Kuldip Singh vs Harbhajan Singh (Since Deceased) ...
2023 Latest Caselaw 11474 P&H

                                                                              2023:PHHC:098813

                                            C.R. No. 7497 of 2019                             -1-


           IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

                                                                                       Sr. No.204

                                                          Case No. : C.R. No. 7497 of 2019
                                                          Date of Decision : August 01, 2023

                               Kuldip Singh                            ....    Petitioner
                                                    vs.
                               Harbhajan Singh (since deceased)
                               through his LRs and another             ....    Respondents

CORAM : HON'BLE MR. JUSTICE GURBIR SINGH.

                                            *   *   *
           Present :           Ms. Aashna Gill, Advocate
                               for the petitioner.

                               Ms. Bhavna Kapur, Advocate
                               with Mr. Amulay Kalia, Advocate
                               for respondent no.1(a) to 1(f).

                                            *   *   *
           GURBIR SINGH, J. :

1. Challenge in this revision petition filed under Article 227 of the

Constitution of India is to order dated 07.11.2019 (Annexure P-5), passed by

learned Additional Civil Judge (Senior Division), Bholath (hereinafter

referred to as - the Trial Court), whereby application moved by the plaintiff-

petitioner seeking permission to lead secondary evidence by producing a

photocopy of settlement (Iqrarnama) dated 23.05.1990 regarding domestic

oral partition, has been dismissed.

2. Learned counsel for the petitioner has submitted that the

petitioner filed suit for declaration that the petitioner is owner in possession

of land measuring 03 kanals 09 marlas i.e. the suit property and mutation

sanctioned in favour of respondent no.1 on the basis of order dated MONIKA 2023.08.04 17:28 I attest to the accuracy and integrity of this document 2023:PHHC:098813

21.03.1989 is illegal, wrong, void and ineffective. The suit land was

previously owned by father of petitioner and respondents. He died on

18.11.1984. The suit land was inherited by his three sons i.e. petitioner,

respondent no.1 and respondent no.2 in equal shares and mutation no.1184

dated 15.05.1985 was sanctioned in their favour. On 23.05.1990, the parties

effected an oral family partition of the suit land along with the ownership of

other land, which they all had inherited from their father. An agreement of

memory of oral partition dated 23.05.1990 was reducted to writing, in

which, land measuring 115 kanals 04 marlas including the suit property was

given to the petitioner. Mutation no.1332 dated 29.05.1990 was also

sanctioned in favour of the petitioner. The remaining land was also divided

between the parties as per the aforesaid oral family partition. Respondent

no.2, in his written statement, admitted the factum of oral family partition of

the suit land as well as other lands inherited by the partied from their father.

Respondent no.1, in his written statement, admitted that the suit property

was owned by his father as co-sharer and after his death, the same was

inherited by him and his two brothers.

3. Learned counsel for the petitioner further submitted that the suit

land was recorded in the ownership of the petitioner on the basis of oral

family partition settlement dated 23.05.1990 and the original document

dated 23.05.1990 is in possession of respondent no.1. The petitioner had

earlier moved an application before the learned Trial Court to call upon

respondent no.1 to produce the original oral family partition document dated

23.05.1990 but he did not produce the same. Rather, he denied the

MONIKA execution of aforesaid settlement. The petitioner moved application for 2023.08.04 17:28 I attest to the accuracy and integrity of this document 2023:PHHC:098813

seconday evidence by producing a photocopy of the above-mentioned

settlement. The learned Trial Court dismissed the application on the ground

that if the family settlement creats rights in the immovable property, the

same is compulsorily registerable and ought to have been executed on a

proper stamp and such unstamped and unregistered family settlement, which

creates rights in the suit property, could not be proved by way of secondary

evidence.

4. The petitioner also summoned Sadar Kanungo of the office of

Deputy Commissioner along with register of mutations for the year 1990 but

he deposed that the copy of document dated 23.05.1990 was not attached

with the mutation.

5. It is further contended by learned counsel for the petitioner that

if a document does not create a new right but is with regard to declaration of

pre-existing right, then it is not required to be registered. Reliance in this

regard is placed on judgments of Hon'ble Supreme Court passed in Bhoop

Singh vs. Ram Singh Major reported as 1996 AIR (Supreme Court) 196,

Ripudaman Singh vs. Tikka Maheshwar Chand reported as (2021) 7

Supreme Court Cases 446 and Ravinder Kaur Grewal and others vs.

Manjit Kaur and others reported as (2020) 9 Supreme Court Cases 706.

6. Learned counsel for respondent no.1 has produced a photocopy

of the document in question dated 23.05.1990 and has submitted that the

said document is not legible. The same is taken on record. It is submitted

that the document is insufficiently stamped and requires registration. The

learned Trial Court had rightly held that no secondary evidence can be led to

MONIKA prove the said document since the same requires registration. Reliance has 2023.08.04 17:28 I attest to the accuracy and integrity of this document 2023:PHHC:098813

been placed on a judgment of Hon'ble Supreme Court in Bipin Shantilal

Panchal vs. State of Gujarat - Criminal Miscellaneous Petition No.862

of 2001, decided on 22.02.2001.

7. I have heard submissions made by learned counsel for the

parties.

8. A Co-ordinate Bench of this Court, in Ashok Kumar vs.

Sudesh Rani and another - CR-8166-2018, decided on 21.07.2023, after

examining the provisions of the Indian Evidence Act, 1872, Code of Civil

Procedure, 1908 and the High Court Rules and Orders, has held that there is

no provision for filing an application for permission to lead secondary

evidence. The relevant extract of the said judgment reads as under :-

"4. In fact, after examining the provisions of the Indian Evidence Act, 1872, Code of Civil Procedure, 1908 and the High Court Rules and Orders, this Court in RSA-327-1989, titled as "Madan Lal Vs. Shankar and others", decided on 01.11.2018, came to a conclusion that there is no provision for filing an application for permission to lead secondary evidence.

5. In Civil Revision Application No.82 of 2016, decided on 10.11.2017, Bombay High Court also held that such applications are being filed under misconception, which has now attained provisions of an epidemic. Even the Supreme Court in Dhanpat Vs. Sheoram (Deceased) through LRs and others, 2020 SCC online SC 606 made observations in this regard.

6. In Civil Revision No.2575 of 2020, titled as "Vinod Kumar Vs. Satbir Singh", MONIKA 2023.08.04 17:28 I attest to the accuracy and integrity of this document 2023:PHHC:098813

decided on 03.03.2021, this Court has held as under:-

"Keeping in view the aforesaid facts, this Court is of the opinion that the order under challenge cannot be sustained. This order is declared to be inoperative. The Civil Court is directed to decide the aspect of admissibility of the secondary evidence while deciding the suit. Needless to observe that the plaintiff shall not be denied an opportunity to lead the relevant evidence. The trial court while finally deciding the case will be entitled to evaluate such evidence and decide whether the plaintiff has successfully proved the existence, validity and genuineness of the agreement to sell and the receipt thereof by way of secondary evidence."

9. Thus, the parties are entitled to lead secondary evidence. The

learned Trial Court has held that the family settlement, which creates rights

in the suit property, could not be proved by way of secondary evidence. It is

settled law if document is regarding declaration of the pre-existing rights,

the same is not compulsorily registerable in view of Section 17 of the

Registration Act, 1908. If any document, when produced in Court, is

insufficiently stamped and objection is raised regarding deficiency of stamp

duty, the Court would decide the same before proceeding further. The Court

can allow the document to be read with the condition to pay the stamp duty

along with some penalty. The leanred Trial Court did not decide if the

document was sufficiently stamped or not. Even from the photocopy of the

document, it can be ascertained that the document dated 23.05.1990 was

written on a stamp paper of Rs.5/-. The respondents can very well raise the

MONIKA 2023.08.04 17:28 I attest to the accuracy and integrity of this document 2023:PHHC:098813

objection about insufficient stamp duty on the document when evidence

would be led to prove the said document. In the case of Bipin Shantilal

Panchal (supra), it is held by Hon'ble Supreme Court whenever an

objection is raised during evidence taking stage regarding the admissibility

of any material or item of oral evidence, the Trial Court can make a note of

such objection and mark the objected document tentatively as an exhibit in

the case, subject to such objections to be decided at the last stage in the final

judgment. If the Court finds at the final stage that the objection so raised is

sustainable, the Court can keep such evidence excluded from consideration.

There is no illegality in adopting such a course. If the objection relates to

deficiency of stamp duty of a document, the Court has to decide the

objection before proceeding further.

10. In the light of above discussion, the order passed by learned

Trial Court is not sustainable in the eyes of law. Accordingly, the present

revision petition is allowed. The impugned order 07.11.2019 (Annexure P-

5), passed by learned Trial Court, is hereby set aside and the application

moved by the plaintiff-petitioner seeking permission to lead secondary

evidence by producing a photocopy of settlement (Iqrarnama) dated

23.05.1990 regarding domestic oral partition, stands allowed, subject to

proof of its existence and not in his possession. If objection with regard to

deficiency of stamp duty is raised, the Court shall decide the said objection

before proceeding further. The Court can keep all other objections open, to

be decided later. The question whether the document is admissible or not

can be decided at the time of final stage of the case.

MONIKA

11. The revision petition stands allowed in the above terms. The 2023.08.04 17:28 I attest to the accuracy and integrity of this document 2023:PHHC:098813

parties are directed to appear before the Trial Court on 04.09.2023.

12. Pending applications, if any, shall stand automatically disposed

of along with this judgment.

           August 01, 2023                                       (GURBIR SINGH)
           monika                                                    JUDGE

                               Whether speaking/reasoned ?       Yes.
                               Whether reportable ?              Yes/No.




MONIKA
2023.08.04 17:28
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