Ker HC | Recovery proceedings in a co-owned property can be initiated only against defaulter’s share in such property

Kerala High Court: Shaji P. Chaly, J. dismissed a petition challenging initiation of recovery proceedings against the share of the defaulter in a co-owned property.

Petitioner and her husband were in joint possession of a property in Unnikkulam village. Petitioner’s husband had a payment of around Rs 44 lakhs due to the 4th respondent – Bharat Sanchar Nigam Ltd. (BSNL). The telecom company initiated revenue recovery proceedings against him. Case of the petitioner was that BSNL was proceeding against their co-owned property; but since there was no liability upon the petitioner, therefore, attachment of the property held by the petitioner in co-ownership with her husband could not be made by BSNL.

BSNL filed a counter affidavit stating that it was proceeding against the share of the property of the petitioner’s husband and that it had no intention to proceed against the share of property held by petitioner.

The Court opined that as per Section 47 of the Transfer of Property Act, 1882 proceedings can be initiated against the share of the property of defaulter since the respective sharers are entitled to transfer their shares without specifying that the transfer is to take effect on any particular share of the transferer. Therefore the contention advanced by the petitioner that a co-ownership property cannot be sold without effecting partition could not be sustained under law.

In view of the above, the petition was disposed of directing the respondents not to proceed against the share of property held by the petitioner in co-ownership with her husband if she has no liability against the proceedings initiated by 4th respondent. The property in co-ownership held by the husband was allowed to be proceeded with by the respondents.[Shakeela C.K. v. Tahsildar, Thamarassery Taluk Office, 2019 SCC OnLine Ker 1145, decided on 25-03-2019]

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