Rajasthan High Court
Dinesh Kumar Soni vs Shri Har Bilas on 17 October, 2022
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1912/2017
Dinesh Kumar Soni Son Of Late Shri Hiralal Soni, Aged 56 years,
Resident of Gali No.1, House No.18, Geeta Colony, Ajmer
----Petitioner
Versus
Shri Har Bilas Son Of Late Shri Hiralalji, Resident of Near
Chandliyawas Water Tank, Peesangan, District Ajmer.
----Respondent
For Petitioner(s) : Mr. Veyankatesh Garg, Adv.
For Respondent(s) : Mr. B.R. Rana, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
17/10/2022
This writ petition has been filed by the petitioner-plaintiff,
challenging the order dated 06.01.2017, whereby the Court below
has allowed the application filed by the respondent under Order 13
Rule 3 & 6 read with Section 151 CPC.
Learned counsel-Mr. Veyankatesh Garg for the petitioner
submitted that the petitioner-plaintiff has filed a suit for division of
common joint holding between the petitioner and the defendant-
respondent, which remained un-partitioned even after family
settlement.
Learned counsel submitted that initially the property
between the parties was partitioned orally, however a Family
Settlement document dated 27.03.1997, was executed and as
such, the parties on the basis of oral partition had taken
possession of their respective share and as such, the ground floor
and the first floor of the building, were in possession of the
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defendant-respondent and the remaining part came into
possession of the present petitioner-plaintiff.
Learned counsel submitted that though complete property
was partitioned, however, except the two entrance gates, situated
in the eastern and western sides of the property and the staircase
leading to the first floor of the building and common open chowk
was as such not partitioned.
Learned counsel submitted that the petitioner when found
that respondent-defendant was making construction over the
property in his possession and petitioner requested them not to
encroach upon the common area as the same was still un-
partitioned, the petitioner ultimately had to file a suit before the
Civil Court for seeking partition of the property, confined to the
staircase and open chowk by way of meets and bound partition.
Learned counsel submitted that the petitioner further sought
an injunction of not dispossessing him and the respondent be
restrained to make any nuisance in the use of the property.
Learned counsel submitted that the petitioner had filed
Family Settlement document dated 27.03.1997 along with a suit
only for the collateral purposes as the oral partition had already
taken place.
Learned counsel submitted that purpose of filing/annexing
the Family Settlement was not for its enforcement but for the
reference of the Court so it could be used as a document while
adjudicating the issue in the suit.
Learned counsel submitted that an application under Order
13 Rule 3 & 6 read with 151 CPC, for taking the Family Settlement
document off the record, came to be filed by the respondent and it
was mentioned that a Family Settlement was drawn only stamp of
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one rupee and same was unregistered and as such, it was
inadmissible in evidence.
Learned counsel submitted that the petitioner filed reply to
the said application and submitted that oral partition had taken
place earlier and formal took place in the year 1997 and it was not
a partition deed but a Family Settlement document which was
drawn for the convenience of the parties to have a reference of
oral partition that took place between them and the document was
filed for collateral purpose.
Learned counsel submitted that by impugned order, the
Court below has allowed the application filed by the respondent
and has directed that the said document to be placed in Part-D.
Learned counsel submitted that the Family Settlement
Deed/document is not required to be registered as per the
judgment passed by the Apex Court in the case of Korukonda
Chalapathi Rao and Another Vs. Korukonda Annapurna
Sampath Kumar, 2021 SCC OnLine SC 847.
Learned counsel further submitted that the Apex Court has
dealt with the identical issue and has come to conclusion that the
Family Settlement can be executed by way of a document and
even if there is a partition of joint family property then also
document is not required to be registered.
Learned counsel further submitted that the respondent in
their entire pleadings do not deny existence of a document and
they only dispute the contents of the document.
Learned counsel further submitted that the issues which
have been framed by the Court below is also not on the basis of
the earlier Family Settlement, which is executed between the
parties and as such, the Court below has specifically framed issue
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No.2 with regard to execution of partition deed in past and further
what will be the effect of the same in the suit and additionally
whether the property in question being given in will, is liable to be
devolved on the person concerned.
Learned counsel submitted that as per law laid down by the
Apex Court, the reasons assigned by the Court below of not taking
the document as admissible in evidence, cannot be sustained.
Learned counsel-Mr. B.R. Rana appearing for the respondent,
submitted that the Court below has not committed any illegality in
passing the order and the document cannot be taken in evidence
as an admissible evidence.
Learned counsel further submitted that the Division Bench of
this Court in D.B. Civil Writ Petition No.15760/2015 (Sanjeev
Bhardwaj Vs. Yogeshwar Swaroop Bhatnagar) & other
connected writ petition, decided by common order dated
04.09.2019, has answered the reference which was made to the
Division Bench.
Learned counsel submitted that the very foundation of the
suit by the plaintiff-petitioner is on the basis of a partition deed
which petitioner is now terming as a Family Settlement and the
said document is not filed for the collateral purpose but the main
issue between the parties is to be decided on the basis of a
document which has been filed by the petitioner.
Learned counsel submitted that the registration as well as
the payment of proper stamp duty is necessary for making any
document admissible in evidence.
Learned counsel further submitted that the Court below has
considered the nature of a document and its implication and as
such, if any right is claimed on the basis of such document, the
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party concerned has to pay necessary Court fee and if valuation of
the property is above Rs.100/- then proper stamp duty is also
required to be paid.
I have heard the submissions made by learned counsel for
the parties and perused the material available on record.
This Court after going through the pleadings, which have
been placed on record and also the issues which have been
framed by the Court below, finds that the reason assigned by the
Court below of not considering the document admissible in
evidence is on account of non-registration of the said document.
This Court finds that the document which was already
referred by the plaintiff-petitioner while filing the plaint, makes a
mention that the oral partition had taken place between the
parties and same was reduced in writing in 1997 and as such, the
petitioner had annexed the said document with the plaint to prove
that the Family Partition had taken place long back.
This Court further finds that the existence of a document is
not denied by the respondent and it is only pleaded that the
document itself is creating independent right between the parties
and further the document is not filed for collateral purpose but the
same is the very basis or foundation of the suit.
This Court further considering the pleadings of the parties
finds that the respondent has nowhere denied the existence of
document and further the earlier Family Settlement or partition of
a property in respect of the property except the property in
question, has nowhere been disputed.
This Court finds that the Apex Court in the case of
Korukonda Chalapathi Rao and Another Vs. Korukonda
Annapurna Sampath Kumar (supra) has dealt with the similar
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issue and the Apex Court has found that even if the Family
Settlement is unregistered and stamp duty is also not paid, the
same document still will be admissible in evidence.
This Court on the basis of a judgment passed by the Apex
Court in the case of Korukonda Chalapathi Rao and Another
Vs. Korukonda Annapurna Sampath Kumar (supra), finds that
the reasoning assigned by the Court below is not correct.
This Court accordingly allows the writ petition and sets-aside
the order dated 06.01.2017 passed by the Court below.
All pending application(s), if any, also stand disposed of.
(ASHOK KUMAR GAUR),J
Ramesh Vaishnav /86
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