Rajasthan High Court - Jodhpur

Chimna Ram vs Sohan Lal on 23 February, 2023

Bench: Arun Bhansali

[2023/RJJD/005896]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 3028/2022

Chimna Ram S/o Late Shri Chhoga Ram Ji, Aged About 52 Years, By Caste Prajapat, Resident Of Navchokiya, Inside Merti Gate, Jaitaran, District Pali.

----Petitioner Versus

1. Sohan Lal S/o Jhumar Lal Ji

2. Lal Ram S/o Jhumar Lal Ji

3. Ramlal S/o Jhumar Lal Ji

4. Sushila D/o Jhumar Lal Ji

5. Ram Kanya D/o Jhumar Lal Ji

6. Bidami Devi W/o Jhumar Lal Ji

All Resident Of Meratiya Darwaja, Behind Jain Temple, Jaitaran, District Pali.

.......Non-petitioners/plaintiffs

7. Sub Registrar Officer, Jaitaran, District Pali.

8. Tehsildar, Jaitaran, District Pali.

                                            ......Non-petitioners/defendants


For Petitioner(s)           :    Mr. Arvind Samdariya.
For Respondent(s)           :    Mr. Hemant Balani.



             HON'BLE MR. JUSTICE ARUN BHANSALI

                                      Order

23/02/2023

This writ petition has been filed by the petitioner aggrieved

against the order dated 10/2/2022 passed by the Senior Civil

Judge, Jaitaran (Pali), whereby, the application filed by the

petitioner-defendant under Section 65 of the Evidence Act, 1872

('the Act') seeking permission to lead secondary evidence has

been rejected.

[2023/RJJD/005896] (2 of 13) [CW-3028/2022]

The non-petitioner-plaintiffs filed a suit for cancellation of

release deed and for permanent injunction. The petitioner filed

written statement and contested the suit. During the pendency of

the proceedings, the plaintiffs filed an application seeking direction

to the petitioner to produce the original memorandum of family

settlement/partition dated 14/5/1978. The petitioner filed reply to

the application and denied possession of the document and stated

that the plaintiffs' father - Jhumar Lal had made a photo copy of

the original and had given to him. The trial court observing that as

a specific indication has been made in the reply that the original

document is not in possession of the defendant, the application

was disposed of.

The petitioner, whereafter, filed an application under Section

65 of the Act with the averments that based on the written

partition dated 14/5/1978, written statement has been filed, as

the defendant was minor at the relevant time, being 'Karta

Khandaan', the original of the deed was kept by father of the

plaintiffs and other brothers; on account of filing of the suit when

the defendant sought original, the same was refused and,

therefore, along with the written statement a photocopy of the

document was produced. It was further indicated that it has also

been determined by the Court that the original is not in possession

of the defendant and, therefore, the said photocopy needs to be

produced as secondary evidence. Based on the said averments,

permission to lead secondary evidence was sought.

Reply to the application was filed by the plaintiffs referring to

the fact of notice issued for production of original of the partition

deed and denial by the defendant and that in absence of the

[2023/RJJD/005896] (3 of 13) [CW-3028/2022]

original, the contents of the document cannot be proved. Further

plea was raised that as on the original document requisite stamp

duty was not paid and was unregistered, for lack of requisite

stamp duty and being unregistered the same is inadmissible in

evidence and, therefore, the secondary evidence of such

document cannot be led. Further averments were made with

regard to the contents of the document and it was prayed that the

application be dismissed.

The trial court after hearing the parties, by its order dated

10/2/2022 came to the conclusion that the defendant though

repeatedly relied on the partition deed dated 14/5/1978 in the

written statement, it was not disclosed that the original was not

with him. It was further concluded that though the allegations

were made regarding the document being in possession of father

of the plaintiffs and other brothers and their refusal to hand over

the original, in terms of the mandatory requirement of issuing

notice, no notice was given and, therefore, for lack of notice in

terms of Section 66 of the Act, the secondary evidence cannot be

led.

The court also came to the conclusion that the document

regarding which secondary evidence is sought to be led is neither

sufficiently stamped nor registered and, therefore, on account of

said aspect, the photocopy of such a document cannot be

admitted in evidence and consequently, rejected the application.

It is submitted by learned counsel for the petitioner that the

trial court fell in error in dismissing the application filed by the

petitioner by holding that requisite notice under Section 66 of the

[2023/RJJD/005896] (4 of 13) [CW-3028/2022]

Act has not been issued, ignoring the provisions of proviso (5) &

(6) of Section 66 of the Act.

Submissions were made that the plaintiffs themselves made

an application seeking production of the original from the

defendant- petitioner, which necessarily means that they

themselves were not in possession of the document and also

apparently unaware of its whereabouts, as such the same would

amount to the plaintiffs themselves admitting the loss of the

document.

Further submissions were made that it was the specific case

of the petitioner that Jhumar Lal ji had made a copy of the

document and handed over to him and as Jhumar Lal ji had

admittedly died during the pendency of the suit, no notice in this

regard could have been issued to him and, therefore, in light of

proviso (5) & (6) to Section 66 of the Act, for lack of notice under

Section 66 of the Act, the application filed by the petitioner could

not have been rejected by the trial court.

Further submissions have been made that the second ground

for rejection of application on account of the fact that the original

of the document itself was not sufficiently stamped and

unregistered and, therefore, the secondary evidence in this regard

could not be led, also has no basis, inasmuch as, proviso to

Section 49 of the Registration Act, 1908 ('the Act of 1908'), clearly

provides that an unregistered document can always be used for

collateral purposes and as the purpose of the petitioner for

producing the partition deed is for collateral purpose, it cannot be

said that on account of the original itself being unregistered, the

secondary evidence in this regard could not be led.

[2023/RJJD/005896] (5 of 13) [CW-3028/2022]

Submissions were made that insofar as the sufficiency of the

stamp duty paid is concerned, the trial court, has in a cursory

manner dealt with the said aspect and has not determined as to

how the stamp duty paid on the original document was

insufficient.

Further submissions have been made that insofar as the

alleged deficiency of stamp duty is concerned, the same can very

well be cured in terms of Section 39 of the Rajasthan Stamp Act,

1998 ('the Act of 1998'), wherein, under proviso (e) deficient

portion of the stamp duty can be paid even on a copy of any

instrument and, therefore, rejection of the application by the trial

court cannot be sustained.

It was also sought to be emphasized that the aspect of

admissibility of the document regarding which secondary evidence

is sought to be led, cannot be determined at the stage of deciding

the application under Section 65 of the Act and, therefore, the

order impugned deserves to be quashed and set aside.

Reliance has been placed on the judgments in Roshan Singh

& Ors. vs. Zile Singh & Ors. : AIR 1988 SC 881, M/s K.B.Saha &

Sons Pvt. Ltd. vs. M/s Development Consultant Ltd. : AIR 2008 SC

(Supp.) 850, Mahaveer Prasad vs. Sayra Devi : 2016 (2) WLC

(Raj.) 448 & Keshu Ram vs. Sonaki Bai : 2018 (1) WLC (Raj.)

589.

Learned counsel for the respondents vehemently opposed

the submissions. It was submitted that the trial court was justified

in coming to the conclusion that the requirements of Section 66 of

the Act, which is prerequisite for leading secondary evidence

under Section 65 (a) of the Act have not been complied with

[2023/RJJD/005896] (6 of 13) [CW-3028/2022]

inasmuch as besides the averments that the document was in

possession of Jhumar Lal, it was alleged that the same was in

possession of Jhumar Lal and other brothers, admittedly other

brothers were still alive, however, no notice as required under

Section 66 of the Act was issued to them and, therefore, the

mandatory requirement of the Act has not been fulfilled. It was

submitted that a bare look at the document in question would

reveal that the document in question has been executed by

Bhanwar Lal s/o Chogga Ji making reference to the partition of the

property among father and five brothers, which had been signed

by all and the document in question, therefore, necessarily falls

within the definition of instrument of partition under Section 2(xx)

of the Act, 1998 and needs requisite stamp duty as provided

under the Act.

Submissions have been made that very fact that the

document indicates that the partition has been done 'today' and

'as under' necessarily means that the same was a document of

partition dividing the properties by metes and bounds and

required registration.

It was further submitted that the petitioner has relied on the

said document and contents thereof as sheet anchor of his

defense and, therefore, it cannot be said that the same is sought

to be used by him for collateral purposes and as such for lack of

registration, when original itself was inadmissible in evidence,

consequently secondary evidence of such an inadmissible

document cannot be led.

Further submissions were made that the Court is obliged to

examine the probative value of the document produced in the

[2023/RJJD/005896] (7 of 13) [CW-3028/2022]

Court or its contents to decide the admissibility of the document in

secondary evidence and, therefore, it cannot be said that the

aspect of admissibility of the document cannot be examined at the

stage of deciding the application under Section 65 of the Act. It

was prayed that the order impugned does not call for any

interference and the petition deserves dismissal.

Reliance has been placed on Rakesh Mohindra vs. Anita Beri

& Ors. : (2016) 16 SCC 483.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

As noticed, the trial court has rejected the application

seeking to lead secondary evidence on account of non-compliance

of the provisions of Section 66 of the Act, and on account of

inadmissibility as the original itself was neither registered nor bear

the requisite stamp duty.

The suit was filed by the plaintiffs seeking cancellation of the

release deed dated 10/6/2009 executed by the defendant no.2 in

favour of petitioner inter alia on the ground that he had no right to

execute the document.

In the written statement, the petitioner-defendant no.1 with

reference to the partition deed dated 14/5/1978 claimed that

based on the said document the land in question was given to

defendant no.1 and copiously referred to the said aspect of

partition for the purpose of defending the release deed in his

favour. Though the aspect of partition deed dated 14/5/1978, as

noticed, was copiously stated in the written statement and a photo

copy whereof was produced along with the written statement, the

fact about existence of its original and/or the same being in whose

[2023/RJJD/005896] (8 of 13) [CW-3028/2022]

possession was no indicated. The plaintiffs on account of reliance

placed in the written statement, sought production of original by

filing application under Order XI Rule 18 CPC to which a reply was

filed by the petitioner regarding defendant no.2 - Jhumar Lal

handing over a copy of the document to him and the original being

not in his possession, based on which the application came to be

disposed of by the trial court on 13/1/2015. Whereafter, on

26/9/2017 the present application came to be filed seeking

permission to lead secondary evidence with the averments that

the original was kept by father of the plaintiffs - Jhumar Lal ji and

other brothers i.e. plaintiffs and when original was demanded, the

same was refused and, therefore, he may be permitted to lead

secondary evidence qua the partition deed dated 14/5/1978.

The provisions of Section 65 (a) of the Act are clear, wherein,

it is required for the purpose of leading secondary evidence that

when the original is shown or appears to be in possession or

power of the person against whom the document is sought to be

proved and when after notice as mentioned in Section 66 of the

Act, the same is not being produced, secondary evidence of the

contents of the documents is admissible.

Admittedly, in the present case, in reply to the plaintiffs'

application under Order XI Rule 18 CPC seeking the petitioner to

produce the original of the partition deed dated 14/5/1978, it was

not indicated by the petitioner that the document was in

possession of the plaintiffs. The only averment made was that the

father of the plaintiffs Jhumar Lal gave photo copy of the original

to the petitioner. In the written statement also the whereabouts of

the original were not disclosed. However, in the application

[2023/RJJD/005896] (9 of 13) [CW-3028/2022]

seeking permission to lead secondary evidence, it was indicated

that the original was kept by father of the plaintiffs and other

brothers and when demanded the same was refused.

The provisions of Section 66 reveals that secondary evidence

of the contents of the document under Section 65(a) of the Act

shall not be given unless the party proposing to lead second

evidence has previously given to the party in whose possession

the document is, such notice to produce it.

Admittedly, though the allegation made is that the document

was in possession of Jhumar Lal and other brothers i.e. plaintiffs,

no notice has been issued to the plaintiffs to produce the

document.

However, the very fact that the plaintiffs themselves got

issued notice under Order XI Rule 18 CPC to the defendant for

production of the original document necessarily means that they

themselves were not in possession of the document in question as

it cannot be assumed that the plaintiffs despite having possession

of the original document would seek production of the original

document from the defendant.

Proviso (5) & (6) of Section 66 of the Act render secondary

evidence admissible, without issuance of notice in case when the

adverse party had admitted the loss of the document and when

person in possession of the document is out of reach or not

subject to the process of the court, respectively.

Once neither the plaintiffs nor the defendant, who are

admittedly party to the document, are in possession, proviso (5)

to Section 66 of the Act would kick in and as admittedly Jhumar

Lal, the other person for whom it was indicated that he supplied

[2023/RJJD/005896] (10 of 13) [CW-3028/2022]

copy of the document to the petitioner had died, the provisions of

proviso (6) of Section 66 would come into force and, therefore, on

account of the applicability of proviso (5) and (6) it cannot be said

that for lack of issuance of notice by the defendant to the plaintiffs

he was not entitled to lead secondary evidence qua the document

in question.

The other aspect on which the application has been rejected

pertains to the admissibility of the original itself on account of the

same being unregistered and deficiently stamped.

A bare look at the document in question, as noticed

hereinbefore, indicates that the document has been executed inter

alia with the following indication :

"vkids o esjs okiksrh ds tehu tk;nkn lEifr py o vpy lEifr dk vkt vki firkth o lHkh ikapks HkkbZ feydj vkilh cUVokMk fuEu izdkj dj fy;k gSA ftldk bl bdjkj ij ikcUn jgwxkA"

(emphasis supplied)

The said indication clearly shows that the partition in

question took place by way of the said document.

The Hon'ble Supreme Court in Roshan Singh (supra) made

distinction between the family arrangement and partition and held

that subsequent memorandum of partition embodying the factum

of partition would only be family arrangement and its registration

was not necessary. However, as the present document cannot be

said to a memorandum rather the same itself is a partition

deed/instrument of partition dividing the properties by metes &

bounds, the same requires registration under Section 17 (1) (b) of

the Registration Act, 1908 and, therefore, the judgment in the

[2023/RJJD/005896] (11 of 13) [CW-3028/2022]

case of Roshan Singh (supra) does not come to the aid of the

petitioner.

The plea raised that the petitioner is entitled to use an

unregistered document for collateral purposes under proviso to

Section 49 of the Registration Act, also apparently is not available

in the present case.

Hon'ble Supreme Court in the case of K.B.Saha (supra) inter

alia came to the following conclusion regarding admissibility of a

document for collateral purposes :

"21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:-

1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.

2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.

3. A collateral transaction must be independent of, or divisible from the transaction to effect which the law required registration.

4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.

5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."

(emphasis supplied)

The Hon'ble Supreme Court came to the conclusion that the

collateral transaction must be independent of or divisible from the

transaction to effect which the law required registration and the

transaction must be a transaction not itself required to be effected

by a registered document and that to use a document for the

[2023/RJJD/005896] (12 of 13) [CW-3028/2022]

purpose of proving an important clause would not be using it as a

collateral purpose.

In the present case reliance placed by the petitioner on the

document in question/portion of the document in question,

wherein, purportedly the property in question was allotted to him

cannot be said to be independent of or divisible from the partition

deed, therefore, it cannot be said that the petitioner could use the

document in question for collateral purposes as claimed, despite

the same being unregistered.

To the same effect is the judgment in the case of Roshan Lal

(supra) as well.

So far as the submission made pertaining to the document

being not sufficiently stamped is concerned, in view of the

provisions of proviso (e) to Section 39 of the Act of 1998, on

payment of deficient stamp duty on the copy of the document the

same would not be inadmissible for lack of requisite stamp duty.

However, insofar as the present case is concerned, once it is held

that the document requires registration and the same cannot be

used for collateral purposes, the said aspect goes in oblivion.

The submission made that the aspect of admissibility of the

document could only be examined once the secondary evidence is

permitted to be led cannot be countenanced in view of the

judgment in the case of Rakesh Mohindra (supra), wherein, the

Hon'ble Supreme Court inter alia laid down as under:

"20. It is well settled that if a party wishes to lead secondary evidence, the court is obliged to examine the probative value of the document produced in the court or their contents and decide the question of admissibility of a document in secondary evidence. At the same time, the party has to lay down the factual foundation to establish

[2023/RJJD/005896] (13 of 13) [CW-3028/2022]

the right to give secondary evidence where the original document cannot be produced. It is equally well settled that neither mere admission of a document in evidence amounts to its proof nor mere making of an exhibit of a document dispense with its proof, which is otherwise required to be done in accordance with law."

(emphasis supplied)

In view of the above discussion, the order impugned passed

by the trial court does not call for any interference, though for

slightly different reasons.