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1933 Supreme(SC) 57
Privy Council At Rangoon
Sir Lancelot Sanderson, Alness , Justice Lords Thankerton, JJ.
Lim Charlie and another -Appellant
Versus
Official Receiver -Resopndent
Appeal No.74 of 1932
Decided On : 21-11-1933
J.E. Lambert, Bramall and Brammall, A.M. Talbot, A.M. Dunne, A. Pennell
A gift of immovable property is invalid without a registered instrument under Section 123 of the Transfer of Property Act, and possession held by the owner's permission does not constitute adverse possession.
Headnote:(A) Transfer of Property Act - Section 123 - Gift of immovable property - Requirement of registered instrument - In the absence of a registered instrument, a gift of immovable property is not valid as it fails to comply with the statutory requirements of Section 123 of the Transfer of Property Act.
(B) Adverse Possession - Permissive possession - Possession of property by the permission of the owner is consistent with the owner's continued title and does not constitute possession in a manner adverse to the owner's title.
Facts of the case:
A suit was brought to recover possession of a house and land alleged to be part of a deceased person's estate. The defendants, claiming to be the heirs of the deceased's secondary wife, asserted that the property had become the property of the secondary wife either by gift during the lifetime of the deceased or by title acquired through adverse possession.
Findings of Court:
The court found that the title was vested in the deceased upon conveyance of the property. There was no registered instrument to support the claim of a gift, meaning the provisions of Section 123 of the Transfer of Property Act were not complied with. Furthermore, the facts indicated that the secondary wife's possession of the property was by the permission of the deceased from the time of acquisition until his death.
Issues: Whether the property formed part of the estate of the deceased or whether it had become the property of the secondary wife by gift or by adverse possession.
Ratio Decidendi: A gift of immovable property must be made by a registered instrument to be legally valid under Section 123 of the Transfer of Property Act. Additionally, possession of property by permission of the title holder does not establish adverse possession, as such possession is not adverse to the continuance of the owner's title.
Result: Appeal dismissed.
Legal Category Hierarchy
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property law
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transfer of property
- gifts
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land law
- adverse possession
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transfer of property
Sir Lancelot Sanderson.-
This is an appeal by the defendants against a decree of the High Court of Judicature at Rangoon in its Appellate Jurisdiction, dated 19th March 1931, reversing the decree of Das, J., pronounced on the Original Side of the High Court, dated 4th September 1930.
The plaintiff was appointed in a civil suit in the High Court Receiver of the house and land which is the subject matter of this suit and which is alleged to be part of the estate of the late Lim Chin Tsong. The suit was brought to recover possession of the said house and land, of which the defendants were in possession. The defendants are the son and daughter of Ma Mya May and claim to be her heirs and legal representatives. The suit was brought against the said Ma Mya May, who died during the pendency of the suit: the above-mentioned son and daughter were then placed on the record as defendants.
The question for determination was whether the property formed part of the estate of Lim Chin Tsong on his death in 1923, or whether it had become the property of Ma Mya May, who claimed to be his "secondary" wife, either (1) by gift during the lifetime of Lim Chin Tsong or (2) by title acquired by adverse possession.
With regard to the first ground, there is no doubt that the title was vested in Lim Chin Tsong, when the property was conveyed to him in December, 1904. Further, there was is no registered instrument in respect of the alleged gift, and the subject matter thereof being immovable property, the provisions of S. 123, T. P. Act, were not complied with.
With respect to the second ground, it is sufficient for their Lordships to say that the facts of the case are quite consistent with the ownership of the property remaining in Lim Chin Tsong and with Ma Mya May being in possession of the property by his permission from the time when he acquired the property until his death. There is no evidence on which it could properly be held that Ma Mya May was possessing the property in a manner adverse to the continuance of the title of Lim Chin Tsong.
Their Lordships agree with the decree of the High Court in its Appellate Jurisdiction, and are of opinion that the appeal must be dismissed with costs. They will humbly advise His Majesty accordingly.
Appeal dismissed.
