DHARMRAO SHARANAPPA SHABADI AND OTHERS versus SYEDA ARIFA PARVEEN

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 [2025] 11 S.C.R.  Dharmrao Sharanappa Shabadi and Others v. Syeda Arifa Parveen 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 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 28 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 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 [2025] 11 S.C.R.  Dharmrao Sharanappa Shabadi and Others v. Syeda Arifa Parveen 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.

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 (2009) 6 SCC 160 (2014) 10 SCC 459 (2011) 5 SCC 654 (2023) SCC OnLine SC 3809 Al-Marghinani, Burhan al-Din, Al-Hiadaya, Quran Mahal, Karachi Vol. III, p. 283; Mulla, Principles of Mahomedan Law, 20th Edition, Chapter XI (Gifts). 30 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 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 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. See, Hafeeza Bibi (Supra). 1880 UKPC 36 [2025] 11 S.C.R.  Dharmrao Sharanappa Shabadi and Others v. Syeda Arifa Parveen

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 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 Rasheeda Khatoon (supra). 32 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.

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 [2025] 11 S.C.R.  Dharmrao Sharanappa Shabadi and Others v. Syeda Arifa Parveen 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 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 34 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 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 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. Nikhila Divyang Mehta and another v. Hitesh P. Sanghvi and others, 2025 INSC 485. [2025] 11 S.C.R.  Dharmrao Sharanappa Shabadi and Others v. Syeda Arifa Parveen 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 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 Noorul Hoda v. Bibi Raifunnisa, (1996) 7 SCC 767. 36 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.

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. Result of the case: Appeal allowed. †Headnotes prepared by: Divya Pandey Prem Singh and others v. Birbal and others, 2006 AIR SC 3608.