M/S. Qureshi Marble Industries vs Zahiruddin
2021 Latest Caselaw 18708 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 7351/2019

1. M/s. Qureshi Marble Industries, Through The Legal Representatives Of The Sole Proprietor Shakruddin S/o Sultan

2. Jenab Begum W/o Shakruddin,, Aged About 65 Years, Resident Of Near Pir Ki Dargah, Makrana, District Nagaur.

3. Gayur Ahmed S/o Shakruddin,, Aged About 43 Years, Resident Of Near Pir Ki Dargah, Makrana, District Nagaur.

4. Abdul Qayyum S/o Shakruddin,, Aged About 40 Years, Resident Of Near Pir Ki Dargah, Makrana, District Nagaur.

5. Mohd. Aarif S/o Shakhruddin,, Aged About 38 Years, Resident Of Near Pir Ki Dargah, Makrana, District Nagaur.

6. Mohd. Irfan S/o Shakhruddin,, Aged About 36 Years, Resident Of Near Pir Ki Dargah, Makrana, District Nagaur.

7. Shahida Khanam D/o Shakruddin, W/o Mohd. Arfan, Aged About 30 Years, Resident Of Near Pir Ki Dargah, Makrana, District Nagaur.

8. Abdullah S/o Shakruddin, Aged About 26 Years, R/o Makrana, Tehsil Makrana, District Nagaur (Rajasthan).

----Petitioners Versus

1. Zahiruddin S/o Shahabudin, By Caste Vyapari Musalman R/o Chamanpura, Makrana, District Nagaur.

2. Aashiya W/o Shahabuddin, By Caste Vyapari Musalman R/ o Chamanpura, Makrana, District Nagaur.

3. Aamna D/o Shahabuddin, By Caste Vyapari Musalman R/o Chamanpura, Makrana, District Nagaur.

4. Sangam Marble Industires, Through Its Partner Haji Samaun Ali S/o Nizamuddin By Caste Silodiya, R/o Chamanpura, Makrana, Dist- Nagaur.

5. Nisar Ali S/o Nizamuddin, R/o Chamanpura Makrana, Tehsil Makrana, District Nagaur (Rajasthan)

6. Mohd. Aalam S/o Nizamuddin, R/o Chamanpura Makrana, Tehsil Makrana, District Nagaur (Rajasthan)

7. Mohd. Saleem S/o Nizamuddin, R/o Chamanpura Makrana, Tehsil Makrana, District Nagaur (Rajasthan)

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8. Zakir Hussain S/o Nizamuddin, R/o Chamanpura Makrana, Tehsil Makrana, District Nagaur (Rajasthan)

9. Mohammad Yusuf S/o Mohd. Ismail,, R/o Chamanpura Makrana, Tehsil Makrana, District Nagaur (Rajasthan)

10. Anwar Ahmed S/o Mohd. Ramzan, R/o Chawra Tehsil, District Jhunjhunu, At Present Residing At Ullasnagar, Maharashtra.

11. State Of Rajasthan, Through The District Collector, Nagaur.

                                                                   ----Respondents


For Petitioner(s)         :     Mr. Vikas Balia
                                Mr. Vishan Das Vaishnav
For Respondent(s)         :     Mr. Vikas Bijarnia



      HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

                                     Order

09/12/2021

The petitioner is a sole proprietorship firm and the bone of

contention in the present matter is that the petitioner filed a suit

for declaration of permanent injunction against the respondents

and while the pleadings were exchanged and issues were framed,

one family arrangement dated 21.11.1981 was marked as an

exhibit by the trial court below on 05.04.2018.

The issue involved in the present case is whether the exhibit

could have been excluded subsequently on an objection raised by

the respondents on 04.04.2019 whereby they pleaded that the

document in-question requires mandatory registration and

impounding under the Rajasthan Stamp Act, 1998.

Learned court below while deciding adversarial claim

regarding maintainability of the document as exhibit held that the

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document in-question could not have been exhibited as it did not

fulfill the mandatory qualification of registration.

Mr. Vikas Balia, counsel for the petitioner, submits that

document in-question could not have been excluded once it was

already marked as exhibit and the objection raising the issues of

Section 49 of Registration Act, 1908 and Section 39 of the

Rajasthan Stamp Act, 1998 were have been wrongly accepted.

Counsel for the petitioner relied upon the judgment in the

matter of Javer Chand & Ors. Vs. Pukhraj Surana (Civil Appeal

No.3/1958 decided on 25.04.1961) reported in AIR 1961 SC 1655

reads as follows:-

"7. That section is categorical in its terms that when a document has

once been admitted in evidence, such admission cannot be called in

question at any stage of the suit or the proceeding on the ground that

the instrument had not been duly stamped. The only exception

recognised by the section is the class of cases contemplated by s. 61,

which is not material to the present controversy. Section 36 does not

admit of other exceptions. Where a question as to the admissibility of

a document is raised on the ground that it has not been stamped, or

has not been properly stamped, it has to be decided then and there

when the document is tendered in evidence. Once the Court, rightly or

wrongly, decides to admit the document in evidence, so far as the

parties are concerned, the matter is closed. Section 35 is in the nature

of a penal provision and has far-reaching effects. Parties to a

litigation, where such a controversy is raised, have to be circumspect

and the party challenging the admissibility of the document has to be

alert to see that the document is not admitted in evidence by the

Court. The Court has to judicially determine the matter as soon as the

document is tendered in evidence and before it is marked as an exhibit

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in the case. The record in this case discloses the fact that the hundis

were marked as Exs. P. 1 and P. 2 and bore the endorsement 'admitted

in evidence' under the signature of the Court. It is not, therefore, one

of those cases where a document has been inadvertently admitted,

without the Court applying its mind to the question of its

admissibility. Once a document has been marked as an exhibit in the

case and the trial has proceeded all along on the footing that the

document was an exhibit in the case and has been used by the parties

in examination and cross-examination of their witnesses, s. 36 of the

Stamp Act comes into operation. Once a document has been admitted

in evidence, as aforesaid, it is not open either to the Trial Court itself

or to a Court of Appeal or revision to go behind that order. Such an

order is not of those judicial orders which are liable to be reviewed or

revised by the same Court or a Court of superior jurisdiction.

8. In our opinion, the High Court has erred in law in refusing to act upon those two hundis which had been properly proved - if they required any proof, their execution having been admitted by the executant himself. As on the findings no other question arises, nor was any other question raised before us by the parties, we accordingly allow the appeal, set aside the judgment and decree passed by the High Court and restore those of the Trial Court, with costs throughout.

9. Appeal allowed."

Counsel for the petitioner also submitted that on bare

reading of document dated 21.11.1981, it is clear that it is not a

partition-deed or an agreement but virtually it is a family

arrangement and family arrangement and is admissible even

without being registered. Counsel for the petitioner has relied

upon a conclusive language of the arrangement, which reads as

follows:-

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"bl caVokjs ckcr Hkfo"; esa ge ikap ikap fu;qDr djds muls caVokjk fy[kokdj mldks rglhy esa jftLVªh djokus dh dk;Zokgh tc Hkh ge pkjksa HkkbZ pkgsaxs djok ysaxs blesa dksbZ fdlh rjg dh vM+pu ugha djsaxsA ;s mijksDr caVokjk geus gekjh jkth [kq'kh ls lksp le> dj fcuk u'ks irs fcuk fdlh ncko ds rUnqjLrh gkyr esa ;k fcuk fdlh ncko ;k cgdkos esa vk;s dj fy;k gS lks lgh gS blesa ge ;k gekjh vky vkSykn dHkh dksbZ mtj n[ky ugha djsaxs rFkk gesa o gekjh vky vkSykn dks iw.kZr;k ekU; gksxkA blesa dHkh ugha iyVsaxs vxj iyVsaxs rks jkt njckj iap ipk;rh esa >wBs iMs+xsaA bfr fnukad 21&11&1981"

Counsel for the petitioner has relied upon the judgment of

the Hon'ble Apex Court passed in the matter of Thulasidhara &

Anr. Vs. Narayanappa & Ors. (Cvil Apeal No.784/2010 decided

on 01.05.2019) reads as follows:-

"9.3 Now so far as the finding recorded by the High Court that as the Partition Deed dated 23.04.1971 (Exhibit D4) was unregistered though required registration under the Provisions of the Registration Act and therefore the same is not admissible in evidence is concerned, it is required to be noted that as such Exhibit D4 can be said to be a Palupatti as has been described as Palupatti. Palupatti means list of properties partitioned. At the most, it can be said to be a family arrangement. Therefore, in the facts and circumstances of the case, the same was not required to be registered. 9.4 It is required to be noted that the deed dated 23.04.1971, under which the suit property had gone /devolved in favour of the Krishnappa, was reduced in writing before the Panchayat and Panchas, and the same was signed by the village people/panchayat people and all the members of the family including even the plaintiff. Though the plaintiff disputed that the partition was not reduced in writing in the form of document Exhibit D4, on considering the entire evidence on record and even the deposition of plaintiff (cross-

examination), he has specifically admitted that the oral partition had taken place in the year 1971. He has also admitted that he has got

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the share which tellies with the document dated 23.04.1971 (Exhibit D4). Execution of the document/ Partition Deed/ Palupatta dated 23.04.1971 has been established and proved by examining different witnesses. The High Court has refused to look into the said document and/or consider document dated 23.04.1971 (Exhibit D4) solely on the ground that it requires registration and therefore as it is unregistered, the same cannot be looked into. However, as observed by this Court in the case of Kale (Supra) that such a family settlement, though not registered, would operate as a complete estoppel against the parties to such a family settlement. In the aforesaid decision, this Court considered its earlier decision in the case of S. Shanmugam Pillai and Others v. K. Shanmugam Pillai and Others (1973) 2 SCC 312 in which it was observed as under:

"13. Equitable, principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope.

As observed by this Court in T.V.R. Subbu Chetty's Family Charities case, that if a person having full knowledge of his right as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open." 9.5 As held by this Court in the case of Subraya M.N. (Supra) even without registration a written document of family settlement/family arrangement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. In the present case, as observed hereinabove, even the plaintiff has also categorically admitted that the oral partition had taken place on 23.04.1971 and he also admitted that 3 to 4 punchayat people were also present. However, according to him, the same was not reduced in writing. Therefore, even accepting the case of plaintiff that there was an oral partition on 23.04.1971, the document Exhibit D4 dated 23.04.1971, to which he is also the signatory and all other family members are signatory, can be said to be a list of properties partitioned. Everybody got right/share as per

(7 of 9) [CW-7351/2019]

the oral partition/partition. Therefore, the same even can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. Therefore, in the facts and circumstances of the case, the High Court has committed a grave/manifest error in not looking into and/or not considering the document Exhibit D4 dated 23.04.1971."

Counsel for the petitioner by virtue of this judgment harps

upon the point that the family settlement/arrangement always has

an important purpose to serve in the administration of justice and

the same ought to be given due prominence.

Counsel for the petitioner has shown from the pleadings that

in para-7 of his claim, he has categorically mentioned the family

arrangement/settlement dated 21.11.1981 whereas in the written

statement there is no specific denial of existence of the document

dated 21.11.1981.

Counsel for the petitioner also submits that family

arrangement was being followed by the family since long time and

at this stage when he was seeking declaration, it was not on the

basis of family arrangement/settlement but on the basis of the

long standing position taken by various members of the family in-

question in support of which of course the document was having

substantial significance.

Counsel for the respondent has vehemently opposed the

submissions on the ground that a proper application was filed on

04.04.2019 raising objections under Section 49 of the Registration

Act and Section 39 of the Rajasthan Stamp Act which has been

rightly accepted by the trial court below as document requiring

mandatory registration.

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Counsel for the respondent also submits that the thrust of

learned court below is on that the examination of the witnesses

was continuing and thus a judicial examination of admissibility of

the document as exhibited was yet to be examined by the trial

court as primarily the learned court below held that unregistered

document as inadmissible in law cannot be accepted as exhibit.

Counsel for the respondent has also drawn attention of this

Court to para-8 of written statement, in which, it has submitted

that he has denied the family arrangement/settlement whereas a

bare reading of para-8 comes out that the respondent has not

specifically denied the document but has merely quoted that he

has no knowledge of the document while objecting admissibility of

the document as photocopy and is un-stamped.

After hearing counsel for the parties at length and also

looking into the record of the case this Court is of the opinion that

the family arrangement/settlement has a purpose and therefore, it

has been consciously acknowledged as a legal document apart

from a partition agreement or a partition deed in somuch so the

Hon`ble Apex Court in the judgment of Thulasidhara & Anr. Vs.

Narayanappa & Ors. (supra) while considering the earlier

judgments of the Hon'ble Apex Court has categorically observed

that even without registration a written document of family

settlement/family arrangement can be used as an evidence by

explaining arrangement made thereunder and conduct of the

parties would also indicate as to whether the same was being

followed or not.

This Court is also conscious of the fact that the family

arrangement/ settlement is admittedly unregistered but certainly

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the parties seem to have acted in accordance with the family

settlement in the present case, though, on certain points a dispute

has arisen after the second generation stepped into the shoes.

An unregistered document of family settlement/family

arrangement for its own value has to be taken into consideration

by the trial court to arrive at a fair conclusion. Once the

mandatory registration consideration goes away, then

automatically the document in-question becomes admissible for

the purpose of consideration by learned trial court.

In light of aforesaid observations the impugned order dated

09.05.2019 is quashed and set aside and it is directed that the

unregistered family settlement/arrangement dated 21.11.1981

shall be considered as an exhibit by the learned trial court as it

has been already marked so. It is needless to say that it shall be

open for both the parties to contest the document.

It is further needless to say that if there is any another

objection to the document, it shall be open for the respondents to

take the same before the learned trial court.

(DR.PUSHPENDRA SINGH BHATI),J.

53-nirmala/Sanjay-

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