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   REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO 6139 OF 2009

D. N. Joshi (D) Thr. LRs. & Others. …. Appellants                            

Versus

D.C. Harris & Another.                        .... Respondents

J U D G M E N T

A.M.KHANWILKAR, J.

1. This appeal challenges the final judgment and  order  dated

19.08.2006 passed by the High Court of Uttarakhand at Nainital in

Second Appeal No.1269 of 2001 (Old No.1139 of 1974). By the said

decision, the second appeal filed by the respondents­plaintiffs was

allowed and their suit for eviction has been decreed.

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2. The predecessor in title of the respondents­plaintiffs 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

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 of a 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  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 10th  October, 1965, the respondents’

predecessor in title demanded rent for the suit premises from the

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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 Munsif Court, Nainital vide

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 of landlord 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 1974,  under the unamended Section

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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 section. After  filing of the second appeal bearing

No.1139 of 1974, the Registrar of the Allahabad High Court passed

an order on 20.05.1974, to the following effect:­

“Presented today. Admit and register. Lay before Court on 8.7.74 for hearing u/o LXI

Rule 11 CPC Sd/­ Registrar

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 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.  

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9. As the second appeal was dismissed for default, the

respondents moved an application for restoration of the appeal. The

said appeal was restored on 7th 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.”  

10. 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 of

2001.  

11. Under the amended Section 100 of C.P.C., substantial

questions of law were required to be framed. Therefore, an

application for amendment of the second appeal was filed before the

High Court of Uttarakhand by the respondents (appellants in the

said appeal) for adding substantial questions of law.

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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 15 th

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). 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 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 15 th

July, 2006, in the impugned judgment, has noted thus:

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“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  of  Uttarakhand,  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 of Judicature

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.  

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15. Aggrieved, the appellants­defendants have challenged the

impugned judgment, whereby the suit was decreed in favour of the

respondents­plaintiffs and ordering eviction of the appellants­

defendants from the suit premises with consequential directions.  

16. The principal argument of the appellants­defendants is that:

the High Court has exceeded its jurisdiction, firstly, by deciding the

second appeal filed by the respondents­plaintiffs which was

admitted without formulating the substantial question of law and

secondly, because the High Court has re­appreciated 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 Others1, 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

1  (1999) 6 SCC 35 2  (2009) 5 SCC 264 3  (2014) 11 SCC 605

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Sangvikar4 and Syeda Rahimunnisa Versus Malan Bi (Dead) By

Legal Representatives And Another5.  Reliance is also placed on

Section 97 of the Code of Civil Procedure Amendment Act 104 of

1976,  in particular,  clause (m) of  sub­section (2)  thereof.  This  is

repeal and saving clause. Sub­section (2) opens with a non­obstante

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 sub­section (1) has taken effect, and  without  prejudice to the  generality  of the  provisions  of Section 6 of the General Clauses Act, 1897,­

(a) to (l) 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 XLI; and 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 on the provisions of Order XLI, Rule 11 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

4  (2015) 16 SCC 763 5  (2016) 10 SCC 315

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without formulating substantial question of law and also because it

unjustly interfered with concurrent findings of facts.  

17. The respondents­plaintiffs,  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 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 respondents­plaintiffs moved 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 appellants­defendants.  Thus, the

ground now urged by the appellants­defendants, that  the appeal

could not have been admitted without formulating substantial

question of law, is unavailable. Moreso because, after hearing both

the parties, the court, in fact, formulated the substantial question

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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 respondents­plaintiffs that the High Court has merely

corrected the 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 Court of Judicature at Allahabad

rendered in another proceeding between the respondents­plaintiffs

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 appellants­defendants  

18. The  moot question is:  whether the judgment  under appeal

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

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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. The appellants­defendants 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

appeal  was  passed  by the  Registrar  on  20.05.1974.  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 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 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.

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(4) Where an  Appellate Court, not being the  High  Court, dismisses an appeal under sub­rule (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.”

Sub­rule (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 11A

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, 11A 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

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:  

“1. Procedure­The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.

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2. Power of Court to direct that the appeal be heard on the question formulated by it.­ At the time of making an order under rule 11 of Order XLI 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. Application of rule 14 of Order XLI­Reference in sub­ rule (4) of rule 14 of Order XLI 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 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

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Amendment  Act  of  1976.  The  appellants­defendants  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 100

of C.P.C., had failed to formulate substantial question of law, which

it was obliged to do at the beginning of the hearing itself. In the

case of  Narayanan Rajendran (supra), the court noticed that the

High Court, in exercise of jurisdiction under Section 100 of C.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 the second appeal afresh after

formulating the substantial question of law and thus relegated the

parties before the High Court. In the case of  Biswanath Ghosh

(supra), it has been noted that the High Court had formulated the

substantial question of law 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

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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 time of admission of the appeal. It is the duty

cast upon the High Court to formulate substantial question of law

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 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 of “substantial questions of law” within the meaning

of  Section 100 of  C.P.C.,  whereas, the  questions decided by the

High Court were essentially questions of fact.

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22. 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,

the respondents­plaintiffs had 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 the

respondents­plaintiffs 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 respondents­plaintiffs sought leave of the Court to

urge the following substantial questions of law:  

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

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

“14­C”  Whether the Court below erred in holding the actual transfer of possession of the property  was not effected in 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.

“14­D”  Whether the Court below failed to consider the 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.

“14­E”  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.

“14­F”  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.

“14­G”  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 judgment in its entirety. It is possible to suggest that the court

did not  frame any substantial question of  law and left the same

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open, to be done at the time of hearing of the appeal. The

appellants­defendants have neither challenged this order nor

insisted before the High Court to 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. 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 of law formulated by the

appellants­defendants 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 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

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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 the appellants­defendants 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

respondents­plaintiffs 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).  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.

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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 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 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 Akhtari Begum is not valid, is erroneous in law and cannot be upheld.

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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 Mohalla 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 doubt said judgment passed by Allahabad High Court does not operate as res­judicata 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 have inherited the property and was admittedly collecting rent from the defendant/respondent for 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 vide 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

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defendants by the plaintiffs under Section 106 read  with Section 111 of aforesaid Act, they terminated the tenancy of the defendant w.e.f. 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 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 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 gift deed:

“I therefore gift my total property valued at Rs. 32000/­ (Thirty two thousand) to  Zamir  Ahmad s/o  Sheikh Immauddin r/o Mohallah  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.”

(emphasis supplied)

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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,  Zamir Ahmad upon execution of the stated gift  deed.

Notably, the defendant­tenant continued to offer rent to Zamir

Ahmad until 1962­63 and 1963­64, 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 of

Zamir Ahmad in the year 1965­66. The plaintiff has been recorded

as owner in respect of the suit property, after 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 respondents­plaintiffs has been

challenged by the defendant­tenant. 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 been

answered in favour of the respondents vide a speaking judgment

dated 15.02.1978. That judgment has been upheld by this court on

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24.04.1978, by dismissing the SLP (Civil) No. 1913 of 1978 between

Tikka Ram Kharkwal V. Shri S. C. Harris & Ors.  

26. In a recent decision of this court, namely, Hafeeza Bibi And

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 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    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 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

6  (2011) 5 SCC 654

26

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

27. As a matter of fact, the appellants­defendants 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, 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 respondents­plaintiffs

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 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 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 landlord’s rights. Strikingly, even in

7  (2015) 13 SCC 13

28

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 well­considered 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.  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.   

       ...……………………………..J.                              (R. Banumathi)

29

                                          ..…..…………………………..J.                 (A.M.Khanwilkar)

New Delhi, Dated: July 3, 2017

30

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6138 OF 2009

Pooran Chandra Joshi & Ors. ….  Appellants                             

Versus

Biswan Chandra Harris (Dead) by L.Rs.          .... Respondents

J U D G M E N T

A.M. KHANWILKAR, J.

In view of the judgment in the companion civil appeal bearing

Civil Appeal No.6139 of 2009 on merits of the issues dealing with

the selfsame gift deed dated 31.05.1949, which is also the subject

matter of the present appeal, for the same reasons even this appeal

must fail and the same is, therefore, dismissed with no order as to

costs.   

...……………………………..J.    (R. Banumathi)   

                                    ..…..…………………………..J. (A.M.Khanwilkar)

New Delhi, Dated: July 3, 2017