KHATEEJA BAI Vs. UNION OF INDIA

JUDGEMENT

(1.) PLAINTIFF /appellant filed a suit for declaration that the house attached by the Income -tax dues belongs to the plaintiff /appellant and is not liable to attachment or sale, further for injunction restraining the defendants from attaching and selling the house.

(2.) AS per plaintiff's case, by registered sale deed dated 11 -10 -1971 House No. 22, situated at Central (Azad) Library Road, Itwara, Bhopal, was purchased by the plaintiff from Punamchand s/o Ramchand, for consideration of Rs. 30,000/ - and, since then plaintiff is in possession of the house in her own right. There were income -tax dues against the partnership Firm M/s Kabir Ahmad Haji Abdul Karim Ahmad of which the plaintiff's husband, respondent No. 3 Shri Ahmad was the partner. On 17 -12 -1977 the suit house No. 22, was attached by the Income -tax Department for Income tax dues. The suit House No. 22, is exclusive property of the plaintiff, and therefore, it could not have been attached by the Income -tax Department for the income -tax dues against the Firm of which the plaintiff's husband was partner. The defendants Union of India and Income -tax Recovery Officer filed their written statement contending that the house in fact and law belongs to the husband of the plaintiff/appellant and, plaintiff is only a benamindar of the suit property. The Department is within its right to attach and sell the suit property for the recovery of income -tax dues against the Firm of which the plaintiffs husband respondent No. 3 Shri Ahmad was the partner. It was further contended that the suit as ft is filed is not maintainable as there is remedy provided for appeal under Rule 86, of the Second Schedule to the Income -tax Act, 1961, before the Tax Recovery Commissioner.

(3.) DURING the pendency of the suit in the trial Court the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, was promulgated on the 19th May, 1988, and has come into force at once, later on substituted by the Benami Transactions (Prohibition) Act (No. 45 of 1988) received the assent of the President of India on 5th September. 1988. The provisions of the Sections 3, 5 and 8 of the Act came into force at once on that date, and the remaining provisions were deemed to have come into force on the 19th of May, 1988.