The Delhi High Court has held that a caretaker or person permitted to occupy a property does not acquire any ownership right merely because the possession continues for several decades. Justice Neena Bansal Krishna also held that an alleged oral gift of immovable property governed by Section 123 of the Transfer of Property Act, 1882 cannot confer title in the absence of a registered instrument. The Court dismissed an appeal challenging a decree for possession of a Shahdara property.
The Court further rejected the appellant’s plea of adverse possession, finding that her occupation was permissive from the beginning and that she had neither pleaded nor proved when it allegedly became hostile to the owner.
Background
The appeal arose from a civil suit filed by Rajinder Kaur seeking possession of property at Moti Ram Marg, Shahdara, Delhi, along with damages and mesne profits.
According to the plaintiff, she had acquired rights in the property through a Receipt, General Power of Attorney and Agreement to Sell dated July 18, 1988. The defendant’s husband, Anirudh Shah, initially worked with the plaintiff as domestic help, and the defendant later also assisted the family in domestic work.
When the plaintiff went to Canada to stay with her son after her husband’s death, the defendant and her husband were permitted to stay in the property without rent on the understanding that they would look after it and return possession whenever required. The plaintiff asserted that this arrangement was temporary and created no right, title or interest in their favour.
In January 2018, the plaintiff returned to India and asked the defendant to vacate the property as she intended to reconstruct it. After the defendant declined, a legal notice dated February 21, 2018 was issued, followed by the suit for possession.
The District Judge decreed the suit on July 9, 2024 and awarded ₹1 lakh as damages/mesne profits with future interest at 6% per annum until possession was handed over.
Defendant Claimed Property Was Orally Gifted
The defendant contended that around 35 years earlier, the plaintiff and her husband had orally gifted the property to her and her husband out of love and affection because of the care and assistance rendered by them.
She claimed that her husband had saved members of the plaintiff’s family during the 1984 Sikh riots and that this formed part of the circumstances in which the alleged gift was made. She also disputed the plaintiff’s title and relied upon the Supreme Court’s decision in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana to argue that the GPA, Agreement to Sell and Receipt did not confer ownership.
In appeal, she additionally argued that her family had remained in open and uninterrupted possession of the property for about four decades and had acquired title by adverse possession.
Plaintiff’s Stand
The plaintiff argued that the defendant herself had based her ownership claim upon an alleged gift from the plaintiff and her husband and was therefore required to establish that gift.
It was pointed out that the defendant had admitted during cross-examination that she had no documentary proof of ownership, that no written gift document existed and that the property continued to stand in the plaintiff’s name.
The plaintiff also relied on Section 123 of the Transfer of Property Act to contend that an oral gift could not create any right, title or interest in immovable property.
Defendant Could Not Dispute Plaintiff’s Rights While Claiming Title Through Her
The High Court noted that the defendant’s own case was that the plaintiff and her husband had gifted the property to her family.
The Court said this very defence proceeded on the premise that the plaintiff and her husband possessed ownership rights capable of being transferred. Therefore, after claiming her own title through an alleged transfer from the plaintiff, the defendant could not simultaneously argue that the documents through which the plaintiff traced her rights were entirely without legal effect.
The Court clarified that the decision in Suraj Lamp did not make an Agreement to Sell, GPA or Receipt void or devoid of all evidentiary significance. Such documents could not substitute for a registered conveyance to confer absolute ownership, but could still be considered while determining the origin and comparative rights asserted by the parties.
The Court found that these documents, read with the electricity, municipal and water records and the defendant’s own claim tracing her rights through the plaintiff, established a better right in favour of the plaintiff.
Oral Gift Claim Rejected
The High Court noted that the defendant admitted in cross-examination:
“There is no documentary proof in my possession to claim that I am the owner of the suit property.”
She also admitted that no written document or gift deed had been executed and that the property remained in the plaintiff’s name. The Court found that the alleged gift, said to have taken place more than three decades earlier, was unsupported by any contemporaneous document.
The Court further noted that none of the witnesses examined by the defendant had personal knowledge of when or how the alleged gift had been made. No specific date of the gift was pleaded or proved, nor was there any record showing transfer of the property in favour of the defendant or her husband.
Referring to Section 123 of the Transfer of Property Act, the Court held that a gift of immovable property must be effected through a registered instrument signed by or on behalf of the donor and attested by at least two witnesses.
Relying on Gomtibai v. Mattulal and R.N. Dawar v. Ganga Ram Saran Dhama, the Court reiterated that an oral gift of immovable property cannot transfer title where Section 123 applies.
Long Possession of Caretaker Does Not Create Ownership
The Court then considered whether the defendant’s occupation of the property for several decades could independently create proprietary rights.
It found that the defendant and her husband had entered the property because of their association with and assistance to the plaintiff’s family. Their occupation was therefore permissive and they continued in possession as caretakers, not under any independent source of title.
Relying on the Supreme Court’s decision in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, the High Court noted that a person permitted to stay in a property gratuitously or as a caretaker does not acquire any right merely because such occupation continues for years or decades.
The Supreme Court principles quoted in the judgment included:
“A caretaker, watchman or servant can never acquire interest in the property, irrespective of his long possession, and is required to give possession forthwith on demand.”
The High Court accordingly held that the defendant’s prolonged occupation could not transform originally permissive possession into an independent proprietary right.
Adverse Possession Plea Also Fails
The defendant had not pleaded adverse possession in her written statement and raised it only during final arguments before the Trial Court.
The High Court said a claim of adverse possession requires proof that the possession was peaceful, open and continuous, and hostile to the true owner throughout the statutory period.
The Court referred to Karnataka Board of Wakf v. Government of India, Konda Lakshmana Bapuji v. Government of A.P., Ravinder Kaur Grewal v. Manjit Kaur and the Supreme Court’s 2026 decision in Bhag Singh v. Basant Kaur on the requirements of hostile possession.
It found no pleading or evidence showing when the defendant’s permissive occupation became hostile to the plaintiff.
The Court observed that mere continuation in possession, even for a considerable period, could not change its legal character.
It also relied on Narasamma v. A. Krishnappa to hold that a person cannot simultaneously claim title from a particular date and adverse possession from that very date. Since the defendant claimed ownership through an oral gift from the plaintiff, she was required to separately plead and prove any subsequent point when her possession became hostile, which she failed to do.
The Court consequently held that none of the essential ingredients of adverse possession had been established.
₹1 Lakh Damages Given Up by Plaintiff
The Trial Court had awarded ₹1 lakh as lump-sum damages/mesne profits, though no evidence had been produced regarding the prevailing rental value of the property.
During the appeal, however, the plaintiff informed the High Court that she was not interested in recovering the damages/mesne profits awarded under the decree and gave up the monetary relief.
Appeal Dismissed
The High Court noted that possession of the property had already been delivered to the plaintiff on November 26, 2024 in execution proceedings.
Finding no merit in the appeal, the Court dismissed it. The plaintiff’s right to recover ₹1 lakh towards damages/mesne profits and interest stood given up in view of her statement before the Court.
Case Details
Case Title: Smt. Chandrawati Shah v. Smt. Rajinder Kaur
Case No.: RFA 453/2025
Bench: Justice Neena Bansal Krishna
Date: September 22, 2026
