JUDGMENT : M.M. SATHAYE, J. 1. The Petitioner is challenging an order of attachment dated 26/09/2023 passed by Respondent No. 1, apparently under Rule 11 of the Maharashtra Realisation of Land Revenue Rules, 1967 (‘the said Rules of 1967’ for short) made under rule making power of the State Government under Section 328 of the Maharashtra Land Revenue Code, 1966 (‘the Code’ for short). By the said impugned Order, the total/proportional right, title and interest of the Petitioner’s son Jayesh Madhusudan Panchal, a proprietor of M/s. Sai Electricals in Flat No. 201, Hayat Palace Co-operative Housing Society Limited, Patel Compound, Pushpa Park, Daftary Road, Malad (West), Mumbai-400097 (‘the said flat’ for short), is attached for non payment of tax dues by said Mr. Jayesh. The Petitioner is also seeking directions to the Respondents to withdraw the said impugned order and restrain them from taking any steps in furtherance thereof. 2. At the outset it is necessary to note that neither rule making power of the State nor the competence of the Respondent No. 1 in issuing the impugned order is challenged. The challenge in the petition in limited based on Petitioner’s right vis-a-vis the said flat, as will be clear in the narration to follow. 3. The case of the Petitioner is as under. The Petitioner is the wife of late Mr. Madhusudan Durlabhbhai Panchal (‘late Madhusudan’ for short) who jointly owned the said flat. Late Madhusudan passed away on 24/05/2017 intestate, leaving behind the Petitioner (widow) and three sons namely Mr. Pankaj, Mr. Jayesh and Mr. Prashant. On the demise of late Madhusudan, necessary application under Form No. 15 was made to the said Co-Operative Housing Society for membership and transfer of share and interest in Petitioner’s name. Along with the said application, a duly notarised affidavit, an indemnity bond, undertaking and declaration were also given. Out of these documents, only the affidavit dated 30/06/2017 is signed by the Petitioner and her three sons. It is stated in paragraph 4 of the said affidavit that they have no objection for accepting the Petitioner as member of the society and for transferring all the shares held by late Madhusudan and his interest in the said flat to the Petitioner alone. The other documents are signed by the Petitioner only. It is stated in paragraph 4 of the said affidavit that they have no objection for accepting the Petitioner as member of the society and for transferring all the shares held by late Madhusudan and his interest in the said flat to the Petitioner alone. The other documents are signed by the Petitioner only. The said Co- operative Housing Society thereafter transferred the share certificate (noting shares of the late Madhusudan) in favour of the Petitioner on 25/02/2018. Thus as on date, the share certificate is in Petitioner’s exclusive name. In November 2024, when the Petitioner sought to transfer her right, title and interest in the said flat, the society brought to her knowledge the impugned order of attachment. According to the Petitioner, the said attachment order is never served upon her. The Petitioner was shocked to know about attachment of the flat for alleged outstanding demand of tax and interest from one of her sons, namely Mr. Jayesh. The Petitioner claims to be completely clueless about business activities of her son Jayesh. The Petitioner and her other two sons, namely Mr. Prashant and Mr. Pankaj have met the Respondent Authorities and also filed reply contending inter alia that the Petitioner is undisputed sole owner of the said flat, which cannot be attached for the recovery of outstanding tax or interest thereon from her son Jayesh. It is in these circumstances that the Petitioner has approached this Court. 4. Learned Counsel for the Petitioner submitted that the impugned attachment order is bad in law in view of the Petitioner being exclusive owner of the said flat. He submitted that the impugned order is contrary to Section 34 of the Maharashtra Value Added Tax Act, 2002 (‘the said Act’ for short). He submitted that as per Section 176, 181 and 182 of the Code, it is only immovable property of the defaulter that can be attached and the Petitioner being exclusive owner of the said flat, no coercive steps can be taken against her or the said flat. He submitted that by executing necessary documents, the membership of late Madhusudan has been transferred exclusively to the Petitioner and therefore, her son Mr. Jayesh has no right, title and interest in the said flat. He submitted that once the share certificate stands in Petitioner’s exclusive name, it can not be attached for recovery of tax dues of her son. He submitted that by executing necessary documents, the membership of late Madhusudan has been transferred exclusively to the Petitioner and therefore, her son Mr. Jayesh has no right, title and interest in the said flat. He submitted that once the share certificate stands in Petitioner’s exclusive name, it can not be attached for recovery of tax dues of her son. He also submitted that no inquiry was conducted prior to issuing impugned order, as required under Section 38 of the said Act. He has relied on the following Judgments in support of his contention. (i) Commissioner of Income Tax v/s. Anilaben Upendra Shah , 2001 SCC Online Guj 315 (ii) Adityaraj Builders v/s. State of Maharashtra and Ors. 2023 SCC Online Bom 540. (iii) Tax Recovery Officer v/s. Gangadhar Vishwanath Ranade [1998] 100 Taxman 236 (SC). (iv) P.K. Kunjamma v/s. Tax Recovery Officer [1997] 94 TAXMAN 447 (KER) 5. The learned Assistant Government Pleader on the other hand, by referring to Affidavit-in-Reply dated 19/09/2024 filed by the concerned Joint Commissioner of Sales Tax, submitted that as many as three times, notices were issued on 09/10/2012, 13/03/2013 and 03/02/2017 to Mr. Jayesh who is a proprietor of M/s. Sai Electricals who is in arrears of Rs.8,96,776/- and Rs.18,55,799/- in respect of the assessment for the periods financial years 2008-09 and 2012-13 under the said Act. In response to none of these notices, Mr. Jayesh or his representative attended and the Department and ex-parte orders were required to be passed on 09/04/2013, 29/03/2017 and 30/11/2018. He submitted that even in the year 2023, when the Government declared Amnesty Scheme, a courtesy letter was issued on 10/05/2023 to Mr. Jayesh, however there was no response. It is submitted that in such circumstances, various orders are passed, however the outstanding amounts are not paid and therefore, it has resulted in issuing the impugned order. He submitted that in the said flat, the defaulter Mr. Jayesh has share and therefore it can be attached to that extent. He fairly conceded that the impugned order is limited to the proportional right, title and interest of Mr. Jayesh and not to the entire flat. He submitted that by transferring the membership by joint application of the Petitioner and her sons, the share of Mr. Jayesh in the title, as legal heir of the deceased Madhusudan cannot be bypassed or nullified. Jayesh and not to the entire flat. He submitted that by transferring the membership by joint application of the Petitioner and her sons, the share of Mr. Jayesh in the title, as legal heir of the deceased Madhusudan cannot be bypassed or nullified. He submitted that the Petitioner as well as her other two sons Mr. Pankaj and Mr. Prashant are well aware of the arrears of tax by Mr. Jayesh. That if the dates of demand notices and ex-parte orders are seen, it is clear that the alleged transfer of the said flat in the exclusive name of the Petitioner is obviously with ulterior motive and malafide intention to defraud the revenue and is therefore covered under Section 38 of the said Act. The learned Assistant Government Pleader relied on the Judgments of this Court in the matter of Shashikiran Ashok Parekh v/s Rajesh Virendra Agrawal and Ors. , 2012(4) Mh. L. J. 370 and Gopal Vishnu Ghatnekar v/s. Madhukar Vishnu Ghatnekar 1982 Mah. L.J. 65. 6. Pursuant to the order of this Court dated 01.10.2024, Mr. Jayesh Madhusudan Panchal (son of the Petitioner) has filed an affidavit dated 14.10.2024 stating that he has suffered heavy losses in his business and has no substantial assets or bank balance and has currently taken up a job as driver. It is stated that the said flat belongs exclusively to his mother and no steps should be taken against the said flat. 7. We have considered the rival submissions and perused the record. 8. Section 34(1)(v) of the said Act empowers the Respondent No. 1 to perform duties of Tahsildar under the Code, for the purpose of effecting recovery of amount of tax and its dues as arrears of land revenue. Perusal of Form No.15 submitted by the Petitioner to the Co- operative Housing Society, affidavit by the Petitioner and her three sons including Mr. Jayesh dated 30/06/2017 and indemnity bond executed by the Petitioner dated 01/07/2017 shows that it is clearly stated in all these three documents, that the Petitioner is claiming to be a nominee after the death of late Madhusudan and the Petitioner is one of his legal heirs and there are three other legal heirs i.e. her sons. Jayesh dated 30/06/2017 and indemnity bond executed by the Petitioner dated 01/07/2017 shows that it is clearly stated in all these three documents, that the Petitioner is claiming to be a nominee after the death of late Madhusudan and the Petitioner is one of his legal heirs and there are three other legal heirs i.e. her sons. It is settled law that mere nomination in favour of one of the legal heirs does not make that nominee the exclusive owner holding full title to the property and the nominee holds it in trust of all the legal heirs as per applicable succession rules. As per the averments in petition itself (paragraph no. 3.3) late Madhusudan has passed away ‘intestate’. Therefore, the laws of succession would squarely apply. The document specifically relied upon by the learned Counsel for the Petitioner i.e. affidavit executed by the Petitioner and her three sons including Mr. Jayesh, especially paragraph 4 thereof, will not help the Petitioner for the simple reason that it only indicates transfer of membership right in the society exclusively in favour of the Petitioner, at the best. This document is executed on a non judicial stamp paper of Rs.100/- and is an unregistered document. Therefore, for the Petitioner to acquire exclusive title to the said flat, a registered document of gift or relinquishment deed or such other transfer permitted under the Transfer of Property Act, is necessary. The affidavit relied upon by the Petitioner (page 40-43) cannot be construed as transfer of title exclusively in favour of the Petitioner in the teeth of Section 17 of the Registration Act, 1908. Therefore, it is obvious that the title in the said flat, after the death of late Madhusudan, devolves upon all the four legal heirs i.e. the Petitioner and her three sons including Mr. Jayesh. Therefore the extent of share of Mr. Jayesh in the title of the said flat can be attached. 9. The affidavit in reply filed by the Respondent State is not countered by filing any rejoinder. From the said affidavit, it is clear that the arrears under the said Act are in respect of period FY 2008-09 and FY 2012-13. Jayesh. Therefore the extent of share of Mr. Jayesh in the title of the said flat can be attached. 9. The affidavit in reply filed by the Respondent State is not countered by filing any rejoinder. From the said affidavit, it is clear that the arrears under the said Act are in respect of period FY 2008-09 and FY 2012-13. If this period is considered along with dates of earlier notices issued, it is evident that the alleged transfer in favour of the Petitioner by her sons is subsequent in point of time, being effected in June 2017 and therefore, undivided share of Mr. Jayesh in the title therein is hit by Section 38 of the said Act. Whether the said transfer was with ‘an intent to defraud revenue’ is a disputed question of fact, that will have to be considered in accordance with law, including enquiry under Section 38 of the said Act. We are not expressing any opinion upon the said aspect and all contentions in that regard are kept open. 10. In light of what is narrated above, it is not necessary to consider the argument of the Petitioner about the necessity of enquiry before issuing attachment order. In this respect, it is material to note that the learned Assistant Government Pleader appearing for Respondent State has fairly conceded that the impugned order would operate only in respect of proportional share in the right, title and interest of Mr. Jayesh Madhusudan Parekh, proprietor of M/s. Sai Electricals in the said flat. Once again we are not expressing any opinion on the extent of share of Mr. Jayesh in the said flat and all contentions in that regard are kept open. 11. The Judgments relied upon by the Respondent State are clearly supporting it. 12. Before parting, it is necessary to deal with the Judgments relied upon by the learned Counsel for the Petitioner. Reliance placed on the case of Adityaraj Builders (supra), especially paragraph 43 thereof, is clearly misplaced in the facts and circumstances of the present case. In the said case, what was under consideration was a question whether separate stamp duty can be levied on Permanent Alternate Accommodation Agreement (PAAA) when the Development Agreement executed by the society with the builder is already stamped. In the said case, what was under consideration was a question whether separate stamp duty can be levied on Permanent Alternate Accommodation Agreement (PAAA) when the Development Agreement executed by the society with the builder is already stamped. In that context, the co-ordinate Bench of this Court has explained the concept of sale of membership and its connection to right to hold, occupy, possess and enjoy the immovable property. The context of the present case is completely different, being attachment of the title of the flat in which the defaulter has undivided and proportional share. Therefore the said judgment will not advance the case of the Petitioner. 13. So far as reliance placed on the Judgment of Commissioner Vs. Anilaben (supra) is concerned, the said Judgment was delivered by a Division Bench of Gujarat High Court considering the following question: “Whether in law and on facts when the assessee received possession of the flat in October, 1981, and sold the same on December 4, 1982, the assessee is entitled to benefit of Section 80T of the Income-Tax Act, 1961?” It was in respect of claim of long term capital gain and claiming deduction under Section 80T of the Income Tax Act, 1961 for it. Therefore, it is clear that the issue under consideration in the said judgment was completely different and not comparable to the facts of the present case. 14. Lastly, so far as reliance upon the cases of T.R.O. Vs. Gangadhar (supra) and P.K. Kunjamma (supra) in support of argument about requirement of enquiry is concerned, it is already indicated above that since the Respondent State has fairly conceded that the attachment order would apply to only proportional share of Mr. Jayesh, the said judgments would not advance the case of the Petitioner. We have already clarified that the aspects of extent of share of Jayesh and existence of intent to defraud are kept open. 15. In the aforesaid facts and circumstances, there is no merit in the petition and the same is dismissed. It is however clarified that the impugned order would be applicable only to the share of Mr. Jayesh Madhusudan Panchal in the said flat and not to the share of the Petitioner or her other two sons. Petition is disposed of in above terms with no order as to costs. All concerned to act on duly authenticated or digitally signed copy of this order.