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No attachment on Mother’s property for recovery of Son’s Demand:
In Nirupaben Manilal Thakkar Vs State of Gujarat, Gujarat High Court has held that no attachment on Mother’s property for recovery of Son’s demands. It was in Special Civil Application No. 22651 of 2019, Order Dated 15/03/2021
The copy of the order is as under:
Nirupaben Manilal Thakkar Vs State of Gujarat
Gujarat High Court
Special Civil Application No. 22651 of 2019
Order Dated 15/03/2021
- By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs;
“(A) Your Lordship may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions to the respondent authorities to delete the charge created under the Act on property located at 3A, Shree Lakshminagar Society, Naranpura, Ahmedabad.
(B) During the pendency and final disposal of the present petition, Your Lordship may be pleased to direct the respondent authorities to restrain from taking any coercive steps pursuant to charge created under the Act on property located at 3A, Shree Lakshminagar Society, Naranpura, Ahmedabad.
(C ) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case. “
- We need not delve much into the facts of this litigation as the order passed by this very Bench dated 4th March, 2021 is self-explanatory. The order passed by this Court dated 4th March, 2021 reads thus;
“1. We have heard Mr. Hiren J. Trivedi, the learned counsel appearing for the writ applicant and Mr. Utkarsh Sharma, the learned AGP appearing for the respondents.
- The principal argument of Mr. Trivedi is that, the respondents could not have invoked Section 57 of the Gujarat Value Added Tax Act, 2003 (for short “GVAT Act, 2003”) for the purpose of recovering the dues of the deceased dealer as the immovable property sought to be put to auction is of the ownership of the mother of the deceased dealer and it is not the estate of the deceased.
- The second argument of Mr. Trivedi is that, even for the purpose of invoking Section 57 of the GVAT Act, 2003, the condition precedent is a notice under Section 42 of the GVAT Act in accordance with the Rule 61 of the Rules. In the absence of any notice of demand under Section 42 of the GVAT Act, 2003 read with Rule 61 of the Rules, no notice for auction of the property in question under Section 152 of the Gujarat Land Revenue Code could have been issued.
- Prima facie, it appears that, there is nothing to indicate that the immovable property in question is the estate of the deceased. There is nothing to even indicate that the deceased dealer was the joint owner or a co-owner of the property in question. However, with a view to give one opportunity to the learned AGP to meet with the aforesaid two arguments of the learned counsel appearing for the writ applicant, we grant one week time to Mr. Utkarsh Sharma. On the next date of hearing, Mr. Sharma shall point out to the Court in what manner the property in question is the estate of the deceased and whether any notice of demand under Section 42 of the GVAT Act, 2003 read with Rule 61 of the Rules has been issued at any point of time, in accordance with law. Mr. Sharma shall look into the decision of this Court in the case of Saraswati Moulding Works Vs. Commissioner of Income Tax & Ors., reported in (2012) 347 ITR 161, more particularly para-11 therein, where this Court has referred to a decision of the Supreme Court in the case of Mohan Wahi Vs. Commissioner of Income Tax, Varanasi, reported in (2001) 248 ITR 799 (SC).
- Post this matter for final hearing on 15.03.2021 on top of the Board. Till the next date of hearing, the respondents shall maintain status quo as regards the nature, character and possession of the property in question.”
- Today when the matter was taken up for further hearing, Mr. Utkarsh Sharma, the learned AGP appearing for the respondents very fairly submitted that the Department has not been able to gather any cogent material or any other evidence to even remotely indicate that the deceased Kamlesh Manilal Thakkar was a joint owner, or had any other right, title or interest in the property in question.
- In the aforesaid context, we take notice of one communication dated 22nd December, 2014 addressed by the VAT Department to the Mamlatdar, Ahmedabad City (West), Ahmedabad. This communication is in context with the cancellation of the mortgage entry as regard the property in question. The communication reads thus;
“Commercial Tax Officer (4)
Office of the Assistant Commercial
Unit-14, 5th Floor,
Ahmedabad City (west),
Subject: To cancel encumbrance Entry No.:21919.
With reference to the subject noted above, it is to state that as stated in the letter of our office dated 01/12/2010, encumbrance Entry No.:21919 has been mutated in the record of right of the property, as referred to herein below, situated at mauje- Vadaj, Ta. Ahmedabad City (West).
(1) Name of debtor:
M/s. Thakkar Manilal
Devchand’s proprietor – Shri Kamleshbhai Manilal Thakkar,
date of death: 31-122010
(2) Name and address of creditor:
Commercial Tax Officer
(4), Office of Assistant
Commercial Tax Officer,
Unit-14, 5th Floor,
Registered amount of
The property on which the lien is recorded:
3/A, Shree Laxminagar Society,
T.P. No.: 19
Final Plot No.: 69 & 78
Survey Number: Old Revenue Survey No.109
Area: 10618 Sq. Mtrs.
In whose name the encumbered property is running:
Nirupa Manilal Thakkar
With reference to the subject noted above, It is to state that Mr.Kamlesh Manilal Thakkar, a Proprietor of M/s. Manilal Devchand, was the debtor of this office, who died on 31/12/2010. As he was not the owner of the said property, its original owner Mrs. Nirupaben Manilal Thakkar has submitted written evidences on 06/12/2012 regarding the charge recorded on the said property. Considering the said evidences, no government proceedings is required to be initiated against the said property. Therefore, it is ordered that the mutation of Encumbrance Entry No.21919 in the record of the said property is hereby cancelled and the property stands discharged from free of all encumbrances.
Commercial Tax Officer (4)
1) Death Certificate of Kamlesh Manilal Thakkar
2) Share Certificate of Mrs. Nirupa Manilal Thakkar of the society.
3) Copy of Entry No.21919.”
- The aforesaid makes the picture abundantly clear that late Kamlesh Manilal Thakkar was the proprietor of the proprietary concern, namely, M/s. Thakkar Manilal Devchand and he passed away on 31st December, 2010. The Department, in so many words, has stated that the property in question was not of the ownership of Kamlesh Manilal Thakkar but the lawful owner is Smt. Nirupaben Manilal Thakkar (the writ applicant herein). In such circumstances, it was informed by the Department to the Mamlatdar that no other steps were required to be taken with respect to the property, and the mutation of the charge over the property bearing No.21919 be cancelled.
- In view of the aforesaid, all that we may observe is that if the Department wants to recover the dues of the deceased dealer, then the same cannot be recovered from the immovable property in question as the said property is not the estate of the deceased. We may observe further that the communication by the Department dated 22nd December, 2014 addressed to the Mamlatdar, referred to above, shall be given effect to at the earliest.
- With the above, this writ application stands disposed of.