Proving Hiba Requires Contemporaneous Possession; Appellate Enlargement Without Cross‑Appeal Impermissible; Constructive Notice Triggers Limitation for Declaratory Suits

Case: Dharmrao Sharanappa Shabadi and Others v. Syeda Arifa Parveen, 2025 INSC 1187 (Supreme Court of India, 7 October 2025)

Bench: S.V.N. Bhatti, J.; Ahsanuddin Amanullah, J.

Disposition: Appeal allowed; High Court and Trial Court judgments set aside; plaintiff’s suit dismissed without costs.

Introduction

This judgment resolves a long-running title dispute over agricultural land (Sy.No.107, 24 acres 28 guntas) in Village Kusnoor, Gulbarga (Kalaburagi). The respondent-plaintiff, claiming to be the sole daughter of original owner Khadijabee and her husband Abdul Basit, asserted title and possession based on an alleged oral gift (hiba) of 10 acres in 1988 and succession to the balance. The appellants-defendants relied on five registered sale deeds executed in 1995 by Abdul Basit, in whose favor mutations stood since 1991, followed by mutations in the purchasers’ names and continuous revenue entries and cultivation.

The litigation history features: a partition decree (1971 suit decreed in 1987) in favor of Khadijabee; her death in 1990; mutation in Abdul Basit’s name in 1991; 1995 registered conveyances to defendants; and a 2013 suit by the plaintiff seeking a declaration of title, injunction, and cancellation of the 1995 sale deeds. The Trial Court partly decreed the suit—recognizing plaintiff’s status as daughter and granting her 3/4th share by succession (18 acres 21 guntas), while rejecting the oral gift. The High Court modified the decree to also recognize the oral gift of 10 acres and plaintiff’s 3/4th share in the remaining 14 acres 28 guntas, effectively awarding the entire 24 acres 28 guntas. The Supreme Court has now reversed, laying down important clarifications on:

When the Supreme Court can reappreciate evidence under Article 136;
The limits of an appellate court’s power to enlarge relief without a cross-appeal;
The correct approach to Section 50 (opinion evidence on relationship) and Section 73 (handwriting/signature comparison) of the Evidence Act;
The elements and proof of an oral gift (hiba) in Mohammedan Law, emphasizing contemporaneous possession and public acts like mutation;
Limitation for declaratory reliefs and cancellation of instruments, including imputation of constructive notice.

Summary of the Judgment

The Supreme Court reappreciated evidence citing perversity and misapplication of legal standards by the courts below.
It held the High Court erred in granting the plaintiff additional relief (recognizing the oral gift of 10 acres) absent a cross-appeal, thus impermissibly enlarging the decree.
On status as daughter: the Court found the Trial Court and High Court misapplied Section 50 Evidence Act. Opinion evidence by relatives (PWs 2 and 3) was not tested against the mandated standards (conduct-based opinion by persons with special knowledge and independent judicial assessment), and crucial documentary evidence within plaintiff’s reach was withheld. The findings were termed liberal and circular.
On hiba: the Court reaffirmed that a valid oral gift under Mohammedan Law requires declaration, acceptance, and delivery of possession (actual or constructive). It found no contemporaneous or continuous proof of possession by the donee—no mutation in plaintiff’s name despite multiple opportunities, inconsistent documentation (thumb impression vs. recorded signature), and prolonged revenue entries in the vendor/purchasers’ names—hence, the oral gift failed.
On limitation: the suit (filed in 2013) challenging 1995 sale deeds and seeking a declaration of title was held time-barred under Articles 58 and 59 of the Limitation Act. The Court imputed constructive notice to the plaintiff, given obvious public mutations and registered deeds since 1989–95. The presumption of validity attached to registered documents was not rebutted.
Result: High Court judgment set aside; plaintiff’s suit dismissed.

Detailed Analysis

Precedents Cited and Their Influence

Mahesh Dattaray Thirthakar v. State of Maharashtra (2009) 11 SCC 141: Reaffirmed that while Article 136 generally precludes reappreciation of facts, the Supreme Court will intervene where findings are perverse, based on misreading, or manifestly illegal. This empowered the Court to revisit evidence in this case.
Banarsi v. Ram Phal (2003) 9 SCC 606: No appeal lies against a mere finding; appellate courts cannot grant relief to a non-appealing party or enlarge the decree without a cross‑appeal/cross‑objection. This was decisive in holding the High Court had no jurisdiction to recognize the 10-acre oral gift after the Trial Court had rejected it, absent a cross-appeal by the plaintiff.
Dolgobinda Paricha v. Nimai Charan Misra, AIR 1959 SC 914 and Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299: Laid down the three-step framework for Section 50 Evidence Act—(i) court’s task is to form an opinion on relationship; (ii) admissible “opinion” must be expressed through conduct; (iii) the person must have special means of knowledge; and the court must then independently weigh this opinion. The Supreme Court found that the courts below accepted relatives’ statements without the required conduct-based proof or judicial weighing.
Fakhruddin v. State of Madhya Pradesh, 1966 SCC OnLine SC 55: Courts may compare signatures under Section 73, but such comparison is hazardous and should not be the sole basis—expert opinion or corroboration is generally required. The Trial Court’s comparison of two disputed signatures (Ex.P‑8 and Exs.D‑3 to D‑7) to infer identity of “Abdul Basit/Abdul Bas” was held impermissible.
Hiba line: Abdul Rahim v. Sk. Abdul Zabar (2009) 6 SCC 160; Hafeeza Bibi v. Sk. Farid (2011) 5 SCC 654; Rasheeda Khatoon v. Ashiq Ali (2014) 10 SCC 459; Mansoor Saheb v. Salima (2023) SCC OnLine SC 3809: The Court distilled settled principles—hiba needs declaration, acceptance, and delivery of possession; a written record is not required; delivery can be constructive but must be demonstrated through contemporaneous and continuous conduct (mutation, control, rent collection). These guided the rejection of the oral gift here.
Privy Council in Mussammat Kamarunnissa Bibi v. Mussammat Husaini Bibi (1880 UKPC 36): Warned courts to be cautious about verbal gifts asserted posthumously; emphasized proof of possession and public acts (mutation, rent receipts) following the gift—underscoring the Court’s insistence on post-gift conduct here.
Limitation and constructive notice: NIKHILA DIVYANG MEHTA v. HITESH P. SANGHVI, 2025 INSC 485 (Article 58 “first accrues”); Noorul Hoda v. Bibi Raifunnisa (1996) 7 SCC 767 (constructive notice under Section 3 TPA); Prem Singh v. Birbal, 2006 AIR SC 3608 (presumption of validity of registered instruments). These grounded the finding that the 2013 suit was time-barred, and plaintiff was fixed with constructive notice since at least the 1989–95 public entries and registered deeds.

Legal Reasoning: How the Court Reached Its Decision

1) When can the Supreme Court reappreciate evidence under Article 136?

The Court catalogued multiple errors in the courts below—perversity, misreading, reliance on ipse dixit, and legal misapplications (Section 50 and Section 73)—bringing the case within the exceptions identified in Mahesh Dattaray Thirthakar. Thus, reappreciation was warranted.

2) Appellate enlargement of relief without cross‑appeal is impermissible

Applying Banarsi v. Ram Phal, the High Court lacked jurisdiction to grant the plaintiff recognition of the 10-acre oral gift after the Trial Court had rejected it, since the plaintiff neither appealed nor filed cross‑objections. The High Court’s modification enhanced the decree beyond the scope of the defendants’ appeal and was therefore illegal.

3) Proving relationship through Section 50 Evidence Act: the triple test and beyond

Section 50 permits opinion evidence about relationship, but only when the opinion is expressed through conduct by a person with special knowledge; the court must then independently assess this opinion.
The testimonies of PWs 2 and 3 (relatives) were accepted without identifying credible conduct demonstrating their inner conviction on the relationship, and without the court forming its own opinion after applying the triple test.
Crucially, the plaintiff withheld accessible corroborative documents (school records, ration card, voter lists, etc.), inviting an adverse inference in the overall weighing of evidence. The findings were labelled “liberal” and “circular.”

4) Limits of Section 73: do not compare a disputed signature with another disputed signature, and do not rely on bare-eye comparison

The Trial Court compared Abdul Basit’s purported signature on Ex.P‑8 (gift memorandum) with signatures on the sale deeds (Exs.D‑3 to D‑7), even though both sets were under challenge. Relying on Fakhruddin, the Supreme Court held this approach impermissible and hazardous, especially as the comparison formed the backbone of the Trial Court’s conclusion that “Abdul Bas” and “Abdul Basit” were the same person and to infer the plaintiff’s status.

5) Hiba: declaration, acceptance, and delivery of possession—contemporaneous and continuous proof is key

Hiba can be oral and does not require registration; however, possession—actual or constructive—must be proved by overt, public acts consistent with the gift (e.g., mutation, control of land, rent collection, exclusive enjoyment).
Here, despite the alleged oral gift in December 1988:
- In June 1989, mutation of the entire property was made in favor of the donor (Khadijabee), not the donee—contrary to the gift story;
- After the donor’s death (1990), mutation was made in 1991 in Abdul Basit’s name for the entire land;
- In 1995, Abdul Basit executed five registered sale deeds, followed by mutations in purchasers’ names, with continuous revenue entries and cultivation thereafter;
- The plaintiff never sought mutation in her favor at any relevant point (1989, 1990, 1995, 2001), nor produced receipts or other public acts reflecting control.
Ex.P‑8 itself undermined the claim of prior delivery of possession by contemplating future undisturbed possession of the donee. The inconsistency between the donor’s recorded signature in earlier proceedings and the thumb impression on Ex.P‑8 went unexplained. The High Court’s “poor drafting” explanation was rejected.
Result: the oral gift failed for want of proof of delivery of possession and subsequent conduct; mere assertions by interested witnesses were insufficient.

6) Limitation: Articles 58 and 59, “first accrual,” constructive notice, and presumption of validity of registered deeds

Article 58 (declaration) runs from when the right to sue first accrues; Article 59 (cancellation of instruments) similarly requires suit within three years of knowledge.
Public mutations (1989 to donor; 1991 to Abdul Basit) and 1995 registered sale deeds, followed by purchasers’ mutations, were sufficient to impute constructive notice to the plaintiff (Section 3 TPA) long before the 2013 suit.
Registered sale deeds are presumed valid (Prem Singh); the plaintiff failed to rebut this presumption.
Given prolonged inaction despite multiple opportunities (1989, 1990, 1995, 2001), the Court held the 2013 suit time‑barred. The High Court’s use of constructive notice against the defendants, despite no public record of the alleged oral gift, was corrected.

Impact and Practical Implications

On Evidence Law (Sections 50 and 73, Evidence Act)

Courts must demand conduct-based opinion evidence from persons with special knowledge for Section 50; mere relatedness and assertions do not suffice. Judges must independently weigh such opinion against the entire evidentiary matrix.
Do not compare one disputed signature with another disputed signature. Section 73 comparison is a last-resort corroborative tool, not a substitute for expert evidence or proper proof.

On Muslim Law of Gifts (Hiba)

The decision fortifies the requirement that delivery of possession—proven through contemporaneous and continuous public acts—lies at the heart of a valid hiba of immovable property.
Parties asserting oral gifts should promptly mutate records, collect revenues/rents, and generate a clear footprint of exclusive control. Posthumous verbal gift claims, unsupported by such acts, will draw judicial suspicion.

On Appellate Practice

Appellate courts cannot enlarge relief in favor of a non-appealing party absent a cross‑appeal/cross‑objection. This judgment will curb appellate overreach and promote pleadings/relief discipline.

On Limitation and Property Litigation

Article 58’s “first accrual” is enforced strictly; claimants are fixed with constructive notice of obvious public acts (mutations, registered deeds). Stale property claims cloaked as continuing causes of action are likely to fail.
Presumption of validity of registered instruments remains robust; challengers must adduce compelling evidence to rebut it.

Complex Concepts Simplified

Hiba (Muslim Law gift): A gratuitous transfer inter vivos. It is valid when (i) the donor declares the gift; (ii) the donee accepts; and (iii) possession is delivered (actual or constructive). Constructive possession may be shown by acts like applying for mutation, handing over control documents, or other public conduct evidencing transfer.
Section 50, Evidence Act: Permits opinion evidence about family relationships from persons with special knowledge, but only when that opinion is shown through their conduct. The judge must then independently assess its weight alongside other evidence. It is not a shortcut for proving kinship.
Section 73, Evidence Act: Allows the judge to compare a disputed signature with an admitted/proved one. It is a cautious, corroborative tool and should not be used to compare two disputed signatures or to supplant expert evidence.
Constructive Notice (Section 3, Transfer of Property Act): Law treats a person as knowing a fact they ought to have known if reasonable inquiry would have revealed it. Public mutations and registered deeds typically trigger constructive notice.
Articles 58 and 59, Limitation Act: Article 58 provides a 3-year period for declaratory suits from when the right to sue first accrues; Article 59 provides 3 years to cancel instruments from when the facts entitling cancellation first become known. Public entries and registered instruments generally start the clock.
Ipse dixit: Bare assertion without evidence. Courts warn against findings based merely on a party’s or witness’s say‑so.
Factum probandum: The principal fact to be proved (e.g., kinship); opinion evidence under Section 50 is a relevant fact that aids the court but is not itself the final proof of the principal fact.

Conclusion

This decision is a comprehensive reset on multiple fronts of property adjudication and appellate practice:

It polices appellate overreach by reiterating that, absent a cross‑appeal, relief cannot be enlarged in favor of a non-appealing party.
It tightens evidentiary standards for proving kinship under Section 50, insisting on conduct-based opinion and judicial weighing, and cautions against misuse of Section 73 signature comparison.
It fortifies the doctrinal core of hiba—delivery of possession—requiring contemporaneous and continuous public acts (like mutation) to establish the gift as complete and irrevocable.
It robustly applies limitation law, imputing constructive notice from public records and registered documents, thereby discouraging delayed declaratory challenges to old transfers.

In effect, the Supreme Court has sent a clear message: oral gifts asserted years later, unsupported by public, contemporaneous indicia of possession, will not pass muster; and declaratory and cancellation suits must be filed promptly when rights first come under public threat. The ruling will likely have a salutary effect in property litigation involving hiba claims, evidentiary proof of kinship, and timely challenges to registered instruments.