SUBHADRA Vs. STATE OF KERALA

JUDGEMENT

(1.) The question raised in this appeal by the plaintiff in a suit for declaration and injunction is whether the plaint schedule property assigned to her by her late husband can be proceeded against and sold under the Revenue Recovery Act, 1968 (for short the "RR Act") for realisation of dues outstanding from her husband under the Kerala Toddy Workers' Welfare Fund Act (for short "the Welfare Fund Act"). The appeal is before us on a reference made by Sankaran Nair, J. since the learned Judge was of the opinion that an authoritative pronouncement is called for on the point.

(2.) Briefly stated the relevant facts are thus: The plaintiff has purchased the plaint schedule property from her late husband as per Ext. A1 sale deed dt. 25-1-1979. Plaintiff received from the second defendant-Tahsildar, Kunnathunadu Ext. A2 notice dt. 17-12-1982 informing her that an amount of Rs. 13,838.04 is outstanding as arrears towards Toddy Workers' Welfare Fund from the plaintiff's late husband and calling upon her to show cause why revenue recovery proceedings should not be taken against the plaint schedule property since she has purchased the same from her husband. Plaintiff submitted her objection stating that she is a bona fide purchaser of the property and the property is not liable to be proceeded against under the RR Act since the amount alleged to be due from her late husband is not "public revenue due on land". Overruling the objections, property was attached on 14-2-1983. On such attachment plaintiff filed the suit for a declaration that the plaint schedule property is not liable for the arrears alleged to be due from her husband and as such the attachment effected on 14-2-1983 is illegal. A consequential injunction to restrain the defendants from proceedings with the revenue recovery proceedings was also sought for in the suit. Both the Courts below have dismissed the suit finding that the revenue recovery proceedings are valid and sustainable in law. As regards the nature of the transaction the trial Court found that it is a transaction created only for the purpose of avoiding sale for the realisation of the amount due from the husband. But the appellate authority found that it is a transaction intend to defeat and delay the creditors of the assignor.

(3.) Arguing the appeal, Shri V. J. Joseph, learned counsel for the appellant has mainly pressed only one point. It was submitted that the amount alleged to be due from the late husband of the plaintiff is not an arrear of 'public revenue due on land' as defined in Section 2(j) of the RR Act. Since the amount due is not 'public revenue due on land' as defined in Section 2(j) of the RR Act, there was no charge statutorily created on the land prior to the date of transfer as per Ext. A1 assignment deed. The attachment was admittedly subsequent to the assignment. As such Section 44(3) of the RR Act may not have any application to the case on hand. Section 44 will apply only to cases where revenue recovery proceedings are initiated for realisation of 'arrears of public revenue due on land' and not for realisation of 'public revenue' or other amounts statutorily declared to be realisable under the RR Act. In such cases it was submitted that without setting aside the transfer by instituting a suit the property transferred cannot be proceeded against under the RR Act. Strong reliance was placed by the learned counsel on the decisions reported in Baby v. State of Kerala (1991 KLT 510) and Gourikutty v. District Collector (1974 KLT 103) in support of the contention.