Partly allowed

Seenath, v. the District Collector

Kerala HC16 Jul 2019WP(C)/5454/2019

Case brief

AI extract

What is this about?

Two writ petitions were filed challenging recovery proceedings initiated under the Kerala Revenue Recovery Act against the petitioners as legal heirs. The court held that heirs are liable only to the extent of property acquired from the deceased and directed the respondents to verify this liability before proceeding.

What did the court decide?

Writ petitions allowed; respondents directed to conduct due enquiries and ascertain property acquisition by petitioners from the deceased before executing a demand under Section 7 of the Kerala Revenu

Seenath, Vs the District Collector — Contract and Commercial Disputes | Kerala HC (2019)

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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 SHAJI P.CHALY

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TUESDAY, THE 16TH DAY OF JULY 2019 / 25TH ASHADHA, 1941

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WP(C).No.5454 of 2019

PETITIONER:

SEENATH,

AGED 29 YEARS

W/O.ANVER SADATH, CHEEROTH HOUSE, VAZHAKKAD, KONDOTTY TALUK, MALAPPURAM DISTRICT.

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BY ADV. SRI.K.RAKESH

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR, COLLECTORATE, MALAPPURAM, PIN-676505.

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2 THE DEPUTY TAHSILDAR, KONDOTTY TALUK, MALAPPURAM DISTRICT, PIN-673638.

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3 THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, IRRIGATION DEPARTMENT, MALAPPURAM, PIN-676505.

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4 THE VILLAGE OFFICER, VAZHAKKAD, MALAPPURAM DISTRICT, PIN-673640.

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BY SMT.VINEETHA.B., GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.07.2019, ALONG WITH WP(C).5464/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) 5454 & 5464 of 2019

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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 SHAJI P.CHALY

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TUESDAY, THE 16TH DAY OF JULY 2019 / 25TH ASHADHA, 1941

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WP(C).No.5464 of 2019

PETITIONER:

KHADEEJA

AGED 58 YEARS

W/O.KUNHAMMU,CHEEROTH,KUNDUMPADATH,VAZHAKKAD DESOM,KARUMARAKKAD AMSOM,KONDOTTY TALUK, MALAPPURAM DISTRICT.

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BY ADV. SRI.K.RAKESH

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR

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COLLECTORATE,MALAPPURAM,PIN-676505.

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2 THE DEPUTY TAHSILDAR, KONDOTTY TALUK,MALAPPURAM DISTRICT, PIN-673639.

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3 THE EXECUTIVE ENGINEER,

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MINOR IRRIGATION DIVISION,IRRIGATION DEPARTMENT,MALAPPURAM,PIN-676505.

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4 THE VILLAGE OFFICER, VAZHAKKAD,MALAPPURAM DISTRICT, PIN-673640.

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BY SMT.VINEETHA.B., GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.07.2019, ALONG WITH WP(C).5454/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) 5454 & 5464 of 2019

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JUDGMENT

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These writ petitions are materially connected in

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respect of action initiated against the petitioners under the provisions of Kerala Revenue Recovery Act on account of the debt incurred by the husband of the petitioner in W.P.(C) No.5464/2019, who is the father of the petitioner in other connected writ petition. According to the petitioner in W.P.(C) No.5464/2019, petitioner is the owner of property comprised in R.S No.281/1A, 1B of the Vazhakkad Village having a total extent of 13.75 cents. The property was originally owned by petitioner's husband and his brother by virtue of partition deed No.165 of 1991 of

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SRO, Vazhakkad. On 14.2.1991, the right of petitioner's husband in the property was transferred in the name of the petitioner and their children by executing Ext.P1 gift deed. Petitioner also purchased the right of petitioner's husband's brother by virtue of Ext.P2 assignment deed dated 6.1.2010.

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On the basis of the contractual obligation of

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petitioner's husband with Department of Minor Irrigation, the Department has made a request to the

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WP(C) 5454 & 5464 of 2019 4

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District Collector for initiation of recovery proceedings against the legal heirs of husband of the petitioner. It was thereupon that, demand notice under section 7 of the Kerala Revenue Recovery Act to recover an amount of Rs.27,54,967/-is issued against the petitioners. The paramount contention advanced by he petitioners is that, there is no property acquired by the petitioners from the deceased person and therefore, no recovery can be initiated against them. Petitioner in W.P.(C) No.5454/2019 has contended that, she is the owner of property by virtue of Ext.P1 gift deed executed by the deceased person on 14.2.1991. Therefore, the sum and substance of the contention is that, having not secured any property of the deceased person, the respondents are not at liberty to proceed against the petitioners.

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A statement is filed by the 3^rd respondent in W.P.(C) No.5454/2019, wherein it is submitted that, Sri.O.K.Kunhammu, father of the petitioner therein, was a PWD Contractor and he has submitted a tender

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quoting an amount of Rs.7,25,000/- for the work, “Collection of toll from the Motor Vehicle entering Kavanakkallu Regulator Cum Bridge across Chaliyar

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WP(C) 5454 & 5464 of 2019 5

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river” for the period from 1.4.2003 to 31.3.2004. The said person refused to accept the selection notice after the acceptance of tender, which was in violation of the preliminary agreement and tender conditions. Consequentially the work was re-arranged with another Contractor at the risk and cost of late Kunhammu and thereby Government suffered a loss of Rs.4,72,540/-. It is to recover the said amount, proceedings are initiated. Late Kunhammu filed W.P.(C) No.21021/2005 before this court, which was dismissed as per judgment dated 13.12.2015 and later Kunhammu died and it was accordingly that proceedings are initiated against the legal heirs.

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I have heard learned counsel for petitioners, learned Government Pleader and perused the pleadings and documents on record.

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The subject issue with respect to the liability

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of legal heirs is guided by section 50 of the Code of Civil Procedure, which read thus:

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50. Legal representative.- (1) Where a judgmentdebtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

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WP(C) 5454 & 5464 of 2019 6

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(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.”

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On an appreciation of the said provision, it is

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clear that, the legal heirs are liable only to the extent of property of the deceased which has come to their hands and has not been duly disposed of. Therefore, in my considered view, if there are any properties available in accordance with the aforequoted provisions with the petitioners, the respondents are entitled to proceed.

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Therefore, the respondents are directed to

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conduct due enquiries with respect to the property held by the petitioners and if it is found that, properties are transferred by late Kunhammu in order to get over any liabilities and if it is in accordance

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with section 50 of the CPC as specified above, the respondents will be at liberty to proceed against the

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same. However, before executing any demand under section 7 of the Kerala Revenue Recovery Act, 1968,

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WP(C) 5454 & 5464 of 2019 7

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the respondents shall ascertain as to whether any movable properties are acquired by the petitioners from late Kunhammu and if there are no clear evidence that the property is belonging to late Kunhammu, then it shall not be proceeded with.

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Writ petitions are allowed to the above extent.

Sd/-

SHAJI P.CHALY

JUDGE

Smv 17.7.2019

WP(C) 5454 & 5464 of 2019

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APPENDIX OF WP(C) 5454/2019

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE GIFT DEED EXECUTED BY THE PETITIONER'S FATHER IN FAVOUR OF THE PETITIONER, HER MOTHER AND HER SIBLINGS DATED, 14.2.1991.

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EXHIBIT P2 TRUE COPY OF THE SECTION 7 DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT DATED, 26.7.2018 AS RRC NO.2018/1873/10.

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WP(C) 5454 & 5464 of 2019

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APPENDIX OF WP(C) 5464/2019

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE GIFT DEED DATED 14.12.1991 EXECUTED BY THE PETITIONER'S HUSBAND IN FAVOUR OF THE PETITIONER AND THEIR CHILDREN.

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EXHIBIT P2 TRUE COPY OF THE ASSIGNMENT DEED DATED 6.1.2010 EXECUTED BY THE PETITIONER'S HUSBAND BROTHER IN FAVOUR OF THE PETITIONER.

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EXHIBIT P3 TRUE COPY OF THE ASSIGNMENT DEED EXECUTED BY THE PETITIONER'S HUSBAND IN FAVOUR OF THE PETITIONER ON 25-11-2013.

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EXHIBIT P4 TRUE COPY OF THE SECTION 7 DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT DATED, 26-7-2018 AS RRC NO.2018/1873/10.

Seenath, v. the District Collector

Case brief

What is this about?

What did the court decide?

Seenath, v. the District Collector

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

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