Summary
The Court upheld an eviction decree after finding substantial compliance with the second-appeal question-of-law requirement and a valid Muslim gift through constructive possession. The tenant occupied the premises, so physical delivery was unnecessary; the deed and subsequent rent dealings established transfer. The lack of attornment did not invalidate the landlord’s transfer.
Issues
- Whether the second appeal was vitiated by the timing of formulation of a substantial question of law.
- Whether the gift failed for lack of physical delivery or tenant attornment.
Provisions considered
- Section 100 and Order XLII Rule 2, Code of Civil Procedure, 1908The requirement remained obligatory, but amendment, identification of the substantial question and hearing on it constituted substantial compliance in this particular procedural history. (¶ 18–23)
- Section 109, Transfer of Property Act, 1882Tenant attornment was not necessary to validate transfer of the landlord’s rights. (¶ 27)
Held
- The appeal had been filed before the 1976 amendment, followed by later admission and an unchallenged amendment order. The High Court actually formulated the substantial gift-validity question and heard the parties on it; this was not adjudication without any substantial question. (¶ 18–23)
- With the premises occupied by a tenant, constructive delivery sufficed. The gift’s declaration, the donee’s receipt of rent after the donor’s death and the subsequent transfer supported validity; reserving rent during the donor’s life did not defeat it. (¶ 24–27)
- The earlier decision on the same deed involving another tenant had persuasive value rather than operating as res judicata against these tenants. The High Court’s correction concerned legal error in evaluating the gift. (¶ 24–28)
Result
Appeal dismissed without costs; High Court eviction decree upheld.