1968 PLP 660 (PTD)

The next question is whether the reassessment orders made pursuant to the notices issued under section 34 of the Act were ‑void on the ground that they did not comply with the provisions of subsections (1) and (2) of section 24‑B of the Act. Under subsection (1) of section 24‑B of the Act the executor or administrator or other legal representative is liable to pay out of the estate of the deceased the tax payable by him or any tax which would have been payable by him under the Act if he ha not died. Under the said subsection the liability of the legal representative is limited to the extent to which the estate is capable of meeting the charge. Under subsection (2) thereof, if a person dies before the publication of the notice referred to in subsection (1) of section 22 or before he is served with a notice under subsection (2) of section 22 or section 34, the Income‑tax Officer may serve the said notices on the administrator, executor or other legal representative, of the deceased and proceed to assess the total income of the, deceased as if the said legal representative were the assessee; that is to say, for the purpose of assessment the legal representative would represent the deceased person. Under section 13(2) of General Clauses Act (Central Act X of 1897), words in singular will include their plural also. The expression "legal representative" in section 24‑B of the Act takes in plurality of legal representatives. As pointed out by Mahajan, J., as he then was, in Tirtha Lal. v. Bhusan Moyee Dasi (A I R 1949 F C 195) if there are two or more legal representatives of the deceased person, all must be impleaded to make the representation of the estate complete. The same principle was applied to co‑executors : see Muniyammal v. Third Additional Income‑tax Officer, Salem ((1960) 38 I T R 664) and Vedakannu Nadar v. Nanguneri Taluk Singikulam Annadana Chatram (A I R 1938 Mad. 982). The result is that if a person dies executing a will appointing more than one executor or dies intestate leaving behind him more than one heir the Income‑tax Officer shall proceed to assess the total income of the deceased against all the executors or the legal representatives, as the case may be. The question, therefore, is whether the Income‑tax Officer proceeded to reassess the total income of the deceased against all his legal representatives. Unfortunately in the context of this question neither the affidavits filed by the parties before the High Court nor the material placed before it disclose the crucial facts necessary for giving a definite answer to the said question. It is not disputed that S. P. Sadanandan died executing a will. Under that will three persons were appointed as executors, namely, his widow, Mrs. Suseela Sadanandan, who is the 1st respondent, his eldest son, E. D. Sadanandan, and one Paramasivan, a regis tered accountant and auditor of Kozhikode. The will also shows that S. P. Sadanandan had another minor son, two minor daughters and a minor grandson through another predeceased daughter. Under the will the properties of the deceased vested in the said executors who were directed to administer the estate .as per the terms of the will. It is admitted that the said will was not probated. Under Section 211 of the Indian Succession Act the executor of a deceased person is his legal representative for all purposes and all the properties of the deceased person vest in him as such. By the application of section 13 of the General. Clauses Act, if there are more than one executor of a deceased person, all of them will be his representatives. If so, for the purpose of section 24‑B (2) of the Act, all of them only can represent the estate of the deceased. But as no probate was taken, under section 213(1) of the Indian Succession Act no right as executor can be established in any Court of justice : see Ganshamdoss Narayandoss v. Gulab Bi Bai (A I R 1927 Mad. 1054) and Hem Nolini v Isolyne Sarojbashini (A I R 1962 S C 1471). The effect of the non‑rebate of a will on the status of the executor has been the subject of innumerable decisions in this country. A detailed consideration of the decisions is out of place in the present context. In Williams on Executors and Administrators, vol. I, 14th edition, it is stated at page 58 thus: "Where an executor is appointed by a will, he derives title from the will, and the property of the deceased vests in him from the moment of the testator's death, so that probate is said to have relation to the time of the testator's death. Thus, though he cannot rely on his title in any Court without production of probate, probate is merely operative as the authenticated evidence of the executor's title." The learned author further ‑elaborates the legal position thus at page 64: "But a creditor of a deceased debtor cannot sue a person named as executor in the will unless he has either administered, that is, intermeddled with the estate, or proved the will, and consequently, the seizure and sale of part of the testator's assets, under an execution founded upon a judgment in an action so constituted, was ineffectual to bind the testator's estate." The definition of a legal representative under section 2(11) of the Code of Civil Procedure also runs on the same lines: it means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased. It has been held that one who intermeddles with the estate of a deceased person, even though it may be only with a part thereof, is a legal representative within the meaning of section 2(11) of the Code of Civil Procedure and is liable to the extent of the property taken possession of by him. On the same analogy, it may be held that if all the executors or some of them administered the estate of a deceased without obtaining the probate, all of them or some of them who have ad ministered the estate may be held to be the representatives of the deceased and liable to the extent of the property taken possession of by them. If it had been established that E. D. Sadanandan had alone been managing the entire estate, the Court could have come to the conclusion that he was the legal representative of the deceased and, therefore, represented the estate in the assessment proceedings. But, unfortunately, as we have already indicated, no serious attempt was made by the parties to establish before the High Court by placing before it the necessary material that all or some of the executors, though they did not obtain probate of the will, had intermeddled with the estate wholly or in part. There is also a large body of authority holding that if a party bona fide impleaded one of the legal representatives as represent ing the estate of the deceased party and the said representative represented the estate, the decree obtained therein is binding on the other legal representatives of the deceased. It is unnecessary to survey the wide field of decisions on this aspect of the case, as this Court in a recent decision, in Daya Ram v. Shyam Sundari Civil Appeal No. 360 of 1962, decided on 8th September 1964) (A I R 1965 S C 1049,1054) has summarized the law. Rajagopala Ayyangar, J., speaking for the Court, said thus: "When this provision speaks of `legal representatives' is it the intention of the Legislature that unless each and every one of the legal representatives of the deceased defendants, where these are several, is brought on record there is no proper constitution of the suit or appeal, with the result that the suit or appeal would abate? The almost universal concensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent the estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record." Though this principle was laid down in the context of suits or, appeals, it is one of general application. We do not see why the said principle cannot be invoked in the case of assessment of income from the estate of a deceased person in the hands of his legal representatives. There again no material, was placed before the High Court. The Income‑tax Officer, who filed the affidavits, had no personal knowledge of what had happened at the time of the making of the assessment. Better material could have been placed to enable the Court to come to a conclusion whether the Income‑tax Officer acted bona fide in serving the notices only on E. D. Sadanandan, because he was the executor who intermeddled with the estate and was in actual management thereof. Further, the notices under section 34 of the Act were addres sed to "Late S. P. Sadanandan by his heirs E. D Sadanandan and others. Kozhikode." The record placed before us does not disclose how the proceedings were conducted, who represented the estate and whether the other executors and the legatees expressly accepted the representation or acquiesced therein. Though notice were served only on one of the executors the proceedings might show that the estate was properly represented by E. D. Sadanan dan with the consent, express or implied, of the other executors and heirs. This again is a question of fact to be decided on relevant evidence. Even if the will was ignored, the question whether the Income‑tax Officer acted bona fide and whether the estate was properly and effectively represented by one or other of the legal representatives of the deceased still remains to be considered. Lastly, even if some of the legal representatives were not served, the question arises whether the assessment order made against the estate represented by E. D. Sadanandan would continue to be effective against that part of the estate in his pos session or management: or to put it in other words, what would be the effect of the non‑service of notice on some of the legal representatives on the enforceability of the assessment order against that part of the estate in the possession and management of E. D. Sadanandan. Before us learned counsel on both sides advanced arguments on hypothetical and alternative basis. Except the affidavit filed by the Income‑tax Officer, which is vague to the extreme, and that filed by the respondent, which is equally unhelpful, no material has been placed before us. The records of the Income-tax proceedings on which the, learned judges of the High Court have fully drawn upon are also not available to us. On the scanty material it is impossible to come to any definite conclusion on any of the points posed by us. We, therefore, with some reluctance, set aside the order of the High Court and remand the matter to it for fresh disposal. The parties will have opportunity to file fresh affidavits and to place all the relevant material before the High Court to enable it to come to a definite conclusion on the following points, among others: (1) Whether E. D. Sadanandan was in possession and management of the entire estate of his father and, if so, whether he would be the legal representative of his father within the meaning of section 24‑B of the Income‑tax Act. (2) Even if he intermeddled only with a part of the estate, whether the Income‑tax Officer bona fide treated him a representative of the estate and proceeded to assess the income of the estate in his hands. (3) Whether E. D. Sadanandan, in fact, represented the estate and whether the other executors and representatives expressly or impliedly accepted his representation. (4) Whether the 1st respondent who was not a party to the assessment proceedings could question the enforceability of the final assessment order made against E. D. Sadanandan. We may make it clear that we have not finally expressed .any opinion on questions of law or fact that arise in the case. Any observations that we have made on any point are not intend ed to be our final decision thereon, but only to afford a guide to the High Court to come to its own conclusion thereon. The High Court has liberty to consider all the contentions of the parties without being in any way hampered by our observations. As the appellant was, to a large extent, guilty of laches in the matter, we direct the appellant to pay the costs of the 1st respon dent in this Court. Costs of the High Court will abide the result. Order accordingly.