# Dharmrao Sharanappa Shabadi and Others v. Syeda Arifa Parveen

- **Citation:** 2025 INSC 1187
- **Court:** Supreme Court of India
- **Decided:** 2025-10-07
- **Case number:** Civil Appeal No. 12512 of 2025
- **Bench:** Ahsanuddin Amanullah, S.V.N. Bhatti
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dharmrao-sharanappa-shabadi-and-others-v-syeda-arifa-parveen-38133
- **Pages:** 36

## Headnote

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
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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/crossappeal 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
o

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[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
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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/crossappeal 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.
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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
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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.
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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 subjectmatter 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]
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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.
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Dharmrao Sharanappa Shabadi and Others v.
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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
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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.
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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
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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.
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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 reappreciation 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
Hiba under
Mohammedan
Law
Disbelieved the theory
of the oral gift dated
05.12.1988, because
o f d o u b t r e g a r d i n g
the identification of 10
acres due to boundary
discrepancies in Ex. P-8.
The Trial Court concluded
that no actual possession
was handed over.
Reversed the Trial Court
finding and stated that the
finding that the gift deed
has not been acted upon
cannot be accepted.