Holding

The Supreme Court held that the lower courts erred in their appreciation of evidence, the High Court lacked jurisdiction to modify the decree without a cross‑appeal, the plaintiff failed to prove the oral gift and her relationship, and the suit is barred by limitation, leading to the appeal being allowed and the suit dismissed.

Summary

The plaintiff, Syeda Arifa Parveen, claimed ownership of 24 acres of agricultural land on the basis of being the sole daughter of Khadijabee and of an oral gift (hiba) of 10 acres made by her mother. The trial court rejected the oral gift but granted her a 3/4 share of the remaining land, while the Karnataka High Court reversed the trial court's finding on the oral gift and increased her share, despite no cross‑appeal by the plaintiff. The defendants appealed, arguing that the High Court erred in re‑appreciating evidence, that the oral gift was not proved, that the plaintiff's relationship was not established, and that the suit was barred by limitation. The Supreme Court held that the lower courts mis‑appreciated the evidence, that the High Court lacked jurisdiction to modify the decree without a cross‑appeal, that the plaintiff failed to satisfy the three essential elements of a valid oral gift and the relationship test, and that the suit was time‑barred. Consequently, the appeal was allowed, the impugned judgments set aside, and the plaintiff's suit dismissed.

Issues considered

Whether the impugned judgments suffer from perversity and misreading of evidence warranting re‑appreciation of evidence under Article 136 of the Constitution of India
Whether the High Court was correct in reversing the trial court's finding on the oral gift without an appeal or cross‑appeal by the plaintiff
Whether the plaintiff established her claim as the daughter of Khadijabee and Abdul Basit
Whether the plaintiff's claim under oral gift/Hiba is validly proved and confers title to 10 acres
Whether the suit for declaratory relief is barred by limitation

Legislation cited

Constitution of Indias. 136
Evidence Act, 1872s. 50, s. 60, s. 73
Limitation Act, 1963s. 58, s. 59
Transfer of Property Act, 1882s. 129, s. 3

Headnote

Issue for Consideration Whether the impugned judgments suffer from perversity and misreading of evidence, warranting re-appreciation of evidence under Article 136 of the Constitution of India; whether the High Court is correct in reversing the finding of the Trial Court on the Oral by the Plaintiff; whether the Plaintiff established her claim as the daughter of K and A; whether the claim of the Plaintiff under oral gift/Hiba is validly proved, and the title is derived to an extent of 10 acres; whether the suit for declaratory relief is barred by limitation.

Subjects

Mohammedan LawOral Gift/HibaMohammedan Law of successionDelivery of PossessionConstructive possessionConstructive noticeSuit barred by limitationSection 50 of the Evidence ActRe‑appreciation of evidence under Article 136Record of Rights (ROR)MutationPresumption of possessionLack of mutationRegistered sale deedsCross‑appeal/cross‑objectionOpinion evidenceSpecial knowledge of relationshipDeclaratory suitPermanent injunctionContinuing cause of actionNegligence

Judgment

[2025] 11 S.C.R. 1 : 2025 INSC 1187

Dharmrao Sharanappa Shabadi and Others
v.
Syeda Arifa Parveen
(Civil Appeal No. 12512 of 2025)
07 October 2025
[Ahsanuddin Amanullah and S.V.N. Bhatti,* JJ.]

Issue for Consideration
Whether the impugned judgments suffer from perversity and
misreading of evidence, warranting re-appreciation of evidence
under Article 136 of the Constitution of India; 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; whether
the Plaintiff established her claim as the daughter of K and A;
whether the claim of the Plaintiff under oral gift/Hiba is validly
proved, and the title is derived to an extent of 10 acres; whether
the suit for declaratory relief is barred by limitation.

Headnotes†
Constitution of India – Art.136 – Re-appreciation of evidence
under – Whether the impugned judgments suffer from perversity
and misreading of evidence, warranting re-appreciation of
evidence u/Art.136:
Held: Though, re-appreciation of evidence is normally not
undertaken by this Court u/Art.136 however, in a given case, the
re-appreciation of evidence is not barred u/Art.136 – Incorrect
appreciation of evidence and few inconsistent findings in the
impugned judgments, warrant re-appreciation of evidence to
appreciate the real issue between the parties – Re-appreciation
undertaken primarily to examine whether the Trial Court and the
High Court have accurately recorded the findings – Objection of the
respondent-plaintiff that the re-appreciation of oral and documentary
evidence is not warranted in the facts and circumstances of this
case, rejected – Impugned Judgments set aside – Plaintiff’s suit
is dismissed. [Paras 14, 15]

Appellate court – Power of, to modify decree – Suit filed by the
respondent-plaintiff for declaration that she is the owner of the

* Author
2 [2025] 11 S.C.R.

Supreme Court Reports

Suit Property – Trial Court decreed the suit, in part, granting
a decree of title and permanent injunction to an extent of 18
acres and 21 guntas of the Suit Property, however, disbelieved
the case of the plaintiff on oral gift/hiba – Appeal filed by the
defendants – High Court recognised the oral gift; modified
the decree and enhanced the plaintiff’s share by including
the 10 acres allegedly gifted by her mother through oral gift
and 3/4th share in the balance of extent in the suit property –
Whether the High Court was correct in reversing the finding
of the Trial Court on the Oral Gift without an appeal/cross-
appeal by the Plaintiff:
Held: Impugned judgment did not consider whether a ground is
made out for modifying a decree or not – High Court disturbed a
finding of fact, leading to modifying the decree of the Trial Court in
the suit without there being an appeal/cross-appeal – Thus, to this
extent, the findings of the High Court are not tenable. [Para 21]

Evidence Act, 1872 – ss.50, 60, 73 – Whether the Plaintiff
established her claim as the daughter of ‘K’ and ‘A’:
Held: 1.1 Plaintiff claimed the status of the only daughter of ‘K’
and ‘A’ – Trial Court exercised its jurisdiction u/s.73, referred to
s.50, and, without testing the credibility, relevancy, admissibility
and competence of the witnesses, in an abstract way, held that
the Plaintiff is the daughter of ‘K’ – It further found that the mere
suggestion to these witnesses does not discredit the evidence
of PWs 2 and 3 – Trial Court failed to note that the Plaintiff and
the witnesses, going by their evidence, were 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 – Whereas, the High Court accepted the evidence of PWs
2 and 3 as the witnesses having special means of knowledge of
the Plaintiff with ‘K’. [Paras 32, 33]
1.2 The appreciation 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 ‘K’ – Emphasis is
on relevant facts admissible in evidence – Assuming the evidence
is admissible, the same must conform to the triple test – The proof
of status or relationship need not always necessarily be through
documentary evidence, but, when oral evidence is the basis on
[2025] 11 S.C.R. 3

Dharmrao Sharanappa Shabadi and Others v.
Syeda Arifa Parveen

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’ – Impugned judgments are liberal in their approach
to accepting the status claimed by the Plaintiff as the daughter
of ‘K’. [Para 33]

Oral gift/Hiba – Claim under – When not proved – Suit filed
by the respondent-plaintiff for declaration that she is the
owner of the Suit Property – Trial Court decreed the suit,
in part, granting a decree of title and permanent injunction
to an extent of 18 acres and 21 guntas of the Suit Property,
however, disbelieved the case of the plaintiff on oral gift/
hiba – High Court recognised the oral gift; modified the decree
and enhanced her share by including the 10 acres allegedly
gifted by her mother through oral gift and 3/4th share in the
balance of extent in the suit property – Whether the claim of
the Plaintiff under oral gift/Hiba is validly proved, and the title
is derived to an extent of 10 acres:
Held: 1.1 No – The claim of the Plaintiff under oral gift/Hiba and
Ex. P-8 (Memorandum of Gift executed in her favour), for want of
evidence on possession, fails, and the issue is answered in favour
of the Defendants – 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. [Para 39]
1.2 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. [Para 39]
1.3 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 – 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
4 [2025] 11 S.C.R.

Supreme Court Reports

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. [Paras 38, 39]
1.4 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 were entered
in Record of Rights (ROR) and their predecessors in interest, both
in the title and possession columns – The Plaintiff placed oral
evidence, however, in the circumstances of the case, it cannot be
accepted that there was a valid oral gift in favour of Plaintiff in any
capacity, i.e., as a daughter or otherwise – Impugned Judgments
set aside – Plaintiff’s suit is dismissed. [Paras 39, 49]

Limitation Act, 1963 – Arts.58, 59 – Transfer of Property Act –
s.3 – Whether the suit for declaratory relief was barred by
limitation:
Held: The suit filed on 28.10.2013 is barred by limitation – 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 ‘K’ and the cause of action again arose when Ex. P-3
was brought into existence, denying the claim of the Plaintiff by
Late ‘AB’ – ‘AB’ is said to have executed instruments of sale (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 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, knowledge is
imputed through constructive notice, and consequently, it cannot
be stated that there was a continuing cause of action – Moreover,
to set aside instruments of sale (Exs. D-3 to D-7), the muster u/
Art.59, Limitation Act must be met – It is axiomatic that there is
a presumption that a registered document is validly executed – A
registered document is prima facie valid in law – Thus, the onus
of proof would be on a person who leads evidence to rebut the
presumption – In the instant case, the Respondent failed to rebut
the said presumption – 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
[2025] 11 S.C.R. 5

Dharmrao Sharanappa Shabadi and Others v.
Syeda Arifa Parveen

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. [Paras 44, 46-48]

Mohammedan Law – Valid oral gift under – Essentials of:
Held: There are three essential conditions for an oral gift under
Mohammedan Law – A clear manifestation of the wish to give on
the part of the donor; an acceptance of the gift by the donee, which
can be either implied or explicit; taking of possession of the subject-
matter of the gift by the donee, either actually or constructively – 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. [Paras 36.1, 36.2]

Mohammedan Law – Gift under – Delivery of possession –
How to be made:
Held: 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 – 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. [Paras 36.4, 36.5]
Words and Phrases – “when the right to sue first accrues” –
Limitation Act, 1963 – Art.58. [Para 42]
Evidence Act, 1872 – ss.60, 50 – Opinion on relationship, when
relevant – Contours of s.50 – Discussed. [Paras 26, 26.1, 27]
6 [2025] 11 S.C.R.

Supreme Court Reports

Case Law Cited
Mahesh Dattaray Thirthakar v. State of Maharashtra [2009] 3 SCR
1122 : (2009) 11 SCC 141; Banarsi and Others v. Ram Phal [2003]
2 SCR 22 : (2003) 9 SCC 606; Dolgobinda Paricha v. Nimai Charan
Misra [1959] Supp. 2 SCR 814 : AIR 1959 SC 914; Ramchandra
Rambux v. Champabai and Others [1964] 6 SCR 814 : AIR 1965
SC 354; Fakhruddin v. State of Madhya Pradesh, 1966 SCC
OnLine SC 55; Abdul Rahim v. Sk. Abdul Zabar [2009] 4 SCR
32 : (2009) 6 SCC 160; Rasheeda Khatoon v. Ashiq Ali [2014] 11
SCR 31 : (2014) 10 SCC 459; Hafeeza Bibi v. Sk. Farid [2011]
5 SCR 1155 : 2011 5 SCC 654; Mansoor Saheb v. Salima, 2024
INSC 1006 : [2024] 12 SCR 923; Nikhila Divyang Mehta and
Another v. Hitesh P. Sanghvi and Others, 2025 INSC 485; Noorul
Hoda v. Bibi Raifunnisa [1995] Supp. 6 SCR 110 : (1996) 7 SCC
767; Prem Singh and Others v. Birbal and Others [2006] Supp.
1 SCR 692 : 2006 AIR SC 3608 – relied on.
Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal
299, 309; Pottem Subbarayudu and Another v. Kothapalli
Gangulu Naidu and Others, 2000 SCC OnLine AP 296;
Mussamut Kamarunnissa Bibi v. Mussamut Husaini Bibi,
1880 UKPC 36 – referred to.

Books and Periodicals Cited
Al-Marghinani, Burhan al-Din, Al-Hiadaya, Quran Mahal, Karachi
Vol. III, p. 283; Mulla, Principles of Mahomedan Law, 20th Edition,
Chapter XI (Gifts) – referred to.

List of Acts
Transfer of Property Act, 1882; Constitution of India, 1950; Evidence
Act, 1872; Limitation Act, 1963.

List of Keywords
Mohammedan Law; Oral Gift/Hiba; Mohammedan Law of
succession; Delivery of Possession; Constructive possession;
Constructive notice; Suit barred by limitation; Section 50 of the
Evidence Act; Re-appreciation of evidence under Article 136
of the Constitution of India; Record of Rights (ROR); Mutation;
Presumption of possession; Lack of mutation; Registered sale
[2025] 11 S.C.R. 7

Dharmrao Sharanappa Shabadi and Others v.
Syeda Arifa Parveen

deeds; Cross-appeal/cross-objection; Opinion evidence; Special
knowledge of relationship; Declaratory suit; Permanent injunction;
Continuing cause of action; Negligence.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12512
of 2025
From the Judgment and Order dated 06.07.2022 of the High Court
of Karnataka at Kalaburagi in RFA No. 200204 of 2019

Appearances for Parties
Advs. for the Appellants:
Rauf Rahim, Sr. Adv., Yash Prashant Sonavane, Gopal Bhosale,
Ms. Sangita Bhosale, Ali Rauf Rahim, Ravindra Keshavrao Adsure.
Advs. for the Respondent:
Ameet Kr Deshpande, Sr. Adv., Akshat Shrivastava, Vibhor Jain,
Mrs. Pooja Shrivastava.

Judgment / Order of the Supreme Court

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
8 [2025] 11 S.C.R.

Supreme Court Reports

on 05.12.1988, Khadijabee, under an oral gift/Hiba, conveyed
to the Plaintiff 10 acres in Sy.No. 107. 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, 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 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
[2025] 11 S.C.R. 9

Dharmrao Sharanappa Shabadi and Others v.
Syeda Arifa Parveen

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 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
10 [2025] 11 S.C.R.

Supreme Court Reports

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 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?
[2025] 11 S.C.R. 11

Dharmrao Sharanappa Shabadi and Others v.
Syeda Arifa Parveen

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 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.
12 [2025] 11 S.C.R.

Supreme Court Reports

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 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
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
[2025] 11 S.C.R. 13

Dharmrao Sharanappa Shabadi and Others v.
Syeda Arifa Parveen

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 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
14 [2025] 11 S.C.R.

Supreme Court Reports

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?

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

1 (2009) 11 SCC 141
[2025] 11 S.C.R. 15

Dharmrao Sharanappa Shabadi and Others v.
Syeda Arifa Parveen

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.
• 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
16 [2025] 11 S.C.R.

Supreme Court Reports

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 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
[2025] 11 S.C.R. 17

Dharmrao Sharanappa Shabadi and Others v.
Syeda Arifa Parveen

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 3/4th
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.
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

2 (2003) 9 SCC 606
18 [2025] 11 S.C.R.

Supreme Court Reports

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 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 Reversed the Trial Court
Hiba under of the oral gift dated finding and stated that the
Mohammedan 05.12.1988, because finding that the gift deed
Law of doubt regarding has not been acted upon
the identification of 10 cannot be accepted. The
acres due to boundary evidence discloses delivery
discrepancies in Ex. P-8. of 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 r e b u t t h e f i n d i n g o f
boundary discrepancies, the
High Court attributed it to poor
drafting and that the cross-
examination was lacking.

Possession The Trial Court accepted Possession of the Plaintiff can
of the suit the Plaintiff’s case of be said to have continued
property possession to the extent on the remaining extent of
of the share inherited. her 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.
[2025] 11 S.C.R. 19

Dharmrao Sharanappa Shabadi and Others v.
Syeda Arifa Parveen

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 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
20 [2025] 11 S.C.R.

Supreme Court Reports

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 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 Misra3 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):

3 AIR 1959 SC 914
[2025] 11 S.C.R. 21

Dharmrao Sharanappa Shabadi and Others v.
Syeda Arifa Parveen

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 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.

4 ILR (1942) 2 Cal 299, 309.
22 [2025] 11 S.C.R.

Supreme Court Reports

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:
“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

5 2000 SCC OnLine AP 296
6 AIR 1965 SC 354
[2025] 11 S.C.R. 23

Dharmrao Sharanappa Shabadi and Others v.
Syeda Arifa Parveen

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 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.
24 [2025] 11 S.C.R.

Supreme Court Reports

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 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. 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
[2025] 11 S.C.R. 25

Dharmrao Sharanappa Shabadi and Others v.
Syeda Arifa Parveen

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 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

7 1966 SCC OnLine SC 55
26 [2025] 11 S.C.R.

Supreme Court Reports

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. 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
[2025] 11 S.C.R. 27

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 [2025] 11 S.C.R.

Supreme Court Reports

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. 29

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

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).
30 [2025] 11 S.C.R.

Supreme Court Reports

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.

13 See, Hafeeza Bibi (Supra).
14 1880 UKPC 36
[2025] 11 S.C.R. 31

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

15 Rasheeda Khatoon (supra).
32 [2025] 11 S.C.R.

Supreme Court Reports

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. 33

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 [2025] 11 S.C.R.

Supreme Court Reports

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.

16 Nikhila Divyang Mehta and another v. Hitesh P. Sanghvi and others, 2025 INSC 485.
[2025] 11 S.C.R. 35

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

17 Noorul Hoda v. Bibi Raifunnisa, (1996) 7 SCC 767.
36 [2025] 11 S.C.R.

Supreme Court Reports

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

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