Disposed

Smt. Vijay Laxmi Shukul v. Union Bank of India and Ors.

DRAT19 Oct 2022

Case brief

AI extract

What is this about?

The Supreme Court disposed of a property dispute appeal where the appellant challenged the validity of a mortgage executed by her son relying on an unprobated Will. Addressing the immediate risk of eviction, the Court maintained the status quo pending the Tribunal's final decision.

What did the court decide?

All parties directed to maintain status quo regarding the property in question till the next listing.

Smt. Vijay Laxmi Shukul versus Union Bank of India and Ors. — Execution and Attachment | DRAT (2022)

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Appeal Dy. No. 444/2021 Date: 19.10.2022

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Smt. Vijay Laxmi Shukul Vs. Union Bank of India and Ors.

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Present: Shri Akshat Agarwal along with Shri Ramendra Pal Singh, counsel, counsel for the appellant, Shri Sandeep Arora, counsel for the respondent-Bank, Shri Anirudh Pandey, Advocate holding brief of Shri K. Kartikeya, counsel for the respondent no. 5,

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Learned counsel for the respondent no. 5 seeks time to file reply, which may be filed by the next date.

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The office report dated 18.10.2022 shows that the counter affidavit has been filed on behalf of the respondent-bank.

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Learned counsel for the appellant may also file rejoinder to the counter filed by the respondent-Bank by the next date.

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Learned counsel for the appellant submits that the Tribunal below had initially observed in the order dated 16.11.2021 that the appellant has right to reside in the property in question, but subsequently, vide order dated 05.08.2022, reviewing the same, held that the appellant has no right to reside in the said property. It is further contended that the Tribunal below has not considered the Will dated 31.07.1990 in right perspective, which was executed by the husband of the appellant, wherein it is mentioned that after his life time, the appellant shall be deemed to be in physical possession of the entire property and shall have only right of residence in the said property during her life time and shall enjoy the same without alienating the same in any manner whatsoever or creating any charge on the same and the respondent no. 5 shall become absolute owner of the property and shall have all legal rights and privileges available to him. It is also mentioned that if his son respondent no. 5 wishes to sell or

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alienate the said property during the life time of the appellant, consent of the appellant shall be necessary for such transaction. It is further argued that no such consent of the appellant was taken by the respondent no. 5, while creating the mortgage over the property in question with the respondent-Bank, hence, the mortgage created by the respondent-bank is invalid.

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Learned counsel for the respondent-Bank submits that the Will dated 31.07.1990 is not a registered document and has not been probated, therefore, it cannot be relied upon. Hence, the appellant has no locus to challenge the proceedings of the Bank. The learned counsel further submits that the mortgage was created by the respondent no. 5, who is son of the appellant, by depositing the title deeds in respect of the property in question. It is also contended that name of the borrower is mentioned in the revenue record and accordingly, the respondent no. 5 is an absolute owner of the property in question, therefore, it cannot be said that the mortgage is invalid. As such the Bank has right to proceed under the SARFAESI Act against the defaulter being respondent no. 5 and the appellant has no locus to challenge the same.

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The learned counsel for the appellant states that the freehold deed is based on revenue record, in which the name of the respondent no. 5 was mutated on the basis of the said Will, which is stated to be under cloud by the respondent-Bank. It is further contended that only on the basis of the Will, the name of the respondent no. 5 was mutated in the revenue record, the borrower has become absolute owner and on that freehold deed was executed in his favour. It is further submitted that on the basis of said free hold deed, the respondent-Bank had given the loan by mortgaging the property in question, hence it cannot be said that the said Will

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cannot be relied upon. It is further argued that if the Will was not treated to be reliable, then it could not have been acted upon by recording the name of respondent no. 5 in the revenue record, which in turn formed the basis for execution of free hold deed in favour of the respondent no. 5. Thus, it cannot be said that the said Will is ineffective and right given to the appellant to reside in the property in question is not valid. It is contended that either the Will is completely valid or completely invalid, but it cannot relied upon for one purpose and can be relied upon for the other purpose. The next argument is that as per law prevailing the State of MP, the Will is not required to be probated.

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Lastly, the learned counsel for the appellant submits that a notice has been issued by the Tehsildar under the garb of the order of the D.M. that the possession of the property, in which the appellant resides, shall be taken on 21.10.2022, therefore, the interest of the appellant may be protected till the disposal of the present appeal.

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Learned counsel for the respondent-Bank submits that since the appellant has no locus to the challenge the procedigns of the Bank, therefore, no interim order is required to be passed.

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In view of the above and the fact that all the issues are yet to be adjudicated by the Tribunal below and the appellant is an very old lady, all the parties are directed to maintain the status quo, as it exists today, qua the property in question till next of listing.

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List this case on 09.01.2023 for reply.

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Justice R. D. Khare Chairperson

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VN Giri

Smt. Vijay Laxmi Shukul v. Union Bank of India and Ors.

Case brief

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Smt. Vijay Laxmi Shukul v. Union Bank of India and Ors.

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