Disposed

Derbin K. Davis v. the Special Tahasildar (Revenue Recovery)

Kerala HC9 Aug 2016WP(C)/9515/2015

Case brief

AI extract

What is this about?

Petitioner challenged revenue recovery proceedings requesting release of attached property based on a will granting absolute ownership. Court granted permission to file a claim petition under Section 46 and stayed the proposed sale until further orders.

What did the court decide?

Petitioner permitted to file a claim petition under Section 46 of Kerala Revenue Recovery Act, 1968; Sale pursuant to Notice (Exhibit P6) stayed until further orders.

Derbin K. Davis Vs the Special Tahasildar (Revenue Recovery) — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938

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WP(C).No. 9515 of 2015 (L)

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PETITIONER(S) :

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DERBIN K. DAVIS, S/O.K.K.DAVIS,

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KOLANCHERY HOUSE, MATTOOR, MAROTTICHUVADU, KALADY P.O., PIN- 683 574, ERNAKULAM DISTRICT.

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BY ADV. SRI.WILSON URMESE

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RESPONDENT(S) :

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1. THE SPECIAL TAHASILDAR (REVENUE RECOVERY), ALUVA P.O., PIN- 683 101.

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2. THE VILLAGE OFFICER, MATTOOR, KALADY P.O., PIN- 683 574.

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3. THE COMMERCIAL TAX OFFICER, ANGAMALY P.O., PIN- 683 572.

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4. THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD P.O., PIN- 682 030.

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BY SR. GOVERNMENT PLEADER SRI.C.P.PRADEEP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 9515 of 2015 (L)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXT P1: TRUE COPY OF THE WILL DATED 28/05/2013, EXECUTED BY LATE SMT.SALY DAVIS. EXT P2: TRUE COPY OF THE DEATH CERTIFICATE OF SMT.SALY DAVIS. EXT P3: TRUE COPY OF THE SALE DEED NO.687/1983 OF SRO, SREEMOOLANAGARAM. EXT P4: TRUE COPY OF THE TAX RECEIPT DATED 12/12/2014. EXT P5: TRUE COPY OF THE NOTICE NO. R1-1091/14/ST TO R1-1098/14/ST DATED 13/02/2015 OF THE 1ST RESPONDENT. EXT P6: TRUE COPY OF THE NOTICE NO.R1-1091/14/ST TO R1-1098/14/ST DATED 29.06.2016 OF THE 1ST RESPONDENT.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

A.M.SHAFFIQUE, J.

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W.P (C) No. 9515 of 2015

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Dated this the 09^th day of August, 2016

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J U D G M E N T

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Petitioner has approached this Court challenging the

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revenue recovery proceedings being taken against the petitioner pursuant to Exhibit P5. During the pendency of the writ petition petitioner filed Exhibit P6 as well, which is a sale notice issued by the revenue authorities on 29.06.2016 for effecting sale of 2.50 Ares of property in Re-Sy. No.68/1 of Block No.27 of Mattoor village, Aluva Taluk. The main contention urged by the petitioner is that he is the son of Mr.Davis, who was under obligation to pay sale tax dues. The property covered by Exhibit P5 sale notice having an extent of 7.50 Ares absolutely belongs to him by virtue of a will executed by his mother. However, the sale did not take place pursuant to Exhibit P5. Now, another notice for sale has been issued as Exhibit P6 in which the proposal is to sell 2.50 Ares of property. The amount payable is Rs.32,17,511/-. It is contended that the aforesaid property belonged to his mother and his mother has executed a will, Exhibit P1. By virtue of Exhibit P1, he had become the absolute owner of the property.

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W.P (C) No. 9515 of 2015

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Therefore, his father Mr. Davis had no right or interest in the property.

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The learned Government Pleader, on instructions, would submit that the property originally belonged to petitioner's mother Smt. Saly Davis and on her death 1/3 right over the property devolved on her husband Sri. Davis, who is the defaulter. The attempt of the revenue is only to sell 1/3 of the property as per Exhibit P6.

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Perusal of Exhibit P6 would show that the aforesaid

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2.5 Ares is not shown as undivided share. Unless it is partitioned, the property cannot be sold by showing it as a separate item. Further, the petitioner stakes a claim that the entire property belongs to him on account of a will executed by his mother.

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Having regard to the aforesaid factual situation it is a case where petitioner being a third party seeks for release of attachment of the property. Though the petitioner had not filed any application within time as specified under Section 46 of the Kerala Revenue Recovery Act claiming release of attachment, still taking into consideration the factual issues involved in the present writ petition, I am of the view that an

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W.P (C) No. 9515 of 2015

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opportunity be granted to the petitioner to ventilate his grievance. Accordingly, this writ petition is disposed of as under:

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(i) Petitioner is permitted to file a claim petition before

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the District Collector in terms of Section 46 of the Kerala Revenue Recovery Act, 1968, which shall be considered by the District Collector in accordance with law and appropriate orders be passed.

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(ii) Until further orders are passed, the sale pursuant to

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Exhibit P6 shall be kept in abeyance.

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A.M.SHAFFIQUE JUDGE

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DMR/-

Derbin K. Davis v. the Special Tahasildar (Revenue Recovery)

Case brief

What is this about?

What did the court decide?

Derbin K. Davis v. the Special Tahasildar (Revenue Recovery)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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