Oral Gift (Hiba) Must Be Followed by Delivery of Possession- Courts Cannot Presume Facts Where Evidence Is Absent: Supreme Court

“Even a sacred personal law like Hiba must be demonstrated through action — secrecy, delay, and lack of possession defeat the claim” - In a landmark ruling on 7 October 2025, the Supreme Court of India set aside the judgments of both the Trial Court and the High Court, holding that the plaintiff failed to prove a valid oral gift (Hiba) under Mohammedan law and that her suit for declaration and cancellation of registered sale deeds was barred by limitation. The Court found no credible evidence to prove the plaintiff’s lineage, title, or possession, and directed dismissal of the suit filed nearly 18 years after the impugned sale transactions.

The two-judge bench of Justice Ahsanuddin Amanullah and Justice S.V.N. Bhatti also delivered a significant legal pronouncement on the principles governing oral gifts under Mohammedan Law, the burden under Sections 50 and 73 of the Indian Evidence Act, and the requirement of cross-appeal for appellate courts to modify decrees under the CPC.

“Oral Gift Must Be Proved by Possession — Mere Love or Relationship Doesn’t Create Title”

Failure to Show Possession Fatal to Hiba Claim — Thumb Impressions, Vague Boundaries, and Unacted Documents Not Sufficient

The plaintiff, Syeda Arifa Parveen, claimed ownership over 10 acres of agricultural land in Survey No. 107, Village Kusnoor, Gulbarga, based on an oral gift (hiba) made by her mother Khadijabee on 5 December 1988, and a memorandum of gift (Ex. P-8) allegedly executed on 5 January 1989. She also claimed inheritance of the remaining land as the sole daughter and heir after the death of Khadijabee in 1990, and her father Abdul Basit in 2001.

The Court, however, emphatically rejected the oral gift claim, holding:

“Possession is a critical and necessary element for a valid Hiba. It can be actual or constructive — but it must be proved.”

Referring to the consistent mutation records in favour of the defendants since 1995 and no evidence of exclusive control or mutation by the plaintiff, the Court held:

“Exhibits relied on by the Plaintiff, coupled with Exs. D-8 to D-43, do not enable presuming that the Plaintiff continued to be in possession of 10 acres of the suit schedule.”

Further, the Court found discrepancies in the gift memorandum, especially that Khadijabee had signed legal documents in Urdu, but allegedly used a thumb impression on Ex. P-8, and noted that even this document undermined the claim of prior possession:

“Clause 5 of Ex. P-8 belies the Plaintiff’s assertion — it speaks of future possession, not a completed past gift.”

“Courts Must Guard Against Posthumous Hiba Claims — Suspicion Is the Rule, Not the Exception”

Hiba Cannot Sprout into Ownership After Two Decades — Public Acts, Not Secret Narratives, Establish Gifts

The Court reaffirmed the legal standard that oral gifts, especially posthumous claims, must be examined with “greatest care, even suspicion”, quoting Kamarunnissa Bibi v. Husaini Bibi (1893) and modern precedents like Rasheeda Khatoon v. Ashiq Ali.

The Bench emphasized that:

“The Hiba is not used as a surprise instrument and cannot sprout into a transfer of property as per the convenience of a party.”

Instead, the donee must establish control and public acts consistent with ownership — such as mutation, rent collection, cultivation, or litigation on the property — none of which were proved by the plaintiff.

“High Court Cannot Modify Decree Without a Cross-Appeal”

Enhancing Plaintiff’s Relief by Recognising Oral Gift Was Jurisdictionally Impermissible

The High Court of Karnataka had modified the decree of the Trial Court by granting ownership of an additional 10 acres to the plaintiff on the basis of the alleged oral gift, even though the Trial Court had rejected the Hiba claim, and the plaintiff had not filed a cross-appeal.

The Supreme Court found this approach contrary to law, relying on Banarsi v. Ram Phal (2003) 9 SCC 606:

“The High Court has disturbed a finding of fact, leading to modifying the decree of the Trial Court… without there being an appeal or cross-appeal. To this extent, the findings of the High Court are not tenable.”

The Court held that in the absence of a cross-appeal, the High Court exceeded its jurisdiction by enhancing the relief granted to the plaintiff, especially when the trial court had rejected the claim to 10 acres via oral gift.

“Relationship Must Be Proved Through Direct, Reliable, and Credible Evidence — Not Assumptions”

Plaintiff’s Claim of Being Daughter of Khadijabee and Abdul Basit Not Established

The plaintiff’s claim as the only daughter and heir of Khadijabee and Abdul Basit was also found unproven. Despite the burden, the plaintiff failed to produce any documentary proof — such as birth certificate, school records, or ration card — even though witnesses claimed such documents existed.

The courts below had accepted the testimony of PWs 2 and 3 under Section 50 of the Evidence Act, which allows opinion evidence on family relationships. But the Supreme Court cautioned:

“The Evidence Act teaches us that perception must be tested through discrimination — the triple test of relevancy, admissibility and credibility must be satisfied.”

It held that the witnesses lacked credibility, their testimony was uncorroborated, and the trial court's handwriting comparison under Section 73 (between disputed and unrelated documents) was improper and unreliable.

The Court concluded:

“The findings per se are perverse, and the Plaintiff failed to prove her status as the daughter of Khadijabee.”

“Constructive Notice and Delay Are Fatal to Plaintiff’s Suit”

Suit Barred by Limitation — Plaintiff Slept on Her Rights for Nearly Two Decades

The Court held that the suit, filed in 2013, was barred under Articles 58 and 59 of the Limitation Act, since the sale deeds dated 1995 had stood uncontested for 18 years, and the mutation entries had long stood in the names of the defendants.

It held:

“Negligence in law signifies a failure in the performance of duty — the conduct for over 23 years cannot be appreciated as the conduct of a passive observer.”

Further, the Court clarified that the right to sue for a declaratory title claim first accrued in 1989, 1990, or at the latest, 1995, when the mutation and sales took place, and not in 2013 as claimed.

Importantly, the Court imputed constructive notice against the plaintiff:

“We impute knowledge through constructive notice… and consequently, it cannot be stated that there was a continuing cause of action.”

“Courts Cannot Presume Facts Where Evidence Is Absent”

Reappreciation of Evidence Warranted Due to Perverse Findings and Misapplication of Law

Though Article 136 of the Constitution limits the Supreme Court’s interference with concurrent findings, the Court clarified that where there is perversity, misreading, or assumption without legal foundation, reappreciation is justified.

Quoting Mahesh Dattaray Thirthakar v. State of Maharashtra (2022), the Bench noted:

“This Court may interfere with findings of fact if the High Court has acted perversely, or the appreciation of evidence is vitiated by misreading or manifest illegality.”

Accordingly, the findings of the lower courts on lineage, oral gift, and possession were set aside, and the suit was dismissed in entirety.

Decree of Title Based on Unproven Oral Gift and Vague Lineage Is Legally Unsustainable

The Supreme Court decisively held that:

• The oral gift was never completed, due to absence of possession
• The plaintiff’s status as daughter was unproven
• The High Court acted beyond its jurisdiction
• The suit was barred by limitation, and constructive notice applied

“To keep in line with the sanctity of Hiba, it is in the interest of the donor, donee and third parties that the gift is acted upon publicly, not secretly.”

The impugned judgments were set aside, and the suit OS No. 212 of 2013 was dismissed.

Date of Decision: 7 October 2025