Bhag Chand vs Satya Narayan and Another

Vijay Bishnoi, J.—This writ petition has been preferred by the petitioner against the order dt. 24.07.2013 passed by the Additional Sessions Judge No. 1, Bhilwara (hereinafter referred to be as ''the learned trial Court'') whereby the objection raised by the petitioner in respect of admissibility of documents produced through a witness has been rejected and the trial Court has admitted the documents in question in evidence for collateral purposes. Learned counsel for the petitioner has argued that the documents, family settlement between two brothers and the sale letter dt. 31.05.2010, are unregistered and not bearing requisite stamp duty, therefore, are not admissible in evidence even for collateral purposes. He further contended that as per Section 35 of the Indian Evidence Act, 1899, the documents in question are not admitted in evidence even for collateral purpose.

The learned counsel for the petitioner has placed reliance upon the following judgments:-

(i) Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, .

(ii) 2013 (2) RLW 1239 (Raj.) - Indu (Smt.) vs. Narsingh Das & Ors.

(iii) 2008 (1) DNJ (Raj.) 217 - Bhanwar Lal vs. The District Judge, Sirohi & Anr.

Per contra, learned counsel for the respondents contended that the documents in question admitted in evidence by the learned trial Court for collateral purposes are, a memo. regarding past partition and a copy of agreement to sale in respect of the property other than the suit property, to show the possession of the respondent over the suit land. It is contended by learned counsel for the respondents that the document scribed in Bahi is not an instrument of partition and simply a memo. regarding past partition and, therefore, it can be admitted in evidence for collateral purpose.

Learned counsel for the respondents in support of his arguments has relied upon the order dt. 23.01.2009 passed in S.B.C.W.P. No. 5846/2007 (Hazari Lal vs. Raton Lal & Ors.) and the judgment dt. 04.03.2003 rendered by the Hon''ble Apex Court reported in Bondar Singh and Others Vs. Nihal Singh and Others, .

Heard learned counsel for the parties and perused the documents placed on record.

From perusal of alleged memo. of past partition (Annex. 5), it is clear that the same cannot be termed as memo. of past partition and it is an instrument of partition because in this document, it is clearly mentioned that the properties described in it are partitioned between the brothers from the date it was executed. In the said document there is no mention about the partition of properties from an earlier date.

Hence, the learned trial Court has erred in treating it as a memo. of past partition and, therefore, also erred in admitting the said documents in evidence for collateral purpose. So far as the alleged agreement to sale deed dt. 31.05.2010 is concerned, it is clear that in the said document, it is mentioned that the possession of the property in question is handed over by the transferor to the transferee and the same is not registered and, therefore, cannot be admitted in evidence even for collateral purposes. In view of the above discussion, the writ petition is allowed. The order passed by learned trial Court dt. 24.07.2013 is quashed and set aside and the objections raised by the petitioner regarding the admissibility of the documents in question in evidence are allowed.