R SELVARAJ Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS appeal arises out of the judgment of the learned District Judge, Erode in A.S.No. 33 of 1985 confirming the judgment of the learned District Munsif, Erode in O.S.No. 541 of 1982. The plaintiff is the appellant in the above second appeal.

(2.) THE suit was filed by the plaintiff for a declaration that the defendant/State of Tamil Nadu by its Commercial Tax Department had no right to proceed against the suit "A" schedule properties either by sale or by any other means, for recovery of the alleged arrears of sales tax said to be due from the plaintiffs father late R.S. Ramasamy and for a permanent injunction restraining the defendants from selling or in any other manner disturbing the plaintiffs rights, possession and enjoyment of the suit "A" schedule properties. Both the "A" and "B" schedule suit properties, according to the plaintiff, originally belonged to the joint family of the plaintiff and his late father R.S. Ramasamy, being their ancestral properties. THE joint family of the plaintiff and his father was traditionally a family of agriculturists. THE plaintiffs grant-father was only cultivating lands during his life time and all his ancestors were cultivating the lands in the said village. However, the father of the plaintiff appears to have started a speculative business venture by commencing a business in oil by taking on lease an oil-mill named Badusha Oil Mill, Erode and he appears to have incurred heavy loss and the said business undertaking was a complete departure from the traditional avocation of the family who were basically and traditionally a family of agriculturists. THErefore, the loss in the said business and the consequential debts incurred by the father was not binding on the plaintiff, nor his share in the joint family properties be affected. During 1976 when the plaintiff was still a minor, the Commercial Tax Department was preparing to take steps to attach and sell the entire joint family properties included in both "A" and "B" schedule properties for the recovery of alleged sales tax arrears said to be due from the father of the plaintiff. According to the plaintiff he was not bound to pay the alleged arrears of sales tax and the alleged arrears cannot be recovered as against the plaintiffs share in the property. As such, the mother who was the guardian, caused a lawyer's notice to be issued on behalf of the plaintiff on 13.9.1976 under Section 80, C.P.C. THE defendants were also informed that a suit, for partition of the plaintiffs share and for a declaration that the debts of the plaintiffs father were not binding upon the plaintiff, was going to be filed with a further relief for a permanent injunction. THE plaintiff would also state that his father had clandestinely disposed of certain items of the joint family properties to the third parties and all the parties described in "B" schedule were alienated by him. THE remaining family properties are now in the possession of the plaintiff and he was in exclusive possession and enjoyment of the said property comprised in "A" schedule. He would further contend that after receiving the suit notice the defendants did not appear to have taken any steps to attach or sell any item of the properties. However, the second defendant, Commercial Tax Officer, Erode, appears to have caused publication in the Tamil Nadu Gazette dated 28.1.1982, a notice dated 1.12.1981 to the effect that "A" schedule properties were placed under attachment and that unless the tax arrears were paid on or before 26.5.1982, the said properties would be brought to sale in due course. According to the plaintiff, the defendant had no right to proceed with the "A" schedule property which belongs exclusively to the plaintiff as his share in the total joint family assets covered by both "A" schedule property which belongs exclusively to the plaintiff as his share in the total joint family assets covered by both "A" and "B" schedule properties. Inasmuch as the alleged sales tax arrears are said to have been incurred in the oil business venture by the plaintiff's father, neither the plaintiff nor the properties belonging to him can be proceeded against for the recovery of the alleged arrears of sales tax. He would also further state that curiously defendants did not choose to proceed against the "B" schedule properties which were alienated by the assessee. Hence the present suit.

(3.) WITH reference to the objection taken by the learned Special Government Pleader as regards the suit belong barred by res judicata, Ex.B.1, certified copy of an order rendered in W.P.No. 3824 of 1976 by S. Mohan, J. (as he then was) on 29.1.1979 has been filed. In the said judgment, the learned Judge has held that having regard to the facts and circumstances of the case it was not open to the minor to contend that he was not in default. All the arrears accrued while the defaulter was alive and thereby the Department had a charge over the property of the defaulter. It was further held that even if the property was that of joint family, certainly it was no bar to proceed against the property. WITH the result, the writ petition was dismissed and the said judgment became final.