BIBI KHAIRUNISSA Vs. ELAHI BUX

JUDGEMENT

(1.) Both these applications by the defendant are in connection with the impounding of a document as a deed of gift and admitting the same into evidence subject to payment of the stamp duty and penalty as stated by the Court below.

(2.) The defendant-petitioner, in the trial Court, tendered a document in evidence which, according to her, is not a deed of gift but only a memorandum of gift. The trial Court impounded it, obviously for the reason that the document was chargeable to stamp duty, and it did not bear the requisite stamp as provided under Section 33 of the Indian Stamp Act, 1899. The Court, further, admitted the document as exhibit B in evidence, and stated that a particular amount was payable by the defendant as the stamp duty with the penalty imposed upon her, as provided under Section 35 of the Act. The defendant challenges both these actions of the Court below.

(3.) Learned Counsel appearing tor the defendant-petitioner, first of all, pressed that the trial Court was wrong in thinking that the document marked as B is a deed of gift. He read out the contents of the document, and urged that that was a document which was engrossed on an ordinary piece of paper, and was really a declaration of a gift made by Tinkauri Mian, and this declaration was by the panches, who had also affixed their own signatures upon that document. Tinkauri Mian also put his thumb mark. Reading the context of that document, there is no doubt left that it purported to be a deed of gift in respect of the properties mentioned therein. Tinkauri Mian was incapable of writing or even putting his signature. One of the panchas, therefore, wrote the document, and the other panchas signed it, as it were, by way of being witnesses to the execution of the same by Tinkauri Mian. Learned Counsel further contended that no possession was stated to have been given to the donee under that document. But that fact will very much go against him. If there had been, as he wanted to urge, a completed gift by Tinkauri Mian before this document was brought into existence, the document would have mentioned also that the donee had accepted the gift, and possession had been delivered to him. That statement is not there in the document. Therefore, this document has to be taken as an instrument by which the gift was made to be followed by acceptance by the donee and delivery of possession to him. In our view, the trial Court was right in holding that this document is a deed of gift.