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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.  

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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.

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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

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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

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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

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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

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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.

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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

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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

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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.

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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

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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.

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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.  

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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

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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

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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