OMPRAKASH Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an appeal by the plaintiff against the judgment and decree dated 23rd December, 1974, passed by the Additional District Judge, Seoni, dismissing Civil Suit No. 3-A of 1967 for a declaration that houses Nos. 69 and 40, situated in Budhwari Ward, Seoni, are not liable to be attached or sold for the income-tax dues against the HUF, Shivnarayan Prabhudayal, and for an injunction restraining the Union of India from proceeding against the houses to recover the said dues.

(2.) IT is not in dispute that an HUF was being assessed in the name of Shivnarayan Prabhudayal right from 1945 under the Indian I.T. Act, 1922. This HUF consisted of Prabhudayal, his wife, Kesarbai, and two sons, Harishchandra and Rameshchandra. Shivnarayan was the father of Prabhudayal. The family owned immovable properties including the two suit houses at Seoni and agricultural lands. IT also carried on business in the name of Shivnarayan Prabhudayal. The said HUF was assessed for the assessment years 1957-58 and 1958-59 and revenue recovery certificates for recovery of Rs. 1,81,015.54 and Rs. 24,413.65 for these years, respectively, were sent by the ITO to the Tahsildar, Seoni. Prabhudayal died on 26th May, 1964. The Tahsildar in recovery proceedings passed orders on 23rd November, 1964, for attachment of the property of Harishchandra as a result of which the two suit houses were attached. Objections were filed by Seth Gopikishan which were rejected by the Tahsildar on 28th July, 1966. Thereafter, the suit in which this appeal arises was filed by Seth Gopikishan as a trustee for the estate of three minors, viz., Omprakash, Jaiprakash and Vijaykumar, all sons of Harishchandra, against the Union of India and Harishchandra for declaration and injunction.

(3.) THE trial court disbelieved the oral partition but held that a valid partition took place on 9th April, 1957, when the registered partition deed was executed and that in that partition the suit houses fell to the share, of Harishchandra and Prabhudayal jointly. It was further held that the sale deed executed in favour of the plaintiff was fictitious and sham and was executed with a view to defeat the recovery, of income-tax dues, THE trial court also held that the HUF continued for the purposes of the I.T. Act as there was no adjudication by the ITO about partition and consequent disruption of the family. On these findings, the trial court dismissed the suit. THE appeal was filed by Seth Gopikishan as a trustee on behalf of the three minors, but as the minors became major during the pendency of the appeal, they become appellants in their own right and the name of Seth Gopikishan was struck off.