AYESHA KHATOON Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal is at the instance of the defendants and it arises out of a suit for declarations.

(2.) The case of the plaintiff. Union of India, represented by the Commissioner of Income-tax (Central) Calcutta, Assam, Manipore and Tripura, was that one Md, Safulla, the sole proprietor of M/s. Habibulla Safulla of Tinsukia, was an assessee under the I.T. Act His income-tax was assessed by the ITO, Dibrugarh, for the sum of Rs. 1,27,926-11-0 which became due and payable by him. A certificate proceeding was started for the recovery of the said sum. The Certificate Officer, Dibrugarh, could realise only Rs. 3,180 on July 12, 1949, by attachment and sale of some movable property of the assessee and the balance sum of Rs. 1,24,746-11-0 remained due and payable by the assessee. A certificate proceeding was also started in the court of the Certificate Officer, Alipore, on November 9, 1949, In the said proceeding, the Commissioner of Wakfs, West Bengal, filed a claim on the allegation that the Calcutta property of the assessee formed part of the wakf estate under the terms of a deed of wakf executed by the assessee on August 14, 1946. The Certificate Officer allowed the claim of the Wakf Commissioner, holding that the certificate dues of the deceased assessee could not be realised by the sale of the wakf property. Subsequently, there were two further assessments of income-tax for the assessment years 1945-46 and 1947-48 for Rs. 2,26,843-6-0 and Rs. 16,983-14-0, respectively. It was contended by the plaintiff that the deed of wakf was collusive and fraudulent and was, accordingly, illegal and void. As the creation of the said wakf had put some illegal obstacles to the recovery of the income-tax dues of the said Md. Safulla, and since the deceased had cast a cloud over the plaintiff's right to realise the said dues out of the assets of the deceased, the plaintiff instituted the suit praying for a declaration that the said deed of wakf dated August 14, 1946, was fraudulent, illegal and void. Further, the plaintiff prayed for a declaration that the order of the Certificate Officer, Alipore, dated March 10, 1953, was not binding on the plaintiff.

(3.) The defendants Nos. 1 to 5, who are the heirs and legal representatives of the deceased Mr. Safulla, entered appearance in the suit and contested the same by a written statement. The principal defence was that the wakf was validly created and, at the time of its creation, the said Md. Safulla had no income-tax dues. It was contended by them that the order of the Certificate Officer dated March 10, 1953, was binding on the plaintiff. The further contention of the defendants was that the suit was barred by Section 42 of the Specific Relief Act and also Section 37 of the Bengal Public Demands Recovery Act.