JUDGMENT (Prayer : Second Appeal is filed under Section 100 of C.P.C, against the judgment and decree dated 30.01.2004 passed in A.S.No.174 of 1996 on the file of the Subordinate Court, Kuzhithurai, confirming the judgment and decree dated 09.07.1996 passed in O.S.No.298 of 1987 on the file of the Additional District Munsif Court, Kuzhithurai.) The plaintiff is the appellant. 2. The plaintiff has filed O.S.No.298 of 1987 before the Additional District Munsif Court, Kuzhithurai for declaration that the suit schedule property belongs to the plaintiff and no portion of the said property is liable to be attached as contemplated in the notices dated 08.12.1986 and 16.04.1987 and the attachment if any already effected is void. The plaintiff further prayed for a permanent injunction restraining the defendants from taking any further action pursuant to the notices as stated above. The suit was dismissed by the trial Court. The plaintiff had filed A.S.No.174 of 1996 before the Subordinate Court, Kuzhithurai. The learned Subordinate Judge was pleased to dismiss the first appeal. As against the same, the plaintiff has filed the above second appeal. 3. The plaintiff had contended that the said suit schedule property originally belonged to one K.T.Lukose and he had settled the said property in favour of his nephew N.Babu under a gift deed in Document No.452 of 1981.Thereafter, the said Babu had sold the same in favour of one Swaminathan under Exhibit A1 on 21.07.1983. According to the plaintiff, the said Swaminathan had sold the property to the plaintiff under Exhibit A14 on 20.06.1984. The plaintiff received a notice under Exhibit A9 on 08.12.1986 from the office of the second defendant claiming that the suit property is proposed to be attached under the provisions of the Revenue Recovery Act unless he pays the sales tax arrears of Rs.14,19,763/-. The plaintiff sent a reply under Exhibit A10 on 24.12.1986. According to the plaintiff, he is a bonafide purchaser for valuable consideration. The plaintiff has further contended that the building in the said property has been put up by his predecessor in title when he was the owner of the land. The plaintiff has further contended that if one K.T.Thomas had any tax arrears, the same could be collected from him and the properties that are belonging to the said K.T.Thomas. However, the second defendant department is not entitled to attach the properties standing in the name of the plaintiff. The plaintiff has further contended that if one K.T.Thomas had any tax arrears, the same could be collected from him and the properties that are belonging to the said K.T.Thomas. However, the second defendant department is not entitled to attach the properties standing in the name of the plaintiff. Thereafter, on 16.04.1987, the second defendant sent a notice stating that the objections raised by the plaintiff have been overruled and if the arrears are not settled within 15 days, the properties in R.S.No. 608/5 and 608/8 will be attached and brought to public auction. According to the plaintiff, the suit schedule property is not liable for attachment for realisation of any amount due personally by K.T.Thomas and K.T.Lukose. There was no prior debt/charge or liability cast upon the said property, when the plaintiff has purchased the same from Swaminathan. 4. According to the plaintiff, notices dated 08.12.1986 and 16.04.1987 will demonstrate that so far no order of attachment has been effected. There was only a proposal to effect attachment if arrears of sales tax is not paid. Hence, the plaintiff is a bonafide purchaser when there is no order of attachment, he is entitled to decree for declaration of title and permanent injunction as prayed for. 5. The second defendant Department filed a written statement contending that one K.T.Lukose was a partner in the assessee namely K.T.Thomas and the firm is in arrears of sales tax, additional sales tax and penalty to the tune of Rs.5,93,226/- for the assessment year 1974-75, 1975-76, 1976-77 and 1977-78. Since the said K.T.Lukose was one of the partners of the firm, he is jointly and severally liable for payment of the sales tax arrears as contemplated under Section 40 of Tamil Nadu General Sales Tax Rules 1959. 6. The defendants have further contended that a notice was served upon the firm relating to the sales tax arrears of the assessment year 1974-75 on 06.03.1981. With regard to the other assessment years namely 1975-76, 1976-77 and 1977-78, notices were served on 25.03.1980. After receipt of the said notice, immediately one of the partners of the firm namely K.T.Lukose has created a document and transferred in the name of his close relative namely N.Babu on 11.03.1981. Hence, according to the defendants, transfer is void as contemplated under Section 24(A) of Tamil Nadu General Sales Tax Rules 1959. After receipt of the said notice, immediately one of the partners of the firm namely K.T.Lukose has created a document and transferred in the name of his close relative namely N.Babu on 11.03.1981. Hence, according to the defendants, transfer is void as contemplated under Section 24(A) of Tamil Nadu General Sales Tax Rules 1959. The defendants have further contended that the Government is having the first charge over the said property and priority for all other claims on the property. 7. The defendants have further contended that the suit property was attached on 07.07.1983 under the provisions of Revenue Recovery Act. Hence, the sale deed executed by the said Babu in favour of Swaminathan under Exhibit A1 is clearly after the date of attachment and hence, the sale is void. The defendants further contended that the demand in the said sales tax arrears was challenged by the defaulters in a batch of writ petition of the year 1981 and the same was dismissed on 24.06.1987. According to the defendants, the alleged transfer by the said K.T.Lukose was made over after publication of sales notice. 8. The defendants have further contended that Form No.4 notice under the Revenue Recovery Act was served to K.T.Lukose and the said Babu on 11.05.1983. The said notice was served upon Swaminathan (vendor of the plaintiff) on 01.09.1983 and the attachment has been published in the District Gazette on 16.09.1983. Hence, the sale effected by Swaminathan in favour of the plaintiff under Exhibit A14 on 20.06.1984 is clearly illegal and void. Hence, the appellant prayed for dismissal of the suit. 9. The trial Court after careful consideration of the oral and documentary evidence, arrived at a finding that only after receipt of notice of the sales tax, arrears from the second defendant department, K.T.Lukose has sold the property in favour of his close relative Babu. The trial Court further found that the donee namely the said Babu also received a notice on 01.05.1983. Thereafter, he has chosen to sell the suit schedule property in favour of Swaminathan on 21.07.1983. Hence, the gift deed executed by K.T.Lukose and the sale deed executed by Babu in favour of Swaminathan are clearly void in view of Section 24(A) of Tamil Nadu General Sales Tax Rules 1959. Thereafter, he has chosen to sell the suit schedule property in favour of Swaminathan on 21.07.1983. Hence, the gift deed executed by K.T.Lukose and the sale deed executed by Babu in favour of Swaminathan are clearly void in view of Section 24(A) of Tamil Nadu General Sales Tax Rules 1959. In view of voidness of the title of the ancestor in title of the plaintiff, the sale deed in favour of the plaintiff dated 20.06.1984 is also void. Based upon the said findings, the trial Court held that the plaintiff is not entitled to a decree for declaration of title and dismissed the suit in entirety. 10. The First Appellate Court also concurred with the findings of the trial Court and arrived at a finding that K.T.Lukose was one of the partners of K.T.Thomas & Co., who had gifted the property in favour of his close relative Babu, after the receipt of demand notice from the sales tax department. The First Appellate Court has also found fault with the plaintiff for not producing the gift deed said to have been executed by K.T.Lukose in favour of his relative Babu. Based upon the said findings, the First Appellate Court arrived at a conclusion that only in order to evade the payment of sales tax arrears, gift was executed by the original owner namely K.T.Lukose and hence, all the other subsequent alienations are void and the plaintiff is not entitled to a decree. Challenging the concurrent findings, the present second appeal has been filed by the plaintiff. 11. The second appeal has been admitted on the following substantial question of law: “1. Whether the findings of the Courts below are sustainable in law in the absence of any oral or documentary evidence on the side of the defendants to prove the awareness of the arrears of sales tax by the original owner Lucas? 2. On the basis of the pleadings and evidence let in by the appellant/plaintiff, whether the findings of the Courts below that the plaintiff is not a bonafide purchaser for valuable consideration as contemplated under the proviso to Section 24-A of the TNGST Act is sustainable in law?” 12. 2. On the basis of the pleadings and evidence let in by the appellant/plaintiff, whether the findings of the Courts below that the plaintiff is not a bonafide purchaser for valuable consideration as contemplated under the proviso to Section 24-A of the TNGST Act is sustainable in law?” 12. The learned counsel for the appellant had contended that the notice issued to the plaintiff under Exhibits A9 and A13 will clearly indicate the on the date of the said notices, no order of attachment has been passed by the second defendant department. They were only proposing to attach the property under the Revenue Recovery Act for sales tax arrears. The plaintiff had purchased the suit schedule property on 20.06.1984. Two years thereafter, on 08.12.1986 and 16.04.1987 notices have been issued by the second defendant department under Exhibits A9 and A13 proposing to attach the property. This will clearly indicate that on the date of the purchase made by the plaintiff, there was no order of attachment over the suit schedule property. 13. The learned counsel for the appellant further contended that there is no proof on the side of the second defendant department to establish the fact that at any point of time, there was an order of attachment prior to her purchase. When there is no order of attachment and the alleged order of attachment was not published either in the Taluk Office or in the Registration Department, the contention of the defendants that the plaintiff has purchased a property that has already been attached is not legally sustainable. 14. The learned counsel for the appellant relied upon the judgment of this Court made in W.P.No.2736 of 2006(Rukmani Vs. The Deputy Commercial Tax Officer, Pattukkottai, Thanjavur District) dated 08.10.2012. The learned counsel for the appellant also relied upon a Full Bench judgment of our High Court made in LPA No. 100 of 1999 (B.Suresh Chand Vs. The State of Tamil Nadu and another) dated 15.09.2006 to contend that whether a transferee has got constructive notice of charge as contemplated under Section 24 of TNGST Act has to be determined on the facts and circumstances of each case. She further contended that there could be no fixed prescription as constructive notice of the charge against the property. 15. She further contended that there could be no fixed prescription as constructive notice of the charge against the property. 15. The learned counsel for the appellant further relied upon a judgment of our High Court reported in 1998 (1) CTC ( Deputy Commercial Tax Officer, Thudiyalu Assessment Circle, Coimbatore and another Vs. R.K.Steels) Page 124 to contend that a bonafide purchaser for consideration without notice of the charge is protected. The learned counsel for the appellant also relied upon a judgment in W.P.No.50294 of 2006 (Tvl.Kanagadhara Flat Promoters, Chennai Vs. The Commercial Tax Officer, Ashok Nagar Assessment Circle, Chennai and others) dated 14.07.2001 to contend that where a commercial tax department initiated action after a lapse of so many years, the same was quashed on the ground of delay. The learned counsel also relied upon the said judgment and contended that the second defendant was not in a position to establish the fact that the plaintiff was having knowledge about the previous charge over the property and hence, the plaintiff being a bonafide purchaser for valuable consideration without notice of the charge over the property, he is entitled to protect his title and possession over the suit schedule property. She further contended that the trial Court as well as the Appellate Court have merely relied upon the alleged notice issued to the vendor of the plaintiff to arrive at a conclusion that the sale is a void one without considering the exception mentioned under Section 24(A) of TNGST Act. Hence, he prayed for allowing the second appeal. 16. Per contra, the learned counsel for the respondents contended that even in the year 1981, demand notices have been issued to the defaulter for claiming arrears of sales tax. After receipt of the demand notice from the department, one of the partners of the Firm gifted the property in favour of his close relative namely Babu. Only thereafter, the said relative has sold it to one Swaminathan and from the said Swaminathan the plaintiff is said to have purchased the property. When the partner of the Firm was aware of the charge over the property and he has gifted the same to the close relative, the said transaction can never be considered to be a bonafide transaction. The said transaction was not suppressed any consideration, but it is only a gift deed. When the partner of the Firm was aware of the charge over the property and he has gifted the same to the close relative, the said transaction can never be considered to be a bonafide transaction. The said transaction was not suppressed any consideration, but it is only a gift deed. The said transaction was made, in order to evade the sales tax arrears which was demanded by the second defendant department. The learned counsel for the respondents further contended that even if there is no order of attachment, a statutory charge is created as soon as a demand is made by the department for arrears of sales tax. Pending the said statutory charge if any, transaction is entered into, the said transaction is void unless it falls within the exception. Since the present transaction made by K.T.Lukose in favour of his nephew Babu, it is not included within the exception, all other transactions fall to ground. Hence, he prayed for dismissal of the second appeal. 17. I have considered the submissions made on either side. 18. It is an admitted fact that one K.T.Lukose was a partner of a firm by name K.T.Thomas and Co., The said firm was in arrears of sales tax and a demand notice has been issued to the said firm and its partner on 06.03.1981. One of the partners namely K.T.Lukose, partner of the assessee firm namely K.T.Thomas and Co., has proceeded to gift the schedule mentioned property in favour of his close relative on 11.03.1981 under Document No.452/1981. Hence, it is clear that one of the partners of the assessee firm has transferred his property as a gratuitous transaction in favour of his close relative after receipt of demand notice from the second defendant department. As contemplated under Section 24(A) of TNGST Act where during the pendency of the proceedings any dealer creates a charge on or parts with the possession of any of his assets in favour of any other person, with an intention to defraud the revenue, such charge or transfer shall be void as against any claim in respect of any tax or any other sum payable by the dealer as a result of the completion of the said proceeding or otherwise. However, as per proviso to the said section, transfer was not be void provided the said transaction has been effected for adequate consideration and without notice to the pendency of such proceedings under the Act or as the case may be, without notice of such tax or other sum payable by the dealer or after obtaining previous permission of the assessing authority. Section 24(A) of the TNGST Act is extracted as follows: “24-A. Transfer to defraud revenue void – Where, during the pendency of any proceedings under this Act or after the completion thereof, any dealer creates a charge on, or parts with the possession (by way of sale, mortgage, gift, exchange or any other mode of transfer whatsoever) of any of his assets in favour of any other person, with the intention to defraud the revenue, such charge or transfer shall be void as against any claim in respect of any tax, or any other sum payable by the dealer as a result of the completion of the said proceeding or otherwise. Provided that, such charge or transfer shall not be void, if it is made, (i) for adequate consideration and without notice of the pendency of such proceeding under the Act or, as the case may be, without notice of such tax or other sum payable by the dealer; or (ii) with the previous permission of the assessing authority” 19. In the present case, the first transaction made by the dealer was without consideration and that too in favour of his close relative by name Babu. The fact that the transaction was made by the dealer in favour of his relative Babu is admitted in Paragraph No.2 of the plaint. Only from the said Babu, the plaintiff claims title to the suit schedule property as a second purchaser. 20. The gift deed said to have been executed by the dealer in favour of his relative on 11.03.1981 in Document No.452/1981 has not been produced by the plaintiff for the reasons best known to him. The First Appellate Court has rightly pointed out that it creates suspicion in the minds of the Court. 20. The gift deed said to have been executed by the dealer in favour of his relative on 11.03.1981 in Document No.452/1981 has not been produced by the plaintiff for the reasons best known to him. The First Appellate Court has rightly pointed out that it creates suspicion in the minds of the Court. When the plaintiff claims that he is the bonafide purchaser for valuable consideration without notice of the alleged statutory charge over the suit schedule property, the entire burden is upon the plaintiff to establish the said case especially by filing the sale deed in favour of the said Babu by the dealer. The entire case of the plaintiff reveals the fact that the property was not attached at the time of purchase by the plaintiff in the year 1984. However, for declaring a transaction as void under Section 24(A) of TNGST Act, mere pendency of the proceedings are enough and there need not be an order of attachment. In the present case, admittedly, a demand notice was issued to one K.T.Lukose and within five days from the date of receipt of the said notice, he has chosen to execute a gift deed in favour of his close relative. Hence, the manner in which the first transaction has been entered into by the dealer will clearly establish that it is not a bonafide transaction and the same has been effected only with an intention to evade payment of arrears of sales tax. That apart, the donor and the donee (being a close relative) were aware of the pendency of the proceedings under TNGST Act as against the donor. 21. When the first transaction made by the dealer in favour of his close relative is declared to be a void document, in view of the fact that the same has been effected with the knowledge of the pending proceedings, without consideration, all the subsequent transactions entered into by the said Babu will be without title and hence, it will not confer any title upon the purchaser from the said Babu namely Swaminathan or subsequent purchaser namely the present plaintiff. 22. 22. Viewed from any angle, since the predecessor in title of the plaintiff has no title to the suit schedule property, even assuming that the plaintiff has purchased the property without having knowledge about the pending proceedings after the payment of the due sale consideration, the said facts will not confer any title upon the plaintiff. 23. In view of the above said discussions, both the substantial questions of law are answered as against the appellant. The second appeal is dismissed. No costs.