1. The petitioner has invoked supervisory powers of this Court under Section 227 of the Constitution of India by challenging the order of learned Principal Civil Judge, Chotila in Civil Suit No.5 of 2010, whereby request to exhibit documents marked as Mark 23/24 and Mark 51/1 has been rejected vide its order dated 29.3.2011 in absence of sufficiency of stamp.
2. The present petitioners are the original defendant Nos.1 to 3 in the Civil Suit filed by the respondent Nos.1 to 5 ( original plaintiffs) for the relief of partition of joint family properties.
The petitioners herein appeared and filed their written statement and along with that, they produced the impugned documents in support of their defence vide Mark 23/24 and Mark 51/1.
3. Learned Senior Advocate Mr. Marshal appearing for the petitioners urged in his emphatic submissions that Mark 51/1 is indicating the intention of the coparceners to become divided in status as the family arrangement had taken place way back in the year 1989 and other document produced vide Mark 23/24 indicates not only the partition but the fact that the said writing has been beneficially acted upon by respondent Nos.1 to 5 (original plaintiffs), who have disposed of their respective shares of the said property. It is the say of the learned advocate that the suit is at the stage of recordance of evidence before the trial Court where by moving an application Exh.116 a request was made to exhibit all these documents and the said application has been decided after hearing both the sides, rejecting the request of exhibiting the documents. The impugned order is attacked on the ground of nonapplication of mind as well as failure on the part of the Court to grasp the rules of interpretation.
4. Learned Senior Counsel for the petitioners also relied upon various judgments to substantiate his submissions that if the rights are created by a particular document, registration would be necessary, but, if such right is already created in the past and mere declaration of the same is made, it does not require any registration. He also further urged that having taken advantage of such writing by making subsequent sale of property, it is not for respondent Nos.1 to 5 to resile from the stand for which he depends on the decision of the Apex Court given in the case of Kale and others vs. Deputy Director of Consolidation and others reported in AIR 1976 SC 807. Reliance is also made on the ratio laid down by the Apex Court in the case of Bipin Shantilal Panchal vs. State of Gujarat and anr. reported in 2001(2) G.L.H. 545, wherein the Apex Court has directed to give tentative exhibits to the documents whenever dispute of administration arises during the pendency of trial.
He also emphasized that there would arise a necessity for this Court to interfere.
5. The respondents, who are the original plaintiff contended that the case of Bipin Shantilal Panchal vs. State of Gujarat and anr.(supra), cannot be made applicable as in the present case, the question was of exhibiting the documents, which contained insufficient stamp and other documents which the respondent seeks to exhibit, is a document of sale and, therefore, the same cannot be exhibited without registration. It is reiteratively contended that there is no error in the order passed by the learned Judge and, therefore no power of superintendence be exercised.
6. Learned advocate Mr. K.R. Dave represents respondent Nos.14 to 17 who have purchased the property from respondent Nos.11 to 12. According to the learned advocate one of the documents being unregistered sale deed, the same cannot be pressed into service for exhibition. The document requires to be presented before the Court for impounding and after sufficient stamp is affixed, present petitioners in their turn can utilize these documents. However, he supported the order of the Court fully and completely terming the same as legal order.
7. Before adverting to the contentions of both the sides, the law on the subject requires to be reproduced. As the insistence is firstly on directing the trial Court to exhibit the documents tentatively, ratio of the Supreme Court as laid down in case of Bipin Shantilal Panchal vs. State of Gujarat and anr. (supra) needs reproduction : “14. When so recast, the practice which can be a better substitute is this: 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(or record the objected part of the oral evidence) 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 Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)
15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
16. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.
17. Now, for disposal of the present application we may state that there is no point in our granting further time to the trial court to complete the trial. It is for the trial court to complete it as early as possible. But we would not do anything to deprive the accused in custody of his right to move for bail on account of the delay thus far occasioned. The bail application would be disposed of by the court concerned on its own merits. With the above observations we dispose of this application.”
8. The Apex Court in the case of Tek Bahadur Bhujil vs.
Debi Singh Bhujil and others reported in AIR 1966 SC 292, was considering the question as to whether family arrangement can also be arrived at orally and opined in affirmation and held that so as to not to have any hazy notions, the same can be reduced in writing as memorandum with the purpose of using that writing as proof of what had been arranged, such document requires no registration. Thus, the document which merely reflects the agreement between the parties, does not require compulsory registration under Section 17 of the Registration Act.
In the words of the Apex Court: “12. Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. The document Exhibit 3 does not appear to be of such a nature. It merely records the statements which the three brothers made, each referring to others as brothers and referring to the properties as joint property. In fact the appellant, in his statement, referred to respondents 1 and 2 as two brother copartners; and the last paragraph said:
"We, the three brothers, having agreed over the above statement and having made our own statements in the presence of the Panch called by us, and signed and kept a copy of each of this document as proof of it."
The document would serve the purpose of proof or evidence of what had been decided between the brothers. It was not the basis of their rights in any form over the property which each brother had agreed to enjoy to the exclusion of the others. In substance it records what had already been decided by the parties. We may mention that the appellant and respondent No. 1, even under this arrangement, were to enjoy the property in suit jointly and it is this agreement of theirs at the time which has later given rise to the present litigation between the two. The document, to our mind, is nothing but a memorandum of what had taken place and, therefore, is not a document which would require compulsory registration under S. 17 of the Registration Act.”
9. In case of Roshan Singh and others vs. Zile Singh and others reported in AIR 1988 SC 881, the Apex Court held thus: “It is wellsettled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under S. 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally wellsettled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Section 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it is not registered, S. 49 of the Act will prevent its being admitted in evidence. Secondly evidence of the factum of partition will not be admissible by reason S. 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition.”
10. In the case of Kale and others vs. Deputy Director of Consolidation and others reported in AIR 1976 SC 807, the Apex Court dealt with this very issue and held thus: “38. Rebutting the arguments of the learned counsel for the appellant, Mr. Sharma for the respondents contended that no question of estoppel would arise in the instant case inasmuch as if the document was to be compulsorily registrable there can be no estoppel against the statute. In the first place in view of the fact that the family arrangement was oral and the mutation petition was merely filed before the Court of the Assistant Commissioner for information and for mutation in pursuance of the compromise, the document was not required to be registered, therefore, the principle that there is no estoppel against the statute does not apply to the present case. Assuming, however, that the said document was compulsorily registrable the Courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. This principle has been established by several decisions of this Court as also of the Privy Council. In Kanhai Lal v. Brij Lal, 45 Ind App 118 at p. 124 = (AIR 1918 PC 70 at p. 74) the Privy Council applied the principle of estoppel to the facts of the case and observed as follows:
"Kanhai Lal was a party to that compromise. He was one of those whose claims to the family property, or to shares in it, induced Ram Dei, against her own interests and those of her daughter, Kirpa, and greatly to her own detriment, to alter her position by agreeing to the compromise, and under that compromise he obtained a substantial benefit, which he has hitherto enjoyed. In their Lordships' opinion he is bound by it, and cannot now claim as a reversioner."
xxx xxx xxx xxx xxx xxx 42. Finally in a recent decision of this Court in Shanmugam Pillai's case (AIR 1972 SC 2069) (supra) after an exhaustive consideration of the authorities on the subject, it was observed as follows:
"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.”
11. The Supreme Court in the case of Siromani and another vs. Hemkumar reported in AIR 1968 SC 1299, was considering the question of Section 17(1)(b) of the Registration Act and the document which effected the partition of the property of the value of more than Rs.100/ was held to be inadmissible in the evidence for not having been registered. The Apex Court held that in absence of such registration, it would be inadmissible to prove title of any of the coparceners to any of the property but such document, however is held admissible to prove the intention of coparceners to become divided in status.
Thus, the sum and substance that culls out is that the parties which arrive at any family arrangement may choose to reduce the same in writing for the purpose of being used at a future date as a memorandum of record to what had been agreed upon so as to rule out any hazy notion in the arrangement worked out for the purpose of future implementation of such arrangement. Documents, however, would require registration, if that would declare the right of the parties qua the properties but, the document if is merely a memorandum of what had been agreed upon, requires no registration. The memorandum of what had been agreed to by way of the family arrangement is binding on the parties and those who have taken advantage of such arrangement cannot resile from the same on a subsequent date. In other words, if substantial benefit is obtained by agreeing to such arrangement and having enjoyed the fruits of the same, the parties cannot go back to change their stands. Family arrangement stamped but not registered can, of course, be looked into for collateral purposes.
12. This being a clear legal position, the issue which needs to be addressed to by this Court is as to whether the order passed by the Court below requires interference for not having exhibited, both the documents, sought to be relied upon by the petitioner herein, where Mark 51/1 is pressed into service for establishing the intention of coparceners to become divided in status and Mark 23/24 is suggesting the benefits derived by the respondents herein (original plaintiff) by way of such arrangement.
13. The impugned order has been passed by the learned Judge after examining elaborately both the documents as well as the legal point on the issue. The Court after the detailed discussion concluded that both the documents being Mark 23/24 and Mark 51/1 are unregistered and are not duly stamped and, therefore, cannot be ordered to be exhibited in the suit proceedings and passed the operative order as follows: “(1) The present application is hereby disallowed.
(2) It is hereby order to the defendant ( no 1 to 3) to produce the original document (Viz M 23/24 & 51/1) before the court for necessary action under stamp act.
(3) costs shall follow the event of the suit.
Order pronounce in the open court on dated 23/03/2011 @ chotila dist. Surendranagar.”
14. Thus what has been directed by the learned Principal Civil Judge, Chotila is to direct defendant Nos.1 to 3 to produce the original documents before the Court for necessary action under the Stamp Act. Since the Court held both of them as important but unregistered and not having been stamped duly, they were directed to be produced for the purpose of Stamp Act.
Firstly, by looking at the documents at Mark 23/24 the Court interpreted from the phraseology that plaintiff herein had sold one of the suit properties to one Khachar Shantubhai Bhurabhai for consideration of Rs.22,500/. The Court held that it appears from the document that Khachar Shantubhai Bhurabhai was not the family member of the present litigant and, therefore, relying on the decision of the Apex Court of M/s D.N. Roy vs. State of Bihar, and the decision of Madras High Court in the case of A. C. Lakshmipathy and another vs. A. M. Chakrapani Reddiar and others reported in AIR 2001(Madras) SC 135, it held that the settlement of the dispute could be treated as a family arrangement. When this Khachar Shantubhai Bhurabhai was not a close family relative nor legal heir nor having any sort of other title, Mark 23/24 cannot be termed as family arrangement and as the document speaks of a transfer in exchange for a consideration of Rs.22,500/ the same amounts to absolute sale creating right in favour of the purchaser and, therefore, any document that has been granted without registration and proper stamp duties, it would require registration as well as payment of proper stamp duty and, therefore, it cannot be looked into for the evidence or any other purpose without recourse to the provisions of Indian Stamp Act.
As far as other documents Mark 51/1 is concerned, the Court was of the opinion that the defendant has been using this documents as sword against the claim of the plaintiff. There would be a need for compulsory registration under Section 17 of the Registration Act. There does not appear to be any wrong interpretation as far as it is not holding this as a sale. What all it had asked for is to bring the original document for want of sufficiency of the stamp and this finding does not call for any interference.
15. This document Mark 51/1 is a family arrangement whereby Nanjibhai Tadsibhai Dawda has relinquished his rights from all the properties of his father. This forgoing of the rights in favour of the rest, according to the learned advocate for the petitioner, is a mere family arrangement and, therefore, it would not require any registration while examining this document. The trial Court opined that Nanjibhai released his right from the remaining properties of deceased Talsibhai so as to maintain the family harmony and it prima facie concluded that to avoid hazy notions of the property involved and to maintain peace in the family as well as to maintain unity of coparceners intact a memorandum was recorded and therefore, the questioned document is held to be neither family memorandum nor relinquishment deed but, family settlement. Necessary subsequent changes took place in the revenue record on 2.1.1993 and a document conceding that had already exhibited which was indicative that this type of family settlement was already acted upon and held by a detailed discussion that the said document required registration depending on the decision of Tek Bahadur Bhujil vs. Debi Singh Bhujil and others (supra). Accordingly, it directed the parties to produce both unregistered and nonstamped documents before the Court for necessary actions under the Stamp Act. No rights of the parties are concluded. What all the Court had found is that these documents require registration as well as necessary stamps. It is prima facie opinion of the Court and any apprehension in the mind of the present petitioner that the same would take away their rights to contest on the document at the final stage of arguments is also misconceived. In the opinion of this Court, the scope of Article 227 of the Constitution of India as already enumerated in number of decisions of the Apex Court will not permit any interference.
16. As a parting note, it needs to be mentioned that both the documents Mark 51/1 and Mark 23/24 if eventually exhibited following the provisions of Evidence Act, right of both the sides will be kept open to contest on the merit of these documents.
17. With this, the petition is dismissed.
(Ms. Sonia Gokani, J. ) sudhir