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2018 Supreme(Mad) 3171
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
C.V. KARTHIKEYAN, J.
Mohammed Iliyas - Appellant
Vs.
Yasar Arabath - Respondent
Appeal Suit No. 113 of 2016; Civil Miscellaneous Petition No. 7503 of 2016
Decided On : 25-10-2018
R. Suryanarayanan, Adv., A. Arumugam, Adv.
The burden of proof for discharge lies with the defendant in a mortgage dispute, and without evidence, the court cannot interfere with the final decree.
Headnote:
Mortgage - Property Dispute - Code of Civil Procedure, Order 34 Rule 5(1) - Ex.A.1, Ex.A.2, Ex.A.3
Fact of the Case:
The plaintiff filed a suit seeking a preliminary decree based on a mortgage deed. The defendant contested, claiming that the gift deed relinquishing property share to him was not valid. The trial court decreed the suit, and the plaintiff filed for a final decree. The defendant claimed to have settled the amount but failed to produce a receipt. The court allowed the final decree application, leading to the appeal.
Finding of the Court:
The court found that the sisters relinquished their share through a registered gift deed, making them unnecessary parties. It held that since the defendant did not appeal the preliminary decree, his claims in the final decree application could not be accepted without proof of discharge. As the defendant failed to produce the receipt, the court confirmed the final decree.
Issues: Validity of gift deed, Scope of final decree application, Burden of proof for discharge, Interference with the final decree order
Ratio Decidendi: Sisters relinquishing property share through a registered gift deed made them unnecessary parties. Failure to appeal the preliminary decree limited the defendant's claims in the final decree application. The burden of proof for discharge lies with the defendant, and without evidence, the court cannot interfere with the final decree.
Final Decision: The appeal was dismissed, and the judgment and decree in the final decree application were confirmed.
C.V. Karthikeyan, J.
This appeal has been filed by the first defendant in O.S.No.23 of 2013, challenging the judgment and decree dated 12.02.2016 in I.A.No.305 of 2015 on the file of the learned Additional District Judge, Periyakulam, which was an application for passing final decree.
2. O.S.No.23 of 2013 had been filed by S.Yasar Arabath against A.Mohammed Iliyas and Beer Syed, seeking a judgment and decree to pass preliminary decree on the strength of a mortgage deed dated 04.10.2012 executed by the 1st defendant A.Mohammed Iliyas in favour of the plaintiff. The mortgage amount was Rs. 19,00,000/- (Rupees Nineteen Lakhs only). The period of the mortgage was six months. The property mortgaged was land and building in Door No.52, Muslim Street, Kombai Municipality, Periyakulam measuring about 1606-+ square feet.
3. According to the plaintiff, the suit property originally belonged to Sarabeevi, W/o. Beer Mohammed Rowther and her children Mohammed Mustafa, Mohammed Ismail, Usai Meeralevai, Abdul Sukkur, Mohaideen Abdul Khader Jailani. They acquired title to the property by a settlement deed dated 14.05.1965. They had sold the property to P.Abdul Rahim by sale deed dated 12.12.1977. The 1st defendant was the son of M.Abdul Rahim. The said P.Abdul Rahim died on 28.02.1996. The suit property was inherited by his wife and the 1st defendant and his sisters. After the death of his mother, the sisters had executed a gift deed in favour of the 1st defendant by document dated 04.10.2012. On 04.10.2012 the 1st defendant mortgaged the suit property for a sum of Rs. 19,00,000/- to the plaintiff. It had been claimed by the plaintiff that the 1st defendant did not make any payment towards the mortgage amount. Consequently, the suit had been filed seeking a preliminary decree on the basis of mortgage deed dated 04.10.2012.
4. The 1st defendant filed written statement stating that the gift deed dated 04.10.2012 executed by the sisters in his favour was not valid. It was stated that all the sisters had an equal share in the suit property. It was stated that he had 2/7th share alone. It was therefore stated that the mortgage deed was not enforceable. It was claimed that the suit should be dismissed.
5. This suit came up for consideration before the learned Additional District Judge, Periyakulam, who, by judgment dated 23.11.2015, decreed the suit with costs. It was held that the 1st defendant should pay a sum of Rs. 20,52,000/- together with interest @ 6% per annum. Three months time was given to make the said payment. A preliminary decree was granted on the above terms. It had been further stated in that decree that if the 1st defendant fails to make the said payment, the suit property would be brought for sale through Court auction. Thereafter, since the amount was not paid, the plaintiff filed I.A.No.305 of 2015 under Order 34 Rule 5(1) of Code of Civil Procedure. The said application was filed seeking to pass a final decree to bring the property for sale. It was stated that on the date of filing of the said application, the amount payable together with interest was Rs. 24,65,858/-.
6. The 1st defendant filed his counter in the said application. It had been stated that after passing of the final decree, a sum of Rs. 20,00,000/- towards principal and also interest amount had also been paid to the plaintiff in the presence of mediators Raja Mohammed and Rafeeq and a receipt was also obtained on 20.12.2015.
7. In the judgment under appeal, it was observed that the said receipt has not been produced by the 1st defendant. Consequently, it had been stated that the said statement of the 1st defendant cannot be countenanced. The said application was therefore allowed by order dated 12.02.2016. A final decree was passed on the basis of said order directing the mortgaged property to be sold by Court auction.
8. Heard arguments advanced by Mr.R.Suryanarayanan, learned Counsel appearing for the appellant and Mr.A.Arumugam, learned counsel for M/s. Ajmal A
