JUDGMENT
Kadee, J.
1. These two original petitions relate to proceedings initiated for recovery of arrears of agrl. income-tax assessed on Kunhikanaran Vaidyar, now deceased, for four years commencing from 1966 to 1970. Kunhikanaran Vaidyar owned extensive items of immovable properties and had 3 wives and children born to them. Poovadan Suseela is his third wife and the petitioners herein are children born to her, the petitioner in O.P. No. 6217 of 1981-N being her son and the petitioner in O.P. No. 6806 of 1981-1 being her daughter.
2. The point for determination in both the original petitions being the same, these original petitions are being disposed of by a common judgment. It is said that Kunhikanaran Vaidyar died in 1978 and long before his death properties belonging to himself and his wives were partitioned as per registered document No. 275 of 1958, on January 17, 1958, at Sub-Registry Office, Kakkattil. As per this partition deed, properties described in F schedule were set apart to the share of the petitioners and their mother, Suseela. The properties owned by Kunhikanaran Vaidyar were assessed under the Agrl. I.T. Act, 1950 (Act XXII of 1950), for short, “A.I.T. Act.” The tax so assessed in respect of the properties on Kunhikanaran Vaidyar was in arrears. The revenue authorities initiated proceedings for the recovery of arrears of agrl. income-tax due from deceased Kunhikanaran Vaidyar for the years 1966-67 to 1969-70 against the petitioners and their properties. According to the petitioners, in pursuance of such proceedings, properties comprised in Sy. Nos. 9/3 and 18/4 having an extent of 1’34 acres were attached under the provisions of the Kerala Revenue Recovery Act, 1968, hereinafter referred to as the Act. This was challenged by Suseela, the mother of the petitioners, before the Board of Revenue which ultimately passed an order in favour of Suseela holding that Section 44 of the Act was not applicable to the case, and that the separate property of Suseela which she got as per the partition karar No. 275 of 1958, of the Sub-Registry Office, Kakkattil, was not liable to be proceeded against for the recovery of arrears of tax due from her husband, the defaulter. On this finding, the revision filed by Suseela was allowed and the revenue attachment was set aside; but it was made clear that the said order did not in
any way preclude the Tahsildar from proceeding against the separate properties held by the defaulter for the recovery of arrears of tax due from him. This order passed by the Board of Revenue has been marked as Ex. P-1 in both the cases.
3. Thereafter, notice of attachment of immovable properties under Section 36 of the Act was issued to the petitioners. Ex. P-2 in O.P. No. 6217 of 1981-N is this notice. The petitioner in O.P. No. 6217 of 1981, then filed a claim petition, Ex. P-3, before the Tahsildar, Badagara Taluk, while the petitioner in O.P. No. 6806 of 1981-I filed a similar petition, Ex. P-3, before the Sub-Collector, Kozhikode. The claim petition filed by the petitioner in O.P. No. 6217 of 1981 was rejected as per Ex. P-4 order, while no order disposing of the claim petition filed by the petitioner in O.P. No. 6806 of 1981, was served on him. Meanwhile, under Section 39 of the Act, for the purpose of management, the attached properties along with other items belonging to the petitioners, were entrusted with the village officer, Maruthonkara, by the Sub-Collector, Kozhikode. This order has been marked as Ex. P-2 in O.P. No. 6806 of 1981 and as Ex. P-5 in O.P. No. 6217 of 1981.
4. What the petitioners now seek is to quash this order (Ex. P-2 and Ex. P-5 referred to above) in exercise of the extraordinary powers of this court under art. 226 of the Constitution. Attacking this order, several grounds have been raised by the counsel appearing for the petitioners but at the time of hearing they urged only the following grounds :
(i) The provisions in Section 44 of the Act do not apply to the facts of this
case.
(ii) Sub-section (2) of Section 40 of A.I.T. Act also does not apply to the
case under consideration.
5. The learned Government pleader appearing for the Government, although made a vigorous attempt to uphold the orders under attack relying on Section 9(2) and Section 40(2) of the A.I.T. Act (Act XXII of 1950), was not able to successfully meet the points raised by the counsel appearing for the petitioners.
6. In view of Ex. P-1 order of the Board of Revenue, the respondents are restrained from proceeding against the properties included in F schedule of document No. 275/58 of the petitioners under Section 44 of the Act. Section 44 of the Act has no application to the facts of this case. This position is not disputed. The contention of the counsel appearing for the Government is that in view of Section 40(2) of the A.I.A. Act inasmuch as there is a charge created on the properties of deceased Kunhikanaran Vaidyar, the assessee, the revenue authorities are entitled to proceed against the properties whether
it be in the possession of legal heirs by virtue of inheritance or by partition or otherwise. It is true that Sub-section (2) of Section 40 of the A.I.T. Act states :
“If default is made in paying any amount referred to in Sub-section (1) or any instalment thereof, the whole of the amount outstanding on the date of the default shall become immediately due and shall, subject to the claims of the Government in respect of basic tax payable under the provisions of the Kerala Land Tax Act, 1961 (13 of 1961), be a first charge on the properties of the assessee liable to pay such amount and where such amount or part thereof relates to agricultural income from properties transferred by the assessee which is included in his total agricultural income in pursuance of Sub-section (2) of Section 9, also on such properties.”
7. Sub-section (2) was introduced by way of Amending Act 9 of 1974, and by the same amendment Section 40 was re-numbered as Sub-section (1). Sub-section (2), introduced by the Amending Act, is not retrospective in operation or effect. This came into force only on April 1, 1974, and is prospective in operation. The defaulted tax demanded in this case is the arrears of tax due for the years 1966 to 1970. It is not disputed that long before the assessment of agrl. income-tax for the said years in respect of the properties of the deceased, he had partitioned the properties as per the partition deed No. 275 of 1958, and by virtue of that partition, the properties allotted to the petitioners and obtained by them are their separate properties. In the circumstances, the charge created under Sub-section (2) of Section 40 cannot apply to the separate properties obtained by the petitioners under the partition deed No. 275 of 1958. It may also be noted that there has been no transfer of properties by the assessee as contemplated in the latter part of Sub-section (2) of Section 40. It cannot be said that the partition effected in this case is a transfer of property in the name of those to whom the properties have been allotted. (See R. Vijayaraghavan v. Commr. of Agrl. Income-tax [1977] 110 ITR 535 (Mad)). In a similar case in O.P. No. 387 of 1961, this court took the same view. Section 9(2) of the AIT Act only states that in computing the total agricultural income of any individual for purpose of assessment, there shall be included incomes derived from the sources and quarters mentioned in Clause (a)(i) to (iv) and Clause (b). Clause (iv) of Section 9(2) cannot have any application to the facts of this case, as there has been no transfer of assets as contemplated therein. Apart from this, it is on the basis of Section 44 of the Act that the Revenue authorities initiated proceedings against the petitioners on the basis of which Exs. P-2 and P-5 have been issued. A proper and careful reading of the relevant provisions of Section 44 of the Act clearly shows that none of the provisions therein can apply to the facts of the instant case. The decision of the Board of Revenue in Ex. P-1 has recognised this and is in line with this. The counsel appearing for the
Government pointed out that in the orders, Ex. P-2 and Ex. P-5, properties other than those allotted to the petitioners under F Schedule also have been included and, therefore, these orders cannot be quashed so far as they relate to those items of properties. Those items pointed out by the counsel for the Government as not covered by F Schedule are R. S. No. 87, 2 acres 15 cents and R. S. No. 90/IB, 4.25 acres. For the aforesaid reasons, the properties allotted to the petitioners in F Schedule to document No. 275 of 1958, which have become their separate properties by virtue of the partition effected long before these properties were assessed to agrl. income-tax, cannot be proceeded against for the arrears of agrl. income-tax due from deceased Kunhikanaran Vaidyar for the years 1961 to 1970. The attachment and assumption of management of these separate properties of the petitioners are clearly illegal and without jurisdiction and, accordingly, Ex. P-2 and Ex. P-5 are to this extent vitiated and liable to be set aside.
8. In the result, these original petitions are partly allowed ; and Ex. P-2 and P-5 are quashed to the extent and in the manner indicated above and in all other respects these original petitions stand dismissed. It is made clear that this judgment will not stand in the way of the respondents proceeding against 2 acres 15 cents comprised in R.S. No. 87 and 4’25 acres comprised in R. S. No. 90/IB other than 4.76 acres comprised in the same survey number and included in the F Schedule. The profits collected by the respondents from the properties of the petitioners will be refunded to them. The counsel for the Government requested that a further observation may be made that this judgment also will not stand in the way of the respondents proceeding against the separate properties of the defaulter, if any. I, therefore, make the observation that this judgment will not stand in the way of the respondents proceeding against the separate properties of deceased Kunhikanaran Vaidyar, the defaulter, if any.