Thursday, 20 June 2019

Whether recovery proceedings in a co-owned property can be initiated against defaulter’s share in such property?


Admittedly, the property against which attachment proceedings is initiated by the 4th respondent is a co-ownership property belonging to the petitioner and her husband. No doubt, as per the provisions of Transfer of Property Act, 1882, (hereinafter called Act, 1882), against the share of the property of the defaulter proceedings can be initiated since the respective sharers are entitled to transfer their shares without specifying that the transfer is to take effect on any particular share or shares of the transferor as guided by Section 47 of Act, 1882. Therefore the contention advanced by learned counsel for the petitioner that a co-ownership property cannot be sold without effecting partition cannot be sustained under law. The share is also not specifically mentioned in Ext. P2 document, therefore it is clear that, the parties have got equal share over the property in question in accordance with the provisions of Section 45 of the Transfer of Property Act.

IN THE HIGH COURT OF KERALA

W.P.(C) No. 39599 of 2018

Decided On: 25.03.2019

 Shakeela C.K. Vs.  Tahsildar, Thamarassery and Ors.

Hon'ble Judges/Coram:
S.P. Chaly, J.




1. Petitioner and her husband are in joint possession of 8.684 cents of property comprised in Sy. No. 2566 of Unnikkulam Village covered by Ext. P2 Doc. No. 1559/2002 of S.R.O. Thamarassery. A house is also situated therein. Petitioner's husband has a payment due to the BSNL amounting Rs. 44,02,626/- and they initiated revenue recovery proceedings against him. Case of the petitioner is that, BSNL is proceeding against the co-ownership property of the petitioner and her husband and there is no liability cast upon the petitioner with respect to the liability created by husband of the petitioner. Therefore, no attachment of the property held by the petitioner in co-ownership with the husband can be made by the BSNL.

2. Fourth respondent has filed a counter affidavit justifying the stand and also enumerating that the BSNL is proceeding against the share of the property of her husband and they have no intention to proceed against the share of the property held by the petitioner.

3. I have considered the rival submissions made across the Bar and perused the pleadings and documents on record. Admittedly, the property against which attachment proceedings is initiated by the 4th respondent is a co-ownership property belonging to the petitioner and her husband. No doubt, as per the provisions of Transfer of Property Act, 1882, (hereinafter called Act, 1882), against the share of the property of the defaulter proceedings can be initiated since the respective sharers are entitled to transfer their shares without specifying that the transfer is to take effect on any particular share or shares of the transferor as guided by Section 47 of Act, 1882. Therefore the contention advanced by learned counsel for the petitioner that a co-ownership property cannot be sold without effecting partition cannot be sustained under law. The share is also not specifically mentioned in Ext. P2 document, therefore it is clear that, the parties have got equal share over the property in question in accordance with the provisions of Section 45 of the Transfer of Property Act.

4. In that view of the matter, I am of the considered opinion that, petitioner is not entitled to succeed in the contention advanced with respect to the property held by the petitioner in co-ownership with her husband. After evaluating the situation and hearing respective counsel across the Bar, this writ petition is disposed of, directing the respondents not to proceed against the share of the property held by the petitioner in co-ownership with her husband if she has no liability against the proceedings initiated by the 4th respondent. The property in co-ownership held by the husband can be proceeded with by the respondents. The writ petition is disposed of, accordingly.

The Judgment of the Court was delivered by K. Harilal, J.


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