# Star Paper Mills Limited, Saharanpur Revisionist v. Smt. Anisa Begum & Ors

- **Citation:** (2023) 1 ILRA 1349
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-02
- **Case number:** Civil Revision No. 18 of 2008
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/star-paper-mills-limited-saharanpur-revisionist-v-smt-anisa-begum-ors-49595
- **Pages:** 7

## Headnote

Civil Law - The Indian Stamp Act,
1899- Section 2(14-A) - Challenged
rejection of defendant's application to
impound "yaddasht hiba" - Document
recording oral gift - Amendment clarified
memorandum of oral gift or hiba - now
taxable
to
stamp
duty-
No
costs
awarded.

Revision succeeded. (E-9)

List of Cases cited:

## Text

1 All. Star Paper Mills Limited, Saharanpur Vs. Smt. Anisa Begum & Ors.
1349
the revision deserves to be allowed and the
order dated 23.11.2016 is liable to be
quashed.

37. The revision is allowed. The order
dated 23.11.2016 passed in Original Suit No.
846 of 2014 (Smt. Ratni Devi Vs. Smt. Asha
Hans), is hereby set-aside.

38. Learned lower court is directed to
decide he amendment application afresh after
affording opportunity to both the parties in
light of the observations mentioned above. A
copy of this Judgement be sent to the
Additional Civil Judge (Senior Division)-6th
Meerut, through the District Judge, Meerut,
for immediate compliance.

39. The stay order dated 08th February,
2017, regarding stay of further proceedings of
O.S. No. 846 of 2014, stands vacated.
----------
(2023) 1 ILRA 1349
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Civil Revision No. 18 of 2008

Star Paper Mills Limited, Saharanpur
 ...Revisionist
Versus
Smt. Anisa Begum & Ors.
 ...Opposite Parties

Counsel for the Revisionist:
Sri Kshitij Shailendra, Sri Ravi Kiran Jain

Counsel for the Opposite Parties:
Sri Pankaj Agarwal

Civil Law - The Indian Stamp Act,
1899- Section 2(14-A) - Challenged
rejection of defendant's application to
impound "yaddasht hiba" - Document
recording oral gift - Amendment clarified
memorandum of oral gift or hiba - now
taxable
to
stamp
duty-
No
costs
awarded.

Revision succeeded. (E-9)

List of Cases cited:

1. Mohammad Shamim Akhtar Vs St. of U.P. &
ors., 2012(11) ADJ 698

2. Hafeeza Bibi & ors. Vs Shaikh Farid (Dead) by
LRs. & ors., 2011 (2) ARC 218

3. Inspector General of Registration and
Stamps, Govt. of Hyderabad Vs Smt. Tayyaba
Begum, AIR 1962 AP 199

4. Nasib Ali Vs Wajed Ali, AIR 1927 Cal 197

5. Sukhdeo Prasad, AIR 1934 All 1052

6. Hanuman Prasad Vs The St. of Rajasthan,
AIR 1958 Raj 291

(Delivered by Hon'ble J.J. Munir, J.)

This revision is directed against the
order of the Additional District Judge, Court
No.2, Saharanpur, rejecting the defendants'
application under Order XIII Rule 8 CPC
read with Rule 60 of the General Rules
(Civil), 1957 and Sections 31, 32, 33, 38 and
40 of the Indian Stamp Act, 1899 (for short,
'the Act of 1899) asking the Court to impound
the document bearing paper No. 354-Ka filed
by one Farid Ahmad, a third party, seeking
impleadment, in support of his impleadment
application.

2. The facts in a nutshell leading to
this revision are that Smt. Anisa Begum, a
resident
of
Kori
Tilla,
Saharanpur,
instituted O.S. No. 317 of 1991 in the exCourt of the Civil Judge, Saharanpur [now
Civil Judge (Sr. Div.)] against the two
defendants, who are substantially the same
1350 INDIAN LAW REPORTS ALLAHABAD SERIES
party, that is to say, Star Paper Mills Pvt.
Ltd. through its Managing Director and the
General Manager of the said company,
claiming a mandatory injunction in terms
hereinafter indicated.

3. The plaintiff's case is that the suit
property, admeasuring 7940 square yards,
Khasra No. 538, Khewat No. 13, Mahal
Gher, Daiyan Mohammad Hasan Khan,
Village
Pathanpura,
is
the
plaintiff's
property, of which she is the owner in
possession. She is recorded as such in the
revenue record. The aforesaid property
shall hereinafter be called 'the suit
property'. It is the plaintiff's case that the
suit property is abadi and located within the
city of Saharanpur. As such, zamindari
relating to the said land has not been
abolished and the plaintiff continues to be
its zamindar with all rights attached to the
estate. After pleading her chain of title and
the manner of acquisition of the suit
property through sale deeds by the
plaintiff's father, Nisar Ahmad, it is asserted
that the plaintiff has inherited the said
property from her father. Her father was in
possession of the suit property as zamindar
along with other properties that he had
purchased. His name was mutated in the
revenue records.

4. Shorn of details that are not
relevant for the purpose of the limited issue
that arises in this revision, the plaintiff's
case in the suit appears to be that though
she continues to be the zamindar of the suit
property, wherein the defendants have,
through a chain of successive transfers,
acquired a limited right to the use of a
grove etc., the defendants, that is to say,
Star Paper Mills Pvt. Ltd. are ignoring the
zamindar's rights and threatening to fell
trees, some of which have already been cut
away. The efforts to prevent the defendants
have failed. The defendants are also
threatening to raise constructions over the
suit property after felling the various trees
there in derogation of the zamindar's rights
that the plaintiff holds. Accordingly, the
suit was instituted by Smt. Anisa Begum,
praying that a mandatory injunction be
issued, directing the defendants to remove
all their effects, like goods, building
materials etc., whatsoever, from the suit
property shown in the schedule to the
plaint, within time fixed by the Court,
failing which the Court may cause these
materials and effects to be removed through
the Court's process.

5. The suit was instituted on behalf of
Smt. Anisa Begum through the holder of
her general power of attorney, Jalil Ahmad.
He has been rather peculiarly described in
the array as plaintiff No. 1/1. He is not an
LR of Anisa Begum, substituted in her
stead. Jalil Ahmad has signed and verified
the plaint, describing himself as the holder
of general power of attorney from Smt.
Anisa Begum, who has been shown as the
plaintiff, acting through her attorney in the
verification clause. In the cause title of the
plaint, Anisa Begum and her attorney, Jalil
Ahmad have been rather awkwardly
described with Jalil Ahmad, as already said,
being shown on the plaintiff's side as
plaintiff No. 1/1, below Anisa Begum's
name.

6. Pending suit, one Farid Ahmad, a
third party, made an application, seeking
impleadment on 23.08.2007 under Order
XXII Rule 10 CPC. It was alleged by Farid
Ahmad, who is opposite party No. 2 and, in
fact, the contesting opposite party, that the
plaintiff, Jalil Ahmad, by oral gift dated
16.05.2006, had gifted him the suit
property, that is to say, the zamindar's
estate, which Smt. Anisa Begum held. Farid
1 All. Star Paper Mills Limited, Saharanpur Vs. Smt. Anisa Begum & Ors.
1351
Ahmad accepted the oral gift (hiba) and
acting on the oral gift, took possession of
the suit property. Later on, on 23.07.2006,
Jalil Ahmad wrote a memorandum of oral
gift, meant to serve as a record of the
antecedent hiba. It was also asserted that
Jalil Ahmad being ill was unable to
properly prosecute the suit. On the said
assertion, Farid Ahmad prayed that he may
be impleaded as a plaintiff along with Jalil
Ahmad and permitted to prosecute the suit.
This application by Farid Ahmad bears
paper No. 347-C.

7. Apparently, Farid Ahmad did not
file the document dated 23.07.2006, the
memorandum of oral gift, on the basis of
which he sought impleadment. Later on, he
brought on record the document dated
23.07.2006,
which
is
described
in
vernacular as "yaddasht hiba". A copy of
the said document is on record as Annexure
No. 2 to the affidavit in support of the stay
application.

8. Jalil Ahmad filed objections to the
application made by Farid Ahmad, seeking
impleadment, wherein he said that after
making the oral gift, he had ceased to have
any interest in the suit property. It was
mentioned that the said fact be noted. The
defendant-revisionist filed objections to the
application seeking impleadment by Farid
Ahmad with a case that the latter had no
locus standi to move the application or seek
impleadment. The basis of the objection
was that the document bearing paper No.
354-Ga relied upon as evidence of the oral
gift was a waste paper and did not confer
any right, title or interest upon Farid
Ahmad. It was urged that Fariid Ahmad
sought impleadment on the basis of the
memorandum of oral gift, bearing paper
No. 354-Kha to establish his right to the
suit property as an oral gift.

9. It was further urged through the
objection preferred by the defendantrevisionist
that
the
document
was
unregistered and insufficiently stamped. It
was, therefore, required to be impounded
under Section 33 of the Act of 1899. The
defendant-revisionist
referred
to
the
provisions of Sections 30, 32, 33, 38 and 40
of the Act of 1899 and the amended
definition of an instrument of gift under
sub-Section (14-A) of Section 2, introduced
in the Act of 1899, in its application to the
State of Uttar Pradesh vide U.P. Act No. 38
of 2001. It was impressed upon the Trial
Judge that a memorandum of oral gift
carrying a declaration about the making or
acceptance of an oral gift would also be
taxable to stamp duty. The Trial Judge by
the
impugned
order
rejected
the
revisionist's application under Order XIII
Rule 8 CPC, seeking to impound the
instrument, bearing paper No. 354-Ga/ the
memorandum of oral gift.

10. Aggrieved, this revision has been
instituted.

11. Heard Mr. Kshitij Shailendra,
learned Counsel for the revisionist and Mr.
Pankaj Agrawal appearing on behalf of
opposite party No. 2. No one appears on
behalf of the heirs and LRs of the plaintiffopposite party Nos. 1/1/1, 1/1/2, 1/1/3 and
1/1/4.

12. Mr. Kshitij Shailendra, learned
Counsel for the revisionist and Mr. Pankaj
Agarwal, learned Counsel appearing for
contesting opposite party No. 2 are at sharp
variance about the proposition that a
memorandum of oral gift (hiba), which
does not by itself bring about a transfer of
immovable property or create, extinguish
or enlarge rights, but merely records an
antecedent oral transaction, accompanied
1352 INDIAN LAW REPORTS ALLAHABAD SERIES
by acceptance and delivery of possession,
is neither compulsorily registerable nor
taxable to stamp duty. While Mr. Kshitij
Shailendra
submits
that
it
is
both
compulsorily registerable and taxable to
stamp duty, Mr. Agarwal says that it does
not require either. Mr. Agarwal has
supported the order impugned passed by
the learned Trial Judge, refusing to
impound the instrument.

13. Since this revision arises out of
the defendant's application under Order
XIII rule 8 CPC read with Sections 31, 32,
33, 38 and 40 of the Act of 1899, seeking to
impound the document, paper No. 354-Ka,
the
issue
whether
the
document
is
compulsorily registerable or not, does not
arise in this case. All that is to be examined
is: whether the document is required to be
taxed to stamp duty or it can be received in
evidence, without any stamp duty being
paid thereon, or even if insufficiently
stamped? It is interesting that the learned
Counsel appearing for both parties have
relied upon the decision of this Court in
Mohammad Shamim Akhtar v. State of
U.P. and others, 2012(11) ADJ 698 to
canvass
their
diametrically
opposite
submissions. In Mohammad Shamim
Akhtar (supra), it was held:

"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 Act, clearly ruled that the nature and
character of the gift made by the
Mohammedan does not change merely for
the reason that it has been written down
and that a gift by the Mohammedan is not
an instrument effecting, creating or making
the gift in writing but only a piece of
evidence.

12. In addition to the above, the
definition of 'instrument' under Section
2(14) of the Act contemplates a document
or a record creating or extinguishing rights
and liabilities which means existence of a
document in some form or the other.
Therefore, where an oral gift is permissible
1 All. Star Paper Mills Limited, Saharanpur Vs. Smt. Anisa Begum & Ors.
1353
and made there happens to be no document
or record of rights and liabilities which
could be subjected to stamp duty. Liability
of payment of stamp duty arises only on the
execution of an instrument. (Reference:
AIR 1934 All 1052 Sukhdeo Prasad). The
subsequent writing it out on a paper would
not make it a gift deed as the gift stood
completed in the past by making an oral
declaration, its acceptance and delivery of
possession. His Lordship of the Rajasthan
High Court in Hanuman Prasad v. The State
of Rajasthan, AIR 1958 Raj 291, ruled that
a document which is not an instrument of
gift but only a record of the past transaction
does not require to be stamped under the
Act.

13. In the above situation neither the
gift made by a Mohammedan orally nor its
reduction in writing subsequently would
amount to execution of an instrument
which could be subjected to payment of
stamp duty. Thus, I am of the opinion that
the authorities below grossly erred in law in
subjecting the above memorandum of gift
dated 8.5.2002 to stamp duty."

14. There is little doubt, particularly,
in view of the holding of the Supreme
Court in Hafeeza Bibi and others v.
Shaikh Farid (Dead) by LRs and others,
2011 (2) ARC 218, that an oral gift made
by a mohammedan, which is subsequently
reduced to writing 'does not become a
formal document or instrument of gift', as
observed by their Lordships of the Supreme
Court.

15. The remarks of this Court in
Mohammad Shamim Akhtar based on
Hafeeza Bibi (supra) that a deed of gift by
a Mohammedan is not an instrument
effecting, creating or making a gift, but a
mere piece of evidence and that such a
writing is not a document of title, but a
mere evidence of it, is trite exposition of
the law, so far as the position goes under
the Central Statute. This Court may only
add that under the Central Statute also, if a
deed of gift were made in writing
conveying thereby the donor's interest to
the donee in an immovable property, it
would be taxable to stamp duty, like any
other instrument of gift. It is only in cases
where oral gift under the Mohammedan law
is made and concluded by acceptance with
delivery of possession, and a record of it, is
subsequently drawn up, often called a
memorandum of oral gift, or a record made
of the antecedent and concluded transaction
of hiba that it is not chargeable to stamp
duty. But, this position obtains under the
Central Statute. In Mohammad Shamim
Akhtar, the U.P. State Amendment brought
in vide U.P. Act No. 38 of 2001, adding
sub-Section (14-A) to Section 2 of the Act
of 1899 as applicable in the State of U.P.
was noticed, but the Court did not consider
or pronounce upon it, because in that case
the oral gift had been made on 17.12.2001,
of which a memorandum was drawn up on
08.05.2002, whereas U.P. Act No. 38 of
2001 came into force w.e.f. 20.05.2002.

16. Here, the oral gift was admittedly
made on 16.05.2006 in the presence of
witnesses, where the donee accepted the
oral gift and took ownership possession of
the suit property. The memorandum of oral
gift was drawn up on 23.07.2006 recording
the antecedent transaction done orally on
16.05.2006. The memorandum of oral gift,
described as 'yaddasht hiba' is not taxed to
any stamp duty. The memorandum of oral
gift here is one that was drawn after
coming into force of the U.P. State
Amendment to the Act of 1899 vide U.P.
Act No. 38 of 2001. Also, the oral gift, that
the memorandum records, was one made
1354 INDIAN LAW REPORTS ALLAHABAD SERIES
after enforcement of the U.P. State
Amendment under reference. Section 2(14A) introduced vide U.P. Act No. 38 of 2001
amends sub-Section 14 of Section 2 of the
Act of 1899 as follows:

"2. In section 2 of the Indian
Stamp Act, 1899, hereinafter referred to as
the principal Act, -

(a) for sub-section (14), the
following sub-section shall be substituted,
namely : -

"(14)
'Instrument'-'Instrument'
includes every document and record
created or maintained in or by an electronic
storage and retrieval device or media by
which any right or liability is, or purports to
be, created, transferred, limited, extended,
extinguished or recorded,"

(b) after sub-section (14), the
following sub-section shall be inserted,
namely : -

"(14-A) 'Instrument of Gift'-
'Instrument of Gift' includes and instrument
whether
by
way
of
declaration
or
otherwise, for making or accepting an oral
gift," (emphasis by Court)

17. An instrument of gift is taxable to
stamp duty on the value of the property as
set-forth in the instrument, that is to say, at
the same rate as a conveyance under Item
No. 33 of Schedule I to the Act of 1899. It
is not the rate of the stamp duty at which an
instrument of gift is taxable, but the fact
that it is taxable to stamp duty that is in
issue here. Now, what is to be seen is
whether by virtue of sub-Section (14-A) of
Section 2 of the Act of 1899, as amended in
its application to the State of U.P., a
memorandum of oral gift, which records a
concluded
oral
gift
or
hiba
by
a
mohammedan is taxable to stamp duty. But,
for the provision of sub-Section (14-A) of
Section 2, a memorandum of oral gift,
which did not by itself create any right and
merely
recorded
an
antecedent,
oral
transaction of gift or hiba, has always been
held to be not taxable to stamp duty. It is on
that principle that this Court acted in
Mohammad Shamim Akhtar following
the Supreme Court in Hafeeza Bibi.

18. Here, the statutory context has
changed because sub-Section (14-A) of
Section 2 of the U.P. State Amendment has
defined an instrument of gift, which the
Central Statute does not. The definition of
an instrument of gift in sub-Section (14-A)
of Section 2 is an inclusive definition and
expressly
says
that
it
includes
an
instrument of gift whether by way of
declaration or otherwise, for making or
accepting an oral gift. The express words
employed by the Amendment extend the
sweep of the Act to cover not only those
instruments of gift that by themselves
convey the property donated, but also
include declarations of gifts made or
accepted orally. A conveyance by oral gift
of immovable property is not known to the
corpus juris in India except under the
Mohammedan Law, for which the Transfer
of Property Act makes allowance. In all
other cases, the Transfer of Property Act
mandates vide Section 123 as follows:

"123. Transfer how effected.--
For the purpose of making a gift of
immoveable 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 moveable property, the transfer may be
effected either by a registered instrument
signed as aforesaid or by delivery. "

19. Section 129 of the Transfer of
Property Act makes allowance for oral
1 All. Ramesh Kumar Singh Vs. Virendra Singh & Ors.
1355
gifts under the Mohammedan Law and
death bed gifts of movable property alone
for other citizens. Section 129 reads:

129. Saving of donations mortis
causa and Muhammadan law.--Nothing
is this Chapter related to gifts of moveable
property made in contemplation of death,
or shall be deemed to affect any rule of
Muhammadan law.

20. This being the substantive law
relating to disposition by gift and given the
terms of the State Amendment vide subSection (14-A) of Section 2 of the Act of
1899, there is not the slightest doubt that
after enforcement of the State Amendment,
a memorandum of oral gift recording an
antecedent transaction of hiba, howsoever
described and in whatever kind of words
couched, is taxable to stamp duty as an
instrument of gift. The order impugned
holding to the contrary passed by the
learned Additional District Judge cannot be
countenanced.

21. This revision succeeds and is
allowed.
The
impugned
order
dated
07.12.2007 is hereby set aside and the
application bearing paper No. 357-Ga-2
restored to the file of the Trial Court, to be
decided afresh, after hearing parties, in
accordance with the guidance in this
judgment. Needless to add that orders on the
said application shall be passed within a month
of receipt of this order by the Trial Court.

22. There shall be no order as to costs.

23. The Registrar General is directed
to circulate a copy of this order to all the
learned District Judges, and the Chief
Controlling
Revenue
Authority,
Uttar
Pradesh.
----------
(2023) 1 ILRA 1355
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2022

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Civil Revision No. 465 of 2012
with
Civil Revision No. 486 of 2012

Ramesh Kumar Singh ...Revisionist
Versus
Virendra Singh & Ors. ...Respondents

Counsel for the Revisionist:
Sri Sumit Daga, Sri Vikrant Pandey

Counsel for the Respondents:
Sri Abhijit Banerjee

Rent and eviction-Dispute over unpaid rent
and eviction -Legal disputes ensued, covering
notice validity, monthly rent amount, and
default - trial Court ruled in favor of landlords
- denied eviction relief - High Court reversed
the notice finding- compliance with the
amended Section 106- reduced notice to 15
days - affirmed the rent amount and default-
decreeing eviction against the tenant.

Revision dismissed. (E-9)

(Delivered by Hon'ble Umesh Chanbdra
Sharma, J.)

1. Since both the revisions have been
preferred by the defendant-tenant and the
plaintiffs-landlords, respectively, against
the judgment and order dated 22.8.2012
passed
by
Judge
Small
Causes
Court/Additional District Judge, Court
No.1,
Hathras.
Therefore,
both
the
revisions are being decided by this
common judgement.

2. In brief, facts of the case are that
Virendra Singh and others are the owner