JUDGMENT
N.G. Nandi, J.
(1) By this application the plaintiffs seek to restrain defendants 6 and 7 from executing any sale deed with regard to the respective shares in the property bearing No. 2217, Naya Mohalla, Gali Qasam Jan, Balli Maran, Delhi and also seek direction to defendant No. 1 to maintain status quo in respect of the suit property till the final disposal of the suit.
(2) It is averred in the plaint that the property originally belonged to one Shri Mohd. Ibrahim, who died, leaving Mst. Hazara Bi, Abdul Ghani and Mst. Marium Bi. That Mst. Hazra Bi, one of the heirs of deceased Mohd. lbrahim filed a Suit No. 187/79 for partition of the property by metes and bounds. In that suit it was offerred to the parties to the suit that they must offer bids in the Court itself and the said auction was confined only to the parties to the suit and the predecessor in interest of the plaintiffs and defendants No. 1 to 5, namely Abdul Ghani, made the highest bid of Rs. 4 lakhs. In the said suit it was held that in the auction of the suit property defendant No. 2 has been declared the highest bidder who agreed to purchase the suit property for a sum of Rs. 4 lakhs. On behalf of defendant No. 1 and plaintiffs, consent has been given to the purchase of the suit property for the above-stated consideration. It has been agreed between the parties that the sale deed of property in suit shall be executed in favor of defendant No. 2, or his nominee, on receipt of the proportionate share by defendant No. 1 and the plaintiff regarding their right to set off. In that suit the Court recorded the statement of Mohd. Tahir, General Attorney of defendant No. 2, Abdul Ghani, which reads as follows: “I undertake to pay on behalf of defendant No. 2 to the plaintiff Rs. 2 lakhs, which is the value of their share in the suit property andRs.66666.00 to defendant No. 1, which is the value of the share of defendant No. 1 in the suit property. Plaintiffs shall be paid Rs. 1 lakh by way of demand draft within 2 months from today and the balance of Rs. 1 lakh shall be paid when the plaintiffs hand over vacant possession of the share of the property in their possession and execute the sale deed. Defendant No. 1 shall be paid Rs. 60,000.00 by way of demand draft within two months from today and the balance amount of Rs. 66666/ – shall be paid at the time of execution of the sale deed by him. Plaintiffs have been given one year time from today to retain possession of the suit property in their possession. In case they agree to hand over the possession earlier, the payment of the balance amount shall be given to them at the time of the execution of the sale deed before the Sub Registrar. Plaintiffs as well as defendant No. 2 have agreed that they will not claim any arrears of rent from any one of the occupants of the property. I have agreed to leave defendant No. 1 and the plaintiffs from any liability of the house-tax in respect of the suit property. The expenses of the execution of the sale deed will be borne by the defendant No. 2 Abdul Ghani.”
(3) Azizul Rehman, defendant No. 7, in the said suit 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.That the predecessor in interest of defendant No. 6 in this suit i.e., his father late Fakir Mohd. made the following statement: “STATEMENT made on behalf of defendant No. 2 is correct and as per compromise voluntarily arrived by me in the Court that the defendant No. 2, I undertake to vacate the portion in my possession latest within one year from today. I shall 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 my share in the said property…..”
(4) That in view of the above the learned Sub-Judge on 31.8.82 passed the following order:- “In view of the above statements, the suit of the parties dismissed as fully satisfied. The parties shall comply with their undertakings given in the Court today. File to be consigned to the record room”.
(5) According to plaintiffs, defendant No. 1 as the nominee of Abdul Ghani would not be entitled to the sale deed in his favor as the nomination is not proved. That defendant No. 1 did not join the other heirs in the earlier suit; that the nomination does not make defendant No. 1 as owner; that the property shall be 8 in the name of all the heirs; that defendant No. 1 is on the ground floor; that there is one tenant on the upper floor; that by nomination there is no bequeath in favor of defendant No. 1 and that if the documents permitted to be executed in favor of defendant No. 1, he will get the possession of first floor also and there will be no complications.
(6) The say of defendants 1 to 4 is that nomination is in favor of defendant No. 1 and that he has paid the amount as agreed arid there would be transaction only for 2/3 of the property for which payment is made by him and that the nomination cannot be challenged; that there is no equity in favor of the plaintiffs; that sale deed only for 1/3rd portion can be executed if the plaintiffs succeed; that there is no encumbrance in any portion of the property and defendants 6 and 7 are not concerned with the property. That the nomination is for2/3rd portion and the Will is not for 2/3rd portion. Defendants be permitted to have documents in their favor and that Will being for 1/3rd portion, the same may not be decided at this juncture; that there is no bar for nomination: It is the say of defendants 6 and 7 that there is no Will at all in favor of the heirs even for 1/3rd portion, and that the plaintiffs have not consented to the Will.
(7) It is not in dispute that Mst Hazara Bi filed Civil Suit No. 187/79 for partition by metes and bounds and in that suit as the property was reported to be non-partiable by the local Commissioner, the Court offered the parties to the said suit that they may give bids in the Court itself and the said auction was confirmed. That Abdul Ghani father of present defendant No. 1 made the highest bid of Rs. 4 lakhs and he himself was the owner to the extent of 1/3 share, Mst. Hazra Bi was stated to be the owner to extent of “A share and defendant No. 7 in this suit was also a party defendant in that suit was owner of 1 /6th share. It is not in dispute that defendant No. 2 Abdul Ghani was declared the highest bidder and he agreed to purchase the suit property for a sum of Rs. 4 lakhs and it was agreed between the parties that the sale deed of the property in suit would be executed in favor of defendant No. 2 Abdul Ghani or his nominee on receipt of the proportionate share (by defendant No. 1 and the plaintiffs in the earlier suit) regarding their respective shares in the suit property.
(8) According to defendant No. 1 he has paid a sum of Rs.1,85,000.00 to defendants 6 and 7 and that he is the nominee of his father Abdul Ghani who has also executed a Will in his favor bequeathing all his rights, title and interest in the suit property in his favor and that defendants 6 and 7 should be permitted to execute the sale deed in his favor on receipt of the balance consideration. It is not disputed that defendants Nos. 6 and 7 have been paid Rs. 1,85,000.00 by defendant No. 1. Pursuant to the order in the earlier suit. As per the order and the statement given in the earlier suit on behalf of Abdul Ghani, it is clear that Abdul Ghani was the highest bidder who agreed to purchase the suit property for a sum of Rs. 4 lakhs and defendant No. 1 and the plaintiff in the earlier suit have also consented for the purchase of the suit property by Abdul Ghani or his nominee for the above consideration. It is thus suggested that the parties to the earlier suit agreed that the sale deed of the property in suit would be executed in favor of Abdul Ghani, defendant No. 2 or his nominee on receipt of the proportionate share of defendant No. 1 and the plaintiff regarding their rights to set off. 9
(9) A nominee is normally understood to be a person entitled to receive the property on behalf of the rightful claimant. In the instant case defendant No. 1 by virtue of nomination in his favor would not be receiving any amount as the trustee on behalf of the rightful claimant but in the instant case he has also parted with the substantial amount, namely Rs. l,85,000.00 in favor of defendants No. 6 and 7 and defendants Nos. 6 and 7 have accepted the amount from defendant No. 1 as the nominee of Abdul Ghani. Thus looking to the conduct of defendants 6 and 7 in accepting the amount under the order in earlier suit, from defendant No. 1 it cannot be said that there is no nomination prima fade in favor of defendant No. 1 by his father Abdul Ghani. Again the question of ownership, if any, pursuant to nomination would be between defendant No. 1 and the other heirs of deceased Abdul Ghani.
(10) As far as the question of nomination is concerned, it maybe seen prima fade that the nomination in favor of defendant No. 1 by Abdul Ghani has been accepted by defendants 6 and 7 by their conduct who are the persons to receive the amount under the settlement. As far as the Will dated 8.10.82 by Abdul Ghani propounded by defendants No. 1 is concerned, in my opinion, would require consideration, though the same is not connected with defendants 6 and 7 executing sale deed in favor of defendants No. 1, in respect of their shares in the property.
(11) There can be 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. In my opinion, the plaintiffs have not been able to show prima fade as to why defendants 6 and 7 be 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 appears by their conduct accepted the nomination by Abdul Ghani,infavor of defendants No.1, by accepting Rs. 1,85,000.00 pursuant to the understanding arrived at in the earlier proceedings. In the above prima fade view of the matter, I am inclined to dismiss the application for interim relief for want of prima fade case on the part of the plaintiffs. I.A. stands dismissed.
