Bombay High Court
Mohd.Yusuf Mohd.Ibrahim vs State Of Maharasthra & Others on 6 January, 2015
Author: A. R. Joshi
Bench: Anoop V. Mohta, A. R. Joshi
0601wp1355.99-Judgment 1/3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.1355 OF 1999
PETITIONER :- Mohammed Yusuf S/o. Mohammed Ibrahim,
aged about 45 years, Occu. Service, R/o.
Dr.ZakirHussain Ward, Near Khamtalao
Masjid, Bhandara.
...VERSUS...
RESPONDENTS :- 1] State of Maharashtra, Through its Chief
Secretary, C/o. Mantralaya, Mumbai.
ig 2] Registrar of Documents (Stamps), C/o.
Collectorate, Bhandara.
3] Sub-Registrar and Stamp Collector, C/o.
Collectorate, Bhandara.
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Mr. Abdul Subhan, Advocate for petitioner.
Ms N. P. Mehta, A.G.P. for respondents.
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CORAM : ANOOP V. MOHTA &
A. R. JOSHI, JJ.
DATE : 06.01.2015.
O R A L J U D G M E N T (Per Anoop V. Mohta, J.)
1) The matter is called out from final hearing board. Heard
finally.
2) The petitioner, belongs to a Muslim Community, has
challenged stamp duty demand notice dated 14/12/1998 of respondent No.3 as stated to be on the basis of an oral gift deed as the same was reduced into writing on stamp paper and mutated in the concerned record.
::: Downloaded on - 08/01/2015 23:51:32 ::: 0601wp1355.99-Judgment 2/33) The learned counsel appearing for the petitioner has referred two Supreme Court Judgments in support of his submissions -
(2011) 5 SCC 654 (Hafeeza Bibi v. Sk.Farid) and (2014) 10 SCC 459 (Rasheeda Khatoon v. Ashiq Ali). The Apex Court while dealing with the Mohammedan Law revolving to gift or hiba and its requirement of payment of stamp duty as contemplated in the Registration Act, 1908, Sections 17 and 49, elaborated the essential ingredients of a valid oral gift as under -
(i) declaration of gift by donor;
(ii) acceptance of gift by donee; and
(iii) delivery of possession of the property.
It is clear that writing is not essential for valid oral gift. All three essential requirement makes such gift complete and irrevocable. It is also held that the gift deed or instrument of gift in every matter is not required registration. In the present case, the learned counsel appearing for the respondents conceded to the position of law
4) After hearing the learned counsel for both the parties, we have also noted that above three essential ingredients are available in the present matter in favour of the petitioner. The gift was oral, the possession was accordingly handed over and thereafter, the mutation was effected. For necessary purpose, there is no issue that the gift was oral and that was reduced into writing for mutation purpose. The provisions of Sections 122 to 129 of Transfer of Property Act, 1882 are ::: Downloaded on - 08/01/2015 23:51:32 ::: 0601wp1355.99-Judgment 3/3 not applicable to such Mohammedan gift (Section 129 of the Act).
There is no provision in the Act for levying the stamp duty on oral gift made by any Mohammedan of sound mind, in favour of the donee.
Therefore, the stamp duty levied by respondent No.3 for the transfer of the orally gifted property in favour of petitioner is illegal and unsustainable.
5) Therefore, in view of above position of law and the facts, we are inclined to observe that the stamp duty demand as raised by impugned notice dated 14/12/1998 is unrecoverable as bad-in-law.
Therefore, the petition is required to be allowed.
6) The writ petition is allowed in terms of prayer clause (ii).
7) Rule is made absolute in the aforesaid terms. No costs.
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(A.R.JOSHI, J.) (ANOOP V. MOHTA, J.)
KHUNTE
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