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TMI Blog2011 (2) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... stance of the beneficiaries, then each of them is beneficiary of the one-third undivided share in the attached properties. If only two persons having the two-third share are challenging the order and the third person having one-third share is not challenging the impugned order or he is not even before the court as party respondent, then the impugned order becomes final and conclusive so far as the 1/3rd interest of the third beneficiary (Mr. Gagan Sharma) is concerned. In this scenario, in our considered opinion, this petition cannot be entertained at the instance of only two joint beneficiaries, especially, in the absence of the third joint beneficiary. - WP NO 1770/10 - - - Dated:- 4-2-2011 - DAGA V. C., SAVANT R. M., JJ. Judgment: 1. This petition, filed under article 226 of the Constitution of India, is directed against the certificate dated September 13, 2000 issued by respondent No. 1 directing respondent No. 2 to recover arrears of tax as due and recoverable from the deceased father of the petitioners followed by the order of attachment dated March 5, 2003 together with the pro-hibitory order dated September 11, 2003 and notice dated November 5, 2009 for se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other and mother have not acquired any assets from the estate of the deceased and that whatever assets they have are owned by them in their individual capacity acquired from their own sources. 6. It appears that respondent No. 2, on March 5, 2003, proceeded to issue order of attachment of flats owned by M/s. Ekta Trust. The said attachment was objected to by the petitioners by writing letter dated March 19, 2003 explaining therein the facts of the matter and stating that they owned the assets independently and that they had not inherited the same from the estate of the late H. N. Sharma. 7. It appears that respondent No. 2 issued prohibitory order dated September 11, 2003 with respect to shares owned by the petitioners and their brother and mother. 8. Being aggrieved by the said action of respondent No. 2, the petitioners filed a petition before respondent No. 3 for vacating and lifting the attachment order on the flats and the prohibitory order on the shares owned by the petitioners. The said petition was heard by respondent No. 3, who, vide its order dated December 18, 2008, decided the petition holding it to be without any merit. The petitioners claim to have filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ami transactions of the late H. N. Sharma. Respondent No. 2, thus, rejected all the contentions raised by the petitioners. Now, the petitioners not satisfied with the said order have invoked the writ jurisdiction of this court to challenge the various actions of the Department as mentioned in the opening part of this order.Rival submissions 13. Mr. Dastoor, learned senior counsel appearing for the petitioners urged that the late H. N. Sharma died intestate. He had not left any assets to the knowledge of his legal heirs and that the recovery certificate was issued by respondent No. 1 seeking recovery from the legal heirs of the deceased without ascertaining whether or not the legal heirs inherited any assets from the deceased though it was incumbent on his part to ascertain before issuing such notice. 14. Mr. Dastoor further submitted that the actions of respondents Nos. 1 and 2 are in contravention of sub-sections (4) and (5) of section 159 of the Act, which provides that a legal heir is liable to pay out of the estate to the extent the estate is capable of meeting that charge. He further submitted that the two flats and the shares of Hotel Horizon Pvt. Ltd. are held by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty was held benami by the petitioners. He also placed reliance on the judgment of this court in the case of Gangadhar Vishwanath Ranade v. TRO (No. 2) [1989] 177 ITR 176 (Bom) affirmed by the apex court in the case of TRO v. Gangadhar Viswanath Ranade (Decd.) [1998] 234 ITR 188 (SC). 18. Per contra, Mr. Choudhary, learned counsel appearing for the Revenue urged that the question whether at the time of service of notice of attach-ment the petitioners were not in possession of the property being a disputed question of fact cannot be gone into in the writ jurisdiction of this court. In his submission, rule 11(6) of the Second Schedule to the Act provides for an alternative remedy as such this petition should not be enter-tained. He placed reliance on the judgment of a Division Bench of this court in the case of Emar Hotels and Investments P. Ltd. v. TRO [2007] 288 ITR 308 (Bom) and that of the Calcutta High Court in the case of Munir Ahmed v. Union of India [2002] 256 ITR 492 (Cal) in support of his submission. 19. Mr. Choudhary, in the oral submission urged that according to the petitioners themselves, the attached properties are owned by M/s. Ekta Trust formed for the ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary parties and placed reliance on the judgment in the case of Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335. He further submits that at any rate no such objection was raised in the reply to the petition and that the judgments relied upon by the Department are of no consequence. He, thus, submits that this is a fit case for entertaining the writ petition at the instance of the present petitioners only. 21. Both the advocates canvassed their submissions on the merits of the matter in support of their rival contentions, which we do not propose to recapitulate for the view taken.Consideration 22. Having heard learned counsel for the rival parties, at the outset, two preliminary issues sought to be raised by the Revenue need to be considered. 23. The second objection taken up for consideration first relates to the non-joinder of the necessary party. It is not in dispute that the property is owned by M/s. Ekta Trust. The said trust is neither the petitioner nor arrayed as party respondent. The said title holder of the attached property is not before the court. The said trust has neither raised any objection to the attachment nor challenged the action of the Department. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 28. In Bachchu Lal v. Obi Ullah [1885] ILR 11 Cal 338, the vice president of a trust filed a suit. It was held that the suit was not maintainable because the general rule is that if several persons have a joint right of action, then all must be joined. 29. In Vedakannu Nadar v. Nanguneri Taluk Singikulam Annadana Chat-ram, AIR 1938 Mad 982, co-trustees as such form, as it were, one trustee. The office of the trustee being thus a joint one the duties of the office must be performed jointly. They must exercise the powers of the office in their joint capacity. The principle behind this law is best stated by the Rajasthan High Court in Ramdas Trust v. Damodardas [1967] Raj LW 273. "A trust is not a juristic person. 'It is the trustees who are the owners of the trust property, . . . The author of the trust reposes or declares his confidence in the trustees and they accept it. By the very nature of this relationship, the subject-matter of the trust, which is called the trust property, is transferred to the joint ownership of the trustees and it does not belong to any one of them singly." (empha-sis supplied) 30. In Chhatra Kumari Devi v. Mohan Bikram Shah, AIR 1931 PC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds abated as against, all the respondents." 34. The aforesaid view is followed by the Division Bench of this court in Sheela Wd/o. Vijay Choudhary v. Central Bank of India [1998] 4 All MR 173 wherein the question involved was whether the appeal abated against all the defendants after deleting the name of the legal heir of the original respondent No. 2 during the pendency of the appeal. The court held that when the decree is single and indivisible, there cannot be inconsistent decrees as against the deceased respondents and the contesting surviving respondents. In other words, there cannot two inconsistent orders in one litigation. The said view is based on the judgment of the apex court in the case of Babu Sukhram Singh v. Ram Dular Singh, AIR 1973 SC 204, to reiterate the very same contentions. The ratio is that there cannot be two inconsistent decrees in one litigation. 35. Be that as it may, even if it is assumed that the writ petition was maintainable at the instance of the beneficiaries, then each of them is beneficiary of the one-third undivided share in the attached properties. If only two persons having the two-third share are challenging the order and the third per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy ; there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed. 40. In this context, it is also useful to refer the following decisions :In Punjab National Bank v. O. C. Krishnan [2001] 107 Comp Cas 20 (SC) ; [2001] 6 SCC 569 the apex court held as under (page 21) : "The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under section 20 and this fast track procedure can-not be allowed to be derailed either by taking recourse to proceedings under articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act can-not expressly oust the jurisdiction of the court under articles 226 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to them in their own right was directly violated by the ultra vires the order of the Tax Recovery Officer. Secondly, the foundation of this judgment is based on the text of original sub-clause (3) of article 226 of the Constitution of India. Subsequent to the judgment delivered by the Gujarat High Court, article 226 was amended and the original sub-clause (3) thereof was deleted and substituted with the present sub-clause (3) by the Constitution (Forty-fourth Amendment) Act, 1978 with effect from August 1, 1979. In this view of the matter, the reliance placed on the said judgment in Shardaben Jayantilal Shah [1978] 112 ITR 156 (Guj) is misplaced. Even otherwise, suit may be a common law remedy but once it becomes a part of the statute under which the order is passed it partakes of the character of statutory alternative remedy provided by the statute. 43. It is no doubt true that existence of alternative remedy is not generally a bar, but when the case involves disputed questions of fact warranting appreciation of evidence, this court is expected not to enter into that territory. 44. On the above canvass, if the alternative remedy is available to the petitioners, we do not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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