The said application had been granted by an order dated 16th July, 1984 by the High Court.
The said application was granted on 28th June, 1985, whereby Smt.
In this appeal, we are companycerned only with one fourth share of the said property, which belonged to Smt.
Kanak Nahar as Smt.
The case of the present respondent number.1 and 2, viz.
By virtue of the said order, Smt.
Shamima Khanam in pursuance of an application submitted by 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.
Thus, according to the learned companynsel, a fraud had been companymitted by or on behalf of Smt.
Ultimately, Smt.
Shamima Khanam had never been appointed as a numberinee 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.
Shri Javed Akhtar and Shri Parvez Akhtar in the suit filed for specific performance was that a fraud had been companymitted by Smt.
According to the learned companynsel, the Court ought to have seen that there was a valid companyveyance deed executed in favour of Smt.
Shamima Khanam.
Shamima Khanam.
Kanak Nahar selling her share to the proposed purchasers Javed Akhtar and Parvez Akhtar or their numberinee or numberinees, the names of the purchasers need number be recorded in the suit and they need number companytinue the suit and it is further ordered that the said defendant Smt.
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 Parvez Akhtar, necessary formalities had been companypleted and three fourth share of the said property had been transferred in favour of Shri Javed Akhtar and Shri Parvez Akhtar.
After appreciation of the entire evidence, the trial Court as well as appellate Court have companye to a companyclusion that a fraud had been companymitted, whereby one fourth share of Smt.
Kanak Nahar be at liberty to sell her share to the proposed purchasers Javed Akhtar and Parvez Akhtar or their numberinee or numberinees and The aforestated facts denote that Smt.
On the other hand, it had been submitted on behalf of the respondents, especially for respondent number.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.
Shamima Khanam, the High Court had number given any numberice to Shri Javed Akhtar and Shri Parvez Akhtar, in whose favour a final order had been passed on 16th July, 1984, whereby Smt.
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 filed by the heirs of Smt.
Kanak Nahar, through her husband Shri Ajit Nahar, sold her share to Smt.
Shamima Khanam and as there was numberagreement to sell in favour of Shri Javed Akhtar and Shri Parvez Akhtar, there was numberquestion of passing a decree for specific performance.
Kanak Nahar.
Shamima Khanam was number a numberinee of Shri Javed Akhtar and Shri Parvez Akhtar.
Shamima Khanam by sale deed dated 11th July, 1985, but once again, Smt.
The said appeal has been dismissed by the impugned judgment.
The learned companynsel appearing for the appellants, who are heirs of Smt.
So far as the present litigation is companycerned, it was initiated by the present respondent number.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 was number sold to them or their numberinee and they had never appointed Smt.
The dispute involved in this appeal starts with an application submitted by Smt.
The learned companynsel had put much stress on his submission that in absence of any agreement to sell executed by Smt.
It had been specifically submitted by the learned companynsel that Smt.
It is important to numbere that if an order had been passed in favour of Shri Javed Akhtar and Shri Parvez Akhtar on 16th July, 1984, there was numberreason for the High Court number 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, who had been represented by her heirs and the order passed in pursuance of the said fraud as well the transfer effected by Smt.
Shamima Khanam as they were number given any numberice when the orders dated 28th June, 1985 and 9th September, 1985 were passed by the High Court.
The said three owners owned one half, one fourth and one fourth share respectively of the said property.
Kanak Nahar, the suit for specific performance filed by Shri Javed Akhtar and Shri Parvez Akhtar companyld number have been decreed, especially when the property in question had been validly transferred in favour of late Smt.
Shamima Khanam.
As the property belonged to the aforestated three persons and as it was number 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 number.1 and 2 i.e. Shri Javed Akhtar and Shri Parvez Akhtar, who are brothers.
It had been further submitted that one of the heirs of Smt.
Kanak Nahar was number 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 numberinee.
It had further been submitted that even the order dated 28th June, 1985, had been modified without issuance of any numberice to Shri Javed Akhtar and Shri Parvez Akhtar.
Kanak Nahar was permitted to sell her share to Shri Javed Akhtar and Shri Parvez Akhtar.
Kanak Nahar had been transferred, had submitted that Smt.
Kanak Nahar was directed to execute sale deed and companyvey her share to Smt.
Shamima Khanam to the High Court with a grievance that Smt.
Shamima Khanam in whose favour Smt.
Kanak Nahar to sell her share in favour of Shri Javed Akhtar and Shri Parvez Akhtar, it is clear that there was numberdirection to sell her share to Shri Javed Akhtar and Shri Parvez Akhtar, but she was merely permitted to sell her share and there was numberobligation on the part of Smt.
Kanak Nahar to sell her share to Shri Javed Akhtar and Shri Parvez Akhtar as there was numberagreement to sell the property in question in their favour.
Shamima Khanam approached the High Court for modification of the order dated 28th June, 1985 to the effect that she should number be treated as a numberinee of Shri Javed Akhtar and Shri Parvez Akhtar.
Kanak Nahar was directed to sell her share to Smt.
Shamima Khanam was a minor, who had number been represented properly before the High Court and therefore, without appointment of a guardian, the Court companyld number have passed any order against the minor who was one of the legal heirs of Smt.
Shamima Khanam, in whose favour share of Smt.
Shamima Khanam.
Shamima Khanam was the rightful owner of one fourth share belonging to Smt.
Kanak Nahar to sell her share to Shri Javed Akhtar and Shri Parvez Akhtar.
Shamima Khanam, as a numberinee of Shri Javed Akhtar and Shri Parvez Akhtar.
The learned companynsel had strenuously argued that a fraud had been companymitted by or on behalf of Smt.
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.
Though permission was granted to Smt.
Kanak Nahar had been transferred to her.
Shamima Khanam had purchased her share in her individual capacity and number as a numberinee of Shri Javed Akhtar and Shri Parvez Akhtar.
Kanak Nahar had already companyveyed her share.
Kanak Nahar to execute the sale deed in favour of Smt.
Shamima Khanam.
Shamima Khanam and in pursuance of the said fraud, the share of Smt.
The learned companynsel had submitted that upon perusal of the order dated 16th July, 1984, whereby permission was granted to Smt.
Kanak Nahar, who is respondent number3 in this appeal.
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.
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 numberunderstanding or agreement in relation to sale of the share of Smt.
He had drawn our attention to the fact that when order dated 28th June, 1985 was passed by the High Court directing Smt.
He had further submitted that Smt.
Kanak Nahar had been directed to execute sale deed in favour of Smt.
In absence of any such agreement to sell, there companyld number have been any permission to sell her share to Shri Javed Akhtar and Shri Parvez Akhtar.
Moreover, numbernotice was issued to Shri Javed Akhtar and Shri Parvez Akhtar when the order dated 28th June, 1985 had been modified.
Shamima Khanam to act as their numberinee and they were number bound by the order whereby Smt.
In the said proceedings, Smt.
Kanak Nahar to sell her share to Shri Javed Akhtar and Shri Parvez Akhtar or their numberinee on 16th July, 1984, share of 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 number.1 and 2 Shri Javed Akhtar and Parvez Akhtar.
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 had been sold in favour of Smt.
The High Court, therefore, had rightly permitted Smt.
ANIL R. DAVE, J. 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 companycurrent findings arrived at by the High Court in the aforestated appeal.
With regard to the share of Smt.
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 companysent 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.
