MOHAMMAD HAFIZULLAH & ORS. versus JAVED AKHTAR & ORS.

Citation: [2014] 8 S.C.R. 144 · Decided: 02-07-2014 · Supreme Court of India · Bench: ANIL R. DAVE · Disposal: Dismissed

Judgment (excerpt)

A 
B 
[2014] 8 S.C.R. 144 
MOHAMMAD HAFIZULLAH & ORS. 
v. 
JAVED AKHTAR & ORS. 
(Civil Appeal No.4712 of 2007) 
JULY 2, 2014 
[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 
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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 

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