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TMI Blog2000 (10) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... 986 with costs. Aggrieved by the same, the defendants in O.S. No. 36 of 1986 preferred an appeal in A.S. No. 45 of 1988 and the plaintiff in O.S. No. 112 of 1986 preferred an appeal in A.S. No. 191 of 1988 before this Court. 4. The plaintiff in O.S. No. 36 of 1986 has stated as follows:- The plaintiff is the son of Fathima Beevi, the fourth wife of late V. Sheik Ismail Maracaiar. The first defendant is the wife of late Mohamed Yousuf Maracaiar. The second defendant is the son of the first defendant. Late Mohamed Yousuf Maracaiar was the brother of the plaintiff. He passed away in 1971. The brothers and sisters of the plaintiff viz., Mohamed Thambi Maracaiar Mohamed Yousuf Maracaiar, Rabiyath Nachiar, Habeeth Kani Nachiar died in 19/0. 1979, 1949 respectively. Mohamed Haneef Maracaiar was the fifth son of late Sheik Ismail Maracaiar and he passed away in 1978. The plaintiff is the fourth son of late Sheik Ismail Maracaiar and is the only male legal heir who is alive. Late Sheik Ismail Maracaiar executed a registered Settlement Deed on 16-2-1931. The properties mentioned in the settlement deed are the suit properties and other properties and as per the recitals therein, the income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht and the plaintiff is not entitled to recover possession from them. 6. The defendants in their additional written statement has further stated that all the grandsons of Late Sheik Ismail Maracaiar are entitled for trusteeship and therefore they are necessary parties in the suit. 7. The plaintiff in O.S. No. 112 of 1986 has stated as follows : - The plaintiff is the grandson of Late Sheik Ismail Maracaiar through his son. Sheik Ismail Maracaiar was a native of Nagoor and he had five sons viz., Mameed Maracaiar, Mohamed Thambi Maracaiar, Yousuf Maracaiar, Mohamed Hussain Maracaiar and Shaneef Maracaiar. Out of them, except Mohamed Hussain Maracaiar all the other four sons had expired. The said Mohamed Hussain Maracaiar is the first defendant in the suit. The second defendant Kader Maracaiar is the only son of Late Hameed Maracaiar. Mohamed Thambi Maracaiar had no male heirs. The plaintiff and the third defendant-Sheik Ismail Maracaiar are the sons of late Mohamed Yousuf Maracaiar. Shaneef Maracaiar had three sons viz.. Mohamed Iqbal, George Hussain and Ashraf All. The eldest son Mohamed Iqbal is the fourth defendant in the suit. Late Sheik Ismail Maracaiar executed a registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rabia and he cannot be considered for trustee. Hence the plaintiff has filed this suit. 8. The first defendant in the written statement has stated as follows:- The plaintiff has filed this suit as counterblast to the suit filed by this defendant against him. The suit properties belonged to late Sheik Ismail Maracaiar and he executed registered settlement deed dated 16.2.1931 and as per the recitals the first defendant is in possession of the properties from the year 1971. The first defendant is doing the charities and he has distributed the income among the heirs till 1975 and even thereafter and he had obtained receipts for the same. The first defendant did not go to England in his youth as alleged. He went to England in 1975 and he used to visit his native place once a year and reside with his wife and children in Nagoor. The first defendant is an Indian by birth and he follows only Indian tradition and custom. Hence the averment that the first defendant cannot function as trustee is not correct. The plaintiff cannot be granted the reliefs he has sought for in the plaint. The first defendant is functioning as trustee as per the settlement deed and the suit is liable to be dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir Force in 1955 and his work was only in foreign countries and he went to London in 1975 and Joined the Ford Company. He has further stated that So, the plaintiff has categorically admitted that he is a British citizen and his Indian citizenship is annulled. The question is whether the plaintiff as a British citizen can hold the suit properties as trustee and maintain them. Section 31 of the Foreign Exchange Regulation Act, 1973 reads as follows :- "Restriction on acquisition, holding, etc. of immovable property in India -31, (1) No person who is not a citizen of India and no company (other than 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 Bank, acquire or hold or transfer or dispose of by sale, mortgage, lease, gift, settlement or otherwise any immovable property situate in India: Provided that nothing in this sub-section shall apply to the acquisition or transfer of any such immovable property by way of lease for a period not exceeding five years. (2) Any person or company referred to in sub-section (1) and requiring a special permission under that sub-section f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enjoyment of. In other words, the word "hold" embraces both the title and possession. This was otherwise the view taken by the Supreme Court in Handique's case, [1966] 60 ITR 216 (SC). In fact, It was observed in the said case that the expression "holds" appearing in the Assam Agricultural Income Tax Act includes a two-fold idea of the actual possession of a thing and also of being invested with a legal title. Though this observation was made in connection with the said Act, the fact remains that the view taken is harmonious with the dictionary meaning of the said word. The wording of sub-sections (1) and (4) of the Act does not justify or warrant the giving of a different meaning to the word "hold" or "holding-occurring therein and, as such, the said word is to be construed as meaning having title to or possession of any immovable property. Sub-section (1) of Section 31, as already stated, inter alia, provides that no person who is not a citizen of India shall, except with the previous general or special permission of the Reserve Bank acquire or hold or transfer or dispose of by sale, mortgage, lease, gift, settlement or otherwise any immov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and he did not give any amount to the heirs. Ex.A10 is the lease deed executed by one Packirisamy for Fasli 1383. Ex.A11 series and EX.A13 series are the receipts given by heirs for having received their share of income from the plaintiff in the year 1972 and 1974. The above receipts show that the plaintiff had distributed the income only in 1972 and 1974. After 1974, the plaintiff did not collect the lease amount and he did not take any step for the collection of it and he has also not maintained the accounts of the Trust. As already seen, Ex.A4 settlement deed contemplates actual participation of the trustee in the charities of the trust and in maintaining the properties by rendering accounts and the trustee is given one extra share for doing the work. The plaintiff, being the resident of London, could not perform the duties of the trustee by actual participation. For the above reasons, the plaintiff in O.S. No. 36 of 1986 is not entitled to be trustee and he cannot administer the properties mentioned in Ex.A4 settlement-deed and it is decided accordingly. 15. Point 2: Plaintiff seeks to recover the house property of the trust from the defendants. According to the plaintiff, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as trustee till his life time and afterwards the plaintiff did not perform them and he also did not render account on demand. He has further stated that second and third defendants in O.S. No. 112 of 1986 are citizens of Singapore and fourth defendant is younger to him in age and is residing in Saudi Arabia and the second defendant alone is fit and qualified to be trustee among the male heirs. PW.1, the plaintiff has admitted that among the male heirs, the second defendant alone is residing in India permanently and he has the opportunity to become trustee. As already decided, the plaintiff is not entitled to be a trustee. In the order of succession among the male heirs, the second and third defendants in O.S. No. 112 of 1986 are the citizens of Singapore and therefore they are not entitled to be trustee. They did not also appear and were set ex parte. The next male heir is only the second defendant and he is a resident of Nagoor, working as Accountant in Dhurga. He is entitled to be trustee and he can maintain the properties mentioned in Ex.A4 settlement deed and he can also recover the A schedule property from the plaintiff. It is decided accordingly. 18. For the reasons stated a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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