TAKHAT SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE plaintiff in O. S. No. 4471 of 1968 on the file of the City Civil Court, Madras, is the appellant herein. Having regard to the narrow scope of the appeal, it is not necessary for me to refer to the pleadings in detail and it is enough if I set out the material facts which will be adequate for the disposal of this appeal.

(2.) THE plaintiff-appellant and defendants Nos. 4 to 7 are the sons of one Tej Singh, THE said Tej Singh was an assessee under the Income-tax Act. For the assessment year 1944-45 by an order dated December 8, 1944, the Hindu undivided family of which the said Tej Singh was the karta was assessed to a tax of Rs. 6,24,516.10, on a total income of Rs. 7,81,261. On the failure of Tej Singh to pay the tax, proceedings for recovery of the tax were initiated. Before the said proceedings were completed, Tej Singh himself died on February 2, 1965. THE sons of Tej Singh including the appellant herein filed a petition before the Commissioner of Income-tax, Madras, putting forward the contention that the property which is the subject-matter of the suit, namely, No. 39, Vepery High Road, Madras, did not belong either to Tej Singh or to the joint family of which he was the karta, but belonged to the appellant and his brothers individually and that, therefore, the said property could not be proceeded against for recovery of tax due from the Hindu undivided family of which Tej Singh was the karta. As a matter of fact, it would appear that the appellant's brother, namely, the 6th defendant in the suit, had filed a writ petition, W. P. No. 2491 of 1967, before this court as evidenced by exhibit B-14 dated September 8, 1967, carbon copy of the order of this court made therein. Exhibit B-15 is a carbon copy of the order of this court dated March 24, 1968, passed in W. P. No. 1248 of 1968, filed by the appellant herein. While dismissing the former writ petition, this court stated that there was no substance in that writ petition, that what was stated was that the petitioner therein did not posses any property belonging to his deceased father who committed default and that that was a matter which he could represent to the Income-tax Officer or the Collector as the case might be and that if he still felt aggrieved, there was the Commissioner to whom he could make representation. In the latter writ petition, it was pointed out by this court that the main point that was urged was that in proceedings to recover arrears of tax due from his father, the petitioner's property had been attached and was about to be brought to sale, that it was obvious that that raised a question of title to immovable property, that it was not within the purview of a petition under Article 226 of the Constitution to have a trial on that question and that the question of title could be disposed of only after taking evidence both oral and documentary and, in the light of that, all that could be done was to file a suit. It is only on account of this view of this court, this court gave the appellant herein time to issue, a statutory notice under Section 80, Code of Civil Procedure, and thereafter, file a suit to establish his title to the property in question. It is after the disposal of the said writ petition that the appellant herein, after giving notice under Section 80, Code of Civil Procedure, filed the suit which has given rise to this appeal, praying for the relief of declaration that the appellant is the owner of one-fifth share of the suit property and injunction restraining the second defendant, namely, the Tax Recovery Officer, Madras-34, from proceeding against the appellant for recovery of the income-tax arrears of Tej Singh. Respondents Nos. 1 to 3 alone contested the suit putting forward several defences and the case of the appellant as well as the defence put forward by respondents Nos. 1 to 3 herein are reflected in the following issues framed by the trial court :

(3.) JUST as in the case of the decisions of this court referred to already, an argument was advanced before the Andhra Pradesh High Court also on the fact that the income was estimated and the tax was levied on such estimate. This court as well as the Andhra Pradesh High Court pointed out that the fact that the income was estimated and the tax was levied on that basis would not in any way affect the position. The Andhra Pradesh High Court observed :