Validity of oral gifts under Mohammedan Law and the treatment of documents as evidence rather than instruments.

This writ petition has been preferred against the order dated 29.6.1993 passed in Case No. 185 under Section 33/38 Indian Stamps Act.

2. Counsel for the petitioner submits that in the year 1979, one Mashhoor Ahmad, who was a very rice and renowned person of the locality gifted a piece of land situated in town Mohammadi to the petitioner and on being gifted the aforesaid plot, the petitioner constructed his residential house. Petitioner also moved an application before the Municipal Board, Mohammadi for mutation, which was allowed and necessary tax was also deposited by the petitioner. The Collector stamp-opposite party no.2 issued a notice requiring the petitioner to show cause why the proceedings under Section 33/38/47-A of the Indian Stamps Act may be not be initiated to which petitioner filed a reply indicating therein that no instrument or deed of transfer was executed, thus there was no occasion to pay stamp duty. The petitioner also placed reliance on Section 122, 123 and 129 of Transfer of Property Act. It was also been asserted that the peice of land was given by an oral gift in accordance with law and for initiation of proceedings under the aforesaid Sections of Indian Stamp Act it is condition precedent that there must have been an instrument. Not only this, the oral gift was made in the year 1979 and as such the proceedings are beyond the prescribed period of limitation.

3. The Sub Divisional Officer/Stamp Collector being not satisfied with the reply so tendered by the petitioner passed the impugned order and held that in order to avoid stamp duty, documents for registration has not been presented though the property has been purchased.

4. Hence this writ petition.

5. State Counsel while justifying the order passed by Stamp Collector stated that the application in writing filed by the petitioner for mutation before the Municipal Authority has been treated to be an instrument of gift supporting original gift in his favour and as such it will make the petitioner liable to pay stamp duty. He further added that the stamp duty is due not under the provisions of Transfer of Property Act but under the Registration Ac, the same is liable to be paid. Further, an oral gift as soon as recorded or stated or declared in writing becomes chargeable under the Stamp Act.

6. Under Mohammedan Law writing is not essential for the validity of a gift either of movable or immovable property. There are three essential ingredients of a gift under Mohammedan Law, namely (I) a declaration of gift by the donor; (ii) an acceptance of the gift express, express or implied, by or on behalf of the donee and (iii) delivery of possession of the subject of the gift by the donor to the donee. The deed of gift is immaterial for creation of gift under the Mohammedan Law. A Gift under the Mohammedan Law is not valid, if the above mentioned ingredients are not fulfilled, even if there be a deed of gift or even a registered deed of gift.

7. Section 122-129 (Chapter VII) of the Transfer of Property Act deals with gifts. By Section 123 of the Act, it has been provided that a gift of immovable property must be effected by a registered instrument signed by the donor and attested by at least two witnesses, and that a gift of movable property may be effected either by a registered instrument signed as aforesaid or by delivery. But the provisions of Section 123 of the Act do not apply to Mohammedan Law. It is settled by law that the rules of Mohammedan Law regarding gifts are based on reasonable classification and S. 129 of the Transfer of Property Act exempting Mohammedans from certain provisions of T.P. Act is not hit by Article 14 of the Constitution.

8. In HafeezaBibi vs. ShaikhFarid (dead); 2011(5) SCC 654, the Apex Court in paragraph 29 of the report held as under:-

29. In our opinion, merely because the gift is reduce to writing by a Mohammedan instead of it having made orally, such writing does not become a formal document or instrument of gift.