Abdul Salam vs State Of Rajasthan (2026:Rj-Jd:13045) on 16 March, 2026

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    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

    SPONSORED

    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)
    is only applicable when the original instrument is actually before
    the court of law and the deficiency in stamp with penalty is paid

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    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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    “…… Section 35 of the present Act, read with the
    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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