PANDURANG DHARMADHIKARI Vs. KUSUMTAI @ MALINI

JUDGEMENT

(1.) THE petition arises out of the order passed by the learned trial Judge in Special Civil Suit No. 3/1998 below Exh. 396 on 1st December, 2011 by which the learned trial Judge has allowed the objection of the respondents, has impounded the document dated 13th May, 1992 as per the provisions of Section 33 of the Bombay Stamp Act and has sent the document to the Collector for necessary action as per the provisions of Section 37 of the Bombay Stamp Act. The petitioners have also challenged the conclusions of the leaned trial Judge that the document dated 13th May, 1992 was required to be registered as contemplated by the provisions of Section 17(1)(b) of the Registration Act and as the document is not registered, it is inadmissible in evidence as per the provisions of Section 49(c) of the Registration Act. The respondents 1 and 2 have filed the civil suit against the petitioners and the respondents 3 to 5 praying for the decree for partition by metes and bounds in respect of 1/7th share of respondents 1 and 2 in the suit property. The respondents 1 and 2, in the alternative have prayed for the decree for declaration that they and the original defendants 2 to 5 (collectively), 6(a) to 6(d) (collectively), 7 (a) to 7(c) (collectively) and defendant No. 8 have equal shares in the suit property excluding the original defendant No. 1. By amendment to the plaint, the respondents 1 and 2 have made an alternative prayer seeking decree for declaration that the partition of 1969 between the deceased Mahadevrao and respondent No. 1 in respect of field Survey No. 84 of Kandli, Tq. Achalpur is unequal and is required to be reopened and had sought declaration that respondents 1 and 2 have 1/7th share in the field.

(2.) THE matter proceeded and the original plaintiffs led evidence and closed their side. Original defendant No. 1 Shri Pandurang Mahadeo Dharmadhikari submitted the evidence on affidavit. During the additional examination -in -chief the original defendant No. 1 Shri Pandurang Mahadeo Dharmadhikari tired to exhibit the partition deed dated 13th May, 1992 which was produced on the record, and stated that it bears his signature and its contents are true. At this stage, the learned advocate for the original plaintiffs raised objection for admitting the document on the record on the ground that it was not a memorandum of partition but the partition deed and therefore, it was not admissible in evidence in view of the provisions of Section 17 and Section 49 of the Registration Act. The learned trial Judge observed that the contents of the document showed that it was a partition deed and memorandum of earlier partition and it was not admissible in evidence in view of the provisions of Section 17 and Section 49 of the Registration Act. The learned trial Judge observed that the document was written on stamp paper only. The leaned trial Judge issued show cause notice to original defendant No. 1 Shri Pandurang Mahadeo Dharmadhikari as to why the document should not be impounded under the provisions of the Bombay Stamp Act and why the consequences under Section 49 of the Registration Act should not be made applicable to the said document. The learned trial Judge directed that the evidence should proceed further. The original defendants filed their reply to the show cause notice issued by the learned trial Judge. The learned trial Judge heard the parties and by the impugned order concluded that considering the recitals of the document dated 13th May, 1992 the document was a partition deed creating and declaring exclusive rights and title of the parties in respect of the shares allotted to them. The learned trial Judge concluded that the above mentioned document had the effect of limiting or extinguishing the rights of other parties in respect of the shares allotted by the partition to a particular party and had restrained the other party/parties from claiming any title or interest in the property of the party/parties. The learned trial Judge held that the document was inadmissible in evidence as it fell within the purview of Section 17(1)(b) of the Registration Act and it was required to be registered and as it was not registered, it was inadmissible in evidence in view of Section 49(c) of the Registration Act. The learned trial Judge impounded the document and has taken action as stated in the order. The petitioners being aggrieved by the above mentioned order has filed this petition.

(3.) IT is submitted that the learned trial Judge has not considered these aspects and has wrongly concluded that the document dated 13th May, 1992 is a partition deed determining the shares of all the parties concerned. The learned senior advocate for the petitioners has submitted that the document dated 13th May, 1992 being a memorandum of partition and not a partition deed, it does not fell within the purview of Section 17(1)(b) of the Registration Act and is not compulsorily required to be registered and consequently, the provisions of Section 49(c) of the Registration Act cannot prevent the petitioners from getting the document exhibited.