TMI Blog2010 (8) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... operty of the grandfather of the plaintiff, viz., Govindasamy Padayachi, who had two sons Kanagasabai Padayachi (father of the plaintiff) and Sivaprakasam, who is the 1st defendant. The said Govindasamy Padayachi exectued a Will dated 25.02.1989, in which the suit property described as 'A' Schedule, was bequeathed to the plaintiff absolutely. The said Govindasamy Padayachi died on 02.03.1990 and therefore, the Will had come into existence after his death. As per the terms of the Will dated 25.02.1989, the suit property had to be managed by the 1st defendant and whenever the plaintiff makes a demand, the 1st defendant should surrender possession of the suit property to the plaintiff. The plaintiff is residing at Singapore. When the plaintiff's father came over to India and orally demanded possession of the suit properties from the 1st defendant on 19.03.1996, he did not comply with his demand. Hence, the plaintiff issued a legal notice dated 23.03.1996 calling upon the 1st defendant to surrender possession of the suit properties, but the 1st defendant sent a reply dated 26.03.1996 with false allegations stating that the plaintiff had no right to own the properties in Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt framed the following substantial questions of law for consideration: (1) Whether the respondent/plaintiff is entitled to claim possession of suit property in law, without coming back to India which is a condition precedent prescribed in Ex.A-2 Will ? (2) Whether the Courts below erred in construing the meaning of bequeathing clause found in the Will ? (3) Whether the suit claim is hit by the provisions of Foreign Exchange Regulation Act, since the 1st respondent is a citizen of foreign State ? 7. Learned counsel appearing for the appellant/1st defendant submitted that as per the terms of the Will Ex.A-2 dated 25.02.1989, the appellant should manage the suit properties till a valid demand is forthcoming from the 1st respondent/plaintiff. The 1st respondent is a citizen of Singapore. It has been specifically stated in Ex.A-2 that the properties should be managed by the appellant and the possession should be handed over to the 1st respondent after he returned to India from Singapore. Thus, by relying upon the said clause found in the Will, the learned counsel contended that only if a demand is made by the plaintiff after returning from Singapore, the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff's father came to India and made a demand to the appellant, which would show that there was a persistent demand on the side of the 1st respondent to hand over the possession of the properties and no cross-examination was done with regard to the power deed and hence, at this length of time, it cannot be said that the power deed is not a valid one. 10. It is further submitted by the learned counsel for the 1st respondent that even if there is a violation of the provisions of the Foreign Exchange Regulation Act, that person can only be penalised as per the provisions of the said Act and there is no provision in the said Act to make the transaction as void nor can it be said that no title to the property passed on to the purchaser. When that be the legal position, the appellant has no locus standi to raise such a defence. 11. Heard the learned counsel for the parties and perused the materials on record. 12. There is no dispute by both sides with regard to the relationship of the appellant and the 1st respondent. It is the case of the 1st respondent/plaintiff that the suit properties were the self acquired properties of his grandfather Govindasamy Padayach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F tplg;gl;l brhj;Jf;fis vd; ,isakfd; rptg;gpufhrk; guhkhpj;J te;J ic goahd; tUk;bghGJ ic goahd; trk; tpl;Ltplntz;oaJ/ /////@ From the above, I do not find any condition that only on return from Singapore, the possession of the properties has to be handed over to the 1st respondent/plaintiff. Though a submission was made by the learned counsel for the appellant that so far no demand was made by the 1st respondent directly, in my considered opinion, the very factum of filing of the suit itself would show that the demand was made by the 1st respondent to get possession of the properties. Even D.W.1 had admitted in his cross examination that, ///////mLj;j gazkhf 1997y; te;jhh;fs;/ mg;nghJ fdfrig kl;Lk;jhd; te;jhh;/ vd;dplk; te;J nfl;lhh;/ ehd; brhj;jpid nghf;fpak; itj;J xU tUlk; MfpwJ/ ehd; mij 2 tUl';fspy; kPl;L jUtjhf brhd;ndd;/ mth; clnd juntz;Lk; vd;W nfl;lhh;/ mth; nfl;ljw;F nghf;fpak; vd;Wk; bfhLf;fKoahJ vd;Wk; brhd;ndd;/ kPl;lgpwF fdfrigaplk; bfhLf;ftpy;iy////@ Therefore, the evidence on record would show that there is persistent request from the side of the plaintiff and his family members for the delivery of possession of the properties, whereas t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r transfer or dispose of by sale, mortgage, lease, gift, settlement or otherwise any immovable property situate in India. Therefore, it becomes clear from the said provision of law that a foreign national cannot hold any immovable property situate in India whatever is the means by which the said property comes to him . 13. The Bombay High Court has held that the word hold is to be construed as meaning having title to or in possession of any immovable property. I agree with the view expressed in the above decision. It becomes clear that a foreigner shall not hold any immovable property situate in India unless with the previous permission of the Reserve Bank of India. The plaintiff, as trustee, is in possession of suit properties and is maintaining them. The plaintiff has not stated that he has obtained permission from Reserve Bank of India to hold immovable property as contemplated under Sec.31. The recitals in Ex.A-4 settlement deed contemplate actual possession of the properties by the trustee and maintaining them by keeping accounts. The plaintiff, as British citizen, cannot hold any immovable property as trustee in India 15. In 2001-1-L.W.161 (supra), it has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey became landlords, entitled to receive rent from the tenant. Section 31 of Foreign Exchange Regulation Act is not having the effect of nullifying the transfer and the purchasers are also getting good title to the property . 16. A reading of the judgment in 2001-1-L.W.161 would show that if a person contravenes the provisions of section 31, he can be penalised under sections 50 and 56, but it will not invalidate the passing of title to the purchaser of the property. From the dictum laid down in the said judgment, it is clear that the 1st respondent can have a valid title to the properties even if there is a violation of the provisions of the Foreign Exchange Regulation Act and it is for the concerned authorities to take action against him if there is any violation in holding the properties in India under the said Act. In my considered opinion, the appellant has no locus standi to take a defence under the provisions of the Act. So far as this case is concerned, we have to see whether there is a valid demand on the side of the plaintiff. The evidence on record would show that there is a valid demand . Hence, I am of the opinion that both the courts below have correctly apprec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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