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.
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.
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