MOHAMMAD HAFIZULLAH & ORS.versusJAVED AKHTAR & ORS.

                        [2014] 8 S.C.R. 144


A               MOHAMMAD HAFIZULLAH & ORS.
                                  v.
                     JAVED AKHTAR & ORS.
                  (Civil Appeal No.4712 of 2007)
                            JULY 2, 2014
B
            [ANIL R. DAVE AND R.K. AGRAWAL, JJ.]

         Civil Procedure - Interference with findings of fact in
    appeal - Scope - Residential property in question having three
C   co-owners and not divisible by metes and bounds -
    Respondent no. 3 having one-fourth share in the property -
    Respondent nos. 1 and 2 filing suit for specific performance
    in respect of the share of respondent no.3 alleging fraud
    against the appellants and illegal execution of transfer deed
D   in favour of the appellants in respect of such share of
    respondent no.3 in the property- Trial court decreeing the suit
    - Decree affirmed by High Court in appeal - Held: Concurrent
    findings of the courts below with regard to fraud were findings
    of fact - After appreciation of the entire evidence, the trial
E   Court as well as appellate Court came to a conclusion that a
    fraud had been committed, whereby share of respondent no.3
    had been sold in favour of the predecessor-in-interest of the
    appellants - Findings of fact arrived at by the Courts below
    were correct - No cause for interference by Supreme Court
F   with the orders passed by the Courts below.

      The residential property in question was not divisible
  by metes and bounds. Three-fourth share of the property
  was purchased by respondent nos. 1 and 2 in pursuance
  of the permission granted by the High Court by order
G dated 16th July, 1984. Remaining one-fourth 'share of the
  property belonged to 'K' (respondent no.3).

      Respondent nos.1 and 2 filed suit for specific
  performance against 'K' (respondent no.3) praying that
H                           144
    MOHAMMAD HAFIZULLAH v. JAVED AKHTAR                145


she be directed to effect sale of her share in the property   A
in question in their favour in pursuance of the order
passed by the High Court dated 16th July, 1984 and that
the sale deed dated 11th July, 1985, whereby the property
had been sold to 'S' be cancelled. The case of respondent
nos.1 and 2 was that a fraud had been committed by 'S'        B
and in pursuance of the said fraud, the share of 'K' had
been transferred to her; that though permission was
granted to 'K' to sell her share to respondent nos. 1 and
2 or their nominee on 16th July, 1984, share of 'K' was
not sold to them or their nominee and they had never          c
appointed 'S' to act as their nominee and they were not
bound by the order whereby 'K' was directed to sell her
share to 'S' as they were not given any notice when the
orders dated 28th June, 1985 and 9th September, 1985
were passed by the High Court.                                D

     The appellants, who are heirs of 'S' in whose favour
share of 'K' had been transferred, however contended
that 'S' was the rightful owner of one-fourth share
belonging to 'K' as 'S' had purchased her share in her
individual capacity and not as a nominee of respondent        E
nos. 1 and 2. The suit was decreed. The decree was
affirmed by the High Court in appeal. Hence the present
appeal.

    Dismissing the appeal, the Court                          F
     HELD:1. 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 'K'
(respondent no.3) on one hand and respondent nos. 1
and 2 on the other that one-fourth share of the property      G
belonging to 'K' would be sold to respondent nos. 1 and
2. The property in question was not divisible by metes
and bounds and therefore, a Receiver had to be
appointed. Three-fourth share of the property had been
                                                              H
   146      SUPREME COURT REPORTS            [2014] 8 S.C.R.


A purchased by respondent nos. 1 and 2 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
B 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 'K' and respondent
c nos. 1 and 2 in relation to purchase of the share of 'K'.
  [Paras 20, 21] [153-B, C, E-H; 154-A]

       2. There is nothing on record to show that
  respondent nos. 1 and 2 had appointed 'S', the wife of
  Mohammad Hafizullah - a lawyer and uncle of respondent
D nos. 1 and 2 as their nominee. There is nothing to show
  that any notice had been issued to respondent nos. 1 and
  2 before order dated 28th June, 1985 was passed. By
  virtue of the said order, 'K' had been directed to execute
  sale deed in favour of 'S'. Moreover, no notic9· was
E issued to respondent nos. 1 and 2 when the order dated
  28th June, 1985 had been modified. If an order had been
  passed in favour of respondent nos. 1 and 2 on 16th July,
  1984, there was no reason for the High Court not to hear
  these two persons while passing a fresh order, whereby
F buyers had been changed from respondent nos. 1 and 2
  to 'S' . [Para 22] [154-B-D]                 ·

       3. The findings with regard to the fraud are findings
  of fact. After appreciation of the entire evidence, the trial
G Court as well as appellate Court have come to a
  conclusion that a fraud had been committed, whereby
  one-fourth share of 'K' had been sold in favour of 'S' .
  The findings of fact arrived at by the Courts below are
  correct. The orders passed by the Courts below are just .
H and proper. [Paras 23, 24] [154-E-G]
   MOHAMMAD HAFIZULLAH v. JAVED AKHTAR                      147


     CIVIL APPELLATE JURISDICTION: Civil Appeal No.4712             A
of 2007.

    From the Judgment and Order dated 26.06.2007 in A.P.D.
No. 614 of 2005 of the High Court of Calcutta.

    Ranjit Kumar, Arjun Kris~nan for the Appellants.                B

    R.D. Upadhyay, Asha Updhyay for the Respondents.

    The Judgment of the Court was delivered by

    ANIL R. DAVE, J. 1. Being aggrieved by the judgment and         C
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 Hi~h Court in
the aforestated appeal.
                                                                    D
    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,     E
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.       F
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            G
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        H
    148       SUPREME COURT REPORTS                    [2014] 8 S.C.R.


A   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
8
    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
C         proposedpurchasers 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
D         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
E   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
F   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
G   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.
H
          MOHAMMAD HAFIZULLAH v. JAVED AKHTAR                  1A9
                   [ANIL R. DAVE, J.]
        7. After the permission had been granted by the High          A
  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.                                B

       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        C
  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.                                D

      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             E
 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,
                                                                      F
  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     G
  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       H

;j"-..•
    150     SUPREME COURT REPORTS               [2014] 8 S.C.R.


A 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
B 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
C 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
D 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
E 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 I
  are heirs of Smt. Shamima Khanam, in whose favour share of
F 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.
G The learned counsel had submi~ted 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
H
     MOHAMMAD HAFIZULLAH v. JAVED AKHTAR                      151
              [ANIL R. DAVE, J.]
 was no obligation on the part of Smt. Kanak Nahar to sell her       A
 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       B
 learned counsel that Smt. Kanak Nahar had willingly sold her
 share to Smt. Shamima Khanam and therefore, the judgment
Idelivered 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      c
 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     D
 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.                                       E

      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         F
  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.
                                                                     G
      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   H
    152      SUPREME COURT REPORTS                [2014] 8 S.C.R.


A   Javed Akhtar and Shri Parvez Akhtar as proposed purchasers
    in the said order and therefore, it cannot be said that there was
    no understanding Qr agreement in.relation to sale of the share
    of Smt. Kanak Nahar in favour of Shri Javed Akhtar and Shri
    Parvez Akhtar.
B
          17. The learned counsel had strenuously argued that a
    fraud· had been committed by or on behalf of. Smt. Shami ma
    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.
C   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
D   Shri Javed Akhtar and Shri Parvez Akhtar. He had further
    submitted that S/Tit. 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
E    Khanam. It hsd 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
F    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.

G      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
H the appeal deserved to be dismissed.
    MOHAMMAD HAFIZULLAH v. JAVED AKHTAR                      153
             [ANIL R. DAVE, J.]
     19. Upon hearing the learned counsel for the parties, in our   A
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    B
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   C
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           D
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.
                                                                    E
     21. It is also pertinent to note that it was not possible 1o
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    F
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     G
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
                                                                    H
    154       SUPREME COURT REPORTS                [2014] 8 S.C.R.


A 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
8
  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
c 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
D the High Court not to hear these tw9 persons while passing a
  fresh order, whereby buyers had been changed from Shri
  Javed Akhtar and Shri Parvez Akhtar to Smt. Shamima
  Khanam.

E      23. The findings with regard to the fraud are findings of fact.
  After appreciation of tile 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
F 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.

G        24. For the aforestated reasons, we are of the view thal
    there is no substance in this appeal and the orders passed by
    the Courts below are just and proper and the(efore, we dismiss
    the appeal with no order as to costs.,
H   Bibhuti Bhushan Bose                             Appeal dismissed.