GAJANAND AGARWALA Vs. BHAGWATI DEVI

JUDGEMENT

(1.) One Nandlal Agarwala died leaving behind four sons and a widow. The widow and one of the sons, who is a minor instituted Title Suit No. 491 of 1962 in the court of the Munsif 1st court, at Dhanbad for eviction of another son from the suit premises. The case of the plaintiffs opposite party is that, on amicable partition between the sons and the widow of Nandlal Agarwala, the house in question was allotted to the plaintiffs' share. Thereafter, the defendant was inducted as a tenant on the suit premises on a monthly rental of Rs. 60/-.

(2.) At the hearing of the suit, a document, which purports to have been executed, as written in the execution portion of the document by the scribe, on the 23rd March, 1960, but was actually signed by the parties on the 13th April, 1960, was tendered in evidence in support of the plaintiffs' case. This document was characterised as a Panchnama, or if, I may use the expression, also as a yad-dasht of partition, on behalf of the plaintiffs. An objection was raised on behalf of the defendant that the document was an instrument of partition within the meaning of Sub-section (15) of Section 2 and Article 45 of the Indian Stamp Act, as also within the meaning of the Registration Act. Proper stamp duty has not been paid on the instrument, nor is it a registered one. The defendant, therefore objected to the document being taken in as a piece of evidence.

(3.) The learned Munsif has decided: The recitals in this document do not show that this document it-sell is the deed of partition.... But it will be just a memorandum and therefore it will not be necessary for this document to be registered as a deed of partition on which requisite stamp duty has to be paid. Thereafter, taking the view that it will not be lawful to reject the document from going into evidence as it can be taken for a collateral purpose under Section 49 of the Registration Act, he has directed that the document should be marked as an exhibit in the case and admitted into evidence to be considered with all other materials to be produced by the parties in support of their respective cases. The defendant has come up in revision to this Court.