Mushtaq Ahmed And Anr. vs Union Of India (Uoi) And Ors. on 10 May, 2002

Delhi High Court
Mushtaq Ahmed And Anr. vs Union Of India (Uoi) And Ors. on 10 May, 2002
Equivalent citations: 98 (2002) DLT 299
Author: S Mahajan
Bench: S Mahajan


JUDGMENT

S.K. Mahajan, J.

1. Rule.

In the present petition, the petitioners have sought a declaration that the properties bearing Nos. 1437 and 1463 are not “enemy properties” and that the notice dated 19.9.1999, was illegal and ultra vires. Facts in short relevant for decision of this petition are:

One Haji Mohd. Siddique owned different properties in Delhi. One of the properties owned by Haji Mohd. Siddique bears No. 1463, Mandi Pan, Sadar Bazaar, Delhi. Haji Mohd. Siddique died on 21.3.1963. He had two sons, namely, Zikrur Rehman and Mohd. Rafiq. Both these sons had migrated to Pakistan during the life-time of their father and obtained Pakistani citizenship. Haji Mohd. Siddique died on21.3.1963. On the death of Haji Mohd. Siddique one of his sons Mohd. Rafiq came to India and filed a petition for the grant of Letters of Administration of the properties left behind by his father Haji Mohd. Siddique. In this petition being probate case No. 6/1964, the senior Sub-Judge, conferred with the delegated powers of the District Judge, granted Letters of Administration of the estate of Haji Mohd. Siddique, including property Nos. 1463, 1434 and 1437 Mandi Pan, Sadar Bazaar, Delhi, in favor of his son Mohd. Rafiq. On the Letters of Administration having been granted in his favor Mohd. Rafiq issued notice to one of his tenants for vacating the property.

2. On 10.9.1965, the Government of India issued a notification declaring all the properties owned by the Pakistani nationals as “enemy properties” and declared the same to have vested in the custodian of “enemy property”. Since Mohd. Rafiq and Zikrur Rehman both sons of Haji Mohd. Siddique were Pakistani nationals and had obtained Pakistani citizenship on their having migrated to Pakistan, the properties in question also by the virtue of the aforesaid notification vested in the custodian of “enemy property”.

3. One Munshi Haidar Ali Alvi claimed himself to be the Dewan of Haji Mohd.

Siddique. Safdar Ali is the son of the aforesaid Munshi Haidar Ali Alvi. By a sale deed executed by Safdar Ali on January 2, 1999, the property bearing No. 1463 was purported to have been sold to the petitioners. It was alleged in the sale deed that Haji Mohd. Siddique had executed a Will on 10.5.1962 in respect of his properties in favor of Munshi Haidar Ali Alvi and after the death of Haji Mohd. Siddique, Munshi Haidar Ali Alvi became the absolute owner of the properties of the aforesaid Haji Mohd. Siddique. It is further alleged that Munshi Haidar Ali Alvi executed a Will on 12.10.1984 in favor of Safdar Ali and thus Safdar Ali had the rignt to transfer the property to any person he liked, he having inherited the same on the death of Munshi Haidar Ali Alvi. Before the sale of this property on 2.1.1999, another sale deed was executed by Safdar Ali on 7.8.1998 by which properties bearing Nos. 1434 and 1437, Mandi Pan, Sadar Bazaar, Delhi were also purported tc have been sold by Safdar Ali in favor of petitioner No. 2. Petitioner No. 1 is the attesting witness to this deed. While in the sale deed dated 2.1.1999 purporting to sell property No. 1463, the ownership is claimed by Safdar Ali on the basis of his having inherited the property by virtue of a Will executed by Munshi Haidar Ali Alvi in whose favor a Will was allegedly executed by Haji Mohd. Siddique, in the sale deed dated 7th August, 1998 purportedly selling properties bearing Nos. 1434 and 1437, Safdar Ali claimed himself to be the attorney of Mohd. Rafiq, son of Haji Mohd. Siddique. In this sale deed dated August 7, 1998, it is clearly mentioned that Safdar Ali was appointed the attorney by Mohd. Rafiq by means of a special power of attorney dated 16th April, 1965 and the said Mohd. Rafiq was still alive and had not withdrawn the same. It is also mentioned in the sale deed that on the death of Haji Mohd. Siddique the Court of the Senior Sub-Judge had granted the Letters of Administration in favor of Mohd. Rafiq on 3rd August, 1965. It is thus clear that as on 7th August, 1998, not only Safdar Ali but also both the petitioners were aware about the grant of Letters of Administration by the Court of the Senior Sub-Judge, Delhi in favor of Mohd. Rafiq. In this sale deed reference has also been made to a Will dated 16.4.1965, alleged to have been executed by Haji Mohd. Siddique in favor of Safdar Ali, though by this time Haji Mohd. Siddique had already died and his son had applied for the grant of Letters of Administration. Therefore, knowing fully well that Letters of Administration had been granted by a Court of competent jurisdiction in favor of Mohd. Rafiq who was the son of Haji Mohd. Siddique. Safdar Ali tried to pass on the property in suit, which at one time was owned by Haji Mohd. Siddique, to the petitioners on the basis of a Will alleged to have been executed by Haji Mohd. Siddique in favor of Munshi Haidar Ali Alvi. It is thus clear that not only Safdar Ali but the petitioners as well have tried to take advantage of the documents, which they very well knew, could not have been executed as Safdar Ali could not have any right, title or interest in the property due to the Letters of Administration having been granted by the Court of the Senior Sub-Judge in favor of Mohd. Rafiq.

4. The judgment passed in probate proceedings is a judgment in remand every person is bound by the same unless, of course, an application is made to set aside or revoke the Letters of Administration granted by the Court of competent jurisdiction. It is not the case of any of the petitioners that any application was at any

time filed by any one of them for revocation of the Letters of Administration granted by the Court of Senior Sub-Judge, Delhi. Moreover, having admitted in the sale deed executed on 7th August, 1998 that Safdar Ali was the attorney of Mohd. Rafiq and he was selling those properties only as an attorney, the said Safdar Ali could not in January, 1999 claim himself to be the owner of the properties left behind by Haji Mohd. Siddique and at the relevant time owned by Mohd. Rafiq in whose favor Letters of Administration was granted. As already mentioned above, the petitioner on 7th August, 1998 had allegedly sold property Nos. 1434 and 1437 to petitioner No. 2 and petitioner No. 1 was attesting witness to the said sale deed and a reference was duly made to the Letters of Administration in this sale deed. They were also thus aware of the grant of Letters of Administration in favor of Mohd. Rafiq. Mohd. Rafiq having migrated to Pakistan and having become its citizen was an “enemy” within the meaning of the notification dated 10th September, 1965 issued by the Government of India under the provisions of the Enemy Properties Act and the property on the issue of the notification had thus automatically vested in the custody of “enemy property”. On the property having thus vested in the custodian of “enemy property” no person including the owner had any right to transfer the property in favor of any other person. It is thus clear that no title was transferred in favor of the petitioners by virtue of any of the two sale deeds executed by Safdar Ali on 7th August, 1998 and 2nd January, 1999. Both Safdar Ali as well as the petitioners have clearly played a fraud and fabricated documents in order to grab the property and avoid the same to vest in the custodian of “enemy property” by claiming that the property was not owned by Mohd. Rafiq but was owned by Safdar Ali, who was an Indian citizen and the aforesaid notification issued under the Custodian of Enemy Properties Act did not apply to him.

5. In view of the aforesaid discussion, I am clearly of the view that no title in the properties had passed to the petitioners and the properties were owned by Mohd. Rafiq, who was a Pakistani citizen and on issue of the notification dated 10.9.1965, they have vested in the custodian of “enemy property”.

6. Having thus held that the properties have rightly vested in the custodian of “enemy property” and the petitioners have no right, title or interest therein, the only question remains is whether the petitioners have concealed material facts from the Court and have filed a false affidavit so as to obtain advantage for themselves and, if so, what action is required to be taken against them. As already mentioned above in the sale deed executed on 7th August, 1998 by Safdar Ali purporting to sell the property bearing Nos. 1434 and 1437 to petitioner No. 2, Safdar Ali had acted as attorney of Mohd. Rafiq and it is also alleged in that sale deed that Haji Mohd. Siddique had executed a Will in his favor on 16th April, 1965. Mohd. Siddique had died much earlier than 16th April, 1965 and this Will could not have been executed by him. In this deed a reference has been made to the Letters of Administration granted in favor of Mohd. Rafiq by the Court of Senior Sub-Judge. Petitioner No. 1 is attesting witness to this sale deed. Both the petitioners were thus aware that neither Safdar Ali nor his father could have any right, title or interest in the estate of Haji Mohd. Siddique. In the Letters of Administration the entire estate for which they were granted, was mentioned and the same included the properties for which

sale deeds were executed by Safdar Ali in favor of the petitioners. It is, therefore, clear that not only the properties mentioned in the sale deed executed on 7th August, 1998 but also the properties which were purported to have been sold to the petitioners by sale deed on 2nd January, 1999 formed part of the estate for which Letters of Administration were granted in favor of Mohd. Rafiq and knowing fully well that Mohd. Rafiq was the owner of the property by virtue of the Letters of Administration having been granted in his favor, the petitioners did not make any mention of the Letters of Administration in the writ petition and had come to the Court on the basis of a Will alleged to have been executed by Haji Mohd. Siddique in favor of Munshi Haidar Ali Alvi. Despite having purchased the property bearing Nos. 1434 and 1437 from Safdar Ali, who had acted as a attorney of Mohd. Rafiq, in whose favor Letters of Administration were granted by the Court of competent jurisdiction, the petitioner in the rejoinder has challenged the said Letters of Administration itself. It is stated in the rejoinder that the Letters of Administration were obtained by misrepresentation and concealment of the facts from the Court. It is thus clear that no mention either in the petition or in the rejoinder has been made by the petitioners about the execution of the sale deed by Safdar Ali as attorney of Mohd. Rafiq in favor of petitioner No. 2. The attempt of the petitioners clearly is to mislead the Court and conceal material facts from it. I am also of the view that the sale deed dated 2nd January, 1999 was prepared with a view to grab the property which had vested in the custodian of “enemy property”. Petitioners having purchased properties 1434 and 1437 from Mohd. Rafiq through his attorney Safdar Ali, have deliberately sworn a false affidavit when in rejoinder they state that the Letters of Administration were obtained by fraud and misrepresentation. Knowing fully well that the property belonged to Mohd. Rafiq, as recorded in the sale deed dated 7th August, 1998. Petitioners have clearly made a wrong statement in the rejoinder. The conduct of the petitioners is thus clearly an attempt to impede and interfere with the administration of justice and the same amounts to the commission of criminal contempt.

7. As held by the Supreme Court in Dhananjay Sharma v. State of Haryana, AIR 1995 SCC 1795, any conduct which has the tendency to interfere with the administration of justice or the due course of judicial proceedings amounts to the commission of criminal contempt. The swearing of false affidavits in judicial proceedings not only has the tendency of causing obstruction in the due course of judicial proceedings but also has the tendency to impede, obstruct and interfere with the administration of justice. The filing of false affidavits in judicial proceedings in any Court of law exposes the intention of the concerned party in perverting the course of justice. The due process of law cannot be permitted to be slighted nor the majesty of law be made a mockery by such acts or conduct on the part of the parties to the litigation or even while appearing as witnesses. Any one who makes an attempt to impede or undermine or obstruct the free flow of unsoiled stream of justice by resorting to the filing of false evidence, commits criminal contempt of the Court and renders himself to be liable in accordance with the Act. Filing of false affidavits or making false statement on oath in Courts aims at striking a blow at the Rule of Law and no Court can ignore such conduct which has a tendency to shake

public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by any one resorting to filing of false affidavit of giving of false statement and fabricating false evidence in a Court of law.

8. While, therefore, dismissing this writ petition with costs assessed at Rs. 20,000/- I also hold the petitioners guilty of having committed criminal contempt of Court. I, accordingly, direct them to be taken into custody and give them an opportunity to address arguments on the quantum of punishment. Petitioners on their furnishing personal bond in the sum of Rs. 10,000/- each to the satisfaction of the Registrar General of this Court, be released with an undertaking to appear in Court on the next date of hearing. Re-notify on 15th July, 2002.

9. Since Mr. Kirpal Singh and Mr. Sanjiv K. Chaudhary, Advocates have entered appearance on behalf of the petitioners. Mr. B.B. Gupta who was earlier representing the petitioners submits that he may be discharged from the case. In view of the submissions made, Mr. Gupta is discharged from the case.

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