1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 1620 OF 2010 Chandrakant Bahurao Jadhav & Ors. ...Petitioners. Vs. Yashwantrao Dattajirao Bhosale & Ors. ...Respondents. ..... Mr. V.B.Rajure, Advocate for the petitioners. Mr.Madhav Jamdar, Advocate for the respondents. ..... CORAM :­ A.S.OKA, J. DATED :­ 19TH MARCH, 2010. ORAL JUDGMENT : 1. The submissions of the learned counsel for the parties were heard on the earlier date. The petitioners in this Writ petition under Article 227 of the Constitution of India are the original plaintiff nos. 1, 2(a), 2(b), 2(c), 2(d) and 3. The petition is taken up for final disposal. The 1st, 2nd & 3rd respondents are the original defendants. The challenge in this writ petition is to the judgment and order dated 18th February, 2010 2 passed by the learned trial Judge on application at Exh.217. A suit has been filed by the petitioners and 4th respondent for declaration and injunction. An application was made by the petitioners at Exh. 217 praying that the documents produced by the petitioners at Exhibit 3/8, Exhibit 110/2 and Exhibit 110/4 may be marked as exhibits. The document at Exhibit 3/8 is a Kabulayat dated 11th September 1985. The document at Exhibit 110/4 is a memorandum of partition dated 10th February 1985 and the document at Exhibit 110/2 dated19th November 1964 is an alleged document of partition. 2. By the impugned order, the prayer made by the petitioners for exhibiting the said documents has been rejected by the learned trial Judge. The petitioners have placed reliance on deposition of their constituted Attorney as well as the deposition of one Krishna Bhau Patil . As far as the document at Exh.3/8 is concerned, the learned trial Judge has held that the document creates a lease for a period of 99 years and therefore, it is a compulsorily registrable document in view of clause (d) of Sub­section­1 of Section 17 of the Indian 3 Registration Act, 1908 (for short “the said Act of 1908”). An argument was advanced that the document will have to be read in evidence for collateral purposes. The said submission has also been rejected by the trial Court. The second document dealt with by the trial Court is the document dated 19th November 1964(Exhibit 110/2). The said document is held by the learned trial Judge as a document of partition. The same is the finding as regards the third document which is the alleged memorandum of partition dated 10th February 1985(Exh.110/4 ). The learned Judge came to the conclusion that both the documents are compulsorily registrable documents in view of Section 17(1)(d) of the said Act of 1908. The effect of the impugned order is that the documents are held as inadmissible as the same are compulsorily registrable documents and in absence of registration, the same cannot be admitted in evidence. 3. The learned counsel appearing for the petitioners has invited my attention to the copies of the said three documents annexed to the petition. He submitted that all the three documents have been proved 4 by examining witnesses. He pointed out that the document dated 19th November 1964 (exhibit 110/2) was admissible in evidence being a 30 years old document. He submitted that the first document dated 11th September 1985 (exhibit 3/8) was merely a Kabulayat and it is not a document creating lease. He submitted that the other two documents are not the documents effecting partition but the same record the partition which has been already effected. He placed reliance on a decision of full bench of this Court in the case of Hemendra Rasiklal Ghia Vs. Subodh Mody [2008(6) Mh.L.J., 886]. He submitted that the objection regarding non­registration could not have been considered at this stage in view of the law laid down by the full bench of this Court. The learned counsel appearing for the first to third respondents supported the impugned order. He submitted that the document styled as a Kabulayat was nothing but a purported lease for a period of 99 years. He submitted that the said document is not adequately stamped and is not registered though it requires registration. Inviting my attention to the contents of the other two documents , he submitted that under the said documents partition of 5 immovable property having value of more than rupees hundred has been effected. He submitted that both the documents are not stamped as a deed of partition. He urged that the registration of both the documents was mandatory. He submitted that the trial court has rightly rejected the application made by the petitioners for admitting the said documents in evidence in as much as the said documents are not admissible in evidence on the ground of insufficiency of stamp and non­registration. 4. The law on this aspect has been laid down by a full bench of this Court in the case of Hemendra Rasiklal Ghia (supra). The questions were formulated by the Full Bench for consideration. The said questions (A) and (B) read thus : Question ­A : At which stage, the objection to the admissibility and/or proof of document which may be produced or tendered should be raised; considered and decided by the Court? Question­B : 6 At which stage, an objection to the admissibility or relevancy of evidence contained in the affidavit filed under Order XVIII, Rule 4 of Civil Procedure Code should be considered and decided by the Court ? 5. The questions have been answered by the full bench as under : Answer to Question ­A As already noticed, (i) objection to the document sought to be produced relating to the deficiency of stamp duty must be taken when the document is tendered in evidence and such objection must be judicially determined before it is marked as exhibit; (ii)Objection relating to the proof of document of which admissibility is not in dispute must be taken and judicially determined when it is marked as exhibit; (iii)Objection to the document which in itself is inadmissible in evidence can be admitted at any stage of the suit reserving decision on question until final judgment in the case. Answer to Question­B : 7 The objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII Rule 4 of C.P.C. can be admitted at any stage reserving its resolution until final judgment in the case as held in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. (supra). 6. The Division Bench has dealt with the different categories of objections. One category of objection is that the execution and contents of the document have not been proved in accordance with the law of evidence. The second category of objection is an objection that the document sought to be tendered in evidence is insufficiently stamped. The third category of objection is where the contention is that the document is inadmissible in evidence on other grounds such as non­registration. 7. In view of the mandate of Section 34 of the Bombay Stamp Act, 1958, the full bench held that an objection as to insufficiency of stamp duty must be taken when the document is tendered in evidence and if such 8 objection is taken, it must be decided by the Court in accordance with law before marking a document at exhibit. As far as the objection regarding proof of the document of which admissibility is not in dispute is concerned, the full Bench held that the objection must be taken and judicially determined when it is marked as exhibit. As held by the full Bench, the decision on the objection regarding inadmissibility of the documents on the ground of want of registration can be reserved till final judgement in the suit. 8. Perusal of the reply filed by the 1 st to 3 rd respondent (original defendants) to the application at Exh.217 shows that as far as 1 st document of Kabulayat is concerned, it was submitted that the document is fabricated. The objection is taken to the proof of the document. It is also contended that the document has not been registered in accordance with the provisions of section 107 of the Transfer of Property Act, 1882. The objection to the other two documents is that the documents are compulsorily registrable documents and therefore, the same cannot be exhibited. The third 9 objection is that the documents are insufficiently stamped. Thus, objections of three categories were raised by the contesting defendants. Perusal of the impugned order and in particular paragraphs nos. 6, 7 , 8, 9 and 10 shows that only one objection regarding non­registration of the documents has been dealt with by the trial court. In fact, said objection could not have been dealt with by the trial Court at this stage in the light of law laid down by the full bench. As far as objection regarding proof of the execution of documents is concerned, the same should have been decided by the trial Court. The reason is that if the court comes to the conclusion that the evidence on record does not prove the execution of documents, the party concerned can always move the Court for leading further evidence. However, that aspect has not been considered by the trial court. Objection based on insufficiency of stamps has been also raised. Even the said objection has not been dealt with by the trial Court. The law requires that the said objection regarding insufficiency of stamp duty has to be dealt with at the stage of marking the document inasmuch as if the Court comes to the 10 conclusion that the documents are insufficiently stamped, the procedure provided under section 34 of the Bombay Stamp Act can be followed and after payment of deficit stamp duty as well as the requisite penalty , the party can rely upon the documents. As far as the objection regarding non­registration is concerned, in view of what is held by the full bench, the said objection will have to be decided at the time of finally deciding the suit. Whether the document requires compulsory registration or not and whether the unregistered document which requires compulsory can be read for collateral purpose are the questions which will have to be decided by the trial Court at the time of deciding the suit. 9. The entire Judgment of the trial court, as stated earlier, deals with the only one objection regarding effect of non­registration. In fact, the other two objections raised ought to have been decided by the learned trial judge and the consideration of the objection regarding non­ registration of documents ought to have been dealt with at the time of finally deciding the suit. 11 10.The issue whether the 2 nd and 3 rd documents are documents effecting partition or the documents merely recording the details of the partition which has been already effected by the parties, has been decided by the trial Court. There is a finding recorded even as regards the nature of the document styled as a Kabulayat. The said findings have direct bearing on the issue regarding insufficiency of stamps which will have to be decided by the trial court. Therefore the merits of the said findings will have to gone into by this Court. 11.As far as the 1 st document is concerned, on the plain reading of the document, it purports to create a lease of immovable property for a period of 99 years from the year 1973­74. Therefore, the said document is obviously a compulsorily registrable document under section 107 of the Transfer of Property Act, 1982. As far as the third document dated 19 th November 1964 is concerned, it purports to effect the partition of the properties which are set out in the said document. Therefore the finding of the trial court that the said document is document effecting partition is appears to be correct. As far as the second document of memorandum of partition is concerned, 12 there is a clear recital therein that the partition already effected by and between the parties is being recorded in the said document. It is only a memorandum recording the details of the partition which has already taken place between the parties. To that extent, the learned trial Judge has committed an error by holding that the document was one which itself effects the partition. In the circumstances, the document cannot be treated as a deed of partition. 12. It must be stated that this Court has dealt with the said they documents for testing correctness of the findings recorded by the learned trial judge as regards the nature and effect of the said documents. The issue as to whether the said documents are insufficiently stamped will have to decided by the trial court before considering the question of marking the documents as exhibits. The decision on objection regarding the effect of non­registration will have to be reserved till the decision of the suit. At that time the court below will consider whether the documents can be read for collateral purposes. Therefore, the trial court will have to reconsider the application in the light of discussion made in this judgement.. 13 13. Hence, the petition is disposed of by passing the following order : i. The impugned order dated 18 th February 2010 is quashed and set aside. The application at Exh.217 is restored to the file of the trial court. ii. It is made clear that the Kabulayat, dated 11 th September 1985 (exhibit 3/8) is a document which purports to create a lease for a period of 99 years in respect of immovable property . It is also made clear that the document dated 19 th November 1964 (exhibit 110/2) is a deed of partition. The document dated 10 th February 1985 (exhibit 110/4) is a memorandum of partition which only records the details of the partition which has already been effected between the parties. iii. The trial court is directed to decide the issue regarding proof of the said documents. The trial court will also 14 decide the objection raised as regards the insufficiency of the stamp duty. iv. After hearing the parties, the trial court will pass appropriate order as far as the aforesaid two objections are concerned. It is obvious that if the trial court finds that any of the documents is insufficiently stamped, the said Court will have to follow the procedure under Section 34 of the Bombay Stamp Act, 1958. v. The issue regarding requirement of registration and the effect of non­registration will have to decided by the trial court at the time of finally deciding the suit. At that stage, if the trial court finds that the documents were required to be registered, the trial court will consider whether the documents can be read in evidence for collateral purposes. vi. The trial court will dispose of the application at Exh.217 as aforesaid, as expeditiously as possible, within a period of eight weeks from the date on which an authenticated copy of this order produced before the said Court. 15 vii. The writ petition is partly allowed in above terms. viii. Hearing of the suit is expedited and the trial court shall endeavour to conclude the hearing before end of October­2010. (A.S.OKA, J.)