Delhi High Court
Shri Mohd. Shakir & Ors. vs Shri Abdul Salam & Anr. on 18 November, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Ex.F.A.No. 3/2014 & CM Nos.1752-1753/2014 & 4906/2014
% 18th November, 2014
SHRI MOHD. SHAKIR & ORS. ......Appellants
Through: Mohd. Ikram, Adv.
VERSUS
SHRI ABDUL SALAM & ANR. ...... Respondents
Through: Mr. G.S.Sharma, Adv. for R-1
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This execution first appeal is filed by the appellants, who had
filed objections in the executing court against execution of the judgment and
decree dated 31.1.2012 passed in favour of the respondent no.1/decree
holder with respect to the property being H.No. C-428 (wrongly recorded as
H.No. C-420A in the impugned order dated 10.10.2013), Gali No. 10, (out
of Khasra No. 1/7) Brij Puri, Delhi-94.
2. Objectors in their objection applications stated that the property
originally belonged to Sh. Ram Saran, who sold it to Shamshad, who further
Ex.F.A 3/2014 Page 1 of 5
sold it to the judgment debtor (JD)/respondent no.2/Sh. Hussain Ahmad and
who thereafter sold it to Jaibun Nisha and who further sold it to Sh. Israr and
Sh. Israr sold 50 sq. yds to the objector Mohd. Shakir (petitioner no.1 herein)
and who has inducted a tenant Mohd. Akil (petitioner no.3 herein). In sum
and substance the objectors claimed that they have independent title to the
property having purchased it from Smt. Jaibun Nisha.
3. At this stage, it must be noted that Smt. Jaibun Nisha is none
other than wife of JD/respondent no.2/Sh. Hussain Ahmad. Objectors Mohd.
Shakir and Mohd. Akil are the real brothers of Sh. Israr and objector Smt.
Kaneez Fatima is the mother of Sh. Israr. The issue in the present case is
whether Sh. Israr validly purchased rights in the suit property from Smt.
Jaibun Nisha.
4. Learned counsel for the appellants has claimed that objectors
validly received title to the suit property from Smt. Jaibun Nisha because
JD/respondent no.2/ Sh. Hussain Ahmad had by virtue of an agreement to
sell, affidavit, receipt, all dated 14.5.2004 had transferred rights in the suit
property to Smt. Jaibun Nisha i.e the husband/JD/respondent no.2 has
transferred rights in the suit property to his wife Smt. Jaibun Nisha in terms
of the documentation dated 14.5.2004, and that since objectors have
Ex.F.A 3/2014 Page 2 of 5
purchased rights in the suit property from Smt. Jaibun Nisha through Sh.
Israr in November 2008 and December 2008 respectively,
objectors/appellants have an independent title and are not liable to be
evicted in execution of the judgment and decree dated 31.1.2012.
5. The objection applications as also this petition is a gross abuse
of the process of the law because the documents dated 14.5.2004 allegedly
executed by the JD in favour of his wife Smt. Jaibun Nisha are not only
forged and fabricated documents created only to defeat the rights of the
decree holder/respondent no.1 but also that even if we assume that the
documents were executed on the dates they purport to be executed, even
then the documents are illegal documents which do not confer any rights
upon either the objectors or their predecessor Sh. Israr.
6. The fact that the documents dated 14.5.2004 by which JD is
allegedly said to have transferred his rights in the suit property to his wife
Smt. Jaibun Nisha are forged and fabricated documents becomes clear from
the fact that the objectors cannot establish that the documents were in fact
executed on 14.5.2004 as claimed because the payment which is said to have
been made under the documentation is said to be in cash and not in cheque.
Not only there is no payment in cheque, these documents have been
Ex.F.A 3/2014 Page 3 of 5
executed on 14.5.2004 and consequently, these documents cannot create any
rights by virtue of the amended Section 53-A of the Transfer of Property
Act, 1882 which requires that the agreement to sell must be registered and
stamped with 90% of the value of the consideration of the property
transferred. Section 53-A of the Transfer of Property Act was amended by
Act 48 of 2001 w.e.f 24.9.2001 and the effect of this amendment is that no
agreement to sell in the nature of part performance under Section 53-A can
be looked into unless the document is stamped and registered. Once the
documents dated 14.5.2004, even assuming they were executed on
14.5.2004, are against the provisions of law, then surely no rights under the
same can be claimed by virtue of the amended Section 53-A of the Transfer
of Property Act, as the requirements thereof are not complied with.
7. I must also note that I put a pointed query to the counsel for the
appellants/objectors to show as to if the documents dated 14.5.2004 were
executed, how they were actually acted upon including by filing the same
with income tax authorities or for the property tax purpose or in other public
record, and the counsel for the appellants/objectors had to concede that the
alleged documents dated 14.5.2004 have never been filed with any public
authorities for Smt. Jaibun Nisha or her alleged successors in interest to
Ex.F.A 3/2014 Page 4 of 5
claim any rights in the same. Clearly, therefore, the documents dated
14.5.2004 are forged and fabricated documents and did not confer any rights
upon the appellants or their predecessor in interest Sh. Israr.
8. It is therefore clear that the present petition is an abuse of the
process of the law because objectors are closely related and the
documentation executed in favour of Smt. Jaibun Nisha has been illegally
prepared to deprive the decree holder the fruit of the decree. Suit was filed
in this case way back on 1.3.2005 and which was decreed on 31.1.2012,
however even as of today in November, 2014, the decree holder has not been
able to take benefit of the decree because objectors have prevented the
execution of the decree.
9. In view of the above, the present petition is dismissed with
costs of Rs.50,000/- payable to the decree holder/respondent no.1. Costs
shall be paid within a period of four weeks from today.
NOVEMBER 18, 2014 VALMIKI J. MEHTA, J.
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