TaxTMI 
TaxTMI 
2017 (11) TMI 1957
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....d 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 ....
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....lid 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 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. 7. 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....
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....s 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. 12. 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. 13. 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. 14. 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. Accord....
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....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. 18. 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. 19. 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 prop....
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....ged 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. 23. 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. 24. Section 85 of the Indian Evidence Act deals with the ....
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....y Act also. 28. 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. 29. 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 ....