1963 PLP 328 (PTD)

FAIZULLAH KHAN, J.‑This appeal under Clause 10 of the Letters Patent is against the judgment and decree, dated the 10th December 1956, of B. Z. Kaikaus, J. delivered in R. S. A. No. 253 of 1954. The facts giving rise to this appeal, so far as they are not disputed, may be shortly narrated. One Haji Shams ud‑Din, who was possessed of considerable property, on the 2nd January 1931, executed a waqf alanafs wal‑aulad, i.e., the wakif reserved to himself the income of the dedicated property for his life, and after his death, the income was to be enjoyed by his descendants, generation after generation Haji Shams‑ud‑Din appointed himself the first mutawalli, and made declaration in the waqf deed that henceforward his possession of the waqf property was that of mutawalli, Later, on the 27th April 1935, he executed another waqf deed of his property. The object of this deed was to exclude certain waqf property which was included in the earlier deed on the ground that it did not belong to him. There was no material change in the terms and con ditions of waqf in this deed except that there was some amplifica tion of those conditions.

2. Haji Shams‑ud‑Din died on the 24th August 1951 and before his death, the Estate Duty Act of 1950 (hereinafter called the Act) had come into :force on 11th April 1950. A demand of a sum of Rs. 23,712 as estate duty, in respect of the property covered by the waqf deed was made by the Central Board of Revenue from Master Ali Muhammad, son of the deceased, in his capacity as a succeeding mutawalli. Upon this, Master Ali Muhammad filed suit No. 119 on the 10th June 1953 in the Court of Senior Sub‑Judge, Sialkot, against the Federation of Pakistan, for a declaration that the waqf property was not liable to estate duty at all. He also prayed for an injunction restrain ing the defendant from levying the alleged duty.

3. The gravemen of the plaintiff's claim before the trial Court was that the property being waqf, could not be termed to have passed on the death of the waqif within the meaning of section 4 of the Act.

4. On behalf of the Federation, while it was conceded that the waqf property itself did not pass on the death of waqif but the income of the‑ property did pass on the death of the waqif, it was contended that the case fell under the purview of second proviso to section 10 of the Act which enacts that where in a waqf deed the waqif retains any benefit for himself, then to the extent of the benefit the property shall be deemed to pass on his death. The trial Court, on the pleadings of the parties, framed ' the following issues :‑ (1) Is the property in dispute exempt from the operation of Estate Duty Act of 1950? (2) Relief.

5. The trial Court decreed the suit holding that the case did not come under the mischief of second proviso to section 10 and as such even the income of the waqf property was not liable to estate duty. On appeal, the learned District Judge threw out the plaintiff's suit in its entirety, notwithstanding the fact that it was conceded before the trial Court that the corpus of the waqf property was exempt but only the income of the property was liable to be taxed.

6. The plaintiff took second appeal and B. Z. Kaikaus, J. by his judgment, dated the 10th December, 1956, partly accepted the appeal and granted a decree that the corpus of the property in dispute was not liable to estate duty but the income was liable to such duty. Parties were, however, left to bear their own costs in all the Courts.

7. Sheikh Abdul Haq, Advocate, on behalf of the respon dent, took a preliminary objection on the strength of section 69 of the Act and argued that the jurisdiction of the Civil Courts was barred and that "nothing done or in good faith purporting to be done by the Board under this Act shall be called in question in any Court." It was argued that the Act was a complete code by itself and any redress sought by the account able person against the order of the Board challenging his accountability or the correctness of the account could be found within the four corners of that Act by moving, the High Court as contemplated by section 55 (4) of the Act. The learned counsel supported his argument by the .decision of their Lordships of the Privy Council in Raleigh Investment Co., Ltd. v. Governor‑General‑in‑Council (PLD 1947PC 19).

8. In reply Mr. M. Z. Kitchlew, learned counsel for the appellant, made two contentions‑(I) that the objection regard ing the bar of the civil suit as contemplated by section 69 of Act was very much belated having been raised for the first time before this Court, and (2) that the levy of the estate duty, was not a proper levy "made under the Act" if the levy was inaccurate in point of law. In other words, it was argued that in, cases where levy of estate duty was made by misconstruction of any provision of the Act, the levy of the duty could be called into question in a Civil Court.

9. As the decision of the preliminary objection entirely hinges on the construction of section 69, it would be convenient to read that section. The section reads as follows :-- "Save as provided in this Act, nothing done or in good faith purporting to be done by the Board under this Act shall be called in question in any Court."

10. It would be plain from reading the language of section 69 that the jurisdiction of Courts is specifically barred to question anything done or in good faith purporting to be done by the Board. The levy of estate duty is clearly an act done by the Board "under this Act" and as such it cannot be called into question. It is important to observe here that section 55 specifically provides the procedure and forum for, decision of, the dispute in regard to "accountability or the correctness of the account", by the Board by moving the High Court, and under subsection (8) a right of appeal is provided from any judgment of the High Court delivered on a motion made under this section in any case which the High Court certifies for appeal.

11. We need not labour the point to show that section 69 of the Act bars the jurisdiction of Civil Courts to call into question the decision of the Board made under the Act as it clearly appears to us that both the points taken by the learned counsel for the appellant in reply to the preliminary objection are completely covered by Raleigh Investment Co. Ltd. v. Governor‑General‑in‑Council.

12. With regard to the question whether an objection as to the jurisdiction arising under section 69 of the Act can be raised for the first time in the Letters Patent Appeal, we may quote the following terse observations of their Lordships at page 334 :‑ "In the proceedings before the Federal Court the point as to jurisdiction arising under section 67 of the Act of 1922 was not taken. But jurisdiction cannot be given by consent. It is gars judicis to take jurisdiction into consideration and the section has to be considered." We may also profitably quote the observations of their Lordships of the Privy Council in Ramlal Hargopal v. Kishan Chand (I L R (1924) 51 Cal. 361), when precisely the same question, namely, plea of want of jurisdiction, was raised for the first time before their Lordships and at page 372, accepting the plea, it was observed :‑ "If it was any other point except a point of jurisdiction, their‑ Lordships would pay no attention to it but they are bound to take notice of an objection to the jurisdiction, however late in the day it may be raised, if it be that on the facts admitted or proved it is manifest that there is a defect of jurisdiction ; and their Lordships find this defect in the present case."

13. Having held that the objection in regard to the lack of jurisdiction can be raised at any stage, we address ourselves to the question whether the rule enunciated in Raleigh Investment Co. Ltd. v. Governor‑General‑in‑Council is apposite or at par with the facts of the instant case. At page 337 their Lordships of the Privy Council, while repelling the argument that an assessment which was wrong in point of law could be questioned, observed‑

"In their Lordships' view the construction of the section is clear. Under the Act the Income‑tax Officer is charged with the duty of assessing the total income of the assessee. The obvious meaning, and in their Lordships' opinion, the correct meaning, of the phrase `assessment made under this Act' is an assessment finding its origin in any activity of the assessing officer acting as such. The circumstance that the assessing officer has taken into account an ultra vires provision of the Act is in this view immaterial in determining whether the assessment is `made under this Act'. The phrase describes the province of the assessment : it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test." At page 338 in the last but one paragraph their Lordships while summing up the discussion in regard to non‑maintain ability of civil suit under section 67 of the Income‑tax Act, observed :‑-- "In conclusion, their Lordships would observe that the scheme of the Act is to set up a particular machinery by the use of which alone total income assessable for income‑tax is to be ascertained. The Income‑tax exigible is determined by reference to the total income so ascertained, and only by reference to such total income. Under the Act (section 45) there arises a duty to pay the amount of tax demanded on the basis of that assessment of total income. Jurisdiction to question the assessment otherwise than by use of the machi nery expressly provided by the Act would appear to be inconsistent with the statutory obligation to pay arising by virtue of the assessment. The only doubt, indeed in. their Lord ships' mind, is whether an express provision was necessary in order to exclude jurisdiction in a Civil Court to set aside or modify an assessment." (Italics are ours). The concluding remarks of their Lordships of the, Privy Council to the effect "whether an express provision was necessary in order to exclude jurisdiction in a Civil Court to set aside or modify an assessment", are significant. It seems clear that their Lordships were of the opinion that even in the absence of section 67 of the Income‑tax Act, a bar against the jurisdiction of Civil Courts in respect of matters covered by the Income‑tax Act could be spelt out from the scheme of that Act taken as a whole. The language of section 69 of the Estate Duty Act with which we are concerned is different from the language of section 67 of the Income‑tax Act with which their Lordships were concerned. Even if a distinction was sought to be drawn on the basis of the difference of language between these two provisions, the fact that their Lordships of the Privy Council were willing to hold that there was a bar against the jurisdiction of Civil Courts, even without a specific provision to that effect, would be a sufficient answer to that argument. As it is, however, the difference of language between the two provisions is of no consequence in relation to the point under consideration. If at all it has any such consequence, it makes the ouster of jurisdic tion of the Civil Courts clearer in the case of section 69 of the Estate Duty Act.

14. For all the foregoing reasons, we hold that the Act is a complete code by itself and any grievance in regard to levy of estate duty can be remedied within the four corners of that code as envisaged by section 55 of the Act, and a civil suit to challenge levy of estate duty is specifically barred by section

69. In the result, the appeal is dismissed with costs in this Court. Appeal dismissed.