D. N. JOSHI (D) THR. LRS. & OTHERSversusD. C. HARRIS & ANOTHER

                            [2017) 7 S.C.R. 326


A                D. N. JOSHI (D) THR. LRS. & OTHERS
                                     v.
                       D. C. HARRIS & ANOTHER
                      (Civil Appeal No. 6139 of 2009)
B                             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
                                                   ,·· .·..
           D. N. JOSHI (D) THR. LRS. v. D. C. HARRIS                     327


 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
328          SUPREME COURT REPORTS                     (2017] 7 S.C.R.


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.
    Admittedly, the respondents-plaintiffs did not even articulate any
 0
    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
     formulate substantial questions of law before notifying the second
  F 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 appellants-
     defendants 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
          D. N. JOSHI (D) THR. LRS. v. D. C. HARRIS                      329


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
330             SUPREME COURT REPORTS                   [2017] 7 S.C.R.


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
 E            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;
 F            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.
 G                            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
 H    c2015) 16 sec 763              relied on              Para 16
           D. N. JOSHI (D) THR. LRS. v. D. C. HARRIS                           331



[20161 6 SCR 512                  relied on                 Para 16            A
[2011) 5 SCR 1155                 relied on                 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.                 C
      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 1974). By the said decision, the second appeal filed by the respondents-
plaintiffs 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.                                                                          F
       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
332             SUPREME COURT REPORTS                           [2017) 7 S.C.R.


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
B     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.
 c
            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.
D
             7. The respondents filed a second appeal before the High Court
      of Judicature at Allahabad in 1974, 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.
 H
           D. N. JOSHI (D) THR. LRS. v. D. C. HARRIS                        333
                    [A. M. KHANWILKAR, J.]

       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."                                           B
       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.                             c
        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.                                                 D
        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:                                                           ,
                                                                             E
        "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.
                                                                       H
334            SUPREME COURT REPORTS                            [2017] 7 S.C.R.



A            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
B     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
 c           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
 D           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
 E
              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
 F    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.
 G          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                    335
                     [A. M. KHANWILKAR, J.]

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
Others 3, Ashok Rangnath Magar Versus Shrikant Govindrao
Sangvikar' and Syeda Rahimunnisa Versus Malan Bi (Dead) By
Legal Representatives AndAnother. 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     D
         (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     E

         (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
336            SUPREME COURT REPORTS                          [2017] 7 S.C.R.


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
   an application for amendment of the appeal memo whereby the substantial
 c 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
    Court of Judicature at Allahabad rendered in another proceeding between
 F 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                        337
                  [A. M. KHANWILKAR, J.]

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
338           SUPREME COURT REPORTS                          [2017] 7 S.C.R.


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
B          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.
c          3. Applicatio11 of rule 14 of Order XLI-Reference in sub-
           rule (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. "
D        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
  the Amendment Act of 1976. The appellants-defendants have rightly
F 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 ofjurisdiction 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
  the second appeal afresh after formulating the substantial question of
H law and thus relegated the parties before the High Court. In the case of
            D. N. JOSHI (D) THR. LRS. v. D. C. HARRIS                           339
                    [A. M. KHANWILKAR, J.]

 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.                                 H
340            SUPREME COURT REPORTS                         [2017) 7 S.C.R.


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 plaintifffully 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.

 E            "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.

 F            "14-G" Whether the plaintifffully 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                         341
                   [A. M. KHANWILKAR, J.]

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 E
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 appellants- F
 defendants.
       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
342    SUPREME COURT REPORTS                      [2017] 7 S.C.R.


A     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
B
      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
 c    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.
 D
       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
 E    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
 F    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
 G    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
 H
          D. N. JOSHI (D) THR. LRS. v. D. C. HARRIS                       343
                   [A. M. KHANWILKAR, J.]

       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 ofHiba (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,
                                                                          B
       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,          D
        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 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
344            SUPREME COURT REPORTS                          [2017] 7 S.C.R.


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 ofAkhtari 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 Others 6, 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    -   - -s sec
      • (2011) --  654
  D. N. JOSHI (D) THR. LRS. v. D. C. HARRIS                  345
           [A. M. KHANWILK.AR, J.]

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
346            SUPREME COURT REPORTS                          [2017] 7 S.C.R.


A            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
B            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
 c           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,
 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
   landlord in respect of the subsisting tenancy. Section I 09 of the Transfer
 F 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
            D. N. JOSHI (D) THR. LRS. v. D. C. HARRIS                          347
                     [A. M. KHANWILKAR, J.]

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.   C