1. These appeals are filed against the order of the Competent Authority, Chennai, dated March 27, 1998, made under section 7(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA) whereby two properties, namely, (1) four rooms with upstairs building situated at Nagaram Amsom of Calicut and (2) 13.92 cents of coconut garden in Panniyankara Village, Calicut, were directed to be forfeited. F.P.A No. 12 is filed by K.P Abdul Khader, brother of K.P Abdul Majeed who was detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The appellant in F.P.A No. 11 is the wife of K.P Abdul Khader. The house property stands in the joint names of both the appellants, whereas the coconut garden stands in the name of K.P Abdul Khader.

2. The appellants are relatives of the detenu and hence the provisions of the SAFEMA are applicable to them under section 2(2)(c) of the Act. A notice dated February 18, 1996, was issued by the Competent Authority under section 6(1) to Abdul Khader to show cause why his 1/6th share in a property situated in block No. 20 should not be forfeited. A supplementary notice dated November 29, 1990, was issued to him under section 6(1) to show cause why the properties which were directed to be forfeited under the impugned order and another property, namely, 1.20 acres of coconut garden should not be forfeited as illegally acquired properties. It was later found that the four rooms with upstairs building stood in the name of Smt. Fathima also and hence a notice dated January 7, 1998, under section 6(1) was issued to her. The appellants took the plea that the properties were not illegally acquired properties and that they were acquired with the legal earnings of Abdul Khader from the salary received by him during the period he was employed in Dubai from the years 1979 to 1988 and also through the money earned by working overtime and by doing part-time business and that a part of amount was paid with the advance received from M/s. Rosy. The Competent Authority, after considering the contentions and submissions of the appellants and the evidence adduced by them, directed the forfeiture of the two properties mentioned above, holding that they are illegally acquired properties. The other two properties were held to be not illegally acquired and were not subjected to forfeiture.

3. The building was purchased by Abdul Khader in the joint names of himself and his wife on December 7, 1988, for Rs. 1,50,000 and a sum of Rs. 10,50,000 was paid by him to the person in occupation of the building. The coconut garden was purchased on March 29, 1988, for Rs. 39,000. The contention of the appellant was that the payment of Rs. 1,50,000 was made out of Rs. 2,00,000 received as advance from M/s. Rosy, a readymade garment shop to whom a room was given on rent and the amount Rs. 10,50,000 was paid out of his earnings. He claims that he was earning Dhs. 15,000 per month while he was working in Dubai and remittances were made into his NRE Account. It is his further case that an amount of Rs. 39,000 was obtained by him by taking a loan from his detenu brother for purchasing the coconut garden.

4. Learned counsel for the appellants submitted that the house property was purchased only for Rs. 1,50,000 and the payment of Rs. 10,50,000 made to the occupant of the building was only towards goodwill and the amount did not form part of the consideration paid for purchase of the property. He further submitted that the Competent Authority erred in disbelieving that the amount of Rs. 2,00,000 was received from M/s. Rosy by cheque, merely because there was no confirmatory letter. He further submitted that the receipt of Rs. 39,000 from the detenu brother, is evidenced by cheque dated June 17, 1984, and that the said amount was returned to the detenu in cash.

5. The Deputy Director appearing for the Competent Authority submitted that the appellants have not produced any evidence in support of their contentions and merely pleaded that the evidence was lost in a fire accident and thus they failed to discharge the burden cast on them under section 8 of the Act. He further submitted that the verification made by the Competent Authority through the nodal agency of Government of India revealed that the appellant was employed with M/s. Ali Akbar Bahadur from March 6, 1979, till June, 1988, and that he was drawing a salary of Dhs. 2,000 from March, 1979, to June, 1981, and Dhs. 2,300 from July, 1981, to March, 1983, Dhs. 2,500 from April, 1983, to July, 1987, and Dhs. 2,400 from August, 1987, to June, 1988, and that after deducting the expenditure of the appellants, precious little remained, which is not sufficient for acquiring the building at a cost of Rs. 12,00,000 and in the absence of the evidence to the contrary, the Competent Authority was justified in holding that the properties are illegally acquired with the funds of the detenu.

6. The building was admittedly acquired for Rs. 1,50,000 and an amount of Rs. 10,50,000 was paid to the occupant to get possession from him. The reliance placed on Guru Datta Sharma v. State of Bihar, AIR 1961 SC 1684, by learned counsel for the appellants, does not, in any way, help the appellant. That was the case where the Bihar Private Forests Acts of 1946 and 1948 were questioned. It was held by the Supreme Court that (p. 1697): “property, as a legal concept, is the sum of a bundle of rights and in the case of tangible property, would include the right of possession, the right to enjoy, the right to destroy, the right to retain, the right to alienate and so on” and hence the deprivation of the land-holder of the right to management and control over the forest without his legal title thereto or beneficial enjoyment thereof being avoided does not amount to acquisition of land. This decision makes it dear that right of possession and right to enjoy the property are very important rights in a property as a legal concept. It, therefore, follows that unless the appellant could take possession of the building, but was merely content with obtaining a sale deed, there was no meaning in his purchasing the property. It is, therefore, dear that the appellant paid a small amount of Rs. 1,50,000 to the owner of the property, as possession of the property was with a third party and he paid the amount of Rs. 10,50,000 to get the possession of the property. We have, therefore, no hesitation in holding that a total amount of Rs. 12,00,000 was paid by the appellant for purchase and possession of the property.

7. We are unable to accept the contention of learned counsel for the appellant that the amount of Rs. 10,50,000 was paid for the goodwill only and cannot be treated as part of the consideration. The fact remains that the appellant obtained possession of the property on the payment of Rs. 10,50,000. Even if it is for a moment considered that the payment was made towards goodwill, we have no difficulty in holding that goodwill also is one of the rights in the property in the modem commercial interaction. The occupant of the building was a doctor, who was running a clinic and possession was recovered from him by the appellant, by making payment as mentioned above. In Black's Law Dictionary, sixth edition at page 694, goodwill is described as:

“Property of an intangible nature, commonly defined as the expectation of continued public patronage and as property incident to business sold, favour vendor as won from public, and probability that all customers will continue their patronage.”

8. Goodwill is thus a property of an intangible nature and is capable of being sold. The appellant has purchased goodwill from the doctor who was in occupation and obtained possession of the building, in order to enjoy the property he has purchased. The total amount of Rs. 12 lakhs paid towards purchase of the building and goodwill together with delivery of possession had to be explained by the appellant to establish that the property has not been acquired with money provided by the detenu.

9. The fact remains that the appellant has paid Rs. 12,00,000 in all for the building and the burden was on him “to establish that the said property has not been acquired with the monies or assets provided by the detenu/convict or that they, in fact, did not or do not belong to such detenu/convict”, as held by the Supreme Court in Attorney-General for India v. Amratlal Prajivandas, (1994) 5 SCC 54 : AIR 1994 SC 2179 : [1995] 83 Comp Cas 804, 844. The appellant has produced evidence to show that he remitted Rs. 10,10,000 to India between September, 1987, and October, 1988, which works out to Dhs. 2, 84, 507, and taking exchange rate of Rs. 3.55 per Dh., this amount falls far short of the consideration paid for purchasing the property and for obtaining possession. The total earnings of the appellant during his employment in Dubai was only Dhs. 2, 60, 700, which he could not have remitted in full, inasmuch as the appellants would have spent at least ¾ths of the earnings for their maintenance at Dubai. At the most, the appellant would have saved only about Dhs. 60,000 or 70,000 which may work out to about Rs. 2 or 2.5 lakhs. There is not even an iota of evidence let in by the appellant to prove that he was earning extra money by doing overtime work and extra business. The detenu brother of the appellant was also resident of Dubai. The preponderance of evidence leaves us with no doubt in our minds, that a major portion of the money, amounting to nearly Rs. 10 lakhs, was the money belonging to the detenu brother and the same was utilised in the purchase of the property.

10. Learned counsel for the appellant strenuously contended that there was no requirement of law, that the appellant should not only prove the legal source of the funds but also prove the source from where the funds have been obtained from abroad. He contended that a property can be treated as illegally acquired, only if it is acquired in violation of the laws made by Parliament and not if it is acquired with funds obtained in violation of any foreign laws. In the present case, the fact remains that the brother of the appellant who was detained under the COFEPOSA, was indulging in smuggling activities from Dubai. The earnings of the appellant from his employment in Dubai after deducting expenditure were meagre and were not adequate for purchasing the property and hence the irresistible conclusion is that the property was acquired with the monies provided by the detenu brother. The nexus between the detenu and the acquisition of the property is clearly established. For acquiring the coconut garden, the appellant explained that he got back an amount of Rs. 39,000 which he gave to his brother as a loan in the year 1984. The appellant has not adduced any evidence to show that the appellant has given the said amount to his brother and that it has been returned to him. In the absence of any evidence of details of the return of the money, the Competent Authority was justified in holding that this property was also acquired from illegal sources.

11. For the above-mentioned reasons, we do not find any grounds for interfering with the order of the Competent Authority. The appeals are dismissed.