Recital of oral gift may not render deed to be stamped as settlement.

Under section 57(1) of the Indian Stamp Act, the following: question stands referred to us by the Chief Controllng Revenue Authority, Board of Revenue, Madras:

“Whether the document, dated 30th June, 1955 comprised both a partition and settlement or gift and whether the note to Schedule ‘A’ of the document read with the recitals and the relevant: items of property constitute an instrument chargeable as a settlement under the Stamp Act.”

One Mohamed Yoonus Sait moved this Court under Article 226 of the Constitution for a writ of mandamus to direct the Board of Revenue, Madras, to make the reference. To the document in question, the parties are the said Mohamed Yoonus Sait and his four sons. Broadly stated, this document purported to record a gift of certain items of properties, by Yoonus Sait, to his four sons who thereafter proceeded to partition these items among themselves. Three other items referred to in the document are stated to have been set apart for being gifted to the wife and the daughters of Mohamed Yoonus Sait. Mohamed Yoonus Sait joined in the execution of the document as a confirming party “ to declare and confirm” that the other parties, the sons, had the right and full power to partition the properties among themselves. This document was presented for registration, being stamped as a partition deed. The registering authority took the view that the document was not a partition deed simpliciter but combined in itself a settlement as well as a partition. The District Registrar decided that the stamp duty paid on the document was insufficient and that a deficit duty of Rs. 4,875 together with a penalty of Rs. 10 should be paid. On appeal, the Board of Revenue accepted the decision of the District Registrar as correct. It was at this stage that the matter was brought before this Court by way of a writ proceeding and this Court directed a reference to be made.

A brief reference to the recitals in the document may be made in order to appreciate the points in controversy. So far as these 12 items of properties are concerned, they admittedly belonged to Mohamed Yoonus Sait. The parties to the document are Mohamed Yoonus Sait and his four sons, two of them being majors. The document was styled as one of partition in which Mohamed Yoonus Sait stated that he joined only as a confirming party, taking no share in the partition. In the earlier parts of the document, the title of Mohamed Yoonus Sait was traced to these several items of properties. In the operative portion the following recitals were made:

“And whereas the party of the fifth part Mohamed Yoonus Sait........................is competent to make an oral gift of his properties and whereas for the mutual advantages benefit and. convenience of parties hereto, the party of the fifth part on grounds of pure natural love and affection has made an oral gift of all these 12 items of properties in Schedule ‘A ‘hereunder with possession to the parties of the first, second, third and fourth parts hereto and his wife Halima Bai and his daughters Fathima Bai and Habiba Bai according to Mohamedan Law................”

The continuing sentence stated that of the 12 items of properties, 9 were jointly given to the four sons. Item 4 was given to Halima Bai, wife, and items 5 and 6 to each of his daughters. The document proceeds to say that the sons had entered into an agreement and arrangement among themselves regarding the partition of the 9 items of properties and in pursuance of that agreement various items were taken by each of the sons, with the exception of item 12, which was continued to be kept joint for common enjoyment. That item was accordingly excluded from partition. Though earlier it is stated that items 4, 5 and 6 had been given to the wife and the two daughters, in the later part of the document these items are stated “to have been set apart to be given away to the wife and daughters of the party of the fifth part, Mohamed Yoonus Sait by separate deeds of