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WILLIAM BABU & ANOTHER V/S HELMA ROY ALIAS EMILY CARMEL, decided on Tuesday, November 7, 2017.
[ In the High Court of Kerala, RSA. No. 1290 of 2014. ] 07/11/2017
Judge(s) : B. KEMAL PASHA
Advocate(s) : G.S. Reghunath. M.R. Anandakuttan, Caveator, M.A. Zohra, Mahesh Anandakuttan.
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    1. Challenging the concurrent findings entered by the Principal Munsiff's Court Thiruvananthapuram in O.S.No.925/2001 followed by those of the Additional District Court-III Thiruvananthapuram in A.S.No.121/2012 the defendants in the suit have come up with this second appeal.2. The suit is one for declaration of title and possession recovery of possession of plaint A and B schedule properties with mesne profits in case the defendants are found in possession of the same and for perpetual injunction. A relief of mandatory injunction has also been sought for for directing the defendants to vacate the plaint B schedule property.3. The plaint A schedule property having an extent of 28 cents is in Survey No.2739/1/2 of the Kadakampally Village and the same originally belonged to late Macri D' Cruz and her husband Joseph D' Cruz. They settled the property in favour of their daughter Pauline James and her husband James as per Ext.A1 settlement deed No.2985/1122 ME. According to the plaintiff Pauline James and her husband James had four children namely Mary James Mercy James Margaret and Mourin Presca out of whom Margaret is no more. They are all settled in Singapore after obtaining citizenship there. On the death of James his half oodukur right in the property devolved on his wife Pauline and her aforesaid four children. It is the case of the plaintiff that in consideration of their natural love and affection towards the plaintiff they decided to gift the plaint schedule properties to the plaintiff since they are settled in Singapore. They executed Ext.A2 power of attorney in favour of Roy Sanker who is the husband of the plaintiff thereby empowering him to execute a gift deed in favour of the plaintiff in respect of the plaint schedule properties. Thereafter Roy Sankar executed Ext.A3 gift deed No.947/2000 in respect of the plaint schedule properties in favour of the plaintiff on the strength of Ext.A2 power of attorney. According to the plaintiff she took possession of the plaint A schedule property and the residential building described as plaint B schedule in it. Defendants are the direct brothers of the plaintiff. Presently the 2nd defendant is residing in the plaint B schedule building as permitted by the plaintiff.4. According to the plaintiff when she approached the Village Officer for remitting the tax for the property it was learnt that the defendants had executed Ext.B18 partition deed No.4028/1998 in respect of the plaint schedule property without any authority and power and effected mutation of the properties in their names. When her request for effecting mutation in her favour was turned down she approached the higher revenue authorities and finally the District Collector cancelled the mutation in favour of the defendants. When the plaintiff requested the defendants to vacate the plaint B schedule building they resisted the plaintiff and obstructed her from entering in the plaint A schedule property also and hence the suit.5. The defendants contended that the plaintiff had never got title or possession over the plaint schedule properties. The fact that the plaint A schedule originally belong to Pauline James and James is admitted. It was contended that after their marriage they left India and settled in Malaysia and thereafter they had never returned to India. It is also contended that they were not being heard of since 1974 and they would have been heard of had they been alive. Therefore defendants contended that Pauline James and James are presumed to be dead. According to the defendants they have been in absolute possession and enjoyment of the plaint schedule property since 1974 continuously uninterrupted openly and excluding the true owner and thereby they perfected their title over the property through adverse possession. According to them thereafter they executed Ext.B18 partition deed.6. It was further contended that Pauline James and James died intestate without issues. Execution of Ext.A2 power of attorney in favour of the husband of the plaintiff is specifically denied and challenged by the defendants. According to them Ext.A2 is a fabricated document and hence the husband of the plaintiff had no power or authority to execute Ext.A3 gift deed.7. The trial court held that Ext.A2 power of attorney could be relied on and consequently Ext.A3 is a valid gift deed. Based on the said findings the trial court decreed the suit by declaring the title and possession of the plaintiff over the plaint A schedule property and directing the 2nd defendant to give vacant possession of the plaint B schedule property to the plaintiff with mesne profits at the rate of Rs. 250/- per month from the date of suit till the date of recovery of possession. The 2nd defendant was directed to vacate the plaint B schedule building within two months from the date of decree. The plaintiff was allowed to recover the cost of the suit also. Aggrieved by the said judgment and decree the defendants preferred A.S.121/12 before the District Court Thiruvananthapuram. Additional District Court-III Thiruvananthapuram concurred with the findings entered by the trial court and dismissed the appeal and hence this second appeal.8. This Second Appeal is admitted on the following substantial questions of law:(1) Is the creation of Ext.A2 power of attorney in the name of the husband of the plaintiff and the consequent execution of Ext.A3 are suspicious circumstances throwing the entire burden of proof on the plaintiff to prove Exts.A2 and A3?(2) Have not the courts below gone wrong in decreeing the suit for declaration of title and possession in favour of the plaintiff by permitting the plaintiff to clinch on the weakness of the defence?(3) Are not Exts.A2 and A3 void as the same are not legal in view of Section 2 (d) 3 11 and 14 of the Notaries Act Sections 47 50 and 85 of the Indian Evidence Act and Sections 32 and 33 of the Registration Act?(4) Is not Ext.A3 forbidden by law when it was executed in total violation of Section 31 of the Foreign Exchange Regulation Act 1973(for short 'FERA')?9. Heard the learned counsel for the appellants Sri. G.S. Reghunath and the learned counsel for the respondent Sri. B. Krishna Mani.10. The learned counsel for the appellants had made a scathing attack on Ext.A2 and argued that it is an outcome of fraud. It is argued that Ext.A2 is wholly manipulated and the same cannot be acted upon or relied on. Further the learned counsel for the appellants has argued that Ext.A3 is in violation of the provisions of Section 31 of FERA and therefore it is void under Section 23 of the Indian Evidence Act. The further argument is that Ext.A2 violates the provisions of Section 85 of the Indian Evidence Act and Sections 2(d) and 14 of the Notaries Act. It has also been argued that Ext.A2 was not properly executed and authenticated before appropriate authority as contained under the provisions of law and therefore it contravenes Section 32(1) as well as Section 33(1)(c) of the Registration Act and also Section 14 of the Notaries Act.11. Based on the said arguments the learned counsel for the appellants has argued that Ext.A2 is not useful for any purpose and it has never conferred any power or authority on the husband of the plaintiff to execute Ext.A3 and therefore both the courts below ought not to have relied on Ext.A2 as well as Ext.A3.12. Per contra the learned counsel for the respondent has argued that the defendants have no locus standi to challenge the validity of Exts.A2 and A3. It is argued that the defendants had clandestinely executed Ext.B18 partition deed without any right or authority in respect of the plaint scheduled properties and a false contention was forwarded by the defendants that Pauline James and James died intestate that too issue-less. It has also been argued that at any stretch of imagination even if there is such a death and they are issue-less the properties will never devolve upon the defendants since they are not legal heirs of Pauline James and James.13. It has been argued that Pauline James and her children had invited the plaintiff to Malaysia and they executed Ext.A2 empowering the husband of the plaintiff to execute Ext.A3. Ext.A2 was handed over to the plaintiff and it was sent to her husband for enabling him to execute Ext.A3. It has also been argued that no title or possession can be conferred on the defendants in respect of the plaint schedule properties based on Ext.B18 document which was falsely created and cooked up by the defendants.14. It has also been argued that the proviso to Section 68 of the Indian Evidence Act is not applicable in the case of Ext.A3 simply because of the fact that the defendants have no locus standi to deny the execution of Ext.A3.15. On hearing either side and on a perusal of the entire records it has come out that the crux of the matter to be decided is with regard to the validity of Ext.A2 on the strength of which Ext.A3 was executed. The circumstances in which Ext.A3 was executed are also to be considered. According to the plaintiffs Pauline James and the other legal heirs of late James wanted to convey the plaint schedule properties to the plaintiff out of their natural love and affection towards her. Therefore they had allegedly invited the plaintiff to Malaysia where they executed Ext.A2 power of attorney by appointing the husband of the plaintiff as power holder for the execution of Ext.A3 gift deed in favour of the plaintiff. The Ext.A2 power of attorney was allegedly sent through the plaintiff. The plaintiff handed it over to the husband on the strength of which Ext.A3 was executed.16. The learned counsel for the appellants has pointed out a series of irregularities and illegalities in the execution of Ext.A2. At page No.1 of Ext.A2 none of the executants has affixed signature. Page 3 of Ext.A2 is the schedule of property. Nobody has affixed signatures in the said page also. The description of the schedule of property as well as the survey numbers in words are in Malayalam. Normally Indian Embassy or consulate as the case may be in Malasia would not have approved and acted upon such schedule in Malayalam. In the second page wherein the executants had subscribed their signatures initially the date printed was as '5th day of January 2000'. The entry “5th” is seen scored off in black ink and it is corrected as “11th”.17. Who has carried out the said correction is not discernible from page 2 of Ext.A2. The explanation offered by the learned counsel for the respondents that it was corrected by one P.Sethuraman as is evident from the seal affixed near the correction at the right hand end portion of the correction is not acceptable when there is no evidence as to who was the said P.Sethuraman.18. Page 4 of Ext.A2 contains the notarial certificate which clearly shows that the signature of executant Nos.1 to 5 specifically named therein were written in the presence of the Notary on the '14th day of January 2000'. When the second page of the document shows that the executants had affixed their signatures in Ext.A2 on the '11th January 2000' it could not have been affixed in the presence of a Notary Public when the notary had allegedly attested the signatures on 14th January 2000. The signature of the Notary Public was again attested by the Consular Division Ministry of Foreign Affairs Kuala Lumpur Malaysia on 17th January 2000. The overleaf of the notarial certificate shows that the Attache(Consular) High Commissioner of India Kuala Lumpur Malaysia had also affixed his signature and seal on 17.01.2000.19. When the executants have not affixed their signatures in page No.1 of the document it is not at all safe to rely on the contents of the said page. Even regarding the second page also it cannot be said that the signatures of the executants were attested by the Notary Public. The signatures were shown to have been affixed on 11th January 2000. According to the notarial certificate the said executant Nos.1 to 5 had written their signatures in Ext.A2 in the presence of Notary Public on 14th January 2000. From all these gross illegalities and irregularities are there in the execution of Ext.A2 and therefore the same cannot be relied on.20. Even in the schedule appended with Ext.A2 the last two lines in Malayalam were seen subsequently entered in a different ink. The same has been admitted by PW1 in cross-examination. The thandaper number is shown therein as 4199. At the same time as on the date of execution of Ext.A2 the thandaper number in respect of the property was 25476. The earlier thandaper number was 13. The same was changed into 25476 on the execution of Ext.B18 partition deed. Thereafter through Ext.A4 order dated 11.09.2001 the thandaper number 25476 was cancelled by the District Collector Thiruvananthapuram and it was thereafter the thandaper number 4199 was granted. Therefore the thandaper number 4199 was available only from 11.09.2001 onwards. Prior to that there was no such thandaper number as 4199. Even then the said thandaper number has been entered in the schedule appended with Ext.A2 in the last two lines in a different ink. The said thandaper number could not have been entered in Ext.A2 on 11.01.2000 or 14.01.2000 or even on 17.01.2000 which are the dates contained in Ext.A2. That itself is sufficient to note down the gross manipulations in Ext.A2.21. The argument forwarded by the learned counsel for the appellants that pages 1 and 3 have been inserted in Ext.A2 after removing other pages except page No.2 and the notarial certificate seems to be correct. Ext.A2 cannot be relied on for any purpose at all. Ext.A2 is tampered with and is not reliable.22. According to the learned counsel for the appellants Ext.A3 is void as the object of Ext.A3 is forbidden by law as per Section 23 of the Contract Act. According to him Ext.A3 is hit by Section 31 of FERA. Section 31(1) says:“No person who is not a citizen of India and no company (other than a banking company) which is not incorporated under any law in force in India shall except with the previous general or special permission of the Reserve Bank acquire or hold or transfer or dispose of by sale mortgage lease gift settlement or otherwise any immovable property situate in India:Provided that nothing in this subsection shall apply to the acquisition or transfer of any such immovable property by way of lease for a period not exceeding five years.”23. Admittedly the executants of Ext.A3 are not citizens of India. They are foreign citizens and they have citizenship of Malaysia. As per Section 31 of FERA no person who is not a citizen of India shall except with the previous general or special permission of the Reserve Bank personally dispose of by sale mortgage lease gift settlement or otherwise any immovable property situate in India. For conveying the scheduled property through gift the alleged executants of Ext.A2 ought to have obtained the previous general or special permission of the Reserve Bank of india. In this particular case no such exercise was done and therefore the contract becomes illegal and void.24. Section 2(d) of the Notaries Act 1952 defines “Notary” as a person appointed as such under the said Act. Therefore normally a Notary means a Notary appointed under the Notaries Act 1952. Section 14 of the said Act deals with the reciprocal arrangements for recognition of notarial acts done by foreign notaries. As per Section 14 the Central Government may by notification in the official gazette declare that the notarial acts lawfully done by notaries within such country or place shall be recognized within India for all purposes or as the case may be for such limited purposes as may be specified in the notification. The learned counsel for the appellants has pointed out that Notaries in Malaysia are not notified in the official gazette of India within the meaning of Section 14 and therefore the Notary who has attested Ext.A2 is not a Notary within the meaning of the Notaries Act 1952.25. Section 85 of the Indian Evidence Act deals with the presumption as to power of attorney. The court shall presume that every document purported to be a power of attorney and to have been executed before and authenticated by a Notary Public or any Court Judge Magistrate Indian Consul or Vice-Consul or representative of the Central Government was so executed and authenticated.26. The aforesaid question was considered by the Calcutta High Court In the matter of Rei Agro Limited and others [AIR 2015 Calcutta 54] wherein it was held that no notification within the meaning of Section 14 of the Notaries Act is available in the case of a notary of Singapore. It was held that the presumption under Section 85 of the Indian Evidence Act is not available to such a notarial act by a notary public of Singapore.27. According to the learned counsel for the appellants not only that the power of attorney shall be executed before the notary within the meaning of Section 85 but also it should have been authenticated by the notary public. As per Wharton's Law Lexicon authentication is attestation made by a proper officer by which he certifies that a record is in due form of law and that the person who certifies it is the officer appointed so to do. It has been argued that a notary within the meaning of Section 85 of the Indian Evidence Act should be a notary appointed under the Notaries Act 1952 or a notary who has been notified within the meaning of Section 14 of the Notaries Act 1952. Presumption is available to the power of attorney executed before a proper notary within the meaning of Section 2(d) or 14 of the Notaries Act 1952. Only such a notary can be considered as an officer who can authenticate the power of attorney. Apart from all these it has already come out that there was no attestation at all as far as the signatures of the executants shown in page No.2 of Ext.A2 are concerned.28. Section 32(c) of the Registration Act 1908 also deals with power of attorney. There also it has been specifically stated that it should be a power of attorney executed and authenticated. When Ext.A2 was not executed and authenticated within the meaning of the said provision that could not have been relied on for permitting the execution and registration of Ext.A3. Moreover Ext.A2 cannot be said to be a document attested within the meaning of Section 3 of the Transfer of Property Act also.29. This is a case wherein even though the plaintiff had agreed in cross-examination that she was ready to examine the executants through video conferencing the said facility was ultimately not made available. The reason mentioned by the courts below for the same is that the Malaysian Government did not grant permission. The said version is one coming from the mouth of the plaintiff alone that too without any documentary evidence. There is absolutely nothing to show that permission was sought for from the Malaysian Government for the said facility and the said facility was denied by the Malaysian Government.30. Another vital aspect pointed out by the learned counsel for the appellants is that the original of Ext.A1 was not handed over by the executants to the plaintiff. According to the learned counsel for the appellants had there been any wish on the part of the executants to gift the properties to the plaintiff definitely they would have handed over the original of Ext.A1 and would not have retained it with them. Here no version is forthcoming with regard to the fact as to why the original of Ext.A1 was not handed over to the plaintiff. All these are suspicious circumstances which clearly militate against the case of the plaintiff. Both the courts below have simply accepted and acted upon Exts.A2 and A3 without considering the glaring illegalities and irregularities.31. Learned counsel for the respondent has pointed out that even if Ext.A3 goes the appellants are not entitled to claim any right over the plaint schedule properties on the basis of Ext.B18. Ext.B18 is no doubt a self serving document executed by the defendants. Further it has also been pointed out that at any stretch of imagination the defendants cannot be the legal representatives or legal heirs of Pauline James or deceased James.32. The suit is one for declaration of title and recovery of possession. When the reliefs of declaration and recovery of possession based on title have been sought for the plaintiff has to stand on her own legs to prove that she has title. The weakness of the defence or the absence of title on the part of the defendants cannot be encashed by the plaintiff to prove the title of the plaintiff.33. From all the above this Court is satisfied that both the courts below have gone wrong in decreeing the suit. The impugned judgment and decree passed by the lower appellate court as well as the trial court are liable to be set aside. The suit is only to be dismissed.In the result this Regular Second Appeal is allowed and the judgments and decrees passed by both the courts below are set aside. The suit is dismissed. In the nature of the RSA there is no order as to costs. All pending interlocutory applications in this appeal are closed.