Allahabad High Court
Mohammad Shamim Akhtar vs State Of U.P. & Others on 1 June, 2012
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 10
Case :- WRIT - C No. - 14905 of 2005
Petitioner :- Mohammad Shamim Akhtar
Respondent :- State Of U.P. & Others
Petitioner Counsel :- M. Sarwar Khan
Respondent Counsel :- C.S.C.
Hon'ble Pankaj Mithal,J.
Heard Sri K.N.Rai, learned counsel for the petitioner and Sri Nimai Das, learned Standing Counsel for the respondents and with the consent of the parties the writ petition is being finally decided.
The father of the petitioner, Mohd. Kaleem made an oral gift on 17.12.2001 of the land in question in favour of the petitioner. The petitioner accepted the gift and was given possession of the same. Subsequently, as a memoriam, the said gift was reduced to writing on 8.5.2002.
The authorities under the Indian Stamp Act, 1899 (in short 'Act') initiated proceedings on the basis of the aforesaid memorandum by treating it to be a gift deed and vide order dated 11.5.2004 determined the deficiency in stamp duty of Rs.92,400/- and imposed a penalty of Rs.7,600/-. The aforesaid order was affirmed in appeal vide order dated 4.1.2005.
The petitioner has thus invoked the writ jurisdiction of this Court challenging both the above orders.
Sri Rai has argued that under the Mohammedan Law gift can be made orally and there is no requirement of executing any document in respect thereof. The memorandum of gift is not a gift deed amenable to stamp duty. Even if any document witnessing the oral gift is executed it would not be an instrument chargeable to stamp duty. He has further submitted that Section 2(14-A) of the Act was inserted w.e.f. 20.5.2002 which included instrument of gift made orally but since in the present case the gift was made earlier it would not be applicable.
Learned Standing Counsel accepts that Section 2(14-A) of the Act, which has been introduced with effect from 20.5.2002, would not be applicable to the present memorandum which is dated 8.5.2002 or even to a gift alleged to have been orally made on 17.12.2001 but nonetheless since the gift has been reduced in writing and it purports to extinguish rights of one party and records that of another it would be covered under Section 2(14) of the Act and stamp duty on it would be payable.
The said memorandum is Annexure - 2 to the writ petition. A plain reading of the aforesaid memorandum makes it clear that the gift was orally made on 17.12.2001. It was accepted by the petitioner and he was put in possession of it also. It is not a gift deed in itself.
In view of the respective contentions of the parties, only one question arises for consideration as to whether the memorandum dated 8.5.2002 is an instrument within the meaning of Section 2(14) of the Act and chargeable to stamp duty.
The definition of the instrument under Section 2(14) of the Act is very wide and it includes every document or record which purports to create, transfer, limit, extend, extinguish or record the right or liability of a party in respect of any property.
Recently, the Apex Court in Hafeeza Bibi and others Vs. Shaikh Farid (Dead) by Lrs. and others 2011 (2) ARC 218 has dealt with gift under the Mohammedan Law and has ruled as under:
"In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document."
The Apex Court in the aforesaid decision distinguishing the decision of the Full Bench of Andhra Pradesh High Court in the case of Inspector General of Registration and Stamps, Govt. of Hyderabad Vs. Smt. Tayyaba Begum, AIR 1962 AP 199 approved the view of the Calcutta High Court in the case of Nasib Ali Vs. Wajed Ali, AIR 1927 Cal. 197 holding that a deed of gift by Mohammedan is not an instrument effecting, creating or making the gift but a mere piece of evidence. Such writing is not a document of title but a piece of evidence only.
In view of the above decision of the Supreme Court, though the Court therein has not considered the impact of definition of the instrument as contained in the Act, clearly ruled that the nature and character of the gift made by the Mohammedan does not change merely for the reason that it has been written down and that a gift by the Mohammedan is not an instrument effecting, creating or making the gift in writing but only a piece of evidence.
In addition to the above, the definition of 'instrument' under Section 2(14) of the Act contemplates a document or a record creating or extinguishing rights and liabilities which means existence of a document in some form or the other. Therefore, where an oral gift is permissible and made there happens to be no document or record of rights and liabilities which could be subjected to stamp duty. Liability of payment of stamp duty arises only on the execution of an instrument. (Reference: AIR 1934 Allahabad 1052 Sukhdeo Prasad). The subsequent writing it out on a paper would not make it a gift deed as the gift stood completed in the past by making an oral declaration, its acceptance and delivery of possession. His Lordship of the Rajasthan High Court in Hanuman Prasad Vs. The State of Rajasthan AIR 1958 Raj 291 ruled that a document which is not an instrument of gift but only a record of the past transaction does not require to be stamped under the Act.
In the above situation neither the gift made by a Mohammedan orally nor its reduction in writing subsequently would amount to execution of an instrument which could be subjected to payment of stamp duty. Thus, I am of the opinion that the authorities below grossly erred in law in subjecting the above memorandum of gift dated 8.5.2002 to stamp duty.
Accordingly, a writ of certiorari is issued quashing the impugned orders dated 11.5.2004 and 4.1.2005. Any amount deposited by the petitioner pursuant to the impugned order or under the interim order of this Court shall be refunded to the petitioner within a period of one month from the date of production of certified copy of this order.
The writ petition is allowed.
Order Date :- 1.6.2012
brizesh
