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M. Rajagopal (Managing Partner, K. M. S. Bus Service, Palghat) Vs. Secretary, State Transport Authority, Trivandrum, and Others. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKerala High Court
Decided On
Case NumberO.P. No. 3953 of 1975
Reported in[1978]115ITR364(Ker)
AppellantM. Rajagopal (Managing Partner, K. M. S. Bus Service, Palghat)
RespondentSecretary, State Transport Authority, Trivandrum, and Others.
Cases ReferredKesavan Namboodiri v. State
Excerpt:
.....standing in his name and there is no attachment at the time of such transfer, normally such transfer would be good enough. this may be by genuine transfers to persons who are prepared to purchase the properties and such transferees would normally be entitled to claim that their transfers are good enough. nevertheless, as between the parties who enter into such transfers, such transfers would be good enough and operative. if this be the case, i fail to see any power in the tro to prohibit the effecting of a transfer. the interest of the revenue would be safe if any transfer such as mortgage, charge or lease does not affect prejudicially its right to recover the dues. so long as such right is safe any devolution of interest is not a matter with which the revenue should be concerned......carriage services in the states of kerala and tamil nadu. originally, the partners were one m. rayappa gounder, now deceased, and m. rajagopal, both said to be sons of ome marappa gounder. one krishna kumar was also taken into the benefits of the partnership. he was a minor and on his attaining majority he is said to have become the third partner. m. rayappa gounder, the managing partner of that firm is said to have died on january 16, 1974, and by vitue of clause 15 of the partnership deed, his widow is said to have succeeded to hsi share in the partnership assets. the petitioner, rajagopal, became the managing partner on the death of his brother, rayappa gounder.it is said that all the permits and registration certificates for the vehicles operating in the various routes for the.....
Judgment:

SUBRAMONIAN POTI J. - Petitioner is the managing partner of a firm, K. M. S. Bus Service, Palghat. It is a partner carrying on the business of operation of stage carriage services in the States of Kerala and Tamil Nadu. Originally, the partners were one M. Rayappa Gounder, now deceased, and M. Rajagopal, both said to be sons of ome Marappa Gounder. One Krishna Kumar was also taken into the benefits of the partnership. He was a minor and on his attaining majority he is said to have become the third partner. M. Rayappa Gounder, the managing partner of that firm is said to have died on January 16, 1974, and by vitue of clause 15 of the partnership deed, his widow is said to have succeeded to hsi share in the partnership assets. The petitioner, Rajagopal, became the managing partner on the death of his brother, Rayappa Gounder.

It is said that all the permits and registration certificates for the vehicles operating in the various routes for the business of the firm were standing in the name of Rayappa Gounder. On the death of Rayappa Gounder, the petitioner, as the manging partner of the firm, applied to the State Transport Authority for transfer of such permits and also registration of ownership inrespect of four stage carriages plying on inter-State routes. By exhibit P-2 order dated March 21, 1975, the State Transport Authority allowed such application. But the current records have not been produced an exhibit P-8 is the last reaminder to produce the current records of the said vehicles. In the meanwhile, resort to this court has been made because of exhibit P-7, a letter from the TRO, Trichur, to the Regional Transport Officer, Palghat, requesting him not to permit the ownership of any of the motor vehicles registered in the name of Rayappa Gounder. Reference was specifically made to eight vehicles. It is said that 11 vehicles were operated by the firm of which eight stood in the name of Rayappa Gounder. Exhibit P-7 was in respect of the said eight vehicles.

Rayappa Gounder appears to have been an assessee under the I.T. Act and is said to have been heavily in arrears of tax. A notice under r. 2 of the 2nd Sch. to the I.T. Act had been served on him during his lifetime. The amount remained unpaid. On his death, a notice appears to have been served on his widow as his legal representative. The legal representative is, therefore, said to be in default. R. 16 operates to render transfers of the nature referred to in that rule incompetement when notice has been served on the defaulter under r. 2. The TRO has taken the stand that the vehicles standing in the name of Rayappa Gounder belonged to him personally and in view of the service of notice on him under r. 2 any transfer by him or his legal representative would be incompetent. That is the background for the issue of exhibit P-7 is incompetent and that the said direction should not persuade the State transport authority to revoke exhibit P-2 and should not also stand in the way of transfer of ownership of the vehicles in the name of the current managing partner of the firm in accordance with the application submitted by him. In support of this plea the case of the petitioner is that Rayappa Grounder had taken registration of vehicles in his name only as a managing partner of the firm and, therefore, the transfer to the petitioners name was merely a formality as it was only an alteration of the managing partner in the registration certificate.

The main controversy in this case between the parties concerns the ownership of the eight vehicles. In support of the case of the revenue, it is said that the partnership was one formed with the capital of Rs. 10,000 only and it could not have owned 11 vehicles. It is said that there is nothing in law preventing a partnership using the assets of one of its partners for its business and that was what was done. Rayappa Gounder appears to be the registered owner on record. It is also said that there is no reason why he should not, in the circumstances, be considered as the owner of the vehicles and there is no basis for the claim that the vehicles belonged to the partnership. Learned counsel, Sri. Devan, is equally vehement in support of his case that Rayappa Gounders name has been entered in the registration certificate only as a managing partner, that the stand taken by the State transport authority will evidence this case of the petitioner and that there is no basis for the assumption that the vehicles belonged to Rayappa Gounder personally. The question whether the vehicles were registered in the name of Rayappa Gounder prior to the constitution of the firm and severale other matters having a bearing on the question of ownership of these vehicles may have to be considered for a proper decision as to who is the owner of these vehicles. In other words, the determination of this disputed question as to ownership of the vehicles is not only not easy, but is appropriately not one to be made by this court in these proceedings. Therefore, the petitioner may not get a favourable response to his invitation to this court to enter upon and adjudication of this dispute. If the relief in the petition depended upon such an adjudication, I should have, without any hesitation, declined to interfere.

But the main prayer of the petitioner is occasioned by the issue of exibit P-7. This is a letter by the TRO directing the Regional Transport Officer, Palghat, not to permit the transfer of ownership of any of the motor vehicles registered in the name of Rayappa Gounder. The question which falls for decision here concerns the compentency of the TRO to issue a direction or order in the nature of a prohibition. May be, I need not quash exhibit P-7. Equally effective it would be if I declare that it is not competent and, therefore, could be ignored, if I am satisfied that that is the case. Reference may be made in this context to r. 16 of the 2nd Sch. to the I.T. Act, reliance on behalf of the TRO. That rule reads :

'16. Private alienation to be void in certain cases. - (1) Where a notice has been served on a defaulter or his representative in interest shall not be competent to mortgage, charge, lease or otherwise deal with any property belonging to him except his permission of the TRO, nor shall any civil court issue any process against such property in execution of a decree for the payment of money.

(2) Where an attachment has been under this Schedule, any private transfer or delivery of the property attached or of any interest therein and any payment to the defaulter of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.' It is a case counsel for the revenue that though on the face of the rule it may not appear that power has been conferred on the TRO to issue a notice such as exhibit P-7, that power is, nevertheless, incidental to the power conferred under the rule. The rule does not appear to be one conferring any power on the TRO and, if so, the question of incidental power may not arise. That provision, as is evident from the setting in which it appears, is evidently framed with the object of preventing transfers being effected so as to prejudice the interests of the revenue. Even after a defaulter is served with a notice, if he chooses to transfer properties standing in his name and there is no attachment at the time of such transfer, normally such transfer would be good enough. It is only on an attachment being effected that any transfer thereafter would subject to the liability which has occasioned the attachment. There would necessarily be a time-lag between the service of the notice and the attachment of poperties. Such time-lag in several cases may be fairly long since the revenue may take time to ascertain the properties the defaulter is possessed of. This time-lag may be used by an assessee to place the properties beyond the reach of the revenue. This may be by genuine transfers to persons who are prepared to purchase the properties and such transferees would normally be entitled to claim that their transfers are good enough. Since such a situation may ultimately defeat the revenue, safeguard has been made bt the provision in r. 16. Reference may also be made in this context to r. 51 of the 2nd Sch. R. 51 renders any attachment of immovable property operative not from the date of attachment but from the date of service of the notice to pay the arrears. Subsequent attachment becomes operative from an earlier date and the interest of persons holding on transfer effected subject to the date of service of notice under the rule would be affected.

What is significant is that r. 16 does not prohibit transfer of property. r. 16(1) only declares that the defaulter shall not be competent to effect such transfers. The restriction is limited in scope. Even if the restriction had been of larger scope such as that the defaulter shall not transfer or that transfer shall not be valid, considering the object of the said provision possibly it may be read down to mean that it shall not be valid to the extent it operates to defeat the revenue. A provision of that nature was considered by a Full Bench of this court in Kesavan Namboodiri v. State [1976] KLT 427 [FB]. That was a case where the words 'shall be invalid' occurring in s. 84 of the Kerala Land Reforms Act was read down by the court to mean shall be invalid to the extent it would operate to defeat the provisions of the Land Reforms Act. But here the rule does not even provide that the transfer shall not be valid. r. 16(1) only provides that it shall not be competent for the defaulter to effect the transfer mentioned in the rule. That would mean that such transfers, if made, would not operate to defeat the revenue. Nevertheless, as between the parties who enter into such transfers, such transfers would be good enough and operative. If this be the case, I fail to see any power in the TRO to prohibit the effecting of a transfer.

The interest of the revenue would be safe if any transfer such as mortgage, charge or lease does not affect prejudicially its right to recover the dues. So long as such right is safe any devolution of interest is not a matter with which the revenue should be concerned. In these circumstances, I cannot uphold the power in the TRO to issue a prohibition in the nature of Ext. P-7. It is sufficient to state that Ext. P-7 is inoperative and shall not preclude the State Transport authority from exercising its statuttory functions in accordance with law.

There is no proposal to vacate Ext. P-2 and there may not be any proposal to do so on account of what I have said here about Ext. P-7. It has also not been shown that the State Transport Authority has been requested to vacate Ext. P-2. Hence, the prayer to issue an order to the State transport authority not to vacate Ext. P-2 does not call for consideration.

The petitioners application for the transfer is said to be pending. Ext. P-5 is the application in which the said prayer is made. That application will be disposed of in accordance with law after considering the case ofthe petitioner on the merits. In these circumstances, the original petition is allowed to the above extent. No costs.


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