High Court · 2025

1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondent.

2. By means of present petition, the petitioners are assailing the order dated 10.4.2024 passed by respondent no. 2 and the order dated 29.5.2024 passed by respondent no. 4.

3. Learned counsel for the petitioners submits that late Moniruddin son of Wakil Ahmad was the owner of House No. 171 /1 situated at Mohalla Raghunathpura, Tehsil Sadar, Mau Nath Bhanjan, Distt. Mau and the house in question was in possession with his daughter and son in law, petitioner no. 1. He submits that after death of Moniruddin in the year 2018, Aamina Khatoon, his wife, has gifted the house in question to the petitioners through oral Hibba, which was accepted by the petitioners. He further submits that on 21.12.2019, a memorandum of said oral hibba was reduced in writing by Smt. Aamina Khatoon in favour of the petitioners. Thereafter the petitioners approached to the Nagar Palika Parishad along with application for mutation of their names on 6.1.2020 but respondents, without going through the contents of said Hibbanama, have illegally treated the same as sale deed and proceedings under Section 47 A of Indian Stamp Act was initiated against the petitioners in which the impugned orders have been passed.

4. Learned counsel for the petitioner submits that hibba/ gift deed was not required to be registered under the Registration Act as held by Hon'ble the Apex Court in the case of Hafeeza Bibi and others Vs. Shaikh Farid by LRs. and others, 2011 (2) ARC 218. He submits that proceedings under Section 47 A of the Act cannot be initiated in the facts of the present case.

5. He further relied upon the judgement of this Court in the cases of Sahas Degree College Vs. State of UP and others (Neutral Citation No. 2024 : AHC: 129076), Yogesh Kumar and others Vs. State of UP and others (Writ C No. 32977 of 2017) decided on 30.8.2017 and Sheel Mohan Bansal Vs. State of UP (Neutral Citation No. 2024: AHC 63681).

6. Per contra, learned Standing Counsel supports the impugned order.

7. After hearing learned counsel for the parties, the Court has perused the impugned order.

8. It is not in dispute that the hibba/gift was made orally and the doner made the declaration of hibba, 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 Court in the case of Hafeeza Bibi and Ors. (supra), relevant para nos. 27 to 31, are quoted hereunder:- "27. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are; (i) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing. Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182 states in this regard that writing may be of two kinds : (i) it may merely recite the fact of a prior gift; such a writing need not be registered. On the other hand, (ii) it may itself be the instrument of gift; such a writing in certain circumstances requires registration. He further says that if there is a declaration, acceptance and delivery of possession coupled with the formal instrument of a gift, it must be registered. Conversely, the author says that registration, however, by itself without the other necessary conditions, is not sufficient.

28. Mulla, Principles of Mahomedan Law (19th Edition), Page 120, states the legal position in the following words : "Under the Mahomedan law the three essential requisites to make a gift valid : (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. No written document is required in such a case. Section 129 Transfer of Property Act, excludes the rule of Mahomedan law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case."

29. 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. What is important for a valid gift under Mohammadan 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 Mohammadan Law.

30. In considering what is the Mohammadan Law on the subject of gifts inter vivos, the Privy Council in Mohammad Abdul Ghani stated that when the old and authoritative texts of Mohammadan Law were promulgated there were not in contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of possession of land, and that could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.

31. Section 129 of T.P. Act preserves the rule of Mohammadan Law and excludes the applicability of Section 123 of T.P. Act to a gift of an immovable property by a Mohammadan. We find ourselves in express agreement with the statement of law reproduced above from Mulla, Principles of Mahomedan Law (19th Edition), page 120. In other words, it is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts."

9. It is nobodies case that the hibba/gift deed was presented for registration. Once this fact is admitted by respondents that gift deed/hibba was not presented for registration, then proceedings under Section 47(A) of Indian Stamp Act cannot be pressed to service. Further, Section 47-A of the Act can only be applicable when any instrument/document is presented for registration and not otherwise. If the authorities were of the view that hibba/gift deed was required for payment of stamp duty, then the proceedings u/s 33 of the Stamp Act should have been initiated instead of the proceedings u/s 47-A of the Act.

10. This Court on various occasions has held that the proceedings under Section 47-A of the Stamp Act cannot be initiated for unregistered documents.

11. In view of the above facts as stated as well as law as mentioned above, the impugned orders cannot be sustained in the eyes of law and the same are hereby quashed.

12. Accordingly, the writ petition is allowed.

13. Any amount deposited by the petitioners pursuant to the impugned orders, shall be refunded to them within two months from the date of production of certified copy of this order. Order Date :- 14.7.2025 Rahul Dwivedi/- RAHUL DWIVEDI High Court of Judicature at Allahabad

1. Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondent.

2. By means of present petition, the petitioners are assailing the order dated 10.4.2024 passed by respondent no. 2 and the order dated 29.5.2024 passed by respondent no. 4.

3. Learned counsel for the petitioners submits that late Moniruddin son of Wakil Ahmad was the owner of House No. 171 /1 situated at Mohalla Raghunathpura, Tehsil Sadar, Mau Nath Bhanjan, Distt. Mau and the house in question was in possession with his daughter and son in law, petitioner no. 1. He submits that after death of Moniruddin in the year 2018, Aamina Khatoon, his wife, has gifted the house in question to the petitioners through oral Hibba, which was accepted by the petitioners. He further submits that on 21.12.2019, a memorandum of said oral hibba was reduced in writing by Smt. Aamina Khatoon in favour of the petitioners. Thereafter the petitioners approached to the Nagar Palika Parishad along with application for mutation of their names on 6.1.2020 but respondents, without going through the contents of said Hibbanama, have illegally treated the same as sale deed and proceedings under Section 47 A of Indian Stamp Act was initiated against the petitioners in which the impugned orders have been passed.

4. Learned counsel for the petitioner submits that hibba/ gift deed was not required to be registered under the Registration Act as held by Hon'ble the Apex Court in the case of Hafeeza Bibi and others Vs. Shaikh Farid by LRs. and others, 2011 (2) ARC 218. He submits that proceedings under Section 47 A of the Act cannot be initiated in the facts of the present case.

5. He further relied upon the judgement of this Court in the cases of Sahas Degree College Vs. State of UP and others (Neutral Citation No. 2024 : AHC: 129076), Yogesh Kumar and others Vs. State of UP and others (Writ C No. 32977 of 2017) decided on 30.8.2017 and Sheel Mohan Bansal Vs. State of UP (Neutral Citation No. 2024: AHC 63681).

6. Per contra, learned Standing Counsel supports the impugned order.

7. After hearing learned counsel for the parties, the Court has perused the impugned order.

8. It is not in dispute that the hibba/gift was made orally and the doner made the declaration of hibba, 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 Court in the case of Hafeeza Bibi and Ors. (supra), relevant para nos. 27 to 31, are quoted hereunder:- "27. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are; (i) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing. Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182 states in this regard that writing may be of two kinds : (i) it may merely recite the fact of a prior gift; such a writing need not be registered. On the other hand, (ii) it may itself be the instrument of gift; such a writing in certain circumstances requires registration. He further says that if there is a declaration, acceptance and delivery of possession coupled with the formal instrument of a gift, it must be registered. Conversely, the author says that registration, however, by itself without the other necessary conditions, is not sufficient.

28. Mulla, Principles of Mahomedan Law (19th Edition), Page 120, states the legal position in the following words : "Under the Mahomedan law the three essential requisites to make a gift valid : (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. No written document is required in such a case. Section 129 Transfer of Property Act, excludes the rule of Mahomedan law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case."

29. 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. What is important for a valid gift under Mohammadan 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 Mohammadan Law.

30. In considering what is the Mohammadan Law on the subject of gifts inter vivos, the Privy Council in Mohammad Abdul Ghani stated that when the old and authoritative texts of Mohammadan Law were promulgated there were not in contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of possession of land, and that could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.

31. Section 129 of T.P. Act preserves the rule of Mohammadan Law and excludes the applicability of Section 123 of T.P. Act to a gift of an immovable property by a Mohammadan. We find ourselves in express agreement with the statement of law reproduced above from Mulla, Principles of Mahomedan Law (19th Edition), page 120. In other words, it is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts."

9. It is nobodies case that the hibba/gift deed was presented for registration. Once this fact is admitted by respondents that gift deed/hibba was not presented for registration, then proceedings under Section 47(A) of Indian Stamp Act cannot be pressed to service. Further, Section 47-A of the Act can only be applicable when any instrument/document is presented for registration and not otherwise. If the authorities were of the view that hibba/gift deed was required for payment of stamp duty, then the proceedings u/s 33 of the Stamp Act should have been initiated instead of the proceedings u/s 47-A of the Act.

10. This Court on various occasions has held that the proceedings under Section 47-A of the Stamp Act cannot be initiated for unregistered documents.

11. In view of the above facts as stated as well as law as mentioned above, the impugned orders cannot be sustained in the eyes of law and the same are hereby quashed.

12. Accordingly, the writ petition is allowed.

13. Any amount deposited by the petitioners pursuant to the impugned orders, shall be refunded to them within two months from the date of production of certified copy of this order. Order Date :- 14.7.2025 Rahul Dwivedi/- RAHUL DWIVEDI High Court of Judicature at Allahabad