Gujarat High Court
Khursid Mujjafar Kazi vs Vali Hamid Shaikh Through Poa ... on 14 February, 2020
Author: R.P.Dholaria
Bench: R.P.Dholaria
C/SCA/11160/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11160 of 2019
===========================================================
KHURSID MUJJAFAR KAZI
Versus
VALI HAMID SHAIKH THROUGH POA MOHHAMADYUSUF ABDULMAJID
SHAIKH
================================================================
Appearance:
MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1
MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1
MR MOHMEDSAIF HAKIM(5394) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
===============================================================
CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 14/02/2020
ORAL ORDER
By invoking the provisions of Article 227 of the Constitution of India, the petitioner - original plaintiff has challenged the order passed below Exh.84 in Regular Civil Suit No. 164 of 2013 pending before learned 13th Additional Senior Civil Judge, Surat, whereby the learned Judge has directed to impound the document at Exh.47 and send it to the Collector for necessary action.
2. Heard learned advocates for the respective parties.
3. It is submitted that the suit is proceeded and the trial is at the stage of cross-examination of the plaintiff. For the aforesaid document which was in a condition to be purported gift deed and holding as a gift deed, the learned trial court has directed to impound it as it was not duly stamped. This Court has perused the document in presence of learned advocates. For gift of immovable property to the Muslim under the Mohammedan Law, writing is not required. Even oral gift of immovable property is valid. For a transaction of gift under the Mohammedan Law, there are three essential requisites which make a gift valid : (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 Page 1 of 2 Downloaded on : Sat Feb 15 01:18:47 IST 2020 C/SCA/11160/2019 ORDER thereof by the donee actually or constructively. No written document is required in such a case. Section 129 of Transfer of Property Act excludes the rule of Mohammedan 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 Mohammedan 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.
4. In view of aforesaid provisions of law and on going through the recitals of the aforesaid document at Exh.47, it would not be proper for this Court to decide as to whether it would be termed to be a gift deed as all requisite conditions as enumerated above are being fulfilled or not that can only be decided after conclusion of trial by affording reasonable opportunity of leading oral as well as documentary evidence to both the sides. At the end of trial, the learned trial court shall decide as to whether it was a gift deed and it was subject to levy of stamp duty and then, while delivering the final judgment, shall render a decision of imposing necessary stamp duty as well as penalty as provided under Section 35 of the Indian Stamps Act.
5. In view of above observations and direction, the order passed by the learned trial court below Exh.84 stands modified to the extent that the direction/order of impounding the document and sending it to the Collector is cancelled. The learned trial court shall expeditiously proceed with the suit and shall render the decision accordingly.
6. In view of above, the petition stands disposed of.
(R.P.DHOLARIA, J) chandrashekhar Page 2 of 2 Downloaded on : Sat Feb 15 01:18:47 IST 2020