Inconsistencies in contemporaneous declaration, acceptance, and delivery of possession invalidate a claim of oral Hiba.

The Appellants (plaintiffs), daughters of Late Shamsher Khan from his second wife, filed a suit for declaration of title, possession, and injunction regarding House No. 41/340 in Raipur.

They alleged that their father, due to strained relations with his son (Respondent/Defendant No. 1) from his first wife, orally gifted (Hiba) the suit property to them on 30.01.1998.

They claimed a 'Memorandum of Oral Gift' was later executed on 07.10.1998 (Ex. P-2).

They further alleged that after their father's death in 1999, the Defendant No. 1 forcibly occupied the first floor on 04.05.2003.

The Defendant No. 1 denied the gift, terming Ex. P-2 a fabricated document, and claimed a share in the property through inheritance under Sunni Muslim Law.

The Trial Court dismissed the suit, leading to this first appeal.

1. Whether the plaintiffs proved the execution of a valid oral gift (Hiba) of the suit property in their favour on 30.01.1998 and the subsequent Memorandum of Oral Gift dated 07.10.1998?

The Court primarily applied the principles of Sunni Mohammedan Law governing Hiba (Gift), specifically Clauses 147, 149, and 150 of Mulla’s Principles of Mahomedan Law, which mandate three essentials: (1) declaration of gift by the donor, (2) acceptance by the donee (express or implied), and (3) delivery of possession.

It relied on Abdul Rahim v. Sk. Abdul Zabar (2009) 6 SCC 160 regarding the necessity of establishing these three pillars even if a document is reduced to writing.

It further applied the "rarest of the rate" evidentiary standards for proving execution of documents under Sections 67 and 68 of the Indian Evidence Act, 1872.

It cited Dharmrao Sharanappa Shabadi v. Syeda Arifa Parveen (2025 SCC OnLine SC 2155) to emphasize that mutation records and tax payments are critical evidence of "exclusive control" and delivery of possession.

The Court found that the plaintiffs failed to prove the three essentials of Hiba.

First, there was no independent evidence of the declaration on 30.01.1998; the sole witness (PW-3) was the plaintiffs' maternal uncle, deemed an "interested witness".

Second, a fatal contradiction existed regarding "acceptance": while the plaint alleged the gift was accepted in January 1998, PW-1 admitted in cross-examination that she and her sister accepted it only on 07.10.1998, whereas the document Ex. P-2 was prepared even earlier, showing a lack of contemporaneous declaration and acceptance.

Third, "delivery of possession" was disproved by the plaintiffs' own documents (Ex. P-4 to P-7), which showed municipal taxes were paid by their mother, Jamila Begum, even after the alleged gift.

Furthermore, Ex. P-2 contained material discrepancies: it described the house as single-storey when it was actually double-storey, and the signatures of witnesses were dated 01.10.1998 while the notarization was 07.10.1998.

The Court concluded that notarization alone does not dispense with the requirement to prove valid execution and attestation.

The Court affirmed that Shamsher Khan remained the owner until his death, and the property is subject to inheritance laws rather than the alleged gift.

The High Court dismissed the appeal, upheld the Trial Court’s judgment, and ordered the parties to bear their own costs.