IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12015 of 2010(B)
1. AYISHA BEEBEE, W/O.MOIDEEN HAJI,
... Petitioner
2. HUSSAIN BIN T.P.MOIDEEN,
3. SAINUDDIN BIN MOIDEEN, DO. DO. DO.
4. FATHIMA BEEBEE, D/O.MOIDEEN HAJI, DO. DO
Vs
1. THE STATE OF KERALA,
... Respondent
2. THE TAHSILDAR, TIRUR.
3. THE SUB REGISTRAR, TIRUR.
For Petitioner :SRI.K.K.MOHAMED RAVUF
For Respondent : No Appearance
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :22/06/2010
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C)No.12015 of 2010
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Dated 22nd June, 2010
JUDGMENT
The first petitioner is the wife of Thekkepeediyakkal
Moideen Haji. Petitioners 2 to 4 are their children. Late
Valiyapeediyakkal Mohammed Koya, father of the first petitioner was
an Indian citizen who emigrated to Malaysia after the commencement
of Constitution of India and acquired Malaysian citizenship. The first
petitioner had also acquired Malaysian citizenship in the year 1969.
The marriage between the first petitioner and her husband
Thekkepeediyakkal Moideen Haji, an Indian citizen was solemnized in
India. He passed away on 1.4.1991.
2. The first petitioner’s husband late Thekkepeediyakkal
Moideen Haji had acquired 71 cents of land situated in Re-survey
Nos.256/2 and 256/3 of Tirur Village, Tirur Taluk as per assignment
deed registered as Document No.1145 of 1970 of Sub Registrar’s
office, Tirur. He sold the said parcel of land to the petitioners herein
as per Ext.P2 sale deed dated 14.9.1981. Thereupon, mutation was
effected in the revenue records and the petitioners are paying tax.
They are also in possession and enjoyment of the property.
3. The first petitioner had after her marriage to late
WP(C).No.12015/2010 2
Thekkepeediyakkal Moideen Haji, acquired Malaysian citizenship.
Petitioners 2 to 4 who were born in that country are also Malaysian
citizens. After her husband died, the first petitioner returned to India
and after revoking her Malaysian citizenship she has applied for
registration as an Indian citizen. That application is pending. Ext.P6
evidences the said fact.
4. It is stated that with a view to meet the expenses of the
marriage of the second petitioner’s daughter, the petitioners have
entered into Ext.P7 agreement on 22.3.2010 for sale of the land
described in Ext.P2, with Sri. Melepeediyekkal Saidali. This writ
petition is filed aggrieved by the stand taken by the third respondent
that the petitioners who are not Indian citizens cannot execute a sale
deed in respect of the lands described in Ext.P2 agreement. In this
writ petition, the petitioners seek the following relief:
“(i) To issue a writ of mandamus or any other
appropriate writ, order or direction directing the 3rd
respondent to accept the sale deed executed by the
petitioners in respect of 71 cents comprised in
R.S.No.256/2 and 256/3 of Tirur Village or any portion
thereof if presented and register the same.”
The petitioners contend that as per Regulation 2(c) of the Foreign
Exchange Management (Acquisition and Transfer of Immovable
Property in India) Regulations, 2000 framed and issued by the Reserve
Bank of India in exercise of the power conferred on it under clause (i)
WP(C).No.12015/2010 3
of sub-section (3) of section 6 and sub-section (2) of section 47 of the
Foreign Exchange Management Act, 1999, they are entitled to acquire
property in India and to dispose of the same.
5. Though the official respondents have not filed a counter
affidavit, Sri.P.N.Manoj, learned Government Pleader appearing for the
respondents submitted that under rule 72A of the Registration Rules
(Kerala) framed by the Inspector General of Registration with the
approval of the Government of Kerala under section 69 of the Indian
Registration Act, the parties appearing before the Registering Officer
have to produce electoral identify card or passport or driving license or
PAN card or ration card or identity card issued by the Government or
any authority controlled by the Government to prove their identity.
The learned Government Pleader contended that as the petitioners did
not produce any such document to prove their identity, the Sub
Registry declined to register the original of the sale deed.
6. I heard Sri.K.K.Mohammed Ravuf, learned counsel
appearing for the petitioners, Sri.P.N.Manoj, learned Government
Pleader appearing for the respondents and Sri.Jacob Varghese, learned
Senior Advocate who assisted the Court as Amicus curiae. Sri.Jacob
Varghese, learned Senior Advocate submitted that under the Foreign
Exchange Management (Acquisition and Transfer of Immovable
Property in India) Regulations, 2000 framed and issued by the Reserve
WP(C).No.12015/2010 4
Bank of India in exercise of the power conferred under the Foreign
Exchange Management Act, 1999, the petitioners are entitled to
acquire property in India and to dispose of the same. The learned
counsel submitted that the petitioners satisfy the definition of the term
`a person of Indian origin’ occurring in Regulation 2(c) thereof and
that under Regulation 4(d) they are entitled to transfer immovable
property in India other than agricultural land/farm house/plantation
property, by way of sale to a person who is resident in India.
7. I have considered the rival submissions made at the Bar
by the learned counsel appearing on either side. Regulation 2(c) of
the Foreign Exchange Management (Acquisition and Transfer of
Immovable Property in India) Regulations, 2000 as originally framed
reads as follows:
“2.(c) `a person of Indian origin’ means an
individual (not being a citizen of Pakistan or
Bangladesh or Sri Lanka or Afghanistan or
China or Iran or Nepal or Bhutan), who
(i) at any time, held Indian passport;
or
(ii) who or either of whose father or whose
grandfather was a citizen of India by
virtue of the Constitution of India or the
Citizenship Act, 1955 (57 of 1955);”
As per the said definition, the first petitioner who is not a citizen of
Pakistan or Bangladesh or Sri Lanka or Afghanistan or China or Iran or
WP(C).No.12015/2010 5
Nepal or Bhutan and is the daughter of late Valiyapeediyakkal
Mohammed Koya, an Indian citizen, is a person of Indian origin.
Regulation 2(c) was amended by Ext.P10 notification by substituting
clause (ii) thereof. Clause (ii) of Regulation 2(c) as amended reads as
follows:
“(ii) who or either of whose father or mother or
whose grandfather or grandmother was a citizen of
India by virtue of the Constitution of India or the
Citizenship Act, 1955 (57 of 1955).”
Going by the amended definition of `a person of Indian Indian origin’,
petitioners 2 to 4 who are the children of late Thekkepeediyakkal
Moideen Haji, an Indian citizen are also persons of Indian origin.
8. Regulation 4 of the Foreign Exchange Management
(Acquisition and Transfer of Immovable Property in India) Regulations,
2000 reads as follows:
“4. Acquisition and Transfer of Property in India
by a Person of Indian originA person of Indian origin resident outside India may-
(a) acquire any immovable property other than
agricultural land/farm house/plantation property
in India by purchase, from out of (i) funds
received in India by way of inward remittance
from any place outside India or (ii) funds held in
any non-resident account maintained in
accordance with the provisions of the Act and
the regulations made by the Reserve Bank under
the Act.
WP(C).No.12015/2010 6
(b) acquire any immovable property in India other
than agricultural land/farm house/plantation
property by way of gift from a person resident in
India or from a person resident outside India
who is a citizen of India or from a person of
Indian origin resident outside India;
(c) acquire any immovable property in India by way
of inheritance from a person resident outside
India who had acquired such property in
accordance with the provisions of the foreign
exchange law in force at the time of acquisition
by him or the provisions of these Regulations or
from a person resident in India;
(d) transfer any immovable property in India other
than agricultural land/farm house/plantation
property, by way of sale to a person resident in
India; (emphasis supplied)
(e) transfer agricultural land/farm house/plantation
property in India, by way of gift or sale to a
person resident in India who is a citizen of India;
(f) transfer residential or commercial property in
India by way of gift to a person resident in India
or to a person resident outside India who is a
citizen of India or to a person of Indian Origin
resident outside India.”
In the instant case, the land described in Ext.P2 was acquired by late
Thekkepeediyakkal Moideen Haji, husband of the first petitioner and
father of petitioners 2 to 4, in the year 1970. Late Thekkepeediyakkal
Moideen Haji was an Indian citizen. He was therefore competent to
acquire property in India. Even if the sale deed evidenced by Ext.P2
had not been executed, on the death of late Thekkepeediyakkal
Moideen Haji, the petitioners as his legal heirs would have inherited
WP(C).No.12015/2010 7
the property. The assignment of land by late Thekkepeediyakkal
Moideen Haji to the petitioners as per Ext.P2 sale deed is not objected.
As per clause (d) of regulation 4, persons of Indian origin residing
outside India may transfer any immovable property in India other than
agricultural land/farm house/plantation property, by way of sale to a
person resident in India. The lands described in Ext.P2 are not
agricultural lands or farm house or plantation property. The
petitioners have agreed to sell it to an Indian citizen who is residing in
India as can be seen from Exts.P7 and P8. In such circumstances, the
respondents cannot put forward any objection to the registration of an
instrument of transfer in respect of the lands described in Ext.P2.
9. It is not in dispute that the first petitioner’s father was a
person of Indian origin though later he acquired Malaysian citizenship.
The first petitioner’s husband is an Indian citizen. The petitioners
acquired the property from late Thekkepeediyakkal Moideen Haji,
husband of the first petitioner and father of petitioners 2 to 4. Such
acquisition is also permissible under Regulation 4(a) above referred to.
In view of the definition of the term `a person of Indian origin’
occurring in the regulations referred to above, it cannot be said that
the petitioners are not entitled to transfer the lands described in Ext.P2
to an Indian citizen. Further, the land sought to be transferred is not
agricultural land or plantation property or farmhouse. In such
WP(C).No.12015/2010 8
circumstances, the stand taken by the respondents that the petitioners
cannot execute an instrument of sale in respect of the lands described
in Ext.P2 cannot be sustained. However, it will be open to the
registering authority to insist on the petitioners producing proof of
their identity issued by the State of which they are citizens.
I accordingly dispose of this writ petition with a direction to
the third respondent to permit the petitioners to execute and register a
sale deed in respect of the lands described in Ext.P2, in favour of a
person of Indian origin/Indian citizen on the petitioners producing
proof of their identity before him, subject to payment of proper
stamp duty.
P.N.RAVINDRAN
Judge
TKS