INSPECTOR GENERAL OF REGISTRATION AND STAMPS GOVERNMENT OF HYDERABAD Vs. TAYYABA BEGUM

JUDGEMENT

(1.) This reference is made by the Board of Revenue under section 55 of the Hyderabad Stamp Act (IV of 1331-F.) to decide whether the document in question operates as a gift deed or whether it merely evidences a past transaction. The brief facts necessary for the purposes of this reference are hese. One Sayyada Tayyaba Begum presented a document engrossed on a stamp paper of Rs. 1-8-0 for registration before the City Registrar, Hyderabad. As the requisite stump was not paid by the executant, as on a gift deed, he referred the matter under section 54. of the Hyderabad Stamp Act to the Chief Controlling Revenue Authority which is the Board of Revenue. The Chief Controlling Revenue Authority, in its turn, made a reference to this Court for its opinion.

(2.) This matter came up for hearing once before a Full Bench of the erstwhile Hyderabad High Court. But the learned Judges declined to entertain it as it was signed by only one member of the Board of Revenue. Hence the present reference. This time, the whole Board made the reference to the High Court in compliance with the relevant provisions of law. The short point for determination here is whether the document in question falls within the connotation of the term ' gift deed '. In order to judge the nature of the document it is necessary to look at its contents. It is in the following words :- "I, Sayyada Tayyaba Begum, wife of the late Syed Muttaqi Hussain, vakil, caste Muslim, aged 70 years, occupation house-keeping, resident of Basheerbagh, Himayatnagar, Hyderabad city, do hereby declare that the house bearing old No. 474/7 and new No. A-10-97 situated at Himayatnagar and bounded on the West by waste land belonging to Nawab Moin Yar Jung, on the East by plot No. 3 belonging to T. K. Shamu, on the North by public road, and on the South by the garden of Rai Murlidhar, was owned and possessed by me. I intended to make a hiba (gift) of the said house to my younger son, Syed Ehasan Hussain, out of maternal affection and in consideration of his obedience and service and I wanted to confirm the said hiba (gift) by executing a registered gift deed. With a view to giving effect to my desire, I took legal advice whereupon I came to know that in view of the valuation of the house a large sum of money would be required to be paid towards registration fees and stamp duty which a helpless person like me could not afford to pay without raising a debt. With a view to solving my difficulty and having my desire fulfilled, the legal advisers explained to me that according to the Muslim law, I was at liberty to transfer my porperty by making an oral gift without executing any document whatsoever. Therefore, on the basis of the legal advice, and in order to fulfil my long cherished desire I made an unconditional gift' Hiba farigh anil mashghool' on 10th October 1951, of the said house in favour of my son, Syed Ehasan Hussain, son of the late Syed Muttaqi Hussain, after due offer and acceptance and dlivered over the said house into the proprietary possession and enjoyment of the said donee. And now when I have become decrepit and infirm it is likely and probable that some interested person or other might deny the fact of hiba (gift) and involve my son, Syed Ehsan Hussain, in difficulties. Therefore, on the bask of the legal advice, I deemed it necessary to execute a deed also making a declaration in favour of my said son in regard to the said fact of hiba so that a deed (written document) may be available and in existence in the shape of my admission of the hiba (made) in accordance with the Muslim law. I do hereby declare that I have transferred the said house onwed and possessed by me and bearing old No. 474/7 and new No. A-10-97 and situated in Himayatnagar, and bounded on the West by the waste land belonging to Nawab Moin Yar Jung, on the East by plot No. 3 belonging to T. K. Shamu, on the North by public road and on the South by garden of Rai Murlidahar, in favour of Syed Ehsan Hussain, by making an oral gift (hiba) thereof on 10th O ctober, 1951 and that as from that day the said donee has been in proprietary possession and enjoyment of the said house so gifted. I pray that no one may have any kind of doubt, regarding the ownership of Syed Ehsan Hussain and that if per chance any doubt at all should arise, this deed of Ekrarnama may prove sufficient.

(3.) Now, what is the effect of these recitals ? Do they constitute a gift attracting the applicability of section 123 of the Transfer of Property Act which lays down the mode in which a gift could be effected. Section 123 runs as follows :-