Judgment :- 1. This case has come before us on a reference made by justice John Mathew on the ground that the earlier Division Bench ruling of this court reported in 1975 KLT 29 between Gourikutty Amma v. District Collector, Alleppey was not brought to the notice of the Division Bench which decided the later case in 1986 KLT 416 between Agricultural Income Tax Officer v. Thankamma Parameswaran. The question of law that arises for consideration in this case is in regard to the correct interpretation of the provisions of S.44 of the Kerala Revenue Recovery Act, 1968. 2. Sri. K.P. Mathew, who was an Abkari Contractor, owed certain sums to the State towards payment of kist in respect of abkari contract and in regard to the contribution which he was required to be made for the Toddy Welfare Fund. He has made a gift of his properties in favour of his three minor children including the petitioner by executing a deed of gift dated 24-1-1975 in respect of certain immovable properties belonging to him. The State took steps to recover the amount due to it from Sri. Mathew towards Toddy Welfare Fund and kist by resorting to the provisions of the Kerala Revenue Recovery Act. Demand of the amount due was made from Sri. Mathew under S.34 of the Act on 1-11-1972. An order of attachment of the properties belonging to Sri.Mathew which includes the gifted property was made on 19-7-1975. The properties were brought to sale under the said Act and they were actually sold in favour of the 6th respondent who was the highest bidder. An application for setting aside the sale came to be made by the petitioner on 23-3-1979 to the District Collector, the third respondent. He in turn transmitted the same for disposal by the Tahsildar, the 4th respondent. The ground pleaded for setting aside the sale is that the steps contemplated by the Act resulting in the sale were taken behind the back of the petitioner. The Tahsildar rejected his application by order Ext.P1 dated 7-5-1979. Consequently the sale was confirmed on 19th May, 1979. The said order was challenged by the petitioner by way of revision before the third respondent which came to be dismissed by Ext.P2 dated 27-6-1979. A further revision to the Board of Revenue was dismissed by Ext.P3 dated 12-9-1980. The Tahsildar rejected his application by order Ext.P1 dated 7-5-1979. Consequently the sale was confirmed on 19th May, 1979. The said order was challenged by the petitioner by way of revision before the third respondent which came to be dismissed by Ext.P2 dated 27-6-1979. A further revision to the Board of Revenue was dismissed by Ext.P3 dated 12-9-1980. The petitioner then approached the State Government by way of revision which came to be dismissed by Ext.P5 dated 5-10-1981. It is in this background that the petitioner has approached this Court under Art.226 of the Constitution challenging Exts.Pl, P2, P3 and P5 and has prayed for setting aside the sale held under the Act. 3. The only contention of Sri.Sukumaran Nair, learned counsel for the petitioner is that the petitioner was not given an opportunity of being heard before the attachment of the property. Reliance was placed in this behalf on the proviso to subsection (3) of S.44 of the Act For the sake of convenience, the entire section is extracted as follows: "44. Effect of engagements and transfers by the defaulter - (1) Any engagement entered into by the defaulter with anyone in respect of any immovable property after the service of the written demand on him shall not be binding upon the Government. (2) Any transfer of immovable property made by a defaulter after public revenue due on any land from him has fallen in arrears, with intent to defeat or delay the recovery of such arrear, shall not be binding upon the Government. (3) Where a defaulter transfers immovable property to a near relative or for grossly inadequate consideration after public revenue due on any land from him has fallen in arrear, it shall be presumed until the contrary is proved, that such transfer is made with intent to defeat or delay the recovery of such arrear, and the Collector or the authorised officer may subject to the orders of a competent court, proceed to recover such arrear of public revenue by attachment and sale of the property so transferred, as if such transfer had not taken place: Provided that, before proceeding to attach such property the Collector or the authorised officer shall (i) give the defaulter an opportunity of being beard; and (ii) record his reasons therefor in writing. Explanation: For the purpose of this section, "near relative" includes husband, wife, father, mother, brother, sister, son, daughter, step-son, step-daughter, uncle, aunt, son-in-law, daughter-in-law, brother-in-law, nephew or niece of the transferor." Sub-section (2) of S.44 provides that any transfer of immovable property made by a defaulter after public revenue due on any land from him has fallen in arrears, shall not be binding upon the Government, if the same was effected with intent to defeat or delay the recovery of such arrears. Sub-section (3) of S.44 introduces a statutory but rebuttable presumption to the effect that the transfer effected in favour of a near relative or for grossly inadequate consideration after public revenue has fallen due in arrears, shall be presumed until the contrary is proved that such transfer is made with intent to defeat or delay the recovery of such arrears. The Collector can then proceed to take further steps. The proviso to sub-section (3) however requires that the Collector or the authorised officer shall before proceeding to attach the property, give the defaulter an opportunity of being heard and record his reasons therefor in writing. The proviso contemplates an opportunity of hearing being given only to the defaulter who has transferred the immovable property with intent to defeat or delay the recovery of arrears due to the Government. It does not in terms contemplate an opportunity of hearing being afforded to the transferee. Hence on the plain reading of the proviso to sub-section (3) of S.44, the petitioner cannot claim an opportunity of being heard before action is taken for attaching the property on the ground that the transfer has been effected with intent to defeat or delay the recovery of arrears under sub-sections (2) or (3) of S.44 of the Act. The defaulter is entitled to an opportunity of being heard only if the case falls under sub-section (2). If the case falls under sub-section (1) no such requirement has to be satisfied. Sub-section (1) of S.44 deals with a situation where the transfer is effected by the defaulter in respect of his immovable property after the service of written demand on him. So far as sub-section (2) of S.44 is concerned, it deals with a situation where the defaulter has fallen in arrears. Sub-section (1) of S.44 deals with a situation where the transfer is effected by the defaulter in respect of his immovable property after the service of written demand on him. So far as sub-section (2) of S.44 is concerned, it deals with a situation where the defaulter has fallen in arrears. If the defaulter who has fallen in arrears has been served with a written demand, then what governs is sub-section (1) of S.44 and not sub-sections (2) of (3) of S.44. This is precisely what has been explained by the latter Division Bench of this Court in 1986 KLT 416. It has been further held in that decision that if the case is governed by sub-section (1) of S.44, such transfer or engagement after service of notice of demand shall be null and void as against the Government. The decision in 1975 KLT 29 does not deal with the case falling under sub-section (1) of S.44. It deals with the applicability of sub-sections (2) and (3) of S.44. Though, as pointed out by Sri.Sukumaran Nair, learned counsel for the petitioner, the facts summarised in the said case in Para.3 may be capable of suggesting an argument that that case also could be governed by sub-section (1) of S.44 of the Act, it has to be pointed out that no such contention was urged before the court that the facts of that case attracted the provisions of sub-section (1) of S.44. The case was argued solely on the basis that the case falls under sub-sections (2) and (3) of S.44 and it is on that basis that the decision has been rendered. But so far as the decision of this court in 1986 KLT 416 is concerned, that was a case in which it was canvassed that the facts of the case attracted the provisions of sub-section (1) of S.44 and not the provisions of sub-sections (2) and (3) of S.44. It is for that purpose that this court examined the relative scope of the two sets of provisions and held that the two sets of provisions operate in two different areas. Hence it is not possible to take the view that there is any conflict at all between the two Division Bench rulings. Whereas 1975 KLT 29 dealt with the case falling under sub-section (2) of S.44,1986 KLT 416 dealt with the case falling under sub-section (1) of S.44. Hence it is not possible to take the view that there is any conflict at all between the two Division Bench rulings. Whereas 1975 KLT 29 dealt with the case falling under sub-section (2) of S.44,1986 KLT 416 dealt with the case falling under sub-section (1) of S.44. As there is absolutely no conflict between the two decisions, with great respect, we find it difficult to agree with the observations of the learned single judge that the subsequent decision in 1986 KLT 416 requires reconsideration as the earlier decision in 1975 KLT 29 was not pressed into service when the subsequent decision was rendered by this Court. That is how Justice Khalid, as he then was, understood the earlier decision of this court in 1975 KLT 29 in the decision rendered by him in 1977 KLT 657 between Raman Kannan v. State of Kerala and others. 4. So far as the facts of this case are concerned, there cannot be any doubt that sub-section (1) of S.44 is clearly attracted. Arrears had fallen due from Sri.Mathew and a notice of demand for recovering the said arrears from the defaulter, Sri.Mathew, was issued under S.34 of the Act on 1-11-1972. The engagement or transfer by way of gift was made by Sri.Mathew in favour of the petitioner and two others only much later on 24-1-1975. When sub-section (1) of S.44 is attracted to the facts of this case, the principle laid down in 1986 KLT 416 governs this case. Following the said decision it has to be held that the gift made in favour of the petitioner and two others is null and void as against the State Government. That being the position, the sale of the property in dispute cannot be regarded as illegal and invalid. For the reasons stated above this original petition fails and is dismissed. No costs. Dismissed.