[2017) 7 S.C.R. 326

D. N. JOSHI (D) THR. LRS. & OTHERS

D. C. HARRIS & ANOTHER

(Civil Appeal No. 6139 of 2009)

JULY 03, 2017

(R. BANUMATHI AND A. M. KHANWILKA~, JJ,)

Rent control and eviction - Predecessor in title of respondent purchased the suit premises from a person who was gifted the C premises by the original owner - Suit premises occupied by tenant indu, eted by original owner - Suit for. eviction by respondent - Defendant-tenant" denied the title of respondent on the ground that purchase of property by respondent was not based on valid gift deed as gift deed was not accompanied by giving possession of suit property to the donee and that donee did not have valid title of D ownership which he could transfer to the respondent - Held: Since

defendant-tenant was in possession of suit premises, as such it was not possible for the donor to handover physical possession of suit premises to the donee - Therefore. constructive possession of suit premises by donor was handed over to donee - Neither the validity E of sale deed nor mutation entry in favour of respondent was

 challenged by the tenant - The same gift deed was challenged by another tenant and the court had upheld the validity of gift deed and also held that title of property had passed on to the respondents - The said order was not challenged - Therefore, it is just and appropriate to follow the same view - Respondent entitled F to decree of eviction.

Code of Civil Procedure, 1908 - s.100 - Scope of - Second appeal - Substantial question of law - Second appeal in question was filed prior to coming into force of the C.P. C. Amendment Act,

1976 - Second appeal admitted by the Registrar of High Court on G 20.5.1974 and was directed to be placed before the court for hearing under Or.XL/, r. I I - Single Judge of the High Court passed an order of admission on 7.5.1980, after the Amendment Act came into force - But, before the appeal was taken upfor final hearing, respondents-plaintiffs moved an application for amendment of the H appeal memo whereby the substantial qu.e.rions of law were

' 326

,·· .· ..

formulated - Single Judge allowed that applicalion on 15. 7.2006 - A That order was not challenged by appellants-defendants and, therefore, attained finality - Contention of appellants-defendants that the appeal could not have been admitted without formulating substantial question of law - Held: Not sustainable - At the relevant time in 1976, there was no requirement to formulate substantial B question of law in the memo of appeal - However, that deficiency was sought to be cured by the respondents-plaintiffs by 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 - After hearing both the parties, the court, in fact, formulated the substantial question of law and C answered the same in the impugned judgment - In that sense, it is not a case of deciding the second appeal sans substantial question of law - Jn the facts of the instant case, there was compliance of s. l 00 as also Or.XLIJ - It is not open to the appellants-defendants to now raise an issue of non{ormulation of substantial question of law while admitting the appeal, having failed to challenge the order D dated 7.5.1980 (admitting the second appeal) and dated 15. 7.2006

(allowing the respondents-plaintiffs to amend the memorandum of second appeal with an observation that the court will formulate the substantial question of law at the time of hearing of the appeal).

Dismissing the appeal, the Court E

HELD: 1. In the instant case, the order of admitting the second appeal was passed by the Registrar on 20.05.1974. That order, however, was passed by the Registrar in exercise of delegated powers unde, r the High Court Rules and is not ascribable to an order passed under Order XLI, Rule 11 of C.P.C.

F Sub-rule (1) of Rule 11 envisages fixing a day for hearing when . the appellants or his pleader will be heard. Further, it is an enabling provision entitling the court to dismiss the appeal. Rule llA postulates that every appeal shall be heard under Rule 11 preferably within sixty days from the date on which the G memorandum of appeal is filed. Rule 12 provides that if the appeal is not dismissed after hearing under Rule 11, the court must fix a day for hearing the appeal. Neither Rule 11, tlA nor 12 prescribe that the court shall formulate substantial question of law before fixing a day for hearing the appeal. That duty of the court is spelt H

A out from Order XLII dealing with appeals from Appellate Decrees.

A conjoint reading of Rule 2 of Order XLII with Rule 11 of Order XLI shows that the court is obliged o 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 B question of law so formulated. The latter part of Rule 2 of Order XLll 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. It is well settled that the High Court C is obliged to formulate substantial question of law for its determination so that the arguments can proceed on that basis.

In this case, the High Court admitted the second appeal on 7th May, 1980 without formulating any substantial question of law.

However, that order was not challenged by the appellants.

0 Admittedly, the respondents-plaintiffs did not even articulate 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 the respondents-plaintiffs by taking out a formal E application for amendment of the memorandum of appeal and permission to urge the substantial questions of law framed in the amendment application. This application was allowed by the court by order dated 15.07.2006. The appellants-defendants neither challenged this order nor insisted before the High Court to

F formulate substantial questions of law before notifying the second appeal for hearing. When the second appeal was ready and taken up for hearing, the High Court, at the outset, indicated the scope of second appeal and the substantial question of law which it intended to examine in the judgment to be delivered by it. The High Court then proceeded to examine that question of law which G it thought was involved in the second appeal and was similar to the substantial question of law formulated by the appellantsdefendants in the amendment application. In other words, in the facts of this case there was 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 H

High Court to reframe the substantial question of law already A 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 was 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 B justice. Therefore, in the facts of this case, there was compliance of Section 100 of C.P.C. as also Order XLII of C.P.C. [Paras 18, 20, 22 and 23)[337-B, F-G; 338-D-E; 339-E-G; 340-G-H; 341-A,

B-DI

2. The two courts below gave undue weightage to the fact that 'AB' had reserved to herself the right to receive rent during C her lifetime and that she did not issue attornment in favour of 'ZA' in respect of the suit premises. Besides the reasons recorded by the High Court, on the plain language of the gift deed, it is evident that there is cte:ir intention to handover possession to 'ZA', which is manifest from the following D declaration in the gift deed. Admittedly, the tenant was in possession of the suit premises. As such, it was not possible to handover physical possession of the suit premises to 'ZA'. Hence, constructive possession of the suit premises by the donor, 'AB' was handed over to the do nee, 'ZA! upon execution of the stated gift deed. Notably, the defendant-tenant continued to offer rent E to 'ZA' until 1962-63 and 1963-64, even after the demise of 'AB' in 1954. Further, the mutation w; is recorded with the Municipal Board in the name of the plaintiff, in place of 'ZA' in the year 1965-66. The plaintiff has been recorded as owner in respect of the suit property, after execution of the sale deed on 13.10.1965.

F Neither the validity of the sale deed nor of the mutation entry in favour of the respondents-plaintiffs has been challenged by the defendant-tenant. Furthermore, the validity of the gift deed was the subject matter before the High Court and was answered in favour of the respondents. That judgment has been upheld by Supreme Court. As a matter of fact, the appellants-defendants G did not question the validity of the sale deed in favour of the responden!s-plaintiffs. The title in the property having vested in 'ZA', 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 H

A 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 'ZA' was Invalid, namely, that donor ('AB') did not request the tenant (defendant) to attorn to the donee (plaintiff), Is also devoid of substance. The transferor continued to collect the rent of the B 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. It will not debar the owner or transferee from filing a suit for eviction against the tenant.

The judgment under appeal is a well-considered decision. It justly relied upon another decision of the High Court (which was upheld C by this Court). That decision was between the same landlord and another tenant in respect of the selfsame gift deed. The gift deed was held to be valid. It was also 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. Resultantly, the decree of eviction passed by the High Court against the appellants D (tenants) is upheld. [Paras 25, 27 and 281 (343-G-H; 344-B-E;

346-D-G; 347-A-BJ

Kanai Lal Garari And Others v. Murari Ganguly And Others (1999) 6 SCC 35; Narayanan Rajendran And Another v. Lekshmy Sarojini And Others (2009) 5 SCC

264 : [20091 2 SCR 71; Biswanath Ghosh (Dead) by Legal Representatives And Others v. Gobinda Ghosh Alias Gobindha Chandra Ghosh And Others (2014) 11

SCC 605 : [20141 3 SCR 1097; Ashok Rangnath Magar

v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763; Syeda Rahimunnisa v. Malan Bi (Dead) By Legal Representatives And Another (2016) 10 SCC 315 :

[2016) 6 SCR 512; Hafeeza Bibi And Others v. Shaikh Farid (Dead) By LRs. And Others (2011) 5 SCC 654 :

[2011) 5 SCR 1155 - relied on.

Case Law Reference

(1999) 6 sec 35 relied on Para 16

[2009) 2 SCR 71 relied on Para 16

[2014) 3 SCR 1097 relied on Para 16

c2015) 16 sec 763 relied on Para 16

[20161 6 SCR 512

[2011) 5 SCR 1155

relied on

relied on

Para 16

Para 26

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6139 of 2009.

From the Judgment and Order dated 19.08.2006 of the High Court B ofUttaranchal at Nainital in Second Appeal No. 1269 of2001 (Old No. 1139ofl974).

Shrish Kumar Misra, Ayush Negi, Advs. for the Appellants.

E. C. Agrawala, Ms. Lalita Kohli, Abhinav Agrawal, Ms. Lalita Kohli (For Mis. Manoj Swarup & Co.), Advs. for the Respondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. l. This appeal challenges the final judgment and order dated 19.08.2006 passed by the High Court of UttarakhandatNainital in SecondAppeal No.1269 of2001 (OldNo.1139 D of 197 4). By the said decision, the second appeal filed by the respondentsplaintiffs was allowed and their suit for eviction has been decreed.

2. The predecessor in title of the respondents-plaintiffs had filed a suit bearing Suit No.52 of 1966 before the Munsif Court, Nainital in respect of the House Property No.51, Mohalla Sakahawat Ganj, Haldwani, consisting of 6 rooms with toilet, one kitchen and two E verandahs. The predecessor in title of the respondents had purchased the said house from one Zamir Ahmad. The predecessor in title of the appellants (defendant) was inducted as a tenant in the said premises during the life time of the previous owner, Akhtari Begum, who died in 1954.

3. According to the respondents, the suit property was gifted by Akhtari Begum to her brother Zamir Ahmad (for short "the donee") by way ofa gift deed dated 31.05.1949. In the said gift deed, the donor has clearly stated that:

" ......... and I (donor) agree that Taheer Ahmad (donee) has G acquired title and possession like me and all rights of ownership as I had shall vest in him"

4. After purchasing the suit property from Zamir Ahmad by way of a sale deed dated l O'h October, 1965, the respondents' predecessor in H

A title demanded rent for the suit premises from the defendant (predecessor in title of the appellants). Since the defendant denied the title of the plaintiff, suit for eviction as also for arrears of rent and damages was filed by the plaintiff against the defendant. '

5. The said suit was dismissed by the Muns if Court, Nainital vi de its judgment dated 26. 09 .1969. The trial court held that the gift deed was not valid as it was not accompanied by giving possession of the suit property to the donee and that the donee (Zamir Ahmad) did not have a valid title of ownership which he could transfer to the plaintiff. On this finding, the trial court opined that no relationship oflandlord and tenant existed between the parties.

6. The judgment of the trial court came to be affirmed in appeal being Civil Appeal No.59 of 1969, by the District Judge of Kumaon, Nainital. The District Judge also held that the gift deed was invalid as delivery of possession by the donor (Akhtari Begum) to donee (Zamir Ahmad) had not been proved.

7. The respondents filed a second appeal before the High Court of Judicature at Allahabad in 197 4, under the unamended Section 100 of the Code of Civil Procedure (for short "C.P.C."). Since there was no requirement to frame substantial question of law, the appeal was filed raising only grounds of challenge as enumerated under the unamended E section. After filing of the second appeal bearing No.1139of1974, the Registrar of the Allahabad High Court passed an order on 20.05.1974, to the following effect:-

~'Presented today.

Admit and register.

F Lay before Court on 8.7.74 for hearing u!o LXI Rule 11 CPC

Sd!- Registra;

20.5.1974"

8. Thereafter, the said appeal was not listed for hearing for about 6 years. On 13.03.1980, the appeal was listed for hearing under Order G LXI, Rule 11. It was summarily dismissed for default with the observation that no question of law, much less substantial question of law, was involved. By this time, the C.P.C. was amended in the year 1976 whereby substantial question of law was required to be formulated in the memo of second appeal and by the High Court whilst admitting such appeal.

D. N. JOSHI (D) THR. LRS. v. D. C. HARRIS

[A. M. KHANWILKAR, J.] 333

9. As the second appeal was dismissed for default, the respondents A moved an application for restoration of the appeal. The said appeal was restored on 71h May, 1980, after. recalling the earlier order. That order reads thus:

"Heard learned counsel for the appellants. I recall my order dated 13.03.1980."

l 0. Thereafter, the learned Single Judge by a separate order admitted the second appeal on the same day, with one word, "Admit".

After establishment of the High Court of Uttarakhand at Nainital, the second appeal stood transferred to that High Court and was assigned a new number being Second Appeal No. 1269 of200l.

11. Under the amended Section 100 ofC.P.C., substantial questions of law were required to be framed. Therefore, an application for amendment of the second appeal was filed before the Hi~ Court of Uttarakhand by the respondents (appellants in the said appeal) for adding substantial questions oflaw.

12. The said application was opposed by the appellants. But, after hearing both the parties, the High Court allowed the application for amendment and observed that the court would frame questions of law at the time of hearing of the appeal. The said order dated l S'h July, 2006, reads thus: ,

"15.07.2006 Sri S.P Dubey Learned Counsel for the appellant has submitted an Amendment Application before this Court and the copy of the said application has been served to Sri Arvind

Vashisht learned Counsel for the respondents(s).

F It has been alleged that the substantial question of law as shown in para 2 of the Amendment Application may be added in the Memo of Appeal.

Sri Vashist learned Counsel for the respondent objected that the questions mentioned in the Amendment application do G not arise in the present appeal. No substantial question of law has been framed by this Court.

The Court will have to frame the question afresh at the time of hearing. This point will be considered at the time of framing of substantial question of law.

Amendment application is allowed. Let the amendment be incorporated within a week.

List this case on 05.08.2006 for orders."

This order has not been challenged by the appellants.

13. At the stage of hearing of the appeal, the Learned Single Judge of the High Court, being conscious of the earlier order dated l S'h July, 2006, in the impugned judgment, has noted thus:

"9. Section 100 of Code of Civil Procedure, 1908, was amended vide Act No. 104 of 1976 w.e.f 01.02.1977 whereafter it became necessary to formulate the substantial question of law at the time of admitting the Second Appeal.

Since the Second Appeal was presented before Allahabad High Court on 20.05.1974 and admitted there, as such at that point of time it was not necessary to formulate substantial question of law that is why it appears that in this appeal no substantial question of law was formulated. However, following question of law is involved in this appeal, which requires to be answered:- Whether both the Courts below erred in law in holding that Hiba (gift) by Akhtari Begum in favour of Zamir Ahmad was not valid for want of delivery of possession with the same, if so, its effect?"

14. The High Court ofUttarakhand, by its impugned judgment and decree, allowed the appeal filed by the respondents herein by holding that the gift deed dated 31.05.1949 was valid and was accompanied by possession. The High Court also referred to the judgment dated 15.02.1978 passed by the High Court ofJudicature at Allahabad in relation to a dispute between the respondents herein and another tenant, in which the High Court found the selfsame gift deed dated 31.05.1949 as valid.

Significantly, the said decision was challenged before this Court. That petition for special leave was dismissed on 24.04.1978.

15. Aggrieved, the appellants-defendants have challenged the impugned judgment, whereby the suit was decreed in favour of the respondents-plaintiffs and ordering eviction of the appellants-defendants from the suit premises with consequential directions.

16. The principal argument of the appellants-defendants is that: H the High Court has exceeded its jurisdiction, firstly, by deciding the second

D. N. JOSHI (D) THR. LRS. v. D. C. HARRIS

[A. M. KHANWILKAR, J.] 335

appeal filed by the respondents-plaintiffs which was admitted without A formulating the substantial question of law and secondly, because the High Court has re-appreciated the evidence to overturn the concurrent findings of facts on merit as recorded by two courts below. As regards the first point, reliance has been placed on the decisions of this court in Kanai Lal Garari And Others Versus Murari Ganguly And Others', B Narayanan Rajendran And Another Versus Lekshmy Sarojini And Others2, Biswanath Ghosh (Dead) by Legal. Representatives And Others Versus Gobinda Ghosh Alias Gobindha Chandra Ghosh And Others3, Ashok Rangnath Magar Versus Shrikant Govindrao Sangvikar' and Syeda Rahimunnisa Versus Malan Bi (Dead) By Legal Representatives And Another. Reliance is also placed on Section C 97 of the Code of Civil Procedure Amendment Act 104 of 1976, in particular, clause (m) of sub-section (2) thereof. This is repeal and saving clause. Sub-section (2) opens with a non-obstante clause. The said provision including clause (m) thereof, reads thus:

" 97. (1) xxx xxx xxx

(2) Notwithstanding that the provisions of this Act have come into force or the repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897,-

(a) to (I) xxx xxx xxx xxx

(m) the provisions of section 100 of the principal Act, as substituted by section 37 of this Act, shall not apply to or affect any appeal from an appellate decree or order which had been admitted, before the commencement of the said section 37, after hearing under rule 11 of Order XLJ; and F every such admitted appeal shall be dealt with as if the said section 37 had not come into force;

(n) xxx xxx xxx xxx"

Reliance is also placed OIJ. the provisions of Order XLI, Rule 11 G and Order XLII, Rule 1 and 2 of the C.P.C. to contend that the High Court has acted without jurisdiction to admit the second appeal without

1 (1999) 6 sec 35 ' (2009J 5 sec 264 ' (2014) 11 sec 605 • (2015) 16 sec 763 ' c2016) 10 sec 315 H

A formulating substantial question of law and also because it unjustly interfered with concurrent findings of facts.

17. The respondents-plaintiffs, on the other hand, contend that the second appeal in question was filed prior to coming into force of the C.P.C. Amendment Act, 1976. It was admitted by the Registrar of the B High Court on 20.05.1974 and was directed to be placed before the court for hearing under Order XLI, Rule 11. It is submitted that an order of admission was passed by the learned Single Judge of the High Court on 07.05.1980, after the Amendment Act came into force. But, before the appeal was taken up for final hearing, the respondents-plaintiffs moved c an application for amendment of the appeal memo whereby the substantial questions of law were formulated. The learned Single Judge allowed that application on 15.07.2006. That order has been allowed to attain finality by the appellants-defendants. Thus, the ground now urged by the appellants-defendants, that the appeal could not have been admitted without formulating substantial question oflaw, is unavailable. Moreso D because, after hearing both the parties, the court, in fact, formulated the substantial question of law and has answered the same in the impugned judgment delivered on 19.08.2006. In that sense, it is not a case of deciding the second appeal sans substantial question of law. With regard to the second contention pertaining to the finding on merits, it is the case of the respondents-plaintiffs that the High Court has merely corrected the E manifest error committed by both the trial court and the appellate court in interpreting the efficacy of the subject gift deed and of misapplication of the legal position in that regard. It is submitted that the High Court acted well within its jurisdiction in following the decision of the High

F Court of Judicature at Allahabad rendered in another proceeding between the respondents-plaintiffs and another tenant so as to conclude that the subject gift deed was valid and that the predecessor in title of the respondents had become owner of the suit property and was entitled to seek a decree of eviction against the appellants-defendants

18. The moot question is: whether the judgment under appeal G rendered by the High Court should be treated as nullity and non est, as contended by the appellants? 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 H

D. N. JOSHI (D) THR. LRS. v. D. C. HARRIS

[A. M. KHANWILKAR, J.] 337

such hearing by the learned Single Judge on 13.03.1980, albeit after the A amendment of Section 100 ofC.P.C. (videAct 104of1974) which had already come into force on 01.02.1977. The appellants-defendants may 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 B appeal was passed by the Registrar on 20 .05 .197 4. That order, however, has been passed by the Registrar in exercise of delegated powers under the High Court Rules and is not ascribable to an order passed under Order XLI, Rule 11 of C.P.C., which reads thus:

"11. Power to dismiss appeal without sending notice to Lower C Court- (1) The Appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal.

(2) if on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing; the Court may make an order D that the appeal be dismissed.

(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.

(4) Where an Appellate Court, not being the High Court, E dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment. "

Sub-rule (I) of Rule 11 envisages fixing a day for hearing when the appellants or his pleader will be heard. Further, it is an enabling F provision entitling the court to dismiss the appeal. Rule 1 lA postulates that every appeal shall be heard under Rule 11 preferably within sixty days from the date on which the memorandum of appeal is filed. Rule 12 provides that if the appeal is not dismissed after hearing under Rule 11, the court must fix a day for hearing the appeal. Neither Rule 11, 11 A nor 12 prescribe that the court shall formulate substantial question of G law before fixing a day for hearing the appeal. That duty of the court is spelt out from Order XLII dealing with appeals from Appellate Decrees.

19. We may now usefully refer to the provisions of Order XLII of C.P.C., which applies to the case on hand. It contains three Rules. The same read thus: H

A "1. Procedure-The rules of Order XL/ shall apply, so far as may be, to appeals from appellate decrees.

2. Power of Court to direct that the appeal be heard 011 the questio11 formulated by it.- At the time of making an order under rule 11 of Order XL/ for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.

3. Applicatio11 of rule 14 of Order XLI-Reference in subrule (4) of rule 14 of Order XL/ to the Court to first instance shall, in the case of an appeal from an appellate decree or order, be construed as a reference to the Court to which the appeal was preferred from the original decree or order. "

20. 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 oflaw 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 E 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

F the Amendment Act of 1976. The appellants-defendants have rightly invited our attention to those decisions.

21. In the case of Kanai Lal Garari (supra), the court found that the High Court, while exercising its jurisdiction under Section l 00 of C.P.C., had failed to formulate substantial question oflaw, which it was obliged to do at the beginning of the hearing itself. In the case of G Naraya11an Rajendran (supra), the court noticed that the High Court, in exercise of jurisdiction under Section l 00 ofC.P.C., had set aside the concurrent finding of facts and that too, without formulating any substantial question of law for its determination. After adverting to the earlier decisions of this court, it was held that the High Court must consider

H the second appeal afresh after formulating the substantial question of law and thus relegated the parties before the High Court. In the case of

[A. M. KHANWILKAR, J.] 339

Biswanath Ghosh (supra), it has been noted that the High Court had A formulated the substantial question oflaw and considered the same while allowing the appeal. The court restated the settled legal position that the jurisdiction of the High Court to entertain a second appeal is confined only to such appeal which involves a substantial question of law. The High Court must first formulate the substantial question of law at the B . time of admission of the appeal. It is the duty cast upon the High Court to formulate substantial question oflaw before hearing the appeal, failing which the judgment will vitiate. Reverting to the next decision in the case of Ashok Rangnath Magar (supra), the court has found as of fact, that the High Court, without formulating substantial question of law, heard the appeals and reversed the judgment and decree passed by C the trial court. In the case of Syeda Rahimunnisa (supra), the court found that the High Court committed error in adjudicating questions which did not arise for consideration in the facts of that case; and further had reversed the concurrent finding of facts. In paragraph 28, the court opined that the questions formulated by the High Court did not satisfy the test D of"substantial questions oflaw" within the meaning of Section 100 of C.P.C., whereas, the questions decided by the High Court were essentially questions of fact.

22. lt 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 oflaw for its determination so E that the arguments can proceed on that basis. In the present case, the High Court admitted the second appeal on 71h May, 1980 without formulating any substantial question of law. However, that order is not challenged by the appellants. Admittedly, the respondents-plaintiffs had not even articulated any substantial question oflaw in the memorandum F of appeal filed in 1974. Presumably because, at the relevant time in 1976, there was no requirement to formulate substantial question oflaw in the memo of appeal. However, that deficiency was sought to be cured by the respondents-plaintiffs by 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. The G respondents-plaintiffs sought leave of the Court to urge the following substantial questions oflaw:

" "14-A " Whether the defendant/respondent having denied the title of the land lord appellant have incurred the liability of being evicted on this score alone.

A "14-B" Whether there existed a relationship of landlord and tenant in between Zamir Ahmad the predecessor in interest of the appellants and the respondents.

"14-C" Whether the Court below erred in holding the actual transfer of possession of the property was not effected in B accordance with the Mohmmadan law and wrongly held that the transfer of possession was necessary for a gift and overlooked the provision of Mohammad Law that no such transfer was necessary.

"14-D" Whether the Court below failed to consider 'the C documentary and oral evidence on record the letter of defendant to Zamir Ahmad also was owner of the disputed property and plaintiff fully proved that the Zamir Ahmad was owner of the disputed property both court have not considered this fact.

D "14-E" Whether the gift was perfectly legal valid under the Mohammedan Law the donor has no other nearer heir and name of the donee having been mutated over the property after the gift this fact was also not considered by the Court below.

"14-F" Whether the Akhtari Begum executed a valid gift deed in favour of the Zamir Ahmad and Zamir Ahmad executed the valid sale deed in favour of the appellant in the year 1965 and plaintiffs name mutated in all the record this fact was also not considered by the Court below.

"14-G" Whether the plaintiff fully proved the relation of the landlord and tenant but the court wrongly given the ..finding against the appellants. "

This application was allowed by the court vide order dated 15.07.2006. The said order has been extracted in the earlier part of the G judgment in its entirety. It is possible to suggest that the court did not frame any substantial question oflaw and left the same open, to be done at the time of hearing of the appeal. The appellants-defendants have neither challenged this order nor insisted before the High Court to formulate substantial questions oflaw before notifying the second appeal for hearing. When the second appeal was ready and taken up for hearing, H the High Court, at the outset, indicated the scope of second appeal and

D. N. JOSHI (D) THR. LRS. v. D. C. HARRIS

[A. M. KHANWILKAR, J.] 341

the substantial question of law which it intended to examine in the A judgment to be delivered by it. That is manifest from paragraph 9 of the impugned judgment, which has been extracted in paragraph 13 of this judgment. The High Court then proceeded to examine that question of law which it thought was involved in the second appeal and was similar to the substantial question oflaw formulated by the appellants-defendants B in the amendment application, in particular, ground 14 C.

23. In other words, in the facts of the present case there has been substantial compliance of Section l 00 ofC.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 C 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 D Section 100 ofC.P.C. as also Order XLII ofC.P.C. It is not open to the appellants-defendants to now raise an issue of non-formulation of 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 the respondents-plaintiffs to amend the memorandum of second appeal with an observation that the court will formulate the substantial question oflaw at the time of hearing of the appeal). Suffice it to note that the High Court, has, in fact, formulated

a substantial question of law and heard the parties on that question, as can be discerned from paragraph 9 of the impugned judgment. Therefore, we do not find any merit in the first contention raised by the appellantsdefendants.

24. Reverting to the second point raised by the appellants - that 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 G decision of the High Court between the respondents-plaintiffs and another tenant in relation to the selfsame gift deed. In paragraphs 14 to 17, the court observed thus:

"14. Now, this Court has to examine the validity of the gift deed dated 31.05.1949. Both the courts below have held H

the gift deed as invalid on the ground that it is not found proved that the possession was delivered by Akhtari Begum to his brother Zamir Ahmad at the time of Hiba.

On examination of evidence on record, I found the findings of both the courts below erroneous, misconceived and against the evidence on record. Admittedly, the defendant was in possession of the property in question as a tenant. As such, no physical possession was to be delivered by Akhtari Begum to Zamir Ahmad. If afterwards instead of Akhtari Begum, Zamir Ahmad started taking rent of the house from the tenant (defendant), it is nothing but the consequences of delivery of possession by Akhtari Begum to Zamir Ahmad. Since it has been found proved, as discussed above that admittedly in the year 1962, 1963 and 1964, rent was collected by Zamir Ahmad from the defendant, it cannot be said that he was not in possession of the property. Needless to say that Akhtari Begum had already died by then in the year 1954.

Therefore, the view taken by the courts below that Hiba in favour of Zamir Ahmad made by Akhtqri Begum is not valid, is erro!teous in law and cannot be upheld.

15. On behalf of the appellants, my attention was drawn to the judgment dated 15.02.1978 passed by Allahabad High

Court in Second Appeal No. 1639 of 1972 Tika Ram Kharkwal Vs. B.C. Harris (that was in relation to dispute between present plaintiffs and another tenant) in which Allahabad High Court has found the gift deed dated 31.05.1949 as valid and upheld the decree of ejectment of tenant in said case. From the perusal of said ejectment, it is clear that the tenant in said case was also living in another portion of the same house No. 51 of Mahalia Sakhawat Ganj. In said judgment, Allahabad High Court has found that the possession given by Akhtari Begum at the time of Hiba was a constructive possession, as the accommodation was in the possession of the tenant.

16. Learned counsel for the respondents argued that since the present respondents were not party in said appeal, as such, the judgment passed in said appeal is not binding on the present respondents. This Court is of the view that no

D. N. JOSHI (D) THR. LRS. v. D. C. HARRIS

[A. M. KHANWILKAR, J.] 343

doubt said judgment passed by Allahabad High Court does A not operate as res-judicata as against present respondents but the legal interpretation of validity of Hiba (gift) in question given by Allahabad High Court has a persuasive value in interpreting the same. In the above circumstances, this Court agrees with the view expressed by the Allahabad High Court, as to the validity of the impugned gift deed.

17. Assuming for a moment that gift deed dated 31.05.1949,

for the want of evidence of delivery of possession of the property at the time of Hiba, does not transfer title to Zamir Ahmad, the fact cannot be ignored that after widowed Akhtari Begum died issueless, it was only Zamir Ahmad who could C have inherited the property and was admittedly collecting rent from the defendantlrespondentfor more than ten years.

As such, when Zamir Ahmad transferred the title along with right to collect rent, through sale deed dated 11.10.1965 to the plaintiffs who demanded the rent from the defendant, denial on the part of defendant of the title of the plaintiffs D

vi de notice dated 15.10.1965 does constitute a ground for determination of tenancy under Section 111 of Transfer of Property Act, 1882. And accordingly by notice dated 21.12.1965 served on the defendants by the plaintiffs under Section 106 read with Section 111 of aforesaid Act, they E terminated the tenancy of the defendant w.ej 21.01.1966.

Accordingly the question of law stand answered with the finding as above that the gift deed dated 31.05.1949 was a valid document and the trial court and lower appellate court have erred in law in holding that the title was not transferred F by said document from Akhtari Begum to Zamir Ahmad. "

25. In our opinion, the above view taken by the High Court is unexceptionable. The two courts below gave undue weightage to the fact thatAkhtari Begum had reserved to herself the right to receive rent during her lifetime and that she did not issue attornment in favour of G 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 gift deed: H

A "/ therefore gift my total property valued at Rs. 320001- (Thirty two thousand) to Zamir Ahmad slo Sheikh lmmauddin rlo Mahal/ah Banphoolpura Lane No. 4 and I agree that Zamir Ahmad has acquired title and possession like me and all rights of ownership as I had, shall vest in him. "

B (emphasis supplied)

Admittedly, the tenant was in possession of the suit premises. As such, it was not possible to handover physical possession of the suit premises to Zamir Ahmad. Hence, constructive possession of the suit premises by the donor, Akhtari Begum was handed over to the donee, c Zamir Ahmad upon execution of the stated gift deed. Notably, the defendant-tenant continued to offer rent to Zamir Ahmad until 1962-63 and 1963-64, even after the demise of Akhtari Begum in 1954. Further, the mutation was recorded with the Municipal Board, Haldwani in the name of the plaintiff, in place ofZamir Ahmad in the year 1965-66. The plaintiff has been recorded as owner in respect of the suit property, after D execution of the sale deed on 13 .10.1965. Neither the validity of the sale deed nor of the mutation entry in favour of the respondents-plaintiffs has been challenged by the defendant-tenant. Furthermore, the validity of the gift deed was the subject matter before the High Court of Judicature at Allahabad in Second Appeal No.1639 of 1972 and has E been answered in favour of the respondents vide a speaking judgment dated 15.02.1978. That judgment has been upheld by this court on 24.04.1978, by dismissing the SLP (Civil) No. 1913 of 1978 between 1ikka Ram Kharkwal V. Shri S. C. Harris & Ors.

26. In a recent decision of this court, namely, Hafeeza Bibi And F Others Versus Shaikh Farid (Dead) By LRs. And Others6, 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 30asunder:

"24. The position is well settled, which has been stated and G restated time and again, that the three essentials of a gift under Mohammadan Law are; (i) declaration a/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 fa/filling all the three essentials makes the gift ----- H • (2011) s sec 654

[A. M. KHANWILK.AR, J.] 345

complete and irrevocable. However. the donor may record A the transaction of gift in writing.

xxx xxx xxx xxx

27. 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 B 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 C 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 D making of the gift, it musi 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 E 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 F 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.

G We find ourselves in express agreement with the statement of law reproduced above from Mu/la, Principles of Mahomedan Law (19th Edition), page 120. Jn 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 H

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 respondentsplaintiffs. The title in the property having vested in Zamir Ahmad, who, D 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 ofZamir Ahmad was invalid, namely, that donor E (Akhtari Begum) did not request the tenant (defendant) to attom to the donee (plaintiff), is also devoid of substance. For, this court in the case of Ambica Prasad Versus Mohd. Alam And Another7 has enunciated that it is well settled that after the transfer of the landlord's right in favour of the transferee, the latter gets all rights and liabilities of the

F landlord in respect of the subsisting tenancy. Section I 09 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 attomment is not necessary to confer validity of the transfer of the landlord's rights. Strikingly, even in this case, the transferor continued to collect the rent of the suit property from the tenant with the consent of G 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 judgmentunder appeal is H ' (2015) 13 sec 13

[A. M. KHANWILKAR, J.] 347

a well-considered decision. It has justly relied upon another decision of A 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.

B Resultantly, we uphold the decree of eviction passed by the High Court against the appellants (tenants).

29. Accordingly, we dismiss this appeal with no order as to costs.

Devika Gujral Appeal dismissed.