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2002 DIGILAW 1482 (ALL)

GEETA DEVI v. STATE OF U. P.

2002-10-10

ASHOK BHUSHAN, S.K.SEN

body2002
S. K. SEN, CJ. ( 1 ) HEARD Sri Om Prakash Lohia, learned counsel for the petitioner and Sri s. P. Kesharwani, learned standing counsel. ( 2 ) BY this writ petition, the petitioner has prayed for a mandamus against the respondents that they shall not attach and auction the property house no. 987, ward no. 13, Katra, Gursain district jhansi in pursuant to recovery of arrears of Sales Tax/trade Tax in the name of m/s Gayatri Traders. ( 3 ) THE facts of the case as given in the writ petition are: petitioner claims to be sole owner of property house no. 987, ward no. 12, Katra Gursain, district Jhansi and has filed extract of the house assessment dated 7th September, 2002 for the period 1st April, 1996 to 31st March, 2001. It is stated that earlier Smt. Gayatri devi, who is proprietor of M/s Gayatri traders, was the owner of house no. 987. It is stated that attachment and auction notices have been issued by respondent no. 2 for house no. 987 copy of which have been filed as Annexure -3 and 4 to the writ petition. The aforesaid attachment notice shows that house has been attached for realization of trade tax dues from 1993-94 to 1995-96 in consequence of which house was attached. Annexure-4 further mentions that according to record of Nagar Palika, house was in the ownership of Smt. Gayatri Devi prior to 25th March, 1996. Sale proclamation has also been issued for the aforesaid house. ( 4 ) THE counsel for the petitioner contended that petitioner being sole owner of the property, the house can neither be attached nor sold. It has been submitted that property has been unnecessarily attached for realization of trade tax dues whereas the petitioner has nothing to do with the business of Smt. Gayatri Devi. ( 5 ) WE have heard counsel for the parties and perused the record. It is not disputed that liability of the trade tax arrears arose out of dues against Smt. Gayantri Devi who was proprietor of M/s gayatri Traders and was owner of the house. The petitioner in the writ petition has claimed herself to be the sole owner but in whole of the writ petition there is no mention as to by what mode the petitioner became owner. The petitioner in the writ petition has claimed herself to be the sole owner but in whole of the writ petition there is no mention as to by what mode the petitioner became owner. No reference of any sale deed has been mentioned although during oral submission the counsel for the petitioner contended that petitioner purchased the house from Smt. Gayatri Devi. Even if the petitioner purchased the house from Smt. Gayatri devi she was obliged to make proper enquiry before the purchase. Section 55 (1) (a) of Transfer of Property Act, 1882 provides for the liabilities and the rights of seller and buyer. According to Section 55 (1) (a), the Seller is bound to disclose the buyer any material defect in the property or in the sellers title, which the buyer could not with ordinary care discover. The provision clearly provides that the buyer is to also to take ordinary care to discover material defect in the property or in the sellers title. If the buyer has not taken ordinary care, he is not entitled to seek protection. The principle that buyer has to exercise ordinary care and has to be vigilant while purchasing property is well established and has been recognized in several decisions. In A. I. R. 1928 Bombay 427, harilal Dalsukhram Sahiba vs. Mulchand Asharam, it was held by the division Bench of Bombay High Court. "it is quite clear that, if the plaintiff could with ordinary care have discovered that there was this defect of title, then he cannot plead that there was a failure on the part of the defendant to comply with the obligation laid down in S. 55 (1) (a ). There has been considerable argument as to whether the plaintiff knew, or could have discovered, that there was such a defect. The subordinate judge has held that he could have discovered the defect, if he had sufficiently investigated the title. Now that in regard to agricultural lands the Record-of -Rights affords such an easy means of investigating questions of title about particular pieces of land, there is dearly not the some difficulty that there is clearly not the same difficulty that there used to be about discovering defects of title with reasonable care. Admittedly, the plaintiff did see the mutation entry Ex. 44, which as regards plot no. Admittedly, the plaintiff did see the mutation entry Ex. 44, which as regards plot no. 108-1 showed the defendant as the occupant under his sale deed of August 1918, but the duty of a prudent purchaser does not rest with merely seeing a mutation entry if it does not cover the whole of the land he is purchasing. Moreover the plaintiff is a person of intelligence, who has been a member of the Bombay Legislative council. I think it would be absurd for this Court to say that in the circumstances he ought not to have ascertained what were the entries in the Record-of-Rights about the two pieces of land and had he done so he would have seen the entry about no. 108-2 and the mortagagees in possession. That would have put him on enquiry as to what these mortagagee rights were. It may be that the defendant had not given him his title deeds. But that does not affect this particular point. With ordinary care he should have pursued his investigation beyond the point he says he did. Both under S. 55 (1) (a) and the definition of notice in S. 2 of the Act there was a want of care or a willful abstention from an enquiry or search which the plaintiff ought to have made, so that, in my opinion, the plaintiff is not entitled to say that there has been fraud on the part of the defendant in regard to this matter. " ( 6 ) THE Madhya Pradesh High Court in AIR 1962 144, Ganpat Ranglal mahajan v. Mangilal Hiralal and another has also laid down the same proposition in paragraph 5 of the judgement which is extracted below: " (5) So far as the applicability of sec. 55 (1) (a) of the Transfer of Property act is concerned, the contention of the applicant appears to be correct. Although there is an express recital, in the sale deed that the property is free from mortagage etc. this is not enough. To attract the provisions of S. 55 (1) (a) two conditions are necessary; firstly that the buyer should not be aware of the existence of the defect in title, and secondly, that he could not with ordinary care discover the defect. this is not enough. To attract the provisions of S. 55 (1) (a) two conditions are necessary; firstly that the buyer should not be aware of the existence of the defect in title, and secondly, that he could not with ordinary care discover the defect. So far as the first condition is concerned, although the applicant vendor in his written statement pleaded that the buyer was aware of the existence of the mortgage, there is no proof of this fact and it must be assumed that the buyer was not aware of the defect. However, the second condition is not satisfied inasmuch as the buyer could have known about the encumbrance by making inquiries in the office of the registrar. Section 55 (1) (a) of the transfer of Property Act has, therefore, no application to the present case. " ( 7 ) FROM the facts brought on the record, it appears that trade tax dues relate to the period when Smt. Gayatri Devi was owner of the house. The petitioner cannot take any benefit of transfer in the property in view of the specific provisions of section 34 of UP Trade Tax Act. Section 34 of the Trade Tax Act is extracted below: "34. Transfer to defraud revenue void. (1) where, during the pendency of any proceeding under this Act, any person liable to pay any tax or other dues creates a charge on or transfers, any immovable property belonging to him in favour of any other person with the intention of defrauding any such tax or other dues, such charge or transfer shall be void as against any claim in respect of any tax or other dues payable by such person as a result of the completion of the said proceedings. Provided that nothing in this section shall impair the rights of a transferee in good faith and consideration. (2) Nothing in sub- section (1) shall apply to a charge or transfer in favour of a banking company as defined in the banking Regulation Act, 1949 (Act X of 1949, or any other financial institution specified by the State Government by notification in this behalf. " ( 8 ) WE are satisfied that no illegality has been committed by trade tax authority in attaching the property and issuing the sale proclamation. The trade tax dues were admittedly against smt. " ( 8 ) WE are satisfied that no illegality has been committed by trade tax authority in attaching the property and issuing the sale proclamation. The trade tax dues were admittedly against smt. Gayantri devi who was owner of the house for realization of which house has been attached. The counsel for the petitioner could not show any provision of law to justify interference by us in this writ petition. However, he prays that one months time should be granted to make arrangement with the original owner of the premises in question. We are not in a position to grant such indulgence. It is always open to the writ petitioner to approach the original owner and the officials of the State Government praying for time. It is for the authorities concerned to consider the prayer. This court cannot pass any order granting time or issuing any direction in that regard. In our view there is no scope for this court to grant any such indulgence. ( 9 ) WITH the above observation, the writ petition stands dismissed. .