Dharmrao Sharanappa Shabadi and Others vs Syeda Arifa Parveen

Appellate court – Power of, to modify decree – 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 – 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 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 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 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]