IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 OP.No. 36378 of 2001(E) ----------------------- PETITIONER: ------------ SMT.M.B.LALY, W/O.ABDUL AZEEZ, AGED 30, EMBASSERY HOUSE, PALLIPPURAM, MARAMPILLY (P.O.), ALUVA. BY ADV. SRI.P.M.POULOSE RESPONDENTS: ------------- 1. THE STATE OF KERALA, REP. BY ITS SECRETARY TO REVENUE DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM. 2. THE DEPUTY TAHSILDAR (REVENUE RECOVERY), OFFICE OF THE SPECIAL TAHSILDAR, REVENUE RECOVERY, ALUVA. 3. THE VILLAGE OFFICER, MARAMPILLY VILLAGE, MARAMPILLY (P.O.), ALUVA. G.P. SRI.TEKCHAND FOR R1 TO 3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.59378/2001 IN O.P. NO.36378/2001 DISMISSED: 14.8.2008 SD/-(C.N.RAMACHANDRAN NAIR, JUDGE.) APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF SALE DEED AS DOCUMENT NO.5297/99 OF THE SUB REGISTRAR OFFICE, PERUMBAVOOR. P2: TRUE COPY OF RECEIPT EVIDENCING PAYMENT OF PROPERTY TAX TO THE GRAMA PANCHAYAT DT.27.10.2001. P3: TRUE COPY OF WARRANTEE CARD EVIDENCING PURCHASE OF THE REFRIGERATOR BY PETITIONER'S FATHER. P4: TRUE COPY OF WARRANTEE CARD EVIDENCING PURCHASE OF TELEVISION BY PETITIONER'S BROTHER. P5: TRUE COPY OF MAHAZAR PREPARED AND ISSUED BY R3. P6: TRUE COPY OF CLAIM PETITION SUBMITTED BY PETITIONER TO R2 DT.6.11.2001. P7: TRUE COPY OF MAHAZAR PREPARED BY R3 ATTACHING THE IMMOVABLE PROPERTY DT.19.11.2001. P8: TRUE COPY OF PETITION DT.22.11.2001. P9: TRUE COPY OF AUCTION NOTICE DT.23.11.2001. RESPONDENT'S EXHIBITS: R1(a) SERIES: COPIES OF DISTRICT COLLECTOR'S RRC. R1(b): TRUE COPY OF ORDER DT.4.10.2001. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... O.P. No.36378 of 2001 .................................................................... Dated this the 14th day of August, 2008. JUDGMENT The petitioner is challenging recovery proceedings for recovery of arrears of sales tax due from her husband. Government Pleader submitted that defaulter transferred property to his wife, petitioner herein, to avoid recovery. If property is transferred to avoid recovery, then such transaction will be hit by Section 26A of the KGST Act read with Section 44 of the Revenue Recovery Act. Besides this, transfer to defraud creditors is invalid by virtue of Section 53 of the Transfer of Property Act. In any case there is no scope for this court to decide the issue because petitioner is free to file claim petition along with documents of title to the properties before the second respondent. The second respondent or the Tahsildar, whoever is in charge, will consider the claim petition based on observations above and if the transfer of property in favour of the petitioner is hit by virtue of the provisions abovereferred, to declare the transaction as invalid and proceed for sale of the property. However, if property is obtained by the petitioner from sources other than from defaulter-husband, then such property should be excluded from recovery proceedings. The petitioner will produce copy 2 of this judgment before the second respondent along with title deed for him to verify the validity of the transaction and to proceed for recovery as directed above. The second respondent is directed to complete recovery without any delay. The petitioner can file claim petition for the attached movables also with documents of title which will also be considered by the second respondent. C.N.RAMACHANDRAN NAIR Judge pms