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.

2. 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.

3. 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.

4. The petitioner has thus invoked the writ jurisdiction of this Court challenging both the above orders.

5. 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.

6. 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.

7. 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.

8. 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.

9. Recently, the Apex Court in Hafeeza Bibi and others v. 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.”

10. 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 v. Smt. Tayyaba Begum, AIR 1962 AP 199, approved the view of the Calcutta High Court in the case of Nasib Ali v. 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.

11. 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