JUDGMENT
A. Ramamurthi, J.
1. The unsuccessful plaintiffs in both the Courts below are”the appellants.
2. The case in brief is as follows: The plaintiffs filed a suit to set aside the attachment proceedings dated 29.9.1983 taken by the second defendant and also restrain respondents/ defendants 1 and 2 from bringing the suit property to sale for the arrears of commercial tax payable by the third defendant. The suit properties originally belonged to one Pachaiammal under registered documents dated 20.9.1915 and 12.3.1920. She died in 1965 leaving behind her only son named K.P. Veerabhadra Mudaliar. Her husband predeceased her. Veerabhadra Mudaliar enjoyed the properties by paying house tax to Thiruchengode Municipality and he had 3 sons and one daughter. The third defendant is the grandson of Veerabhadra Mudaliar through the eldest son named T.V. Angamuthu. Plaintiffs 1 and 2 are also the sons of Veerabhadra Mudaliar. T.V. Angamuthu Mudaliar executed a release deed on 11.11.1981 to the other members of the family. Later, T.V. Kandasamy and T.V. Arumugam and the sister T. Alamelu Ammal also executed release deed on 11.1.1982 in favour of the plaintiffs 1 and 2. There was partition between plaintiffs 1 and 2 and Veerabhadra Mudaliar on 21.1.1982 and door No. 132-A was allotted to the first plaintiff and door No. 132 was allotted to the second plaintiff. However, on 29.9.1983, the 2nd defendant attached the property as if it belonged to the 3rd defendant. The plaintiffs came to know about it in view of Ex.A-1. The 3rd defendant had no right, title or interest in the property. Defendants 1 and 2 also have no right to attach and bring the suit properties for sale for the tax, if any, payable by the 3rd defendant. Statutory notice was also sent by the plaintiffs to defendants 1 and 2. Even in the reply notice, defendants 1 and 2 stated that the 3rd defendant had 1/10th share in the properties. The first plaintiff had already mortgaged the property and also obtained the loan from the banks. Even during the pendency of the suit, the second plaintiff died and as such, his only legal heir was added as third plaintiffs. Hence, the suit.
3. Defendants 1 and 2 contended that the 3rd defendant was running a touring talkies and he was liable to pay tax to the Commercial Tax Department even in 1975. There were exchange of documents between the plaintiffs and the 3rd defendant from 1975 itself. The suit properties are the joint family properties of the 3rd defendant and others, in which the 3rd defendant had 1/10th share. The documents relied on by the plaintiffs were created only to evade the tax payable by the 3rd defendant. They have got right to attach the properties and to bring the same for sale. Now, the present suit has been filed only at the instigation of the 3rd defendant.
4. The trial Court framed 4 issues and on behalf of the plaintiffs, P.W.1 was examined and Exs.A-1 to A-18 were marked. On the side of the defendants, D.W.1 was examined the attachment notification dated 29.9.1983 and granted the relief of permanent injunction against defendants 1 and 2; but however, directed that they can re-attach the legal share of the 3rd defendant in accordance with law and to bring the same for sale. Aggrieved against this, the plaintiffs preferred A.S. No. 58 of 1990 on the file of Sub Court, Sankagiri and the learned Judge after hearing the parties, dismissed the same and aggrieved against this, the plaintiffs have come forward with the present second appeal.
5. At the time of admission of this second appeal, the following substantial questions of law was framed by this Court:
(1) Whether the Courts below were right in their conclusion that the suit property is joint family property?
(2) Even on the assumption that the suit property was joint family property, whether in view of the decision of this Court in S.A.No. 1298 of 1943 and Standing Order No. 30(b) of Tamil Nadu Commercial Taxes Manual and Instructions, an undivided share in a joint family, can be proceeded against for realisation of arrears of sales tax?
6. Heard the learned Counsel of both sides.
7. The points that arise for consideration are: (1) whether the attachment and subsequent proceedings initiated by the 2nd defendant dated 29.9.1983 are liable to be set aside? (2) Whether the plaintiffs are entitled to the relief of permanent injunction? and (3) To what relief?
8. Points: It is admitted that the properties originally belonged to one Pachaiammal and her husband predeceased her. These properties were inherited by their only son Veerabhadra Mudaliar. He had been paying house tax to the Municipality and enjoying the property. It is also admitted that he had 5 sons and one daughter. The 3rd defendant is his grandson through his eldest son named T.V. Angamuthu. Ex.A-1 is the attachment notice sent by the 2nd defendant dated 29.9.1983 relating to the arrears payable by the 3rd defendant towards commercial tax. Admittedly, the 3rd defendant was running a touring talkies and he was liable to pay commercial tax right from the year 1975 onwards. It is seen from Exs.A-8 and A-9 that some of the family members have executed the release deed in favour of other members. There was partition on 21.1.1982 as per Ex.A-10 between plaintiffs 1 and 2 and their father Veerabhadra Mudaliar. Exs.A-11 to A-14 are the tax receipts. Exs.A-15 to A-17 are the documents showing that loan was taken from the bank by the first plaintiff and he discharged the same.
9. Learned Counsel for the appellants/ plaintiffs contended that the Courts below failed to appreciate that when admittedly the father of the first plaintiff acquired the property in question from his mother, the same cannot be treated as a joint family property and therefore, the 3rd respondent who is the son of the eldest son of the first appellant cannot have any share in the property in question which was the separate property of the father of the first appellant. The Courts below also erred in concluding that the self-acquired property of the father of the first appellant was thrown into a common hotch pot and hence had become a joint family property. The doctrine of blending has no application to the case on hand as the family had no other properties and it was never treated as a joint family property. Merely because the members of the family are joint, it cannot be said that it possessed joint family property. There is no plea in the written statement regarding the theory of common hotchpot and blending and treating the suit property as joint nor there is any evidence forthcoming supporting such case. Even assuming that the suit property is a joint family property, respondents 1 and 2 cannot proceed against them as per the decision of this Court in S.A.No. 1298 of 1943 and also the Standing Order 30(b) of the Tamil Nadu Commercial Tax Manual issued by the Government of Tamil Nadu in 1979. It is clear from that the undivided property of the joint family cannot be proceeded against under the Revenue Recovery Act for realising the arrears of revenue due by the member of the joint family in respect of the separate property owned by him. Respondents 1 and 2 cannot attach the suit property in which the 3rd respondent has no share.
10. The only question that has to be considered is whether defendants 1 and 2 are competent to attach 1/3rd share of the right, title and interest of the 3rd defendant for realisation of the arrears of commercial tax payable by him out of the suit properties. The trial Court extracted a passage from Hindu Law by N.R. Raghavachariar that,
Property inherited from any person other than the father, father’s father or father’s father is not ancestral property in the hand of the inheritor so as to enable the inheritor’s son, grandson or great-grandson to get a right in it by birth or to demand a partition thereof. Thus property inherited from the father’s father or from the mother or from a collateral relation, or from a maternal uncle, will not be “ancestral” property in the inheritor’s hand.
This has been related upon in order to show that defendants 1 and 2 have no right whatsoever to attach the properties. Admittedly, from the mother alone Veerabhadra Mudaliar had inherited the properties as the legal heir. There are number of documents entered into between the parties relating to release, partition, etc. However, learned Counsel for respondents 1 and 2 contended that even in 1975, the 3rd defendant was liable to pay commercial tax and, as such, these documents have been created by the parties in collusion among themselves to defeat and delay the realisation of the commercial tax. Even assuming that the properties have been inherited by Veerabhadra Mudaliar from his mother that the properties are separate properties, then it should be shown that defendants 1 and 2 are entitled to proceed against the same. The very fact that the other members of the family have given the release deed and later effected the partition among themselves, would clearly establish that it was treated as joint family property by all the members of the family. Now, only for the purpose of the suit it appears that the plaintiffs have taken a plea that the properties are the separate properties and as such, the 3rd defendant had no right and under the circumstance, defendants 1 and 2 are not entitled either to attach or bring the same for sale. The recitals under Ex.A-10 about these properties are joint family properties would only falsify the case of the plaintiffs. Even though there is no material to apply the doctrine of blending, it is crystal clear that the parties have treated the properties as joint family properties. Once a self-acquired property is thrown into the common hotchpot and becomes joint family property, it is necessarily followed by all the incident of coparcenary property. Simply because the family was not possessed of any other property, it cannot be concluded that these are the separate property of the particular individual. If that be so, what was the necessity to execute any release deed or effect partition among the members of the family. Under the circumstances only, in view of Exs.A-8 and A-9 only, the Courts below came to the conclusion that the properties are joint family properties.
11. Learned Counsel for the appellants relied upon the Volume 1, Tamil Nadu Commercial Taxes Manual Standing Orders 30(b), which reads as follows:
Section 5 of the Tamil Nadu Revenue Recovery Act enables the competent officer to realise an arrear with all costs by the sale of either the movable or the immovable properties of the defaulter or both at his discretion. It should be noted in this regard that the undivided property of a joint family cannot be proceeded against under the Revenue Recovery Act for realising the arrears of revenue due by a member of the joint family in respect of separate property owned by him. Implements of husbandry and one pair of ploughing cattle for each cultivator and such personal ornaments which in accordance with the custom or religious usage cannot be parted with by a woman should be exempted from attachment and sale for arrears of revenue. Similarly, the attachment of doors and windows of houses is prohibited.
12. Learned Counsel for the appellants also relied on stock file on Revenue Recovery Act, Government of Tamil Nadu 1970 that the question is whether for recovery of arrears of list due by a coparcener in a joint family in respect of land registered in his individual name, it is open to the Collector or other officer empowered by the Collector in that behalf, to distrain movables belonging to the joint family as a whole under the provisions of the Revenue Recovery Act. Based upon the decision of this Court in S.A.No. 1298 of 1943, the instruction has been issued to the effect requesting them to issue necessary instructions to the subordinate officers including Revenue Inspectors and Village Officers not to proceed against any joint family property, whether movable or immovable for realising the arrears of revenue due by an individual member of the family in respect of property owned by him. The observation that “a defaulter for the purpose of the Revenue Recovery Act is the person in whose name the patta stands” should be emphasized.
13. It is seen from the judgment passed by the trial Court itself that the attachment order has been issued by the 2nd defendant on the ground that the 3rd defendant had 1/3rd share in the properties. However, in the written statement, defendants 1 and 2 pleaded that the 3rd defendant had 1/10th share in the suit properties. Because of that only, the attachment as well as the subsequent proceedings have been set aside by the Court below and a direction has been given to defendants 1 and 2 that after calculating the share of the 3rd defendant, they are entitled to attach the same and bring it for sale. This has been confirmed by the lower appellate Court also. But, however, in view of the Standing Order 30(b) of the Tamil Nadu Commercial Taxes Manual and the instruction communicated to the authorities concerned and incorporated in the stock File of Revenue Recovery Act, it is made clear that the revenue officers cannot proceed against any joint family property for realising the arrears of revenue due by an individual member of the family in respect of property owned by him. In my view, the Standing Orders issued by the authorities concerned will be binding upon them and, as such, till the partition is effected in the family and if and when the 3rd defendant gets any share, thereafter it is open to the authorities concerned to proceed against them and now, they have no right whatsoever to proceed against the suit properties based on a hypothetical share of the 3rd defendant. The trial Court as well as the lower appellate Court after setting aside the attachment and subsequent proceedings, gave a direction to defendants 1 and 2 to proceed against the share of the 3rd defendant after calculation. Now, the Standing Orders and other things have not been taken into consideration and if that is applied to the case on hand, I am of the view that till partition is effected in the suit properties granting a share to the 3rd defendant, defendants 1 and 2 have no right whatsoever to proceed against the properties and, as such, the judgment and decree of the Courts below have to be modified accordingly. Hence, the points are answered accordingly.
14. For the reasons stated above, the second appeal is allowed and the judgment and decree of the Courts below are modified and the plaintiffs are granted the relief of permanent injunction, restraining respondents 1 and 2 from proceeding against the undivided properties till the share of the third defendant is worked out and allotted either through Court or otherwise. There will be no order as to costs.