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Judgment
Ashok Menon, Chairperson
Heard learned counsel for Appellant and the Respondent No.1. Other Respondents have not appeared despite the notice being served upon them.
Respondent No.1 has filed a detailed reply stating that the Appellant has nothing to do with the property which is mortgaged and that it belongs to Respondent Nos.2 to 4 and that the mortgage was created over their property, which they claim was set apart to them on oral family arrangement, and in consequence, different flats were allotted to different family members to be used by them in exclusion to others. There were also Gift Deeds executed later by some of the family members in which there is a clear recital regarding existence of family settlement of properties. It is also pertinent to note that subsequent to the family settlement, mutation has been effected in accordance with the arrangement and taxes are being paid by those persons who are in possession of the respective flats allotted to them and settled in their favour in accordance with the family arrangement. It is true that there is no Partition Deed has been executed but the Gift Deed gives a clear indication of the family arrangement amongst the members of the family. Appellant relied on Sale Deed which was executed on 18.08.1999 with regard to the Flat No. 302 sold to a third party which has been executed by all the members which according to him is an indicator that there was no family arrangement giving exclusive right to each sharer and that the property which is Flat No. 102, 201 and 202 still continue to be of joint family property of all the members and the Applicant also holds 1/6 share in those properties and that since he is not a mortgagor of the property, the mortgage allegedly executed by Respondent Nos.2 to 4 is not binding on him and / or on his undivided right over the property.
The Appellant in his reply admitted that there was on oral family arrangement and he also is in possession of a flat exclusively and is paying tax for the same. But he says that it was only for the purpose of avoiding dispute between the family members and that there was no actual division of properties by metes and bounds as is required for the partition. The flats would, therefore, continue to remain joint family properties.
It is a well settled law that a Partition Deed needs not to be compulsorily registered, and a family arrangement amongst the members of a family to divide the joint properties is acceptable. The act of the members of the family in enjoying parts of properties in exclusion to others, paying of tax exclusively and the recital in a Gift Deed executed later indicate a division.
Appellant now seeks an interim stay of further proceedings by the Bank against the mortgaged/secured assets. Even if the Appellant has an undivided share in the property which is allegedly mortgaged to his detriment, it is not going to affect his undivided right over that property if he succeeds in establishing his right and he is also at liberty to force a partition against the other co-owners. Therefore, in no way, the Appellant will be affected by the alleged taking over of possession of the property by the Bank as they have to realize the money due to them. Prima facie the Appellant is not entitled to any relief in this application for stay.
For the reasons stated earlier, the Appellant has no locus standi and accordingly, the application for stay is dismissed.
Post on 01.07.2022 for hearing on the main Appeal.