Chandra Reddy, J.:— These two appeals are against the Judgment of the Subordinate Judge, Kurnool in O.S No. 52 of 1950 and 54 of 1949. The two suite giving rise to these appeals were instituted by the same plaintiffs for the purpose of setting aside some sales. As the subject-matter of the suits was practically the same and the plaintiffs were the same they were tried together and a common judgment was delivered.

2. In O.S No. 52 of 1950 the 1st defendant is the Union of India defendants 2, 3, and 4 the District Collector, Kurnool, Revenue Divisional Officer, Nandyal and the Tahsildar, Nandyal, respectively. The other defendants are the purchasers of various items of property in auction held by the Revenue authorities. The suit was brought for a declaration that the assessment order made by the Income Tax Officer, Kurnool in G.I No. 3810/44-45, 45-46 and 44-67 are unenforceable against the suit properties of the plaintiffs and consequently the sales of those properties by the revenue authorities were void and illegal and for other consequential reliefs.

3. The circumstances leading up to this suit are the following:—

4. The plaintiffs, three in number, and their father one Nagappa constituted members of a joint Hindu Family. The father carried on business in cotton and yarn and earned large profits. For the accounting years 1944-1945, 1945-1946 and 1946-1947 assessments were made on 25-2-1948 and 12-3-48 and 15-4-48 and the tax payable by the assessee in regard to these three years amounted to Rs. 1,23,223-5-0. As the assessee defaulted in making the payment, the Income-tax officer forwarded to the District Collector a certificate under his signature specifying the amount of arrears from the assessee. On receipt of the certificate, the Collector proceeded to recover from the assessee the amounts specified under the Revenue Recovery Act. It is in the process of realisation of these arrears that the properties in suit were brought to sale and purchased by defendants 6 to 29. Before confirmation of the sales could take place, the plaintiffs moved the High Court of Madras under Article 226 of the Constitution and obtained stay of further porceedings. It is to avoid these sales that the present action has been laid on the contentions that the assessments were illegal for the reason that the Income-tax officer violated the provisions of the section 25-A of the Indian Income Tax Act (here-in-after referred to as the Act) in that he held an inquiry under that Section although he was informed of a partition that took place in the family while the assessment proceedings were pending, that the assessments were based not upon the accounts produced by the assessee but upon the estimates made by the Income Tax Officer and as such not enforceable against the plaintiffs and that the minors were under no obligation to pay the debts as they were Avyavaharika debts having been incurred by their father in a trade which was speculative in nature and that in any event items 46 to 51 which formed their separate properties could not be proceeded against.

5. The suit was contested by a written statement filed by all the defendants. The defence raised by the Union of India, the 1st defendant, was that the alleged partition was a fictitious one, the document therefor having been brought into existence with the deliberate intention of avoiding payment of income-tax that in face no claim was put in before the Income-tax Officer, that a partition should be recorded and that the assessments were enforceable against the properties in question as they related to a period prior to partition and that lastly the assessment having been made against the father of the plaintiffs as the Kartha of the Joint Hindu Family the plaintiffs' share in joint family properties was liable to tax, and the properties, were liable for the discharge of the father's legal liability even under the doctrine of pious obligation.

6. The trial court gave a relief to the plaintiffs only as respects items 46 to 51 and the suit was dismissed in regard to other properties. The plaintiffs aggrieved by the judgment to the extent it was against them filed this appeal while the Union of India preferred cross-objections as regards items 46 to 51.

7. The judgment of the Subordinate Judge is assailed by Mr. Chalapathi Rao on various grounds. The first contention urged was that the trial court acted illegally in proceeding to make the assessment with full knowledge of partition effected amongst the members of the Joint Hindu Family without holding any enquiry contemplated by Section 25-A of the Act with the result that the assessments could not be said to be assessments under the Act and therefore it was not competent to the authorities concerned to levy execution on the basis of such assessments.

8. Before, we examine the soundness of this submission, it is convenient to set out the terms of Section 25-A:—

“25-A.(1) Where, at the time of making an assessment under section 23, it is claimed by or on behalf of any member of a Hindu family hitherto assessed as undivided that a partition has taken place among the members of such family, the Income tax Officer shall make such inquiry thereinto as he may think fit, and if he is satisfied that the joint family property has been partitioned, among the various members or the groups of members in definite portions he shall record an order to that effect.

Provided that no such order shall be recorded until notices of the inquiry have been served on all the members of the family.

(2) Where such an order has been passed, or where any person has succeeded to a business profession or vocation formerly carried on by a Hindu undivided family whose joint family property has been partitioned on or after the last day on which it carried on such business, profession or vocation, the Income-tax Officer shall make an assessment of the total income received by or on behalf of the joint family as such, as if no partition had taken place, and each member on group of members shall, in addition to an incometax for, which he or it may be separately liable and notwithstanding, anything contained in sub-section (1) of Sec. 14, be liable for a share of the tax on the income so assessed according, to the portion of the joint family property alloted to him or it; and the Incometax Officer shall make assessment accordingly on the various members and groups of members in accordance with the provisions of section 23:

Provided that all the members and groups of members whose joint family property has been partitioned shall be liable jointly and severally for the tax assessed on the total income received by or on behalf of the joint family as such.

(3) Where such an order has not been passed in respect of a Hindu family hitherto assessed as undivided, such family shall be deemed, for the purpose of this Act, to continue to be a Hindu undivided family.”

9. Thus, in order to attract this provision a claim should be made that partition had taken place among the members of the family. It is only then that an Income-Tax Officer is required to make an enquiry. The argument that at the time of making the assessment it was claimed on behalf of the family is founded on the contents of Ex. A-251 a statement of Nagappa before the Income-Tax Officer in the year 1948. The recitals on which reliance is placed in that document are these:

“I am at present living singly my sons divided from me about ten months back. There is a document to that effect…………One of them was a major and two of them are minors. The guardian to these minor children is my wife. I divided my family properties between myself and my childern.”

10. The question for determination is whether this amounts to a claim that a partition had taken place as envisaged under Section 25-A. In our judgment the statement referred to cannot have the effect contended for. It is not sufficient to merely inform the officer concerned that the family was disrupted or that even the properties were divided amongst the members of the family. There should be a request that an order might be passed to the effect that the family property had been partitioned amongst the members and that an assessment should be levied as laid down in section 25 of the Act. Form C(1) i.e, the form prescribed by the Indian Income-Tax Rules which is a form of appeal under Section 25-A, gives an indication as to how that claim should be made:—

“To the Appellate Assistant Commissioner of Income-Tax.

The…………….day of……………….19………

The petition of……………………of………………….Post Office”

District, showeth as follows:

Under Section 25-A of the Indian Income-tax Act, 1922, your petitioner/petitioners who belong to a Hindu family, hitherto assessed as undivided, claimed before the Income tax Officer………at the time of assessment that a partition had taken place among the members of the family and that the joint family property had been partitioned among the various members (or group of members) in definite portions and prayed that an order might be passed to this effect as laid down in Section 25-A(1) and that an assessment be levied as laid down in Section 25-A(2)

(2) By his order dated the……a copy of which is herewith attached, the Incometax Officer has refused to pass the order referred to above and make assessments accordingly as laid down in Section 25-A(2). Your petitioner/petitioners therefore request(s) that the Income-tax Officer may be directed to pass such an order under section 25-A(1) and to levy an assessment as laid down in Section 25-A(2).

Signed……….

GROUNDS OF APPEAL

FORM OF VERIFICATION

I/We,……….the petitioner/petitioners, named in the above petition, do hereby declare that what is stated therein is true to the best of my/our information and belief.

Signed……….

11. It is not pretended that any request was made to the Income-Tax Officer either for recognising the partition or for making an assessment as laid down in that Section. The partition deed was not filed before the Income Tax Officer, nor does the Hither say that he made the request. In Ex. A-257, the notice issued under Section 80 C.P.C to the Income Tax Officer by the mother of the plaintiffs as guardian through an advocate, it is alleged that a communication dated 1-12-1948 was addressed to the Income-Tax Officer intimating the partition and requesting him not to recover the income-tax due by their father from the properties. According to this, the last request for the purpose was made only in the month of December 1948. By that time, the assessments were already over. There is no reference to any claim put forward by the father on behalf of the family at the time of the assessment.

12. Further, Section 25-A could not be extended to the instant case as there was no division of all the family properties. The partition deed, Ex-A-1 does not purport to divide the business among the members of the family. The explanation now given by the counsel for the appellants for this ommission is that it formed the separate property of the father and for that reason it was not brought into division. We shall immediately show that this is an untenable contention, for it is evident from all the records that this was treated as family business.

13. It was further submitted that Section 25-A could be given effect to the extent to which there was a division of the family properties and a complete division is not a pre-requisite to the applicability of Section 25-A. We do not think this proposition is acceptable. The language of the Section makes it plain that the whole joint family property should be partitioned. The words that the joint family has been partitioned imply that all the properties owned by the family were partitioned. Meyappa Chettiar v. Commissioner of Income-Tax 1950-II M.L.J 353. cited by Mr. Chalapathi Rao to substantiate his contention does not really support him. On the other hand, it has the effect of destroying it and strengthening our view. It is laid down there that an order under section 25-A(1) could come into operation only where in addition to the severance in status there was a partition of all the family properties and untill such order was made the family should be deemed to be an undivided family for purposes of incometax. It follows that this provision could not come into play when there is a partial partition. So, even if the Income-Tax Officer had proceeded in the first instance under that section the result would have been the same i.e, the request to accept the partition could not have been granted. Quite aside, in the instant case, it would not have made any difference in practice in the particular circumstances of the case whether the assessment was continued to be made as before or levied under section 25-A. i.e, whether it was made on the family as an entity through its manager, the father, or made on individual members on the footing of the previous disruption. Even on the latter basis, the assessment was to be made as if no partition had taken place and notwithstanding that the assessment had to be made on the members of the family under sub-Section 2 their properties could be proceeded against since all the members were jointly and severally liable for the whole tax so that one or other of all could be proceeded against. There would thus have been no material difference.

14. Mr. Vedantachari drew our attention to a ruling of the Supreme Court in Laxminarayana v. Income tax Commissioner B. & O. Orissa which ruled inter alia that it did not appear necessary when proceedings were initiated under Section 34 read with Section 22 of the Income-Tax Act to issue notice to every member of the family because the officer was proceeding to assess the income of the Hindu undivided family as it existed prior to partition and argued on the basis of this that as the assessments were in regard to account years anterior to partition it was not obligatory on the part of the Income-Tax Office to proceed under Section 25-A. It is not necessary for us to consider how far the judgment has any relevancy in the context of this enquiry.

15. We will next consider whether even granting that the Income-tax officer erred in ignoring the claim under that section it is open to challenge it in a civil court. Section 30 of the Act contains a provision enabling an aggrieved assessee to file an appeal against the order of the Income-Tax Officer objecting among other things to an order under section 25-A and under section 31(3) the Appellate Assistant Commissioner could direct the Income-tax Officer to make a further inquiry and a fresh order or to make an assessment in the mariner laid down in sub-section 2 of sec. 25-A. There is a further right of appeal to the Appellate Tribunal under Section 33(1) against the order of the Appellate Assistant Commissioner and that the Tribunal could pass such order as it thinks fit under sub-section 4. If the assessee is not satisfied, there is the further remedy given to the aggrieved party under Section 66(1) of the Act under which the Appellate Tribunal could be required to refer to the High court any questions of law arising out of such order, apart from the powers of revision vested in the Commissioner of Incometax under section 33(a) to set right any irregularities committed by the Income-tax Officers. Thus, it is open to the assessee to avail himself of all the remedies enumerated above.

16. Despite this, could the correctness of the assessment be questioned in a court of law? In our opinion, such a suit is not competent, especially in view of Section 67 of the Act which recites: “No suit shall be brought in any civil court to set aside or modify an assessment made under this Act” etc. Mr. Chalapathi Rao argues that the present case does not fall within the purview of the section as his clients do not seek to set aside or modify the assessment made under the Act, but only asked for a declaration that it did not bind them and that their properties could not be sold for the realisation of arrears of tax. This is a distinction without difference. The case of the Privy Council reported in Ralleigh Investment Co. Ltd. v. Governor General in Council and relied on by him shows how untenable the argument is. As pointed out by their Lordships “though in form the relief claimed did not profess to modify or set aside the assessment in substance it did.” In that case the prayer was for payment of the sum due by virtue of the notice of demand, basis of the claim of the assessee being that in computation of the assessable income reliance was placed on a provision of the Income-Tax Act which according to him was ultra vires the Indian Legislature and the assessment was therefore wrong. Their Lordships rejected a submission similar to the one now made because the repayment of the part of the sum due by virtue of the notice of the demand could not be ordered so long as the assessment stood-Likewise, in the present case, so long as the order of assessment is unassailable, the sales of the properties effected in enforcement of the assessment orders could not be impeached. In the words of their Lordships “the claim for a declaration cannot be rationally regarded as having any relevance except as leading up to the claim for repayment and the claim for injunction is merely a verbiage.” This case is also an authority for the position that the assessment could not be questioned in a Court of law assuming the assessing Officer had taken into account an ultra vires provision of the Act. That circumstance was immaterial in determining whether the assessment was made under the Act because it was not a nullity like an order of court lacking jurisdiction and therefore could not be regarded as not having been made under the Act.

17. In our opinion, this pronouncement of the Judicial Committee governs the instant case and Sec. 67 is attracted to this case as the assessments in question were made under the Act and cannot be said to be outside the Act. What was intended to be excluded was a challenge to the assessment in a civil Court. The Act contains a self-contained code setting up a machinery not only for the purpose of ascertainment of the income-tax but to provide remedies in regard to obligations created by the statute by conferring rights of appeal to be carried to various tribunals.

18. The rulings cited by the counsel for the appellants are not of much avail to him. Secretary of State v. Mask & Co. . A.I.R 1940 P.C 105. dealt with Section 188 of the Sea Customs Act. The point for consideration there was whether a civil court had jurisdiction to entertain a suit to recover an excess amount collected from the plaintiff by levying a higher duty upon a higher tariff value. The Judicial Committee, reversing a judgment of the High Court, allowed an appeal against the judgment of a Subordinate Judge who held that the court had no jurisdiction to entertain the suit, opined that the order of the Assistant Collector of Customs to the effect that the articles imported by the plaintiff were assessable at a particular rate was a decision or an order passed by an Officer of Customs within the meaning of Section 188 of the Customs Act, and the decision of the Collector of Customs on appeal there from which was confirmed on revision under Section 191 was final and the jurisdiction of the civil courts was excluded. In dealing with the question whether the order of the Collector impugned by their Lordships excluded the jurisdiction of civil courts to entertain a challenge of the merits of that decision, they remarked:

“It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.”

19. It is this passage that was called in aid by the counsel for the appellants, but this is not really helpful to the appellants because Section 67 has specific? ally excluded the jurisdiction of the civil courts in regard to the matters specified therein. Nor could it be said that the Officers in this case have not acted in conformity with the fundamental principles of judicial procedure or that the provisions of the Act have been disregarded. He cited some more decisions which are of this nature. Most of them related to cases where there was substantial disregard of the provisions of law which created the authority of certain statutory bodies which regulated their decision. There is no such infringement in this case. The Income-tax Officer had acted throughout within the scope of the Act. As already pointed out above, there were many remedies available to the assessee to canvass the assessment and if he had failed to do so or if he had availed himself of them unsuccessfully he could not resort to a civil court for questioning their correctness.

20. In order to get over this difficulty it was urged by Mr. Chalapathi Rao that the rights of appeal or revision or of reference to the High Court are conferred only on the assessee and they could not be taken advantage of by a stranger. In his submission the assessee being only the father he alone could take the assessment in appeal etc., and the sons had no locus standi to do it and therefore they are not bound by the assessment. It is for this proposition that Ralleigh Investment Co. v. Governor General in Council, was quoted. We have already referred to this pronouncement and set out the principles laid down therein. It does not deal with any point as to the persons bound by the assessment. That apart such a situation does not arise in this case. We feel the argument in this behalf is utterly devoid of substance. Exs. B-22, B-23 and B-24, the assessment orders for the accounting years 1944-1945, 1945-1946, 1946-1947 respectively, make it abundantly clear that the joint family of the plaintiffs and their father was assessed as a unit. For the accounting year 1944-1945 the father seems to have declared his status as an individual but had admitted at the time of the hearing that the business belonged to the family consisting of himself and his two sons and the assessment would therefore be made on the family represented by the assessee as its Kartha. For the subsequent years the levy was made on the same footing. It is futile in the face of this material to maintain that the assessee was not the joint family but their father as an individual was assessed to tax. The attitude now adopted is also inconsistent with the stand taken by them in regard to Section 25-A. That provision of law could be invoked only on the assumption that on that day the family was assessed as a unit. If the assessee was only a particular individual there was no scope to call in aid that section because it has no application to the case of a Hindu family which has never been assessed before as a unit of assessment. It is only in cases where up to the date of the claim the tax was being imposed upon a family as an entity that the relief could be claimed under that section. This is an incongruous position taken by the appellants and is of no assistance to them. Once a family is assessed as an undivided family it continues to be so assessed even after partition unless and until an order was made under Section 25-A recognising the partition.

21. Further, the case as presented now does not seem to have been put forward either in the notice issued under Section 80 C.P.C (Ex. A-257) or in the plaint. The averments in paragraph 7 of the plaint are significant:—

“Subsequent to the partition between the father and sons, the Income-tax Officer, Kurnool, is said to have made separate orders of assessment against the father under the status of “Hindu undivided family” for three separateyears of assessment 1944-1945, 1945-1946, 1946-1947.”

22. We are unable to find in the plaint any attack against the assessment on the ground of the family not being the assessee.

23. The facts noticed above proclaim categorically that the Joint Hindu Family of the plaintiffs and their father was the assessee for the accounting years with the father as the manager. The consequence is that they are bound by the assessment so long as it has not been set aside.

24. An alternative contention pressed upon us by Mr. Chalapathi Rao was that as the assessment was based not upon the books of account maintained by the family and which reflected a true state of affairs but estimated by the Incometax Officer it was only a fictional debt and cannot be regarded as a family debt. The answer to this has already been furnished by us. If the plaintiffs were also assessees being members of the joint family, the remedy to be pursued by them has already been indicated and cannot form the subject matter of the suit. Even otherwise this has to be repelled. The Income-tax Officer is not bound to accept as correct either the return submitted by the assessee or the accounts maintained by him in Support of it. If the assessee fails to produce evidence in support of his return or the accounts produced are not reliable, it is compulsory on the part of the Income-tax Officer to make the assessment based on his judgment and determine the sum payable by the assessee to the best of his judgment. The only test is whether he has exercised his judgment honestly and did not act dishonestly or vindictively or capriciously. A Judgment of the Privy Council in the Commissioner of Income-Tax United and Central Provinces v. Badridas contains an exhaustive exposition on this topic and answers the argument advanced by the counsel for the appellants. The law on the subject is stated by their Lordships in the following passage:—

“The officer is to make an assessment to the best of his judgment against a person who is in default as regards supplying information. He must not act dishonestly, or vindictively, or capriciously because he must exercise judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment and for this purpose he must. Their Lordships think, be able to take into consideration local knowledge and repute in regard to the assessee's circumstances, and his own knowledge of previous returns by and assessment of the assessee, and all other masters which he thinks will assist him in arriving at a fair and proper estimate; and though there must necessarily be guess-work in the matter, it must be honest guess-work. In that sense too the assessment must be to some extent arbitrary.”

25. On these remarks of their Lordships of the Privy Council, there is little scope for the submission that the assessments being arbitrary they could not be enforced against the appellants. In the case on hand, the Income-tax Officer found that the account books did not show the profits earned by the company in the business. He found that the entries were concocted for the purpose of evading the tax. So, he summoned the account-books of the customers of the assessee and on a comparison of the various entries with reference to the account books of the customers he found that the assessee had concealed large sums of money earned by him by way of profit. The Income-Tax Officer who had gone into these matters at some length had given several reasons in support of the conclusion that the assessee had suppressed a large part of his profits. In those circumstances, he had no option but to make an estimate of the income of the family which, according to him, was a reasonable one and which does not appear to be arbitrary.

26. The learned counsel next raised questions as to the liability of the sons to pay the debts of the father which arose out of speculative trade and as such partook of the nature of Avyavaharika debts. According to him, the business for which the debts were contracted by the father was his separate one with which the family had no concern. He went further and stated that as the debts were incurred by him in a speculative trade and in regard to wagering, contracts they partook of the nature of Avyavaharika debts and hence they would not come within the theory of pious obligation of the sons. Alternatively, he maintianed that the sons were not liable to discharge the debts of the father which were post-partition debts, and not pre-partition debts. These various questions do not really arise in this case and the arguments advanced were absolutely unrelated to facts. On the assumption that the joint Hindu family was not the assessee, were grounded all the contentions which are pressed on behalf of the appellants. We have already reached the decision that the assessee being the family consisting of the plaintiffs and their father they are liable to pay the tax so long as the assessments stand uncancelled.

27. Even apart from that, there is nothing to be said in favour of appellant on merits. Almost all the properties owned by the family and which formed the subject matter of the alleged partition were traceable to the profits of the business. The acquisitions made by the father took various forms. What he acquired for the family was in the shape of landed properties, houses, investment in several concerns and banks, and shares in the companies. The ancestral property consisted only of two houses and two acres of wet land as admitted by P.Ws 4 and 6 and it was Nagappa, the father of the plaintiffs, that obtained extensive properties for the family as appears from the evidence of P.Ws 4 and 6 and even Nagappa. P.W 4, mother of the plaintiffs admitted that by the time she joined her husband he was having only two houses and he purchased 30 houses within the last ten years. P.W 6 deposed that Nagappa was the biggest dealer in yarn in Nandyal and was making good profits from 1941 onwards and that after 1940 he purchased properties worth a lakh and little more and he could do so because he was making good profits. He also stated that about 25 years back all the property possessed by the family was worth about Rs. 25,000/-. To a like effect are the statements of Nagappa in his cross-examination in the witness box. That the property was worth at least Rs. 1,25,000/- appears in Ex. A-1, the deed of partition. In such a situation, there is absolutely no force in the argument that the father contracted debts for the business which was of a speculative nature and therefore the debts were tainted with immorality and illegality for which reason the liability of the sons by reason of the theory of pious obligation is excluded. It is in respect of the huge profits made by the father that the income-tax was imposed and so the family being in enjoyment of these properties is liable to bear the burden of the tax and they cannot escape payment of tax by taking refuge under untenable pleas.

28. Even the submission that it was a separate business of the father and not the family business is equally unsubstantial. Apart from the statement made by the father before the Income-tax Officer that the business was joint family business, Ex. A-1 itself supplies evidence of the family having so treated it. As already remarked, most of the properties were purchased with the income derived from the family. They were treated as those of the family and were purported to be divided amongst the various members thereof. It is only on this footing that Ex. A-257 was issued. The recitals in paragraph 5 of that notice, viz., that the plaintiffs' properties were not liable to be proceeded against for recovery of the incometax due by their father on the ground that the trade which was carried on was not ancestral but a new and a speculative one, that the debts were in respect of his wagering and black marketing transactions etc., are explicable only on that hypothesis. The same result flows from some of the averments in the plaint also. Pargraph 3 of the plaint sets up the case that the father was doing “new, speculative and reckless business” in yarn (consisting of wagering contracts) calculated to ruin the family and at that juncture their mother intervened and enforced a final partition. How could separate business of the father of the description given above be calculated to ruin the family? If at all, that would affect only the share of the father. Thus the contents of paragraph 3 are only in conformity with the business being joint family business. Moreover the members of the joint family accepted the properties acquired by the manager as those of the family which denotes that the business out of which the profits accrued was recognised as that of the family. Ex. A-1 recites inter alia “till now our entire family has been enjoying movable and immovable properties jointly.” It is also significant that there is nothing to indicate in the document that the father was indulging in speculative transactions which were detrimental to the family or that the business was a separate one unconnected with the family. On the other hand, the reasons given for the partition are that the father was neglecting the education of his children and that he had fallen into evil plays. We shall presently show that these recitals were concocted by the father himself in order to defraud and defeat the creditors and Incometax Department. We have already shown that almost all the properties owned by the family were the acquisitions of the father. If the business was the separate business of the father and not of the family, then the earnings from it will belong exclusively to the father and the properties acquired therewith would constitute his self acquisition in which case plaintiffs will have no sort of right or interest therein. So, assuming for argument's sake that it was separate business, they can take the properties only subject to the liability to pay the debts of the father. However in this case, it has only academic interest. There is thus no substance in the contentions either as regards the character of the business or the binding nature of the debts etc.

29. We will now say a word about another point raised on behalf of the appellants that the sons could not be required to meet their demands based on the assessment as that was a debt that arose subsequent to partition as the assessment was made only subsequent to partition. This argument is founded on some observations of the Privy Council in Durga Prashad v. Secretary of State. In their Lordships opinion, “although income-tax may be properly due for a certain year, it is not in law so due. It is calculated and assessed by reference to the income of the assessee for a given year. But it is due when demand is made under Section 29 and Section 45 of the Act, It then becomes a debt due to the Crown but not for any particular period.” These remarks do not lend any countenance to the contention urged by the appellants. Their Lordships made them in dealing with the objection to the certificate issued by the Income-tax Officer. In column 4, no period for which the demand was due was stated as required by the heading to that column. Their Lordships were not considering whether the liability had not arisen prior to the making of the assessments. The proposition cannot be disputed that the liability to tax does not depend on the assessment. It arises by virtue of the charging section. All that is done by the assessment is quantifying the liability which is created by Sections 3 and 4.

30. The principle is stated by the Privy Council in Wallace Bros. v. C.I.T thus:—

“………………the charge for tax at the rate fixed for the year of assessment is a charge in respect of the income of the ‘previous year’, not a charge in respect of the income of the year of assessment as measured by the income of the previous year…………the rate of tax for the year of assessment……. will necessarily be made after the close of that year. But the liability to tax arises by virtue of the charging section alone, and it arises not later than the close of the previous year, though quantification of the amount payable is postponed.”

31. The doctrine of Chatturam v. Commissioner of Income-Tax, Bihar decided by the Federal Court is in accord with this. Relying upon the ruling of the House of Lords in Witny v. I.R . 10 Tax Cases 88. it is ruled by the Federal Court that the liability to tax is not dependent on the assessment; that ex hypothesi has already been fixed and the order of assessment merely fixes the amount of liability which is already definitely and finally created by Sections 3 and 4 which are the charging sections. What follows is that the liability to pay tax in regard to accounting years, 1944-1947 had arisen before partition though the assessments have been made subsequently and it is inapt to describe it as a post-partition debt. This contention also therefore fails and is rejected.

32. There remains for consideration the objection that all the sales ought to be set aside for the reason that the purchasers did not deposit the balance of the price in time. The point made is that the auction purchasers who paid out 15% of the purchase money at the time of the sale had not deposited the balance within the time prescribed and consequently all the sales have become void. Support is sought for this argument in the provisions of Section 36 clause 4 of the Madras Revenue Recovery Act which provides:—

“Where the purchaser may refuse or omit to deposit the said sum of money or to complete the payment of the remaining purchase money, the property shall be resold at the expense and hazard of such purchaser and the amount of all loss or expense which may attend such refusal or omission shall be recoverable from such purchaser in the same manner as arrears of public revenue. Where the lands may, on the second sale, sell for a higher price than at the first sale, the difference or increase shall be the property of him on whose account the said first sale was made.”

33. But we do not think this section renders any assistance to the appellants. The clause “the property shall be resold at the expense and hazard of such purchaser” etc. only implies that the resale is at the risk and hazrad of the first purchaser. It does not mean that the Collector is compelled to hold a resale in the event of the first purchaser not depositing the remainder of the purchase money within thirty days. It is in the discretion of the Officer concerned to take action under that rule and he is under no obiligation to put into operation. He has surely discretion to extend the time for paying the balance of the purchase pries in proper cases.

34. This opinion of outs is reinforced by the judgment of the Madras High Court in Soorayya v. Kalamelam. There the learned judges remarked that the intendment of the Section was not to deprive the Government of an election to give a credit to the person in whose favour the property was knocked down and “to compel the Government in every case to proceed to a resale even where there may be no risk of eventual failure of payment”. Moreover, that rule does not envisage the eventuality of the sale itself becoming void. Assuming it was compulsory for the Collector to have a resale and he has failed to do it, that could not result in the sale being rendered void. So long as the resale is not held the original sale stands. This circumstance also brings out the force of the reason that the intention of the legislature was not to deprive the officer concerned of power to treat the first sale as subsisting despite the default of the first purchaser to make the necessary deposit within the prescribed time.

35. Further more, if the deposit could not be made in time, the purchasers are not to blame. The plaintiffs themselves were responsible for this as is evident from paragraph 9 of the plaint. As mentioned at the outset, the High Court of Madras stayed all proceedings in furtherance of the sales in C.M.P No. 4838/1950, which was taken out by the plaintiffs. Having thus prevented the purchasers from making the necessary deposit they cannot now turn round and say that the sales should be treated as non est by reason of the requisite deposits not having been made within the prescribed time. Therefore, this argument also lacks force and is overruled.

36. It follows that the judgment under appeal is correct and is not open to any exception and the suit was rightly dismissed by the trial Court with regard to items 1 to 45.

37. In the result, the appeal is dismissed with costs.

Ch. R.

38. Appeal dismissed.