One of co owner created Mortgage with respect to entire property - Ex parte Order passed in DRT proceedings, held, not binding of Plaintiff, a third party to said proceedings

Citation

2022 (1) MWN (Civil) 415 (Mad)

IN THE HIGH COURT OF MADRAS

Krishnan Ramasamy, J.

SA Nos 1022, 1055 of 2019, 160, 161 of 2021 & Cross-Appeal No.54 of 2020 & CM.P. Nos. 21997 & 22772 of 2019

March 30, 2021

Deenadayalan

...Appellant

H. Sathish Kumar, rep by his General Power of Attorney, N. Ashok Kumar. 2. S. Dinesh. 3. S. Umesh. 4. L. Nagaraj. 5. Bank of India, Coonoor, Nilgiris District, rep. by its Branch Manager, Coonoor, Nilgiris, 6. Recovery Officer, Debt Recovery Tribunal, Coimbatore

Respondent

TRANSFER OF PROPERTY ACT, 1882 (4 of 1887), Section 58(0) EVIDENCE ACT, 1872 (1 of 1872), Sections 101 to 104 Mortgage Whether created Burden of proof On whom Suit property partitioned by way of Family Settlement One of Settlees created Mortgage with respect to entire property Suit challenging Mortgage so created Property also sold in Auction Sale before filing of Suit Registers maintained by Bank marked by Auction Purchaser Held, onus on Bank to establish creation of Mortgage Neither original Title Deed (Family Settlement) nor copy of same produced by Bank No document produced to establish intention of Guarantor to secure debt of Borrower Plea of Bank that creation of Mortgage already established in DRT, untenable Ex parte Order passed in DRT proceedings, held, not binding of Plaintiff, a third party to said proceedings Creation of Mortgage, held, not established. [Para 39 to 41, 46 to 50]

CASES REFERRED