A.N. Ray, J.@mdashThe Plaintiff instituted this suit for the recovery of quiet, vacant and peaceful possession of premises No. 5, Amratolla Street and if necessary, a declaration that the purported Indenture of Lease dated January 7, 1963 is void and/or not binding on the Plaintiff and that no right, title or interest in premises No. 5, Amratolla Street or any part thereof has been transferred to or in favour of Defendants Madanlal Khandelwal and Swastika Supply Company being Defendants Nos. 1 and 2 respectively. The further reliefs claimed are a decree for Rs. 23,000 against Defendants Nos. 1 and 2 as damages for wrongful occupation and a decree for further damages at the, rate of Rs. 200 per diem from the date of the institution of the suit till vacant and peaceful possession is delivered. The Plaintiff claimed a sum of Rs. 50,000 against Defendant Sunilkumar Sashibhusan Vishnu and Ayesha Bai Hasam as loss and damage as mentioned in para. 10 of the plaint.
2. The Plaintiff instituted this suit against Madanlal Khandelwal, Swastika Supply Company, Sunilkumar Sashibhusan Vishnu and Ayesha Bai Hasam. Ayesha Bai Hasam is alleged by the Plaintiff to have been the owner of premises No. 5, Amratolla Street and Madanlal Khandelwal and Swastika Supply Company are alleged to be the lessee in respect of premises No. 5, Amratolla Street. Sunilkumar Sashibhusan Vishnu is alleged as having granted a lease in favour of Madanlal Khandelwal by virtue of a Power of Attorney granted by Ayesha Bai Hasam in favour of Sunilkumar Sashibhusan Vishnu dated July 7, 1950.
3. The Plaintiff alleges to be the owner of premises No. 5, Amratolla Street by a registered conveyance dated May 14, 1960. The Plaintiff also claims to be the sole proprietor of the business carried on under the name and style of Haji Abdulla. The Plaintiff''s case is that the Plaintiff discovered that on or about January 7, 1963, the Defendant Vishnu purporting to act as Constituted Attorney of Ayesha Bai had executed an Indenture of Lease in favour of Madanlal Khandelwal for a period of 21 years at a monthly rent of Rs. 200. The Plaintiff alleges that the Defendant Ayesha Bai was not the owner of the premises and neither she nor Vishnu had any right or title or interest to grant any lease in respect of the premises. The lease is alleged by the Plaintiff as illegal, void and not binding. The Defendants Nos. 1 and 2 are alleged by the Plaintiff to be trespassers. Damages are claimed against Defendants Nos. 1 and 2 for wrongful possession at the rate of Rs. 200 per day. In para. 8 it is alleged that the Defendants are denying or are interested in denying the Plaintiff''s right, title and interest in the premises.
4. A joint written statement was filed by the Defendants Madanlal Khandelwal and Swastika Supply Company Defendant Vishnu also filed a written statement. In the defence it is admitted that the conveyance was or is valid or that there was any consideration. The, authority of All Athar to execute the conveyance is also denied. The further defence is that the consideration as mentioned in the conveyance by way of adjustment was made without any exemption from the Reserve Bank of India and that the Plaintiff was and is not a resident of India, but was and is a resident of Pakistan and the adjustment was in contravention of Foreign Exchange Act furnished in Regulation Act, 1947. The various recitals in the conveyance are alleged to be untrue. In para. 4 of the joint written statement of Defendants Nos. 1 and 2 it is not admitted that there was any dissolution. The other allegations in the plaint are denied as will appear from the issues raised at the trial. The defence, of Vishnu is that on instructions of Ayesha Bai and under authority granted by Ayesha Bai and as her agent Vishnu executed a lease in favour of Defendant Nos. 1 and 2. The following issues were framed at the trial:
Issues
(1) Was the Plaintiff sole proprietor of the business carried on under the name and style of Haji Hamid Haji Abdullah?
(2) Did the Plaintiff purchase premises No. 5, Amratolla Street, Calcutta, from the Defendant No. 4 as alleged in para. 1 of the plaint?
(3) Is the conveyance dated May 14, 1960, void : (a) for want of authority of Ali Athar to execute the said conveyance and (b) for want of consideration?
(4) Was the Plaintiff at all material times not a resident of India? If so, was the said conveyance invalid in the absence of general or special exemption from the Reserve Bank of India in respect of the consideration mentioned in the conveyance?
(5) Is the lease dated January 7, 1963, valid?
(6) Did the Plaintiff demand possession of the premises from the Defendant?
(7) Is the Plaintiff estopped from asserting any right, title and interest in the premises or from disputing that the Defendant No. 4 is the owner of the property in suit and is competent to grant lease to the Plaintiff as alleged in paras. 11 and 15 of the written statement?
(8) Has the Plaintiff suffered damages?
(9) To what relief, if any, is the Plaintiff entitled?
5. On behalf of the Plaintiff there is the oral evidence of Md. Haji Gaffar, a son of the Plaintiff Haji Abdul Gaffer. The other witnesses on behalf of the Plaintiff are Ali Athar, who was examined De Bene Esse on August 4, 1964 and was examined again on May 17, 1965 and Kishore Chandra Roy Chowdhury, partner of M/s. P.C. Ghosh and Company Defendant Vishnu was examined. Defendant Khandelwal was also examined.
6. The important question in this suit is whether the Plaintiff purchased the premises No. 5, Amratolla Street, as alleged in para. 1 of the plaint.
7. On behalf of the Plaintiff'' the documentary evidence consists of the following exhibits : Ex. A is the Power of Attorney dated April 30, 1960, from Ayesha Bai Hasam to Ali Athar. The second document Ex. B is dated April 30, 1960, made by Abdul Sattar confer-ring power on Ali Athar to do certain things mentioned there. The third document Ex. C is the deed of conveyance dated May 14, 1960. The fourth document Ex. D is dated April 30, 1960, being a Power granted by Haji Abdul Gaffar in favour of Goni Hossain Sakhani. The fifth document Ex. E is dated May 13, 1960, being a deed of retirement made between Abdul Sattar and Haji Abdul Gaffar. This deed is signed by Ali Athar as constituted attorney of Abdul Sattar and by Goni Hossain Sakhani as constituted attorney of Haji Abdul Gaffar. The other documents are these. Ex. F/1 is a notice of retirement published in the Calcutta Gazette dated June 2, 1960, to the effect that Abdul Sattar retired from the partnership business of Haji Abdulla and that the business is carried on by the other partner Haji Abdul Gaffar as sole proprietor. Ex. G/1 is a notice of retirement dated May 20, 1960, published in the Statesman dated May 27, 1960. Ex. H consists of some correspondence dated March 31, 1962, to April 2, 1962, April 4, 1962, May 16, 1962 and June 27, 1962. Ex. I is the letter of Messrs. Mukherjee and Biswas dated April 9, 1962. Ex. J is the Memorandum of Association of Haji Hamed Haji Abdullah Private Ltd. Ex. K is a notice of change of situation of the registered office of Haji Hamed Haji Abdullah. Ex. M comprises of application and deposition before the relevant authorities for mutation of ownership in respect of premises No. 5, Amratolla Lane. Ex. N is a Power of Attorney granted by Haji Abdul Gaffar in favour of his son Mohammed Haji Gaffar and is dated March 1, 1962. Ex, O is dated May 7, 1962 and is a Power granted by Haji Abdul Gaffar in favour of his son Mohammed Haji Gaffar. Ex. Q/1 is a notice published in the Amrita Bazar Batrika dated March 27, 1962, to the effect that Haji Abdul Gaffar has nominated his eldest son Mohammed Haji Gaffar in a general Power of Attorney to look after, manage deal with and disposing of the business Haji Hamed Haji Abdullah carried on at No. 5, Amratolla Street and the property situated at No. 42, Circus Averiue, Calcutta and premises Nos. 5 and 6, Amratolla Street and 146, Foreshore Rroad, Ramkrishhapur, Howrah. Ex. 8 is a rent receipt dated July 1, 1950, granted by Ayesha Bai Hasaiti in favour of Haji Hamed Haji Abdullah showing a rent at the rate of Rs. 450 per month in respect of 5, Amratolla Street, Calcutta. Ex. T consists of the occupiers share of taxes for the second quarter of 1961/1962, third quarter of 1950/1951 arid fourth quarter from 1960 td 1963 in respect of 5, Amratolla Street. The rates in the year 1962/1963 were Rs. 67.99 less rebate Rs. 2.11 aggregating Rs. 65.88. These rates are occupiers share per quarter. Ex. O/1 is Power of Attorney dated July 3, 1950, granted by Ayesha Bai Hasarri in favour of Sunilkumar Sashibhusan Vishnu.
8. The documents on behalf of the Defendants are Ex. 1 being certified copy of the extract from the return of allottees of Haji Hamed Haji Abdullah Pr. Ltd. Ex. 2 is the lease dated January 7, 1963, between Ayesha Bai and Madanlal Khandelwal and the lease is signed by Sunilkumar Sashibhusan Vishnu as the constituted Attorney of Ayesha Bai Hasam by virtue of the power dated July 3, 1950. Ex. 3 is the rent receipt dated January 7, 1963, granted by Sunilkumar Sashibhusan Vishnu in favour of Madanlal Khandelwal in respect of premises No. 5, Amratolla Street, Calcutta, for the sum of Rs. 2,400 being rent for 12 months from January 7, 1963 to January 6, 1964.
9. Ex. A dated April 30, 1960, is executed by Ayesha Bai in favour of Ali Athar authorising him inter alia to sign conveyances in respect of her properties No. 42, Circus Avenue and 5, Amratolla Street, in favour of Haji Abdul Gaffar. Exhibit B is another Power of Attorney dated April 30, 1960, made by Haji Abdul Sattar in favour of Ali Athar authorising him to execute a deed of dissolution and of retirement of Haji Abdul Sattar from the firm of Haji Hamed Haji Abdullah. The third Power dated April 30, 1960, made by Haji Abdul Gaffur in favour of Goni Hossain Sekhani authorises him to execute the deed of dissolution of the partnership on his behalf. The deed of dissolution is dated May 13, 1960. The conveyance is dated May 14, 1960. Counsel on behalf of the Defendants contended first that the execution and authentication of the Powers of Attorney in the present case could riot be presumed by reason of the provisions contained in Section 85 of the Evidence Act because the provisions of Section 14 of the Notaries Act do not apply in the present case to the notarial execution and authentication of the powers. The provisions of the Notaries Act, 1952, show that u/s 1(2) of the Act the provisions thereof apply to India. A Notary is also defined as a person appointed under the Act. u/s 14 of the Notaries Act it is stated that reciprocal arrangements are made for giving effect to execution and authentication of documents by notaries. From time to time there have been notifications showing the reciprocal arrangements between India and other countries. It is manifest and it has not been controverted at the Bar that Pakistan does not come within the reciprocal arrangements. It is, therefore, rightly contended by counsel for the Defendants that Section 85 of the Evidence Act which contemplates that the Court shall presume that every document purporting to be a Power of Attorney to have been executed before and authenticated by Notary Public was so executed and authenticated will only apply when the relevant Notary Public comes within the provisions of the Notaries Act. In the present case by reason of absence of reciprocal arrangements between India and Pakistan regarding the Powers of Attorney cannot be presumed to have been executed before and authenticated by a Notary Public.
10. Counsel on behalf of the Plaintiff contended that if the provisions of Section 85 of the Evidence Act did not apply, arid there was no argument on behalf of the Plaintiff that the provisions of Section 85 did apply, presumption would arise u/s 114 of the Evidence Act and the Court might presume the existence of any fact which it thought likely to have happened, regard being had to the common course of natural events, human conduct, public and private business. In aid of drawing this presumption counsel on behalf of the Plaintiff contended that Ali Athar in his evidence stated that he knew Haji Abdul Gaffur, Abdul Sattar and further said that Abdul Sattar was the husband of Ayesha Bai. Ali Athar further said that in the month of April, 1960, Abdul Sattar came to him to consult on some points. Ali Athar was then shown the Power of Attorney and he said that the power was given to him by Ayesha Bai Hasam at Karachi. In Q. 13 he was asked whether she executed that in his presence. It was a leading question and the answer was that it was executed by her in his presence. Ali Athar said that Ayesha Bai executed the Power of Attorney in his presence and in the presence of the Notary Public. It is also Ali Athar''s evidence that the Notary Public asked whether she agreed to all the terms in the Power of Attorney and then when she admitted that the Notary Public took the thumb impression of Ayesha Bai in the presence of the witness. The witness then proved the thumb impression and identified the signature of the Notary Public and was again asked a leading question as to whether the Notary Public put his signature in* the presence of the witness and the answer was in the affirmative, Ali Athar said that he drafted the power on the instructions of Ayesha Bai and Abdul Sattar Ali Athar further said that Saheed Hossain, the Notary Public, put the seals ha his presence on April 30, after execution of the document. In Q. 36 Ali Athar said that the Notary Public explained the contents of the Power of Attorney to Ayesha Bai and she accepted them and thereafter the Notary obtained the thumb impression of Ayesha Bai. In Q. 37 the witness said that the impression (which is wrongly typed as instruction) was taken in his presence. Ali Athar also spoke about the Power of Attorney granted by Abdul Sattar and he said that Abdul Sattar signed in his presence and in the presence of the Notary Public and Abdul Wadud. Ali Athar said that after he obtained the Power of Attorney he came to Calcutta with the power and gave instructions to Mr. K.C. Basu. He said that he was taken to the office of Mr. Basu by Sakhani and the witness asked Mr. Basu to draft a conveyance by Ayesha Bai in respect of the two properties Ali Athar proved the signatures of Mr. Keshab Chandra Basu, Goni Hossain Sakhani and his own signature. He proved the signature of Mr. Kishore Chandra Roy Chowdhury but wrongly gave his name as Iswar Chandra Roy.
11. On May 17, 1965, when Ali Athar was examined again be''Was shown the Power of Attorney and he said that he knew the certificate from Saheed Hossain and he also said that the seal of the Notary Public was put in his presence by Saheed Hossain, the Notary Public This evidence was given in relation to the Power executed by Haji Abdul Caffar in favour of Goni Hossain Sakhani. Ali Athar said that Ayesha Bai executed the Power of Attorney in his presence and in the presence of the Notary Public. In Q. 12 following and in Q. 123 and Q. 124 Ali Athar said that Abdul Sattar and Abdul Gaffar identified Ayesha Bai and in Q. 125 he said that Abdul Wadud identified Ayesha Bai to the Notary Public. In Q. 215 Ali Athar said that Ayesha ''Bai was partly literate. In Q. 224 following Ali Akhar was asked as td whether there was anything in the document to show that it had been explained by any one to Ayesha Bai and the witness answered that it was not the practice in Karachi. In Q. 228 Ali Athar said that the Notary Public explained the document in his presence and there is no practice in Karachi to make an endorsement on the Power of Attorney to that effect.
12. In this context of oral evidence counsel on behalf of, the Defendants contended that it was significant that Ayesha Bai put a thumb impression oh the Tower and did not sign. It appears on the oral as well as documentary evidence that she is partly literate and she cart sign her name in Gujrati script. The Power dated July 3, 1950, in favour of Vishnu will show that. The other Power Ex. A, Shows that where the thumb impression appears there is a writing in type-script to the effect that "the executant (Ayesha Bai Hasam) admits the execution of the above Power of Attorney and has made her signature/right hand-thumb impression in my presence." Abdul Wadud appears to have identified Ayesha Bai. It does riot appear on the face of the document that it was explained to Ayesha Bai. It is true that Ali Athar gave evidence that it was explained but his oral evidence is not corroborated by the document itself. His oral evidence as to Karachi practice is that the document is explained but the document does not state so. It is in my opinion hazardous to depend on the testimony of a single witness to hold that such a practice exists in Karachi a practice has to be uniform, clear and has to be proved beyond any measure of doubt. There is no such evidence which will justify the finding of a practice to that effect. On the contrary the intrinsic evidence in the document repels the oral testimony as to the version of practice. Again it is significant that a Notary Public will not strike out the word "signature" when the thumb impression is put. Counsel on behalf of the Plaintiff contended that such a case was not put and therefore no adverse inference should be drawn. The cross-examination of Ali Athar shows that there was sufficient challenge on the part of the Defendants about the valid execution of the Power of Attorney. It was also said on behalf of the Defendants that the important witnesses like the Notary Public, Abdul Wadud were not called. The Plaintiff ha& not also been examined. Counsel for the Defendants contended that Abdul Wadud is alleged to have taken the Notary Public to Ayesha and the Notary did not know the woman and the document does not show that Ali Athar did any act in relation to the power in the presence of the Notary Public and therefore, the evidence of Ali Athar should be viewed with care.
13. Counsel on behalf of the Plaintiff contended that there was no suggestion to Ali Athar that Ayesha Bai did not put her thumb impression and there was no suggestion put to Ali Athar that the signature portion was not struck out and that if was also not put to Ali Athar as to why Sattar did not identify and therefore, the Defendants should not be allowed to dispute the genuine execution and authentication of the Power.
14. Counsel on behalf of the Plaintiff relied on the Bench decision in the Goods of W.H. Mylne (1905) 9 C.W.N. 986 in support of the proposition that if the provisions of Section 85 of the Evidence Act did not apply recourse might be had to, the provisions of Section 114 of the Evidence Act for presuming genuineness of a document. In that Bench decision it was held that the provisions of Section 85 of the Evidence Act are mandatory and when a document purporting to be Power of Attorney and to have been executed before and authenticated by a Notary Public was produced before the Court an affidavit of identification as to person purporting to make the Power of Attorney being the person named therein was unnecessary and if the Court was not satisfied as to its execution and authentication it might call for further evidence,; The Power of Attorney was in the proper form in that case and affidavit of identification as to the person purporting to make the Power was called for by the trial Court. The Appellate Court came to the conclusion that the Power was executed before and authenticated by the Notary Public and unless the authentication by the Notary Public was to be treated as the equivalent of an affidavit of identity it went for very little. The Power was also attested by two witnesses and it was held that in the absence of anything to excite suspicion it might be assumed that the Notary satisfied himself of the identity of the executant before he certified and attested the Power. No such presumption of execution and authentication by the Notary arises in the present case and a fortiori the identification of the executant does not also follow as a presumption as it did in the Bench decision.
15. Counsel for the Plaintiff contended that the oral evidence of Ali Athar would show that he has had long acquaintance with Ayesha Bai and has been their family lawyer and Ali Athar also stated in his oral evidence that he played a part in the preparation of the draft power and he narrated as to what happened before the Notary Public and therefore Ali Athar''s evidence about the execution of the Power should be accepted. It is also said on behalf of the Plaintiff that Abdul Wadud was known to the Plaintiff and Abdul Wadud took the Notary Public to Ayesha Bai and Abdul Wadud identified Ayesha Bai and there should not be any suspicion because Sattar, the husband of Ayesha Bai, did not identify Ayesha Bai. It is also said on behalf of the Plaintiff that ho suggestion was made to Ali Athar in the cross-examination that the Power was not genuine and that Sattar was not present, that Ayesha Bai was not present that the Notary Public was not present that Abdul Wadud was not present and therefore, Ali Athar''s evidence was uncontradicted and it would show that Ayesha Bai executed the Power in the presence of the Notary and Abdul Wadud identified Ayesha Bai. It is also said on behalf of the Plaintiff that the evidence of Ali Athar that the document was explained by the Notary Public was not challenged in cross-examination and the evidence of Ali Athar that Ayesha Bai put her thumb, impression was not challenged in cross-examination by suggesting that that was not true and therefore, the evidence of Ali Athar was uncontradicted. Counsel for the Plaintiff contended that in the background of all facts and circumstances and particularly that Ali Athar''s evidence was not challenged and that Ayesha Bai did not dispute the thumb impression nor execution and did not come to contradict any oral evidence adduced on behalf, of the Plaintiff it should be held that Ayesha Bai executed the Powers.
16. Reliance was placed for the Plaintiff on the Bench decision in
It cannot help saving that it seems to mc to be absolutely essential to the proper conduct of a case where it is intended to suggest that a witness is not stating the truth on a particular point, to direct his attention to the fact, by some questions put in cross-examination showing that that imputation is intended to be made and not to take his evidence and pass it by as a matter altogether unchallenged and then, when it is impossible for him to explain as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box to give him an opportunity of making any explanation which is open to him and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.
17. Counsel for the Defendants distinguished the Bench decision in Carapiet''s case by contending that the observations of Lord Herschell in Browne v. Dunne 6 R. 27, would apply where a party was propounding a definite case he would have to put that case to the witnesses on, the other side in order to give an opportunity to meet that case. Counsel for the Defendants relied on the Statement of Law in Phipson on Evidence, 10th Edn. para. 1542 at p. 1540 where it is stated that as a rule a party should put to each of his opponent''s witness in turn so much of his own case as concerns that particular witness, or in which he had a share, e.g. if the witness has deposed to a conversation, the opposing counsel should indicate ho much he accepts of such version, or suggests to the witness a different one. It is not the case of the Defendants that any particular thing happened or that any particular person was present. The Defendants are denying that there was proper execution of the power in the sense that there was identification that the person signing the Power was the proper person and that it was explained to her and she put her thumb impression after having understood the document. In the present case the real contention on behalf of the Defendants is that she Plaintiff has failed to prove the execution of the Power of Attorney. The evidence of Ali Athar is that lie was present when the Notary Public came and signed and that Ayesha Bai put her thumb impression and Abdul Wadud identified Ayesha Bai. The further evidence of Ali Athar is that the document was explained by the Notary to Ayesha Bai. The execution of a document and signing a document or putting thumb impression on a document are not the same thing. Counsel on behalf of the Defendants relied on the decision of the Judicial Committee in
18. Counsel for the Defendants relied on the decision in re Parrott ex parte Cullen (1891) 2 Q.B. 151, in support of the proposition that a person who is appointed by a creditor to act as a proxy cannot himself be an attesting witness to the instrument of proxy and therefore, contended that a donee of a power cannot be an attesting witness and that the presence of Ali Athar was not normally necessary as he was not required to sign. The contention oil behalf of the Plaintiff is that the grantee of a power has no interest in the things done and therefore Ali Athar''s evidence was that of a disinterested person and should be accepted. The entire evidence of Ali Athar suggests that everything relating to the execution of the document happened in his presence. But I am unable 10 hold that it was explained to her. The evidence of Ali Athar that it was explained by the Notary Public is unacceptable to me for these reasons : First, I do not find that there is any intrinsic evidence in Ex. A to the effect that the document was explained. Secondly, I am unable to hold on the evidence that there is any practice in Karachi that though a document is explained yet it is not stated in the document. Thirdly, there is no explanation as to why the Notary has not been called. There is no explanation as to why Abdul Wadud has not been called. The absence of these important witnesses raises an inference. The difference between presumption and inference is this that, presumption becomes mandatory, under the provisions of the Evidence Act whereas an inference is permissive in the facts and circumstances of a case. In the present case I am of opinion that the very fact that the Notary Public and Abdul Wadud have not been called in the background of the entire evidence and surrounding circumstances raises the inference that they were not prepared to own the documents which are ascribed to them. The absence of Ayesha Bai at the trial does, not entitle the Plaintiff to any presumption that there is valid execution of the document. Vishnu is a stranger as far as the documents of the Plaintiff are concerned and no presumption could be raised against him. The other Defendants have not accepted, any of the documents. The onus of proper was upon the, Plaintiff. It was not obligatory on the Defendants to prove that the Notary was nor present or that Abdul Wadud was not present or that Abdul Sattar was not present because it is not the Defendants case that persons other than those were present. The Defendants case is that they do not admit the Power and therefore, they have in cross-examination tried to test the oral evidence of the witness Ali Athar by putting such questions as will show that the persons who are alleged to be present have not come to depose and the Plaintiff did not discharge the onus of proof of execution of the document. The fact that the words, "signature/right hand thumb impression" both occur in Ex. A without striking out that part which is inapplicable also shows that there is not that element of precision and regularity which is required in regard to the execution of such a document. The execution of a document does not depend on isolated pieces of evidence that the person was present or that there was identification or that there was a thumb impression but on the predominant question that the document has been executed by the executant of her own understanding and of her own act. In my opinion the Plaintiff has failed to prove that it was Ayesha Bai who herself executed the Power as her own act.
19. The second important question in the present case is whether there is a conveyance of the property. Counsel on behalf of the Plaintiff contended that there were three significant features in regard to the conveyance. First, that Ayesha Bai did not come and dispute the conveyance. Secondly, that 2 properties were conveyed by Ayesha to the Plaintiff, namely, 5, Amratolla Street and 42, Circus Avenue and disputes were being raised by the Defendants with regard to Amratolla Street property, but not with regard to Circus Avenue and it would be strange to hold that the conveyance would be good with regard to a part of the property and not with regard to another part. Thirdly, that after the conveyance the Plaintiff took various steps to assert that the properties of the Plaintiff, namely, 5, Amratolla Street, 42, Circus Avenue. 148, Foreshore Road, were being managed by his son and he gave a Power of Attorney in favour of his son. These powers were advertised. There were mutation proceedings and in the mutation proceedings Nasimuddin, who happened to be one of the three persons who subscribed the Memorandum of Association of the private limited company of Haji Hamed Haji Abdullah, affirmed that the properties had been sold by Ayesha to the Plaintiff. Md. Haji Gaffar the son of the Plaintiff gave oral evidence and he said that he met Ayesha Bai at Bilaspur at the time of his marriage and also at the time of the marriage of Ayesha''s daughter Zarina. Md. Haji Gaffar also said that he went to Karachi in the month of July 1963 and met Ayesha there. He was asked whether he told Ayesha that there were difficulties in obtaining possession of the properties which had been conveyed by Ayesha to the Plaintiff and he said that he did not discuss the same because he did not think it necessary. In Q. 206 it was put to him that when he was having troubles why he did not tell Ayesha that the Plaintiff was not getting possession. Md. Haji Gaffar again said that he did not think it necessary. In Q. 209 Md. Haji Gaffar said that the Plaintiff and Ayesha were not on good terms. The witness did not know the reason. It was suggested to him as to whether the conveyance was a reason for that the witness said that he was not aware of it. In Q. 212 the witness said that after the lease the relationship became bad and by the lease, the witness Md. Haji Gaffar referred to the lease in favour of Khandelwal. In Q. 214 Md. Haji Gaffar said that Ayesha knew about the lease. In Q. 215 Md. Haji Gaffar said Ayesha refused to command give evidence. In that state of evidence it is manifest that the relationship between the Plaintiff and Ayesha is strained. It was said on behalf of the Plaintiff that Ayesha did not come because she did not, want to embarrass Vishnu, because Vishnu had given a lease. There is no evidence in support of such a contention. On, the contrary the absence of the Plaintiff remains unexplained. Therefore the fact that Ayesha did not appear at the trial cannot give rise to any presumption of the validity of the conveyance. The present suit does not touch the Circus Avenue properties and it is not known whether there are disputes or not.
20. Counsel on behalf of the Plaintiff contended that it would appear from Q. 1 that the Plaintiff through his solicitor gave a public notice that his properties were situated at 42, Circus Avenue and 5 and 6 Amratolla Street, Calcutta and 148, Foreshore Road, Ramkrishnapur, Howrah. It was put to Vishnu that in Ex. 1 in the letter dated April 9, 1962, written by the solicitor on behalf of_Vishnu, Goni Hossain Sokhani and Nashimuddin Ahmed that Vishnu did not instruct his solicitor to deny these statements. Vishnu''s evidence in Qq. 91-93 was that there was nothing to show in the notification that the properties were the Plaintiff''s. A denial or an absence of denial would not go to the question of title, the more important question is whether the, Plaintiff has proved the conveyance.
21. As to the mutation proceedings counsel for the Plaintiff relied on Ex. M--they are L.R. Case No. 464 of 1960, the date of decision is February 28 1961. The deposition of Nasimuddin Ahmed is dated February 28, 1961. Counsel for the Plaintiff relied on the decision in Budree Lall v. Bhoosee Khan 25 W.R. C & R 134 that under the provisions of Section 80 of Evidence Act a statement made before a Collector in a mutation proceeding is a document entitled to be receive as evidence. In Budree Lall''s case 25 W.R. Civil Rulings, 134 there was a suit to recover possession of certain land. In that case there was a statement made by one Bahadur before the Collector in the mutation proceeding and there Bahadur was examined for the purpose of ascertaining who besides the third son of Bullee Khan were co-sharers in the estate and in that statement Hafeenu was declared to be his sister of the full blood. That statement of Bahadur was admitted under the provisions of Section 80 of the Evidence Act. Considerable reliance was placed by counsel for the Plaintiff on the statement of Nashimuddin, particularly when Nashimuddin happened to be one of the three persons who were running the Private Limited Company of Haji Hamid Haji Abdullah. In that connection reliance was also placed by counsel for Plaintiff on Ex. J. which is Memorandum of Association where one of the objects for which the company was established was to acquire the business of Haji Hamed Haji Abdullah by Haji Abdul Gaffar as sole proprietor with head-office at 5, Amratolla Street. This statement of Nashimuddin does not go against Vishnu or the other Defendants as any piece of admission by them. The statement is to be taken into consideration in the light of all the surrounding circumstances. Counsel for the Plaintiff contended that the circumstances would show that there were three Powers of Attorney, all dated April 30, 1960. Thereafter there was the deed of retirement dated May 13, 1960 the conveyance was on May 14, 1960. The retirement of partner was published in Calcutta Gazette on June 2, 1960. Then the mutation proceeding was in the year 1961 and on February 28, there was deposition of Nashimuddin. Thereafter the Plaintiff made two Powers, dated March 1, 1962 and May 7, 1962, in favour of the Plaintiff''s son. It is said that Ali Athar''s evidence is that he met Vishnu in the month of April, 1960 and it was not denied by Vishnu. The Plaintiff, it is said, is in continuous possession of premises No. 42, Circus Avenue. The surrounding circumstances on behalf of the Plaintiff are said to be that the Plaintiff purchased the property in suit. The execution of the lease is characterized by counsel for the Plaintiff to be suspicious because there was no advertisement, there was no broker and above all that the premises were let out at a rent of Rs. 500 per month in the year 1951 and the premises were let out at a low rent of Rs. 200 per month in the year 1963.
22. Of these rival contentions on the conveyance, the most important question is whether there was consideration for the conveyance. The execution of the conveyance is a matter in which all the surrounding circumstances would have to be considered. Counsel on behalf of the Plaintiff contended that, the conveyance was proof of payment of the consideration and no further evidence was necessary. Counsel for the Plaintiff relied on the Bench decision in Anganlal v. Muhammad Hussain ILR All. 409, that case, a deed dated June 3, 1878 which purported on the lace of it to be a deed of sale contained a recital that the consideration had been received by the vendor and returned as a gift to the vendee. The deed was stamped as a sale deed and was duly registered, but no possession was given under it and there was apparently no evidence external to the deed that any consideration had passed between the parties, tinder the Muhammedan Law if it were a deed of gift, the gift would have failed if no possession had been given. It was held that in the absence of any evidence external to the deed itself to the intention of the parties, the deed in question must be taken to be a deed of sale. It was a suit for ejectment. The Plaintiff as part of the proof of title against the only person who disputed it put in evidence a deed dated June 3, 1878, which had been executed by Wilaiti Begum in favour of her daughter''s daughter Ilahi Begum and which on the face of it stated that she had received Rs. 700 as consideration. In that light, it was held that it was for Wilaiti Begum to show that the statement in the deed under her hand was incorrect and no consideration had ever been paid and until that was established it was held that she was bound on the document, as against her, that the consideration had passed. Wilaiti Begum executed the document in favour of her daughter''s daughter Ilahi Begum, purporting to be a deed of sale, in lieu of Rs. 700. On August 1, 1884, the vendee of the deed of 1878 executed a document purporting to be a deed in favour of Anganlal, the Plaintiff in the suit, for a sum of Rs. 1000 and the document was registered. The Plaintiff claimed compensation of property alleging that he had purchased the same from Ilahi Begum under the sale deed. It will appear that in the Allahabad case the onus of proving no consideration was upon Wilaiti Begum and she was the only person disputing. In the present case disputes are raised by parties other than those who were parties to the conveyance. The question of consideration is put as an issue in the suit. The onus of proving the consideration is upon the Plaintiff.
23. The Other decision ort which counsel for the Plaintiff relied is Thakur Bhagwan Singh v. Bishambar Nath (minor) A.l.R. 1940 P.C. 114. That was a mortgage suit and the Onus of proof whether there was no consideration or whether full consideration had not in fact passed was stated to be wholly on the mortgagors and it was not for the mortgagee to prove the matter affirmatively. It was held by the Judicial Committee that on the question of whether there was legal necessity for the borrowing, the onus of proving that there was legal necessity was on the mortgagee. The mortgage loan was paid in presence of the Registrar and the deed mentioned consideration. The deed was signed by both. Consideration was admitted. The only parties were mortgagor and mortgagee. There was no stranger. This decision is of no aid to the Plaintiff because there the onus of proving no consideration was on the party who asserted that whereas in the present case the onus of proving affirmatively that consideration was paid is on the Plaintiff.
24. The conveyance in the present case is between Ayesha Bai Hasam of one part and Haji Abdul Gaffar of the other part. The conveyance is signed in the presence of three persons : Keshab Chandra Basu, Solicitor, Kishore Chandra Roy Chowdhury, Solicitor and Goni Hossain Sakhani. There are various recitals and one of them says that the vendor approached the purchaser for the purchase by the purchaser of premises No. 42, Circus Avenue and 5, Amratolla Street, for the sum of Rs. 2,10,031.74 nP. so that the liability of the vendor to the purchaser may be paid off or liquidated in full. The other recital in the conveyance is that a sum of Rs. 2,10,031.74 nP. remained due and outstanding from the vendor to Haji Abdul Gaffar in the business of Haji Ahmed Haji Abdullah. The operative part of the conveyance is that the party of the other part, viz., Haji Abdul Gaffar
doth hereby admit acknowledge and doth hereby for ever acquit release and discharge her (meaning thereby Ayesha) the said vendor from the payment o� the said sum of Rs. 2,10,031.74 nP. only so due and owing lo him in his said business of Haji Hamed Haji Abdulla....
It is manifest that the acknowledgment is by the deed of conveyance itself. The deed of conveyance is not signed by Haji Abdulla Gaffar. The consideration in the present case is that the sum mentioned as consideration is due by the vendor to the purchaser and the purchaser acknowledges receipt of the same and releases the vendor from any liability in respect of the said sum. There is, therefore, accord as well as satisfaction.
25. Counsel for the Defendant relied in the Bench decision in Rai Satyendra Nath Sen Bahadur v. Karendra Nath Gupta 39 C.L.J. 279 on the observation appearing at p. 283 of the report that the Court must be satisfied that the evidence is sufficient to justify a decree in favour of the Plaintiff. The oral evidence as far as the contents of the conveyance is concerned is that Ali Athar has no knowledge of the contents and the Plaintiff''s son has also no knowledge of the contents. Consideration is one of the issues in this suit.
26. Counsel on behalf of the Plaintiff contends that the contents of the conveyance have been proved by the production and tender of the document. The contents of documents may be proved either by primary of secondary evidence. Primary evidence means the document itself produced for inspection to the Court. Secondary evidence under the provisions of the Evidence Act means and includes certified copies or copies made from original or copies made or compared from the original or counter-parts of document as well as oral statement or contents of documents given by some person who Ms seen it. The primary evidence which is referred to in the provisions of the Evidence Act is the original document. I am unable to hold that the tender 01 production, of the original document amounts to proof of the truth of statements contained in the document. Documents do not prove themselves. The statements in the documents unless they are admitted by parties are to be proved. If a document is in manuscript it has to be proved by whom it is written and made. It the document is signed by a person, it is proved by whom it is signed. If there are witnesses who have signed, it is to be proved unless it is admitted, in the present case there is no evidence to prove that the sum of Rs. 2,10,031.74 nP. was found due and owing by the vendor to the purchaser and that the purchaser acknowledged payment of the same and gave acquiescence in respect of the same. The concept of accord and satisfaction is that two persons agree and thereafter a debt is satisfied by the agreement of both parties. Accord and satisfaction is purchase of release from the obligation by means of any valuable consideration not being actual performance of the obligation itself. Accord is an agreement by which obligation is discharged. The satisfaction is ''consideration which makes'' the agreement operative. Accord without a satisfaction is ineffective. The discharge is effective when there is a release from obligation in consideration of the sum paid by one person to the other. In the present case in view of the fact that the conveyance is not signed by the Plaintiff particularly when the conveyance states that the acknowledgment is by the deed as the user of the word "hereby" indicates, the document by itself furnishes no evidence of consideration. There is no independent or other evidence of consideration in the present case. The question of consideration in the present case is one, as I have already indicated, of accord and satisfaction. The payment of Rs. 2,10,031.74 nP. and discharge of that liability by releasing the vendor from the payment because of the agreement of the two parties to accept the properties in satisfaction of that debt is the total consideration. There is no evidence in the present case in support of that accord and satisfaction forming the consideration. I am, therefore, unable to hold that the Plaintiff has proved consideration.
27. The third important question in the present case is whether the alleged consideration is violative of the provisions of Foreign Exchange Regulations Act, 1947. The oral evidence is that the Plaintiff went to Pakistan in the month of April, 1960 and came to India in the month of July, 1960 and stayed here till the month of February, 1961. It is also the oral evidence that the Plaintiff is now a permanent resident of Pakistan. It is the Plaintiffs evidence that Ayesha Bai was in India upto the year 1957. Since then she has not come to India. Ayesha Bai is now a permanent resident of Karachi. On the date of the conveyance it is an indisputable feature of the case that both the Plaintiff and Ayesha Bai were not residing in India. It is said on behalf of the Plaintiff that the Plaintiff''s Power of Attorney to Goni Hossain Sakhani Ex. D dated April 30, 1960, will show that the Plaintiff is described to be of No. 5, Amratolla Street, Calcutta and residing at Calcutta and a temporary visitor to Karachi. Reliance is also placed on Ex. N and Ex. O dated March 1, 1962 and May 7, 1962, whereby the Plaintiff appoints his own son to look after his properties in India. On behalf of the Plaintiff it is said that Ex. B the power granted by Abdul Sattar to Ali Athar will also show that he is residing at 42. Circus Avenue, but is then residing at Karachi. The contentions on behalf of the Plaintiff are that Ayesha Bai lived in India upto 1957 and it cannot be said that she has permanently given up her residence in India. The surrounding circumstances in favour of Ayesha Bai are said to be that her husband is also described to be temporarily residing at Karachi and that she came to India in connection with the marriage of her daughter. Similarly it is said that the Plaintiff has not permanently given up residence in India. In mother words the contentions on behalf of the Plaintiff are that Ayesha Bai and the Plaintiff have Indian domicile and therefore, they are residents of India.
28. It is also contended on behalf of the Plaintiff that: no specific issue was raised as to whether Ayesha Bai was a resident of India or not and therefore, the Defendant should not be allowed to raise any contention in that behalf.
29. Issue No. 4, is whether the Plaintiff was at all material times not a resident of India : if so was the said conveyance valid in the absence of general or special exemption from the Reserve Bank of India in respect of consideration mentioned in the conveyance. In my opinion the aspect of applicability of the provisions of Foreign Exchange Regulations Act is raised as an issue and the conveyance is to be tested in the light of the provisions of the Act. Counsel for the Plaintiff relied on the Statement of Law in Cheshire''s Private International Law, 6th Edn. at pp. 172, 176, 177, 186 to the effect that a person cannot have two domiciles and a person indeed may reside in more countries than one and domicile and residence are not synonymous. It is also said that in considering the question of intention it may be necessary to examine the history of a person''s life with the most scrupulous care and no fact is too trifling to merit consideration. It is therefore said that a person''s intention and a person''s permanent residence are required in aid of the contention of a domicile. Finally it is said that there is the strongest possible presumption in favour of the continuance of the domicile of origin. Reliance is placed on Notification No. F.E.R.A. 34/47 R.B., dated August 14, 1947, as amended up to February 5, 1962, which is set out hereunder:
In pursuance of Clause (a) of Sub-section (1) of Section 20 of the Foreign Exchange Regulation Ad, 1947 (VII of 1947) and in suppression of notification No. F.E.R.A. 18/47-R.B. dated the 25th March, 1917, the Reserve Bank is pleased to direct that any subject of His Majesty other than a person domiciled in India, who has been resident in India but who leaves India and becomes resident in any country or territory for the time being specified in the schedule annexed to this notification, shall be treated as being resident in the country or territory to which he has gone.
Schedule
Any country within the Commonwealth (except Canada)
The Trust Republic
British Trust Territories
British Protectorates and protected Slates
Burma
Iceland
The Hashemite Kingdom of the Jordan
Libya,
South Africa
South West Africa
Relying on this notification it is contended that Ayesha Bai and the Plaintiff arc both of Indian domicile and therefore, they are residents of India and their temporary sojourn in Pakistan will not make them residents of Pakistan. Reliance is placed by counsel for the Plaintiff on the decision in
No person resident in India oilier than authorised dealer shall outside India buy or borrow from or sell or lend or exchange with any person not being authorised dealer in foreign exchange.
Shanti Prosad Jain did not obtain permission of the Reserve Bank for opening an account with a German Bank. In para. 47 the Supreme Court dealt with the contentions as to whether the prohibition enacted in Section 4 was only against lending of foreign exchange by person who is resident in India and whether at the time of the deposit in question Shanti Prosad Jain was not in India but in Germany. The expression resident in India is held by the Supreme Court to be used in the sense domicile of India. It is therefore, said on behalf of the Plaintiff that Ayesha Bai and the Plaintiff are residents of India because they are of Indian domicile and there is no violation of the provisions of the Foreign Exchange Regulations Act.
30. The relevant provisions of the Foreign Exchange Regulations Act for the purposes of the present case are Sections 5 and 21. In Section 5 of the Foreign Exchange Regulations Act it is stated that
save as may be provided in and in accordance with any general or special exemption from the provisions of this sub-section which may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in India shall--
(a) make any payment to or for the credit or any person resident outside India;
* * *
(c) make any payment to or for the credit of any person by order or on behalf of any person resident outside India;
(d) place any sum to the credit of any person resident outside India;
(e) make any payment to or for the credit of any person as consideration for or in association with--
(i) the receipt by any person of a payment or the acquisition by any person of property outside India;
(ii) the creation or transfer in favour of any person of a right whether actual or contingent to receive payment or acquire property outside India;
(f) draw, issue or negotiate any bill of exchange or promissory note, transfer any security or acknowledge any debt, so that a right (whether actual or contingent) to receive a payment is created or transferred in favour of any person as consideration for or in association with any matter referred to in Clause (e).
Counsel for the Plaintiff also relied on the decision of the Supreme Court in Dhanrajamal Gobindram v. Shamji Kalidas (1961) 3 S.C.R. 1020 on the observation appearing at p. 1032 that in the case of resale there is no payment to the buyer and no contravention of Foreign Exchange Regulations Act. In the case of Dhanrajamal Gobindram (1961) 3 S.C.R. 1020 the Appellant entered into an agreement with the Respondents to purchase African raw cotton. The agreement was impeached on behalf of the buyers as having violated Section 5 of the Foreign Exchange Regulations Act since no general or special exemption had been granted. This decision of the Supreme Court was relied on by counsel for the Plaintiff in support of the proposition that there was no payment in the present case but a mere wiping out of liability and secondly, that the performance of the contract was different to the formation or making of the contract. In the case before the Supreme Court it was held that the plea of illegality could not be taken up u/s 5 of the Foreign Exchange Regulations Act because u/s 21 of the Act an implied term would be engrafted that permission would be obtained. This decision is of no aid to the Plaintiff because (here is no evidence to merit any finding of wiping of liability and the effect of the decision is that no one can claim not to perform contract by setting up illegality because the statute implies the term that permission should be obtained.
31. Counsel on behalf of the Defendants relied on the decision in
32. The contention on behalf of the Plaintiff that there is no element of payment but mere wiping of liability is unacceptable. In the case of Trinidad Lake Asphalt Operating Company Ltd. v. Commissioners of income tax for Trinidad and Tobago (1945) A.C. 1, it was held that where the Appellant company agreed with a non-resident shareholder that specified dividend on the non-residents shares should be paid by the cancellation of the Appellant company''s claim in a like amount against the non-resident for goods sold and the transaction was effected by each party making corresponding entries there was an actual payment and receipt of the indebtedness. The composite and joint transaction of the liquidation of a liability and the acceptance of that liquidation by the other party as the consideration for acquisition of a property can no better be described than in the words of Mellish L.J. in the case of re Harmony if Montague Tin and Copper Mining Company (1873) L.R. 8 Ch. 407.
Nothing is clearer than that if parties account with each other and sums are stated to be due oh the one side and sums to an equal amount due on the other side of that account and those accounts are settled by both parties, it is exactly the same thing as if the sums due on both sides had been paid. Indeed, it is a general rule of law, that in every case where a transaction resolves itself into paying money by A. to B. and then handing it back again by B. to A., if the parties meet together and agree to set one demand against the other, they need not go through the form and ceremony of handing the money backwards and forwards.
Such transactions are also described as setting off liabilities by parties and there is actual, not merely notional or constructive payment of the indebtedness on either side.
33. The contention on behalf of the Plaintiff that a person of Indian domicile does not lose it by temporary migration to another country was amplified by relying on the decision of the Supreme Court in
I am unable to accept the contention on behalf of the Plaintiff that the question of domicile is of importance or relevance in determining the scope and intent of the provisions of the Foreign Exchange Regulations Act. The words in the Act are "resident in". There is no qualification of residence as to whether it is to be permanent or temporary. Further the introduction of any aspect of domicile into the words of the statute will be robbing the statute of its true character. It is indisputable that neither the Plaintiff nor Ayesha Bai was resident in India at the time of the agreement. I have already held that there is suggested payment in the transaction. This payment is made by a person who is not resident in India. The meaning attributed to the words "resident in" occurring in Section 4 of the Act in the case of Shanti Prasad Jain (Supra) that a person who is resident in India does not aid the Plaintiff. In Shanti Prosad Jain''s case (Supra) admittedly he was a resident of India and therefore, he was considered to be a resident in India.
34. Counsel for the Defendants relied on the decision in Shaw v. Shaw (1965) 1 W.L.R. 537. In that case the Plaintiff claimed re-payment of a sum of � 4,000 which he had paid to the Defendant under an oral-agreement made in London in consideration that the Defendant transferred and conveyed to him a flat outside the scheduled territories. The Plaintiff alleged that it was an implied term or, alternatively, a condition precedent of the agreement that the necessary consent of the Treasury, u/s 7 of the Exchange Control Act, 1947, should be obtained and that he had paid the sum, but at no time had the consent of the Treasury been obtained. The Defendant unsuccessfully applied to the master and to the Judge in chambers to have the statement of claim struck out as showing no reasonable cause of action. It was held that the statement of claim disclosed that the Plaintiff''s action was founded on an agreement with the Defendant under which the Plaintiff had made a payment of �4,000 without the necessary Treasury consent and as that payment was illegal, the Plaintiff''s action was founded on his own illegal act and accordingly, the statement of claim was struck out. The relevant provisions in the English Exchange Control Act, 1947, are that except with the permission of Treasury no person shall in the United Kingdom and no person resident in the United Kingdom shall outside the United Kingdom make any payment to or for the credit of a person resident in the scheduled territories as consideration for or in association with (a) receipt by any person of a payment made outside the scheduled territories, or the acquisition by any person of property which is outside the scheduled territories, or (b) the transfer to any person...of a right...to acquire property outside the scheduled territories. Lord Denning, M.R. said that the Plaintiff there was saying that he paid �4,000 under an agreement and that there was no consent of the Treasury as required by the Exchange Control Act, 1947 and for that reason he was entitled to have the money back. The payment was held to be a payment whether in pursuance of obligation or not. The payment was found to be in consideration for or in association with the acquisition of property in a scheduled territory and was illegal and the statement of claim was struck out. There is no evidence in the present case that any permission was given by the Reserve Bank.
35. On behalf of the Plaintiff it was contended relying on the decision in the Hire Purchase Furnishing Company Ltd. v. Richens 20 Q.B.D. 387 that the onus of proving the illegal act lay on the Defendant in the present case and that the Defendants did not discharge that onus. In the Hire Purchase Furnishing Company Ltd. case 20 Q.B.D. 387 the Plaintiff company sued the Defendant for breach of contract. The contract was of a kind which it was the business of the company to make, but it was entered into after the company had commenced proceedings for voluntary winding-up. The contract and the breach of it were proved. It was held that it lay on the Defendant to show that the contract was not required for the beneficial winding up of the company and that in the absence of such evidence the Plaintiffs were entitled to succeed. The provisions of the Foreign Exchange Act applied to contracts. It is within the knowledge of the parties who are the contracting parties as to whether permission has been obtained or not. The onus of proving the negative does not arise. It is not that the Defendants are setting up any defence founded on illegality. The Defendants are using the statute as containing prohibitive measures forbidding payment by a person resident in India to a person not resident in India. In view of my conclusion that both Ayesha Bai and the Plaintiff were not residents in India at the material time and in view of my conclusion that there is payment by and to persons who are not residents in India the conveyance infringes the provisions of the Foreign Exchange Regulations Act and is illegal.
36. There are two other short questions as to whether the Plaintiff is the sole proprietor of the business and whether the Plaintiff demanded possession of the premises from the Defendants. On behalf of the Plaintiff there is evidence of retirement as contained in the deed of retirement, Ex. E, there is public notification in Ex. F/1 and there is advertisement in the statement being Ex. G. The Memorandum of Association of Haji Hamid Haji Abdullah Pr. Ltd. being Ex. J shows in Clause 3 that Haji Abdul Gaffar is the sole proprietor and the objects of the company are to acquire that business. On this documentary evidence and the oral evidence of the Plaintiff''s son that the Plaintiff is the sole proprietor and the two Powers of Attorney executed by the Plaintiff in favour of the Plaintiff''s son to which I have already referred it is said that there is overwhelming evidence that the Plaintiff is the sole proprietor of the business. As against that it is contended on behalf of the Defendants that the deed of retirement is signed by Ali Athar and if the Power of Ali Athar be bad the deed of retirement is not effective and operative in law. It is also said that the contents of the document Ex. D have not been proved, namely that there has been retirement and the parties have accepted the position that the Plaintiff is the sole proprietor. The execution of the Power in favour of Ali Athar cannot be presumed to have been executed and authenticated before a Notary Public under the provisions of Section 85 of the Evidence Act because of the reasons indicated earlier in relation to the Power granted by Ayesha Bai in favour of Ali Athar. If I had come to the conclusion in favour of the Plaintiff on the other issues I might have been inclined to answer the Issue No. 1 in favour of the Plaintiff.
37. There was controversy between the parties as to whether there was damand of possession. It is said that the Plaintiff''s son demanded possession. There is the oral evidence. There is no demand in writing. I am unable to hold on the evidence that the Plaintiff demanded possession of the premises from the Defendants.
38. On of the issues was whether the Plaintiff suffered damages. No evidence was led on behalf of the Plaintiff on the question of damages. Arguments were founded on the basis that the rent was for a sum of Rs. 500 in the year 1950 and the rent under the lease was Rs. 200 and that it was low. It is the evidence of Vishnu that the premises are old and required repairs. Taxes are also to be paid. It is the evidence of Vishnu that taking into consideration all these aspects the rent was fixed at Rs. 200. On this evidence if I had come to a decision in favour of the Plaintiff on other issues it would not have been justified in granting damages on the basis claimed. There is no sufficient evidence to merit the award of damages.
39. There was a question as to whether the lease in favour of Khandelwal is valid. The validity of the lease has not been challenged on any ground save and except that the Plaintiff asserted to be the purchaser of the premises'' by reason of the conveyance. I have already held that the Plaintiff has failed to prove the consideration for the acquisition, of the property. The Plaintiff has also failed to prove the execution of the power. The conclusion is that the Plaintiff has failed to prove the title. The result is that the lease remains valid.
40. The only other Issue No. 7 is whether the Plaintiff is estopped from asserting any right, title and interest or disputing that the Defendant No. 4 is the owner of the property in suit because of allegations in paras. 11 and 15 of the written statement. No separate argument was advanced on this issue. The allegations in paras. 11 and 15 of the written statement are in substance that the Plaintiff cannot assert any title by reason of the lease. It is not necessary to answer this issue by reason of my conclusions on the other issues. I am, therefore, of opinion that the Plaintiff has failed to prove that the Plaintiff purchased the premises No. 5, Amratolla Street. I hold that the conveyance dated May 14, 1960, is void for want of consideration. I also hold that the conveyance is invalid by reason of violation of the provisions contained in the Foreign Exchange Regulations Act. The result is that the suit is dismissed with costs. The Plaintiff will also pay to the Defendants the costs of examination of De Bene Esse and all reserved costs.
