Oral gifts under Muslim law do not require registration, and proceedings under Section 47-A of the Indian Stamp Act cannot be initiated for unregistered documents.

JUDGMENT :

Piyush Agrawal, J.

1. Heard Sri Atul Dayal, learned Senior Counsel assisted by Sri Ankit Kumar Rai, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State-respondents.

2. Since the similar controversy involved in the aforesaid writ petitions, all the writ petitions are being decided by this common order.

3. For convenience, the facts of Writ-C No. 41137 of 2010 is being delineated here.

4. By means of instant writ petition, the following prayer has been made:

“(i) Issue a writ, order or direction in the nature of certiorari calling for the records of the case and quash the impugned order dated 27.9.2008 (Annexure 3) to this writ petition) passed by the respondent No. 3 as well as the Appellate Order dated 1.6.2010 (Annexure 5 to this writ petition) passed by the respondent No. 2.

(ii) Issue a writ, order or direction in the nature of Mandamus declaring Section 2(14-A) inserted in the Indian Stamp Act, 1882 by means of U.P. Act No. 38 of 2001 as unconstitutional, void, inoperative and ultra vires being repugnant to the provisions of two Central enactments namely Transfer of Property Act as well as Muslim Personal Law (Shariat) Application Act, 1937 (Act No. 26 of 1937).

(iii) Issue a writ, order or direction in the nature of Mandamus restraining the respondent from making recovery of the amount in question from the petitioner pursuant to the impugned order dated 27.9.2008 (Annexure 3 to this writ petition) passed by the respondent No. 3 as well as the Appellate Order dated 1.6.2010 (Annexure 5 to this writ petition) passed by the respondent No. 2.

(iv)..........

(v)..........”

5. Learned Senior counsel for the petitioner submits that Ale Hasan made an oral gift in respect of his Bhumidhari land in Khata No. 76, Khasra Nos. 602/3 and 605/2, total area 1.250 Hectare situate in Village Bilana, Tehsil Amroha, District J.P. Nagar in favour of Sarvari Educational Society on 22.12.2005, which was accepted and possession was handed over to the Society. A memorandum was also drawn on the same date. Further, Mohd. Aslam, in the capacity of Manager, of the Sarvari Educational Society made an oral gift in favour of Sahas Degree College, which stood accepted through its Secretary namely Nadeem Hasan S/o Ale Hasan on 6.2.2006 and memorandum in the form of Yaddast was written on 28.2.2006. All the gifts were oral as per the Muslim Personal Law, which has been accepted. Thereafter, on the basis of an ex-parte report, proceedings under Section 47-A of the Stamp Act were initiated to which the petitioner submitted his reply, but not being satisfied from the same, an order dated 27.9.2008 was passed, determining the deficiency stamp duty, amounting to Rs. 11,25,000/- as well as equal amount of penalty has been imposed, against which an appeal was preferred, which also met the same fate.

6. Senior Counsel further submits that the hiba/gift was made, which was only written for yaddast, but the same was not registered as the same was not required to be registered, still the proceedings under Section 47-A of the Stamp Act have wrongly been initiated against the petitioner.

7. He submits that the Hon'ble Apex Court in the case of Hafeeza Bibi and others v. Shaikh Farid (Dead) by LRs. and others, 2011 (2) ARC 218, has held that there is no requirement for getting it registered under the Registration Act.

8. He further submits that no proceedings under Section 47-A of the Indian Stamp Act can be initiated, hence the proceedings are bad.

9. Per contra, learned Additional Chief Standing Counsel supports the impugned orders.

10. After hearing the parties, the Court has perused the record.

11. It is not in dispute that the hiba/gift was made orally and the doner made the declaration of hiba, which was accepted as gift by the donee and the possession was delivered under the Muslim Personal Law to which there is no requirement of getting in writing, Further, it is not required to be registered as held by the Hon'ble Apex Cour