IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WP(C).No. 8449 of 2009(A) -------------------------------------------- PETITIONER(S): --------------------- ARAKKAL MARIYAMMA, W/O.LATE XAVIER, AGED 76 YEARS, ARAKKAL HOUSE, PAYAM P.O., KANNUR DISTRICT. BY ADV. SRI.CIBI THOMAS RESPONDENT(S): ------------------------ 1. THE TAHSILDAR, REVENUE RECOVERY, THALASSERY. 2. THE ADDITIONAL SALES TAX OFFICER, OFFICE OF THE SALES TAX OFFICER, KOOTHUPARAMBA, KANNUR DISTRICT. 3. JOSEPH XAVIER, S/O.LATE XAVIER, ARAKKAL HOUSE, PAYAM EAST P.O., KANNUR DISTRICT. R1 & R2 BY BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 8449 OF 2009 A -------------------------------------- Dated this the 23rd March, 2009 JUDGMENT The Writ Petition is taken up for hearing by consent of both parties. 2. The prayer is to quash Ext.P1 and to declare that 1/8th share of the property comprised in RS No.190 of Payam Amsom and Desom cannot be put to sale for recovery of arrears of the third respondent. 3. Ext.P1 is a notice issued under Section 49 of the Revenue Recovery Act, purporting to sell 1/8th share of the third respondent in the property which was described for recovering the sales tax arrears with interest and coll charge and other expenses for the period 1997 - 1998 and 1998 - 1999. The third respondent is the son of the petitioner. The complaint taken is that the third respondent does not have 1/8th undivided share. This is for the reason that the petitioner's husband died intestate. Petitioner is the widow. Under Section 33 of the Indian WPC.8449/09 A 2 Succession Act, petitioner gets 1/3rd and since there are seven children, the children will get only 1/7th of 2/3rd and, therefore, the third respondent cannot have a share as 1/8th right in the entire properties. In other words, it is the case of the petitioner that the right which the third respondent is shown as possessing in Ext.P1 actually does not vest in him in law. Learned Government Pleader would, in fact, submit that the third respondent had in fact instituted a Suit before the Munsiff Court, Koothuparamba wherein he had claimed that he has no right over the property and it would appear that the Suit was dismissed for non-payment of court fee. 4. Firstly, it is to be noted that under the Indian Succession Act, if a person dies intestate, the widow will get 1/3rd and the children will get the remaining 2/3rd equally. This would mean that the share which is proposed to be sold as belonging to the third respondent, does not really vest in him. Apart from the fact that this would amount to interference with the petitioner's right, if any sale is done pursuant to Ext.P1, it WPC.8449/09 A 3 would not vest any title as professed by respondents 1 and 2. This will only result in manifest injustice and I feel that Ext.P1 cannot be proceeded with and I interfere with Ext.P1 and it is quashed. However, I make it clear that this will not stand in the way of respondents 1 and 2 proceeding for sale of the share of the property of the third respondent in accordance with law. The Writ Petition is disposed of as above. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge