2015 (5) КСCR 217
KARNATAKA HIGH COURT
Smt. Pilla Akkayyamma and Others
Versus
Channappa since dead by LRs and Another
Regular Second Appeal No. 1015 of 2011 (DECANJ),
decided on 22.7.2015
A. TRANSFER OF PROPERTY ACT, 1882-Section 122-Gift- Essential elements of.
Held: The essential elements of a gift under this provision are; (a) the absence of consideration; (b) the donor; (c) the donee, (d) to be voluntary; (e) the subject matter; (f) the transfer, and (g) the acceptance. The essence of the gift is that it is a gratuitous transfer.
B. TRANSFER OF PROPERTY ACT, 1882-Section 123 Gift of immovable property-Can only be effected by a registered instrument signed by or on behalf of donor and attested by at least two witnesses.
C. EVIDENCE ACT, 1872-Section 68-Gift of immovable property-Person executing registered gift deed if not specifically denying its execution-Deed can be received in evidence without examination of attestors.
D. LIMITATION ACT, 1963-Article 65-Suit for possession Plaintiff must establish his title to property-However, he need not prove that he was in possession within 12 years If he fails prove his title, question of adverse possession does not arise- Once he proves his title, burden of proving that he has lost title by reason of adverse possession lies upon defendant.
E. LIMITATION ACT, 1963-Article 65-Adverse possession- Concept of Contemplates hostile possession-Mere possession would not ripen into possessory title-Possessor must have animus possidendi and hold land adverse to title of true owner.
F. LIMITATION ACT, 1963-Article 65-Adverse possession- Plea of Is not a pure question of law but a mixed question of fact and law-Hence, claimant should plead and establish necessary ingredients like: are in what date he came into possession; what was nature of his possession; whether factum of possession was not to other party; how long his undisturbed possession has been continued.
G. ADVERSE POSSESSION-Proof of Showing that some acts of possession had been done-Not sufficient-Claimant must prove adequate possession in continuity, in publicity and extent-In other words, he has to prove actual, visible, exclusive, hostile and continued possession during claim necessary to create a bar under statute of limitation-To put in another way, he has to prove nec vi, nec clam, nec precario and animus possidendi.