Rajasthan High Court – Jodhpur
Abdul Salam vs State Of Rajasthan (2026:Rj-Jd:13045) on 16 March, 2026
[2026:RJ-JD:13045]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 5675/2026
1. Abdul Salam S/o Bholu @ Jumma, Aged About 70 Years,
Resident Of Dolakuan Masjid Ke Pas, Makrana, District
Deedwana-Kuchaman.
2. Abdul Majeed S/o Bholu @ Jumma, Aged About 65 Years,
Resident Of Dolakuan Masjid Ke Pas, Makrana, District
Deedwana-Kuchaman.
3. Abdul Rasheed S/o Bholu @ Jumma, Aged About 60
Years, Resident Of Dolakuan Masjid Ke Pas, Makrana,
District Deedwana-Kuchaman.
----Petitioners
Versus
1. State Of Rajasthan, Through District Collector, Deedwana-
Kuchaman.
2. Mining Engineer, Mines And Geology Department,
Makrana, District Deedwana-Kuchaman.
3. Mohd. Arfaan S/o Late Abdul Hakeem @ Abdul Hafeej,
Resident Of Islampura, Deshwaliyon Ki Dhani, Makrana,
District Deedwana-Kuchaman.
4. Shakoor S/o Late Abdul Hakeem @ Abdul Hafeej,
Resident Of Islampura, Deshwaliyon Ki Dhani, Makrana,
District Deedwana-Kuchaman.
5. Mohd. Rafeeq S/o Late Abdul Hakeem @ Abdul Hafeej,
Resident Of Islampura, Deshwaliyon Ki Dhani, Makrana,
District Deedwana-Kuchaman.
6. Smt. Jaayda D/o Late Abdul Hakeem @ Abdul Hafeej,
Resident Of Islampura, Deshwaliyon Ki Dhani, Makrana,
District Deedwana-Kuchaman.
7. Smt. Hajjan Maimuna W/o Late Abdul Hakeem @ Abdul
Hafeej, Resident Of Islampura, Deshwaliyon Ki Dhani,
Makrana, District Deedwana-Kuchaman.
8. Mohd. Saleem @ Shammu S/o Late Abdul Hakeem @
Abdul Hafeej, Resident Of Islampura, Deshwaliyon Ki
Dhani, Makrana, District Deedwana-Kuchaman.
9. Mohd. Shafeek S/o Late Abdul Hakeem @ Abdul Hafeej,
Resident Of Islampura, Deshwaliyon Ki Dhani, Makrana,
District Deedwana-Kuchaman.
10. Mohd. Shabir S/o Late Abdul Hakeem @ Abdul Hafeej,
Resident Of Islampura, Deshwaliyon Ki Dhani, Makrana,
District Deedwana-Kuchaman.
11. Mohd. Javed S/o Late Abdul Hakeem @ Abdul Hafeej,
Resident Of Islampura, Deshwaliyon Ki Dhani, Makrana,
District Deedwana-Kuchaman.
12. Mohd. Abid S/o Late Abdul Hakeem @ Abdul Hafeej,
Resident Of Islampura, Deshwaliyon Ki Dhani, Makrana,
District Deedwana-Kuchaman.
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13. Mohd. Shaheed S/o Late Abdul Hakeem @ Abdul Hafeej,
Resident Of Islampura, Deshwaliyon Ki Dhani, Makrana,
District Deedwana-Kuchaman.
14. Mohd. Waheed S/o Late Abdul Hakeem @ Abdul Hafeej,
Resident Of Islampura, Deshwaliyon Ki Dhani, Makrana,
District Deedwana-Kuchaman.
15. Saeeda D/o Late Abdul Hakeem @ Abdul Hafeej, Resident
Of Islampura, Deshwaliyon Ki Dhani, Makrana, District
Deedwana-Kuchaman.
16. Saajda D/o Late Abdul Hakeem @ Abdul Hafeej, Resident
Of Islampura, Deshwaliyon Ki Dhani, Makrana, District
Deedwana-Kuchaman.
17. Naajda D/o Late Abdul Hakeem @ Abdul Hafeej, Resident
Of Islampura, Deshwaliyon Ki Dhani, Makrana, District
Deedwana-Kuchaman.
18. Ramesh Nath S/o Bejnath, Resident Of Bejnath Ji Ki
Haweli, Rawla, Senti, Makrana, Tehsil And District
Makrana.
----Respondents
For Petitioner(s) : Mr. Karan Joshi
For Respondent(s) : Mr. Om Prakash Mehta assisted by
Mr. Zubin Ahmed & Mr. Tanay Jain
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
16/03/2026
1. By way of the present writ petition under Article 227 of the
Constitution of India, the petitioners-plaintiffs have assailed the
order dated 15.01.2026 (Annx.11) passed by the Additional
District Judge, Makrana, District Deedwana-Kuchaman in Civil
Original Suit No. 45/2016 (194/2019), whereby the application
filed by respondent Nos. 4 to 17-defendants objecting to the
exhibition of documents dated 21.06.1978, alleged to be family
settlements (Bhai Bantwara), has been allowed and the
application of the petitioners’ under Order XVI Rule 6 read with
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Section 151 CPC to summon and exhibit the said documents, has
been rejected.
2. The brief facts, as pleaded, are that the petitioners instituted
a suit for declaration and permanent injunction asserting rights on
the basis of alleged family settlements dated 21.06.1978 in
respect of mining lease No. 137. During the course of evidence,
the petitioners sought to summon and exhibit the said documents,
claiming them to be family arrangements. The respondents-
defendants objected on the ground that the documents are
unregistered, unstamped and inadmissible in evidence.
3. The learned trial court, after hearing the parties, rejected the
application holding that (i) one of the documents is merely a
photocopy; and (ii) the other document, though styled as a family
settlement, pertains to partition/transfer of rights in immovable
property (mining lease), and being unstamped and unregistered,
is inadmissible in evidence.
4. Heard learned counsel for the parties.
5. Learned counsel for the petitioners contends that the trial
court wrongly rejected the 1978’s family settlement (Bhai
Bantwara), which had already divided the family business and
gave both sides equal share in Mining Lease No. 137. It is
contended that the document was crucial to the case but was not
permitted to be exhibited on technical grounds. The trial court
erred in treating it as compulsorily registrable, ignoring that it only
recorded an existing family arrangement, not creating new rights.
It is contended that the trial court should have allowed evidence
or framed issues instead of dismissing the application outright.
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The documents in question are family settlements, which do not
require registration or stamp duty and can be looked into for
collateral purposes. It is submitted that the trial court has erred in
refusing to even mark the documents as exhibits. The order is,
therefore, legally flawed and deprives the petitioners of proving
their case, and hence, deserves to be set aside.
6. Learned counsel for the petitioners has relied upon the
following decisions :-
i. Ravinder Kaur Grewal & Ors. vs. Manjit
Kaur & Ors. reported in AIR 2020 Supreme
Court 3799;
ii. Himani Walia vs. Hemant Walia & Ors.
(Ex.P. No. 26/2019) decided on
23.03.2022;
iii. Municipal Council , Bhilwara vs. Bal Mukand
(D. B. Special Appeal Writ No. 355/2023)
decided on 25.04.2023;
iv. Leela Devi & Ors. vs. Amar Chand & Anr.
(S.B. Civil Writ Petition No. 6969/2006)
decided on 02.05.2023.
7. Per contra, learned counsel for the respondents while
supporting the impugned order, submits that alleged agreement
executed between the partners as well as the purported partition
deed relied upon by the petitioners, are merely photocopies and
not the original documents. The said documents are unstamped
and unregistered, hence, they are instruments which are
compulsorily required to be duly stamped and registered. In the
absence of proper stamping and registration, the said documents
are inadmissible in evidence and cannot be looked into or relied
upon by the Court for any purpose whatsoever.
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8. Drawing attention of this Court to Section 35 of the Indian
Stamps Act, 1899 and Section 17 and 49 of the Registration Act,
1908, learned counsel submits that the documents in question,
being unstamped and unregistered despite being compulsorily
chargeable and registrable, are barred from admission in evidence
and cannot be relied upon for any purpose whatsoever.
9. It is further contended that the documents sought to be
produced are only photocopies which amount to secondary
evidence under the provisions of the Indian Evidence Act, 1872. It
is a settled principle of law that when the original document itself
is inadmissible in evidence due to statutory bar, no permission can
be granted to lead secondary evidence of such document.
Therefore, when the alleged original documents themselves suffer
from the defect of being unstamped and unregistered, permission
to produce or rely upon their photocopies by way of secondary
evidence cannot be granted and the same have rightly been
declined to be exhibited.
10. It is submitted that the documents create and declare rights
in immovable property and are hit by the provisions of the
Registration Act, 1908 and the Indian Stamp Act, 1899. It is
contended that photocopies cannot be exhibited without laying
foundation for secondary evidence.
11. In support of his contention, learned counsel for the
respondents has relied upon the following decisions :-
i. State of Bihar vs. Karam Chand Thapar and
Brothers Ltd. reported in 1962 AIR (SC) 110
ii. Mohanlal vs. Manbhari & ors reported in
2013 (1) DNJ 431
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iii. Dr. Shiv Kant Pandey & Anr. vs. Ishwari
Singh reported in 1997 AIR (Raj) 155
iv. Japudi Kesava Rao vs. Pulavarthi Venkata
Subbarao reported in 1971 AIR (SC) 1070
v. Ram Pratap vs. Nar Singh Lal (43) reported
in 1990 (1) RLR 339
vi. Sawa vs. Kuka reported in 1951 AIR (Raj) 66
vii. Nilkanth s/o Shridhar Thorbole vs.
Hanumant s/o Baburao Magar reported
in 2021 AIR (Bom) 161
viii. Jamna Bai vs. Tulsi Ram reported in 1997
AIR (Raj) 85
ix. Bhanwari Devi vs. Arvind Kumar & Anr.
reported in 2016 AIR (Raj) 198
x. Harshavardhan Singh vs. Ranveer Singh
reported in 1997 AIR (Raj) 211
xi. Mahendra Singh vs. Dhirender Singh & Ors.
(S. B. Civil Writ Petition No. 3643/2014)
decided on 04.12.2014
xii. Nihal Singh vs. Singh Ram & ors reported in
1989 (1) RLR 384
xiii. Gopal Mali and Others vs. Badri alias Badri
Narain Bhatt & ors reported in 2020 (2) DNJ
(Raj.) 434
xiv. Raj Gopal Sharma vs. Krishna Gopal
Sharma reported in 2013 AIR (All) 187
12. I have considered the submissions made by learned counsel
for the parties, perused the material available on record and gone
through the judgments cited by the parties.
13. The scope of interference under Article 227 of the
Constitution is limited as this Court does not sit as a court of
appeal and interference is warranted only in cases of patent
illegality, perversity or jurisdictional error.
14. As regards the first document, which is a photocopy, it is
settled law that secondary evidence can be led only after laying
foundational facts as required under the Evidence Act. In the
absence of such foundation, the document cannot be exhibited.
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15. In Bhanwari Devi‘s case (supra), a coordinate Bench of
this Court has observed as under :-
“21. Testing the document in question dated 10.07.1997, in the
light of the above legal propositions and the language used in the
document, this court is convinced that the document is not merely
a memorandum or recordance of a prior partition/family
settlement/family arrangement but it is an instrument of partition
requiring compulsory registration and for want of registration it is
inadmissible in evidence and it cannot be admitted in evidence
even to show that the suit shop came in the share of Shri Nand
Kishore and he was en-titled to execute will in respect of suit shop
in favour of petitioner-plaintiff. If the document in question is
tested in the light of the fact that Shri Rambux died in the year
1975 and the property, in respect of which this document has been
executed, devolved upon Shri Nand Kishore alone, then it becomes
clear that the document in question is a deed of transfer
transferring share in the property in favour of Shri Radheshyam
requiring compulsory registration as per Section 17 of the
Registration Act and for want of registration, it has same effect as
an instrument of partition has
22. So far as inadmissiblility of document in question for want of
proper stamp duty is concerned, Section 35 of the Indian Stamp
Act, as it was applicable at the time when the document in
question was executed, provides that no instrument chargeable
with any stamp duty under the Act shall be admitted in evidence
for any purpose or shall be acted upon unless such instrument is
duly stamped. As per the definition of the word “in-strument”
provided under the Act instrument includes every document by
which any right or liability is or purports to be created,
transferred, limited, extended, extinguished or recorded. In the
present case, as already held, by way of document in question
rights in part of the property in favour of Radhe Shyam have been
created, transferred and extended and rights of Shri Nand Kishore
in it have been extinguished and limited. Thus, the document in
question is a “instrument” within the meaning of the Stamp Act. As
per this provision, even if any right is recorded by way of a
document, the same would also fall within the purview of in
strument. As per Section 2(15), “instrument of partition” means
any instrument whereby co-owners of any property divide or agree
to divide such property in severalty and includes, when any
partition is effected without executing any such instrument, any
instrument signed by co-owners and recording, whether by way of
declaration of such partition or otherwise, the terms of such
partition amongst the co-owners. Thus, as per this definition even
memorandum of past oral partition is included in the definition of
“instrument of partition” requiring stamp duty. Thus, even if for
the sake of arguments it is admitted that the document in ques tion
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is merely a memorandum of some past partition of family
settlement or arrangement between Shri Nand Kishore and Shri
Radhe Shyam regarding property to which it pertains, even then it
was required to be duly stamped and in absence of the same it is
inadmissible in evidence for any purpose unless the deficient duty
and penalty is paid.”
16. From the above, it is clear that where the original document
itself is inadmissible, no secondary evidence thereof can be
permitted. Thus, in the considered opinion of this Court, the trial
court has rightly declined its exhibition.
17. With respect to the second document dated 21.06.1978,
though styled as a “family settlement”, its contents indicate that it
is not a mere memorandum of a past oral arrangement but an
instrument which itself effects partition and allocation of rights in
mining lease property. It is well settled that while a family
arrangement, if oral, does not require registration, a document
which itself creates or extinguishes rights in immovable property
requires compulsory registration. In this regard, the principle laid
down by the Hon’ble Supreme Court in Japudi Kesava Rao
(supra) is apposite, wherein it was held that if the document is
the source of rights and not merely a record of a past transaction,
it must be duly stamped and registered. The relevant observations
of the Hon’ble Supreme Court are as under :-
“13. The first limb of S. 35 clearly shuts out from evidence any
instrument chargeable with duty unless it is duly stamped. The
second limb of it which relates to acting upon the instrument will
obviously shut out any secondary evidence of such instrument, for
allowing such evidence to be let in when the original admittedly
chargeable with duty was not stamped or insufficiently stamped,
would be tantamount to the document being acted upon by the
person having by law or authority to receive evidence. Proviso (a)
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[2026:RJ-JD:13045] (9 of 12) [CW-5675/2026]by the party seeking to rely upon the document. Clearly secondary
evidence either by way of oral evidence of the contents of the
unstamped document or the copy of it covered by S. 63 of the
Indian Evidence Act would not fulfil the requirements of the
proviso which enjoins upon the authority to receive nothing in
evidence except the instrument itself. S. 35 is not concerned with
any copy of an instrument and a party can only be allowed to rely
on a document which is an instrument for the purpose of S. 35.
‘Instrument’ is defined in S. 2(14) as including every document by
which any right or liability is, or purports to be created,
transferred, limited, extended, extinguished or recorded. There is
no scope for inclusion of a copy of a document as an instrument
for the purpose of the Stamp Act.
xxx…xxx
22. Numerous decisions on the point had been referred to by
the learned Judge hearing the Second Appeal in the High Court
but we do not think it necessary to take note of them in any detail.
Mr. Sen relied strongly on certain observations in a judgment of
the Rangoon High Court in Maung Po Htoo v. Ma Ma Gyi and
Ors. This arose out of a suit for administration of the estate of one
Daw Thet San and for a declaration that a deed of gift executed by
him was void. The District Court found that the deed of gift was
void as being a testamentary disposition and granted a
declaration to that effect. In appeal to the High Court the decision
that the deed of gift was void was not contested and the only
question for decision was whether the adoptions mentioned
therein were proved. The appellants wished to use a certain part of
the deed as evidence to prove that the plaintiff and one Tun Sein
were not adopted while the respondents claimed that it could not
be admitted in evidence for any purpose. The deed itself was not
produced which admittedly had been in possession of Po Htoo
who put in a certified copy alleging that he had lost the original.
On a consideration of the entire evidence the District Judge found
that the original deed of gift was insufficiently stamped. This
decision was not questioned before the High Court but the
appellant claimed that it could not be admissible in evidence and
was not to be considered for any purpose. Referring to the
decision of the Judicial Committee and the passage which we have
quoted already the Judges of the Rangoon High Court remarked
that their Lordships observation (quoted by us earlier) that :
“Those clauses throughout deal with, and exclusively
refer to, the admission as evidence of original
documents, which , at the time of their execution, were
not stamped at all, or were insufficiently stamped.”
did not intend to go as far as their words suggested. According to
the Rangoon Judges:
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provisions of the Evidence Act, excludes both the original
instrument itself and secondary evidence of its contents.
Similarly, under section 36, when either the original
instrument itself or secondary evidence of its contents has
in fact been admitted, that admission may not be called in
question in the same suit, on the ground that the
instrument was not duly stamped.
In this view, they held that the terms of the deed of gift could be
considered.
23. With all respect to the learned Judges it appears to us that
both the premises of the last sentence of the above quotation and
the conclusion based on the same are incorrect. Neither under the
decision of the Judicial Committee nor the express words of s. 34
of the Stamp Act of 1879 mentioned in that judgment (present
section 36) allow the leading of secondary evidence of the
contents of an insufficiently stamped document.
24. As we have expressed our view already s. 35 imposed a bar
on the reception of any but the original instrument and forbade the
reception of secondary evidence. Section 36 only lifted that bar in
the case of an original unstamped or insufficiently stamped
document to which no exception as to admissibility was taken at
the first stage. It did not create any exemption in the case of
secondary evidence which a copy would undoubtedly be. In the
case before the Judicial Committee the copy was one other than
the final draft of the original document which had been lost
through no fault on the part of the person intending to prove it and
yet it was held that the Stamp Act ruled out its admissibility in
evidence.”
18. The distinction between a memorandum of past settlement
and an instrument creating rights has also been consistently
recognized, and where the document itself embodies the terms of
partition, it attracts Section 17 of the Registration Act and is
inadmissible if unregistered. Further, Section 35 of the Stamp Act
creates an absolute bar against admission of unstamped
instruments in evidence.
19. The contention of the petitioners that the document can be
looked into for collateral purposes is also misconceived in the facts
of the present case. An unregistered document can be looked into
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for collateral purposes only when it is otherwise admissible and
does not itself require registration for the purpose for which it is
sought to be used. However, where the document itself is the
foundation of rights in immovable property, even collateral use is
impermissible. This position finds support from various decisions
including Shiv Kant Pandey (supra) and Bhanwari Devi
(supra).
20. The judgments relied upon by the petitioners are
distinguishable on facts. In Ravinder Kaur Grewal‘s case
(supra), the Hon’ble Supreme Court primarily dealt with the
doctrine of adverse possession and did not specifically adjudicate
upon admissibility of unstamped and unregistered instruments
creating rights in immovable property. Similarly, in Himani Walia
and Leela Devi’s cases (supra), the documents in question were
either memoranda of prior family arrangements or were otherwise
admissible in the factual matrix of those cases. In Municipal
Council, Bhilwara‘s case (supra), the issue pertained to a
different factual and legal context and did not involve an
instrument which itself created rights in immovable property
without registration.
21. In the present case, the document in question is not a mere
record of a past family settlement but an operative instrument
effecting partition of valuable rights in a mining lease. Therefore,
the ratio of the judgments cited by the petitioners does not apply.
22. The trial court has also rightly noticed that the subject
matter involves mining lease rights governed by statutory
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provisions, and no material has been placed to show compliance
with the legal requirements for transfer of such rights.
23. In view of the above, this Court is of the considered opinion
that the trial court has correctly applied the settled principles of
law and has assigned cogent reasons for refusing to exhibit the
documents. No perversity, illegality or jurisdictional error is made
out.
24. Accordingly, the writ petition fails and is dismissed.
25. All pending applications, including the stay application, stand
disposed of.
26. It is clarified that the observations made herein are confined
to adjudication of the present petition and shall not prejudice the
trial on merits.
(MUKESH RAJPUROHIT),J
57-/Inder//-
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