TMI Blog2017 (11) TMI 1957X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty 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. 3. 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. 4. 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 conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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')? 8. Heard the learned counsel for the appellants Sri G.S. Reghunath and the learned counsel for the respondent Sri B. Krishna Mani. 9. 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. 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 Malaysia 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 print ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber 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. 20. 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. 21. According to the learned counsel for the appellants, Ext. A3 is void, as the obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 25. The aforesaid question was considered by the Calcutta High Court. In the matter of Rei Agro Limited and others [AIR 2015 Calcutta 54 : 2015 ICO 1794], 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. 26. 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 30. 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. 31. 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. 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 appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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