SM JABARANI GUNIN Vs. UNION OF INDIA
HIGH COURT OF CALCUTTA
UNION OF INDIA
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RENUPADA MUKHERJEE, J. -
(1.) THE subject matter of this appeal lies within a very narrow compass. A house property bearing premises No. 36/1, Gorachand Road, Calcutta, has been attached in connection with some certificate proceedings. THE certificate debtor is one Kumudmoni Dassi who is the mother-in-law of the four plaintiffs who are appellants in this appeal. THE four plaintiffs who are appellants in this appeal. THE four plaintiffs and the Wives of the four sons of Kumudmoni A certificate was issued against Kumudmoni f or recovery of a sum of Rs. 25,062-15-0 on account of income-tax. THE premises mentioned above were attached for realisation of income-tax for the year 1945-46. After the property in question was attached and an order for sale was passed, the present plaintiffs filed a claim before the certificate officer on the strength of a deed of transfer. THE claim was disallowed and the certificate officer made an order that the property should be sold in auction. THE present suit was filed by the plaintiffs challenging the valid title to the disputed property and it is not liable to be sold for realisation of arrears of income-tax dues from Kumudmoni Dassi.
(2.) THE suit was contested on behalf of the Union of India as also by the certificate officer of 24 Parganas who was made a defendant along with the Union of India. THEir defence was that the deed in question was a benami and a fraudulent document and no title passed under it. This defence was given effect of by the trial court and the suit of the plaintiffs was dismissed and so they have preferred this appeal.
Mr.Ghose, appearing on behalf of the plaintiffs appellants contended before us that the trial court was wrong in dismissing the practically without any materials produced in that behalf by the defendants. The deed in question was marked exhibit 2 in the trial court. It is dated 13th March, 1950. It is an admitted fact that on the day the deed in question was executed, assessment proceedings were pending against Kumudmoni Dassi. In the court below the parties proceeded on the footing that this deed and thatKumudmoni sold her immovable properties to her daughters-in-law on their agreeing to pay her maintenance at the rate of of Rs. 100 per month. On a perusal of the deed, we are of opinion that it was really a deed of gift. It covered nine items of house properties are also some lands. It is an admitted fact that all this gift the daughters-in-law of Kumudmoni promised to pay of Rs. 100 per month to her by was of maintenance. She was also allowed to reside in one room in one of the houses. Having regard to the bulk and the value or the properties covered by the documents, a maintenance amount of Rs. 100 is quite insignificant. We are of opinion that by executing this deed Kumudmoni was really making a gift of her entire properties to her daughters-in-law and the deed was really a deed of gift.
The question now arises for our consideration as to whether this deed was executed by Kumudmoni for defrauding Government dues. Kumudmoni was aged nearly 85 years at the time of the execution of the documents. She had four sons at the time of the execution of this document and the appellants are the wives of those four sons. There is a recital in the document that in order to get rid of worldly anxieties and worries Kumudmoni was transferring these properties to her daughters-in-law. Of course, proceedings for assessment of income-tax were pending against her at that time. It cannot be said for that reason only that the document in question is a benami or a fraudulent document. A case was made on behalf of the plaintiffs that Kumudmoni retained of sum Rs. 35,000 for payment of income-tax. The existence of that amount was not proved. From the document in question as also from other facts and circumstances which have transpired in evidence, we are of opinion that by executing the deed of gift Kumudomoni made a gift of all her properties to the appellants. The latter were, therefor, in the position of universal donees. That beings the position, under section 128 of the Transfer of Property Act the appellants donees were liable for all the debts due by and the liabilities of the donor at the time of the gift to the extent of the properties comprised in the deed. In these circumstances, the Union of India was entitled to realise the arrears of income-tax due from Kumudmoni by attaching one of the properties covered by the deed of gift. The trial court was wrong in not making a declaration of title in favour of the appellants. At the same time the appellants are not entitled to get a declaration that the property in question is not liable to be attached or sold for the certificate debt of Kumudmoni. We shall, therefore, make a declaration of title in favour of the appellants but we shall dismiss the other prayer of the appellants contained in prayer (b) of the plaint, namely, that the property in question cannot be sold for the certificate debt of Kumudmoni. This appeal will, therefore, be allowed in part.
(3.) IN the result, we allow this appeal in part and set aside the judgment and decree of the trial court in so far as they do not declare the title of the plaintiffs to the disputed premises. Their title to those premises, namely, premises No. 36/1, Gorachand Road, Calcutta, be declared. We, however, hold that the said premises are liable to be attached and sold for the certificate debt for Kumudmoni and to that extent we uphold the summary decision of the certificate officer dated 20th February, 1953.
In view of the result of the appeal, we direct that both parties will bear their own costs both in the trial court and in this court.;
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