Naseemulah vs State Of U.P. & Ors
2011 Latest Caselaw 2480 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. 24
 

 
Writ Petition No. 2069 OF 1994(MS)
 

 
Naseemullah			 		...	Petitioner 
 

 
Versus 
 

 
State of U.P. and others 			...	Opposite parties 
 

 
----------- 
 

 
Hon'ble Rajiv Sharma, J.

In the instant writ petition the petitioner has questioned the validity and correctness of the order dated 30.6.1994 passed by the Sub Divisional Officer, Mohammadi, District Lakhimpur Kheri as contained in Annexure-1 to the writ petition and has also prayed for a direction to the respondents not to recover the amount indicated in the impugned order.

It has been submitted by the Counsel for the petitioner that in the year 1979, one Ikhlas Ahmad resident of Town Mohammadi, Kheri had orally gifted a plot of 1170 sq. feet, situated in town Mohammadi, Kheri in favour of the petitioner and thereafter, the petitioner constructed his residential house over the said plot and is residing since then. It has also been submitted that there is neither any deed nor any instrument executed or in writing entered into between the parties, regarding transfer of the said plot. Subsequently, on an application by the petitioner, the Municipal Board mutated the name of the petitioner in place of Ikhlas Ahmad. Later on, respondent no.2 issued a notice on 10.8.1993 asking the petitioner to show cause as to why the requisite stamp duty and ten time penalty be not imposed and recovered from him.

Petitioner, in his reply, stated that there was neither any occasion nor any question to pay the stamp duty as the transfer of immovable property in the present case is by way of an order gift, which is in consonance with provisions of Mohammedan Law. Giving reference to a judgment of the High Court, petitioner also indicated in his reply that no stamp duty is payable on such type of transaction/gift.

The Sub Divisional Officer/Stamp Collector being not satisfied with the reply so tendered by the petitioner passed the impugned order and held that in order to avoid stamp duty, documents for registration has not been presented though the property has been purchased.

Hence this writ petition.

Counsel for the petitioner has argued that in view of the provisions of S. 129 of the Transfer of Property Act, the provisions of the said Act are not applicable in respect of a Gift made by a Muslim. There is nothing on record to establish that there was sale transaction in favour of the petitioner. Therefore, the impugned order dated 30.6.1994 is wholly erroneous and unwarranted and the petitioner is not liable to pay the stamp duty as required because the land was gifted to the petitioner by Mohd Ikhlas Ahmad.

State Counsel while justifying the order passed by Stamp Collector stated that the application in writing filed by the petitioner for mutation before the Municipal Authority has been treated to be an instrument of gift supporting original gift in his favour and as such it will make the petitioner liable to pay stamp duty. He further added that the stamp duty is due not under the provisions of Transfer of Property Act but under the Registration Ac, the same is liable to be paid. Further, an oral gift as soon as recorded or stated or declared in writing becomes chargeable under the Stamp Act.

The first question which is to be considered by this Court is whether there is a valid gift and if yes, whether the stamp duty is payable or not.

Chapter XI of Mulla's Principles of Mohammedan Law deals with the Gifts. Section 138 defines Hiba or Gift and said that a hiba or gift is "a transfer of property, made, immediately, and without any exchange by one person to another; and accepted by or on behalf of the latter".

'Hiba' in its literal sense signifies the donation of a thing from which the donee may derive a benefit. In short, a gift may be made of anything which comes within the definition of the word "mal" that is property, including actionable claims.

Under Mohammedan Law writing is not essential for the validity of a gift either of movable or immovable property. There are three essential ingredients of a gift under Mohammedan Law, namely (I) a declaration of gift by the donor; (ii) an acceptance of the gift express, express or implied, by or on behalf of the donee and (iii) delivery of possession of the subject of the gift by the donor to the donee. The deed of gift is immaterial for creation of gift under the Mohammedan Law. A Gift under the Mohammedan Law is not valid, if the above mentioned ingredients are not fulfilled, even if there be a deed of gift or even a registered deed of gift.

Section 122-129 (Chapter VII) of the Transfer of Property Act deals with gifts. By Section 123 of the Act, it has been provided that a gift of immovable property must be effected by a registered instrument signed by the donor and attested by at least two witnesses, and that a gift of movable property may be effected either by a registered instrument signed as aforesaid or by delivery. But the provisions of Section 123 of the Act do not apply to Mohammedan Law. It is settled by law that the rules of Mohammedan Law regarding gifts are based on reasonable classification and S. 129 of the Transfer of Property Act exempting Mohammedans from certain provisions of T.P. Act is not hit by Article 14 of the Constitution.

In Hafeeza Bibi vs. Shaikh Farid (dead); 2011(5) SCC 654, the Apex Court in paragraph 29 of the report held as under:-

"29. In our opinion, merely because the gift is reduce to writing by a Mohammedan instead of it having made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammedan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammedan law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammedan Law."

In view of the above, in the instant case, the gift of a piece of land was made by the donor out of his own free will and affection, which was accepted by the petitioner and delivery of possession was also given, hence it is a valid gift.

Before proceeding further, it would be apt to refer the relevant provisions of Transfer of Property Act and Indian Stamp Act.

Section 123 of the Transfer of Property Act, 1882 lays down the manner in which gift of immovable property may be effected. It reads thus:

S. 123. Transfer how effected:- For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor , and attested by at least two witnesses. For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.. Such delivery may be made in the same way as goods sold may be delivered."

In Section 129 of the T.P.Act, an exception has been carved out with regard to the gifts by a Mohammedan. It reads as follows:-

S. 129. Saving of donations mortis causa and Mohammedan Law:- Nothing in this chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Mohammadan law."

Section 17 of the Registration Act, 1908 which makes registration of certain documents compulsory, reads as follows:-

(1) The following documents shall be registered, if the property to which they relate is situated in a district in which, and if they have been executed on or after the date on which Act No. XVI of 1864, or the Indian Registration Act, 1866 or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-

(a) instruments of gift of immovable property:-

(b)...

(c)...

Section 49 of the Registration Act deals with the effect of non-registration of documents required to be registered. It reads thus:-

" S. 49 Effect of non-registration of documents required to be registered:- No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall -(a) affect any immovable property comprised therein or (b) confer any power to adopt, or (C) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 ( 3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument."

In the case of Nasib Ali vs. Wajid Ali AIR 1927 Cal 197, the contention raised before the Division Bench of the Calcutta High Court was that the deed of gift, not being registered under the Registration Act, is not admissible in evidence. The Calcutta High Court held that a deed of gift by a Mohammedan is not an instrument effecting, creating or making of the gift but a mere piece of evidence.

In the case of Md. Hesabuddin and others v. Md. Hesaruddin and others AIR 1984 Gauhati 41, the question with regard to gift of immovable property written on ordinary unstamped paper arose before the Gauhati High Court. That was a case where a Mohammedan mother made a gift of land in favour of her son by a gift deed written on ordinary unstamped paper. The Gauhati High Court held that it cannot be taken as sine qua non in all cases that wherever there is a writing about a Mohammedan gift of immovable property, there must be registration thereof.

Aforesaid views of the Calcutta High Court and Gauhati High Court have been approved by the Apex Court recently in Hafeeza Bibi vs. Shaikh Farid (dead); 2011 (5) SCC 654 and it was held that a deed of gift execute by Mohammedan is not the instrument effecting, creating or making of the gift but a mere piece of evidence, such writing is not a document of title but a piece of evidence. The Apex Court further observed that Section 129 of the T.P. Act preserves the rule of Mohammedan Law and excludes the applicability of Section 123 of the T.P. Act to a gift of an immovable property by a Mohammedan.

In view of the above, the assertion of the respondents that the application for mutation given by the petitioner is an instrument is wholly misconceived. Respondents have also failed to show any document that infact the property was purchased by the petitioner. The question of paying the stamp duty does not arise in the present case because Section 33 of the Indian Stamp Act, 1899 provides that stamp duty shall be recoverable only in case of a registered instrument as deed. Since the transfer of immovable property in the present case, was made by way of an oral gift and no deed or instrument in writing was executed, Section 33 of the Act, will not be attracted. Moreover, the application of the petitioner for mutation, as averred above, cannot be treated as instrument or deed.

For the reasons aforesaid, the impugned order dated 30.6.1994 passed by the Sub Divisional Officer/Stamp Collector, Mohammadi-Kheri contained in Annexure-1 to the writ petition cannot be sustained and is hereby set-aside. Consequent to the quashing of the order dated 30.6.1994, any subsequent proceedings arising out of the said order shall also stand quashed.

Writ Petition stands allowed in above terms.

RK/HM

5.7.2011