1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR SECOND APPEAL NO.290/2008 Sukhru Rainu Narote and others ...Versus... Smt. Salobai Sukru Kowase (Dead) through L.Rs. ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------- [Shri N.D. Thombre, Adv. for appellants] [Shri B. John, Adv. h/f Shri J.A. Anthony, Adv. for respdt. Nos.1 & 2] CORAM:- A.B. CHAUDHARI, J. DATED :- 24.06.2009 Heard. Learned Counsel for appellants vehemently argued before me challenging the first appellate Court judgment on the ground that the respondent/plaintiff had failed to get produced on record relinquishment-deed dated 10.4.2003 when it was her case that the same was obtained by fraud by the appellants/defendants. He further argued that therefore substantial question of law that arises should be framed. Following substantial question of law is farmed. Whether the document of relinquishment deed dated 10.4.2003 ought to have been filed and proved by the plaintiff who alleged that it was obtained fraudulently by the defendants and whether in the absence of 2 registration of the said instrument the same was admissible in evidence ? Advocate Shri John holding for Advocate Shri Anthony for respondent Nos.1 and 2 submits that in response to the pleadings taken in the written statement by the appellants/defendants about execution of instrument of relinquishment deed dated 10.4.2003 she merely stated in her plaint that the said document of relinquishment deed was obtained by fraud. But then the burden of proof about relinquishment of the share to oppose the suit for partition cannot be shifted on the plaintiff as argued by learned Counsel for the appellants and therefore, according to him the first appellate Court has rightly decreed the suit. I have heard learned Counsel for the rival parties and gone through the impugned judgments. It seems that the appellants/defendants took specific defence that respondent/plaintiff was not entitled to any share in the partition suit because there was an instrument of relinquishment deed dated 10.04.2003 and therefore, the suit should be dismissed. The trial Court accepted the said contention, but the appellate Court found that it was for the appellants/defendants to produce the relinquishment deed if that was their defence and consequently, allowed the appeal and decreed the suit. It was the case of the appellants/defendants that relinquishment deed was executed by the respondent/plaintiff and therefore, it was incumbent on the 3 respondent to produce the same and prove it. That apart the instrument of relinquishment deed has to be a registered document to make it admissible in evidence. I myself have seen the xerox copy of relinquishment deed dated 10.04.2003 and I find that the said document is not registered document. Therefore, even if the document would have been produced by either of the parties the same would be of no consequence, since it was not admissible in evidence. For the above reasons, therefore, the aforesaid question of law framed is answered accordingly. There is no substance in the present second appeal. The same is, therefore, dismissed. No order as to costs. JUDGE ssw