PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner has preferred this writ petition for the following reliefs:- "a) by an appropriate writ, order or direction, the judgment and order dated 17.11.2009 (Annex.7) passed by the learned court below on an application moved under Order 26, Rule 10-A with Order 8, Rule 1-A may kindly be declared illegal and be quashed and set aside. b) by an appropriate writ, order or direction, the application filed by the petitioner under Order 26, Rule 10-A (Annex.5) as well as under Order 8, Rule 1-A (Annex.6) may kindly be allowed and the documents and the statement of the respondents may kindly be taken on record and the memorandum/family arrangement dated 22.3.1991 (Annex.4) be sent in the Forensic Lab for verification of signature of the respondent no.1. c) by an appropriate writ, order or direction, it may be declared that the memorandum/family arrangement dated 22.3.1991 (Annex.4) between the petitioner and the respondent no.1 is admissible in evidence and is required to be registered under Section 17 of the Act of 1908. d) Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. e) Writ petition filed by the petitioner may kindly be allowed with costs."
(2.) The respondents no.1 and 2 filed a civil suit for partition of a property of late Shri Jamna Lal Joshi situated at Bhupal Ganj (Bhilwara) in the year 1998. During the proceedings, the petitioner preferred an application under Order 26, Rule 10-A with Section 45 of the Evidence Act regarding denial made by the respondent-plaintiff that he has signed Exhibit-A/1 i.e. family arrangement and, therefore, Expert Report should be summoned from Forensic Science Laboratory. Another application was also been filed by the petitioner under Order 8, Rule 1A to permit him to produce the documents upon which the relief is being claimed or relied upon. Counsel for the petitioner Mr. Manoj Bhandari has argued that the agreement in-question was a family arrangement, thus, there was no requirement of any registration or payment of stamp-duty and, therefore, the court should have allowed both the applications as by first application the respondent was required to substantiate his signature by Expert Report and the second application require the documents to be taken on record to prove that the document in-question i.e. Exhibit-A/1 was a family arrangement. Counsel for the petitioner has drawn attention of Court to the precedent law laid down by Hon'ble Supreme Court in Tek Bahadur Bhujil v. Debi Singh Bhujil and Ors., reported in AIR 1966 SC 292 , relevant para whereof reads as follows : "12. Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. The document Exhibit 3 does appear to be of such a nature. It merely records the statements which the three brothers made, each referring to others as brothers and referring to the properties as joint property. In fact the appellant, in his statement, referred to respondents 1 and 2 as two brother co-partners; and the last paragraph said: "We, the three brothers, having agreed over the above statement and having made our own statements in the presence of the Panch called by us, and signed and kept a copy of each of this document as proof of it." The document would serve the purpose of proof or evidence of what had been decided between the brothers. It was not the basis of their rights in any form over the property which each brother had agreed to enjoy to the exclusion of the others. In substance it records what had already been decided by the parties. We may mention that the appellant and respondent No. 1, even under this arrangement, were to enjoy the property in suit jointly and it is this agreement of theirs at the time which has later given rise to the present litigation between the two. The document, to our mind, is nothing but a memorandum of what had taken place and, therefore, is not a document which would require compulsory registration under section 17 of the Registration Act." Counsel for the petitioner stated that the impugned order is not justified as the document in-question was an oral arrangement reproduced in writing subsequently and, thus, the learned trial court referring the matter to the competent authority for necessary registration and payment of stamp-duty was improper.
(3.) Learned counsel for the respondent Mr. Arpit Bhoot has shown written statement, which is Annex.2 and has read from the written statement that the document in-question was not a family arrangement but was in fact an agreement between parties and, thus, the order of registration and payment of stamp-duty was justified. Counsel for the respondent has further shown to this Court Exh.A/1, which is Annex.4 that the document in-question and on the face of it does not reflect that it was an oral agreement as it is not recorded anywhere in writing that it is a written memorandum for memory only.;