Aisabi vs Government of India

Harun-Ul-Rashid, J.—Plaintiff in O.S. No. 11 /1994 on the file of the Sub-Court, Hosdurg is the Appellant. The suit was filed for permanent prohibitory injunction restraining the Defendants from taking any steps to sell 6/7 shares of plaint A schedule property belonging to the Plaintiff. The suit was filed against the income tax authorities seeking to restrain them from proceeding against the property for realising the arrears of income tax dues from the husband of the Plaintiff. The trial court held that the Plaintiff has not made any claim under the provisions of the income tax Act and that the Plaintiff has to file claim petition as provided under the income tax Act and only after resorting to the statutory remedy, the Plaintiff can approach the Court of law. The trial court held that the suit is not maintainable, since the proper stage to file the suit of this nature comes only when the efficacious statutory remedies shall stand exhausted. The trial court dismissed the suit on the basis of the above-said observations. The Plaintiff preferred A.S. No. 90/1996 before the lower Appellate Court and the said Court dismissed the appeal confirming the judgment and decree passed by the trial court.

Admittedly, the property stands in the joint names of Plaintiff and her husband. The husband is the defaulter under the income tax Act. They purchased the property as per Exts. A 1 and A2 registered sale deeds dated 22-9-1971. The suit was filed in the year 1994. As on the date of filing of the suit the Plaintiff and her husband are jointly enjoying the property for a period not less than 23 years. Going by Exts. A 1 and A2 the Plaintiff acquired 6/7 shares in plaint A schedule property and her husband only 111 shares. The residential building put up in the property stands in the name of the Plaintiff and her husband. Plaintiff claimed that she has 6/7 shares in the plaint schedule property and her husband has only 1/7 share.

From Exts. A 1 and A2 sale deeds it is clear that the Plaintiff and her husband acquired this property in the year 1971. The recitals in Exts. A 1 and A2 show that the consideration for purchase of the property was paid proportionately. The property was purchased by them at a time when there was no income tax arrears.

In the written statement the exact default period is not mentioned. It is stated that the property has been proceeded only on 5-8-1976 for realisation of the income tax dues. The purchase of 6/7 shares of the plaint schedule property in the name of the Plaintiff and 1 /7 share in the name of her husband is a normal transaction. The lower Appellate Court observed that the 2nd Defendant is entitled to and is duty bound to attach the house in plaint A schedule property; if it belongs to the defaulter and a clandestine arrangement has been struck between the Plaintiff and her husband to save her husbands property from attachment for recovery of income tax arrears due from him. The property was purchased by the Plaintiff and her husband under two registered sale deeds, at a time when there was no recovery proceedings. The recitals in the sale deeds show that the consideration for the purchase of the property was paid proportionately. If the property (6/7 shares and 1/7 shares) stands in the names of the Plaintiff and her husband, the building which is situated in the property belongs to them in the same proportion, unless there is evidence to show that the building was constructed with the funds contributed equally by the co-owners. Therefore, there is absolutely nothing available on record which can persuade this Court to come to the conclusion that the Plaintiff did not acquire 6/7 shares of the house in plaint A schedule property. In fact, the materials before the Courts below show that the Plaintiff has 6/7 shares and her husband has only 1/7 shares. I do not think that further evidence is necessary on the part of the Plaintiff to prove that she had invested 6/7 shares. The lower Appellate Court observed that there is nothing except her oral evidence to show that she had invested 6/7 of the amount required for putting up the house in the plaint A schedule property. There is no necessity to adduce any evidence either oral or documentary in addition to Exts. A 1 and A2 to prove that she had invested 6/7 shares of the amount for putting up the house in the plaint A schedule property. It is not necessary to adduce any other independent evidence to prove that the improvements and structures in plaint A schedule property belong to the owners in the same proportion in which they hold plaint A schedule property. The observations made by the lower Appellate Court in paragraph 12 of the judgment are unsustainable in law and on facts. Such observations are also unwarranted, in the light of the fact that the suit was dismissed and it was confirmed by the lower Appellate Court.

The trial court dismissed the suit finding that the Plaintiff has not made any claim under the provisions of the income tax Act. The trial court rightly observed that the Plaintiff has to file claim petition as provided under the income tax Act and she can approach the Court of law, after exhausting her statutory remedy available to her. The trial court held that the suit is premature. The same was confirmed by the lower Appellate Court and dismissed the appeal. No grounds are made out by the Appellant to interfere with the judgment and decree impugned in this appeal.

In the result, the appeal fails and, accordingly, dismissed without prejudice to the right of the Appellant/Plaintiff to invoke the statutory remedies available to her under the income tax Act. No order as to costs.