1995 Supreme(Del) 278

High Court Of Delhi
MOHAMMAD TAHIR - Appellant
Versus
MOHAMMND SHAKIR - Respondent
Interim Application 11234 of 1990
Decided On : 03/24/1995

A nominee is entitled to receive the property on behalf of the rightful claimant, and if the nominee has parted with a substantial amount in favor of the defendants, who have accepted the amount, there is a prima facie case for the validity and enforceability of the nomination.

Headnote:

PARTITION SUIT - NOMINATION - EXECUTION OF SALE DEED - NOMINEE ENTITLED TO RECEIVE PROPERTY ON BEHALF OF RIGHTFUL CLAIMANT - NOMINEE PARTED WITH SUBSTANTIAL AMOUNT IN FAVOUR OF DEFENDANTS - DEFENDANTS ACCEPTED AMOUNT FROM NOMINEE - NOMINATION PRIMA FACIE IN FAVOUR OF NOMINEE - NO LEGAL IMPEDIMENT IN REQUIRING DEFENDANTS TO EXECUTE SALE DEED IN RESPECT OF THEIR SHARE IN THE PROPERTY.

Fact of the Case:

Plaintiffs sought to restrain defendants 6 and 7 from executing any sale deed with regard to their respective shares in the property and sought direction to defendant No. 1 to maintain status quo in respect of the suit property till the final disposal of the suit. The property originally belonged to one Shri Mohd. Ibrahim, who died, leaving Mst. Hazara Bi, Abdul Ghani, and Mst. Marium Bi. Mst. Hazra Bi filed a Suit No. 187/79 for partition of the property by metes and bounds. In that suit, Abdul Ghani, the predecessor in interest of the plaintiffs and defendants No. 1 to 5, made the highest bid of Rs. 4 lakhs. The Court recorded the statement of Mohd. Tahir, General Attorney of defendant No. 2, Abdul Ghani, who agreed to pay Rs. 2 lakhs to the plaintiffs and Rs. 66666.00 to defendant No. 1. Azizul Rehman, defendant No. 7, also made a statement stating that the statement of Mohd. Tahir is correct and as per compromise voluntarily arrived at with the plaintiff and defendant No. 1. The predecessor in interest of defendant No. 6 in this suit, Fakir Mohd., also made a statement that he would vacate the portion in his possession within one year from today and would be entitled to receive one Rs. lakh on handing over peaceful possession of premises to defendant No. 2 or his nominee on execution of the sale deed of his share in the said property. The learned Sub-Judge passed an order dismissing the suit as fully satisfied and directed the parties to comply with their undertakings given in the Court.

Finding of the Court:

The Court held that the nominee, defendant No. 1, was entitled to receive the property on behalf of the rightful claimant, Abdul Ghani, as he had parted with a substantial amount, namely Rs. 1,85,000.00 in favor of defendants No. 6 and 7, who had accepted the amount from defendant No. 1 as the nominee of Abdul Ghani. The Court further held that there was no legal impediment in requiring defendants 6 and 7 to execute the sale deed in respect of their 2/3rd share in the property having received Rs. 1,85,000.00 from defendant No. 1 pursuant to the agreement arrived at in Suit No. 187/79.

Issues: 1. Whether the nomination in favor of defendant No. 1 by Abdul Ghani was valid and enforceable? 2. Whether defendants 6 and 7 were legally bound to execute the sale deed in favor of defendant No. 1 for their respective shares in the property?

Ratio Decidendi: 1. A nominee is normally understood to be a person entitled to receive the property on behalf of the rightful claimant. 2. In the instant case, defendant No. 1, by virtue of the nomination in his favor, would not be receiving any amount as the trustee on behalf of the rightful claimant but had also parted with a substantial amount, namely Rs. 1,85,000.00 in favor of defendants No. 6 and 7. 3. Defendants Nos. 6 and 7 had accepted the amount from defendant No. 1 as the nominee of Abdul Ghani. 4. The conduct of defendants 6 and 7 in accepting the amount under the order in the earlier suit, from defendant No. 1, indicated that there was a nomination prima facie in favor of defendant No. 1 by his father Abdul Ghani. 5. The question of ownership, if any, pursuant to the nomination would be between defendant No. 1 and the other heirs of deceased Abdul Ghani.

Final Decision: The Court dismissed the application for interim relief for want of a prima facie case on the part of the plaintiffs. The Court held that defendants 6 and 7 were not restrained from executing the sale deed in favor of defendants No. 1 for the reasons afore-stated and defendants 6 and 7 as it prima facie appeared by their conduct accepted the nomination by Abdulghani, in favor of defendants No. 1, by accepting Rs. 1,85,000.00 pursuant to the understanding arrived at in the earlier proceedings.