SHAHNAWAZ vs MOHHOMAD YUSUF
- Court
- Rajasthan High Court
[2026:RJ-JP:30653]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Writ Petition No. 10243/2026
CNR: RJHC010431142026
URN: CW / 18726U / 2026
1. Shahnawaz S/o Subhan Khan, Aged About 58 Years, R/o
Ward No.5, Dabli Baas Chugta, Tehsil And District
Hanumangarh Raj.
2. Mohhomad Nawaz S/o Subhan Khan, Aged About 60
Years, R/o Ward No.5, Dabli Baas Chugta, Tehsil And
District Hanumangarh Raj.
----Petitioners
Versus
1. Mohhomad Yusuf S/o Subhan Khan, R/o Ward No.5, Dabli
Baas Chugta, Tehsil And District Hanumangarh Raj.
(Dead)
2. Mohhomdden S/o Subhan Khan, R/o Ward No.5, Dabli
Baas Chugta, Tehsil And District Hanumangarh Raj.
3. Jigra Bi W/o Mohommad Yaar, R/o Ward No.5, Dabli Baas
Chugta, Tehsil And District Hanumangarh Raj.
4. Raseed Begum D/o Mohommad Yaar W/o Nazam Ali, R/o
Ward No.5, Dabli Baas Chugta, Tehsil And District
Hanumangarh Raj.
5. Mohhobat Ali S/o Mohhomad Yara, R/o Dabliratahan,
Tehsil And District Hanumangarh Raj.
6. Sher Ali S/o Mohhomad Yara, R/o Dabliratahan, Tehsil
And District Hanumangarh Raj.
7. Nazma Begum W/o Imran Khan, R/o 2 Dbl, Dabli Baas
Maulbi, Tehsil And District Hanumangarh.
8. Johra Bi W/o Mohhomad Yusuf S/o Subhan Khan, R/o
Ward No.5, Dabli Baas Chugta, Tehsil And District
Hanumangarh Raj.
9. Alladitta S/o Mohhomad Yusuf S/o Subhan Khan, R/o
Ward No.5, Dabli Baas Chugta, Tehsil And District
Hanumangarh Raj.
----Respondents
For Petitioner(s) : Mr. Himanshu Kaushik
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For Respondent(s) : Mr. Vishal Singhal
HON'BLE MR. JUSTICE FARJAND ALI
Order
REPORTABLE
09/07/2026
1. The present writ petition under Articles 226 and 227 of the
Constitution of India assails the order dated 21.04.2026 passed by
the learned Additional District Judge No.2, Hanumangarh in Civil
Suit No.62/2019, whereby the petitioners' application under
Sections 17 and 49 of the Registration Act, 1908 read with Section
35 of the Indian Stamp Act, 1899 questioning the admissibility of
a document dated 24.04.2003 came to be rejected.
2. In nutshell the facts of the case are that the petitioners
instituted a suit seeking partition and permanent injunction in
respect of Plot No.167, asserting that the property remained joint
and had never been partitioned. In response, defendant No.2,
while filing a written statement and counterclaim, relied upon a
document dated 24.04.2003, contending that a family settlement
had already taken place through a Panchayat, whereby Plot
Nos.163 and 167 stood amicably apportioned amongst the family
members and the parties had since been enjoying their respective
shares separately.
2.1. The petitioners disputed the authenticity and legal efficacy of
the said document, alleging it to be forged, unregistered and
insufficiently stamped. During the course of defendants' evidence,
an application was preferred by the petitioners seeking exclusion
of the document from evidence on the ground of non-compliance
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with the provisions of the Registration Act and the Stamp Act. The
learned Trial Court, however, rejected the application, holding that
the document was merely a memorandum recording an already
concluded family arrangement and, therefore, did not require
compulsory registration or stamping, giving rise to the present
writ petition.
3. Learned counsel for the petitioners contended that the
document dated 24.04.2003 is, in substance, an instrument of
partition whereby rights in immovable property were created and
extinguished. It was argued that such a document, being neither
registered nor duly stamped, is rendered inadmissible by virtue of
Sections 17 and 49 of the Registration Act read with Section 35 of
the Indian Stamp Act. It was further submitted that the learned
Trial Court has erroneously construed the document as a mere
memorandum of family settlement, although its recitals
unmistakably disclose that it is the very instrument effecting
partition. Lastly he submits that the impugned order is stated to
suffer from patent legal infirmity, therefore, the writ petition may
be accepted by allowing his application under Sections 17 & 49 of
the Registration Act r.w. Section 35 of the Indian Stamp Act.
4. Per contra, learned counsel appearing for the respondents
supported the impugned order and submitted that the family
arrangement had already been concluded through intervention of
the Panchayat and had long since been acted upon by the parties.
According to the respondents, the document dated 24.04.2003
merely records and acknowledges the pre-existing family
arrangement and does not itself create, declare or extinguish any
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right in immovable property. It was, therefore, contended that the
document is not compulsorily registrable and has rightly been
permitted to be exhibited by the learned Trial Court.
5. I have given my thoughtful consideration to the rival
submissions advanced at the Bar and have carefully perused the
material available on record as well as the impugned order.
6. The controversy centres around the true character of the
document dated 24.04.2003. It is by now well settled that the
nomenclature assigned to a document is not determinative of its
legal character. What is required to be examined is the substance
of the transaction embodied therein and the intention sought to be
manifested by the parties.
7. A careful reading of the document, prima facie, indicates that
it does not purport to create, declare or extinguish rights in
presenti. Rather, it records and acknowledges an arrangement
which, according to the defendants, had already been arrived at
amongst the family members through the intervention of the
Panchayat and had thereafter been acted upon. The recitals
contained therein unmistakably suggest that the document is
intended to serve as a record of an antecedent family
arrangement rather than as the operative instrument by which
partition was first effected.
7.1. It is a settled proposition of law that where a family
arrangement has already been concluded orally and the
subsequent writing merely records or recognises such past
transaction, the document assumes the character of a
memorandum evidencing an accomplished arrangement. Such a
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memorandum neither attracts the rigours of compulsory
registration under Section 17 of the Registration Act nor falls
within the mischief sought to be remedied under the Act.
Equally, the question whether the arrangement was in fact acted
upon and the evidentiary value to be attached to the document
are matters which necessarily fall within the domain of
appreciation of evidence during trial.
7.2. The challenge mounted by the petitioners essentially
proceeds on the premise that the document itself effected the
partition. Whether the document is ultimately proved, whether it
genuinely reflects an antecedent family arrangement and the
extent to which reliance can be placed upon it are all issues to be
adjudicated by the learned Trial Court upon a comprehensive
appreciation of the oral and documentary evidence. At this
interlocutory stage, the Court is only concerned with the legality of
the order rejecting the petitioners' objection regarding its
admissibility.
7.3. The learned Trial Court has examined the nature of the
document and has arrived at the conclusion that it is in the nature
of a memorandum acknowledging a pre-existing family
arrangement. The view so taken cannot be said to be either
perverse, manifestly erroneous or contrary to the settled
principles governing family settlements. No jurisdictional error,
patent illegality or material irregularity is discernible in the
exercise of discretion by the learned Trial Court so as to warrant
interference in the supervisory jurisdiction of this Court under
Article 227 of the Constitution of India.
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8. Accordingly, this Court finds no infirmity, much less any error
apparent on the face of the record, in the impugned order dated
21.04.2026. The writ petition, being devoid of merit, deserves
dismissal and is, accordingly, dismissed. The stay application as
well as all pending applications, if any, also stand disposed of.
(FARJAND ALI),J
356/Mamta Tak/330
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