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IN THE HIGH COURT OF KERALA AT ERNAKULAM
SATHISH NINAN, P.KRISHNA KUMAR
Peter Damiyan S/o Joseph – Appellant
Versus
Messers Oiko Credit Ecumenical Development Co-Operative Society – Respondent
| Table of Content |
|---|
| 1. dispute on mortgage and power of attorney validity. (Para 2 , 3 , 4 , 5) |
| 2. validity of power of attorney and mortgage is crucial. (Para 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20) |
| 3. mortgage requires registration for legal effect. (Para 21) |
JUDGMENT :
SATHISH NINAN, J.
1. The decree in a suit for money is under challenge by the 5th defendant. Since the issue involved in the appeal is confined to the liability of the 5th defendant and his properties, only the facts relevant thereto are being adverted.
2. The plaintiff is a financial institution seated abroad. The first defendant is a co-operative society. Defendants 2 and 3 are its Executive Director and President. The plaintiff granted a loan of US Dollars 4,28,571/- to the first defendant Society. The loan was adequately secured by mortgage of the immovable properties belonging to defendants 4 to 6. Defendants 4 to 6 are brothers. Plaintiff claims that, defendants 5 and 6 had executed a power of attorney in favour of the 4th defendant and mortgage was created by the 4th defendant of the properties of defendants 5 and 6. Alleging failure on the part of the defendants to clear off the liability, suit was
A mortgage must be registered to be valid; an unregistered mortgage deed does not affect property rights.
The burden of proof lies with the plaintiff to establish fraud in the execution of registered documents, which carry a presumption of validity.
Registered Power of Attorney presumed valid under S.114(e) Evidence Act unless fraud specifically pleaded and proved; lack of Tamil literacy and attesting witness ignorance insufficient to invalidate....
The burden of proof lies on the party asserting facts, with claims of forgery regarding a registered power of attorney necessitating all relevant parties to be joined to the suit for effective adjudi....
A usufructuary mortgage must be in writing and registered to be valid; failure to establish such a mortgage negates the right to seek redemption.
The court established that the General Power of Attorney was fictitious and the sale deed executed under it was null and void, emphasizing the burden of proof lies with the defendants under Section 8....
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