Karnataka High Court
Sri Anwar Sab vs Sri B E Thukaram on 17 November, 2025
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NC: 2025:KHC:46934
RSA No. 1092 of 2009
HC-KAR R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
REGULAR SECOND APPEAL NO. 1092 OF 2009
(DEC/INJ)
BETWEEN:
1. SRI ANWAR SAB
S/O LATE SRI BASHA SAB,
AGED ABOUT 50 YEARS,
R/AT CHIKKANAGIPALYA VILLAGE,
NEAR K. CHOODAHALLI,
UTTRAHALLI HOBLI,
BENGALURU SOUTH TALUK- 560 062.
2. SRI BABASAB,
SINCE DECEASED BY HIS LR'S
2(A) SRI. SABJAN,
S/O LATE SRI. BABASAB,
Digitally signed by AGED ABOUT 55 YEARS,
ANNAPURNA G
Location: HIGH
COURT OF 2(B) SRI. GHOUSE KHAN
KARNATAKA S/O LATE SRI. BABASAB,
AGED ABOUT 52 YEARS,
2(C) SMT. PYAREMA
D/O LATE BABASAB,
AGED ABOUT 30 YEARS,
2(D) SMT. BEEBEEJAN
D/O LATE BABASAB,
AGED ABOUT 28 YEARS,
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RSA No. 1092 of 2009
HC-KAR
2(E) SMT. MEHABOOBJAN
D/O LATE SRI BABASAB,
AGED ABOUT 26 YEARS,
APPELLANT NO.2(A) TO 2(E) ARE
RESIDING AT GANDHINAGARA,
HAMELT OF KAGGLIPURA,
UTTRAHALLI HOBLI,
BENGALURU SOUTH TALUK - 560 062.
...APPELLANTS
(BY SRI. N. R. NAIK, ADVOCATE)
AND:
1. B.E THUKARAM
S/O LATE K.N YALLAPPA,
AGED ABOUT 77 YEARS
R/A NO.297, 26TH CROSS,
BSK II STAGE,
BENGALURU- 560 050.
SINCE DECEASED BY HIS LR'S.
1(A) SRI. PREETHAM T,
S/O LATE B.E.THUKARAM
AGED ABOUT 57 YEARS
RESIDING AT NO.199,
9TH MAIN, 9TH CROSS,
BEML 3RD STAGE,
RAJARAJESWARINAGAR,
BENGALURU- 560 098.
1(B) MARGARET SUSHIL KUMARI
D/O LATE B.E. THUKARAM
AGED ABOUT 61 YEARS
RESIDING AT NO.2023,
COMFORT FLORS,
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RSA No. 1092 of 2009
HC-KAR
6TH MAIN, 4TH CROSS,
NEAR AYYAPPA
TEMPLE, VIJAYA BANK LAYOUT,
BILEKAHALLI,
BENGALURU- 560 076.
2. SRI.V.PRAKASH
S/O VENKATASWAMAPPA
AGED ABOUT 51 YEARS
RESIDING AT NO.86, 3RD CROSS,
7TH PHASE, RAGHAVENDRA NAGAR,
RBI LAYOUT, J.P NAGAR
BENGALURU- 560 078.
...RESPONDENTS
(BY SRI.A.G.RAVI KUMAR, ADVOCATE FOR R2,
SRI.S.R.KAMALACHARAN, ADVOCATE FOR
SRI.PRADEEP.S.SAWKAR, ADVOCATE FOR R1(A & B))
THIS RSA IS FILED U/S. 100 R/W 0-XLII, R-1 OF CPC,
AGAINST THE JUDGEMENT & DECREE DATED 15.04.2009
PASSED IN R.A.NO.160/2008 ON THE FILE OF THE 1ST
ADDITIONAL DISTRICT JUDGE, BANGALOREA RURAL
DISTRICT, BANGALORE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED
21.06.2008 PASSED IN OS.NO.78/2006 ON THE FILE OF THE
PRL. CIVIL JUDGE (SR.DN.), BANGLAORE RURAL DISTRICT,
BANGALORE.
THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2025:KHC:46934
RSA No. 1092 of 2009
HC-KAR
CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA
ORAL JUDGMENT
The present appeal is directed against the judgment and decree dated 15.04.2009 passed by learned I Addl.District Judge, Bengaluru Rural District, Bengaluru in RA.No.160/2008, (for short 'First Appellate Court'). The said appeal arises from the judgment and decree dated 21.06.2008 passed by the learned Principal Civil Judge (Sr.Dn), Bengaluru Rural District, Bengaluru in OS.No.78/2006(for short 'trial Court'), dismissing the plaintiff's suit for declaration and permanent injunction.
2. The parties are referred to as per their ranking before the trial Court.
3. The brief facts of the case are that, suit property was admittedly belonging to one Smt.Peerambiyamma W/o Syed Khan. She inherited the said property from her father. She alleged to have gifted the said property, in favour of her -5- NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR two sons, by name Basha Sab and Baba Sab - plaintiff No.2, by the registered gift deed dated 25.04.1958. The Basha Sab and Baba Sab came in possession of the said property by virtue of the gift deed. After the death of Basha Sab, his son succeeded to the said property along with Baba Sab. They have paid taxes in respect of the said property. They were also cultivating the land and harvesting the crops from the said land. During the year 2005, revenue authorities refused to enter the name of plaintiffs mutate their names in the revenue records in respect of the suit property. The plaintiffs also noticed the name of defendant in the revenue records i.e. Column No.9 and 12(2) of the RTC. With these reasons, they prayed to declare that they are lawful owners and in possession of the suit property and also consequential relief of injunction restraining the defendant from interfering in their peaceful possession and enjoyment of the property.
4. Defendant No.1 has filed a written statement denying the contention of the plaintiff. According to his contention, Smt. Peerambiyamma, D/o Haji Sab and W/o Syed Khan, had five sons namely Sab Jan Sab, Mastan Sab, -6- NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR Hassan Sab, Basha Sab (father of the plaintiff) and Baba Sab,(plaintiff No.2). The said Basha Sab died about 15 years prior to the filing of the suit. The said Smt. Peerambiyamma had executed a registered sale deed in respect of suit property in favour of Mastan Sab and the said Mastan Sab executed registered sale deed dated 29.05.1961 in favour of defendants and put him in possession of the property. The said Mustan Sab had been in possession of the property till he executed a sale deed in favour of defendant dated 13.08.1992. The said Mustan Sab handed over the possession of the property in favour of defendant. From the date of sale deed, defendant has been in possession and enjoyment of the property. He got mutated revenue records in his name and has been paying the tax. Therefore, plaintiff was never in possession and enjoyment of the property and they were never owners of the said property. Mustan Sab, as well as defendant were in possession of the property for more than 45 years. The suit was filed after 48 years from the date of alleged gift deed. Therefore, it is hopelessly -7- NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR barred by time. With these reasons, the defendant prayed to dismiss the suit.
5. The trial Court framed the following issues:
"(1) Whether the plaintiffs prove their title to the suit schedule property?
(2) Whether the plaintiffs prove their possession of the suit schedule property as on the date of filing the suit?
(3) Whether the defendant proves that he has perfected his title to the suit schedule property by adverse possession?
(4) Whether the defendant proves that the suit is barred by limitation?
(5) Whether the defendant proves that the suit is not valued properly and the court fee paid is insufficient? (6) Whether the plaintiffs are entitled for declaration of title and permanent injunction as prayed for?
(7) To what order or decree?"
6. The trial Court recorded the evidence of both parties to the suit. Plaintiffs have examined three witnesses as PW-1 to PW-3 and marked Exs-P1 to Ex-P10. Defendant was examined as DW-1 and marked Exs-D1 to D21. After hearing the arguments and on appreciating the materials available on record, the trial Court answered the issue Nos.1 -8- NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR and 2, 5 and 6 in the negative, 3 and 4 in the affirmative and by judgment and decree dated 21.06.2008 dismissed the suit.
7. The trial Court held that the plaintiffs were unable to prove that they had accepted the gift and that possession had not been delivered to them under the alleged gift deed dated 25.04.1958. Therefore, the alleged gift was not proved. The trial court also found that the plaintiffs were unable to prove that they were in possession of the property from the year 1961 till 1992 and thereafter. With these findings, the trial Court dismissed the suit.
8. The plaintiff preferred an appeal before the Additional District Court, Bengaluru District in RA.No.160/2008. The first appellate Court heard the arguments of both the parties and while passing the judgment, framed the following points for consideration.
"(1) Whether the plaintiffs prove their title to the suit property?
(2) Whether the plaintiffs prove their possession of the suit property as on the date of the suit?-9-
NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR (3) Whether the plaintiffs prove the interference alleged?
(4) Whether the plaintiffs are entitled for declaration and consequential relief of perpetual injunction prayed for?
(5) Is interference to the findings of the trial Court necessary?
(6) Is interference to the findings of the trial Court necessary?
9. The first appellate court, after re-appreciating of the evidence, answered issue No.1 to issue No.5 in the negative. The First appellate court also concurred with the findings of the trial court and dismissed the appeal confirming the judgment and decree passed by the trial court.
10. Being aggrieved by the same, the plaintiff preferred this appeal.
11. This Court after hearing the appellant by order dated 15.12.2010 admitted this appeal to consider following substantial questions of law:
"(1) Whether it could be said that there was acceptance of the gift deed as required under
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NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR Section 122 of the Transfer of Property Act, 1882 by virtue of the tenor of the document of gift where the donees are parties to the deed and the deed indicates that the possession is delivered under the gift deed?
(2) Whether there was a need for examining the attesting witnesses in such circumstances? and (3) Whether the donor without revoking the gift deed could execute the sale deed under Exhibit D1 in favour of the defendants?"
12. I have heard the arguments of learned counsel appearing for both sides.
13. During the pendency of this appeal plaintiff impleaded respondent No.2, who is alleged to have purchased the property from respondent No.1 under registered sale deed dated 06.08.2008. The said respondent No.2 also represented by an advocate and said advocate has been heard. Undisputedly, Smt. Peerambiyamma was the owner of the property, and her title is not in dispute. The plaintiffs are claiming right, title, and possession over the property under a registered gift deed dated 25.04.1958. It is
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NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR also not in dispute that the plaintiffs are governed by Mohammedan law. Therefore, the alleged gift claimed by the plaintiffs is governed by the provisions of Mohammedan law, i.e., relevant provisions applicable to Mohammedan gift from Chapter XI, Section 138 to 172.
14. Section 138 of Mulla's Mohammedan Law defines the word "Gifts" as under:-
"138. Hiba or gift. A hiba or gift is "a transfer of property, made immediately, and without any exchange," by one person to another, and accepted by or on behalf of the latter."
In the commentary, it is stated by the author that:
"Whether a document is a gift deed or a will, can be gathered from the recitals in the document. Even the title given to it is not conclusive of its true nature. Therefore, the terms, conditions and recitals alone determine the nature of the disposition. They are to be taken as a whole. Where the disposition of the right, title and interest accrues in praesenti it cannot be treated as will because in will the disposition is carried into effect after the death of the maker, When once it is clear from the recital that the ownership has been transferred in praesenti absolute it is a gift and any
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NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR condition imposed on the enjoyment of the property is invalid. The gift must be accepted and completed by such delivery of possession as the nature of the property admits1."
15. Now it is a settled principle of law by catena of the judgments of this Court as well as the Hon'ble Apex Court that a gift executed by the Mohammedan law need not be by a registered document. An oral gift is also permissible. The three essential ingredients of the gift, as stated in Section 138 of the Mohammedan law, has to be complied then only it will be a valid gift.
a. Declaration of the donor of his intention to gift the property;
b. Handing over the possession of the property in favour of donee and c. Acceptance of the gift, by the donee.
16. Therefore, whether a Mohammedan gift was executed through a registered document or not, does not 1 Ibadat Ali v. Baldia co-operative Bank 1968 II A.L.T.124
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NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR make any much difference, to prove it. In this case, a registered document was executed by the donor.
17. The contention of the appellant is that, registered document was executed during the year 1958. Plaintiff No.2 as well as deceased Baba Sab accepted the gift and took possession of the property. That is proved by the plaintiff during the course of the trial. Even plaintiffs have been paying the tax in respect of said property. It also indicates that they have been in possession of the property and they have acted upon the gift executed by Peerambiyamma. There is no proper evidence to rebut the said evidence of plaintiff. Both the courts below erred in not considering the same. Hence, prayed to set aside the said findings.
18. The learned counsel for the appellant contends that, apart from the reference in Ex. P2--the gift deed, stating that possession was handed over, there is no other material to show that possession was taken over by plaintiff No. 2 or by the father of plaintiff No. 1. He further contended that there is no evidence to prove that both the donors had
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NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR accepted the gift. There is no reference in Ex.P2 regarding taking of possession and from the date of the alleged gift up to the filing of the suit, neither the father of plaintiff No. 1 nor plaintiff No. 2 made any attempt to have their names entered in the revenue records. The plaintiffs have produced three receipts; however, two of them do not disclose the survey numbers, and although one receipt mentions the survey number, it does not establish possession of the property. Mustan Sab sold the property to the defendant in the year 1992, and the defendant's name has been reflected in the RTC from 1992 until the filing of the suit, clearly indicating that possession has been with the defendant. After filing the suit, the plaintiffs filed an application before the Revenue Authority in 2008, as stated by PW-7, seeking mutation of records. The defendants obtained an encumbrance certificate from the competent authority and produced it before the trial Court. This document does not contain the name of plaintiff No. 2 or the father of plaintiff No.1. These facts clearly indicate that the plaintiffs were never in possession or enjoyment of the property. After a
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NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR lapse of 48 years, the suit was filed merely to harass the defendant. Both the trial Court and the first appellate Court discussed these facts in detail and arrived at the correct conclusion.
19. Plaintiff examined PW-1, it appears that he was not present at the time of alleged gift. There is no explanation for non-examination of plaintiff No.2, who is said to be present at the time of execution of the deed. Therefore, the declaration of the donor, handing over of the possession and acceptance of the gift by father of plaintiff No.1 and plaintiff No.2 is not proved. Ex-P2 does not disclose the presence of appellants or father of the appellant No.1 at the time of execution of the gift deed or registration of the same. Their signatures also not found in the said document. In addition to that, their names were not at all shown in any of the revenue records from the date of alleged gift till filing of the suit. Mere pleading of the plaintiff or statement made by PW-1 in his evidence are not sufficient to hold that possession was delivered from the date of execution of Ex-P2 i.e gift deed and father of the plaintiff No.1 and plaintiff No.2
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NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR accepted the said gift deed. Even in the pleadings, there is no reference regarding acceptance of the gift by both Basha Sab and Baba Sab. However, it is stated that by virtue of the gift deed, both came into possession of the property. Without any pleading and proof, plaintiffs have been claiming right, title and interest over the property on the basis of alleged gift deed executed by the donor Peerambiyamma.
20. Merely because a gift deed is registered does not mean that all the requirements of law under Section 138 of Mohammedan law have been complied with. The courts below considered these facts and hence the said findings do not call for any interference by this Court.
21. The gift is governed by Mohammedan law. Therefore, under Section 129 of the Transfer of Property Act, the requirement of examining two attesting witnesses is not required. When a Mohammedan can make an oral gift of immovable property, the question of attestation does not arise. Consequently, the non-examination of attesting witnesses may not be fatal to the plaintiff's case.
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22. The alleged gift was executed in the year 1958 and the very donor executed registered sale deed in favour of one of her sons by name Mustan Sab dated 29.05.1961 as per Ex-D1. Both the parties have not produced revenue records from the year 1961 to 1992. Therefore, it is not clear whether there was any entry in the revenue records in respect of the said sale transaction. During the year 1992 i.e. on 13.08.1992, the said Mustan Sab had executed registered sale deed in favour of defendant as per Ex-D2. The said sale deed was not disputed by Mustan Sab. It is pertinent to note that the present suit OS.No.78/2006 was filed on 21.06.2008. Prior to filing of the suit, plaintiffs had obtained RTC of the property, which is marked as Ex-P6. As per the date mentioned in the said document, it was obtained on 05.01.2006. At that point of time, defendant had already purchased the property, which is noted in the Column No.10 and his name was mentioned in the Column No.9 and Column No.12/2. In the plaint, plaintiff has not at all referred to the said deed executed in favour of Mastan
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NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR Sab by donor Peerambiyamma and thereafter Mastan Sab to defendant. The contention of the learned counsel for appellant is that they were unaware about these facts until the written statement was filed by the defendant is not tenable. Therefore, the plaintiffs have not approached the Court with clean hands.
23. As discussed in the above paragraphs, the gift executed by Smt.Peerambiyamma was not complete since plaintiffs were unable to prove the handing over of the possession as well as acceptance of the same by any oral and documentary evidence. When the material requirements itself is not proved, it is as good as the Gift is not proved. Under these circumstances, there is no hurdle for the Peerambiyamma to execute the sale deed in favour of one of her sons, Mustan Sab. By virtue of sale deed he became absolute owner and in possession of the suit property and consequently, there is no hurdle for Mustan Sab to transfer the property in favour of defendant.
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24. The repeated contention of the learned counsel for the appellant is that a "buyer must always be aware" of prior transactions, and in the present case the defendant was not a bona fide purchaser of the property. The same allegation is made against defendant No. 2, who has been impleaded in this case. It is further contended that in Exs.P16 to P19, the names of the plaintiffs were deliberately omitted and that the encumbrance certificate was obtained without including their names. The learned counsel for respondents 1(a) and 1(b) submits that unless the boundaries of the property are properly mentioned, in the document tallies no entry of sale deeds or transfer deeds will be made in the register. According to him, the western boundary shown in the alleged gift deed is incorrect, and therefore there might not be any entry regarding the gift deed in the encumbrance certificate. Whatever the reason may be, the certificate does not disclose the plaintiffs' names as owners of the property, nor does it reflect the alleged gift deed said to have been executed by the donor. Moreover, there is no pleading and evidence that the defendant was not
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NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR a bona fide purchaser for valuable consideration; Therefore, such a contention cannot be considered in second appeal. Moreover, this issue is not one of the substantial questions of law framed by this Court in the present appeal.
25. The learned counsel for appellant relied on the judgment in the case of S.P.R. Developers Pvt. Ltd., vs. Sri.V.N.Balaji and others2 rendered by a Co-ordinate bench of this Court. He also relied on the judgment of the Supreme Court in the case of Dr.S.Kumar & Ors vs. S.Ramalingam3. He further submits that whenever few registered documents were executed in respect of same property by different persons, the earliest document executed must be upheld. The said earliest transfer document would override any subsequent document, and he refers to Section 48 of the Transfer of Property Act. This proposition of law is not applicable to facts of present case. In this case, the appellant had not proved the gift, which is earliest document; it is non-established. The sale deed executed in 2 10.11.2017 in RSA 2088 of 2013 3 CIVIL APPEAL Nos.8628-8629/2009
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NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR favor of Mustan Sab is not cancelled, set aside or declared as invalid. He sold the property in favour of original defendant. In the present case, the plaintiffs did not challenge these documents. It is also pertinent to note that Mustan Sab is not a party to the present suit, and the sale deed executed in his favor by the donor has not been challenged in this suit. The plaintiffs have also not contended that these documents do not bind their rights. Under these circumstances, both the Courts below rightly did not consider these contentions. And there is no error in the said findings.
26. The learned counsel for respondent No.1(a) & ( b) relied on the following judgments:
1. Dalip Singh vs. Bhupinder Kaur4
2. Aftaruddin dead represented through LR's vs. Ramakrishna Datta5
3. Gurdev Kaur and others vs. Kaki and others6
4. Narendra and others vs. Ajabrao S/o Narayan Katare (dead) through legal representatives 7
5. Hafeeza Bibi and others vs. Shaikh Farid (dead) by LR's and others 8 4 (2018) 3 SCC 677 5 (2018) 11 SCC 77 6 (2007) 1 SCC 546 7 (2018) 11 SCC 564
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6. Rasheeda Khatoon (dead) through LR's vs. Ashiq Ali S/o Lieutenant Abu Mohd. (Dead) through legal representatives. 9
7. Hydersab Abdulnabi Maniyar and others vs. Waliahmed Abdulnabi Maniyar and others10
8. Dharamrao Sharanappa Shabadi and others vs. Syeda Arifa Parveen, decided by the Hon'ble Supreme Court of India 11
27. Most of the above said judgments are pertaining to gifts made under Mohammedan law. Out of them, most recent judgment in the case of S.L.P.(C) No.16996/2022 dated 07.10.2025, where in gift executed by a Mohammedan, how it has to be proved etc., are discussed in detail. Certain paragraphs referred by respondent Nos.1(a and b) are most relevant to the facts of the present case. More or less, the facts in both the cases are similar. Therefore, it is applicable to the case in hand. 8 (2011) 5 SCC 654 9 (2014) 10 SCC 459 10 (2009) 1 AIR Kant R 500 11 S.L.P. (C) No.16996 of 2022, on 07.10.2025
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28. For the benefits of the parties, it is necessary to refer the same. The relevant paragraphs are 36.1 to 36.5 and 38.2, 43 and 44.
36.1 There are three essential conditions for an oral gift under Mohammedan Law.
First, a clear manifestation of the wish to give on the part of the donor.
Second, an acceptance of the gift by the donee, which can be either implied or explicit.
Third, taking of possession of the subject-matter of the gift by the donee, either actually or constructively. 36.2 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.
36.3 The distinction that a written deed of gift is not required to be registered if it "recites the factum of a prior gift" but must be registered if the "writing is contemporaneous with the making of the gift" is considered "inappropriate and is not in conformity with the rule of gifts in Mohammedan Law". Section 129 of the Transfer of Property Act, 1882 ('Transfer of Property Act') excludes the rule of Mohammedan Law from the
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NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR purview of Section 123, which requires registration for the gift of immovable property.
36.4 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.
36.5 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. 38.2 Therefore, 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
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NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR 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.
43. It becomes relevant to refer to the timelines in this case to determine if the cause of action is continuing, or, by constructive notice and negligence on the part of the plaintiff, the cause of action is barred by time. There are two claims made by the plaintiff: first, on the oral gift of 10 acres, and second, on the claim that she is the legal heir to the suit property.
44. 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. Negligence in law signifies a failure in the performance of duty.
The law laid down in the aforesaid judgment is applicable to the facts of the present case.
29. The learned counsel for respondent No.2 has supported the impugned judgment. There is no separate
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NC: 2025:KHC:46934 RSA No. 1092 of 2009 HC-KAR pleading on behalf of respondent No.2, as he has impleaded as a party in the present appeal. He has largely supported the arguments advanced by respondent Nos.1(a) and 1(b). He has also relied on the judgment of the Hon'ble Apex Court in Mansoor Sahed (Dead) & Ors. vs. Salima (D) by LRs. & Ors., Civil Appeal No. 4211/2009, dated 19.12.2024. That decision is also regarding the essential requirements that must be proved in order to claim rights over a property through an oral gift, which is already discussed in the above paragraphs. Hence, detail discussion is not required.
30. For the above discussions, the substantial questions of law framed above are answered against appellant.
31. As a result, this court pass the following:
ORDER i. The appeal is dismissed with costs.
ii. he Judgment and decree dated
15.06.2009 passed by the first
appellate court in RA.No.160/2008 and
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RSA No. 1092 of 2009
HC-KAR
judgment and decree dated
21.06.2008 passed by the trial Court in OS.No.78/2012 are confirmed.
In view of the disposal of the appeal, the application pending does not survive for consideration and accordingly, disposed of.
Send back the trial Court record along with a copy of the judgment to the trial Court as well as the first appellate Court.
Sd/-
(UMESH M ADIGA) JUDGE AG List No.: 1 Sl No.: 7