Madras High Court
A. Thamin Anser Rahman vs Mothi Chand on 8 August, 2017
Author: M.Govindaraj
Bench: M.Govindaraj
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 08.08.2017
Coram
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
C.R.P.(NPD) No. 2755 of 2017
and C.M.P.No.13092 of 2017
A. Thamin Anser Rahman
s/o.A.M.A.Abdul Rahman
Rep.by his power of Attorney Agent:
Mrs.Jeenaitha Rahman
W/o.Abdul Rahman
4/49, Madurasha Street
Vadakarai, Tharangampadi Taluk,
Nagapattinam District. ...Petitioner
Vs.
1. Mothi Chand
2. Manjula
W/o.Mothi Chand
Respondent 1 & 2 are at:
Door No. 86, 2nd Road
Koranadu,
Mayiladuthurai Town,
Nagapattinam District.
3. A.M.E.Abdul Rehman
S/o.Mohammed Ibrahim
4/49, Madurasha Street,
Vadakarai, Tharangampadi Taluk,
Nagapattinam District ...Respondents
Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, by setting aside the fair and decretal order dated 28.11.2016 and made in E.A.No.89 of 2012 in E.P.No.14 of 2012 in O.S.No.25 of 2008 on the file of District Judge at Nagapattinam and to allow the said petition.
For Petitioner : Mr.S.Balasubrmanian
O R D E R
This revision is filed directing against the dismissal of the petition filed under Order 21 Rule 58 of C.P.C and Rule 180 of Civil Rule of Practice and under Section 150 of C.P.C. The son of the judgment debtor/3rd respondent is the petitioner herein. The 1st and 2nd respondents are the decree holders.
2. The 3rd respondent/Judgment debtor borrowed a sum of Rs.5,00,000/-, by executing promissory note on 08.12.2003 as well as deposit of title deeds on 11.12.2003. In the mortgage suit instituted by the 1st and 2nd respondents a preliminary decree was passed on 23.10.2009, granting time to the 3rd respondent to make payment till 23.04.2010. The 3rd respondent/ judgment debtor failed to make payment and hence final decree was passed on 24.04.2011. The 1st and 2nd respondents have filed an execution petition in E.P.No.14 of 2012 on 15.12.2012 for realization of amount to the tune of Rs.12,48,080/- and brought the property for auction. At that stage, the petitioner/claimant have filed the above said petition to declare himself as the owner of the property and to forebear the attachment. The petitioner claimant, claim that by way of oral Hiba, the property was gifted by the 3rd respondent/Judgment Debtor in favour of petitioner claimant. He would further allege that using his absence from India the respondents 1 and 2 have obtained a decree by fraud.
3. Per contra, the respondents 1 & 2 have marked as many as nine documents. The Oral Hiba dated on 10.01.2000, which was later confirmed by a confirmation deed on 08.03.2000 are bogus transactions.
Point No.1:
4. At the first instance, the Oral Hiba and the confirmation deed are prepared in Stamp papers bearing No. 7830 and 7834 were sold by one Stamp Vendor, namely, Baskaran.
5. The Public Information Officer at the District Registrar Office at Nagapattinam had furnished the information under Right to Information Act, that the above numbered stamp papers were not given in the same name of Claimant, but were sold to A.Thamin Rahman and Junaitha Rahaman, Vadakari. On complaint the license by stamp vendor itself was cancelled for the forgery transaction. Hence it is clear that Ex.P.2 is fabricated.
Point No.2:
6. The notary, who said to have attested the said confirmation deed (Ex.P.2), on enquiry denied the attestation allegedly made in his name and deposed that he had not attested the said confirmation deed.
Point No:3
7. Schedule of the property in the confirmation deed would show that it is a sale agreement. On further enquiry it was found that it was printed by one Arokiaselvi of Selvi Laser Printing at Mayiladuthurai, without reference to the document writer. While preparing the confirmation deed a portion of sale agreement was cut and pasted in the schedule portion of the confirmation deed.
Point No.4
8. The house tax property which was marked as document Ex.P.1 was dated 08.09.2012 for the period between 2012 & 2013. The information got under the Right to Information Act from the Block Development Officer, Sembanarkovil, which was marked as Ex.R.5 disclose that on the basis of Ex.P.2, confirmation deed, the name transfer in favour of the objector was made only on 01.09.2012. If at all the confirmation deed was genuine, name transfer on the basis of the confirmation deed should have made in the year 2000-2001 itself.
9. Therefore, the execution Court came to a conclusion that the documents were fabricated after filing of the execution petition in 2012. The 3rd respondent /judgment debtor and the petitioner/claimant have indulged in all fraudulent activities and fabricated documents, as if the property which was mortgaged in favour the 1st and 2nd respondents had already been gifted away. It is a clear attempt to defraud the court as well as rightful claims of the respondents 1 & 2. The execution Court has also held oral Hiba is not valid in law, which was followed by a forgery document. The gift made with an intention to defraud the creditor is voidable at the option of creditors.
10. Since, the fraud is clearly proved by documentary evidence and in view of the Principle of Mahomedan in law, the Trial Court has dismissed the petition filed by the petitioner/claimant.
11. Yet, the petitioner claimant have indulged in further fraud by the creating a Power of Attorney in the name of one Junaitha Rehman and filed a petition to accept the cause title and this Court by its order dated 18.07.2017 has recognised Power of Attorney. But when the matter is taken up today, it is found that it is yet another attempt by the petitioner/objector to justify his fraudulent activities. The fraud committed by the petitioner as well as his father 3rd respondent/judgment debtor is borne out by documentary evidence. Therefore, the Civil Revision petition challenging the order on the grounds inter alia are summarily dismissed. The petitioner have indulged in fraudulent activities up to the level of High Court shall not got scot free. Therefore, this court imposes a cost of Rs.1,00,000/- on the petitioner/objector payable to the 1st & 2nd respondents. The costs can be included in the claim made by the decree holder, when the property is sold in auction.
12. With above observations, the Civil Revision Petition is dismissed with Costs of Rs.1,00,000/- as indicated above. Consequently, Connected Miscellaneous petition is closed.
08.08.2017 Index : yes/no Internet : yes/no bsm To The District Judge, Nagapattinam.
M.GOVINDARAJ, J.
bsm C.R.P.(NPD) No.2755 of 2017 08.08.2017