# Allahabad High Court in Ayodhya Sahai v. District

- **Citation:** (2011) 2 ILRA 824
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-07-05
- **Bench:** Rajiv Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/allahabad-high-court-in-ayodhya-sahai-v-district-41964
- **Pages:** 6

## Text

824 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Judge (Junior Division) Deoria and
others while dealing with the delay in
disposal of execution was shocked to note
that the execution was being adjourned
for the last 7 years and thus expressing
displeasure directed for its disposal within
two months from the date of presentation
of the order before the court concerned.

12.

Their
Lordships
of
the
Allahabad High Court in Ayodhya Sahai
vs.
District
Judge,
Jaunpur
and
another 1997 AWC (Supplement) 525
issued a general mandamus to all
subordinate courts and tribunals to decide
suits, criminal trials, labour disputes, rent
control cases on the basis of time bound
programme and to award adverse entries
to the defaulting judicial officers.

13. The delay in executing the
decree amounts to deny the decree holder
the benefit of the decree which is anthesis
to justice.

14. In view of above facts and
circumstances,
the
writ
petition
is
disposed of finally at this stage with a
direction Civil Judge (Senior Division),
Hapur, Ghaziabad to decide execution
case No. 22 of 2005 Suresh Pal vs. Tek
Chand as expeditiously as possible
preferably within a period of three months
from the date of production of certified
copy of this order.

15. A copy of this order may be sent
to the District Judge, Ghaziabad, who will
ensure that all execution cases included
the above one is decided expeditiously as
directed and to inform about its decision
to High Court.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.07.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.

Writ Petition No. 2069 OF 1994(MS)

Naseemullah

 ...Petitioner
Versus
State of U.P. and others ...Opp. parties

Mohammedan
Law-Section
138
readwith
Section
129-oral
gift
by
Mohammedan-whether
stamp
duty
payable? Held-"No" as per law laid
down by Apex Court Gift Deed is not an
instrument-but mere piece of evidenceneither stamp duty nor penalty can be
imposed-impugned order quashed

Held: Para 20

In view of the above, the assertion of
the respondents that the application
for mutation given by the petitioner is
an instrument is wholly misconceived.
Respondents have also failed to show
any document that infact the property
was purchased by the petitioner. The
question of paying the stamp duty does
not arise in the present case because
Section 33 of the Indian Stamp Act,
1899 provides that stamp duty shall be
recoverable only in case of a registered
instrument as deed. Since the transfer
of immovable property in the present
case, was made by way of an oral gift
and no deed or instrument in writing
was executed, Section 33 of the Act,
will not be attracted. Moreover, the
application
of
the
petitioner
for
mutation, as averred above, cannot be
treated as instrument or deed.
Case law discussed:
2011 (5) SCC 654; AIR 1927 Cal 197; AIR
1984 Gauhati 41
2 All] Naseemullah V. State of U.P. and others
825
(Delivered by Hon'ble Rajiv Sharma, J.)

1. In the instant writ petition the
petitioner has questioned the validity and
correctness of the order dated 30.6.1994
passed by the Sub Divisional Officer,
Mohammadi, District Lakhimpur Kheri as
contained in Annexure-1 to the writ
petition and has also prayed for a
direction to the respondents not to recover
the amount indicated in the impugned
order.

2. It has been submitted by the
Counsel for the petitioner that in the year
1979, one Ikhlas Ahmad resident of Town
Mohammadi, Kheri had orally gifted a
plot of 1170 sq. feet, situated in town
Mohammadi, Kheri in favour of the
petitioner and thereafter, the petitioner
constructed his residential house over the
said plot and is residing since then. It has
also been submitted that there is neither
any deed nor any instrument executed or
in writing entered into between the
parties, regarding transfer of the said plot.
Subsequently, on an application by the
petitioner, the Municipal Board mutated
the name of the petitioner in place of
Ikhlas Ahmad. Later on, respondent no.2
issued a notice on 10.8.1993 asking the
petitioner to show cause as to why the
requisite stamp duty and ten time penalty
be not imposed and recovered from him.

3. Petitioner, in his reply, stated that
there was neither any occasion nor any
question to pay the stamp duty as the
transfer of immovable property in the
present case is by way of an order gift,
which is in consonance with provisions of
Mohammedan Law. Giving reference to a
judgment of the High Court, petitioner
also indicated in his reply that no stamp
duty is payable on such type of
transaction/gift.

4. 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.

Hence this writ petition.

5. Counsel for the petitioner has
argued that in view of the provisions of S.
129 of the Transfer of Property Act, the
provisions of the said Act are not
applicable in respect of a Gift made by a
Muslim. There is nothing on record to
establish that there was sale transaction in
favour of the petitioner. Therefore, the
impugned order dated 30.6.1994 is wholly
erroneous and unwarranted and the
petitioner is not liable to pay the stamp
duty as required because the land was
gifted to the petitioner by Mohd Ikhlas
Ahmad.

6. 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.
826 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

7. The first question which is to be
considered by this Court is whether there
is a valid gift and if yes, whether the
stamp duty is payable or not.

8. Chapter XI of Mulla's Principles
of Mohammedan Law deals with the
Gifts. Section 138 defines Hiba or Gift
and said that a hiba or gift is "a transfer of
property, made, immediately, and without
any exchange by one person to another;
and accepted by or on behalf of the
latter".

9. 'Hiba' in its literal sense signifies
the donation of a thing from which the
donee may derive a benefit. In short, a gift
may be made of anything which comes
within the definition of the word "mal"
that is property, including actionable
claims.

10. 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.

11. 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.

In Hafeeza Bibi vs. Shaikh Farid
(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.
When
a
gift
could
be
made
by
Mohammedan orally, its nature and
character is not changed because of it
having been made by a written document.
What is important for a valid gift under
Mohammedan law is that three essential
requisites must be fulfilled. The form is
immaterial. If all the three essential
requisites are satisfied constituting valid
gift, the transaction of gift would not be
rendered invalid because it has been
written on a plain piece of paper. The
distinction that if a written deed of gift
recites the factum of prior gift then such
deed is not required to be registered but
when the writing is contemporaneous
with the making of the gift, it must be
registered, is inappropriate and does not
seem to us to be in conformity with the
rule of gifts in Mohammedan Law."
2 All] Naseemullah V. State of U.P. and others
827

13. In view of the above, in the
instant case, the gift of a piece of land was
made by the donor out of his own free
will and affection, which was accepted by
the petitioner and delivery of possession
was also given, hence it is a valid gift.

14. Before proceeding further, it
would be apt to refer the relevant
provisions of Transfer of Property Act
and Indian Stamp Act.

15. Section 123 of the Transfer of
Property Act, 1882 lays down the manner
in which gift of immovable property may
be effected. It reads thus:

S. 123. Transfer how effected:- For
the purpose of making a gift of
immovable property, the transfer must be
effected by a registered instrument signed
by or on behalf of the donor , and attested
by at least two witnesses. For the purpose
of making a gift of movable property, the
transfer may be effected either by a
registered instrument signed as aforesaid
or by delivery.. Such delivery may be
made in the same way as goods sold may
be delivered."

In Section 129 of the T.P.Act, an
exception has been carved out with regard
to the gifts by a Mohammedan. It reads as
follows:-

S. 129. Saving of donations mortis
causa and Mohammedan Law:- Nothing
in this chapter relates to gifts of movable
property made in contemplation of death,
or shall be deemed to affect any rule of
Mohammadan law."

16. Section 17 of the Registration
Act, 1908 which makes registration of
certain documents compulsory, reads as
follows:-

(1) The following documents shall be
registered, if the property to which they
relate is situated in a district in which, and
if they have been executed on or after the
date on which Act No. XVI of 1864, or
the Indian Registration Act, 1866 or the
Indian Registration Act, 1871, or the
Indian Registration Act, 1877, or this Act
came or comes into force, namely:-

(a) instruments of gift of immovable
property:-

(b)...

(c)...

Section 49 of the Registration Act
deals with the effect of non-registration of
documents required to be registered. It
reads thus:-

" S. 49 Effect of non-registration of
documents required to be registered:- No
document required by Section 17 or by
any provision of the Transfer of Property
Act, 1882 (4 of 1882), to be registered
shall -(a) affect any immovable property
comprised therein or (b) confer any power
to adopt, or (C) be received as evidence of
any transaction affecting such property or
conferring such power, unless it has been
registered: provided that an unregistered
document affecting immovable property
and required by this Act or the Transfer of
Property Act, 1882 (4 of 1882), to be
registered may be received as evidence of
a
contract
in
a
suit
for
specific
performance under Chapter II of the
Specific Relief Act, 1877 ( 3 of 1877), or
as evidence of any collateral transaction
828 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
not required to be effected by registered
instrument."

17. In the case of Nasib Ali vs.
Wajid Ali AIR 1927 Cal 197, the
contention raised before the Division
Bench of the Calcutta High Court was
that the deed of gift, not being registered
under the Registration Act, is not
admissible in evidence. The Calcutta High
Court held that a deed of gift by a
Mohammedan is not an instrument
effecting, creating or making of the gift
but a mere piece of evidence.

18. In the case of Md. Hesabuddin
and others v. Md. Hesaruddin and others
AIR 1984 Gauhati 41, the question with
regard to gift of immovable property
written on ordinary unstamped paper
arose before the Gauhati High Court. That
was a case where a Mohammedan mother
made a gift of land in favour of her son by
a gift deed written on ordinary unstamped
paper. The Gauhati High Court held that it
cannot be taken as sine qua non in all
cases that wherever there is a writing
about a Mohammedan gift of immovable
property, there must be registration
thereof.

19. Aforesaid views of the Calcutta
High Court and Gauhati High Court have
been approved by the Apex Court recently
in Hafeeza Bibi vs. Shaikh Farid (dead);
2011 (5) SCC 654 and it was held that a
deed of gift execute by Mohammedan is
not the instrument effecting, creating or
making of the gift but a mere piece of
evidence, such writing is not a document
of title but a piece of evidence. The Apex
Court further observed that Section 129 of
the T.P. Act preserves the rule of
Mohammedan Law and excludes the
applicability of Section 123 of the T.P.
Act to a gift of an immovable property by
a Mohammedan.

20. In view of the above, the
assertion of the respondents that the
application for mutation given by the
petitioner is an instrument is wholly
misconceived. Respondents have also
failed to show any document that infact
the property was purchased by the
petitioner. The question of paying the
stamp duty does not arise in the present
case because Section 33 of the Indian
Stamp Act, 1899 provides that stamp duty
shall be recoverable only in case of a
registered instrument as deed. Since the
transfer of immovable property in the
present case, was made by way of an oral
gift and no deed or instrument in writing
was executed, Section 33 of the Act, will
not
be
attracted.
Moreover,
the
application of the petitioner for mutation,
as averred above, cannot be treated as
instrument or deed.

21. For the reasons aforesaid, the
impugned order dated 30.6.1994 passed
by the Sub Divisional Officer/Stamp
Collector, Mohammadi-Kheri contained
in Annexure-1 to the writ petition cannot
be sustained and is hereby set-aside.
Consequent to the quashing of the order
dated
30.6.1994,
any
subsequent
proceedings arising out of the said order
shall also stand quashed.

22. Writ Petition stands allowed in
above terms.
---------
2 All] Surjeet Singh and others V. The State of U.P. and another
829
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.07.2011

BEFORE
THE HON'BLE S. S.CHAUHAN, J.

U/S 482/378/407 No. - 3268 of 2011

Surjeet Singh and others ...Petitioners
Versus
The State of U.P. and another

 ...Respondents

Counsel for the Petitioner:
Sri Jagjeet Singh
Sri Pratima Srivastava

Counsel for the Respondents:
Sri S.N.Pandey
Govt. Advocate

Criminal Procedure Code-Section 482Quashing Criminal Proceedings in terms
of compromise-offence under Section
498-A/323/342/504/506 IPC and 3⁄4
D.P.Act-held in view of B.S.Joshi case-no
useful purpose to prolong the Criminal
Proceeding
any
further-proceeding
quashed.
Case law discussed:
2003 AIR 1386

(Delivered by Hon'ble S. S. Chauhan,J.)

1. Heard learned counsel for the
petitioners and learned counsel for the
opposite party no.2 as well as learned
AGA.

2. Counter affidavit filed today on
behalf of opposite party no.2 is taken on
record.

3. In the counter affidavit it has been
stated that the parties have entered into
compromise. A certified copy of the said
compromise arrived at between the parties
under Section 13 of the Hindu Marriage
Act has been placed on record.

4. Counsel for the parties state that
in the compromise both the parties have
agreed that they will not pursue the
criminal cases as well as other cases
pending in different courts. The said
compromise also indicates that criminal
case pending here is also governed by the
said compromise.

5. Since there is admission and both
the parties in dispute are agree that the
matter may be decided in terms of the
compromise, therefore, the charge sheet
against the petitioners under Sections
498-A/323/342/504/506 IPC and 3/4 D.P.
Act is liable to be quashed. Law in this
regard has been settled by the apex Court
in the case of B.S.Joshi and others vs.
State of Haryana and another, 2003
AIR 1386 and no useful purpose would be
served
in
prolonging
the
criminal
proceedings any further when the parties
have entered into compromise.

6. The petition is allowed in terms of
the compromise. The charge sheet No. 27
of 2009 relating to case Crime No. 73 of
2008
under
Sections
498A/323/342/504/506 IPC and 3/4 D.P. Act
of P.S. Mahila Thana Hazratganj, District
Lucknow is hereby quashed including
consequential proceedings.

7. The compromise shall form part
of this order.
---------