UNION OF INDIA Vs. AMEENA BI

JUDGEMENT

(1.) DEFENDANTS Nos. 1 to 3 are the appellants. The first respondent-plaintiff is the daughter and only child of one S.M. Sheriff who died on November 11, 1947. The said S.M. Sheriff had submitted his income-tax returns for the assessment years 1946-47 and 1947-48 to the Income-tax Officer, City Circle IV even before his death, but the assessments were not completed. After the death of S.M. Sheriff, one of his four brothers filed C.S. No. 544 of 1947 on the file of this court for partition. In that suit the other brothers of Sheriff, his sister, his widow and the present plaintiff who is his daughter were impleaded as defendants. Pending that suit a receiver was appointed in respect of the estate of the deceased. Sheriff, on February 16, 1948. At the time of the filing of the suit, the plaintiff who was impleaded as the fifth defendant was a minor and she attained the age of majority on September 24, 1949. The Income-tax Officer appears to have issued notices to the receiver and proceeded to complete the assessment and ultimately assessment orders were made in respect of 1946-47 on November 24, 1948, and in respect of 1947-48 on April 30, 1949. The preliminary decree in the partition suit was made on March 7, 1951, and the final decree on July 30, 1956. As per the final decree the plaintiff got half share in the entire estate of her father and she was directed to discharge one-half of the total debts set out in the A schedule to the decree but subject to the condition that she was liable to pay only those debts as were valid and in time. The other sharers also were allotted properties subject to the same condition relating to the discharge of the debts set out in the A schedule to the decree. It appears that the receiver who was in possession of the estate had paid certain amounts of money towards the assessments. It is stated that after giving such credit to the amounts paid, there was still a balance of Rs. 22,842-14-3 due and owing in respect of the assessments. On receipt of certificates under Section 46(2) of the Indian Income-tax Act, 1922, the Collector of Madras proceeded to recover the tax from and out of the plaintiff's half share of the properties given to her under the decree. The plaintiff was resisting the recovery proceedings, raising various contentions. On finding that the properties were situate within the jurisdiction of the Collector of Chingleput, the Collector of Madras forwarded the certificate to the Collector of Chingleput for necessary action. The properties of the plaintiff were attached.

(2.) ON 17th March, 1964, the plaintiff filed O.S. No. 883 of 1964 on the file of the 9th Assistant Judge, City Civil Court, Madras, for an injunction restraining the appellants herein from proceeding with the sale of the properties for the recovery of the amount due under the income-tax orders. Pending the suit, she also applied for a temporary injunction. Though temporary injunction was also given, it appears that it could not be served on the Collector of Chingleput who was bringing the properties to sale before March 19, 1964, and the sale was actually held on that date. But the confirmation of the sale was stayed by the court. Later on, the suit O.S. No. 883 of 1964 was dismissed on the ground that the requisite notice under Section 80 of the Code of Civil Procedure had not been given. When a defence on the question of notice was taken in the suit, even during the pendency of the suit, the plaintiff issued a notice under Section 80 of the Code of Civil Procedure, but the suit was dismissed on August 26, 1967, on the ground that a notice under Section 80, Civil Procedure Code, had not been given. The present suit was filed on August 28, 1967, two days after the dismissal of the earlier suit. In this suit also the plaintiff asked for a temporary injunction restraining the appellants from confirming the sale and that was granted.

(3.) THE trial court held that the suit was not barred under Section 67 of the Income-tax Act, though it gave a finding that the assessment orders were validly made on the receiver who was competent to represent the estate of the deceased. THE trial court also found that the certificate issued under Section 46(2) was valid and that the sale held in pursuance of that certificate had not been proved to be illegal on any ground and that, therefore, the sale also was valid. In that view the suit was dismissed.