Allowed

The Tahsildar v. Shyja

Kerala HC16 Nov 2022WA/1004/2016

Case brief

AI extract

What is this about?

Appeal against a single judge order preventing revenue recovery from a sister's property for her brother's dues. Court upheld protection for non-debtor but authorized recovery against the defaulter's property while considering the partition decree for potential fraud.

What did the court decide?

Appeal allowed; Judgment of single judge modified permitting recovery against defaulter's properties while considering partition decree.

The Tahsildar Vs Shyja — Cheque Dishonour | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 16TH DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944

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WA NO. 1004 OF 2016

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AGAINST THE JUDGMENT IN WPC 33865/2015 OF HIGH COURT OF KERALA

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DATED 12.1.2016

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APPELLANTS/RESPONDENTS IN WPC:

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1 THE TAHSILDAR OTTAPALAM TALUK, PATTAMBI, PALAKKAD DISTRICT.

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2 THE ASSISTANT COMMISSIONER (ASSESSMENT) COMMERCIAL TAXES SPECIAL CIRCLE, THRISSUR.

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3 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM.

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BY SR GOVERNMENT PLEADER SRI. K.P. HARISH

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RESPONDENT/PETITIONER IN WPC:

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SHYJA

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D/O. TARUKUTTY, ALIMOOTTIL HOUSE,
CHALISSERY,KADAVALLOR AMSOM DESOM,
OTTAPALAM TALUK, PALAKKAD DISTRICT-679 101.

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BY ADVS.

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SRI.ATHUL SHAJI
SHRI.ANWIN JOHN ANTONY

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

W.A.1004/2016

J U D G M E N T

Dated this the 16^th day of November, 2022

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Shaji P. Chaly, J.

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The writ appeal is filed by the State Government and its officials challenging the judgment of a learned Single Judge dated 12.1.2016 in W.P(C).No.33856 of 2015, whereby the learned Single Judge disposed of the writ petition with a direction to the appellant to ensure that properties belonging to the petitioner are not proceeded against under the Revenue Recovery Act,1968 for recovery of amounts due from her brother, who is the defaulter.

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The case put forth by the writ petitioner/respondent is that in the Revenue Recovery proceedings and proposed sale of the immovable properties, the properties belonging to the writ petitioner is included, to realise the alleged sales tax arrears of her brother. According to the petitioner, such action was initiated without noticing the partition of the properties, effected as per a court decree.

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It is also contended that the proposed sale is for realising a sum of Rs.2,83,17,654/-(Rupees Two Crores Eighty

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W.A.1004/2016

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Three Lakhs Seventeen Thousand Six Hundred and Fifty Four only) together with interest @12%. The case projected by the petitioner is that petitioner has no involvement in the business conducted by her brother and therefore, proceedings against the property of the petitioner, without taking into account the decree of partition made by a competent civil court is illegal and arbitrary, violative of Articles 14 and 300A of the Constitution of India. It was taking into account the said contention raised by the petitioner that the learned Single Judge has disposed of the writ Petition directing the appellants not to proceed against the property of the petitioner.

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The paramount contention advanced in the writ appeal is that the petitioner, her siblings as well as father had right over the property as per Sale Deed No.31/2002 of SRO Kumaranalloor. It is further submitted that petitioner as well as her sister had relinquished their right over the property in favour of her father, Sri. Tharukutty and later Sri. Tharukutty had given his property to his sons Sri. Shijoy and Sri. Shinoy by virtue of Will No.12/2003 of SRO Ottappalam. Tharukutty died on 28.12.2004. Later, as per Document No.339/2008, Sri. Shijoy had relinquished his right over

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W.A.1004/2016

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the property in favour of Sri. Shinoy-the defaulter. Therefore, according to the appellants, Sri. Shinoy-the defaulter, became the absolute owner in possession and title of the property mentioned above and it is accordingly that proceedings were initiated against the properties of Shinoy. It is also contended that the appellants have no intention to proceed against the property of the writ petitioner-Smt. Shyja.

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On the other hand, learned counsel appearing for the writ petitioner submitted that by virtue of the partition ordered by the Subordinate Judge’s Court, Ottappalam in O.S. No.51/2010, the petitioner is entitled to enjoy the property. Therefore, any proceedings initiated to recover the amount due from her brother-Shinoy, over-looking the decree passed by a competent civil court, cannot be sustained under law.

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We have heard learned Senior Government Pleader Sri. K.P. Harish, learned counsel Sri. Athul Shaji, for the respondent and perused the pleadings and material on record.

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In our considered opinion, it is a well settled position in law that in order to discharge a liability due under a transaction, the debtor and his property alone are responsible. Here is a case

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W.A.1004/2016

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where, the writ petitioner has a contention that her properties are proceeded with, to recover the sales tax dues from her brother Shinoy. The contention of the Government is that even though daughters of Tharukutty had rights over the common property in question, they were relinquished in favour of Tharukutty and Tharukutty had executed a Will conveying the property to his Sons Shijoy and Shinoy. Tharukutty died and consequent to which, the property had dwelled upon his sons. However, according to the Government, Shijoy, brother of the defaulter also has relinquished his right in favour of his brother Shinoy, who is the defaulter. But at the same time, petitioner raises a claim on the basis of the decree of partition, evident from Exhibit P1 rendered by the Subordinate Judge’s Court, Ottappalam in O.S. No.51/2010.

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Taking into account the above aspects, we are of the clear and considered opinion that the writ petitioner or her properties cannot be proceeded with, to recover the arrears due from her brother-Shinoj. However, the Government will be at liberty to proceed against the properties belonging to Shinoj and in that process, the decree passed by the Subordinate Judge’s

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W.A.1004/2016

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Court, Ottappalam in O.S. No.51/2010 dated 31.8.2010 shall also be taken into account. If the Government is convinced that by employing fraud, the decree as specified above is obtained to defeat the recovery action, It is for the Government to take into consideration the said aspect and proceed in accordance with law, after providing sufficient opportunity to the writ petitioner and other interested persons. Therefore, the writ appeal is disposed of by modifying the judgment of the learned Single Judge as above.

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Pending interlocutory applications, if any, shall stand closed.

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Sd/S. Manikumar, Chief Justice

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Sd/Shaji P. Chaly, Judge

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sou.

The Tahsildar v. Shyja

Case brief

What is this about?

What did the court decide?

The Tahsildar v. Shyja

Case brief

What is this about?

What did the court decide?

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