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.
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
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
