Abdul Hussain vs Amir Uddin and Others

J.N.Sarma, J.—A suit was filed being title suit No. 42 of 1993 by one Aftabuddin through her constituted Attorney Md. Afazuddin. The suit was for a declaration that a deed of sale dated 7.5.74 in favour of the Defendants registered on 14.5.74 before the Sub-Registrar, Bhangarpar, District-Cachar is a fraudulrait deed and it was not executed by the Plaintiff. The Plaintiff a Bagladeshi citizen had some property in India and in Paragraph-4 and 5 of the plaint it is stated as follows:

That during the 2nd quarter of 1987, the Plaintiff reed information from her cousin-brother Md. Afas Uddin that he had come to definitely know on 4.5.1987 of a forged document having been fabricated by the principal-Defendant falsely showing purchase of certain lands from the Plaintiff. The Plaintiff was very much perturbed by the information for which to square out the matters the Plaintiff obtained passport and Visa and came to India i.e. at her paternal home on 16.11.87 and stayed for about one and a half month.

That from the certified copy of the forged document it transpired that though the forgery had been committed purportedly on 7.5.1974 and 14.5.1974 but its information was received by the Plaintiff only during May, 1987 and full details of die same were known to the Plaintiff only on 16.11.1987 as aforesaid for which the suit is within the period of limitation as per Section 56 of the limitation Act, 1963.

So it is the definite case of the Plaintiff thai she had the knowledge about the forgery only on 16.11.87 when she came to India by taking Visa and the suit was filed through the constituted Attorney on 19.9.88. Article 59 of the Limitation Act provides a period of 3 years to cancel or set aside instrument or decree and the time begins to run when the facts entitling the Plantiff to have the instrument or decree cancelled has become known to Plaintiff. It is the finding of facts of the lower Appellate Court, inter-alia as follow is:

(i) That there was no land of the Plaintiff within the jurisdiction of the Sub-Registrar where the deed was registered.

(ii) The entire records lead the Court to believe that the original deed of Exhibit-3 was not executed by Aftabjan Bibi. It was done fraudulently.

(iii) A suit was filed within three years from the date of knowledge of the creation of the document Exhibit-3.

The learned Munsiff in his judgment in titie suit No. 91 of 1988 found that Exhibit-3 was not executed by Aftabjan Bibi. It was a fraudulent deed. The Plaintiff came to know of the deed of sale only in the year 1987 and in view of that it was held that the suit is not barred by limitation. So the first contention of Shri Lahiri, learned Advocate for the Appellant that the suit is barred by limitation has no legs to stand upon in view of the concurrent fmding of the Courts below.

The next contention of Shri Lahiri is that a suit has been filed by a constituted Attorney on the strength of a power of Attorney executed and authenticated in Bangladesh and the executor is residing in Bangladesh so the suit is not maintainable. The power of Attorney is m the record and I have looked to it and I find that it was duly authenticated by a Notary public in Bangladesh. Further this was accepted by the Deputy Commissioner, Cachar at Silchar after necessary stamp duty was paid at Cachar. The substantial question of law as formulated in this case is whether the power of Attorney on the basis of which the Plaintiff filed the suit can be regarded as valid document even after the death of the executor. Before we proceed further one thing should be borne in mind that after the death of the original Plaintiff her heirs who are the residents in Bangladesh were brought on record. The question whether these hefrs who are definitely aliens and filed a suit in India with regard to the properties situated here is maintainable. Section 83 of the CPC is a direct answer to it. Section 83 of the CPC provides as follows:

When aliens may sue. Alien enemies residing in India with the permission of the Central Government, and alien friends, may sue in any Court otherwise competent to try the suit, as if they were citizens of India, but alien enemies residing in India without such permission, or residing in a foreign Country, shall not sue in any such Court.

There is no dispute with regard to the fact that the citizens of Bangladesh are alien friends in as much as at no point of time India had war with Bangladesh and even Section 83 does not bar a suit against the alien enemies. Further alien enemies subject to certain conditions may file a suit if an alien enemy resides in India from before the outbreak of war and continued to reside in India even after war, such an alien enemy can have right to file a suit in respect of property in India. But the substituted Plaintiffs are not an alien enemy at the time of continuance of the suit, so it can not effect the right to proceed with the suit. In this particular case, the claim of the heirs of the Plaintiff can not be extinguished. Section 83 will be a complete answer to the objection raised by Shri Lahiri. So the second contention of Sim Lahiri shall stand answered in negative and against the Appellant holding that the substituted heir will have the right to proceed with the case.

Section 85 of the Evidence Act provides for accepting a power of Attorney and benefit of that section is available not only with regard to a power of Attorney executed in India but also a power of Attorney executed outside India. If any authority is required one may look at 1980 All 369 (Abdul Jabbar and Ors. Petitioners v. 2nd Additional District Judge, Orai and Ors. Responndents) Where in the Allahabad High Court has considered a large numbers of decisions and in paragraph-17 has laid down the law as follows:

Following the decisions cited by the counsel for the Respondents. I hold that Section 85 of the Act applies equally to docimients authenticated by Notaries public of other countries. I fiirther hold that there are no grounds for importing the provisions of Notaries Act into the interpretation of Section 85 of the Evidence Act. In my opinion, documents which purport to be executed before or authenticated by Notaries Public, bearing proper seals of other countries ought to be presumed to have been duly notarised within the meaning of Section 85. I, therefore, find no substance in the first point.

Shri Lahiri places reliance on AIR 1958 AP 107 (D. Sardar Singh, Plaintiff-Appellant v. Seth Fissumal Harbhagwandas Bankers, Defendant, Respondent). That case does not help him as that case did not consider Section 85 of the Indian Evidence Act, but Section 69 of the Hydarabad Evidence Act, which is almost parimateria with Section 85. Respectfiilly I donot agree with the decision and respectfully I agree with the decision of Allahabad High Court and held that the power of Attorney executed at Bangadesh didy authenticated can be presumed to be correct u/s 85, that Power of Attorney has been Exhibited as Exhibit-2 and that also without objection. I hold that the power of Attorney is a valid document and the suit was validly instituted on the strength of it.

Another contention which has been raised by Shri Lahiri is on the basis of Foreign Exchange Regulation Act, 1973 (hereinafter called Act) and he relied on Section 31 of the Act which provides that

(1) No person who is not a citizen of India and no company (other that 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 Bonk, acquire or hold or transfer or dispose of by sale, mortgage, lease, gift, settlement or otherwise any immovable property situate in India.

He also relied on Section 63 of the Act which provides regarding confiscation, of currency, security etc. It may be stated herein that this came for consideration at the different High Courts. The penalty for violation of it has been laid down as follows in Section 61 of the act.

Cognizance of offences-Notwithstanding anything contained in Section 29 of the Code of Criminal Procedure, 1973, it shall be lawful for any metropolitan magistrate and for any magistrate of the first class to pass a sentence of imprisonment for a term exceeding three years or of fine exceeding five thousand rupees on any person convicted of an offence punishable u/s 56.

(2) No Court shall take cognizance

(i) of any offence punishable under Sub-section (2) of Section 44 or Sub-section (1) of Section 58.

(a) Where the offence is alleged to have been committed by an officer of Enforcement not lower in rank than an Assistant Director of Enforcement, except with the previous sanction of the Central Government;

(b) Where the offence is alleged to have been committed by an office of Enforcement lower in rank than an Assistant Director of Enforcement, except with the previous sanction of the Director of Enforcement; or

(ii) of any offence punishable u/s 56 or Section 57, except upon complaint in writing made by....

(a) the Director of Enforcement, or

(b) any officer authorised in writing in this behalf by the Director of Enforcement or the Central Government, or

(c) any officer or the Reserve Bank authorised by the Reserve Bank by a general or special order.

Provided that where any such offence is the contravention of any of the provisions of this Act or of any rule, direction or order made thereunder which prohibits the doing or an Act without permission, no such complaint shall be made unless the person accused of the offence has been given an opportunity of show mgtha the had such permission.

If a person contravens the provision of Section 31 he can be penalised u/s 50 and can also be prosecuted u/s 56. However, there is no provision in the act which makes transaction void or says that no title in the property passes to the purchaser in case there is contravention of Section 31(1) by non-obtaining permission of Reserve Bank. In this case the question of purchase does not arise as the Plaintiff wanted to manage the property in India and in order to protect the property he can file or seek relief and Section 31 is no bar to it. Further, that this is the law for that one can look at the following decisions Ajit Prasad Jain Vs. N.K. Widhani and Others, wherein the High Court pointed out that Section 31 only restricts the foreign citizen on transfer, sale, settlement of any immovable property situated in India except with the previous general or special permission of the Reserve Bank of India. Herein all the conditions as mentioned in Section 31 are not in existence.

The next case on point is 1987 P&H 93 (Piara Singh, Appellant v. Jagtar Singh and Anr. Respondents) wherein paragraph-II the law has been laid down as follows:

It is true that the section provides that without the previous permission of the Reserve Bank, a person who is not a citizen of India, cannot acquire properly, but it does not provide that if someone purchases any property the title therein does not pass to him. What the Act provides is that if a person contravens Section 31 and some other sections, he can be penalized u/s 50 and can also be prosecuted u/s 56. However, there is no provisions in the Act which makes transaction void or says that no title in the property passes to thfc purchaser in case there is contravention of the provisions of Sub-section (1) of Section 31. Section 63 contains a provision regarding confiscation of certain properties but it does not contain any provision for confiscation if there is breach of the provisions of Sub-section (1) of Section 31. Therefore the property purchased in contravention of Sub-section (1) of Section 31 is also not liable to confiscation. In the circumstances, it can not be held that the Plaintiffs are not entitled to obtain possession of the property or recover damages for its use and occupation.

I respectfully agree with these two decisions and accordingly this contention of Shri Lahiri fails.

That being the position, this second Appeal is dismissed with cost throughout.

I have heard Shri N.M. Lahiri, learned Senior Advocate for the Appellant and Shri D. Mazumdar, learned Advocate for the Respondents.