The main legal point established in the judgment is the interpretation and application of the Kerala Revenue Recovery Act, specifically S.5 and S.44, in determining the liability for coercive process and the validity of the attachment of the gifted property.

1. The appeal is by the Sales Tax Department of the State (the Collector, the Tahsildar and the Sales Tax Officer), against the decision of a learned judge who allowed O. P. No. 127 of 1973, setting aside Ext. P2 attachment proceedings, and Ext. P5 order rejecting the writ-petitioner's claim that the attached properties were hers, and quashing the said two orders.

2. One V. C. Mahammed Haji, the husband of the writ petitioner, died on 17-10-1963. On 30-4-1962 he had submitted the return of his turnover under the Sales Tax Act, in respect of his business. As the return itself disclosed that sales-tax was due from him, a demand notice was issued on 24 61963 calling upon Mahararned Haji to pay a sum of above Rs. 6,000/- by way of Sales Tax. Mahammad Haji paid up a sum of about Rs. 2, 200/- under several chalans. These facts are disclosed in Para.2 of the counter affidavit. It was thereafter that be died on 17-10-1963.On 10 51962 be had executed & deed of gift conveying the property attached by Ext. P2 to the petitioner in the writ petition. The assessment order, in the wake of the return, was passed by Ext, P1 proceedings dated 9-11-1964. The assessment was against M. Hamsa, shown as the legal representative of the deceased Mahammad Haji. The deficit tax was shown as Rs. 3,842.24. For this, attachment was levied by Ext. P2 proceedings against the property that was gifted to the writ-petitioner. She filed Ext. P3 claim-petition and also Ext. P4 petition before the District Collector which was rejected by Ext. P5. The learned judge noticed S.5 of the Kerala Revenue Recovery Act which authorises

recovery of arrears of revenue only by attachment and sale of the defaulter's immovable property, and observed that the writ-petitioner is not a defaulter in respect of the arrears sought to be recovered. On the date of the demand notice under S.34, the property did not belong to the defaulter as it had been transferred under a registered gift deed in favour of the writ-petitioner. It was therefore not liable to coercive process under the Revenue Recovery Act. The learned judge relied on Abdulla v. State of Kerala and another (ILR.1962 (1) Kerala 396) and Mariam v. Tahsildar, North Wynad (1969 KLT. 860). The learned judge observed that S.44 of the Kerala Revenue Recovery Act was not attracted, as the impugned attachment was not for recovery of public revenue due on the land. For this proposition, reliance was placed on Gourikutty Amma v. District Collector, Alleppey (1974 KLT. 103).

3. The decision in 1974 KLT. 103 was reviewed, and after rehearing, the decision rendered is reported in Gourikutty Amma v. District Collector, Alleppey (1975 KLT. 29). It is enough to notice that the fresh decision rendered after review has put the matter very guardedly and cautiously, referring to the decision in 1974 KLT. 103. The fresh decision merely remarked:

"The conclusion reached by the judgment is supportable on the basis that the issue of notice in the case dealt with by the learned judge was after the transfer. By virtue of this fact S.44 cannot be attracted at all. This decision cannot help the appellants. In the light of the above discussion we have to hold, as we have indicated, that in the case of arrears of dues under the Abkari Act. by virtue of S, 28 of the Abkari Act read with Subsections (1) and (4) of S.68 of the Revenue Recovery Act. S 44 of that Act is attracted." (para 7;

We do not think, the principle of the decision can have any application as we are of the opinion that quite apart from S.44 of the Revenue Recovery Act, the Sales Tax Department is entitled to succeed

4. Regarding the view of the learned judge that without avoiding or setting aside the transfers, the attachment of the property transferred by Mahammad Haji prior to his death and prior to the issuance of the notice of demand, cannot be maintained, it has to be pointed out that this view is against a Division Bench ruling of this Court in Isha Beevi v. Tax Recovery O