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2018 DIGILAW 3946 (MAD)

Mohammed Iliyas v. Yasar Arabath

2018-10-25

C.V.KARTHIKEYAN

body2018
JUDGMENT 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 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 Associates, appearing for the first respondent. 9. The appellant is the 1st defendant in the suit and the 1st respondent in I.A.No.305 of 2015. The 1st respondent herein was the plaintiff in the suit and the petitioner in I.A.No.305 of 2015. For the sake of convenience the parties will be termed as plaintiff and 1st defendant. 10. 9. The appellant is the 1st defendant in the suit and the 1st respondent in I.A.No.305 of 2015. The 1st respondent herein was the plaintiff in the suit and the petitioner in I.A.No.305 of 2015. For the sake of convenience the parties will be termed as plaintiff and 1st defendant. 10. It is the contention of Mr.R.Suryanarayanan, learned Counsel appearing for the appellant that the amount had been settled after the preliminary decree was passed. Learned Counsel also stated that the sisters of the 1st defendant should be made parties to the application. Mr.A.Arumugam, learned Counsel appearing for the 1st respondent, however stated that the proceedings before the trial Court were unimpeachable and further pointed out that the 1st defendant had not filed any appeal against the preliminary decree and consequently, he cannot raise these grounds in the final decree application. 11. I have carefully considered the arguments of both sides. 12. The points which arises for determination in the appeal are as follows : 1. Whether the sisters of the 1st defendant are necessary parties in the final decree application ? 2. When appeal had not been filed against the preliminary decree, what is the scope of the final decree application ? 3. When the 1st defendant pleads discharge, is the burden on the 1st defendant to produce a receipt showing discharge ? 4. Whether the Order under appeal require interference ? 12. Points 1 to 4 : The suit had been filed seeking a preliminary decree on the basis of mortgage deed dated 04.10.2012 executed by the 1st defendant A.Mohammed Iliyas infavour of the plaintiff S.Yasar Arabath. The property which had been mortgaged is land and building in Door No.52, Muslim Street, Kombai Municipality, Periyakulam. The said property originally belonged to Sarabeevi W/o. Beer Mohammed Rowther and her sons. They had obtained title to the property in view of a settlement deed executed by Beer Mohammed Rowther on 14.05.1965. Thereafter, they had sold the property by a sale deed dated 12.12.1977. The said document had been produced as Ex.A.1. Abdul Rahim died on 28.02.1996. The property was then inherited by his wife and five daughters and his son, the 1st defendant. The wife of Abdul Rahim also died and thereafter, on 04.10.2012 all the five daughters executed a gift deed, relinquishing their share to the 1st defendant. This document has been produced as Ex.A.2. 13. Abdul Rahim died on 28.02.1996. The property was then inherited by his wife and five daughters and his son, the 1st defendant. The wife of Abdul Rahim also died and thereafter, on 04.10.2012 all the five daughters executed a gift deed, relinquishing their share to the 1st defendant. This document has been produced as Ex.A.2. 13. On 04.10.2012, the 1st defendant executed the mortgage deed in favour of the plaintiff. This document had been produced as Ex.A.3. According to Ex.A.3, the property had been mortgaged for a total sum of Rs. 19,00,000/-. It was stated in the document that the amount should be repaid within a period of six months. It had been stated in the plaint that the 1st defendant did not repay any amount either towards principal or towards interest. The 2nd defendant in the suit was a tenant in the premises and no relief was asked against him. Since the amount was not paid, the plaintiff filed O.S.No.28 of 2013 before the Additional District Court, Periyakulam. During trial, the 1st defendant did not lead any oral evidence or mark any documents. Ex.A.5 is the Advocate notice sent by the plaintiff dated 10.05.2013 and Ex.A.6 is the returned cover. It is seen from Ex.A.6 that the cover had been returned as 'refused'. Ex.A.3 is a document No.3164 of 2012, registered in the Office of the Sub Registrar, Thevaram. The 1st defendant did not raise any issue regarding the validity of Ex.A.3. But however, it is stated in the present appeal that his sisters have a share in the property and they are necessary parties. Ex.A.2 is the gift deed executed by his sisters in favour of the 1st defendant. This is also a registered document, registered as document No.3163 of 2012 in the Office of the Sub Registrar, Thevaram. By this document, the entire property came to be devolved on the 1st defendant. In the final decree proceedings, the 1st defendant had stated that he had paid the entire amount after the preliminary decree dated 23.04.2015 and also obtained a receipt dated 20.12.2015. However, that receipt had not been produced before the Court and consequently, the learned Additional District Judge, Periyakulam, refused to accept the said contention. 14. In the final decree proceedings, the 1st defendant had stated that he had paid the entire amount after the preliminary decree dated 23.04.2015 and also obtained a receipt dated 20.12.2015. However, that receipt had not been produced before the Court and consequently, the learned Additional District Judge, Periyakulam, refused to accept the said contention. 14. In view of the fact that all the sisters of the 1st defendant had executed a registered gift deed infavour of the 1st defendant, they are not necessary parties to the proceedings. They had relinquished their share and they are no longer owners of the property. I also hold that since the 1st defendant had not filed any appeal against the preliminary decree, the contention raised by him in the final decree cannot be accepted. If he states that he discharged the amount, then the burden is on the 1st defendant to prove the discharge. He had stated about a receipt dated 20.12.2015. Unfortunately that receipt has not been produced. Consequently, I hold that the 1st defendant has not made any case for interfering with the order and final decree in I.A.No.305 of 2015 dated 12.02.2016 on the file of the Additional District Court, Periyakulam. Hence, the appeal is to be dismissed with cost. 15. The final decree in I.A.No.305 of 2015 in O.S.No.23 of 2013, passed by the learned Additional District Judge, Periyakulam, is confirmed. The points framed for determination are decided accordingly. 16. In the result, the appeal is dismissed with costs and the judgment and decree in I.A.No.305 of 2015 in O.S.No.23 of 2013, passed by the learned Additional District Judge, Periyakulam, is confirmed. Consequently, connected Civil Miscellaneous Petition is closed.