LexSTATE OF KERALA AND ANR. versus RADHAMANY
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STATE OF KERALA AND ANR.
v.
RADHAMANY
AUGUST 23, 1996
B
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]
Kera/a Revenue Recove1y Act, 1968: Sections 7,44(2) and (3).
Abkari Contractor-Payment of dues-A/Tears-Default- Recove1y-
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Contractor defaulter transfening agricultural land in favour of wife-Notice
se1ved by Tehsildar for attachment of schedule property for recovery of
dueS-·Suit challenging notice decreed by T1ial Court-High Court holding that
service of demand notice was a condition precedent for recovery of ar-
rear:r-Appeal prefwed by State-Held in view of the admitted fact that
an-ears had become due as on April 1, 1969 and the lands came to be sold
D subsequent to the said date, sub-section (2) of Section 44 stands at-
tracted-Transfer of immovable property was made by the defaulter with an
intention to delay or defer tile recove1y of a/Tears-Therefore, such a sale does
not bind the Govemment--Prior service of notice of demand of a/Tears or
attachment before sale is not a pre-condition to deny the statutory presump-
E tion available under sub-section (3) of Section 44.
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11906 of
1996.
From the Judgment and Order dated 14.2.89 of the Kerala High
Court in S.A. No. 77 of 1983.
G. Prakash for the Appellants.
P.K. Manohar for the Respondent.
The following Order of the Court was delivered :
Leave granted.
We. have heard learned counsel on both sides.
This appeal by special leave arises from the judgment and order of
H the High Court of Kerala dated February 14, 1989 made in Second Appeal
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STAIB OFKERAIA v. RADHAMANY
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No. 77/83. The admitted facts are that one Vasudevan was an Abkari A
contractor for the year 1968-69. He fell into arrears in payment of Abkari
dues as on April 1, 1969. For the recovery of a sum of Rs. 35,497,
proceedings were initiated under the Kerala Revenue Recovery Act, 1968
(for short, the "Act") on May 31, 1969, Ex. P-1, a demaud notice was issued
on the defaulter on June 17, 1969. Thereafter, it would appear that the B
defaulter executed a registered sale deed dated June 30, 1969 for 3 acres
97V2 cents of the agriculture land in favour of his wife. On February 22,
1969, the Tehsildar served a, notice of attachment of the schedule property
for recovery of the dues. Challenging the notice of attachment, the respon-
dent filed Suit 0.S. No. 94 of 1977 which was decreed. On appeal, it was
reversed. In Second Appeal filed by the respondent, by the impugned order C
dated February 14, 1989 the learned Single Judge has held that only if a
demand notice under Section 7 had been served on the defaulter !and the
transfer was followed thereafter, the person becomes defaulter and the
arrears could be recovered. Thus service of demand notice is a condition
precedent for recovery of arrears. In the absence of such a• ~otice, the D
presumption under.Section 44 is inapplicable. Therefore, the sale made in
favour of the respondent is valid in law. The question, therefore, is whether
the view taken by the High Court is correct in law?
Section 44 of the Act reads as under :
"44. Effect of engagements and transfers by defaulter - (1) any
engagement entered into by the defaulter with any one in respect
of any immovable property.after the service of the written demand
on him shall not be binding upon the Government. ·
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(2) Any transfer of immovable property made by a defaulter after F
public revenue due on any land from his has fallen in arrears, with
intent to defeat or delay the recovery of such arrears, shall not be
binding upon the Government.
{3) Where a defaulter transfers immovable property to a near
relative or for grossly inadequate consideration after public G
revenue due on any land from his has fallen in arrears, it shall be
presumed until the contrary is proved that such transfer is made
with intent to defeat or delay the recovery of such arrears and the
Collector or the authorised officer may, subject to the orders of a
competent court, proceed to recover such arrears of public H
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204
SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.
revenue by attachment and sale of the property so transferred, as
if such transfer had not taken place :
Provided that, before proceeding to attach such property, the
Collector or the authorised officer shall -
(i) give default an opportunity of being heard; and
(ii) record his reasons therefor in writing.
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