Case: D.N. Joshi (D) Thr. LRs. &amp; Others Vs. D.C. Harris &amp; Another

v. Shaikh Farid (Dead) By LRs. And Others, 2011(2) R.C.R.(Civil) 940 : 2011(3) Recent Apex Judgments (R.A.J.) 163 : (2011) 5 SCC 654 , three essential aspects for a valid gift deed in respect of an immovable property under Muslim Law have been restated in paragraphs 24, 27, 28, 29 and 30 as under:"24. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are; (i) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials makes the gift complete and irrevocable. However, the donor may record the transaction of gift in writing.xxx xxx xxx xxx27. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting a valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan Law.28. In considering what is the Mohammadan Law on the subject of gifts inter vivos, the Privy Council in Mohammad Abdul Ghani stated that when the old and authoritative texts of Mohammadan Law were promulgated there were not in contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of possession of land, and that could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.29. Section 129 of T.P. Act preserves the rule of Mohammadan Law and excludes the applicability of Section 123 of T.P. Act to a gift of an immovable property by a Mohammadan. We find ourselves in express agreement with the statement of law reproduced above from Mulla, Principles of Mahomedan Law (19th Edition), page 120. In other words, it is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts.30. We are unable to concur with the view of the Full Bench of Andhra Pradesh High Court in the case of Tayyaba Begum. We approve the view of the Calcutta High Court in Nasib Ali that a deed of gift executed by a Mohammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence, such writing is not a document of title but is a piece of evidence. We also approve the view of the Gauhati High Court in the case of Mohd Hesabuddin. The judgments to the contrary by Andhra Pradesh High Court, Jammu and Kashmir High Court and Madras High Court do not lay down the correct law."27. As a matter of fact, the appellants-defendants have not questioned the validity of the sale deed in favour of the respondents-plaintiffs. The title in the property having vested in Zamir Ahmad, who, in turn, transferred it to the plaintiff (respondents) by way of a sale deed. It is not open to the appellants-defendants to question the ownership of the respondents-plaintiffs in respect of the suit premises. The factum which impressed the trial court and the first appellate court to hold that the gift deed in favour of Zamir Ahmad was invalid, namely, that donor (Akhtari Begum) did not request the tenant (defendant) to attorn to the donee (plaintiff), is also devoid of substance. For, this court in the case of Ambica Prasad v. Mohd. Alam And Another, 2015(3) R.C.R.(Civil) 85 : 2015(1) R.C.R.(Rent) 544 : 2015(3) Recent Apex Judgments (R.A.J.) 270 : (2015) 13 SCC 13 has enunciated that it is well settled that after the transfer of the landlords right in favour of the transferee, the latter gets all rights and liabilities of the landlord in respect of the subsisting tenancy. Section 109 of the Transfer of Property Act does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him and that attornment is not necessary to confer validity of the transfer of the landlords rights. Strikingly, even in this case, the transferor continued to collect the rent of the suit property from the tenant with the consent of the transferee after the execution of the exchange deed, until the transferee took over the affairs of the suit property. The court held that it will not debar the owner or transferee from filing a suit for eviction against the tenant.28. A priori, we are of the view that the judgment under appeal is a well-considered decision. It has justly relied upon another decision of the High Court (which has been upheld by this Court). That decision is between the same landlord and another tenant in respect of the selfsame gift deed. The gift deed has been held to be valid. It has also been held that the title of the property has been passed on to the respondents. Hence, it would be just and appropriate to follow the same view.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is an admitted position that the second appeal was filed in the High Court of Judicature at Allahabad in 1974 and was admitted by the Registrar of the High Court on 20.05.1974 with further direction to list it for hearing before the court under Order XLI, Rule 11 on 08.07.1974. The second appeal was in fact, taken up for such hearing by the learned Single Judge on 13.03.1980, albeit after the amendment of Section 100 of C.P.C. (vide Act 104 of 1974) which had already come into force on 01.02.1977. Themay be justified in relying on clause (m) of Section 97 (2) of the Act 104 of 1976 which uses the expression "appeal had been admitted" on or before 01.02.1977. In the present case, the order of admitting the second appeal was passed by the Registrar on 20.05.1974.On a conjoint reading of Rule 2 of Order XLII with Rule 11 of Order XLI, it is evident that the court is obliged to formulate substantial question of law on the day of hearing of the appeal (for admission under Rule 11) so that the second appeal can be heard on the question of law so formulated. The latter part of Rule 2 of Order XLII presupposes that the grounds of challenge by the appellants will be circumscribed by the substantial question of law so formulated. At the same time, it gives enough discretion to the High Court to permit the parties to argue any other ground, only with the leave of the court. The purport of Section 100 has already been delineated by this court in several decisions, after the Amendment Act of 1976. Thehave rightly invited our attention to those decisions.It is not necessary to multiply the authorities dealing with the purport of Section 100 of C.P.C. It is well settled that the High Court is obliged to formulate substantial question of law for its determination so that the arguments can proceed on that basis. In the present case, the High Court admitted the second appeal on 7th May, 1980 without formulating any substantial question of law. However, that order is not challenged by the appellants. Admittedly, thehad not even articulated any substantial question of law in the memorandum of appeal filed in 1974. Presumably because, at the relevant time in 1976, there was no requirement to formulate substantial question of law in the memo of appeal. However, that deficiency was sought to be cured by theby taking out a formal application for amendment of the memorandum of appeal and permission to urge the substantial questions of law framed in the amendment application.In other words, in the facts of the present case there has been substantial compliance of Section 100 of C.P.C., as amended. Significantly, the proviso to Section 100 (5) read with the latter part of Rule 2 of Order XLII enables the High Court to reframe the substantial question of law already formulated and even permit any other substantial question of law not formulated, after recording reasons, if it is satisfied that the case involves such question. This discretion has been bestowed on the High Court to ensure full, complete and effectual adjudication of all the matters in issue between the parties and to do complete justice. In our opinion, therefore, in the facts of the present case, there has been compliance of Section 100 of C.P.C. as also Order XLII of C.P.C. It is not open to theto now raise an issue ofof substantial question of law while admitting the appeal, having failed to challenge the order dated 07.05.1980 (admitting the second appeal) and dated 15.07.2006 (allowing theReverting to the second point raised by the appellantsthat the High Court should not have interfered with the finding of facts. This contention also does not commend to us. For, the High Court has analysed the entire issue in correct perspective and justly relied upon another decision of the High Court between theand another tenant in relation to the selfsame gift deed.In our opinion, the above view taken by the High Court is unexceptionable. The two courts below gave undue weightage to the fact that Akhtari Begum had reserved to herself the right to receive rent during her lifetime and that she did not issue attornment in favour of Zamir Ahmad in respect of the suit premises. Besides the reasons recorded by the High Court, in our opinion, on the plain language of the gift deed, it is evident that there is clear intention to handover possession to Zamir Ahmad, which is manifest from the following declaration in the giftAs a matter of fact, thehave not questioned the validity of the sale deed in favour of theThe title in the property having vested in Zamir Ahmad, who, in turn, transferred it to the plaintiff (respondents) by way of a sale deed. It is not open to theto question the ownership of thein respect of the suit premises. The factum which impressed the trial court and the first appellate court to hold that the gift deed in favour of Zamir Ahmad was invalid, namely, that donor (Akhtari Begum) did not request the tenant (defendant) to attorn to the donee (plaintiff), is also devoid of substance. For, this court in the case of Ambica Prasad v. Mohd. Alam And Another, 2015(3) R.C.R.(Civil) 85 : 2015(1) R.C.R.(Rent) 544 : 2015(3) Recent Apex Judgments (R.A.J.) 270 : (2015) 13 SCC 13   has enunciated that it is well settled that after the transfer of the landlords right in favour of the transferee, the latter gets all rights and liabilities of the landlord in respect of the subsisting tenancy. Section 109 of the Transfer of Property Act does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him and that attornment is not necessary to confer validity of the transfer of the landlords rights. Strikingly, even in this case, the transferor continued to collect the rent of the suit property from the tenant with the consent of the transferee after the execution of the exchange deed, until the transferee took over the affairs of the suit property. The court held that it will not debar the owner or transferee from filing a suit for eviction against the tenant.28. A priori, we are of the view that the judgment under appeal is adecision. It has justly relied upon another decision of the High Court (which has been upheld by this Court). That decision is between the same landlord and another tenant in respect of the selfsame gift deed. The gift deed has been held to be valid. It has also been held that the title of the property has been passed on to the respondents. Hence, it would be just and appropriate to follow the same view.