Allowed

P.Dhanam v. the Deputy Registrar of Cooperative Societies

Madras HC11 Sept 2023WP/19568/2023

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the attachment of the petitioner's property acquired via a 1986 gift deed. The Court held that under Section 128 of the Transfer of Property Act, a donee is not liable for donor debts arising post-gift, specifically loan disbursements in 2022. Consequently, the Form 6 and 7 notices were set aside. An alternative remedy was found unavailable.

What did the court decide?

Notices issued by respondents under Form 6 and 7 were set aside; writ petition allowed; connected miscellaneous petition closed.

P.Dhanam Vs the Deputy Registrar of Cooperative… — Writ and Judicial Review | Madras HC (2023)

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W.P.No.19568 of 2023

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED :11.09.2023

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CORAM

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THE HONOURABLE MR. JUSTICE S.SOUNTHAR

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W.P No.19568 of 2023

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and W.MP. Nos.18836 of 2023 & 18835 of 2023

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P. Dhanam ...Petitioner

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Vs.

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1.The Deputy Registrar of Cooperative Societies, Namakkal Circle, RMS Mansion, Trichy Road, Namakkal.

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2.The Sales Officer Cum Cooperative Sub registrar/Field Officer Singalandhupuram Primary Agricultural Co-op. Society Rasipuram Taluk, Namakkal District.

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..Respondents

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari, calling for records on the 1^st and 2^nd respondent made in Form Nos. 6 & 7 Execution Petition No.82/2009/Sa pa dated 14.03.2023 and 10.04.2023 respectively and quash the same.

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For Petitioner : N. Umapathi

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https://www.mhc.tn.gov.in/judis

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W.P.No.19568 of 2023

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For Respondent 1 : Mrs. S. Anitha, Special Government Pleader For Respondent 2 : Mr. N. Naveen Kumar, Government Advocate

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O R D E R

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The writ petition has been filed challenging the Form 6 and Form 7 notices issued by the respondents 1 and 2 attaching the properties of the petitioner in execution of surcharge order passed against her husband.

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The impugned order of attachment has been questioned by the petitioner mainly on the ground that the property sought to be attached was acquired by petitioner as early as 10.12.1986 under gift deed executed by her husband namely Paramasivam. However, the surcharge proceedings initiated against her husband was relating to alleged misappropriation that had taken place during the year 2002. Therefore, the petitioner submitted that respondents are not entitled to attach the properties of the petitioner in execution of surcharge order passed by the respondents against her husband.

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The learned Special Government Pleader appearing for the 1^st respondent and Mr.N.Naveen Kumar, learned Government Advocate appearing 2/6

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https://www.mhc.tn.gov.in/judis

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W.P.No.19568 of 2023

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for the 2^nd respondent by referring to the counter affidavit filed by the 1^st respondent submitted that the petitioner has not acquired property out of her own funds but she acquired the property under gift settlement deed executed by her husband and therefore a duty is cast upon the petitioner to settle the dues and liabilities of the donor namely her husband.

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It is settled law under Section 128 of Transfer of Property Act, the liability of the donee is restricted to the liabilities of the donor at the time of execution of gift deed. In the case on hand, the gift deed was executed by petitioner's husband as early as 10.12.1986. However, a perusal of the surcharge order would suggest the petitioner's husband Paramasivam was fastened with the liability to the tune of Rs.1,18,122/- in respect of loan accounts mentioned in Sl.Nos. 28 and 29 therein. The loan accounts mentioned in Sl.Nos. 28 and 29 dealt with under surcharge order were of the year 2002. In such circumstances, the alleged liability of petitioner's husband could commence only from the date of disbursal of said loans on 04.12.2022 not before that date. Hence, the contentions made by the learned counsel for the respondents that as a donee petitioner is liable to meet the liabilities of the

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https://www.mhc.tn.gov.in/judis

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W.P.No.19568 of 2023

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donor cannot be accepted in the light of Section 128 of Transfer of Property Act.

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The petitioner acquired title to the property even in the year 1986 prior to alleged misappropriation. In such circumstances, the respondents are not entitled to proceed against the properties of the petitioner which was acquired in 1986. Accordingly, on the face of it, the attachment order passed by the respondents is unsustainable. Hence, the writ petitioner need not be relegated to avail alternative remedy available under Rule 135 of rules framed under Tamil Nadu Co-operative Societies Act. Therefore, the notices issued by the respondents under Form 6 and 7 are liable to be set aside. Accordingly, the writ petition stands allowed. Consequently, connected miscellaneous petition is closed. No costs.

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11.09.2023

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Index : Yes/No Internet : Yes/No Speaking Order/Non-Speaking Order Neutral Citation Case : Yes/No nr

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https://www.mhc.tn.gov.in/judis

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W.P.No.19568 of 2023

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1.The Deputy Registrar of Cooperative Societies, Namakkal Circle, RMS Mansion, Trichy Road, Namakkal.

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2.The Sales Officer Cum Cooperative Sub registrar/Field Officer Singalandhupuram Primary Agricultural Co-op. Society Rasipuram Taluk, Namakkal District.

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5/6

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https://www.mhc.tn.gov.in/judis

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W.P.No.19568 of 2023

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S.SOUNTHAR, J. nr

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W.P No.19568 of 2023 and W.MP. Nos.18836 of 2023 & 18835 of 2023

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11.09.2023

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6/6

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https://www.mhc.tn.gov.in/judis

P.Dhanam v. the Deputy Registrar of Cooperative Societies

Case brief

What is this about?

What did the court decide?

P.Dhanam v. the Deputy Registrar of Cooperative Societies

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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