ORDER

All these three petitions involve common issue and are on identical facts, hence, are being decided by this common order. For the sake of convenience, facts are taken from WP No.11669/2005.

2. The facts in brief creating controversy are that a document of Gift (Hiba) was written on a Stamp of Rs. 10/- by one Ayesha Bibi in favour of the present petitioner, who is her daughter-in-law on 02.2.1994. This deed states to be written out of love and affection and declares gift to be made, contains signatures of acceptance by the petitioner and gives out possession over the property. This document is on record as Annexure P-4. 3 . O n basis of this document, the petitioner applied for mutation and mutation was allowed by the Tehsildar on 31.7.1995. Thereafter, the Collector of Stamps issued a notice to the petitioner in the matter of deficit Stamp Duty on the said Hibanama and to show cause against the proposed action of fixation of valuation and stamp duty on the said instrument. In the said proceedings, order Annexure P-3 was passed, assessing deficit Stamp Duty and Registration fees, total to the tune of Rs. 27,994/-. The petitioner filed appeal against the said order, but the same was dismissed vide order dated 28.1.2003 (Annexure P-2) and the Board of Revenue being the Chief Controlling Revenue Authority also dismissed the further appeal vide order annexure P-1. Thus, the present petition has been filed against the orders Annexure P-1 to P-3 in the matter of adjudication of deficit Stamp Duty and Registration Fees.

4 . T he learned senior counsel for the petitioner submits that though normally Gift can only be made by a registered document in terms of section 123 of the Transfer of Property Act, however, as per Section 129, the entire Chapter VII, that contains Section 123, is excluded from the Rules of Mohammedan Law. It is contended that in Muslim Law, a valid gift can be made orally, and it need have only three ingredients – (1) declaration of the gift by the donor, (2) acceptance of the gift by the donee expressly or impliedly, and (3) delivery of possession to and taking possession thereof by the donee actually or constructively

5. It is thus, contended that for a valid gift to take place under Muslim Law, there is no requirement of Registration. Even if the Gift is not oral, but is by way of an instrument, then also, the deed is not a “instrument” for the purpose of Stamp Act and Registration Act, but is only a piece of evidence.

The learned senior counsel refers to the judgement of the Hon’ble Supreme Court in the case of Hafeeza Bibi v. Shaikh Farid, reported in (2011) 5 SCC 654. It is stated that the reduction of gift to writing is only for the sake of convenience, and is not a registrable document or requiring Stamp Duty. It is also argued that the judgement of Full Bench of Andhra Pradesh High Court [Inspector General of Registration and Stamps Government of Hyderabad (Now Andhra Pradesh) Vs. Srimathi Tayyaba Begum, reported in AIR 1962 AP 199] that has been relied by the Board of Revenue, has been held to be not a correct view in the case of Hafeeza Bibi (supra), hence, the order of the Board of Revenue as well as other preceding orders are fallible.

6. Per contra, it is submitted by Shri Baghel learned Government counsel, that the gift in the present case was not oral, but the parties decided to reduce it into writing. Thus, the document is an “instrument”, and thus, chargeable to Stamp Duty and also registrable. It is also alternatively argued that even if the document is deemed to be not an “instrument”, but only a piece of evidence, then also, it has to be impounded as per Sections 33 and 35 of the Indian Stamp Act, thus, the authorities have not erred in assessing deficit Stamp Duty on the said instrument/document.

7. Heard learned counsel for the rival parties and perused the record.

8. As per Section 123 of the Transfer of Property Act, a valid gift of immovable property has to be effected only by a r