MUSHTAQ AHMED Vs. UNION OF INDIA

JUDGEMENT

(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 fattier and obtained Pakistani citizenship. Haji Mohd. Siddique died on 21.3.1963. On me 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 favour of his son Mohd. Rafiq. On the Letters of Administration having been granted in his favour 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 AliAlvi 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 favour 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 favour 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 to have been sold by Safdar Ali in favour 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 favour 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 himse lf 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 favour 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 favour 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 favour 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 favour 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 favour 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 favour of Mohd. Rafiq.