STATE OF KERALA Vs. RAMUNNI PANICKER V K

JUDGEMENT

(1.) THE State of Kerala which was the defendant in the suit, O.S. No. 197 of 1974 in the court of Subordinate Judge of Kozhikode, has come up with this appeal. THE suit was one for money and arose on the following facts :

(2.) KUNHAMMAMAN Raja also died on December 23, 1960, and he was succeeded by Sri P.C. Cheriya Kunhunni Raja. The agricultural income-tax department proceeded against him and imposed further a penalty of Rs. 5,000 for non-payment of the tax. This resulted in his paying a sum of Rs. 20,100 towards the tax and penalty. In the circumstances, the payment could only be taken to be under coercion. Sri P.C. Cheriya Kunhunni Raja passed away and he was succeeded by Sri K.C. Cheriya Kunhunni Raja. The department proceeded against him for the realisation of the balance tax amount and penalty. He, however, refused to pay the arrears of tax and penalty on the ground that under law he was not liable to pay the same. He contended that he had nothing to do with the stanam properties which had got divided under Section 7(3) of the Hindu Succession Act, 1956, on the death of Sri K.C. Sreemanavikraman alias Ettan Raja on May 2, 1958. The Hindu Succession Act had come into force on June 18, 1956.

(3.) THE Inspecting Assistant Commissioner of Agricultural Income-tax Department, Kozhikode, filed C.A. No. 1397 of 1969 [Inspg. Asst. Commr. of Agrl. I.T. v. Ramunni Panikkar--[1912] 84 ITR 370 (SC)] before the Supreme Court of India challenging the decision of the High Court in O.P. No. 2413 of 1965, During the pendency of that appeal, the joint receivers were discharged and the plaintiff in the present suit was appointed as the receiver. This appointment was in the partition suit O.S. No. 80 of 1964. THE plaintiff was impleaded as the respondent in the appeal before the Supreme Court. THE Supreme Court dismissed the appeal as per its judgment dated October 5, 1971. THE Supreme Court declared in its judgment that there was no stanam after the death of Sreemanavikraman Raja in view of Section 7 of the Hindu Succession Act and the assessment made on the stanam was a result of misunderstanding of the true legal position. THEre was no fresh assessment by the department. THE estate had paid Rs. 38,196.75 towards illegal assessment which had been quashed as per the judgment of the High Court as well as the Supreme Court. THE present suit is brought forward stating that the Government is liable to refund the same. It is urged in the suit that amounts were paid under a mistake to the department from the income of the stanam properties, which have now come into possession of the plaintiff as receiver. That amount really forms part of the estate which became divided among the members of the Zamorin Kovilagam. As the receiver the plaintiff is entitled to receive back the amount. It is alleged in the plaint that the final pronouncement in the matter which made it clear that the assessment was illegal was on October 5, 1971. THE Government to whom the money was paid by mistake or under coercion, according to the plaintiff, has to refund the same and in spite of the notice issued by the plaintiff and reminders sent by him refund has not been given. THE Inspecting Assistant Commissioner in his communication to the plaintiff on March 16, 1973, has pointed out that the claim is barred by limitation and no refund could be given. THE plaintiff asserts that there is no limitation and that the starting point of limitation was from the date of the judgment of the Supreme Court on October 5, 1971. THE plaintiff had sent a registered lawyer's notice under Section 80 of the Civil Procedure Code on December 19, 1973, which was delivered to the State, the defendant in the suit, on December 20, 1973. Copies were also sent to the concerned officers of the department. As the demand had not been complied with, the suit was filed after the receiver having obtained the sanction of the sub-court as per R.R. 8 of 1974 in O.S. No. 80 of 1964.