The transfer of property by a defaulter to a near relative or for grossly inadequate consideration after arrears have fallen due is presumed to be with intent to defeat or delay the recovery of the arrears, making it not binding on the Government.

K.A. Abdul Gafoor, J.

1. The petitioner, who has purchased a property from the 5th respondent has approached this court, when the property was proceeded against for the arrears due from the 5th respondent, challenging Ext. P3 notice issued under the Revenue Recovery Act for attachment of the said property.

2. Certain facts are admitted. The petitioner is the brother of the 5th respondent who transferred the property in his favour. The 5th respondent fell in arrears and became defaulter to pay the contribution towards Toddy Workers' Welfare Fund, which is recoverable as arrears of land revenue, during the year 1977-78 and 1978-79. The 5th respondent transferred the property in favour of the petitioner on 2-9-1983 as per Ext. P1 sale deed. A notice under S.34 of the Revenue Recovery Act was issued on the 5th respondent only on 4-5-1994, much later than the said transfer of the property. Attachment order was passed as per Ext. P3 on 5-9-1997. The petitioner, relying on the provisions contained in S.44(1) of the Kerala Revenue Recovery Act, 1968 contends that the transfer affected as per Ext. P1, much before the service of S.34 notice on the 5th respondent, is a valid transfer and therefore, his property cannot be proceeded against. In support of his contention, he relies on two Division Bench decisions of this court reported in Agricultural Income tax Officer v. Thankamma Prameswaran (1986 KLT 416) and Kurian Mathew v. State of Kerala (1990 (1) KLT 14). S.44(1) speaks about engagement entered into by the defaulter covering immovable property. The Division Bench in the former decision has held that the sale also will come within the term 'engagement' referred to in S.44(1). Therefore, Ext. P1 also comes within the term of engagement and such engagement entered into by the 5th respondent, who is a defaulter, before the service of the written demand on 3-5-1994 under S.34 of the Act will be binding on the Government and the Government cannot proceed against the property. It is true that if such transfer takes place before the service of the written demand on the defaulter, necessarily, that transfer binds on the Government and such property cannot be proceeded against to recover the dues payable by the defaulter in the light of the said judgment.

3. Almost, a similar view was taken in the latter decision as well. These two decisions are in respect of an engagement which includes the sale of immovable property, by the defaulter. But, when the transfer by the defaulter is to 'defeat or delay the recovery of such arrears, it will not come within the compass of the sub section (1) of S.44. Such transfer is specifically dealt with in sub-section 2 of S.44, which reads as follows:

"(2) Any transfer of immovable property made by a defaulter after public revenue due on any land from him has fallen in arrear, with intent to defeat or delay the recovery of such arrear, shall not be binding upon the Government".

In this case, transfer as per Ext. P1 was effected by the 5th respondent in favour of the petitioner on 2-9-1983, long after the amount had fallen in arrears so far as the 5th respondent is concerned. In terms of S.68, such arrears have to be recovered as land revenue. Therefore, sub-section 44(2) attracts to the case of the petitioner, if the transfer in favour of the petitioner is 'with intent to defeat or delay the recovery of such arrear'. If that is so, the petitioner will not get the benefit under sub-section 44(1). Sub-section 3 of S.44 makes it clear that transfer of immovable property by a defaulter 'to a near relative or for grossly inadequate consideration after public revenue due on any land from him has fallen in arrear' shall be presumed until the contrary is proved, that such transfer is made with intent to defeat or delay the recovery of such arrear.

4. Admittedly by the petitioner, the transferor of the land covered by Ext. P1 is his own brother. Therefore, the transfer took place between two near relatives is an adm