# Smt. Geeta Devi v. State of U.P. and others

- **Citation:** (2002) 3 ILRA 766
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-10-10
- **Case number:** Civil Misc. Writ Petition No. 2699 of 2002
- **Bench:** S.K. Sen, C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-geeta-devi-v-state-of-u-p-and-others-39984
- **Pages:** 4

## Headnote

Transfer of Property Act, 1882- Section
55(1) (a)- If the buyer has not taken
ordinary care, he is not entitled to seek
protection- The principle that buyer has
to exercise ordinary care and has to be
vigilant while purchasing property is well
established.

Held in para 8

We are satisfied that no illegality has
been committed by trade tax authority in
attaching the property and issuing the
sale proclamtion. The trade tax dues
were admittedly against Smt. Gayatri
Devi who was owner of the house for
realization of which house has been
attached. The counsel for the petitioner
could not show any provision of law to
justify interference by us in this writ
petition.
Case Law referred:
AIR 1928 Bombay 427
AIR 1962 144

## Text

http://www.allahabadhighcourt.nic.in
766 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
15. In this view of the matter, we
modify the order passed by the learned
Single Judge and direct the Director of
Education (secondary) to consider the
creation and sanction the posts according
to the norms and guide lines issued by the
State Government in the manner indicated
in our judgment. The special appeals are
allowed in part to the extent indicated. If
the posts are sanctioned, the writ
petitioners who are working for long
period shall be absorbed. The impugned
order directing the appellant to pay salary
to the teachers, however, is set aside. In
the event these posts are sanctioned, the
respondent- writ petitioners shall be paid
salary from the date of sanctioning of the
posts.
The
Director
of
Education
(secondary) shall take a decision within
two
months
from
the
date
of
communication of a certified copy of this
order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.10.2002

BEFORE
THE HON'BLE S.K. SEN, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 2699 of 2002

Smt. Geeta Devi

...Petitioner
Versus
State of UP and others ...Resopondents

Counsel for the Petitioner:
Sri O.P. Lohia
Sri S.K. Misra

Counsel for the Respondents:
Sri S.P. Kesarwani
S.C.

Transfer of Property Act, 1882- Section
55(1) (a)- If the buyer has not taken
ordinary care, he is not entitled to seek
protection- The principle that buyer has
to exercise ordinary care and has to be
vigilant while purchasing property is well
established.

Held in para 8

We are satisfied that no illegality has
been committed by trade tax authority in
attaching the property and issuing the
sale proclamtion. The trade tax dues
were admittedly against Smt. Gayatri
Devi who was owner of the house for
realization of which house has been
attached. The counsel for the petitioner
could not show any provision of law to
justify interference by us in this writ
petition.
Case Law referred:
AIR 1928 Bombay 427
AIR 1962 144

(Delivered by Hon'ble S.K. Sen, C.J.)

1. Heard Sri Om Prakash Lohia,
learned counsel for the petitioner and Sri
S.P.
Kesharwani,
learned
standing
counsel.

2. By this writ petition, the
petitioner has prayed for a mandamus
against the respondents that they shall not
attach and auction the property house no.
987, ward no. 13, Katra, Gursain district
Jhansi in pursuant to recovery of arrears
of Sales Tax/Trade Tax in the name of
M/s Gayatri Traders.

3. The facts of the case as given in
the writ petition are: petitioner claims to
be sole owner of property house no. 987,
ward no. 12, Katra Gursain, district Jhansi
and has filed extract of the house
assessment dated 7th September, 2002 for
the period 1st April, 1996 to 31st March,
2001. It is stated that earlier Smt. Gayatri
Devi, who is proprietor of M/s Gayatri
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3 All] Smt. Geeta Devi V. State of U.P. and others
767
Traders, was the owner of house no. 987.
It is stated that attachment and auction
notices have been issued by respondent
no. 2 for house no. 987 copy of which
have been filed as Annexure -3 and 4 to
the writ petition. The aforesaid attachment
notice shows that house has been attached
for realization of trade tax dues from
1993-94 to 1995-96 in consequence of
which house was attached. Annexure-4
further mentions that according to record
of Nagar Palika, house was in the
ownership of Smt. Gayatri Devi prior to
25th March, 1996. Sale proclamation has
also been issued for the aforesaid house.

4. The counsel for the petitioner
contended that petitioner being sole
owner of the property, the house can
neither be attached nor sold. It has been
submitted
that
property
has
been
unnecessarily attached for realization of
trade tax dues whereas the petitioner has
nothing to do with the business of Smt.
Gayatri Devi.

5. We have heard counsel for the
parties and perused the record. It is not
disputed that liability of the trade tax
arrears arose out of dues against Smt.
Gayantri Devi who was proprietor of M/s
Gayatri Traders and was owner of the
house. The petitioner in the writ petition
has claimed herself to be the sole owner
but in whole of the writ petition there is
no mention as to by what mode the
petitioner became owner. No reference of
any sale deed has been mentioned
although during oral submission the
counsel for the petitioner contended that
petitioner purchased the house from Smt.
Gayatri Devi. Even if the petitioner
purchased the house from Smt. Gayatri
Devi she was obliged to make proper
enquiry before the purchase. Section 55
(1) (a) of Transfer of Property Act, 1882
provides for the liabilities and the rights
of seller and buyer. According to Section
55 (1) (a), the Seller is bound to disclose
the buyer any material defect in the
property or in the seller's title, which the
buyer could not with ordinary care
discover. The provision clearly provides
that the buyer is to also to take ordinary
care to discover material defect in the
property or in the seller's title. If the
buyer has not taken ordinary care, he is
not entitled to seek protection. The
principle that buyer has to exercise
ordinary care and has to be vigilant while
purchasing property is well established
and has been recognized in several
decisions. In A.I.R. 1928 Bombay 427,
Harilal
Dalsukhram
Sahiba
vs.
Mulchand Asharam, it was held by the
Division Bench of Bombay High Court.

"It is quite clear that, if the plaintiff
could with ordinary care have discovered
that there was this defect of title, then he
cannot plead that there was a failure on
the part of the defendant to comply with
the obligation laid down in S. 55(1)(a).
There has been considerable argument as
to whether the plaintiff knew, or could
have discovered, that there was such a
defect. The subordinate judge has held
that he could have discovered the defect,
if he had sufficiently investigated the title.
Now that in regard to agricultural lands
the Record-of -Rights affords such an
easy means of investigating questions of
title about particular pieces of land, there
is dearly not the some difficulty that there
is clearly not the same difficulty that there
used to be about discovering defects of
title with reasonable care. Admittedly, the
plaintiff did see the mutation entry Ex. 44,
which as regards plot no. 108-1 showed
the defendant as the occupant under his
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768 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
sale deed of August 1918, but the duty of
a prudent purchaser does not rest with
merely seeing a mutation entry if it does
not cover the whole of the land he is
purchasing. Moreover the plaintiff is a
person of intelligence, who has been a
member of the Bombay Legislative
Council. I think it would be absurd for
this Court to say that in the circumstances
he ought not to have ascertained what
were the entries in the Record-of-Rights
about the two pieces of land and had he
done so he would have seen the entry
about no. 108-2 and the mortagagees in
possession. That would have put him on
enquiry as to what these mortagagee
rights were. It may be that the defendant
had not given him his title deeds. But that
does not affect this particular point. With
ordinary care he should have pursued his
investigation beyond the point he says he
did. Both under S. 55 (1) (a) and the
definition of notice in S. 2 of the Act there
was a want of care or a willful abstention
from an enquiry or search which the
plaintiff ought to have made, so that, in
my opinion, the plaintiff is not entitled to
say that there has been fraud on the part
of the defendant in regard to this matter."

6. The Madhya Pradesh High Court
in AIR 1962 144, Ganpat Ranglal
Mahajan
v.
Mangilal
Hiralal
and
another has also laid down the same
proposition in paragraph 5 of the
judgement which is extracted below:

"(5) So far as the applicability of
Sec. 55 (1) (a) of the Transfer of Property
Act is concerned, the contention of the
applicant appears to be correct. Although
there is an express recital, in the sale
deed that the property is free from
mortagage etc. this is not enough. To
attract the provisions of S. 55(1) (a) two
conditions are necessary; firstly that the
buyer should not be aware of the
existence of the defect in title, and
secondly, that he could not with ordinary
care discover the defect. So far as the first
condition is concerned, although the
applicant vendor in his written statement
pleaded that the buyer was aware of the
existence of the mortgage, there is no
proof of this fact and it must be assumed
that the buyer was not aware of the
defect. However, the second condition is
not satisfied inasmuch as the buyer could
have known about the encumbrance by
making inquiries in the office of the
Registrar. Section 55 (1) (a) of the
Transfer of Property Act has, therefore,
no application to the present case."

7. From the facts brought on the
record, it appears that trade tax dues relate
to the period when Smt. Gayatri Devi was
owner of the house. The petitioner cannot
take any benefit of transfer in the property
in view of the specific provisions of
section 34 of UP Trade Tax Act. Section
34 of the Trade Tax Act is extracted
below:

"34. Transfer to defraud revenue void.
(1) where, during the pendency of any
proceeding under this Act, any person
liable to pay any tax or other dues creates
a charge on or transfers, any immovable
property belonging to him in favour of
any other person with the intention of
defrauding any such tax or other dues,
such charge or transfer shall be void as
against any claim in respect of any tax or
other dues payable by such person as a
result of the completion of the said
proceedings.
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3 All] Smt. Geeta Devi V. State of U.P. and others
769
Provided that nothing in this section shall
impair the rights of a transferee in good
faith and consideration.

(2) Nothing in sub- section (1) shall apply
to a charge or transfer in favour of a
banking company as defined in the
Banking Regulation Act, 1949 (Act X of
1949, or any other financial institution
specified by the State Government by
notification in this behalf."

8. We are satisfied that no illegality
has been committed by trade tax authority
in attaching the property and issuing the
sale proclamation. The trade tax dues
were admittedly against smt. Gayantri
Devi who was owner of the house for
realization of which house has been
attached. The counsel for the petitioner
could not show any provision of law to
justify interference by us in this writ
petition. However, he prays that one
month's time should be granted to make
arrangement with the original owner of
the premises in question. We are not in a
position to grant such indulgence. It is
always open to the writ petitioner to
approach the original owner and the
officials of the State Government praying
for time. It is for the authorities concerned
to consider the prayer. This court cannot
pass any order granting time or issuing
any direction in that regard. In our view
there is no scope for this court to grant
any such indulgence.

9. With the above observation, the
writ petition stands dismissed.
---------