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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 – for full text – LAW FOR ALL

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