Madhya Pradesh High Court
Smt. Manisha Patidar vs Subhash Agrawal S/O Late Shri Babulal ... on 24 February, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:4859
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. PETITION No. 7077 of 2024
SMT. MANISHA PATIDAR
Versus
SUBHASH AGRAWAL S/O LATE SHRI BABULAL AGRAWAL
DECEASED THR LRS SMT. UMA AND OTHERS
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Appearance:
Shri Rohit Kumar Mangal, learned counsel for the petitioner.
Shri Vishal Baheti, learned Senior Advocate with Shri Arjun
Pathak, learned counsel for respondent No.1.
Shri Harshit Sharma, learned counsel for respondent No.14.
Shri Nitin Singh Bhati, learned counsel for respondents No.15
and 19.
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ORDER
(Reserved on 11.02.2025)
(Pronounced on 24.02.2025)
1. This petition under Article 227 of the Constitution of India has
been preferred by the plaintiff/petitioner being aggrieved by the order
NEUTRAL CITATION NO. 2025:MPHC-IND:4859
dated 13.12.2024 (Annexure P/1) passed in RCS 1-A/2014 by the Ist
District Judge, West Nimar, Mandleshwar, District Khargone whereby
her application for impounding the partition deed on the ground of the
same being deficiently stamped has been rejected.
2. The plaintiff has instituted an action against the defendants for
declaration of title, possession, partition and permanent injunction with
respect to the suit property claiming half share therein. The defendants
have filed their written statement denying the plaintiff's claim and have
further submitted that on 20.02.2006 a registered partition deed was
executed and a partition had taken place between the parties. Upon
pleadings of the parties, issues were framed by the trial Court and
thereafter the case was fixed for recording of plaintiff's evidence.
3. The plaintiff was then examined as PW-1. In her cross-
examination, in paragraph No.22, the partition deed dated 23.02.2006
was confronted with her and the same was marked as an exhibit.
Questions were put to the plaintiff in respect of the said partition deed
which she answered. At the time of exhibiting of the partition deed no
objection was raised by plaintiff regarding admissibility of the
document.
4. In his examination-in-chief plaintiff exhibited the original
partition deed as Ex.D/2-A. In his cross-examination plaintiff desired to
produce the Collector guideline for the year 2005-2006 for
demonstrating that the partition deed Ex.D/2-A is not written on
sufficient stamps. The trial Court rejected the said application holding
NEUTRAL CITATION NO. 2025:MPHC-IND:4859
that the document has been exhibited in plaintiff's evidence and at that
time no objection was taken by her as regards the same being
deficiently stamped. After the document having been exhibited no
objection to its admissibility can be taken in view of Section 36 and 61
of the Stamp Act.
5. Thereafter on 10.12.2024 the plaintiff filed an application under
Section 33 of the Stamp Act read with Section 151 of the CPC for
impounding of the partition deed on the ground of the same being
deficiently stamped. The defendants filed their reply to the same. The
application has been rejected by the trial Court by the impugned order
by observing that the partition deed is a registered document which has
been registered on the basis of the stamps affixed thereupon hence it
cannot be said that the document is deficiently stamped. The objection
raised by the plaintiff as regards deficiency of stamps on the said
document has already been decided. No objection was raised by the
plaintiff at the time it was exhibited in evidence, hence the said
objection cannot be considered at the present stage.
6. I have considered the submission of the learned counsel for the
parties and have perused the record.
7. The objection of plaintiff to the admissibility of the partition deed
has been rejected by the trial Court presumably in view of provisions of
Section 36 of the Indian Stamp Act.
8. In Ram Rattan (dead) by L.Rs.Vs. Bajrang Lal and Others
1978 (3) SCC 236 the Apex Court has held that if after applying mind
NEUTRAL CITATION NO. 2025:MPHC-IND:4859
to rival contentions, the trial Court admits a document in evidence,
Section 36 of the Stamp Act would come into play and such admission
cannot be called in question at a later stage of the suit. Where a
document has been inadvertently admitted without the Court applying
its mind as to the question of its admissibility, the instrument could not
be said to have been admitted in evidence with a view to attracting
Section 36.
9. In R.V.E. Venkatachala Gounder Vs. Arulmigu
Viswesaraswami and V.P. Temple and Another 2003 (8) SCC 752 it
has been further held by the Apex Court that the objection as to
admissibility of a document on the ground that the same is inadmissible
by itself can be raised even after the document has been marked as an
exhibit or even in appeal or revision. It has been held as under:-
"20. The learned counsel for the defendant-
respondent has relied on Roman Catholic Mission
v. State of Madras [AIR 1966 SC 1457] in support
of his submission that a document not admissible in
evidence, though brought on record, has to be
excluded from consideration. We do not have any
dispute with the proposition of law so laid down in
the above said case. However, the present one is a
case which calls for the correct position of law
being made precise. Ordinarily, an objection to the
admissibility of evidence should be taken when it is
tendered and not subsequently. The objections as to
admissibility of documents in evidence may be
classified into two classes: (i) an objection that the
document which is sought to be proved is itself
inadmissible in evidence; and (ii) where the
objection does not dispute the admissibility of the
document in evidence but is directed towards the
mode of proof alleging the same to be irregular or
NEUTRAL CITATION NO. 2025:MPHC-IND:4859
insufficient. In the first case, merely because a
document has been marked as "an exhibit", an
objection as to its admissibility is not excluded and
is available to be raised even at a later stage or
even in appeal or revision. In the latter case, the
objection should be taken when the evidence is
tendered and once the document has been admitted
in evidence and marked as an exhibit, the objection
that it should not have been admitted in evidence or
that the mode adopted for proving the document is
irregular cannot be allowed to be raised at any
stage subsequent to the marking of the document as
an exhibit. ----------------- Out of the two types of
objections, referred to hereinabove, in the latter
case, failure to raise a prompt and timely objection
amounts to waiver of the necessity for insisting on
formal proof of a document, the document itself
which is sought to be proved being admissible in
evidence. In the first case, acquiescence would be
no bar to raising the objection in a superior court."
10. In the present case, at the time of recording of plaintiff's
evidence, the partition deed was confronted with her and questions in
regard to the same were asked. The document was marked as exhibit
D/2. However from a perusal of entire paragraph No.22 of deposition of
plaintiff as PW-1, it does not appear that the trial Court applied its mind
whatsoever to the admissibility of the document. The document having
been confronted with plaintiff was marked as an exhibit without
considering its admissibility.
11. The question of admissibility of the document on the ground of
the same being deficiently stamped was mandatorily required to be
considered by the trial Court even if objection in that regard had not
been taken by the plaintiff at the time it was marked as an exhibit. Since
NEUTRAL CITATION NO. 2025:MPHC-IND:4859
the trial Court had not done so it could not have held that the plaintiff
cannot raise any objection as regards admissibility of the document
subsequently.
12. Learned counsel for defendants have placed reliance upon the
decision of the Apex Court in Sirikonda Madhava Rao V/s.
N.Hemalatha and Others Civil Appeal No. SLP (C) 14882-
14883/2022 decided by order dated 14.11.2022 to contend that once the
document had been admitted in evidence such admission cannot be
called in question at any stage of proceedings on the ground that the
instrument has not been duly stamped. However, it is observed that in
the said judgment the document had been admitted in evidence meaning
thereby that its admissibility had been considered at the time when it
was exhibited and thereafter it was admitted in evidence. It was not a
case of mere marking as an exhibit of a document as is the situation in
the present case. The said judgment hence does not help the defendants
in any manner.
13. The trial Court did not apply its mind to admissibility of the
partition deed dated 20.02.2006 before marking the same as an exhibit
Section 36 of the Stamp Act would hence not come into play at all and
the plaintiff would not be precluded from raising objection as regards
its admissibility. The said objection was legally permissible to be raised
by the plaintiff at a later point of time also. The trial Court has erred in
rejecting the objection of the plaintiff only on the ground that no such
objection was taken by her at the time of the document being marked as
NEUTRAL CITATION NO. 2025:MPHC-IND:4859
an exhibit.
14. Consequently the impugned order passed by the trial Court dated
13.12.2024 is hereby set aside and it is directed to decide the objection
of the plaintiff in accordance with law. With the aforesaid direction, the
petition stands allowed and disposed off.
(PRANAY VERMA)
JUDGE
ns
