JAGANNATH MAROTHIA Vs. NORMAN WILLIAM WILSON

JUDGEMENT

(1.) Initially, the order impugned in the instant appeal appears to us in tune with the spirit of the order passed by the Division Bench on 17/11/2022 while disposing of APOT 159 of 2021 but the course adopted by the Single Bench in admitting various documents disclosed in the written notes of argument to be admitted in evidence, we invited the counsel to address the aforesaid point.

(2.) Undisputedly, a suit for specific performance of an agreement in relation to the immovable property being CS 576 of 1990 was filed before this Court by the predecessor of the appellant. The said agreement was entered into between the predecessor-in-interest of the present appellant and Mrs. Helen Wilson who was admittedly a foreign national. The said foreign national during a lifetime made and published a last Will and Testament appointing the respondent no.3 as executor therein to carry out the last wish and desire indicated therein. The original plaintiff died during the pendency of the said suit and the appellant have been substituted in his place and instead. A plea was taken by the executor to the said Will that this said testatrix being a foreign national did not obtain any permission from Reserve Bank of India to transfer the immovable property being the subject matter of the said agreement. It is, thus, contended that the said agreement is per se, illegal and void in view of an embargo created under Foreign Exchange Regulation Act, 1973.

(3.) On the conspectus of the aforesaid defense having been taken by the said respondent no.3, an application for rejection of the plaint was taken up which was dismissed on 4/5/2021. The said order was carried to an Intra-Court appeal and the Division Bench although declined to interfere with the said impugned order, categorically observed that the point so taken for the purpose of rejection of plaint strikes at the root of the matter and therefore, the Trial Court has to arrive at the decision whether such issue could be determined as a pure question of law or a mixed question of fact and law. The Division Bench further observed that for such limited purpose, the Single Bench may direct the parties to discover the documents and select the documents already disclosed on discovery pertaining to the said issue only and determined the same by trial on evidence.