Dharmrao Sharanappa Shabadi vs Syeda Arifa Parveen

2025 INSC 1187 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2025 [@ SLP (C) NO. 16996 OF 2022]

DHARMRAO SHARANAPPA SHABADI AND OTHERS … APPELLANT(S)

VERSUS

SYEDA ARIFA PARVEEN … RESPONDENT(S)

JUDGMENT

S.V.N. BHATTI, J.

1. Leave granted.

2. The Civil Appeal arises from the judgment and decree dated 06.07.2022

in RFA No. 200204 of 2019 in the High Court of Karnataka, Kalaburagi Bench,

Kalaburagi. The Civil Appeal is at the instance of the Defendants in OS No.

212 of 2013 in the Court of Principal Senior Civil Judge at Kalaburagi. The

sole Respondent is the Plaintiff.

3. The following chronology is prefaced before adverting to the pleadings,

evidence and findings in the impugned judgments.

3.1 Khadijabee w/o Syed Abdul Basit filed OS No. 68 of 1971 against her

brother for partition and separate possession of agricultural land in

Sy.No. 107 measuring 24 acres and 28 guntas at village Kusnoor,

Taluka and District Gulbarga (‘Suit Property’). On 27.10.1987, OS No.

68 of 1971 was decreed (Ex. P-1), declaring that the Suit Property

belongs to Khadijabee. It is averred that on 05.12.1988, Khadijabee, Signature Not Verified

under an oral gift/Hiba, conveyed to the Plaintiff 10 acres in Sy.No. 107. Digitally signed by VARSHA MENDIRATTA Date: 2025.10.07 13:33:40 IST Reason:

On 05.01.1989, the Memorandum of Gift (Ex. P-8) is stated to have been

executed by Khadijabee in favour of Plaintiff. On 06.06.1989,

1 registration of a change of rights (Ex. P-2) in the Record of Rights (‘ROR’)

in favour of Khadijabee was carried out covering the entire extent of 24

acres and 28 guntas. Khadijabee died on 29.11.1990 (Ex. P-3). On

23.05.1991, Abdul Basit, the husband of Late Khadijabee, again got the

mutation (Ex. D-2) effected for 24 acres and 28 guntas. On 25.02.1995,

Abdul Bas (as set out in the sale deeds) sold, through five sale deeds

(Exs. D-3 to D-7), the extent of 24 acres and 28 guntas in favour of

Defendant nos. 1 to 5, and through Exs. D-9 to D-43, the Suit Property

has been mutated in their names. On 09.09.2001, Abdul Basit died. On

28.10.2013, Syeda Arifa Parveen, w/o Mushtaq Ahmed, filed OS No.

212 of 2013, praying for the reliefs of declaration that the Plaintiff is the

owner of the Suit Property and perpetual injunction. The suit property

is land Sy.No.107, admeasuring Ac. 24-28 Gts., situated at Village

Kusnoor, Taluka and District Gulbarga. The Suit Property is bounded

by a Government Road to the East, Sy.No.151 to the West, Sy.No.106

to the North, and Sy.No.119 to the South.

3.2 The Plaintiff, by way of amendment, prayed for a further declaration

that the sale deeds alleged to be executed by Abdul Bas, dated

25.02.1995, in favour of Defendants are null and void and not binding

on the Plaintiff (Exs. D-3 to D-7).

4. The averments in the plaint in support of the declaratory relief of title

and cancellation of Exs. D-3 to D-7 state that Khadijabee died on 29.11.1990,

and the Plaintiff is her only daughter and heir. Khadijabee’s husband is also

deceased, and she left no other legal heirs. Khadijabee, during her lifetime,

made an oral gift/Hiba of 10 Acres of land out of the Suit Property in favour

of the Plaintiff on 05.12.1988, and delivered possession, which the Plaintiff

accepted. Subsequently, a Memorandum of Gift Deed was executed on

2 05.01.1989. Based on the oral gift and succession, the Plaintiff claims to be

the owner and in possession of the Suit Property. The Plaintiff asserted that

the Defendant No. 1 was previously an agricultural servant of Khadijabee

(original owner) on a yearly salary basis. The Plaintiff further asserts that the

Defendants have no concern with either the ownership or possession of the

suit land. Taking advantage of Dussehra Vacation, the plaintiff alleged that

on 14.10.2013, the Defendants came to the suit land, tried to dispossess the

Plaintiff by force, and asked her to vacate, claiming they had purchased the

land. They also tried to stop agricultural operations. The Defendants claimed

to have purchased portions of the Suit Property through registered sale deeds

dated 25.02.1995, with the alleged vendor being Abdul Bas S/o Syed Hussain

Saheb. The purchased portions are as follows: (i) Defendant No.1: 4 Acres 38

Guntas, (ii) Defendant No.2: 5 Acres, (iii) Defendant No.3: 5 Acres, (iv)

Defendant No.4: 5 Acres and (v) Defendant No.5: 5 Acres. The Plaintiff

contends that “Abdul Bas” S/o Syed Hussain Saheb (executor of the sale deed)

does not exist, was never the owner, nor in possession of the suit land. The

sale deeds were not executed by Khadijabee or her husband, “Abdul Basit

Saheb”. The Plaintiff alleges that the Defendants created these false sale deeds

to make a false claim over the Suit Property. Therefore, these sale deeds have

not conferred any right, title, and the Defendants have not become owners of

the Suit Property. The Plaintiff argues that the entries in the revenue records

were entered without following proper procedure. Further, the plaintiff stated

that these entries are illegal because notices were not served upon the Plaintiff

nor the original owners at the time of mutation of entries. These entries,

therefore, do not confer any right, title, or interest on the Defendants.

5. The Defendants resisted the suit on all fours. The Defendants admit

that Khadijabee was the original owner of the Suit Property, and she died on

29.11.1990 and her husband has also died. However, they deny that the

3 plaintiff is Khadijabee’s only daughter, that Khadijabee left no other heirs,

that Khadijabee made an oral gift of 10 Acres of land to the plaintiff on

05.12.1988, or that possession was delivered. According to Defendants,

Khadijabee and her husband died issueless. They further deny that

Khadijabee executed a Memorandum of Gift on 05.01.1989, or that the

plaintiff became the owner and possessor of 10 Acres of land out of the total

extent of the Suit Property. They allege that the plaintiff made up a story to

grab their property by illegal means. They highlight that the alleged oral gift

has not been heard of for 25 years, and the alleged Memorandum of Gift has

not seen the light of day for all these years. The Defendants specifically contest

that Defendant No. 1 was Khadijabee’s agricultural servant, or that the

Defendants have no concern with the ownership or possession of the Suit

Property. The Defendants deny that on 14.10.2013, they tried to dispossess

the plaintiff by force, or that they informed the plaintiff they purchased the

lands through various sale deeds. The Defendants assert that during the

Dussehra Vacation, they did not attempt to stop agricultural operations or

ask the plaintiff to vacate and hand over possession. Further, the Defendants

stated that the sale deeds were not executed by the plaintiff or her parents.

Defendant Nos. 1 to 5 assert they are bona fide purchasers. They verified

revenue and other records and were satisfied with the title of Abdul Bas @

Abdul Basit s/o Syed Hussain Sab as it was duly mutated in their vendor’s

name. The Defendants detail their individual purchases of land in Sy.No.107

on 25.02.1995 through registered sale deeds, specifying the document

numbers and acreage for each Defendant. They assert that they are in

possession of their portions as absolute owners since the date of purchase

without any interference. They also mention that Abdul Bas @ Abdul Basit

had previously sold house properties to Defendant No. 2’s family in 1981. The

Defendants’ names were mutated in the revenue records based on these

4 registered sale deeds after due process and have continued without objections

from anyone, particularly the plaintiff. They deny that the said sale deeds did

not confer any right, title, or interest on the Defendants, or that the

Defendants did not become the owners. They further deny that notices were

not served on the plaintiff, Khadijabee, or her husband when entries were

made in the ROR, or that such entries are illegal and do not confer any right,

title, or interest on the Defendants.

6. The following issues and additional issues were framed by the Trial

Court:

“1. Whether the Plaintiff proves that, she is having right, title

and ownership over the suit schedule property?

2. Whether the Plaintiff further proves that, she is in lawful

possession and enjoyment over the suit schedule property as

on the date of filing of this suit?

3. Whether the Plaintiff further proves that, defendants have

interfered in the peaceful possession and enjoyment of suit

schedule property as alleged in the plaint?

4. What order or decree?

Additional issues:

1. Whether suit of Plaintiff is barred by limitation?

2. Whether suit of the Plaintiff in present form is

maintainable?”

7. The Plaintiff examined herself as PW1 and PWs 2 to 4 on her behalf and

got marked Exs. P-1 to P-8. The second Defendant was examined as DW1,

and the third Defendant was examined as DW2. Exs. D-1 to D-44 have been

marked on their behalf.

8. The respective pleadings of the parties are, to the extent needed,

adverted to while taking up the contentions by the learned counsel appearing

for the parties. The Trial Court, in effect, decreed the suit in part, granting a

5 decree of title and permanent injunction to an extent of 18 acres and 21

guntas of the Suit Property. The Trial Court disbelieved the case of the Plaintiff

on Oral Gift, and the view taken by the Trial Court can be summed up as

follows.

8.1 Plaintiff was the daughter of Khadijabee and Syed Abdul Basit. This

finding was based on the testimony of PW2 and PW3, who had special

means of knowledge of the familial relationship. The Court did this by

invoking Section 50 of the Indian Evidence Act, 1872 (‘Evidence Act’).

8.2 The Trial Court, by referring to Section 73 of the Evidence Act,

compared the disputed signatures and found that the signature of Syed

Abdul Basit on Ex. P-8 (Memorandum of Gift) matched his signature on

the sale deeds, concluding that they belonged to the same person.

8.3 The Trial Court held that the oral gift was not acted upon because the

delivery of possession could not be established. Under Mohammedan

Law, delivery of possession is an essential condition. The court also

noted a discrepancy in the property’s boundaries, as mentioned in the

gift memorandum. This created doubt about the identification of the

gifted portion, and it was concluded that a valid gift deed requires

handing over of actual possession.

8.4 Trial Court held that as per the Mohammedan Law of succession, the

shares of the legal heirs after Khadijabee’s death were to be divided as

3/4th to the daughter and 1/4th to the father.

8.5 The sale deed was only valid to the extent of 1/4th share (6 acres and

7 guntas). The remaining 3/4th share of 18 acres and 21 guntas was

declared void.

9. The Defendants filed RFA No. 200204 of 2019, in the High Court of

Karnataka, Kalaburagi Bench and through the impugned judgment, while

6 dismissing the appeal, modified the decree by holding that the Plaintiff is the

absolute owner of 10 acres derived through Oral Gift and Ex. D-8, and of a

3/4th share in the balance of extent in the Suit Property, i.e., 14 acres 28

guntas. To conclude the introductory narrative, the High Court, through its

findings:

9.1 Upheld the Trial Court findings on the Plaintiff being the daughter of

Khadijabee and Abdul Basit.

9.2 It overturned the Trial Court’s findings on the oral gift. The High Court

found that the evidence proved the delivery of possession of 10 acres;

thereby, completing the oral gift. It also noted that the testimony of

witnesses PW2 and PW4 supported the Plaintiff’s claim of possession.

9.3 The High Court modified the decree by noting that the Plaintiff is the

absolute owner of the 10 acres gifted by her mother, and the 3/4th

share in the remaining 14 acres and 28 guntas.

10. Hence, the civil appeal at the instance of the Defendants.

11. We have heard learned Senior Counsel, Mr. Rauf Rahim, for the

Defendants and Mr. Amit Kr Deshpande for the Plaintiff.

11.1 It is argued for the Defendants assailing the findings of the High Court

and the Trial Court that they bristle with perversity and suffer from

unavailable presumptions and assumptions in law. To wit, it is

explained that after the death of Khadijabee in 1990, her husband,

Abdul Basit, became the sole heir and had his name recorded in the

land records on 23.05.1991. On 25.02.1995, Abdul Basit sold the land

to the petitioners through five registered sale deeds. The petitioners’

names have been entered on the ROR and Crop Cultivation Column

from 1995 to 2022-2023. They have paid agricultural taxes and

obtained crop loans for the land. The respondent has not conclusively

7 proven her relationship as the daughter of Khadijabee and Abdul Basit,

and no primary documentary evidence, such as a birth certificate,

school records or a marriage certificate, was ever produced to prove her

lineage. The Trial Court and High Court relied on Section 50 of the

Evidence Act, ipse dixit, and accepted the testimony of three “interested

witnesses”. The alleged “Oral Gift” and the “Memorandum of Gift”

(Hibanama) dated 05.01.1989, are doubtful and sham transactions.

While Khadijabee signed her name in Urdu in the plaint, the gift deed

only bears her thumb impression, which was not identified by

anyone. Further, the document was never acted upon in the revenue

records. The suit filed by the Plaintiff on 28.10.2013 was barred by

limitation as it was filed 18 years after the 1995 sale deeds were

registered. The High Court had exceeded its appellate jurisdiction by

recognising the oral gift and granting 10 acres of the land to the

respondent, especially since the trial court had rejected this claim and

the respondent had not filed a cross-appeal. While the case was sub

judice at the Supreme Court, the respondent forcefully dispossessed

them on 02.01.2023 and had her name mutated in the land records

without their knowledge.

11.2 Appearing for the Plaintiff, at the outset, it is argued that the

reappreciation of oral and documentary evidence is not warranted in

the facts and circumstances of this case. The findings recorded are

concurrent and conform to section 50 of the Evidence Act, and do not

warrant re-appreciation under Article 136 of the Constitution of India.

Supporting the impugned judgments, it is argued by the Learned Senior

Counsel that Khadijabee, was the owner of the suit land, who made an

oral gift of 10 acres to the Plaintiff and later executed a memorandum

of gift on 05.01.1989. Following her death, her husband, Abdul Basit

8 and the Plaintiff inherited the Suit Property at the first instance. After

Abdul Basit’s death, the Plaintiff became the sole owner. This is

supported by the testimony of PW-2, a cousin, and PW-3, a brother-in-

law, who had intimate knowledge of the family and testified that the

Plaintiff is Khadijabee’s daughter. The memorandum of gift (Ex. P-8)

was proven by presenting the original document and through the

testimony of attesting witnesses. The suit was filed on 28.10.2013, after

the Defendants attempted to dispossess the Plaintiff on 14.10.2013.

The suit is within the statutory limitation period. The oral gift’s essential

conditions, including formal delivery of possession, were met, as

confirmed by the deposition of PW-4, a neighbour. Furthermore, the

alleged sale deeds were executed by an individual named Abdul Bas,

not the deceased Abdul Basit. Even if Abdul Basit executed them, they

would only be valid for his 1/4th share of the property.

12. A few citations are relied on by both the counsel, and we may refer to

them if, in the analysis, the same is warranted.

13. The above narrative presents the following points for consideration.

i. Whether the impugned judgments suffer from perversity and

misreading of evidence, warranting re-appreciation of evidence

under Article 136 of the Constitution of India?

ii. Whether the High Court is correct in reversing the finding of the

Trial Court on the Oral Gift without an appeal/cross-appeal by

the Plaintiff?

iii. Whether the Plaintiff established her claim as the daughter of

Khadijabee and Abdul Basit?

iv. Whether the claim of the Plaintiff under oral gift/Hiba is validly

proved, and the title is derived to an extent of 10 acres?

v. Whether the suit for declaratory relief is barred by limitation?

9 Point I

14. Re-appreciation of evidence is normally not undertaken by this Court

under Article 136 of the Constitution of India. The learned senior counsel

appearing for the parties, in support of their respective arguments, have

invited our attention to both the oral and documentary evidence. We have

taken note of the incorrect appreciation of evidence and a few inconsistent

findings in the impugned judgments. The re-appreciation is undertaken

primarily to examine whether the Trial Court and the High Court have

accurately recorded the available findings. In a given case, the reappreciation

of evidence is not barred under Article 136 of the Constitution of India. This

principle is elucidated in Mahesh Dattaray Thirthakar v. State of

Maharashtra1, which has helpfully summarised the position of law on

appreciation of evidence under Article 136 of the Constitution of India, and

the relevant extracts are as follows:

“34. xxxx this Court does not normally reappreciate evidence

under Article 136, but when the High Court has redetermined

a fact in issue in a civil appeal, and erred in drawing inferences

based on presumptions, the Supreme Court can reappreciate

the evidence to prevent further delay instead of remanding the

matter. (See N.G. Dastane v. S. Dastane [(1975) 2 SCC 326] at

SCC p. 329.]

35. From a close examination of the principles laid down by

this Court in the aforesaid series of decisions as referred to

hereinabove on the question of exercising power to interfere

with findings of fact by this Court under Article 136 of the

Constitution, the following principles, therefore, emerge:

• The powers of this Court under Article 136 of the Constitution

of India are very wide.

1 (2009) 11 SCC 141.

10 • It is open to this Court to interfere with the findings of fact

given by the High Court if the High Court has acted perversely

or otherwise improperly.

• When the evidence adduced by the parties in support of their

respective cases fell short of reliability and acceptability and

as such it is highly unsafe and improper to act upon it.

• The appreciation of evidence and finding is vitiated by any

error of law of procedure or found contrary to the principles of

natural justice, errors of record and misreading of the evidence,

or where the conclusions of the High Court are manifestly

perverse and unsupportable from the evidence on record.

• The appreciation of evidence and finding results in serious

miscarriage of justice or manifest illegality.

• Where findings of subordinate courts are shown to

be perverse or based on no evidence or irrelevant evidence or

there are material irregularities affecting the said findings or

where the court feels that justice has failed and the findings

are likely to result in unduly excessive hardship.

• When the High Court has redetermined a fact in issue in a

civil appeal, and erred in drawing inferences based on

presumptions.

• The judgment was not a proper judgment of reversal.”

15. The argument of learned senior counsel for the Plaintiff is noted, and

having regard to the ratio in Mahesh Dattaray Thirthakar (supra), we are of

the view that, to appreciate the real issue between the parties, the objection

is rejected.

Point II

16. The Plaintiff categorically claimed that she is the only daughter and heir

to Khadijabee. On 29.11.1990, Khadijabee died, and on 09.09.2001, Abdul

Basit died. According to Plaintiff, as noted supra, Khadijabee, during her

lifetime, made an oral gift/hiba for 10 acres of agricultural land in the Suit

11 Property and delivered possession, which was said to have been accepted by

the Plaintiff. Ex. P-8 memorandum of gift deed dated 05.01.1989 is produced

to evidence the factum of oral gift. The Plaintiff claims, through the oral gift,

an extent of 10 acres. With the demise of Khadijabee on 29.11.1990, it is

stated that the Plaintiff and Abdul Basit are the heirs entitled to the property.

Since Abdul Basit died on 09.09.2001, the Plaintiff claims a declaration of

title to the entire Suit Property.

17. The Defendants admit the demise of Khadijabee on 29.11.1990. They

categorically deny that (a) Plaintiff is the daughter of Khadijabee, (b)

Khadijabee executed an oral gift for 10 acres of land in the Suit Property and

(c) possession according to Defendants was with their predecessors-in-

interest and is presently with the Defendants pursuant to Exs. D-3 to D-7.

The claim is based on the oral gift being a concocted version to grab the Suit

Property.

18. The party to a lis is not under a legal obligation to file an appeal against

mere findings recorded by the Court. Let us examine if the finding on oral gift

by the Trial Court is a mere finding, and whether the High Court has

substantially altered the relief without there being an appeal or cross-appeal.

The Trial Court, while rejecting the oral gift, accepted the case of the Plaintiff

over 18 acres and 21 guntas (3/4th share). The high court, while reversing the

finding, has substantially altered the relief by increasing the extent to which

the Plaintiff is entitled to a declaration. To wit, the trial court granted the relief

of permanent injunction and held that her ownership of 3/4th share in

Khadijabee’s property of 18 acres and 21 guntas was established. The

Appellate Court enhanced her share by including the 10 acres allegedly gifted

by her mother through hiba and 3/4 th share in the remaining 14 acres and

28 guntas; thus, totalling 24 acres and 28 guntas. Now, let us refer to the

power of the appellate court in modifying the decree.

12

19. In Banarsi and others v. Ram Phal,2 this Court held that:

“8. Sections 96 and 100 of the CPC make provision for an

appeal being preferred from every original decree or from every

decree passed in appeal respectively; none of the provisions

enumerates the person who can file an appeal. However, it is

settled by a long catena of decisions that to be entitled to file

an appeal the person must be one aggrieved by the decree.

Unless a person is prejudicially or adversely affected by the

decree he is not entitled to file an appeal (See Phoolchand and

Anr. v. Gopal Lal, [1967] 3 SCR 153; Smt. Jatan Kanwar

Golcha v. M/s Golcha Properties (P) Ltd., [1970] 3 SCC 573;

Smt. Ganga Bai v. Vijay Kumar and Ors., [1974] 2 SCC 393.

No appeal lies against a mere finding. It is significant to

note that both Sections 96 and 100 of the CPC provide

for an appeal against decree and not against judgment.

13. We are, therefore, of the opinion that in the absence

of cross appeal preferred or cross objection taken by the

plaintiff-respondent the First Appellate Court did not

have jurisdiction to modify the decree in the manner in

which it has done. Within the scope of appeals preferred by

the appellants the First Appellate Court could have either

allowed the appeals and dismissed the suit filed by the

respondent in its entirety or could have deleted the latter part

of the decree which granted the decree for specific performance

conditional upon failure of the defendant to deposit the money

in terms of the decree or could have maintained the decree as

it was passed by dismissing the appeals. What the First

Appellate Court has done is not only to set aside the decree to

the extent to which it was in favour of the appellants but also

granted an absolute and out and out decree for specific

performance of agreement to sell which is to the prejudice of

2 (2003) 9 SCC 606.

13

the appellants and to the advantage of the respondent who has

neither filed an appeal nor taken any cross objection.”

(emphasis supplied)

20. Juxtaposition of the view taken by the Trial Court and the High Court

on the oral gift/Hiba would explain the infirmity pointed out by the

Defendants against the impugned judgment.

ISSUE TRIAL COURT REASONING HIGH COURT REASONING

Validity of Disbelieved the theory of Reversed the Trial Court Hiba under the oral gift dated finding and stated that the Mohammedan 05.12.1988, because of finding that the gift deed has Law doubt regarding the not been acted upon cannot

identification of 10 acres be accepted. The evidence due to boundary discloses delivery of discrepancies in Ex. P-8. possession and thereby the The Trial Court concluded gift became complete and the that no actual possession Plaintiff held its possession.

was handed over. To rebut the finding of boundary discrepancies, the High Court attributed it to poor drafting and that the cross-examination was lacking.

Possession of The Trial Court accepted Possession of the Plaintiff can the suit the Plaintiff’s case of be said to have continued on property possession to the extent of the remaining extent of her the share inherited. share in the suit property after the death of her mother. It also inferred delivery of possession for the gifted land due to the mother-daughter relationship.

14

21. By applying the ratio in Banarsi (supra), we notice that the impugned

judgment has not considered whether a ground is made out for modifying a

decree or not. The High Court has disturbed a finding of fact, leading to

modifying the decree of the Trial Court in OS No. 212 of 2013 without there

being an appeal/cross-appeal. To this extent, the findings of the High Court

are not tenable in the facts and circumstances of this case. The other reasons

assigned by the High Court are independently examined while considering the

plea of Hiba and the Plaintiff as the daughter of Khadijabee. The finding on

this point, noted as an illegality, may not conclude the consideration of other

issues.

Point III

22. The Plaintiff claims the status of the only daughter of Khadijabee and

Abdul Basit. On 29.11.1990, Khadijabee died, and on 09.09.2001, Abdul

Basit died. The suit was filed on 28.10.2013, i.e., nearly 23 years from the

demise of Khadijabee and 12 years after the demise of Abdul Basit. The

Defendants denied the status claimed by the Plaintiff as the only daughter

and legal heir to Khadijabee and Abdul Basit. The Defendants contend that

the lineage claimed by the plaintiff is particularly with respect to the Suit

Property. The Trial Court, on the status of Plaintiff by referring to Section 50

of the Evidence Act and relying on the oral evidence of PWs 2 and 3, concludes

that the Plaintiff is the daughter of Khadijabee and Abdul Basit. The High

Court has broadly agreed with the view taken by the Trial Court.

23. Mr. Rauf Rahim argues that Section 50 of the Evidence Act enables

receiving opinion evidence of a person having special means of knowledge on

a fact in issue on the relationship. The requirements of Section 50 are strictly

complied with, and the mere statement of a witness is not conclusive of a

claim for a relationship with the deceased Khadijabee. Section 50 has three

15 steps for allowing opinion evidence, and the next threshold is that the

witnesses so tendered in evidence must conform to the credibility, reliability

and inspire confidence in a court to treat the oral evidence as deciding the

issue in favour of a party. The impugned judgments, it is argued, have

reproduced oral evidence in an abstract way, without either weighing or

testing the reliability or credibility of the witnesses examined on behalf of the

Plaintiff. Generally, the best evidence is documentary evidence, and the

circumstances as shown in the plaint disclose that the proof of status could

have been through documentary evidence such as a birth certificate, school

admission and leaving record, voters list, ration card or any contemporaneous

document where the deceased parents have accepted the Plaintiff as their

daughter. He contends that the foremost suspicious circumstance, not

verified by the courts, is that the claim for status as daughter is coming fairly

late after two-and-a-half decades since the demise of Khadijabee and twelve

years from the date of the demise of Abdul Basit. The Trial Court, by referring

to Section 73 of the Evidence Act, assumed the role of a handwriting expert

and compared the signatures between Ex. P-8, a disputed document, and Exs.

D-3 to D-7. The court, in exceptional cases, sits in the armchair of a

handwriting expert and can compare a signature in dispute with an admitted

signature. In the case at hand, the Plaintiff does not admit Exs. D-3 to D-7,

and Defendants are not admitting Ex. P-8. There is no proof or presumption

with a semblance of evidence as to the conduct in the relationship of the

Plaintiff with Khadijabee. The status is an important declaratory relief, the

findings per se are perverse, and the Plaintiff failed to prove her status as the

daughter of Khadijabee.

24. Mr. Ameet Kr Deshpande contends that Section 50 of the Evidence Act

provides an opportunity to adduce oral evidence in proof of the status or

relationship of a party, which is a fact in issue. There is no requirement in

16 law that the documentary evidence alone can enable a court to decide on the

status claimed by a party. The evidence of PWs 2 and 3 is consistent, coherent

and has means of special knowledge; thus, there is no reason to discredit the

evidence of PWs 2 and 3.

25. The argument has two facets: (i) the scope, appreciation and

applicability of evidence under section 50 of the Evidence Act, and (ii) whether,

on the established principles, the oral evidence is sufficient to accept the

claimed status of Plaintiff as daughter of Khadijabee.

26. Dolgobinda Paricha v. Nimai Charan Misra 3 is an apt authority for

appreciating the contours of Section 50 of the Evidence Act on the opinion

evidence on the relationship in issue of fact. The following principles can be

culled out from Dolgobinda Paricha (supra):

a. Section 50 specifically makes the opinion expressed by the conduct of a person with special knowledge relevant. b. For the applicability of the section, there are three essentials.

i. Firstly, the court has to form an opinion as to the relationship of one person to another.

ii. Secondly, the opinion on this relationship must be expressed through conduct.

iii. Thirdly, the person whose conduct expresses the opinion must have special means of knowledge on the subject, such as being a member of the family or otherwise. c. The term “opinion” is defined not as a casual statement or gossip but as a “judgment or belief” or a “conviction.” This belief is demonstrated and proved through the person’s conduct or behavior. The conduct must be of a tenor that can only be explained by the existence of that inner belief about the relationship.

26.1 Chandu Lal Agarwala v. Khalilar Rahman,4 further clarifies by stating

that conduct is not the ultimate proof of relationship but an

3 AIR 1959 SC 914.

4 ILR (1942) 2 Cal 299, 309.

17

intermediate step. It allows the court to infer the “opinion” of the person

whose conduct is in evidence. The court then weighs this opinion to

arrive at its own conclusion regarding the relationship in issue. Hence,

Section 50 does not make evidence of mere general reputation (without

accompanying conduct) admissible as proof of a relationship. Further,

if the conduct is of such a tenor, the Court only gets to a relevant piece

of evidence, namely, the opinion of a person. It still remains for the

Court to weigh such evidence and come to its own opinion as to the

factum probandum, as to the relationship in question. In conforming to

the above, the conduct, being a perceptible external fact, must be

proved by “direct evidence” as defined in Section 60 of the Evidence Act.

This means that the witnesses must testify to what they personally saw

or heard.

26.2 The opinion expressed by conduct of any person as a member of the

family or of any person otherwise has special means of knowledge on

the subject is a relevant fact. This testimony remains as direct evidence

under Section 60 of the Evidence Act.

27. The Evidence Act teaches us principles on perception and

discrimination of relevant facts. The perception permitted as a relevant fact

does not automatically amount to a fact proved till the same passes the test

of discrimination, namely, the triple test of relevancy, admissibility and

competence of the witness. It has been pithily held in Pottem Subbarayudu

And Another v. Kothapalli Gangulu Naidu And Others,5 by referring to Govinda

v. Champa Bat,6 a Learned Single Judge of the High Court of Andhra Pradesh

held that:

5 2000 SCC OnLine AP 296.

6 AIR 1965 SC 354.

18

“17. There can be no straightjacket formula for the appreciation

of oral evidence of the witnesses. The credibility of the witness

is the paramount consideration for the Court. After passing the

three legal tests viz., relevancy, admissibility, and competence

of the witness, while considering the credibility of the witness,

the Court has to consider various parameters so as to

appreciate the oral evidence on the point by testing the same

on the touch stone of two important yardsticks viz., the

probabilities and surrounding circumstances among various

other parameters. Even when no rebuttal is adduced by the

adversary the ocular testimony of the witnesses examined on

the side of the party on whom the burden lies, cannot implicitly

be relied upon without testing the same with reference to the

probabilities and surrounding circumstances.”

28. Keeping in perspective the above principles, we appreciate the oral

evidence relied on by the Plaintiff.

28.1 In chief examination, PW2, Mohammad Khayamulla, stated that he

knew both Khadijabee and the Plaintiff, Syeda Arifa Parveen. That his

mother and Khadijabee’s mother were first cousins, which is how he

was related to both the Plaintiff and Khadijabee. He lived as a tenant in

the same house as Khadijabee and the Plaintiff in Maqdumpura, and

used to take the Plaintiff to school, confirming his knowledge that

Khadijabee was her mother. Khadijabee, as the owner of Sy.No. 107,

had only one daughter, the Plaintiff, and gifted her 10 acres out of love

and affection on 05.12.1988. This oral gift was made in Khadijabee’s

house in the presence of Khadijabee, the Plaintiff, Abdul Basit Sab,

Abdul Raheman Sab, Mustaq Ahmed, and Ayub Ali. The credibility of

this witness comes under serious scrutiny when the witness includes

Mustaq Ahmed as one of the witnesses to the oral gift dated

05.12.1988. He noted that Khadijabee handed over possession of the

19 land and all agricultural implements to the Plaintiff and that he was

also present when she executed the Memorandum of Gift on

05.01.1989. He stated that Khadijabee put her thumb impression on

the document, which was also signed by the Plaintiff and two witnesses,

Syed Abdul Basit and Md. Abdul Rahman, although he himself did not

sign it, as he was told the two witnesses were sufficient.

28.2 In cross-examination, the witness states that his mother is the first

cousin of Khadijabee's mother. He notes that Khadijabee made an oral

gift of 10 acres of land to the Plaintiff out of love and affection and

handed over possession. He also states that he was present at the time

of the oral gift and that Khadijabee gave a plough and two cows to her

daughter for cultivation, which symbolised the delivery of possession.

He states that the gifted 10 acres of land was located on the southern

side of the total land. He claimed to have seen Khadijabee’s Ration

Card, which listed the Plaintiff as her daughter, and had also seen

school documents regarding the same. He denied that the Plaintiff’s

father and mother had no children. He denied that the names Abdul

Basit and Abdul Bas were the same.

28.3 The oral evidence proceeds to speak on the relationship, etc., without

primarily establishing the competence and credibility of the witness to

depose to these circumstances. To infer special means of knowledge,

the witness does not refer to any document except his oral evidence.

The oral evidence dealing with aspects not stated by the Plaintiff are in

the pleadings.

28.4 In chief examination, PW3 stated that he knows the Plaintiff and that

she is the daughter of Syed Abdul Basit, also known as Munshi. He

noted that the Plaintiff's husband, Mustaq Ahmed, is his brother. He

stated that prior to the marriage proposal, they had made inquiries and

20 were aware that the Plaintiff was Syed Abdul Basit’s daughter. He

testified from personal knowledge that the Plaintiff is the daughter of

Abdul Basit. The witness further asserted that Abdul Basit, the

Plaintiff’s father, died on 09.09.2001 and was never referred to as Abdul

Bas.

28.5 In his cross-examination, he holds that he is the brother of the

Plaintiff’s husband. He had inquired about the Plaintiff's parentage

with the Plaintiff and her relatives. He claimed that Abdul Basit gave

the land to his daughter in 1989. He denied that Abdul Basit and his

wife had no children and volunteered that they had a daughter. When

asked if he had seen the Plaintiff’s documents to prove she was the

daughter of Abdul Basit and Khadijabee, he replied that he knew it

because he was a relative, and he denied not being their relative. He

also denied the suggestion that the names Md. Abdul Rehman and M.A.

Rehmansab were different, volunteering that they were the same

person. He volunteered that he had not told his full name and age to

the Plaintiff. He denied the suggestion that Abdul Basit was also known

as Abdul Bas.

29. The trial court failed to properly evaluate the oral evidence of witnesses

PW2 and PW3 in accordance with the principles set forth in Dolgobinda

Paricha (Supra) and Chandu Lal Agarwala (Supra). It failed to independently

assess the credibility of the witnesses’ opinion and to form its own conclusion

about the Plaintiff’s relationship with Khadijabee and Abdul Basit. The trial

court, while examining the testimonies of PW2 and PW3, correctly identified

that their opinions on the Plaintiff’s relationship were admissible under

Section 50 of the Evidence Act because they were people with special means

of knowledge about the relationship of the Plaintiff with deceased Khadijabee.

21 However, the evidence does not prima facie satisfy the triple test of section

50, and has not appreciated that even if the evidence conforms to the three

requirements, the evidence thus far is at an intermediate stage. The Trial

Court referred to the suggestion of the Defendants and that the witnesses

asserted special means of knowledge. The further finding that it will suffice if

he(witness) has special means of knowledge, so a person watching the

conduct of members has to be treated as having special means of knowledge.

The issue is answered by looking into the signatures in Ex. P-8 and Exs. D-3

to D-8.

30. To appreciate, yet another illegality in the approach of the Trial Court,

we notice the discretionary power of courts under Section 73 of the Evidence

Act. Section 73 of the Evidence Act empowers a court to compare disputed

signatures, writings, or seals with others that have been admitted or proven

to be authentic. It also grants the court the power to direct any person present

in the court to write any words or figures for the purpose of comparison.

30.1 Comparison with Admitted or Proven Documents: The primary function

of Section 73 is to allow the court to compare a disputed signature or

handwriting with a standard document that is either admitted by the

parties or has been proven to the satisfaction of the court to be genuine.

The comparison can be made by the court itself. In Fakhruddin v. State

of Madhya Pradesh,7 this Court emphasised that a court should not

assume the role of a handwriting expert. The Court held that while the

court can compare a disputed signature with an admitted one under

Section 73, it would be hazardous to rely solely on this comparison

without the assistance of an expert. The Court underscored the

importance of corroboration, stating that the court's own comparison

7 1966 SCC OnLine SC 55.

22 can be used as corroborative evidence to support the testimony of an

expert witness, or vice versa.

30.2 Comparison by the Court in a Prudent Measure: Section 73 gives the

court the power to compare documents. The power to compare

documents, and the available power, should be exercised as a measure

of last resort, and the court’s conclusion should not be the sole basis

for a decision in serious matters. It is apposite to excerpt the following

finding from the judgment of the Trial Court:

“21. It is worth to note here that, in case signature of Syed

Abdul Basith S/o Syed Hussain Saheb in Ex.P.8 which is

memorandum of gift is compared with signatures of Abdul

Bas S/o Syed Hussainsab in Ex.D3 to Ex.D7 and Ex.D8 with

bare eyes, one can say these signatures are one and the same

belong to only one person. As per Sec. 73 of Indian Evidence

Act court can compare signatures of the person in documents.

Though plaintiff has contended Syed Abdul Basith and Abdul

Bas are altogether different, but in order to show there are two

persons by name Syed Abdul Basith and Abdul Bas, who are

altogether different, nothing is placed on record.

22. It is material to note here that, in Ex.P8 and Ex.D3 to Ex.D8

name of father of either Abdul Basith or Abdul Bas is shown

as Syed Hussainsab. In case there is material to demonstrate

in Kusnoor village there were two persons by name Syed

Hussain Saheb and each of them got sons of by name Syed

Abdul Basith and Abdul Bas, then version of plaintiff that, both

Syed Abdul Basith and Abdul Bas are altogether different can

be acceptable. In view of absence of such material on record,

comparing signature of Syed Abdul Basith S/o Syed

Hussainsab in Ex.P8 with signatures Abdul Bas S/o Syed

Hussain Saheb in Ex.D3 to Ex.D8 one can easily say Syed

Abdul Basit was also used to called as Abdul Bas.

23

23. As it is clearly stated by plaintiff and same is mentioned in

Ex.P8 Syed Abdul Basit had put his signature as one of

attesting witness to Memorandum of Gift, said signature of

Syed Abdul Basit is tally with signature of Abdul Bas in Ex.D3

to Ex.D8 it can be held these Syed Abdul Basiit and Abdul Bas

are one and the same person.

24. Looking into signature of Syed Abdul Basith on Ex.P8, it

can be held the plaintiff is daughter of Khadijabee and Syed

Abdul Basit. (…)”

31. The above consideration establishes that the Trial Court accepts the

relationship based upon a document which is contested by the Plaintiff, and

compares the signature to a document disputed by the Defendants. More

specifically, the Plaintiff categorically denied the execution of Exs. D-3 to D-5

as having been made by Abdul Basit.

31.1 It did not proceed to the crucial second step of evaluating the

intermediate opinion in light of all evidence before drawing a final

conclusion on the relationship. The trial court treated the witnesses’

opinion as a fact to be adopted, rather than a piece of evidence to be

weighed. It took their assertion as proof of the relationship itself,

bypassing its own duty to form a conclusive opinion. It did not take into

consideration the possibility of bias of PW2 and PW3, both of whom are

close relatives of the Plaintiff. Conduct is an intermediate step, allowing

the court to infer an opinion, but it does not serve as the final proof of

the relationship. The omissions made by the trial court undermine the

evidentiary rigour required under Sections 50 and 60 of the Evidence

Act.

31.2 Both the courts have overlooked the oral evidence that the Plaintiff

admits to having studied up to the 10th standard in Urdu medium. No

documentary evidence is filed, and non-filing of relevant documents is

24 appreciated in the total context of the Plaintiff’s claim. PW2 states that

he has seen the ration card of Khadijabee showing Plaintiff as her

daughter. He has also seen the school documents in this regard. PW4

claims to be a next-neighbour to the land owner of the Suit Property.

His evidence is mostly for proving the possession of the Plaintiff of the

Suit Property. The appreciation of oral evidence cannot be illustrated in

a straight-jacket formula. The experience and the expertise of the court

would enable appreciation of oral evidence. In the process, the

credibility of the witness is the paramount consideration for the court.

In the sequence of narrative, atleast if one fact is proved or admitted by

the opposite party, from such proof or admission, the existence of

sequential facts can be inferred. The impugned judgments have

resorted to circular reasoning, which is impermissible and illegal.

32. We have taken note of the oral evidence and also the approach of the

Trial Court and the High Court. To sum up, it may be noted that the Trial

Court has exercised its jurisdiction under Section 73 of the Evidence Act,

referred to Section 50 of the Evidence Act, and, without testing the credibility,

relevancy, admissibility and competence of the witnesses, in an abstract way,

has held that the Plaintiff is the daughter of Khadijabee. The Trial Court

further found that the mere suggestion to these witnesses does not discredit

the evidence of PWs 2 and 3. The Trial Court failed to note that the Plaintiff

and the witnesses, going by their evidence, are withholding the documents in

their possession, namely, school-leaving records, ration card, etc. The

perversity in appreciation is evident from the improvements in the evidence of

PWs 1 to 3 on all material aspects.

33. Adverting to the consideration by the High Court, we notice that the

evidence of PWs 2 and 3 has been accepted as the witnesses having special

means of knowledge of the Plaintiff with Khadijabee. The appreciation, we are

25 of the view, failing to adhere to the standard tests in appreciating oral

evidence, and abstract findings have been recorded on the status of the

Plaintiff vis-à-vis Khadijabee. The emphasis is on relevant facts admissible in

evidence. Assuming the evidence is admissible, the same must conform to the

triple test. We hasten to add that the proof of status or relationship need not

always necessarily be through documentary evidence, but, when oral evidence

is the basis on which the opinion is required to be formed by a Court, the

Courts are allowed to treat an opinion on conduct about a relationship as only

a relevant fact. This should not be confused with ‘as factum probandum’. We

observe that the impugned judgments are liberal in their approach to

accepting the status claimed by the Plaintiff as the daughter of Khadijabee.

The point is answered accordingly.

Point IV

34. The Plaintiff, for the relief of declaration, sets up two narratives; namely,

(a) that on 05.12.1988, Khadijabee, through an oral gift/Hiba, gifted to

Plaintiff 10 acres in the Suit Property. On 05.01.1989, Ex.-P8, a

memorandum of gift deed, recording a past oral gift, was executed, and (b) on

09.09.2001, Abdul Basit died, and she remained the only heir and successor

to the estate of Khadijabee. As PW1, the Plaintiff deposes that the three

elements of a valid Hiba/oral gift were complied with, and the property with

an extent of 10 acres stood transferred. The Plaintiff, being the donee, her

evidence is appreciated after appreciating other oral and documentary

evidence available on record. The Defendants have denied the oral gift and

also Ex. P-8, a memorandum of gift deed. As discussed supra, the Trial Court

disbelieved the oral gift and also Ex. P-8. The High Court, by introducing a

case not stated by the Plaintiff, accepted Hiba.

26

35. In Abdul Rahim v. Sk. Abdul Zabar,8 Rasheeda Khatoon v. Ashiq Ali,9

Hafeeza Bibi v. Sk. Farid,10 and Mansoor Saheb v. Salima,11 this Court had

considered the various aspects underlying the transfer of property through

Hiba. Hiba is a disposition between living persons and is fundamentally an

act of benevolence. The theological underpinnings trace back to the Prophet

Mohammed (PBUH), who is reported to have said, “Exchange gifts among

yourselves so that love may increase.” 12

36. The oral gift and the effect of a valid oral gift are reiterated as follows:

36.1 There are three essential conditions for an oral gift under Mohammedan

Law.

First, a clear manifestation of the wish to give on the part of the donor.

Second, an acceptance of the gift by the donee, which can be either

implied or explicit.

Third, taking of possession of the subject-matter of the gift by the

donee, either actually or constructively.

36.2 A gift under Mohammedan Law does not require a written document to

be valid. An oral gift that fulfils the three essential requisites is complete

and irrevocable. The mere fact that a gift is reduced to writing does not

change its nature or character. A written document recording the gift

does not become a formal instrument of gift.

36.3 The distinction that a written deed of gift is not required to be registered

if it “recites the factum of a prior gift” but must be registered if the

“writing is contemporaneous with the making of the gift” is considered

“inappropriate and is not in conformity with the rule of gifts in

8 (2009) 6 SCC 160.

9 (2014) 10 SCC 459.

10 2011 5 SCC 654.

11 (2023) SCC OnLine SC 3809.

12 Al-Marghinani, Burhan al-Din, Al-Hiadaya, Quran Mahal, Karachi Vol. III, p. 283; Mulla,

Principles of Mahomedan Law, 20th Edition, Chapter XI (Gifts).

27 Mohammadan Law”.13 Section 129 of the Transfer of Property Act, 1882

(‘Transfer of Property Act’) excludes the rule of Mohammedan Law from

the purview of Section 123, which requires registration for the gift of

immovable property.

36.4 Delivery of possession is a critical and necessary element for a valid gift.

It can be actual or constructive. Constructive possession can be

demonstrated by overt acts by the donor that show a clear intention to

transfer control. For example, the donor applies for the mutation of the

donee’s name in the revenue records.

36.5 Continuous evidence of acting under the oral gift is crucial to prove the

delivery of possession. The donee must be able to demonstrate

“exclusive control” over the property to derive benefit under it, such as

by collecting rent, or by the donor performing acts like mutation on

behalf of the donee. Conversely, the donor’s continued collection of rent

and the donee’s lack of control over title documents or mutation records

can be evidence that possession was not transferred.

37. In Mussamut Kamarunnissa Bibi v. Mussamut Husaini Bibi,14 the Privy

Council held that proof of a transfer of possession, especially in the absence

of consideration, is required to enable an oral gift. It also held that “the Court

is bound to watch with the greatest care, perhaps even with suspicion, the

case of a verbal gift set up after the alleged donor’s death; and if the case had

rested upon oral testimony alone, their Lordships probably might not have

had this Appeal before them.” The case of oral gift was strengthened by

subsequent actions such as publicising the gift and the signing of a

mukhtarnama (power of attorney) to enact the mutation of names in

government records. The Privy Council considered several actions taken by

13 See, Hafeeza Bibi (Supra).

14 1880 UKPC 36.

28 the recipient after the oral gift was made, including filing receipts for

government payments, paying income tax, and suing a tenant for ejectment

to accept the existence of an oral gift.

38. The oral gift confines to 10 acres of the total extent of 24 acres 28

guntas. The oral gift is stated to be on 05.12.1988, and Ex. P-8 was said to

have been executed on 05.01.1989. The first circumstance, which remains

unexplained by the Plaintiff, is that Khadijabee herself requested the mutation

of her name for the entire Suit Property, i.e., 24 acres and 28 guntas. Ex. P-

2, marked on behalf of Plaintiff, refers to the court decree and mutation of the

ROR from Haji Mohammed Yusuf to Khadijabee. The oral gift, as said to have

been stated by the Plaintiff, was anterior in point of time, and if the same is

valid, the donor ceased to be an owner to the extent of 10 acres. The

probability or conduct of the donor and donee would be in consonance with

the alleged oral gift that the name of the Plaintiff had to be mutated for an

extent of 10 acres. The mutation of right, title and possession to the entire

extent of the Suit Property in favour of Khadijabee would cast a serious doubt

on the Oral Gift. The second circumstance is that Khadijabee died on

29.11.1990, and Late Khadijabee’s husband, Abdul Basit, got his name

entered for the total extent of the suit schedule. If the twin narratives stated

by her for claiming the Suit Property are established, then the Plaintiff, both

as donee and successor-in-interest, must have got mutation in her favour but

not in favour of Abdul Basit. The Defendants, through Exs. D-3 to D-7, assert

that they have purchased the Suit Property from Abdul Bas (Abdul Basit). As

evidenced by Exs. D-9 to D-43, the names of Defendants are entered in the

ROR. Abdul Basit died on 09.09.2001. The Plaintiff, either in her capacity as

donee, or as at least now the sole heir to the Suit Property, has not taken

steps to get her name entered in the ROR. It is axiomatic that hiba is operative

with immediate effect and deprives the transferor of his control and ownership

29 over the property.15 The Privy Council, giving due recognition to transfer

through Hiba, laid down that evidence of possession is an important

consideration. Rasheeda Khatoon (supra) is a case closer to the circumstances

of the issue at hand.

38.1 In Rasheeda Khatoon, the Plaintiff’s plea of collecting rent was not

accepted because no rent receipts were filed. The fact that the donor

continued to issue rent receipts after the alleged gift was used as

evidence against the donee’s claim of possession. The absence of proof

that the land was mutated in the donee’s favour by revenue authorities

was considered a point against the donee’s claim of possession. The

donee not being in possession of the title deeds was another factor

considered by the court. Hence, the court concluded that the Plaintiff

could not prove either actual or constructive possession, thereby

making the oral gift incomplete.

38.2 Therefore, the evidence of acting under the gift (e.g., collecting rent,

holding title, mutation) is essential to substantiate the claim of

possession. While Mohammedan Law allows for a gift to be made orally

without a written document, the validity of such a gift is contingent on

the demonstration of all three essential elements, particularly the

delivery of possession. The courts will scrutinise “contemporaneous”

and “continuous” evidence of the donee’s actions and control over the

property to determine if possession was indeed transferred. The lack of

evidence (e.g., failure to collect rent, donor’s continued control, lack of

mutation) will lead to proving that a gift was never completed,

regardless of any written declaration.

15 Rasheeda Khatoon (supra).

30

39. The precedents are that to constitute a valid conveyance through an

oral gift, the three contemporaneous conditions of declaration by donor,

acceptance by donee, possession by donee and to continue to establish

possession through contemporaneous evidence to show that Hiba is acted

upon. The Hiba is not used as a surprise instrument and cannot sprout into

a transfer of property as per the convenience of a party. Moreover, to keep in

line with the sanctity of Hiba, it is in the interest of the donor, donee and a

third person interested in the subject matter that Hiba is acted upon by

completing all three essential requirements in public knowledge rather than

in secrecy. The Courts appreciate fulfilment of contemporaneous

requirements and possession through evidence while recognising conveyance

through an oral gift. Possession is one of the important conditions to

constitute a valid oral gift. The courts presume possession of a party from the

circumstances pleaded and proved. In the case at hand, there is a consistent

revenue record, Ex. P-2, Ex. P-3, Ex. P-4, Ex. P-5 and Exs. D-9 to D-43

showing in the revenue records that the names of Defendants are entered in

ROR and their predecessors in interest, both in the title and possession

columns. The Plaintiff places oral evidence, and the circumstances summed

up above do not inspire confidence for accepting that there has been a valid

oral gift in any capacity, i.e., as a daughter or otherwise, in favour of Plaintiff.

The impugned judgments presume possession in favour of Plaintiff on ipse

dixit statements, and the courts below fell in grave error in not appreciating

the long lapse of years and continued silence of Plaintiff vis-à-vis the Suit

Property. The next limb is whether Ex. P-8 satisfies as a Memorandum

recording the past transaction and would come to the aid of the Plaintiff, at

least to the extent of 10 acres said to have been given. Ex. P-8 bears L T I of

Khadijabee. The plaint in OS No. 68 of 1971 is marked as D-44. Khadijabee

has signed the plaint in Urdu, and during cross-examination, PW2 specifically

31 stated that Khadijabee was signing, not affixing her L T I. This inconsistency

remained unexplained. Further, under Ex. P-8, in clause 5, which reads that

the donee shall hereafter peacefully hold and possess and enjoy the land

property with all its inclusions without any interference, claim or demand

whatsoever from the donor. Ex. P-8 belies the possession and transfer said to

have been made on 05.12.1988. From the above, except the self-serving and

oral evidence from interested witnesses of Plaintiff, there is no evidence on

possession, whether actual or constructive, having been delivered to Plaintiff.

On the other hand, the Exhibits relied on by the Plaintiff, coupled with D-8 to

D-43, do not enable, presuming that the Plaintiff continued to be in

possession of 10 acres of the suit schedule. The High Court was liberal in

explaining away the minor variations, if any, in Ex. P-8 do not adversely affect

the Plaintiff’s claim. With respect, we are unable to subscribe to the said view.

Consequently, the claim of the Plaintiff under Hiba and Ex. P-8, for want of

evidence on possession, fails, and the point is answered in favour of the

Defendants.

Point V

40. The additional issue no. 1 is whether the suit of the plaintiff is barred

by limitation. The Trial Court answered the issue in negative and in favour of

the Plaintiff. The Trial Court reasons that the cause of action arose on

14.10.2013, when the Defendants allegedly tried to dispossess the Plaintiff

from the suit property; and thus, notes that there is interference with the

rights of the Plaintiff in the suit property on the said date.

41. On 28.10.2013, the present suit OS No. 212 of 2013 was filed for

declaration that the Plaintiff is the owner and possessor of the Suit Property,

and declare that the sale deeds dated 25.02.1995, Exs. D-3 to D-7, in favour

of the Defendants, is null and void. The plaint in paragraphs 9 and 10 refers

32 to the circumstances constituting the cause of action. For brevity, we note

whether there is a cause of action or whether the suit is within the period of

limitation, which are determined by the averments in the plaint. Therefore,

the averments in the written statement are not determinative in this aspect.

42. Article 58 of the Limitation Act, 1963 (‘Limitation Act’) provides for the

period of limitation in a declaratory suit. The use of the words “when the right

to sue first accrues”, as mentioned in Article 58, is very relevant and

important. It categorically provides that the limitation of three years has to be

counted from the date when the right to sue first accrues. 16 The declaratory

relief for title is based on the oral gift and successorship of the Plaintiff. The

plaintiff also prays for setting aside Exs. D-3 to D-7, for which Article 59 of

the Limitation Act is applicable. The crux of consideration is whether the

averments in the plaint continue to keep the cause of action alive, or by

constructive notice and negligence on the part of the Plaintiff, even if, at one

given point of time, there was a cause of action, whether the same is barred

by time or not is the crux of the matter.

43. It becomes relevant to refer to the timelines in this case to determine if

the cause of action is continuing, or, by constructive notice and negligence on

the part of the Plaintiff, the cause of action is barred by time. There are two

claims made by the Plaintiff: first, on the oral gift of 10 acres, and second, on

the claim that she is the legal heir to the suit property.

43.1 The domino with respect to the oral gift is set into motion on

05.12.1988, when Khadijabee said to have orally gifted 10 acres in

Sy.No.107. On 05.01.1989, this oral gift was written down as a

Memorandum of Gift. Khadijabee died on 29.11.1990, and Abdul Basit

died on 09.09.2001. Despite this, the Respondent did not apply for

16 Nikhila Divyang Mehta and another v. Hitesh P. Sanghvi and others, 2025 INSC 485.

33 mutation either in 1989, 1990, 2001 or in the interregnum till 2013,

asserting her right as the transferee of the Suit Property from late

Khadijabee.

43.2 With respect to the claim that the Respondent is the legal heir of 24

acres and 28 guntas in the Suit property, it is pertinent to note that

Khadijabee died on 29.11.1990, and Abdul Basit got his name mutated

for 24 acres and 36 guntas in his name on 23.05.1991 through Ex.. D-

2. Subsequently, on 25.02.1995, five sale deeds were executed by Abdul

Basit in favour of the Defendants, and D-9 to D-23 entries in ROR

indicate a presumption of possession.

44. The mutation entry in Exs. P-1 and P-2, coupled with the execution of

Exs. D-3 to D-7 are sources of potential mischief to the claim of the Plaintiff

to the suit property. Plaintiff has not acted in time in challenging the

maintenance of ROR, or registered sale deeds, within the time stipulated by

law. The conduct for over a period of 23 years cannot be appreciated as the

conduct of a passive observer but amounts to failure to use the care that a

reasonably prudent and careful person would use under these circumstances.

Negligence in law signifies a failure in the performance of duty.

45. The interpretation clause in Section 3 of the Transfer of Property Act

deals with constructive notice. Depending on the facts and circumstances of

each case, if the inquiry that a reasonable person would conduct in the

specific circumstances is not made, then Courts, through constructive notice,

may impute knowledge on such persons. Thus, constructive notice in equity

treats a man who ought to have known a fact as if he actually knows it. 17

46. In the present case, the Plaintiff had opportunities to mutate the Suit

Property in her name on 05.01.1989, 29.11.1990, 25.02.1995, and

17 Noorul Hoda v. Bibi Raifunnisa, (1996) 7 SCC 767.

34 09.09.2001. Furthermore, the Respondent did not file the suit until 2013,

which, in any case, exceeds the three-year limitation period. Therefore, we

impute knowledge through constructive notice in the present case, and

consequently, it cannot be stated that there was a continuing cause of action.

47. Moreover, to set aside instruments of sale (Exs. D-3 to D-7), the muster

under Article 59 of the Limitation Act must be met. It is axiomatic that there

is a presumption that a registered document is validly executed. A registered

document, therefore, prima facie would be valid in law. The onus of proof,

thus, would be on a person who leads evidence to rebut the presumption. In

the instant case, the Respondent has not been able to rebut the said

presumption.18 Interestingly, in the impugned judgment, constructive notice

is put against the Defendants despite there being no public record of the Oral

Gift or the claim to the Suit Property.

48. The circumstances have been chronologically explained, and the

earliest cause of action to the Plaintiff in the case on hand was when Ex. P-2,

dated 06.06.1989, was brought into existence at the instance of Khadijabee,

and the cause of action has again arisen when Ex. P-3 was brought into

existence, denying the claim of the Plaintiff by Late Abdul Basit. Abdul Basit

is said to have executed Exs. D-3 to D-7 on 02.05.1995. The names of vendees

have been mutated, and the continued negligence would result in constructive

notice of transactions covered by Exs. D-3 to D-7. The impugned judgments

failed to appreciate the effect of constructive notice in answering whether the

suit is within the period of limitation or not. On consideration of the

circumstances and by applying the precedents on the point, we hold that the

suit filed on 28.10.2013 is barred by limitation, particularly for the reliefs

sought for. The point is answered accordingly.

18 Prem Singh and others v. Birbal and others, 2006 AIR SC 3608. 35

49. For the above reasons and discussion, the Impugned Judgments are

set aside; The Plaintiff's suit, OS No. 212 of 2013, is dismissed; and the Civil

Appeal is allowed. All pending applications are disposed of accordingly. No

order as to costs.

………..……….…………………J. [AHSANUDDIN AMANULLAH]

………..…………………………J. [S.V.N. BHATTI]

New Delhi;

October 07, 2025.

36