Madhya Pradesh High Court
Akbar Ali vs The State Of Madhya Pradesh on 30 January, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION No.11669 of 2005
BETWEEN:-
SURAIYA KHATOON W/O MOHAMMED ALI, AGED
ABOUT 57 YEARS, VILL. BIJURI, TAH. KOTMA,
DISTT.ANUPPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI IMTIYAZ HUSSAIN - SENIOR ADVOCATE WITH SHRI ISHTIYAQ
HUSSAIN - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
SECRETARY REVENUE, VALLABH BHAWAN,
MANTRALAYA, BHOPAL (MADHYA PRADESH)
2. COLLECTOR OF STAMPS, SHAHDOL (MADHYA
PRADESH)
3. C O M M I S S I O N ER REWA DIVISION, REWA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI L.A.S. BAGHEL - GOVERNMENT ADVOCATE)
WRIT PETITION No. 11675 of 2005
BETWEEN:-
AKBAR ALI S/O MOHAMMED ALI, AGED ABOUT 36
YEARS, VILL. BIJURI, TAH. KOTMA, DIST. ANUPPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI IMTIYAZ HUSSAIN - SENIOR ADVOCATE WITH SHRI ISHTIYAQ
HUSSAIN - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 1/30/2024
6:38:01 PM
2
SECRETARY REVENUE, VALLABH BHAWAN,
MANTRALAYA, BHOPAL (MADHYA PRADESH)
2. COLLECTOR OF STAMPS, SHAHDOL (MADHYA
PRADESH)
3. C O M M I S S I O N ER REWA DIVISION, REWA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI L.A.S. BAGHEL - GOVERNMENT ADVOCATE)
WRIT PETITION No. 11681 of 2005
BETWEEN:-
KAMAR JAHAN S/O W/O MAZHAR ALI, AGED ABOUT 50
YEARS, VILL. BIJURI, TAH. KOTMA, DIST. ANUPPUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI IMTIYAZ HUSSAIN - SENIOR ADVOCATE WITH SHRI ISHTIYAQ
HUSSAIN - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
SECRETARY REVENUE, VALLABH BHAWAN,
MANTRALAYA, BHOPAL (MADHYA PRADESH)
2. COLLECTOR OF STAMPS, SHAHDOL (MADHYA
PRADESH)
3. C O M M I S S I O N ER REWA DIVISION, REWA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI L.A.S. BAGHEL - GOVERNMENT ADVOCATE)
................................................................................................................................................
Reserved on :- 23.11.2023
Pronounced on :- 30.01.2024
................................................................................................................................................
These petitions having been heard and reserved for orders, coming on
for pronouncement this day, the Court passed the following:
ORDER
All these three petitions involve common issue and are on identical facts, Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/30/2024 6:38:01 PM 3 hence, are being decided by this common order. For the sake of convenience, facts are taken from WP No.11669/2005.
2. The facts in brief creating controversy are that a document of Gift (Hiba) was written on a Stamp of Rs. 10/- by one Ayesha Bibi in favour of the present petitioner, who is her daughter-in-law on 02.2.1994. This deed states to be written out of love and affection and declares gift to be made, contains signatures of acceptance by the petitioner and gives out possession over the property. This document is on record as Annexure P-4.
3 . O n basis of this document, the petitioner applied for mutation and mutation was allowed by the Tehsildar on 31.7.1995. Thereafter, the Collector of Stamps issued a notice to the petitioner in the matter of deficit Stamp Duty on the said Hibanama and to show cause against the proposed action of fixation of valuation and stamp duty on the said instrument. In the said proceedings, order Annexure P-3 was passed, assessing deficit Stamp Duty and Registration fees, total to the tune of Rs. 27,994/-. The petitioner filed appeal against the said order, but the same was dismissed vide order dated 28.1.2003 (Annexure P-2) and the Board of Revenue being the Chief Controlling Revenue Authority also dismissed the further appeal vide order annexure P-1. Thus, the present petition has been filed against the orders Annexure P-1 to P-3 in the matter of adjudication of deficit Stamp Duty and Registration Fees.
4 . T h e learned senior counsel for the petitioner submits that though normally Gift can only be made by a registered document in terms of section 123 of the Transfer of Property Act, however, as per Section 129, the entire Chapter VII, that contains Section 123, is excluded from the Rules of Mohammedan Law. It is contended that in Muslim Law, a valid gift can be Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/30/2024 6:38:01 PM 4 made orally, and it need have only three ingredients -
(1) declaration of the gift by the donor, (2) acceptance of the gift by the donee expressly or impliedly, and (3) delivery of possession to and taking possession thereof by the donee actually or constructively
5. It is thus, contended that for a valid gift to take place under Muslim Law, there is no requirement of Registration. Even if the Gift is not oral, but is by way of an instrument, then also, the deed is not a "instrument" for the purpose of Stamp Act and Registration Act, but is only a piece of evidence. The learned senior counsel refers to the judgement of the Hon'ble Supreme Court in the case of Hafeeza Bibi v. Shaikh Farid, reported in (2011) 5 SCC 654. It is stated that the reduction of gift to writing is only for the sake of convenience, and is not a registrable document or requiring Stamp Duty. It is also argued that the judgement of Full Bench of Andhra Pradesh High Court [Inspector General of Registration and Stamps Government of Hyderabad (Now Andhra Pradesh) Vs. Srimathi Tayyaba Begum, reported in AIR 1962 AP 199] that has been relied by the Board of Revenue, has been held to be not a correct view in the case of Hafeeza Bibi (supra), hence, the order of the Board of Revenue as well as other preceding orders are fallible.
6. Per contra, it is submitted by Shri Baghel learned Government counsel, that the gift in the present case was not oral, but the parties decided to reduce it into writing. Thus, the document is an "instrument", and thus, chargeable to Stamp Duty and also registrable. It is also alternatively argued that even if the document is deemed to be not an "instrument", but only a piece of evidence, then also, it has to be impounded as per Sections 33 and 35 of the Indian Stamp Act, thus, the authorities have not erred in assessing deficit Stamp Duty Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/30/2024 6:38:01 PM 5 on the said instrument/document.
7. Heard learned counsel for the rival parties and perused the record. 8 . As per Section 123 of the Transfer of Property Act, a valid gift of immovable property has to be effected only by a registered document. This is part of Chapter VII of the Act. Section 123 is as under :-
"123. Transfer how effected. -- "123. 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."
9. The legislature, in its wisdom, has decided to exclude the entire chapter VII from the application of Muslim Law in the following terms :-
"129. Saving of donations mortis causa and Muhammadan Law.-- Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law."
10. Thus, now the Gifts by Mohammedans are governed by classical Muslim Law and as per that law, Gift (Hiba) can be oral also and needs to fulfill the three requirements :-
(1) declaration of the gift by the donor, (2) acceptance of the gift by the donee expressly or impliedly, and (3) delivery of possession to and taking possession thereof by the donee actually or constructively
11. The aforesaid position was considered earlier by the Full Bench of Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/30/2024 6:38:01 PM 6 Andhra Pradesh High Court in the case of Tayyaba Begum (supra) and it was held that if the document does not record any past transaction but purports to evidence Gift itself, then it must be compulsorily registered and all consequences will follow.
12. However, the said judgement has been held to be not a good law in the case of Hafeeza Bibi (supra) by the Hon'ble Supreme Court. It has been held that if the document fulfills all the three requirements of valid Hiba under the Muslim Law, then, it is not a "instrument" but only a piece of evidence. The following has been held therein :-
"26. Mulla, Principles of Mahomedan Law (19th Edn.), p. 120, states the legal position in the following words:-
"Under the Mahomedan law the three essential requisites to make a gift valid are: (1) declaration of the gift by the donor, (2) acceptance of the gift by the donee expressly or impliedly, and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 of the Transfer of Property Act excludes the rule of Mahomedan Law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case."
27. 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 a Mohammadan 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 Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential Signature Not Verified requisites are satisfied constituting a valid gift, the Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/30/2024 6:38:01 PM 7 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 Mohammadan Law.
28. In considering what is Mohammadan Law on the subject of gifts inter vivos, the Privy Council in Mohd. Abdul Ghani [(1921-22) 49 IA 195] stated that when the old and authoritative texts of Mohammadan Law were promulgated there were not in contemplation of anyone any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of possession of land, and that could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.
29. Section 129 of the TP Act preserves the rule of Mohammadan Law and excludes the applicability of Section 123 of the TP Act to a gift of an immovable property by a Mohammadan. We find ourselves in express agreement with the statement of law reproduced above from Mulla, Principles of Mahomedan Law (19th Edn.), p.
120. In other words, it is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts.
30. We are unable to concur with the view of the Full Bench of the Andhra Pradesh High Court in Tayyaba Begum [AIR 1962 AP 199] . We approve the view of the Calcutta High Court in Nasib Ali [AIR 1927 Cal 197] that a deed of gift executed by a Mohammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence, such writing is not a document of title but is a piece of evidence. We also approve the view of the Gauhati High Court in Mohd. Hesabuddin [AIR 1984 Gau 41] . The judgments to the contrary by the Andhra Pradesh High Court, the Jammu and Kashmir High Court and the Madras High Court do not lay down the correct law.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/30/2024 6:38:01 PM 831. Now, as regards the facts of the present case, the gift was made by Shaik Dawood by a written deed dated 5-2- 1968 in favour of his son Mohammed Yakub in respect of the properties in A schedule and B schedule appended thereto. The gift--as is recited in the deed--was based on love and affection for Mohammed Yakub as after the death of the donor's wife, he has been looking after and helping him. Can it be said that because a declaration is reduced to writing, it must have been registered? We think not. The acceptance of the gift by Mohammed Yakub is also evidenced as he signed the deed. Mohammed Yakub was residing in the B schedule property consisting of a house and a kitchen room appurtenant thereto and, thus, was in physical possession of the residential house with the donor.
32. The trial court on consideration of the entire evidence on record has recorded a categorical finding that Shaik Dawood (donor), executed the gift deed dated 5-2-1968 in favour of the donee (Mohammed Yakub), the donee accepted the gift and the donor handed over the properties covered by the gift deed to the donee. The trial court further held that all the three essentials of a valid gift under the Mohammadan Law were satisfied. The view of the trial court is in accord with the legal position stated by us above. The gift deed dated 5-2-1968 is a form of declaration by the donor and not an instrument of gift as contemplated under Section 17 of the Registration Act. As all the three essential requisites are satisfied by the gift deed dated 5-2-1968, the gift in favour of Defendant 2 became complete and irrevocable.
33. The High Court in the impugned judgment relied upon the Full Bench decision in Tayyaba Begum [AIR 1962 AP 199] but we have already held that the view of the Full Bench in Tayyaba Begum [AIR 1962 AP 199] is not a correct view and does not lay down the correct law."
13. When the present document annexure P-4 is tested on the above anvil, the document clearly seems to fulfill all the three conditions of Muslim Law. It contains a declaration by the donor, acceptance by the donee and possession being given to the donee. Thus, in view of para-27 and 31 of the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/30/2024 6:38:01 PM 9 judgement quoted above, the document is not a "instrument" or "document" for the purpose of Registration Act, and is not compulsorily registrable.
14. The dictum of the case of Hafeeza Bibi (supra) applies squarely to the present case. No different view can be taken in the present case in view of provisions of Section 129 of the Transfer of Property Act 1882.
15. The argument of the learned State counsel, that the document, even if only a piece of evidence, can be impounded in terms of Sections 33 and 35 of the Stamp Act, seems to be attractive in the first flush. However, for a document to be impounded, it has to be "instrument" also. There is no provision in the Stamp Act, that even a document making or accepting oral gift, is an "instrument". In the case of Star Paper Mills Vs. Anisa Begum, reported in AIR 2023 All 110, the Allahabad High Court has held that Stamp Duty is payable on such oral gifts under Muslim law also. However, in Uttar Pradesh, there is section 14-A inserted by way of State amendment to Indian Stamp Act, that provides that an instrument of Gift includes an instrument whether by way of declaration or otherwise, for making or accepting an oral gift, There is no corresponding provision in the Central Act or as made applicable in Madhya Pradesh by way of State amendments. Therefore, the document annexure P-4 cannot be held to be an "instrument". This court cannot do something which only the legislature is competent to do.
16. Therefore, in view of the law laid down by the Hon'ble Apex Court in the case of Hafeeza Bibi (supra), the impugned orders Annexures P-1 to P- 3 cannot be given stamp of approval. They deserve to be, and are hereby quashed.
17. The petition stands allowed. No order as to costs.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/30/2024 6:38:01 PM 10(VIVEK JAIN) JUDGE rj Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 1/30/2024 6:38:01 PM