KRISHNA BAI Vs. SANJAY

JUDGEMENT

(1.) Being aggrieved by the order dated 17.8.2010 passed by 2 nd Addl.District Judge, Barwani in Civil Suit No.20-A/2009, whereby learned Court below has prevented the petitioner to exhibit the document during the course of examination-in-chief of petitioner, present petition has been filed.

(2.) Short facts of the case are that petitioner filed a suit for declaration, permanent injunction and possession, which was contested by respondent No.4 and others. On the basis of the pleadings of the parties learned trial Court framed the issues and fixed the case for recording of evidence. At the time of evidence document dated 5.4.75 was tendered in evidence, upon which an objection was raised by the respondent No.4 to the effect that since the document is a deed of partition and is not duly stamped and also unregistered, therefore, same could not be admitted in evidence. Upon the objection raised by respondent No.4 learned Court below passed the impugned order against which present petition has been filed.

(3.) Learned counsel for petitioner argued at length and submits that impugned order is illegal, incorrect and deserves to be set aside. Learned counsel submits that the document dated 5.4.75 is not a partition but is an arrangement of partition. It is submitted that language of the document itself indicates that partition took place between the members of the family earlier and was reduced in writing by the said document. Learned counsel placed reliance on a decision in the matter of Roshan Singh Vs. Zile Singh, 1988 AIR(SC) 881, wherein the Hon'ble Apex Court had an occasion to distinguish between family arrangement and partition and it was held that if a document is only a memorandum of family arrangement then its registration is not necessary. Further reliance is placed on a decision in the matter of K.G.Shivalingappa Vs. G.S.Eswarappa, 2004 12 SCC 189, wherein in a case where part of recital in memorandum speaks of relinquishment of all rights in favour of one of heir by other hairs in respect of house in question, it was held that it cannot be termed to be a family settlements.