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Saturday, July 26, 2014

Fraud in Sale of 1/4th share of House(not possible to division) to other than the purchasers of 3/4th share from the two parties of partition suit out of three - No notice was given when the 1/4th purchaser as nominee of 3/4th share purchasers sought permission to purchase - No notice was given to 3/4th share purchasers, while modifying the nominee status of 1/4th share purchaser as to the individual status - clear case of fraud on court liable to be set aside - No agreement of sale is necessary - when court permitted for sale of property - without agreement of sale , a suit for specific performance is maintainable as there is an understanding between vendor and vendee = Mohammad Hafizullah & Ors. ... Appellants Versus Javed Akhtar & Ors. ... Respondents = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41733

 Fraud in Sale of 1/4th share of House(not possible to division) to other than the purchasers of 3/4th share from the two parties of partition suit out of three - No notice was given when the 1/4th purchaser as nominee of 3/4th share purchasers sought permission to purchase - No notice was given to 3/4th share purchasers, while modifying the nominee status of 1/4th share purchaser as to the individual status - clear case of fraud on court liable to be set aside - 
No agreement of sale is necessary - when court permitted for sale of property - without agreement of sale , a suit for specific performance is maintainable as there is an understanding between vendor and vendee =

 It is an admitted fact that as per the consent decree passed  in  Suit
No.1274 of 1957 by the Calcutta High  Court,  the  property,  a  residential
house, situated at 34, Elliot Road,  Kolkata,   belonged  to  Shri  Nagendra
Bala Guha, Shri Hari Ranjan Guha and  Smt.  Kanak  Nahar.   The  said  three
owners owned one-half, one-fourth and one-fourth share respectively  of  the
said property.  In this appeal, we are concerned only with one-fourth  share
of the said property, which belonged to Smt. Kanak Nahar, who is  respondent
no.3 in this appeal.=
Upon perusal of the order dated 16th July, 1984  passed  by  the  High
Court, one can clearly visualise that there must had been  an  understanding
between Smt. Kanak Nahar on one hand and Shri Javed Akhtar and  Shri  Parvez
Akhtar on the other that one-fourth share of the property belonging to  Smt.
Kanak Nahar would be sold to Shri Javed Akhtar and Shri Parvez  Akhtar.   In
our opinion, it is not necessary to go into the  fact  whether  any  written
agreement to sell had been entered into between  Smt.  Kanak  Nahar  on  one
hand and Shri Javed Akhtar and Shri Parvez Akhtar on  the  other.  The  fact
remains that the High Court had permitted  Smt.  Kanak  Nahar  to  sell  her
share to the proposed buyers, viz. Shri Javed Akhtar and Shri Parvez  Akhtar
or to their nominee.  Had there not been any understanding among  these  two
parties, viz., the buyer and the seller, possibly the High Court  would  not
have referred to the names of Shri Javed Akhtar and Shri  Parvez  Akhtar  as
proposed buyers of the share of Smt. Kanak Nahar.

21.   It is also pertinent to note that it was not possible  to  divide  the
property by metes and bounds.  The entire problem  had  arisen  because  the
property was not divisible by metes and bounds  and  therefore,  a  Receiver
had to be appointed.   There is no dispute with  regard  to  the  fact  that
three-fourth share of the property in question had been  purchased  by  Shri
Javed Akhtar and Shri Parvez Akhtar in pursuance of the  permission  granted
by the High Court by an order dated 16th July, 1984.  If  the  property  was
not divisible, one can very well believe that owner  of  three-fourth  share
of an indivisible property would  be  ready  and  willing  to  purchase  the
remaining one-fourth share of the said property  and  normally  no  outsider
would ever think of purchasing one-fourth share of an indivisible part of  a
residential house.  These factors clearly denote that  there  must  be  some
understanding among Smt. Kanak Nahar and Shri Javed  Akhtar  &  Shri  Parvez
Akhtar in relation to purchase of the share of Smt. Kanak Nahar.

22.   There is nothing on record to show that  Shri  Javed  Akhtar  or  Shri
Parvez Akhtar had appointed  Smt.  Shamima  Khanam,  the  wife  of  Mohammad
Hafizullah – a lawyer and uncle of Shri Javed Akhtar and Shri Parvez  Akhtar
as their nominee.  There is nothing to show that any notice had been  issued
to Shri Javed Akhtar and Shri Parvez Akhtar before order  dated  28th  June,
1985 was passed.  By virtue of the said order, Smt.  Kanak  Nahar  had  been
directed to execute sale deed in favour of Smt. Shamima  Khanam.   Moreover,
no notice was issued to Shri Javed Akhtar and Shri Parvez  Akhtar  when  the
order dated 28th June, 1985 had been modified.   It  is  important  to  note
that if an order had been passed in favour of Shri  Javed  Akhtar  and  Shri
Parvez Akhtar on 16th July, 1984, there was no reason  for  the  High  Court
not to hear these two persons while passing a fresh  order,  whereby  buyers
had been changed from Shri Javed Akhtar  and  Shri  Parvez  Akhtar  to  Smt.
Shamima Khanam.

23.   The findings with regard to the fraud are findings  of  fact.    After
appreciation of the entire evidence, the trial Court as  well  as  appellate
Court have come to a conclusion that a fraud  had  been  committed,  whereby
one-fourth share of Smt. Kanak  Nahar  had  been  sold  in  favour  of  Smt.
Shamima Khanam.   We had gone through the evidence which had  been  produced
by the learned counsel appearing for  the  present  appellants.   Even  upon
perusal of the said evidence, we are  not  persuaded  to  believe  that  the
findings of fact arrived at by the Courts below are not correct.

24.   For the aforestated reasons, we are of  the  view  that  there  is  no
substance in this appeal and the orders passed by the Courts below are  just
and proper and therefore, we dismiss the appeal with no order as to costs.


2014 – July. Part – http://judis.nic.in/supremecourt/filename=41733


                                                               REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.4712 OF 2007


Mohammad Hafizullah & Ors.              ... Appellants

                                   Versus

Javed Akhtar & Ors.                     ... Respondents




                               J U D G M E N T



ANIL R. DAVE, J.


1.    Being aggrieved by the judgment  and  order  dated  26th  June,  2007,
delivered in A.P.D. No.614 of 2005 by  the  High  Court  of  Calcutta,  this
appeal has been filed against the concurrent  findings  arrived  at  by  the
High Court in the aforestated appeal.

2.    Facts which are relevant for  the  purpose  of  determination  of  the
present appeal in a nutshell are as follows :

      It is an admitted fact that as per the consent decree passed  in  Suit
No.1274 of 1957 by the Calcutta High  Court,  the  property,  a  residential
house, situated at 34, Elliot Road,  Kolkata,   belonged  to  Shri  Nagendra
Bala Guha, Shri Hari Ranjan Guha and  Smt.  Kanak  Nahar.   The  said  three
owners owned one-half, one-fourth and one-fourth share respectively  of  the
said property.  In this appeal, we are concerned only with one-fourth  share
of the said property, which belonged to Smt. Kanak Nahar, who is  respondent
no.3 in this appeal.

3.    As the property belonged to the aforestated three persons  and  as  it
was not possible to divide the same by metes and bounds, a prayer  had  been
made to the High Court for permitting sale  of  three-fourth  share  of  the
property belonging to Shri Nagendra Bala Guha and Shri Hari Ranjan  Guha  to
present respondent nos.1 and 2  i.e.  Shri  Javed  Akhtar  and  Shri  Parvez
Akhtar, who are brothers.  In the said proceedings,  Smt.  Kanak  Nahar  had
also filed an application with a prayer that she be also permitted  to  sell
her one-fourth share to the present respondent nos.1  and  2  –  Shri  Javed
Akhtar and Parvez Akhtar.

4.    The said application had been granted by an  order  dated  16th  July,
1984 by the High Court.   With regard to the share of Smt. Kanak Nahar,  the
High Court was pleased to observe as under, in the said order :
 “................ and it is further ordered that in the event of  defendant
Smt. Kanak Nahar selling her share to the proposed purchasers  Javed  Akhtar
and Parvez Akhtar or their nominee or nominees, the names of the  purchasers
need not be recorded in the suit and they need not continue the suit and  it
is further ordered that the said defendant Smt. Kanak Nahar  be  at  liberty
to sell her share to the proposed purchasers Javed Akhtar and Parvez  Akhtar
or their nominee or nominees and.......................”


5.     The  aforestated  facts  denote  that  Smt.  Kanak  Nahar  must  have
discussed the matter with regard to  sale  of  her  share  with  Shri  Javed
Akhtar and Shri Parvez Akhtar, and they must have decided  to  purchase  the
share of Smt. Kanak Nahar.

6.    As the three-fourth share of  the  property  in  question  was  to  be
purchased by Shri Javed Akhtar and Shri Parvez Akhtar,  one  can  very  well
presume that except the aforestated two persons, no other  person  would  be
interested in purchase of the remaining one-fourth share  in  the  property,
which was a residential house and it was impossible to divide  the  same  by
metes and bounds.  Smt. Kanak Nahar’s prayer before the High  Court  seeking
permission to sell her share also to  Shri  Javed  Akhtar  and  Shri  Parvez
Akhtar appears to be quite reasonable as the said sale would  bring  an  end
to a long drawn litigation which had  started  in  1957.   The  High  Court,
therefore, had rightly permitted Smt. Kanak Nahar  to  sell  her   share  to
Shri Javed Akhtar and Shri Parvez Akhtar.

7.    After the permission had been granted by the High  Court  with  regard
to sale of three-fourth share in the property in dispute in favour  of  Shri
Javed  Akhtar  and  Shri  Parvez  Akhtar,  necessary  formalities  had  been
completed and three-fourth share of the said property had  been  transferred
in favour of Shri Javed Akhtar and Shri Parvez Akhtar.

8.    The dispute  involved  in  this  appeal  starts  with  an  application
submitted by Smt. Shamima Khanam to the High Court  with  a  grievance  that
Smt. Kanak Nahar was not showing her willingness to execute  the  sale  deed
with respect to her share in her favour, though she was bound  to  sell  her
share to Shri Javed Akhtar and Shri Parvez Akhtar  or  their  nominee.   The
said application was granted on 28th June, 1985, whereby  Smt.  Kanak  Nahar
was directed to execute sale deed and  convey  her  share  to  Smt.  Shamima
Khanam, as a nominee of Shri Javed Akhtar and Shri Parvez Akhtar.

9.    Ultimately, Smt. Kanak Nahar, through her  husband  Shri  Ajit  Nahar,
sold her share to Smt. Shamima Khanam by sale deed dated  11th  July,  1985,
but  once  again,  Smt.  Shamima  Khanam  approached  the  High  Court   for
modification of the order dated 28th June,  1985  to  the  effect  that  she
should not be treated as a nominee of Shri  Javed  Akhtar  and  Shri  Parvez
Akhtar.

10.   The High Court, by an order dated 6th September,  1985,  modified  the
earlier order, without recording any reason for the same  and  by  observing
that Smt. Shamima Khanam was not a nominee of Shri  Javed  Akhtar  and  Shri
Parvez Akhtar.

11.   So far as the present litigation is concerned,  it  was  initiated  by
the present respondent nos.1 and 2 i.e. Shri Javed Akhtar  and  Shri  Parvez
Akhtar by filing Suit No.209A of 1986 for specific performance against  Smt.
Kanak Nahar praying that she be directed to effect  sale  of  her  share  in
their favour in pursuance of the order passed by the High Court  dated  16th
July, 1984 and the sale deed dated 11th July,  1985,  whereby  the  property
had been sold to Smt. Shamima Khanam be cancelled.  The said suit  had  been
decreed by an order dated 22nd September, 2005 and being  aggrieved  by  the
judgment and decree dated 22nd September, 2005, an appeal had been filed  by
the heirs of Smt. Shamima Khanam  in  whose  favour  Smt.  Kanak  Nahar  had
already conveyed her share.  The said  appeal  has  been  dismissed  by  the
impugned judgment.

12.   The case of the present  respondent  nos.1  and  2,  viz.  Shri  Javed
Akhtar and Shri Parvez Akhtar in the suit  filed  for  specific  performance
was that a fraud had been committed by Smt. Shamima Khanam and in  pursuance
of the said fraud, the share of Smt. Kanak Nahar  had  been  transferred  to
her.  Though permission was granted to Smt. Kanak Nahar to  sell  her  share
to Shri Javed Akhtar and Shri Parvez Akhtar or their nominee on  16th  July,
1984, share of Smt. Kanak Nahar was not sold to them or  their  nominee  and
they had never appointed Smt. Shamima Khanam to act  as  their  nominee  and
they were not bound by the order whereby Smt. Kanak Nahar  was  directed  to
sell her share to Smt. Shamima Khanam as they  were  not  given  any  notice
when the orders dated 28th June, 1985 and 9th September,  1985  were  passed
by the High Court.

13.   The learned counsel appearing for the appellants,  who  are  heirs  of
Smt. Shamima Khanam, in whose favour share of  Smt.  Kanak  Nahar  had  been
transferred, had submitted that Smt. Shamima Khanam was the  rightful  owner
of one-fourth share belonging to Smt. Kanak Nahar  as  Smt.  Shamima  Khanam
had purchased her share in her individual capacity and not as a  nominee  of
Shri  Javed  Akhtar  and  Shri  Parvez  Akhtar.   The  learned  counsel  had
submitted that upon perusal of the order  dated  16th  July,  1984,  whereby
permission was granted to Smt. Kanak Nahar to sell her share  in  favour  of
Shri Javed Akhtar and Shri Parvez Akhtar, it is  clear  that  there  was  no
direction to sell her share to Shri Javed Akhtar  and  Shri  Parvez  Akhtar,
but she was merely permitted to sell her share and there was  no  obligation
on the part of Smt. Kanak Nahar to sell her share to Shri Javed  Akhtar  and
Shri Parvez Akhtar as there  was  no  agreement  to  sell  the  property  in
question in their favour.  In absence of any such agreement to  sell,  there
could not have been any permission to sell her share to  Shri  Javed  Akhtar
and Shri Parvez Akhtar.   It had been specifically submitted by the  learned
counsel that Smt. Kanak Nahar had willingly sold her share to  Smt.  Shamima
Khanam and therefore, the judgment delivered by the High Court  of  Calcutta
on its original side in favour of Shri Javed Akhtar and Shri  Parvez  Akhtar
is bad in law.  According to the learned counsel, the Court  ought  to  have
seen that there was a valid conveyance  deed  executed  in  favour  of  Smt.
Shamima Khanam and as there was no agreement  to  sell  in  favour  of  Shri
Javed Akhtar and Shri Parvez Akhtar, there was  no  question  of  passing  a
decree for specific performance.

14.   It had been further submitted that one of the heirs  of  Smt.  Shamima
Khanam was a minor, who had not been represented properly  before  the  High
Court and therefore, without appointment of a guardian, the Court could  not
have passed any order against the minor who was one of the  legal  heirs  of
Smt. Shamima Khanam.

15.   The learned counsel had put much stress  on  his  submission  that  in
absence of any agreement to sell executed by Smt. Kanak Nahar, the suit  for
specific performance filed by Shri  Javed  Akhtar  and  Shri  Parvez  Akhtar
could not have been decreed, especially when the property  in  question  had
been validly transferred in favour of late  Smt.  Shamima  Khanam.   It  had
been, therefore, submitted by him that the  decree  passed  by  the  learned
Single Judge of the High Court was not just and proper and  deserved  to  be
set aside.

16.    On  the  other  hand,  it  had  been  submitted  on  behalf  of   the
respondents, especially for respondent nos.1 and 2 i.e.  Shri  Javed  Akhtar
and Shri Parvez Akhtar that by an order dated 16th July, 1984,  liberty  had
been granted to Smt. Kanak Nahar to sell her share to  them  and  the  Court
had also referred to Shri Javed Akhtar and Shri Parvez  Akhtar  as  proposed
purchasers in the said order and therefore, it cannot  be  said  that  there
was no understanding or agreement in relation to sale of the share  of  Smt.
Kanak Nahar in favour of Shri Javed Akhtar and Shri Parvez Akhtar.

17.   The learned counsel had strenuously  argued  that  a  fraud  had  been
committed by or on behalf  of  Smt.  Shamima  Khanam.    He  had  drawn  our
attention to the fact that when order dated 28th June, 1985  was  passed  by
the High Court directing Smt. Kanak  Nahar  to  execute  the  sale  deed  in
favour of Smt. Shamima Khanam in pursuance of an  application  submitted  by
Smt. Shamima Khanam, the High Court had not given any notice to  Shri  Javed
Akhtar and Shri Parvez Akhtar, in  whose  favour  a  final  order  had  been
passed on 16th July, 1984, whereby Smt. Kanak Nahar was  permitted  to  sell
her share to Shri Javed Akhtar and  Shri  Parvez  Akhtar.   He  had  further
submitted that Smt. Shamima Khanam had never been appointed as a nominee  of
Shri Javed Akhtar and Shri Parvez Akhtar and  the  order  dated  28th  June,
1985 had been passed in pursuance of a fraudulent behaviour of Smt.  Shamima
Khanam.  It had further been submitted that even the order dated 28th  June,
1985, had been modified without issuance of any notice to Shri Javed  Akhtar
and Shri Parvez Akhtar.  Thus, according to the  learned  counsel,  a  fraud
had been committed by or on behalf of Smt.  Shamima  Khanam,  who  had  been
represented by her heirs and the order  passed  in  pursuance  of  the  said
fraud as well the transfer effected by Smt. Kanak Nahar were bad in law  and
they were rightly set aside by the High Court by the impugned judgment.

18.   According  to  the  learned  counsel,  the  trial  Court  as  well  as
appellate Court have come to a conclusion that a fraud  had  been  committed
and commission of fraud being a  matter  of  fact,  this  Court  should  not
reverse the said finding or should not re-appreciate the  evidence  in  this
appeal, which is virtually in the  nature  of  a  second  appeal.   He  had,
therefore, submitted that the appeal deserved to be dismissed.

19.   Upon hearing the learned counsel for the parties, in our opinion,  the
High Court was justified in dismissing the appeal and affirming  the  decree
for specific performance.

20.   Upon perusal of the order dated 16th July, 1984  passed  by  the  High
Court, one can clearly visualise that there must had been  an  understanding
between Smt. Kanak Nahar on one hand and Shri Javed Akhtar and  Shri  Parvez
Akhtar on the other that one-fourth share of the property belonging to  Smt.
Kanak Nahar would be sold to Shri Javed Akhtar and Shri Parvez  Akhtar.   In
our opinion, it is not necessary to go into the  fact  whether  any  written
agreement to sell had been entered into between  Smt.  Kanak  Nahar  on  one
hand and Shri Javed Akhtar and Shri Parvez Akhtar on  the  other.  The  fact
remains that the High Court had permitted  Smt.  Kanak  Nahar  to  sell  her
share to the proposed buyers, viz. Shri Javed Akhtar and Shri Parvez  Akhtar
or to their nominee.  Had there not been any understanding among  these  two
parties, viz., the buyer and the seller, possibly the High Court  would  not
have referred to the names of Shri Javed Akhtar and Shri  Parvez  Akhtar  as
proposed buyers of the share of Smt. Kanak Nahar.

21.   It is also pertinent to note that it was not possible  to  divide  the
property by metes and bounds.  The entire problem  had  arisen  because  the
property was not divisible by metes and bounds  and  therefore,  a  Receiver
had to be appointed.   There is no dispute with  regard  to  the  fact  that
three-fourth share of the property in question had been  purchased  by  Shri
Javed Akhtar and Shri Parvez Akhtar in pursuance of the  permission  granted
by the High Court by an order dated 16th July, 1984.  If  the  property  was
not divisible, one can very well believe that owner  of  three-fourth  share
of an indivisible property would  be  ready  and  willing  to  purchase  the
remaining one-fourth share of the said property  and  normally  no  outsider
would ever think of purchasing one-fourth share of an indivisible part of  a
residential house.  These factors clearly denote that  there  must  be  some
understanding among Smt. Kanak Nahar and Shri Javed  Akhtar  &  Shri  Parvez
Akhtar in relation to purchase of the share of Smt. Kanak Nahar.

22.   There is nothing on record to show that  Shri  Javed  Akhtar  or  Shri
Parvez Akhtar had appointed  Smt.  Shamima  Khanam,  the  wife  of  Mohammad
Hafizullah – a lawyer and uncle of Shri Javed Akhtar and Shri Parvez  Akhtar
as their nominee.  There is nothing to show that any notice had been  issued
to Shri Javed Akhtar and Shri Parvez Akhtar before order  dated  28th  June,
1985 was passed.  By virtue of the said order, Smt.  Kanak  Nahar  had  been
directed to execute sale deed in favour of Smt. Shamima  Khanam.   Moreover,
no notice was issued to Shri Javed Akhtar and Shri Parvez  Akhtar  when  the
order dated 28th June, 1985 had been modified.   It  is  important  to  note
that if an order had been passed in favour of Shri  Javed  Akhtar  and  Shri
Parvez Akhtar on 16th July, 1984, there was no reason  for  the  High  Court
not to hear these two persons while passing a fresh  order,  whereby  buyers
had been changed from Shri Javed Akhtar  and  Shri  Parvez  Akhtar  to  Smt.
Shamima Khanam.

23.   The findings with regard to the fraud are findings  of  fact.    After
appreciation of the entire evidence, the trial Court as  well  as  appellate
Court have come to a conclusion that a fraud  had  been  committed,  whereby
one-fourth share of Smt. Kanak  Nahar  had  been  sold  in  favour  of  Smt.
Shamima Khanam.   We had gone through the evidence which had  been  produced
by the learned counsel appearing for  the  present  appellants.   Even  upon
perusal of the said evidence, we are  not  persuaded  to  believe  that  the
findings of fact arrived at by the Courts below are not correct.

24.   For the aforestated reasons, we are of  the  view  that  there  is  no
substance in this appeal and the orders passed by the Courts below are  just
and proper and therefore, we dismiss the appeal with no order as to costs.



                                        …………………….J
                                        (ANIL R. DAVE)


                                        ……………………..J
                                             (R.K. AGRAWAL)
NEW DELHI
JULY 02,  2014

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