Disposed

Joseph Pothen v. the Welfare Fund Inspector

Kerala HC19 Jul 2018WP(C)/1662/2012

Case brief

AI extract

What is this about?

In a writ petition concerning recovery of Toddy Workers Welfare Fund dues from the father's estate, the Court observed that the department has a right to recover from all successors up to the estate's value. It noted the petitioner contributed towards the debt and holds a right to proportionate recovery from other co-owners. The Court rejected the claim that payments were miscredited and disposed

What did the court decide?

The writ petition was disposed of by observing the department's right of recovery from the estate and the petitioner's right to proportionate recovery from co-owners; no specific relief was granted.

Joseph Pothen Vs the Welfare Fund Inspector — Property and Title | Kerala HC (2018)

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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 DAMA SESHADRI NAIDU THURSDAY, THE 19TH DAY OF JULY 2018 / 28TH ASHADHA, 1940

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WP(C).No. 1662 of 2012

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PETITIONER(S)

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JOSEPH POTHEN, S/O. OF LATE POTHEN THOMA, MUTHUKKATTIL,KARINKUNNAM, THODUPUZHA DIST ,IDUKKI.

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BY ADVS.SRI.K.REGHU KOTTAPPURAM SRI.M.MUKESH SRI.R.MAHESH (KOTTAPPURAM)

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RESPONDENT(S):

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1. THE WELFARE FUND INSPECTOR, KERALA TODDY WORKERS WELFARE FUND BOARD, THODUPUZHA DIST ,IDUKKI 685584.

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2. THE TAHASILDAR(RR),REVENUE RECOVERY, THODUPUZHA,DIST.IDUKKI 685 584.

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3. THE PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LIMITED NO.4388, THODUPUZHA,DIST.,IDUKKI 685584.

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4. MARY CHACKO, WIFE OF CHACKO,THERUVEL HOUSE, THATTARATHATTA KARA, KARINKUNNAM VILLAGE, THODUPUZHA DIST.IDUKKI 685 584.

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5. ANNAMMA JOSE, WIFE OF LATE JOSE, MUTHUKATTIL HOUSE,KARINKUNNAM VILLAGE,THODUPUZHA DIST,IDUKKI 685584.

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6. ALIYAMMA BABY, WIFE OF BABY,KOTTAKALLEL HOUSE, KARINKUNNAM VILLAGE, THODUPUZHA DIST.IDUKKI 685584.

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WP(C).No. 1662 of 2012

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7. THRESIYAMMA MATHEW, WIFE OF MATHEW,VADAKKECHALIL HOUSE, AREKKARA KARA,VELIYANNUR VILLAGE, KOTTAYAM 686 001.

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8. ANNAMAMA POTHEN, WIFE OF LATE POTHEN, MUTHUKATTIL HOUSE,KARINKUNNAM VILLAGE,THODUPUZHA VILLAGE, THODUPUZHA DIST.IDUKKI 685584.

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9. TOMY POTHEN, SON OF LATE POTHEN,MUTHUKATTIL HOUSE ,KARINKUNNAM VILLAGE, THODUPUZHA DIST.IDUKKI 685 584.

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R1 BY ADVS. SRI.KOSHY GEORGE,SC SRI.RENIL ANTO,SC SRI.P.I.DAVIS,SC R2 BY GOVERNMENT PLEADER SMT.AMMINIKUTTY R3 BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 1662 of 2012

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APPENDIX

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PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 A TRUE COPY OF NOTICE DATED 19.10.2007. EXHIBIT P2 A TRUE COPY OF JUDGMENT DATED 21.3.2011 IN O.S.231/2008. EXHIBIT P3 A TRUE COPY OF IA.NO.72/2012 IN O.A.231/2008. EXHIBIT P4 A TRUE COPY OF JUDGMENT DATED 12.12.2006 IN WPC,31262/2003. EXHIBIT P5 A TRUE COPY OF NOTICE DATED 12/2011. EXHIBIT P6 A TRUE COPY OF REPRESENTATION DATED 9.1.2012. EXHIBIT P7 A TRUE COPY OF RECEIPT DATED 6.6.2008. EXHIBIT P8 A TRUE COPY OF RECEIPT DATED 7.7.2008. EXHIBIT P9 A TRUE COPY OF ORDER NO.41341/S3/2008/RD DATED 2.8.2008. ADDL.EXHIBIT P10 A PHOTOCOPY OF LETTER NO.B2/T.40-42/ARREARS/4091 DATED 12.12.2017.

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RESPONDENT(S)'EXHIBITS

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---------------------EXHIBIT R1(A) TRUE COPY OF STATEMENT OF ACCOUNTS.

/TRUE COPY/

PS TO JUDGE

TS 25.07.2018

DAMA SESHADRI NAIDU, J.

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W.P.(C). No. 1662 of 2012 (G)

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Dated this the 19^th day of July, 2018

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JUDGMENT

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The petitioner's father—Pothen Thoma—had toddy vending license for Shop Nos. 40 to 42, in Thodupuzha Excise Range, for the Abkari years 1992-93 and 1994-95. At that time, to obtain the license, he offered 80 Ares of land, in Sy.No.571/2 of Purapuzha Village, in Thodupuzha Taluk, as security. But by the time his license came to an end, he fell in arrears of the contribution towards Toddy Workers Welfare Fund. He died on 06.09.2007.

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The 1^st respondent initiated recovery proceedings in 2007, apparently, after the death of the original licensee. The learned Standing Counsel submits that the proceedings may have began much earlier, but the notice was issued in 2007. The record only reflects that the 2^nd

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W.P.(C). No. 1662 of 2012 (G)

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-2-

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respondent Tahsildar issued Ext.P1 demand notice on 19.10.2007. Then, the liability was Rs.1,57,205/- besides interest.

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The petitioner, one of the sons of the licensee, through Exts.P7 and P8, dated 06.06.2008 and 07.07.2008, paid Rs.96,030/- and 38,798/- respectively, in response to Ext.P1 notice. Later, the petitioner and respondents 5 to 7 and 9, the children of the licensee, had the property partitioned. The 8^th respondent, the mother, died pending this writ petition. Ext.P2, dated 21.03.2011, is the preliminary decree.

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Indeed, the 3^rd respondent's counsel submits that, later, the co-owners had a partition deed properly drawn by dividing the property with distinct physical features. But that is not before the Court. Still the fact remains that the property given as solvency by the father at the time

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W.P.(C). No. 1662 of 2012 (G)

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of his securing the license is the subject of the partition suit and it resulted in Ext.P2 preliminary decree. By now, the father's liability rose to about Rs.4,50,000/-. As the revenue proceedings were in progress, the petitioner filed this writ petition.

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Sri.K.Reghu Kottapuram, the learned counsel for the petitioner has three submissions: (1) The department may sell a part of the property to realise his father's dues. The 9^th respondent, another son, also had the license for 1993-94; he also owed amounts towards the Welfare Fund. That amount should be recovered from only his separate property, provided as security or solvency for his license. (3) Though the petitioner paid Rs.1,37,828/- through Exts.P7 and P8, it was mis-credited to his brother's (9^th respondent's) account, rather than his father's. Eventually, he submits that though the

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W.P.(C). No. 1662 of 2012 (G)

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petitioner paid that amount to discharge his father's liability, he has a right to recover from the other siblings their share of liability, out of Rs.1,37,828/- along with interest. So he wants a declaration to that effect.

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The learned Standing Counsel for the 1^st respondent has strenuously contended that the petitioner and other respondents have succeeded to the estate of the licensee. So the department has every right to proceed against the property. If any child of the licensee wants to sell the property, they can as well remit the Welfare Fund dues and obtain clearance from the 1^st respondent.

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Heard the learned counsel for the petitioner as also the learned Standing Counsel for the respondents.

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I reckon that the property originally belonged to the

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father, who had Welfare Fund arrears. Now they have accumulated to about Rs.4.5 lakh. To the extent of the

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W.P.(C). No. 1662 of 2012 (G)

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father's property in the hands of the successors, the 1^st respondent has right of recovery. Even the petitioner does not object. About the amounts to be recovered from the 9^th respondent for the dues during his license period, the 1^st respondent can enforce its rights against the 9^th respondent's individual property or his share of property that remains out of the father's property, once the father's dues are discharged. So this Court cannot direct the 1^st respondent to enforce its rights against the 9^th respondent only in a particular manner.

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On the 3^rd objection—the petitioner's Exts.P7 and P8 remittances were miscredited—the learned Standing Counsel has drawn my attention to Ext.R1(a) and also paragraph 3 of the counter affidavit. As seen from Ext.R1(a) (in malayalam) the petitioner's payments got duly reflected, after effecting the statutory directions,

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W.P.(C). No. 1662 of 2012 (G)

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though. So the petitioner cannot have any grievance on

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that count, too. In other words, his contribution has

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never been credited to his brother's account.

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I may be stressing the obvious by observing that, to the extent the petitioner contributed through Exts.P7 and P8, he will have a right of proportionate recovery from the other co-owners of his father's property.

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With these observations, I dispose of the writ petition.

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Sd/-

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DAMA SESHADRI NAIDU JUDGE

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das 19.07.2018

Joseph Pothen v. the Welfare Fund Inspector

Case brief

What is this about?

What did the court decide?

Joseph Pothen v. the Welfare Fund Inspector

Case brief

What is this about?

What did the court decide?

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