in evidence for a collateral purpose as has been
done by the Trial Court.
11.1. There is no cavil on the point that any instrument whereby
any right, title or interest is created in favour of the parties
as regards to immovable property having worth more than
Rs.100/-, requires compulsory registration under Section-17
of the Act, 1908. A bare reading of the document produced at
Mark 67/2 would definitely show that defendant No.2 at
given point of time on 10th December, 1993, relinquished her
right in favour of the plaintiff in relation to suit land itself.
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11.2. Thus, in view of the aforesaid, when any document which is
required to be registered having not registered, it cannot be
received in evidence, which can be confirmed by reading the
following provisions of law:
"The Registration Act, 1908
Section-49. Effect of non-registration of documents required to be
registered.
- No document required by section 17 [or by any provision of the
Transfer of Property Act, 1882 (4 of 1882),] [Added by Act 21 of 1929,
Section 10.] to be registered shall
(a)affect any immovable property comprised therein, or
(b)confer any power to adopt, or
(c)be received as evidence of any transaction affecting such property
or conferring such power,
unless it has been registered:
[Provided that an unregistered document affecting immovable
property and required by this Act or the Transfer of Property Act, 1882
(4 of 1882), to be registered may be received as evidence of a contract
in a suit for specific performance under Chapter II of the Specific
Relief Act, 1877 (3 of 1877) 2[ ,3*** or as evidence of any collateral
transaction not required to be effected by registered instrument.]"
"The Stamp Act, 1899
Section-35. Instruments not duly stamped inadmissible in evidence,
etc.
-No instrument chargeable with duty shall be admitted in evidence
for any purpose by any person having by law or consent of parties
authority to receive evidence, or shall be acted upon, registered or
authenticated by any such person or by any public officer, unless such
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instrument is duly stamped : Provided that--
(a) any such instrument 1[shall] be admitted in evidence on payment of
the duty with which the same is chargeable, or, in the case of any
instrument insufficiently stamped, of the amount required to make up
such duty, together with a penalty of five rupees, or, when ten times the
amount of the proper duty or deficient portion thereof exceeds five
rupees, of a sum equal to ten times such duty or portion;
(b) where any person from whom a stamped receipt could have been
demanded, has given an unstamped receipt and such receipt, if
stamped, would be admissible in evidence against him, then such
receipt shall be admitted in evidence against him on payment of a
penalty of one rupee by the person tendering it;
(c) where a contract or agreement of any kind is effected by
correspondence consisting of two or more letters and any one of the
letters bears the proper stamp, the contract or agreement shall be
deemed to be duly stamped;
(d) nothing herein contained shall prevent the admission of any
instrument in evidence in any proceeding in a Criminal Court, other
than a proceeding under Chapter XII or Chapter XXXVI of the Code of
Criminal Procedure 1898 (V of 1898);
(e) nothing herein contained shall prevent the admission of any
instrument in any Court when such instrument has been executed by or
on behalf of the Government, or where it bears the certificate of the
Collector as provided by section 32 or any other provision of this Act."
"Gujarat Stamp Act, 1958
"34. Instrument not duly stamped in admissible in evidence etc :-
No instrument chargeable with duty [(not being an instrument
referred to in sub-section (1) of section 32A ),] shall be admitted in
evidence for any purpose by any person having by law or consent of
parties authority to receive evidence, or shall be acted upon,
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registered or authenticated by any such person or by any public
officer unless such instrument is duly stamped:
Provided that -
(a) any such instrument not being an instrument chargeable with a
duty of twenty naye paise and less shall, subject to all just
exceptions, be admitted in evidence on payment of the duty with
which the same is chargeable, or in the case of an instrument
insufficiently stamped, of the amount required to make up such
duty, [together with a penalty as per clause (b) of sub-section (1)
of section 39 of the Act.]
(b) where a contract or agreement of any kind is effected by
correspondence consisting of two or more letters and any one of
the letters bears the proper stamp, the contract or agreement shall
be deemed to be duly stamped;
(c) nothing herein contained shall prevent the admission of any
instrument in evidence in any proceeding in a Criminal Court,
other than a proceeding under Chapter XII or Chapter XXXVI of
the Code of Criminal Procedure, 1898 (V of 1898);
(d) nothing herein contained shall prevent the admission of any
instrument in any Court, when such instrument has been executed
by or on behalf of the Government or where it bears the certificate
of the Collector as provided by section 32 or any other provision
of this Act."
(emphasis supplied)
12. The conjoint reading of the aforesaid provisions would clearly
indicate that the document which is sought to be produced
on record, having not been registered and so also duly
stamped, it cannot be admitted in evidence.
13. The Trial Court have relied upon the proviso to Section-49 of
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the Act, 1908, thereby is of the opinion that such document
can be received in evidence for collateral purposes. As per
the proviso to Section-49 of the Act, 1908 if any document
which is to be treated as evidence for any collateral
transaction which is not going to be effected by registered
instrument, then such evidence, though it requires
compulsory registration under law, can be received in
evidence.
14. The Trial Court appears to have lost sight of the fact that the
suit is in relation to the land which is mentioned in the
relinquishment deed itself whereby defendant No.2 alleged to
have relinquished her right over suit land in favour of
plaintiff which is the subject matter of the suit. It is not in
dispute that such deed requires to be duly stamped and
registration as transferring right from immovable property.
Further, the plaintiff is seeking declaration in relation to the
very same suit land, questioning the sale deed executed by
defendant Nos. 2 to 4 in favour of defendant No.1. Therefore,
the document produced at Mark 67/2 i.e. the relinquishment
deed, which is relied upon by the plaintiff as evidence, is not
for any collateral transaction, but it would have a direct
bearing on the issue germane in the suit. According to my
view, the relinquishment deed, which is required to be
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compulsorily registered, having not been registered, cannot
be received in evidence by the Trial Court in the present suit
proceedings, which touches the right, title, and interest of
the plaintiff claiming such right by placing reliance upon
such document, which requires compulsory registration.
15. At this stage, it would be apt to refer few observations made
by the Honourable Apex Court in relation to the issue
germane in the present matter. In the case of Sita Ram
Bhama (supra), it was held as follows:
"14. After holding the said documents as inadmissible, this Court
further proceeded to consider the question as to whether the
documents B-21 and B-22 can be used for any collateral purpose. In
the above context, the Court accepted the submission of the appellant
that the documents can be looked into for collateral purpose provided
the appellant-defendant to pay the stamp duty together with penalty
and get the document impounded. In paras 16 and 17, the following
has been laid down:
"16. Then the next question that falls for consideration is
whether these can be used for any collateral purpose. The
larger Bench of the Andhra Pradesh High Court in
Chinnappareddigari Peda Mutyala Reddy v.
Chinnappareddigari Venkata Reddy [Chinnappareddigari
Peda Mutyala Reddy v. Chinnappareddigari Venkata Reddy,
1967 SCC OnLine AP 4 : AIR 1969 AP 242] has held that the
whole process of partition contemplates three phases i.e.
severancy of status, division of joint property by metes and
bounds and nature of possession of various shares. In a suit for
partition, an unregistered document can be relied upon for
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collateral purpose i.e. severancy of title, nature of possession of
various shares but not for the primary purpose i.e. division of
joint properties by metes and bounds. An unstamped instrument
is not admissible in evidence even for collateral purpose, until
the same is impounded. Hence, if the appellant-defendant want
to mark these documents for collateral purpose it is open for
them to pay the stamp duty together with penalty and get the
document impounded and the trial court is at liberty to mark
Exts. B-21 and B-22 for collateral purpose subject to proof and
relevance.
17. Accordingly, the civil appeal is partly allowed holding that
Exts. B-21 and B-22 are admissible in evidence for collateral
purpose subject to payment of stamp duty, penalty, proof and
relevancy."
(emphasis supplied)
16. Likewise, considering above referred provisions of Stamp
Acts also, if deed/document is not duly stamped then also it
cannot be admitted in evidence. There is nothing on record to
show that relinquishment deed was duly stamped as alleged
deed executed only on Rs. 50/ stamp. It is now also well
settled law that unduly stamped document cannot be
received in evidence.
17. It would be apt to refer and to rely upon decision of
Honourable Apex Court in a case of Avinash Kumar Chauhan
V/s Vijay Krishna Mishra reported in (2009) 2 SCC 532 ,
wherein held thus:
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"24. In this case, by reason of the statutory interdict, no transfer at all is
permissible. Even transfer of possession is also not permissible. (See
Pandey Oraon Vs. Ram Chandler Sahu, 1992 Supp2 SCC 77 and
Amrendra Pratap Singh Vs. Tej Bahadur Prajapati and others, 2004 10
SCC 65)
The Registration Act, 1908 provides for such a contingency in terms of the
proviso appended to section 49 thereof, which reads as under:-
"49. Effect of non-registration of documents required to be registered.
No document required by section 17 or by any provision of the
Transfer of Property Act, 1882 (4 of 1882), to be registered shall
(a) affect any immovable property comprised
therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction
affecting such property or conferring such power, unless it has been
registered: Provided that an unregistered document affecting
immovable property and required by this Act or the Transfer of
Property Act, 1882 (4 of 1882), to be registered may be received as
evidence of a contract in a suit for specific performance under Chapter
II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any
collateral transaction not required to be effected by registered
instrument."
25. Section 35 of the Act, however, rules out applicability of such
provision as it is categorically provided therein that a document of this
nature shall not be admitted for any purpose whatsoever. If all purposes
for which the document is sought to be brought in evidence are excluded,
we fail to see any reason as to how the document would be admissible for
collateral purposes.
26. The view we have taken finds support from the decision of the Privy
Council in Ram Rattan Vs. Parmananad, 1946 AIR(PC) 51, wherein it
was held:-
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"That the words 'for any purpose' in section 35 of the Stamp Act
should be given their natural meaning and effect and would include
a collateral purpose and that an unstamped partition deed cannot be
used to corroborate the oral evidence for the purpose of determining
even the factum of partition as distinct from its terms."
The said decision has been followed in a large number of decisions by the
said Court.
27. In Bhaskarabhotla Padmanabhaiah and others Vs. B.
Lakshminarayana and others ,1962 AIR(AP) 132, it has been held:- (AIR
p.134, para 9)
"9. In this case, the learned Subordinate Judge has observed that what
the plaintiff was trying to prove was not the division in status but to
show that the property was divided under the partition deed. In any
case, the fact that the document is inadmissible due to want of being
stamped is clear. For, in Ram Rattan Vs. Parmanand, 1946 AIR(PC)
51, their Lordships of the Privy Council held that the words 'for any
purpose' in S. 35 of the Stamp Act should be given their natural
meaning and effect and would include a collateral purpose and that an
unstamped partition deed cannot be used to corroborate the oral
evidence for the purpose of determining even the factum of partition as
distinct from its terms."
It was furthermore held:- (Bhaskarabhotla case, AIR p.134, para 10)
"10. In the result, I agree with the learned Munsif-Magistrate that the
document is 'an instrument of partition' under Sec. 2(15) of the Indian
Stamp Act and it is not admissible in evidence because it is not
stamped. But, I further held that if the document becomes duly
stamped, then it would be admissible to evidence to prove the division
in status but not the terms of the partition."
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28. In Sanjeeva Reddi Vs. Johanputra Reddi, 1972 AIR(AP) 373, it has
been held:-
"9. While considering the scope of section 35 of the Indian Stamp Act
we cannot bring in the effect of non-registration of a document under
section 49 of the Indian Registration Act. Section 17 of the Indian
Registration Act deals with documents, the registration of which is
compulsory and section 49 is concerned only with the effect of such
non-registration of the documents which require to be registered by
section 17 or by any provision of the Transfer of Property Act. The
effect of non-registration is that such a document shall not affect any
immovable property covered by it or confer any power to adopt and it
cannot be received as evidence of any transaction affecting such
property or conferring such power. But there is no prohibition under
section 49 to receive such a document which requires registration to be
used for a collateral purpose i.e. for an entirely different and
independent matter. There is a total and absolute bar as to the
admission of an unstamped instrument whatever be the nature of the
purpose or however foreign or independent the purpose may be for
which it is sought to be used, unless there is compliance with the
requirements of the provisos to section 35. In other words if an
unstamped instrument is admitted for a collateral purposes. It would
amount to receiving such a document in evidence for a purpose which
section 35 prohibits. There is nothing in the case of B. Rangaiah Vs. B.
Rangaswamy,1970 2 AWR 181, which supports the contention of the
petitioner. That was a case as pointed out by Kuppuswami, J., where
there were two instruments though con-' tained in one document one a
settlement in favour of the 4th defendant therein and the other a will. It
was therefore held that part of the instrument which constitutes a will
did not require any stamp and will be admissible in evidence for
proving the bequest contained therein. It was for that reason that the
learned Judge said that section 35 of the Stamp Act has no application
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to a case where one of the separate instruments relating to one such
matters would not at all be chargeable under the Act as in the case
before him."
29. In T. Bhaskar Rao Vs. T. Gabriel and others, 1981 AIR(AP) 175, it
has been held:-
"5. Section 35 of the Stamp Act mandates that an instrument
chargeable with duty should be stamped so as to make it admissible in
evidence. Proviso A to section 35 of the Stamp Act enables a document
to be received in evidence on payment of stamp duty and penalty if the
document is chargeable, but not stamped or on payment of deficit duty
and penalty, if it is insufficiently stamped. The bar against the
admissibility of an instrument which is chargeable with stamp duty
and is not stamped is of course absolute whatever be the nature of the
purpose, be it for main or collateral purpose, unless the requirements
of proviso (A) to section 35 are complied with. It follows that if the
requirements of proviso (A) to section 35 are satisfied, then the
document which is chargeable with duty, but not stamped, can be
received in evidence."
It was further held: (Gabriel Case, AIR p. 177, para 7)
"7. It is now well settled that there is no prohibition under section 49 of
the Registration Act, to receive an unregistered document in evidence
for collateral purpose. But the document so tendered should be duly
stamped or should comply with the requirements of section 35 of the
Stamp Act, if not stamped, as a document cannot be received in
evidence even for collateral purpose unless it is duly stamped or duty
and penalty are paid under section 35 of the Stamp Act."
(See also Firm Chuni Lal Tukki Mal Vs. Firm Mukat Lai Ram Chanda
and others,1965 AIR(All) 164 and Chandra Sekhar Misra Vs.
Gobinda Chandra Das, 1966 AIR(Ori) 18.)
(emphasised supplied)
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18. The conjoint reading of aforesaid would lead to only
conclusion that relinquishment deed produced at Mark 67/2
is not at all admissible in evidence as neither considered it
for collateral purpose nor registered and so also not duly
stamped. Thus, according to my view, the document
produced at Mark 67/2 i.e. the relinquishment deed, could
not have been received in evidence and accordingly could not
have been exhibited. To that extent, the impugned order
passed by the Trial Court requires interference by this Court,
as the error committed by the Trial Court is a jurisdictional
error which requires to be corrected by this Court exercising
its power under Article 227 of the Constitution of India.
19. So far as other document which was produced at Mark 67/1
i.e. the agreement executed between the plaintiff and his
brother dated 01.12.1988 is concerned, it is neither in
relation to the suit land nor does it create any right in favour
of the plaintiff by virtue of the very agreement. The plain
reading of the agreement would indicate that something had
happened in the past for the land situated at Survey No.
146/2 at Village Bapla, Taluka Dhanera, District
Banaskantha, the same was reduced to writing. Even such
type of document does not requires to be compulsorily
registration and so also not a case of defendant No.1 that it
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was not duly stamped.
20. The judgment which has been placed reliance upon by
learned Advocate Mr. Choksi, Sita Ram Bhama (supra),
wherein it referred to a previous decision of the Honourable
Supreme Court of India in the case of Kale and others V/s.
Deputy Director of Consolidation and others reported in
(1976) 3 SCC 119, where it held that in a case where a
document is merely family arrangement, then it does not
require any compulsory registration. The relevant passage
referred in the Sita Ram Bhama (supra) read thus:
"11. Pertaining to family settlement, a memorandum of family
settlement and its necessity of registration, the law has been settled by
this Court. It is sufficient to refer to the judgment of this Court in Kale
v. Director of Consolidation [Kale v. Director of Consolidation, (1976)
3 SCC 119] . The propositions with regard to family settlement, its
registration were laid down by this Court in paras 10 and 11: (SCC
pp. 126-27)
"10. In other words to put the binding effect and the essentials
of a family settlement in a concretised form, the matter may be
reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to
resolve family disputes and rival claims by a fair and equitable
division or allotment of properties between the various
members of the family;
(2) The said settlement must be voluntary and should not be
induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no
registration is necessary;
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(4) It is well settled that registration would be necessary only if
the terms of the family arrangement are reduced into writing.
Here also, a distinction should be made between a document
containing the terms and recitals of a family arrangement made
under the document and a mere memorandum prepared after
the family arrangement had already been made either for the
purpose of the record or for information of the court for
making necessary mutation. In such a case the memorandum
itself does not create or extinguish any rights in immovable
properties and therefore does not fall within the mischief of
Section 17(2) of the Registration Act and is, therefore, not
compulsorily registrable;
(5) The members who may be parties to the family arrangement
must have some antecedent title, claim or interest even a
possible claim in the property which is acknowledged by the
parties to the settlement. Even if one of the parties to the
settlement has no title but under the arrangement the other
party relinquishes all its claims or titles in favour of such a
person and acknowledges him to be the sole owner, then the
antecedent title must be assumed and the family arrangement
will be upheld and the courts will find no difficulty in giving
assent to the same;
(6) Even if bona fide disputes, present or possible, which may
not involve legal claims are settled by a bona fide family
arrangement which is fair and equitable the family
arrangement is final and binding on the parties to the
settlement.
11. The principles indicated above have been clearly
enunciated and adroitly adumbrated in a long course of
decisions of this Court as also those of the Privy Council and
other High Courts, which we shall discuss presently."
(emphasis in original)
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21. According to my view, the document produced at Mark 67/1
does not require any registration as it does not create any
right, title or interest in favour of the plaintiff by virtue of
such agreement/document itself. So, to that extent, I do not
find any gross error committed by the Trial Court when it
allowed the document produced at Mark 67/1 to be received
in evidence thereby given exhibit.
CONCLUSION
22. In view of the foregoing discussions and reasons, I am of the
view that the Trial Court could not have ordered to exhibit
the relinquishment deed produced at Mark 67/2, which is in
complete misreading of the proviso to Section-49 of the Act,
1908 and so also overlooked S. 35 of Indian Registration Act,
1899 read with S. 34 of the Gujarat Stamp Act, 1958.
23. Having reached the aforesaid finding, the impugned order
requires to be interfered with partially, to the extent that the
document produced at Mark 67/2 i.e. the relinquishment
deed, could not have been received in evidence being not
admitted in law and consequently could not have been
exhibited.
24. In view of the aforesaid, the impugned order dated 25th
April, 2013, passed by the Principal Civil Judge, Dhanera
below Exhibit 184 in Regular Civil Suit No. 31 of 1999 is
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disturbed, thereby partially quashed and set aside to the
aforesaid extent it allowed Mark 67/2 to be received in
evidence and given exhibit. If the Trial Court has already
given exhibit to Mark 67/2, it should de-exhibit it i.e.
Relinquishment deed is order not to be exhibited.
25. The rest of the impugned order passed by the Trial Court is
not disturbed, thereby the documents produced at Mark 4/1,
Mark 4/2 and Mark 67/1, can be received in evidence having
exhibited.
26. In view of the aforesaid conclusion, the present writ
application is hereby partly allowed to the aforesaid extent
only. Rule is made absolute to the aforesaid extent only. No
order as to costs. Interim relief, if any, stands vacated
forthwith. As the suit is of the year 1999, if the parties to the
suit extend their cooperation and support, the Trial Court
may expedite the hearing and adjudication of the suit
accordingly.
(MAULIK J.SHELAT,J)
Nilesh
