Supreme Court: For a Valid Oral Gift (Hiba) under Mohammedan Law, Proof of Public Possession Is Essential; Absence of Mutation Raises Doubt over Ownership Claims
Kiran Raj
The Supreme Court of India Division Bench of Justice Ahsanuddin Amanullah and Justice S.V.N. Bhatti set aside the Karnataka High Court’s decision and dismissed a civil suit concerning ownership of agricultural land in Gulbarga district. The Court held that the plaintiff failed to establish ownership based on an alleged oral gift (hiba) under Muslim law or to prove possession of the property. It observed that a hiba cannot be treated as a “surprise instrument” to assert rights over land, and that its essential requirements—declaration by the donor, acceptance by the donee, and delivery of possession—must be fulfilled openly rather than privately. The Court further stated that evidence such as mutation in revenue records or acts showing control over the land is necessary to substantiate a valid claim of gift.
The dispute concerned ownership and possession of agricultural land measuring 24 acres and 28 guntas in Survey No. 107 of Village Kusnoor, Taluka and District Gulbarga. The plaintiff instituted a civil suit seeking a declaration of ownership and a perpetual injunction over the land. She claimed that her mother, Khadijabee, had orally gifted her 10 acres on 5 December 1988, and that this was later recorded in a memorandum of gift dated 5 January 1989. The plaintiff further asserted that she was the only daughter and legal heir of Khadijabee and her husband, Abdul Basit, and therefore entitled to the entire property.
The defendants, purchasers of the same land through five registered sale deeds executed on 25 February 1995 by one Abdul Bas, contended that the plaintiff’s claim was false and unsupported by evidence. They maintained that Khadijabee and Abdul Basit had died without issue, that the oral gift was fabricated, and that they were bona fide purchasers for value. They also stated that mutation entries stood in their favour and that the plaintiff was never in possession of the land.
During the trial, oral and documentary evidence was presented. The plaintiff relied on witnesses and documents (Exhibits P1 to P8), while the defendants produced their own witnesses and records (Exhibits D1 to D44). The trial court decreed the suit in part, recognising the plaintiff’s ownership over 3/4th of the land and upholding the sale deeds only to the extent of the remaining 1/4th share. The High Court later modified the decree, declaring the plaintiff absolute owner of 10 acres under the oral gift and a 3/4th share in the remaining land.
The defendants appealed to the Supreme Court under Article 136 of the Constitution. The issues before the Court included the validity of the oral gift (hiba) under Mohammedan law, the plaintiff’s proof of lineage under Section 50 of the Indian Evidence Act, the limitation period under Articles 58 and 59 of the Limitation Act, and the High Court’s power to alter the trial court’s decree in the absence of a cross-appeal.
The Court observed that “a hiba cannot be projected as a ‘surprise instrument’ and cannot sprout into a transfer of property as per the convenience of a party.” It recorded that, under Mohammedan law, “to constitute a valid oral gift, three essential conditions must coexist — first, a clear manifestation of the wish to give on the part of the donor; second, an acceptance of the gift by the donee; and third, taking of possession of the subject matter of the gift by the donee, either actually or constructively.”
The Bench stated that “delivery of possession is a critical and necessary element for a valid gift, and continuous evidence of acting under the oral gift is crucial to prove delivery of possession.” It further observed that “a gift under Mohammedan law is complete only upon delivery of possession, and absence of such delivery renders the transaction ineffective.” The Court clarified that “while oral gift (hiba) is permissible, the evidence of acting under such a gift, including mutation in revenue records or proof of control over the property, is essential to substantiate the claim of possession.”
The judgment recorded that “the lack of mutation in the donee’s favour by revenue authorities was considered a point against the donee’s claim of possession,” and “the donee not being in possession of the title deeds was another factor considered by the court.” The Bench also noted that “the plaintiff failed to establish that she ever exercised possession or collected rent or revenue as evidence of acting under the alleged oral gift.”
Referring to precedents, the Court cited Hafeeza Bibi v. Sk. Farid (2011) 5 SCC 654, holding that “though a written instrument is not essential for a hiba, the requirements of declaration, acceptance, and delivery of possession must be proved beyond doubt.” It also referred to Rasheeda Khatoon v. Ashiq Ali (2023) 6 SCC 20, where it was held that “mutation of name and possession are material indicia of a valid oral gift.” The Bench reiterated that “the donee’s omission to obtain mutation or assert possession for a prolonged period would cast serious doubt on the existence of the hiba.”
The Court addressed evidentiary inconsistencies and stated that “the trial court failed to properly evaluate the oral evidence of witnesses in accordance with the principles set forth in Dolgobinda Paricha v. Nimai Charan Misra (1959 SCR 1249).” It observed that “the evidence on record did not prima facie satisfy the triple test under Section 50 of the Evidence Act concerning proof of relationship.” The Bench found that “the trial court assumed the role of a handwriting expert by comparing signatures between disputed and unadmitted documents, which was impermissible.”
On the High Court’s modification of the decree, the Supreme Court stated that “the High Court has disturbed a finding of fact, leading to modification of the decree of the trial court without there being an appeal or cross-appeal.” Relying on Banarsi v. Ram Phal (2003) 9 SCC 606, it held that “the High Court does not possess the power to grant relief beyond the scope of appeal in the absence of a cross-appeal or cross-objection.” The Bench concluded that “the High Court acted without jurisdiction in modifying the decree and declaring the plaintiff absolute owner of 10 acres.”
Regarding limitation, the Court stated that “the circumstances have been chronologically explained, and the earliest cause of action to the plaintiff was when Ex. P-2, dated 06.06.1989, was brought into existence at the instance of Khadijabee, and the cause of action again arose when Ex. P-3 was brought into existence, denying the claim of the plaintiff by late Abdul Basit.” It further recorded that “Abdul Basit is said to have executed Exs. D-3 to D-7 on 02.05.1995, and 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 Court observed that “the impugned judgments failed to appreciate the effect of constructive notice in answering whether the suit is within the period of limitation or not.” Citing the principle of constructive notice and applying Articles 58 and 59 of the Limitation Act, the Bench concluded that “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 Court stated: “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.”
“The findings of the High Court modifying the decree without a cross-appeal are not tenable in the facts and circumstances of the case.” The Bench held that “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.”
“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 Civil Appeal is allowed, the judgments of the High Court and trial court are set aside, and the suit of the Plaintiff stands dismissed. No order as to costs.”
Advocates Representing the Parties
For the Petitioner(s): Mr. Rauf Rahim, Sr. Adv.; Mr. Yash Prashant Sonavane, Adv.; Mr. Gopal Bhosale, Adv.; Ms. Sangita Bhosale, Adv.; Mr. Ali Rauf Rahim, Adv.; Mr. Ravindra Keshavrao Adsure, AOR
For the Respondent(s): Mr. Ameet Kr. Deshpande, Sr. Adv.; Mr. Akshat Shrivastava, AOR; Mr. Vibhor Jain, Adv.; Mrs. Pooja Shrivastava, Adv.
Case Title: Dharmrao Sharanappa Shabadi and Others v. Syeda Arifa Parveen
Neutral Citation: 2025 INSC 1187
Case Number: Civil Appeal arising from SLP (C) No. 16996 of 2022
Bench: Justice Ahsanuddin Amanullah and Justice S.V.N. Bhatti
