Summary
The Supreme Court dismissed a suit claiming land as the daughter, heir and oral donee (hiba) of the deceased owner. It held that the High Court could not enlarge the decree in the plaintiff's favour without an appeal or cross-objection; that the courts below accepted the relationship on Section 50 Evidence Act testimony of interested relatives and a Section 73 signature comparison without testing credibility; that the hiba failed for want of proof of delivery of possession; and that the suit, filed in 2013 against 1995 sale deeds, was time-barred given her constructive notice.
Issues
- Whether the Supreme Court may re-appreciate evidence under Article 136 where the findings below are perverse or based on misreading of evidence.
- Whether the first appellate court could reverse the trial court's finding on the oral gift and enlarge the decree in favour of the plaintiff-respondent who had filed no appeal or cross-objection.
- Whether the plaintiff proved that she was the daughter of the deceased owner, on oral evidence under Section 50 of the Evidence Act and a signature comparison under Section 73.
- Whether a valid oral gift (hiba) of 10 acres, including delivery of possession, was proved.
- Whether the suit for declaration of title and for setting aside the registered sale deeds was barred by limitation.
Provisions considered
- Article 136, Constitution of IndiaThe Court ordinarily does not re-appreciate evidence under Article 136, but may do so where the findings are perverse, rest on misreading of evidence or presumptions, or cause a miscarriage of justice. Finding incorrect appreciation and inconsistent findings below, it rejected the objection to re-appreciation. (¶¶ 14, 15)
- Sections 96 and 100, Code of Civil Procedure, 1908Following Banarsi v. Ram Phal, an appeal lies against a decree, not a mere finding, and an appellate court cannot modify a decree to the advantage of a respondent who has filed no appeal or cross-objection. The High Court enlarged the plaintiff's declaration from 18 acres 21 guntas to the whole property in the defendants' appeal, which was untenable. (¶¶ 18, 19, 21)
- Sections 50 and 60, Indian Evidence Act, 1872Section 50 makes relevant the opinion on a relationship, expressed by conduct, of a person with special means of knowledge. Such opinion is only an intermediate, relevant fact that the court must weigh before forming its own conclusion; general reputation without conduct is not enough, and the conduct must be proved by direct evidence under Section 60. The courts below adopted the testimony of the plaintiff's close relatives without testing credibility. (¶¶ 22, 25, 26, 26.1, 26.2, 27, 29, 31.1, 33)
- Section 73, Indian Evidence Act, 1872Section 73 allows comparison of a disputed signature with one admitted or proved to the court's satisfaction. The power should be used cautiously, as a last resort and not as the sole basis of decision. The trial court erred in comparing a gift memorandum disputed by the defendants with sale deeds disputed by the plaintiff, neither being admitted or proved. (¶¶ 30, 30.1, 30.2, 31, 32)
- Sections 123 and 129, Transfer of Property Act, 1882Section 129 saves rules of Mohammedan law from the requirement in Section 123 of a registered instrument for a gift of immovable property, so an oral hiba needs no writing or registration, but it must satisfy the three essentials of declaration, acceptance and delivery of possession. (¶¶ 36.2, 36.3)
- Section 3 (notice), Transfer of Property Act, 1882A person is deemed to have notice of a fact he would have known but for wilful abstention from enquiry or gross negligence. The plaintiff had repeated occasions to seek mutation and challenge the revenue entries and the registered sale deeds over more than two decades, so knowledge was imputed to her by constructive notice. (¶¶ 44, 45, 46, 48)
- Articles 58 and 59, Limitation Act, 1963Article 58 gives three years for a declaration from when the right to sue first accrues, and Article 59 three years for cancelling an instrument. The cause of action first arose with the 1989 mutation in the donor's name and again with the husband's mutation and the 1995 registered sale deeds; there was no continuing cause of action and the 2013 suit was barred. (¶¶ 41, 42, 43, 46, 47, 48)
Held
- A party need not appeal against a mere finding, but where an appellate court, in the defendants' appeal, reverses a finding so as to substantially enlarge the relief granted to the plaintiff who filed no appeal or cross-objection, it acts without jurisdiction to modify the decree in that manner. (¶¶ 18, 19, 21)
- Under Section 50 of the Evidence Act the court must be satisfied that the relationship opinion is expressed by conduct of a person with special means of knowledge, and must then weigh that opinion for credibility, relevancy, admissibility and competence before reaching its own conclusion. Proof of relationship need not always be documentary, but the testimony of the plaintiff's cousin and brother-in-law, accepted in the abstract while school and ration card records said to exist were withheld, did not establish that she was the owner's daughter. (¶¶ 26, 27, 29, 31.1, 31.2, 32, 33)
- A court comparing signatures under Section 73 should not assume the role of a handwriting expert or base its decision solely on its own comparison, and cannot compare a disputed signature with another document that is itself disputed; using such a comparison to find the plaintiff's parentage was illegal and the reasoning circular. (¶¶ 30.1, 30.2, 31, 31.2)
- A valid hiba requires a clear declaration by the donor, acceptance by the donee and delivery of actual or constructive possession. Writing is not necessary and a memorandum recording a past gift does not change its nature, but possession must be shown by contemporaneous and continuous evidence of acting on the gift, such as mutation or exclusive control. A gift set up after the donor's death is to be scrutinised with great care. (¶¶ 36.1, 36.2, 36.4, 36.5, 37, 38.2, 39)
- The hiba was not proved: after the alleged gift the donor had the entire land mutated in her own name, her husband was later mutated for the whole extent and sold it, the plaintiff never sought mutation as donee or heir, the revenue records consistently showed the defendants and their predecessors in title and possession, the memorandum bore a thumb impression though the donor signed in Urdu elsewhere, and its terms were inconsistent with possession having passed earlier. (¶¶ 38, 39)
- Whether a suit is within limitation is judged from the plaint averments. Where the plaintiff stayed silent for over two decades despite mutations and registered sale deeds adverse to her, she is fixed with constructive notice, there is no continuing cause of action, and a suit for declaration and to set aside the sale deeds under Articles 58 and 59 is time-barred. A registered sale deed is presumed validly executed, and the plaintiff did not rebut that presumption. (¶¶ 41, 42, 44, 45, 46, 47, 48)
Result
Appeal allowed; the judgments of the High Court and the Trial Court set aside and the plaintiff's suit dismissed; pending applications disposed of; no order as to costs.