RAJAMANNAR, C.J.

This is a petition under article 226 of the Constitution for the issue of a direction in the nature of a writ of mandamus to the Income-tax Officer, Second Additional City Circle, Madras, the Collector of Nilgiris, Nilgiris District, and the Tahsildar of Coonoor, Coonoor Taluk, Nilgiris District, restraining them from proceeding to attach, or to bring to sale, the petitioner's properties for the realisation of the alleged income-tax arrears of her husband, Taranisingh Gramani, and in particular from proceeding with the sale of the Benhutty Estate, Kulikal Village, Coonoor Taluk, Nilgiris District.

For the recovery of arrears of income-tax due from the petitioner's husband, Tharansingh Gramani, a certificate was issued by the Income-tax Officer, the first respondent, to the Collector of Nilgiris (the second respondent) under section 46 (2) of the Indian Income-tax Act. The Collector, in pursuance of this certificate, proceeded under section 27 of the Madras REvenue Recovery Act to attach the property described as Benhutty Estate for the realisation of the said arrears. This estate, it is common ground, was purchased in the name of the petitioner by a deed of sale dated 1st September, 1947. Nevertheless, the property was sought to be attached as the property of the husband, Tharanisingh Gramani, treating the purchase in the name of the petitioner as benami for her husband. In the affidavit filed by the Collector before us, the position taken up by the respondents is set our thus :

"Though the ostensible title stands in the name of the petitioner, having regard to the various circumstances which have been the subject of inquiry before the Income authorities, it is clear that prima facie the authorities have a right to come to the conclusion that the petitioner is a benamidar and that the real owner is the defaulting assessee - the husband. In cases where prima facie there are materials to show that a particular sale deed could only be a benami transaction, it is open to the Revenue Authorities to go behind the mask and attach the right, title and interest of the real owner and bring them to sale." *

The plea was also taken on behalf of the respondents that if the petitioner was aggrieved, it was open to her to institute a suit for a declaration and seek her remedy in the ordinary Courts of law.

In the affidavit filed by the petitioner in support of the application, she stated that the estate in question was purchased with her own funds, that it had been registered in her name in Government records ever since her purchase and that she was in possession and enjoyment of the property. She further alleged that in respect of the income which she was deriving from the said estate and other properties which she owned she had submitted returns to the Income-tax authorities for the assessment years 1947-48 to 1950-51 and had paid the tax which had been assessed on the said income. Her contention was that there was no statutory provision enabling the Revenue Authorities to proceed against the property of persons who were not defaulters.

Section 46 (2) of the Indian Income-tax Act, 1922, runs thus :

"The Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount of arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue : Provided that without prejudice to any other powers of the Collector in this behalf, he shall for the purpose of recovering the said amount, have the powers which under the Civil Procedure Code, 1908, a civil Court has for the purpose of the recovery of an amount due under a decree." *

The proviso was added by section 16 of Act XVIII of 1933. In Purushottam Govindji Halai v. Additional Collector of Bombay, the Supreme Court explained the scope of this provision thus :

"On a proper reading, that sub-section does nor prescr