• Whether an AC court has powers to withdraw its order when there is fraud played upon it

1.	The property was in the name of my mother ( fickle minded). I have one ex-brother , who has been gifted away on adoption. He stays separately. Adoption deed registered also.
2.	Even when The property is in my mothers name, it is family property. Purchased by my late father, to be family property. There are a lot of evidence for that. Father died intestate. Legally, She is not absolute owner, but property is in her name. 
3.	That ex brother got , a gift deed done, in his favour, when my mother stayed at his house for some time, and got it registered also instantly, by use of force and threats.
4.	I am the only son and 2 sisters are there. I reside in the property. Sisters come and reside and go.
5.	Hiding his gift deed, that ex brother, put up a forged petition in my mothers name, with false contents, that she is the owner; senior citizen, she is without a paisa, ( when she has huge money in her bank accounts, from my father , she draws hefty family pension,) etc etc. I am mentally unsound etc, even when I am a reputed personality having authored many books, and a successful professional , .that I should be evicted instantly etc.. 
6.	That petition came up before AC court, I see he has powers to evict .
7.	Luckily, my relatives came up, running and wanted to see that the petition is closed as false.
8.	Meanwhile, my mother, gave a 2 year extension for me to continue residence, to save the situation. That letter was produced before AC court. 
9.	That AC court, did not apply its mind at all, asked me to vacate after 2 years. Took an undertaking from me. My mother knowing well that, it is false case, sat silently in his court, at the instance of my ex brother.
 Games of setting were played by my ex brother.
10.	Now, I see, she is not entitled to put a petition before that AC court, at all since she is not the owner.
The AC court could not see into the veracity of the petition that it is fraud upon his court. &
 is full of false statements etc.
11.	As per that Senior Citizen Act, no right to appeal with DC court is given to children. The appeal lies with writ with HC only.
12.	 Now , I want to know, whether, the AC court can recall its order, on knowing that a fraud has been played upon it ? that it is not a senior citizen issue at all :
 or my appeal to set aside the AC court order, lies with HC 

 APPLY YOUR KIND MIND for a reply
Asked 12 days ago in Property Law from mysore, Karnataka
Religion: Hindu

 

1) In the case of State of Punjab versus Davinder Pal Singh Bhullar – 2012 AIR SCW 207, the Apex Court, inter alia, observed –

 

If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it; or where an order was obtained by abuse of the process of the court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order, for the reason, that in such eventuality the order becomes a nullity and the provisions of section 362 CrPC would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. 

 

2) in alternative you have to file writ in HC against impugned order 

 

3) take plea that mother is only one of legal heirs on demise of your father . That you and your sisters have equal share in property 

 

 

Ajay Sethi
Advocate, Mumbai
56959 Answers
3456 Consultations

5.0 on 5.0

If you think that gift deed was executed in favour of adopted son by undue influence, you have to challenge that by filing a suit

The property may have been purchased by your father but it appears that he purchased it in name of his wife for her benefit 

So she is absolute owner of property 

You as a family member are a mere gratitious licensee

For recall of order of AC court you need to show that there was error apparent on face of record. That there was perversity and illegality in the order. You yourself have not challenged gift deed by filing suit on ground of fraud, so i dont see how you can prefer a recall application 

Recall or review petition can be entertained on very restricted grounds like error on face of record and not because another view, than what the AC court gave, is possible

If appeal is not allowed under the act, then your remedy will be to file a writ petition in HC invoking Article 226

Yusuf Rampurawala
Advocate, Mumbai
3186 Answers
12 Consultations

5.0 on 5.0

The property was purchased by your father. You have  stated that the property is in your mother's name.you have also stated that your father died intestate. This is confusing.

I am assuming that the property is in your mother's name. In this case she can gift it to her son or to anybody for that matter irrespective of the fact whether he is related to her or not. You cannot challenge the gift deed as she is still alive and she will come to the court and testify in support of her gift.

Kindly clarity in case I have missed something and I shall try to resolve your problem.

Regards 

Rahul Mishra
Advocate, Lucknow
2410 Answers
9 Consultations

5.0 on 5.0

1. If property is in mother's name then she is the absolute owner. Absolute ownership originates and flows from the sale deed.

2. After the execution of gift deed by your mother in favour of the individual whom you call your 'ex-brother' the former ceased to have any right, title or interest in the property. 

3. Now the petition for your eviction could have been filed before the court only by your ex-brother as he became the owner after the execution of gift deed, but it was filed by mother by concealing the factum of execution of gift deed by her.

4. Did you in your defence plead that mother has executed the gift deed and thus the petition by her is not maintainable? If yes, then did you further produce or seek the production of the gift deed in the court? If no such plea was taken by you before the AC court then even a writ before the High Court will be an exercise in futility.

5. Court does not get an akashwani that fraud has been played on it. Playing of fraud has to be brought to court's attention by the other party.

Ashish Davessar
Advocate, Jaipur
25198 Answers
706 Consultations

5.0 on 5.0

Dear Sir,

Yes AC Court has powers to recall its own orders if fraud is played on it. Please see the following:

==============================================================================

Section 25 of Karnataka Land Revenue ACT

 

Karnataka High Court

The State Of Karnataka And Others vs The Karnataka Appellate Tribunal ... on 31 January, 1995

Equivalent citations: AIR 1996 Kant 143, ILR 1995 KAR 2483, 1995 (5) KarLJ 305

Bench: H N Tilhari

“9. It is no doubt true that power of review should either be conferred expressly or it should be taken to be implied. When I hold that Revenue Court has got inherent power to do justice and nothing in the provision of the Act as to restrict or otherwise curtial that power, 1 am of the opinion tha the Revenue Courts have got power to review in exercise if inherent jurisdiction or to recall the order which appears to be amounting to abuse of the process of the Court or an order which is likely to cause injustice or which is likely to frustrate the very object and purpose of the Act.

  1. Review is no doubt not an appeal is disguise. It is also been held in many cases even their Lordships of the Supreme Court dealing with the review that Courts shall have to correct Exdobito justitiate the errors which one apparent on the face of the record and which result or which are likely to result in abuse of process of the Court.”

 

In view of above citation the respondent No. Asst. Commissioner legally recalled his earlier orders.

Kishan Dutt Kalaskar
Advocate, Bengaluru
3544 Answers
76 Consultations

5.0 on 5.0

Yes... Any order which is passed by defrauding a court is no order and can be recalled by the same court

 

Prashant Nayak
Advocate, Mumbai
4875 Answers
3 Consultations

4.8 on 5.0

The court which has passed an order or judgment cannot recall the same for any reason,.

The aggrieved has to approach only the appellate court for relief and remedy.

For you information, in my opinion, since the property is registered on your mother's name, it shall be her own and absolute property hence your appeal or writ petition may not succeed or fetch you a fruitful result.

 

T Kalaiselvan
Advocate, Vellore
46951 Answers
557 Consultations

5.0 on 5.0

You need to file writ petition if the said court refuses to recall it's order

Prashant Nayak
Advocate, Mumbai
4875 Answers
3 Consultations

4.8 on 5.0

1) if you have given an undertaking it is binding upon you 

 

2) you have to vacate the house by June 2019 

 

3)you can appeal against order on grounds that mother is not absolute owner of house and you have equal share in house 

Ajay Sethi
Advocate, Mumbai
56959 Answers
3456 Consultations

5.0 on 5.0

Dear Sir,

You try in AC court and then approach civil court if need arise.

Kishan Dutt Kalaskar
Advocate, Bengaluru
3544 Answers
76 Consultations

5.0 on 5.0

This is a gift deed hence whether adopted or not, it has no relevance.

If you suspect the genuineness of the gift nothing prevented you from objecting to it before the when it was produced.

How can you say that your mother is the owner when she has a registered title deed on her name.

You cannot file any petition before the same court to withdraw its decision passed as an order.

 

T Kalaiselvan
Advocate, Vellore
46951 Answers
557 Consultations

5.0 on 5.0

1. That her signature is forged is a plea which can be negated by her statement to the contrary.

2. In this scenario you can file a suit for declaration that the decree of the AC court was obtained by playing fraud, hence it be declared void. However, it may also result in the prosecution of your mother for the offence of perjury.

Ashish Davessar
Advocate, Jaipur
25198 Answers
706 Consultations

5.0 on 5.0

1. Gift deed must be registered. So your knowledge about it will be counted from the date of registration and not from the date when you learnt about it. This is for the reason that a registered document is in public domain and all members of public are deemed to have knowledge about it

2. A person can gift his property to anybody he wishes. So it really does not matter whether the donee is or is not your brother

3. You have to prove that by cogent evidence and material. Mere allegations will not suffice

4. A petition in a senior citizen tribunal can be filed either by the senior citizen or any person on his behalf. So it cannot be said that the petition is wrongly filed.

5. All these contentions ought to have been raised in your pleadings and submitted to court at time of hearing. Moreover if you had apprehension why did you give the undertaking to the court?

6. Suit for what? 

Yusuf Rampurawala
Advocate, Mumbai
3186 Answers
12 Consultations

5.0 on 5.0

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