Andhra HC (Pre-Telangana)
Income-Tax Officer, A-Ward, ... vs B. Appa Rao on 23 January, 1987
Equivalent citations: [1987]166ITR543(AP)
JUDGMENT
1. The Income-tax Officer, A-Ward, Visakhapatnam, filed a suit, O. S. No. 324 of 10, 81, on the file of the Second Additional Subordinate Judge, Visakhapatnam, to set aside the order dated September 30, 1980, made in O. P, No. 139 of 1980-81 by the Tax Recovery Officer, Visakhapatnam. The plaintiff's case is that the adoptions and the wills set up by the defendants and accepted by the Tax Recovery Officer, Visakhapatnam, are not correct. On the basis of the pleadings, the following issues Nos. 2 to 5 have been framed :
"(2) Whether the first defendant's adoption to late B. Guruvulu is true, valid and binding ?
(3) Whether the adoption of late B. Appa Rao to late B. Guruvulu is true, valid and binding?
(4) Whether the will dated March 18, 1976, is true, valid and binding?
(5) Whether the will dated February 16, 1962, is true, valid and binding ?"
2. Before the commencement of the trial, the defendants filed I. A. No. 7 of 1985 under Order 14, rule 5, Civil Procedure Code, seeking amendment of issues. The amendment sought for is to introduce the word "not" in all the issue Nos. 2 to 5 so as to case the burden of proof on the plaintiff. The learned Subordinate Judges, by taking into consideration the decisions in Asoke Chandra Mazumdar v. Chota Nagpur Banking Association Ltd. AIR 1948 Pat 247 and Smt. Khabirannessa Bibi v. Sudhamoy Bose, , came to the conclusion that it is the plaintiff that has to prove the case that has been set up by him as the plaintiff wants to set aside the order passed by the Tax Recovery Officer wherein the has accepted the two adoptions and the wills set up by the parties. The wills are dated March 18, 1976, and February 16, 1962, and the factum of adoption of the first defendant and late B. Appa Rao by late B. Guruvulu are not true and valid is on the plaintiff to prove. The I. A. No. 7 of 1985 was allowed, by casting the burden of proof on the plaintiff. The respondent in I. A. No. 7 of 1985 who is the plaintiff in the main suit, filed the present revision petition.
3. It is contended that the defendants have set up the two wills and the adoptions and it is they that are having full knowledge and the defendants are the persons who have to prove the wills set up by them as they filed claim petitions for raising attachments to the extent of 5/6ths share which admittedly belonged to late Guruvulu.
4. The plaint schedule property is admittedly the absolute property of Bora Guruvulu who is a partner of Visakha Gowda Association. He died on May, 15, 1977. The second defendant is the daughter of one B. Appa Rao. The defendants are closely related to late Guruvulu. The Visakha Gowda Association fell in arrears of income-tax to the tune of Rs. 12,62,921 including penalties for the two assessment Years 1971-72 and 1972-73. When the Income-tax Department proceeded to attach the property, a claim petition has been filed to lift the attachment to the extent of 5/6ths share. It was found by the Tax Recovery Office that the first and the second defendants are entitled to 1/6th share each and the third defendant is entitled to half share and the Tax Recovery Officer confirmed the attachment to the extent of only 1/6th share.
5. Now, the crucial point that has to be determined is whether in a case where a claim petition is filed and allowed by the Tax Recovery Officer, under rule 11 (6) of Part I of Schedule II to the Income-tax Act, 1961, the burden of proof completely rests on the plaintiff who filed a suit to set aside that order. The two ruling that have been relied upon by the lower court relate to benami transactions. The proof in a case of the benami transactions is entirely different from that in a case where the adoptions and the wills have to be proved. Rule 11 (6) is as follows :
"Where a claim or an objections is preferred, the party against whom an order is made many institute a suit in a civil court to establish the right which he claims to the property in dispute; but, subject to the result of such suit (if any), the order of the Tax Receiver Officer shall be conclusive."
6. The language employed in rule 11 (6) is in pair materia with the old rule 63 of Order 21, Civil Procedure Code. In this context, we have to consider the effect of the enquiry that has been made under Order 21, rule 58, Civil Procedure Code, and the effect of the suit under Order 21, rule 63, Civil Procedure Code. The scope of the enquiry under Order 21, rule 58, Civil Procedure Code, is a limited one confined to the question of possession. A suit under Order 21, rule 63, Civil Procedure Code, is concerned not only with possession but also with title. The object of the Legislature in prescribing a suit by way of an appeal is to give to the parties an opportunity of placing their respective cases fully before the court because a summary investigation might not furnish sufficient material for a decision by an appellate court. In other words, the object of the suit is to establish the right which has been negatived by the order on the claim petition and is in substance, to set it aside. The order passed on the claim petition is subject to the result of that suit filed by the successful party under Order 21, rule 63, Civil Procedure Code.
7. In the present case, when the claimant claiming possession on the basis of adoptions and the wills disputes the attachment, the scope of the suit under rule 11 (6) is not only to determine whether the wills and the adoption are correct but also to establish that the property belongs to the person who claim it. The plaintiff has to prove that he has got a right to attach the property for the purposes of selling the right, title and interest of the judgment-debtor. We cannot expect the Income-tax Officer plaintiff to adduce negative evidence. The Income-tax Officer has neither knowledge nor information about the factum of adoptions. Once the party filed a petition and in a summary enquiry, though it is not necessary to find out the factum of the possession that has been decided by the Tax Recovery Officer, it is incumbent on the person to prove the factum of the adoption and the execution of the wills who has set up those pleas. The general plea that the person who has approached the court has to prove cannot be accepted. The finding given in a summary proceeding cannot be taken to cast the burden of proof on the other side who has no knowledge about the factum of adoption or the executive of the wills. It is the defendants that have set up the adoption and the wills and it is for them to prove and their claim about possession and title has to be established.
8. The scope of proceedings under Order 21, rules 58 and 63, has been considered in Smt. Tarubala Saha v. Nath Bank Ltd. [1972] 42 Comp Cas 588 (Cal); [1972] Tax LR 1918 (Cal), after relying upon the decision in Kalyan Peoples' Co-operative Bank Ltd. v. Dulhanbibi Aqual Aminsaheb Patil, . It has been observed as follows (1972 Tax LR para 18 at page 1922) :
"Before we proceed any further, it is relevant to enquiry into the respective scope of proceedings under Order 21, rule 58 and Order 21, rule 63 of the Code. The scope of an enquiry under Order 21, rule 58, is a limited one. It is confined to the question of possession only. But a suit under Order 21, rule 63 is concerned not only with the question of possession but also with the question of title. In other words, the scope of the suit is different from and wider than that of an investigation under Order 21, rule 58. In fact, the order made in an investigation under Order 21, rule 58, constitutes the cause of action for a suit under Order 21, rule 63."
9. In Ganpati Ram Bhande v. Baliram Ragunath Jadhav, , it has been observed as follows with regard to the procedure of investigation under Order 21, rule 58, Civil Procedure Code (at page 160) :
"It requires to be emphasised that the direction of the investigation, which the court has to carry out, points to possession being the criteria. It is, of course, possible that in the course of such an investigation as to who is in possession of the property subjected to attachment, the question of some legal right or interest or title may also arise and if such legal right affects the determination of the question as to who is the real person in possession in fact or in law, then such a legal right or interest will naturally have to be taken into account. But it is also settled law that complicated questions as to title are not to be gone ITO under the summary procedure of the investigation of the investigation under Order XXI, rule 58."
10. Learned Counsel for the respondent relied upon Paras Nath Thakur v. Smt. Mohani Dasi, AIR 1959 SC 1204, and contended that it is on the plaintiff to prove that the will is a sham and a fictitious one. The proposition that has been laid down in that case cannot be disputed, but there it was a question of proof of the trust deed and the declaration sought for was that the documents executed and registered was a fictitious transactions. But here the wills and adoptions have been set up and the mode of proof is entirely different and when the mode of proof is entirely different, it is not desirable to take into conservation the decision that have been relied upon with regard to benami transactions. The lower could was not justified in taking into consideration the ruling relating to benami transactions. I find that the reasons given by the lower court are not correct and the finding that this been given in a summary proceedings by the Tax Recovery Officer cannot be deemed to be final as the rule itself contemplated filing of a suit. The defendants have to let in evidence which is within their exclusive knowledge. The issues that have been originally framed are correct and the casting of the burden of proof on the defendants so far as issues Nos. 2 to 5 concerned is just.
11. In the result, the order of the lower courts is set aside. The revisions is allowed. No order as to costs.