Laxmi Vasanth w/o K. Sreekanth Padmanabhan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 20TH DAY OF SEPTEMBER 2016/29TH BHADRA, 1938** ## **WP(C).No. 5783 of 2014 (W) ---------------------------** ## **PETITIONER(S): ----------------------** ## **LAXMI VASANTH W/O.K. SREEKANTH PADMANABHAN, AGED 47 YEARS, RESIDING AT VASANTH VIHAR, KOCHUPILAMOODU, KOLLAM.** **BY ADVS.SRI.R.S.KALKURA SMT.R.BINDU SRI.M.S.KALESH SRI.HARISH GOPINATH SMT.M.K.LEELAKUMARI SRI.JOHNSON JOSE PANJIKKARAN SRI.SANIL KUNJACHAN SRI.K.KURIAN KOSHY** **RESPONDENT(S): -------------------------** **1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695 001** ## **2. THE DISTRICT COLLECTOR** - **CIVIL STATION, KOLLAM - 691 013.** **3. REVENUE RECOVERY THAHSILDAR, KOLLAM, NEAR ASRAMAM, KOLLAM -691 002.** **4. THE TAHSILDAR** **KOLLAM DISTRICT, CIVIL STATION, KOLLAM - 691 013.** **5. THE VILLAGE OFFICER MUNDAKKAL VILLAGE OFFICE, MUNDAKKAL, KOLLAM - 691010** **R1-5 BY ADV. GOVERNMENT PLEADER SRI. V.K SHAMSUDHEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-09-2016, ALONG WITH WP(C) NO.32715 OF 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 5783 of 2014 (W) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **------------------------------------EXHIBIT-P1-TRUE COPY OF THE GIFT DEED NO. 2906 DATED 06/08/1982.** **EXHIBIT-P2-TRUE COPY OF THE GIFT DEED NO. 2907 DATED 06/08/1982** **EXHIBIT-P3-TRUE COPY OFTHE SETTLEMENT DEED NO. 6389 DATED 14/11/1973** **EXHIBIT-P4-TRUE COPY OF THE SALE DEED NO. 1858 OF 1988 DATED 08/06/1988** **EXHIBIT-P5-TRUE COPY OF THE JUDGMENT IN O.S 35 OF 1999 ON THE FILE OF THE MUNSIFF COURT, KOLLAM DATED 29/06/2004.** **EXHIBIT-P6-TRUE COPY OF THE JUDGMENT IN A.S 153 OF 2004 DATED 10/09/2009 ON THE FILE OF THE 2ND ADDITIONAL DISTRICT JUDGE, KOLLAM.** **EXHIBIT-P7-TRUE COPY OF THE COMMUNICATION DATED 14/08/2012 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** **EXHIBIT-P8-TRUE COPY OF THE REPRESENTATION DATED 15/01/2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS:** **---------------------------------------** **ANNEXURE R3(a): A TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.19555/2009 DATED 19.03.2012** **ANNEXURE R3(b): A TRUE COPY OF THE ORDER DATED 05.11.2012 PASSED BY THE DISTRICT COLLECTOR** **ANNEXURE R3(c): A TRUE COPY OF THE JUDGMENT DATED 29.01.2014 IN W.A 481/2013** ## **//TRUE COPY//** **PA TO JUDGE** **sab** ## **A.M. SHAFFIQUE, J.** =============== W.P. (C) Nos. 5783 & 32715 of 2014 ======================= Dated this, the 20[th] day of September, 2016 ## **J U D G M E N T** These writ petitions are filed challenging the SARFAESI proceedings being taken against the petitioner for recovery of sales tax dues from a partnership firm M/s.Malabar Cashewnuts and Allied Products. According to the petitioner, she was a minor who was admitted to the benefits of the partnership firm for a certain period and thereafter she has been excluded from the partnership. However, her individual properties are being attached and they are proceeded against for recovery of sales tax dues of the firm. It is contended that she was not a partner of the firm in order to become jointly and severally liable for the amount due to the firm. 2. Another person Sri.Rajmohan Pillai had approached this Court by filing WP(C) No.9021/2015 challenging the very same proceedings initiated against him on the basis that he was a partner at the time when the sales tax amount had become due and after considering the rival contentions, this Court, by judgment dated 29/6/2016, have quashed the proceedings against the petitioner. In ## W.P(C) Nos.5783 & 32715/14 ## -:2:- that case also, steps were taken on the basis that petitioner was admitted to the benefits of the partnership and there was nothing to show that he retired from the firm. It was found from the materials placed on record that the said petitioner ceased to be a person admitted to the benefits of the partnership firm w.e.f. 1/1/1976. Paras 10 to 12 of the judgment are relevant, which read as under:- _“10. The above statutory provision clearly indicates that the minor is not a partner of the firm. Section 25 indicates liability of the firm for acts of firm. This provision will not apply since the minor does not become a partner of the firm. The only question is whether the petitioner, who was a minor, had issued notice in terms of 30(5) of the Act. Here the materials produced on record clearly shows that he had ceased to be a person admitted to benefits of partnership with effect from 01/01/1976. In such an event, the question of Sections 30(5) or 30(7) does not arise at all. Section 30(7) applies only when an option is exercised on becoming a partner, in terms of Section 30(5). Sections 30(5) and (7) reads as under:_ _30(5): At any time within six months of his attaining majority, or of his obtaining knowledge that he had_ ## W.P(C) Nos.5783 & 32715/14 ## -:3:- _been admitted to the benefits of partnership, whichever date is later, such person may give public notice that he has elected to become or that he has elected not to become a partner in the firm, and such notice shall determine his position as regards the firm;_ _Provided that, if he fails to give such notice, he shall become a partner in the firm on the expiry of the said six months.”_ _“30(7): where such person becomes a partner,-_ _(a) his rights and liabilities as a minor continue up to the date on which he becomes a partner, but he also becomes personally liable to third parties for all acts of the firm done since he was admitted to the benefits of partnership, and_ _(b) his share in the property and profits of the firm shall be the share to which he was entitled as a minor. An eventuality in terms of section 30(5) has not arisen, since the petitioner was already removed from the benefits of the partnership with effect from 01/01/1976._ _11. Section 35 deals with liability of estate of a deceased partner. That is a provision between the partners and has no bearing to the facts of this case. Section 35 reads as under:_ _“_ _**35. Liability of estate of deceased partner** .- Where under a contract between the_ ## W.P(C) Nos.5783 & 32715/14 ## -:4:- _partners the firm is not dissolved by the death of a partner, the estate of a deceased partner is not liable for any act of the firm done after his death.” 12. Unless it is found on evidence, that the petitioner had become a partner of the firm subsequent to 01/01/1976, there cannot be any liability mulcted on the petitioner, as a partner. Yet another eventuality is whether the petitioner had succeeded to the estate of any deceased partner, who is jointly and severally liable to pay the amount. In such an event, there would not be any personal liability, whereas the liability will only be to the extent of properties succeeded from the deceased partner. Such a situation is not mentioned in Ext.P5 order._ _Hence the writ petition is allowed, the demand made against the petitioner as a partner of the firm in terms of Ext.P5 order is set aside. Consequently, Ext.P7 is quashed, however, without prejudice to the right of the revenue authorities to recover the amount due, by any other process._ 3. In the case on hand also, Smt.Laxmi Vasanth contends that she was a minor aged 9 years at the time she was inducted to the partnership and had retired the very next year. 4. WP(C) No.5783/2014 has been filed by the very same -:5:- ## W.P(C) Nos.5783 & 32715/14 ## petitioner seeking the following relief:- _“(a) issue a writ of mandamus or any other appropriate writs, directions or orders directing the respondents 2 to 5 to accept the tax pertaining to the property belonging to the petitioner comprised in 37 cents of property equivalent to 14 ares 94 square meters comprised in Survey No.244 of Eravipuram Village (Resurvey No.145/19) also shown as Block No.145 and to strike out all entries or obliterate all proceedings regarding attachment in respect of sales tax arrears already entered in the revenue records forthwith or within a time limit to be prescribed by this Honourable Court.”_ The respondents refused to accept tax on the ground that the property is liable to be proceeded against for the sales tax dues which was subject matter in WP(C) No.32715/14. 5. Having regard to the fact that the petitioner stands in the very same position of Sri.Rajmohan Pillai, whose case has already been decided as per judgment in _**Rajmohan Pillai v. District Collector**_ (2016 (3) KLT 223), I am of the view that the petitioner is also entitled for the very same relief and accordingly it is declared that the petitioner is not liable for the debts of the W.P(C) Nos.5783 & 32715/14 -:6:- firm on the ground that she was admitted to the benefits of the partnership firm. Accordingly, these writ petitions are allowed. (i) Exts.P11 and P13 in WP(C) No.32715/2014 are set aside. (ii) The revenue authorities are directed to effect mutation of the property of the petitioner as demanded in WP(C) No.5783/14. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Rp22/09/2016 //True Copy// P.S to Judge