Transfer of property by assessee after initial of recovery proceeding not bonafide stop.

JAGADEESAN, J.

The unsuccessful plaintiffs are the appellants herein. They filed the suit OS 226/75 on the file of the sub-Court, Dindigul for declaration that the purchase made by one Haji Mohammed Rahamathulla Rowther on 27th June, 1968 from one Krishnasamy Maniagarar is not void and for injunction restraining the defendants, the IT authorities, from proceeding against the property and for declaration that the order of the third defendant dt. 1st June, 1974 holding the said sale is void and illegal.

2. The plaintiffs are the legal representatives of the said Haji Mohammed Rahamathulla Rowther. The plaintiffs case is that the purchaser purchased the property after verifying the encumbrance certificate and satisfying that there is no encumbrance over the property and the vendor having a valid transfer of title. Pursuant to the purchase, the plaintiffs got possession of the property and the patta had also been transferred in the name of the first plaintiff. The first plaintiff was never informed about the pendency of the proceedings before the IT authorities against his vendor Krishnasamy Maniagarar. One year subsequent to the purchase, the plaintiff also raised a loan from the Land Mortgage Bank and further he incurred expenses to improve the land. The vendor represented to the plaintiffs that he wants to alienate the property, since he could not visit the village in order to manage the same and further he need cash for his lorry business. If the first plaintiff had known about the pendency of the income-tax proceeding, he would not have purchased the property. Equally if the bank authorities had any notice about the pendency of the income-tax proceedings against the vendor, they would not have granted the loan. There was no publication in accordance with s. 287 of the IT Act about the proceedings against the vendor. The first plaintiff, being a bona fide purchaser for valuable consideration, without any notice about the pendency of the income-tax proceeding against his vendor and as such the plaintiffs title cannot be questioned. The sale in favour of the first plaintiff cannot be considered as void in view of s. 281 of the IT Act, since he has paid the sale consideration. When the Tahsildar made enquiries in respect of the sale in favour of the first plaintiff on 13th March, 1970, he came to know about the proceedings against the vendor. The ITO, Circle-I, Salem sent a notice on 8th January, 1971 stating that he proposed to treat the sale as void under s. 281 of the said Act and proceed against the properties and called for the objections if any. The first plaintiff accordingly submitted the reply on 15th November, 1971 and inspite of the objections of the plaintiff, the properties were attached by the Revenue Recovery Officer on 10th January, 1972 stating that the vendor of the first plaintiff failed to pay a sum of Rs. 3, 27, 742 payable under certificate dt. 14th March, 1967, as income-tax arrears. The Revenue Recovery Officer has also passed an order under r. 16(2) of the 2nd Schedule of the Act on 1st June, 1974 declaring the sale in favour of the first plaintiff as void. Since the said order is void, the suit has been filed, after issue of necessary notice under s. 80 CPC.

3. The third defendant filed the written statement which was adopted by the defendants 1 and 2 wherein it is stated that the first plaintiff has purchased the property of a defaulter and as such he is not the bona fide purchaser. The sale in favour of the first plaintiff is void and cannot be prevailed over the claims of revenue. Since vendor was in arrears of the income-tax, the TRO, Madurai was requested to collect the arrears of tax pursuant to the certificate issued by the ITO, Salem under s. 222 of the IT Act. The first certificate was issued to the Collector of Salem for recovery on 17th February, 1965 and subsequent three more certificates were issued on 20th January, 1966, 16th March, 1967 and 18th July, 1968 respectively. The plaint