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Case Number

O.P No. 2425 of 1964

Advocates

For the Appellant: K. Velayudhan Nair M.C. Sen, T.K.M. Unnithan , Advocates.
For the Respondent: R1 C.T. Peter, R2 & R3 Government Pleader.

Judges

V.P Gopalan Nambiyar, J.

Acts

provisions of the Estate Duty Act (Central Act XXXIV of 1953-hereinafter referred to as the Act).
Income-tax Officer.15. Section 46(1) of the Indian Income-tax Act, 1922 referred
SECTION 46 INDIAN INCOME TAX ACT
Section 46(1) of the Indian Income-tax Act,
Section 46(1) of the Income-tax Act,
Duty Act by S. 73(5) thereof.17.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioners sought a writ of certiorari or other appropriate writ to quash assessment and recovery documents (Exts. P-1 to P-8 as prayed, though the recovery and assessment records discussed are principally Exts. P-1 to P-3) and to restrain respondents from taking coercive steps to collect estate duty and penalty pursuant to those documents.

The facts stated in the opinion: Ameen Pillai (the deceased) died in May 1959 leaving two widows and eight children (one daughter died in 1962). The estate was assessed to estate duty by the Controller under the Estate Duty Act; Ext. P-1 dated 17-10-1962 is the assessment order. The petitioners (two sons) were not parties to that assessment; only two widows and five children were named parties. A penalty of Rs. 1,217 was later imposed on the seven named assessees (Ext. P-3). On 27-9-1964 the Village Officer (3rd respondent) attached movables in the petitioners' residence (copy at Ext. P-2) purportedly for collection of the duty and penalty. Petitioners asserted they received no notice of assessment, demand, or recovery and claimed that the assessment and recovery proceedings are illegal.

The respondents (via a counter-affidavit and documentary material) set out the course of departmental steps: notices under Sections 55 and E.D.(1) forms were issued in 1962 to seven accountable persons fixing estate value and calling for appearance; various notices were served, returned refused, or unserved. Proceedings continued; assessment completed on 17-10-1962 fixing duty; demand notices issued with mixed service results; penalty under Section 78(5) imposed on 23-1-1963 (or assessment/penalty steps thereafter) and recovery steps were initiated including notices to the Collector under Section 73 read with Section 46(2) of the Income-tax Act for realization of arrears.

Legal Issues Presented

Whether there has been a valid assessment to estate duty against the petitioners, who were not parties to Ext. P-1, and whether they can be held liable under that assessment and the consequent recovery proceedings (Exts. P-1 to P-3).
Whether recovery proceedings and attachment (Ext. P-2) and imposition of penalty (Ext. P-3) can be enforced against persons who were not parties to the assessment, particularly in light of statutory provisions (Sections 53, 55, 58 of the Estate Duty Act and Section 46 of the Income-tax Act as applied by Section 73 of the Estate Duty Act).
Whether the principle of bona fide representation of the estate (i.e., that a legal representative who represents the estate may bind other legal representatives) applies to bind petitioners who were not parties to the assessment proceedings.

Arguments of the Parties

Petitioners' Arguments

The petitioners were not parties to Ext. P-1 (the assessment) and never received notice of the assessment, demand, or recovery proceedings.
According to their case, after proper compilations and deductions the estate would not be dutiable at all; an assessment without giving them an opportunity to prove non-dutiability offends the principles of natural justice.
Specific contentions asserted (contained in their affidavit): (a) properties covered by a 1951 settlement deed were excluded but buildings situated on those properties, valued at Rs. 40,000, were nevertheless included in the estate valuation; (b) certain lands were in possession of strangers and permanently assigned by the Government before death; (c) some land had been sold in 1958 for arrears of agricultural income-tax during the deceased's lifetime. These matters, they assert, were not considered by the department because they had no opportunity to present them.

Respondents' (1st Respondent / Department) Arguments

The assessment and recovery proceedings were legal and proper. No statutory account under Section 53(3) was filed within six months by any accountable person; notices under Section 55 and proposal forms were issued; where persons failed to comply, the Controller was entitled to assess to the best of his judgment under Section 58(4).
The petitioners are accountable persons who failed in the statutory duty to deliver accounts and therefore liable to be assessed (relying on Sections 53 and 58 of the Estate Duty Act).
The department relied on and issued procedural notices, served where possible; demand notices and penalty notices were issued in accordance with the statutory scheme; recovery steps (including a notice to the Collector under Section 73 read with Section 46(2) of the Income-tax Act) were taken for realization of arrears.
The department (1st respondent) also advanced, later in proceedings, a plea that the assessment was taken bona fide against a representative of the estate such that accountable persons (including the petitioners) are bound by the assessment — relying on case law that discusses bona fide impleading or representation of legal representatives.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Attorney General v. Milne, 1914 AC 765	Interpreted the phrase "passes on death" as denoting an actual change in title or possession at death; irrelevant to whom or by what disposition the property passes.	The Court cited this decision to explain the meaning of "passes on death" in Section 5(1) of the Estate Duty Act and accepted its exposition as authoritative for that phrase.
Mabend ra Rambhai Patel v. Controller of Estate Duty, AIR 1965 Guj 9	Referenced as accepting the exposition of "passes on death" (i.e., acceptance of the principle in Milne).	The Court noted this case as subsequent acceptance of the Milne exposition supporting the statutory interpretation.
Alfred v. First Addl. Income-tax Officer, Salem, AIR 1958 Mad 11	Relied upon by respondent to support the contention that assessment against a representative may bind other legal representatives (used in support of a bona fide representation plea).	The Court recorded that the respondent relied on this authority but considered the plea of bona fide representation was not properly pleaded and, on the merits, was inapplicable on the facts of the present case.
First Addl. Income-tax Officer, Kozhikode v. Mrs. Suseela Sadanandan, (1965) 57 ITR 168 (SC)	The Supreme Court discussed the principle that where a party bona fide impleads one legal representative as representing the estate and that representative represents the estate, the decree may bind other legal representatives; extended discussion to assessment context.	The respondents relied on this Supreme Court decision. The Court considered the decision but found the principle of bona fide representation inapplicable here (no pleading, conflicting factual matrix, and the parties governed by Mohammedan law where the representation principle is stated as unknown).
Daya Ram v. Shyam Sundari, AIR 1965 SC 1049	Summarised law that if a plaintiff after diligent and bona fide inquiry brings legal representatives on record within time, the decision obtained will bind the entire estate including absent representatives; principle of representation stated to have general application.	The Supreme Court's summary in Daya Ram was excerpted in the Suseela Sadanandan judgment and relied upon by respondents; the Court in the present opinion noted these authorities but did not accept their application on the facts here.
Thirtha Lal v. Bhusan Moyee Dasi, AIR 1949 FC 195	Principle that a person not party to or not properly represented in proceedings cannot be bound by those proceedings; in arbitration or references a valid binding award on an estate requires legal representatives to be made parties or given notice where necessary.	The petitioners relied on this Federal Court authority to contend they could not be bound by proceedings in which they were not parties. The Court considered it but also discussed distinctions between the contexts; it accepted that persons not parties (or not properly represented) should not be bound and used this analysis in reaching its conclusion that enforcement against the petitioners could not proceed.
Manindra Nath v. Mohanundra Roy, 13 Ind Cas 181; 15 Cal LJ 360	Addressed arbitration/submission and the effect of death of a party on the submission — if the hearing is not completed, representatives must be brought on record or made parties for the award to bind the estate.	Quoted in Thirtha Lal and referred to in the opinion as part of the legal background relied on by petitioners; the Court cited it as part of the line of authority about parties/representation but applied the specific statutory context of estate duty when resolving the petition.

Court's Reasoning and Analysis

The Court proceeded through a statutory and factual analysis anchored to the Estate Duty Act and the applied provisions of the Income-tax Act.

Key steps in the Court's reasoning (as disclosed in the opinion):

Statutory framework:
- Section 5(1) levies estate duty on property that "passes on death". The Court cited Attorney General v. Milne (1914 AC 765) to explain that "passes on death" denotes an actual change in title or possession on death, irrespective of to whom it passes.
- Section 53(1) makes legal representatives accountable for estate duty on property passing on death and Section 53(3) requires delivery of accounts within six months of death.
- Section 55 enables the Controller to require statements and particulars from accountable persons or those believed to have possession/administration of part of an estate.
- Section 58(4) permits the Controller to make an assessment to the best of his judgment where no account has been delivered as required or a person fails to comply with notice.
- Section 73 of the Estate Duty Act applies certain provisions of Section 46 of the Income-tax Act (including the recovery/penalty provisions) to estate duty; Section 46(1) (Income-tax Act) allows recovery of penalty from an "assessee" in default.
Application to facts and persons not parties:
- The departmental case (as per counter-affidavit and Ext. P-1) was that no statutory account was filed, notices were issued under Section 55, there were non-responses/returns, and therefore assessment under Section 58(4) was completed to the Controller's best judgment.
- The petitioners contended they never received notice and that they would have shown non-dutiability on proper consideration; they further detailed specific factual objections (settlement deed coverage, certain lands assigned or sold) which they say were never considered.
- The Court concluded that nothing in Sections 53, 55, or 58 justifies imposition of liability by an assessment made under Section 58(4) upon persons who were not parties to that assessment order. In short, an assessment under S.58(4) cannot, by itself, impose liability on non-parties to the assessment order.
On recovery/penalty provisions:
- Section 73(5) incorporates provisions of Section 46 of the Income-tax Act to estate duty recovery and penalty. Section 46(1) (Income-tax Act) allows levy of penalty against an "assessee" in default.
- The Court observed (from the language of Section 46(1)) that the penalty provision can be applied only against an assessee in default. Consequently, proceedings to recover duty and penalty under the applied provisions cannot be directed against persons who are not assessees in default — i.e., cannot be directed against the petitioners who were not parties to the assessment.
On the plea of bona fide representation of the estate:
- The 1st respondent raised a plea (not earlier pleaded in counter-affidavit) that the assessment was taken bona fide against a representative of the estate and therefore bound all accountable persons. The Court declined to entertain a new plea in an Article 226 petition which had not been pleaded earlier.
- On the merits the Court examined the representation theory as articulated in the decisions relied upon by the respondent (including Suseela Sadanandan and authorities summarising the representation principle). The Court found the principle inapplicable here because (i) no pleading established that any of the seven persons in Ex. P-1 represented the estate, (ii) the parties in this matter were governed by Mohammedan law where the Court stated the representation principle is "unknown", and (iii) factual chronology showed fragmented and inconsistent appearances by different persons and production of settlement/partition deeds only at a later stage — all undermining a bona fide, coherent representation of the estate which could bind other non-parties.
Natural justice and opportunity to be heard:
- The petitioners had specific factual allegations affecting dutiability (settlement deed genuineness, government assignments, sale for arrears) which were not considered by the department and which the petitioners had no opportunity to prove because they had not been given notice or an opportunity to be heard. The Court found that the petitioners were denied an opportunity to state their case and that Ext. P-1 offended the rules of natural justice insofar as it sought to bind or affect the petitioners.
Relief warranted by analysis:
- Given that neither Ext. P-1 (assessment) nor Ext. P-3 (penalty) could be enforced against the petitioners who were not parties, and that the attachment (Ext. P-2) emanated from those proceedings, the Court concluded enforcement and attachment could not proceed against the petitioners.

Holding and Implications

Holding: The petition is allowed; a writ of prohibition is issued restraining the respondents from enforcing Exts. P-1 to P-3, or taking any steps in pursuance thereof, against the petitioners, and the attachment on the petitioners' movables evidenced by Ext. P-2 is quashed as against the petitioners.

Immediate effects and consequences:

The respondents are prohibited from enforcing the assessment (Ext. P-1), the penalty order (Ext. P-3) and from proceeding with the attachment (Ext. P-2) against the petitioners named in this writ petition.
There will be no order as to costs.
The Court expressly stated that nothing in its judgment should be understood as expressing an opinion on the validity or effect of Exts. P-1 and P-3 as they apply to those who were parties to those proceedings; the ruling is confined to the petitioners (non-parties to the assessment) and does not set aside the assessment insofar as it affects the named parties to Ext. P-1.

The opinion does not purport to lay down any general new precedent beyond its statutory and fact-specific conclusions; its directions are limited to the non-enforcement against the petitioners and the protection of their rights to be heard where the departmental proceedings had not included them.

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Ameen Pillai Rawther Hassan Kari Rawther And Another v. Asst. Controller Of Estate Duty, Ernakulam And Others

JUDGMENT

1. The petitioner prays for the issue of a writ of certiorari or other appropriate writ direction or order quashing Exts. P-1 to P-8 and for restraining the respondents from taking any coercive steps, for collecting estate duty and penalty in pursuance of Exts. P-1 to P-3.

2. One Ameen Pillai (hereinafter referred ??? as the deceased) died in May 1959. It is admitted that he left two widows and eight children. One of the daughters died in 1962. The petitioners are two of the sons of the deceased. The estate of the deceased was assessed to estate duty under the provisions of the Estate Duty Act (Central Act XXXIV of 1953-hereinafter referred to as the Act). A copy of the assessment order has been produced as Ext. P-1 dated 17-10-1962. The petitioners are not parties to the said assessment. It is seen that only the two widows and five children of the deceased were parties. By proceedings of the 1st respondent dated 23-1-1963, a penalty of Rs. 1217 was imposed on the seven named assesses who were parties to Ex. P-1. The petitioners allege that on 27-9-1964, the 3rd respondent, the Village Officer, attached movables in the residence of the petitioners under a list, copy of which has been produced as Ex. P-2. It is stated in paragraph 12 of the petitioners' affidavit that the attachment was for the purpose of collection of the duty (and the penalty?) imposed under Exs. P-1 to P-3. It is stated that the petitioners did not receive any notice either of the assessment evidenced by Ex. P-1 or of any demand for payment of duty or penally. On these grounds, it is claimed that Exs. P-1 to P-3 are illegal and are liable to be quashed. From Ex. P-1 and from the counter-affidavit filed on behalf of the 1st respondent, it is seen that the circumstances leading to the assessment and the subsequent proceedings are as follows:

3. No statutory return of accounts as required by Section 53(3) of the Act was delivered to the Controller within 6 months of the death of the deceased by any of the accountable persons Notice under Section 55 of the Act was issued to one of the accountable persons, (No. 1 in Ex. P-1) and was returned unserved. Thereafter notice under Section 55 of the Act and E. D(1) Forms with a proposal dated 30-1-1962 were issued to all the seven accountable persons in Ex. P-1 fixing the value of the Estate at Rs. 3,20,590 and calling for objections and appearance on 21-2-1962 These notices were served on a few of the accountable persons and returned refused, by the rest. In response to these notices, No. 7 in Ex. P-1 appeared through an Advocate, who took time repeatedly, and who in spite of notices of adjournment of the proceedings, failed to appear and render any assistance. There was no response from the other persons to whom the notices were issued. Notices dated 25-7-1962, were issued to all the seven persons, fixing the date of hearing for 6-8-1962 and informing that failure to appeal may entail the completion of the assessment on the basis of the proposal already issued. These notices were served on three persons in Ex. P-1, refused by three, and not served on the remaining one. On 6-8-1962, the Advocate on behalf of No. 7, appeared and stated that there was a settlement executed by the deceased in 1951 of all the deceased's properties on his wife and children, and that the document was with No. 1 to Ex. P-1 Steps were taken to get the said document, and for this purpose notice dated 27-9-1962, was issued to No. 1 in Ex. P-1 which was acknowledged by him on 13-9-1962 (stated in the counter-affidavit to be an obvious mistake for 13-10-1962 as the notice itself was despatched only on 3-10-1962). As there was no response, assessment was eventually completed on 17-10-1962 fixing the value of the Estate at Rs. 3,20,590 and the duty at Rs. 24,338.50 payable on or before 17-11-1962. Demand notice is stated to have been served on three of the persons in Ex. P-1 refused by three others, and the notice addressed to the remaining one was resumed unnerved. On failure to company with the demand, notice for imposition of a penalty under Section 78, clause 5 of the Act was issued to all the seven persons and a penalty of Rs. 1217 being 5 per cent of the demand, was imposed as evidenced by Ex. P-3 fixing the date for payment of 5-2-1963 On that dale, three of the accountable persons in Ex. P-1 appeared and produced the settlement deed dated 27-1-1961 executed by the deceased, in favour of his two wives and all the eight children, and also another partition deed dated 11-4-1960 by which the children of the deceased partitioned the properties retained by the deceased in the A schedule, of the settlement deed of 1951 As there was failure to pay the duty and penalty, the requisite notice under Section 73(5) of the Act, read with Section 46(2) of the Indian Income-tax Act, 1922, was issued to the Collector on 21-6-1963 with the names of the seven accountable persons and the details of the properties, for realising the arrears the Collector of Quilon required the complete names and addresses of all the accountable persons and he was thereupon furnished with the names and addresses of all the persons found in the settlement deed dated 25-7-1951.

4. On these facts alleged in the counter affidavit, and disclosed by Ex. P-1, it is claimed on behalf of the 1st respondent that the assessment proceedings and the subsequent proceedings for recovery are legal and proper and not liable to be set aside.

5. The case of the petitioners is that the never had any notice, either of the proceedings for assessment or of the proceedings for demand and recovery of the tax according to them, if proper compilations and deductions are made, the estate of the deceased is not dutiable at all, and an assessment made without affording them any opportunity to prove this aspect of the case is opposed to the principles of natural justice the particulars of this claim have been detailed in sub-paragraphs C and D of paragraph 8 of the counter affidavit Among them, I may refer to the following

(a) While the properties covered by the settlement deed of 1951 were excluded in valuing the assets of the deceased, buildings, valued at Rs. 40,000 which were all on the properties covered by the settlement were included in the reckoning

(b) An extent of 19 acres 56 cents of land specified in Annexure II to the petition were lands in possession of the deceased on Rutha kapattom. The were in possession of strangers even during the lifetime of the deceased and had been assigned permanently to them by the Government

(c) 2 acres and 9 cents of paddy land comprised in 655/55 were sold for arrears of agricultural income-tax in the year 1958 during the lifetime of the deceased.

6. The question for consideration on the above facts is whether there has been a valid assessment to estate duty against the petitioners and whether they are liable to be proceeded against, in pursuance of Exs. P-1 to P-3.

7. Section 5(1) of the Act reads

“In the case of every person dying after the commencement of this Act, there shall save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as hereinafter provided of all property, settled or not settled, including agricultural land situate in the territories which immediately before the 1st November, 1956 were comprised in the tales specified in the First Schedule to this Act, which passes on the death of such person, a duly called “estate duty”, at the rates fixed in accordance with S. 35.’

8. The expression “passes on death” was explained in the Attorney General v. Milne, 1914 AC 765 Lord Parker of Waddlngton stated:

“The expression “passing on death is not further defined, but is evidently used to denote some actual change in the title or possession of the property as a whole which takes place at the death. For the purpose of this section it is absolutely immaterial to whom or by virtue of what disposition the property passes”

9. The above exposition has been accepted in subsequent decisions both in England and in this country See Mabend ra Rambhai Patel v. Controller of Estate Duty, AIR 1965 Guj 9

10. Section 53(1) of the Act, in so far as it is material, provides that on the death of the deceased

“(a) ever) legal representative to whom such property so passes for any beneficial interest in possession or in whom any interest in the property so passing is at any time vested shall be accountable for the whole of the estate duty on the property passing on the death, but shall not be liable for any duty in excess of the assets of the deceased which he actually received or which, but for his own neglect or default, he might have received”. Clause 3 of S. 53 reads

“Every person accountable for estate duty under this section shall, within six months of the death of the deceased, deliver to the con troller an account in the prescribed form and verified in the prescribed manner of all the properties in respect of which estate duty is payable”

11. Section 55 of the Act provides inter alia that every accountable person and every person whom the Controller believes to have taken possession or administered any part of the estate in respect of which duh is leviable, shall, if so required, deliver to the Controller a statement of such particulars and accounts as the Controller may require relating to the properly.

12. And Section 58(4) of the Act provides

“In any case where no account has been delivered as required by S. 53 or S. 56, of the person accountable fails to comply with the terms of the notice served under sub-section (2). The Controller shall make the assessment to the best of the judgment and determine the amount payable as estate duty”.

13. On behalf of the 1st respondent, it was argued that the petitioners are accountable persons under the statutory duty of delivering the account as provided in Section 53(3) of the Act, and liable to be assessed to the best of judgment under S. 58(4) for failure to comply with S. 53(3) the petitioners replied that the obligation under S. 53(3) and the resultant liability under S. 58(4) are only, in respect of accountable persons, and they are not such, as the estate is not dutiable according to their case Quite apart from this contention, I see nothing in these sections which justifies the imposition of liability by an assessment order made under S. 58(4) upon persons not parties thereto.

14. The above conclusion stands only reinforced by reference to the provisions for imposition of penalties, which have been resorted to, in the present case Section 73, clause 5 of the Act reads:

“The provisions of sub-sections (1), (1A), (2), (3), (4), (5), (5A), (6) and (7) of Section 46 and Section 47 of the Indian Income-tax Act, 1922 (XI of 1922), shall apply as if the said provisions were provisions of this Act and referred to estate duty (including estate duty provisionally assessed) and sums imposed by way of penalty or interest under this Act Instead of to income-tax and sums imposed by way of penalty or interest under that Act and to Controller of Estate Duty instead of to Income-tax Officer.”

15. Section 46(1) of the Indian Income-tax Act, 1922 referred to by the above provision reads:

“When an ‘assessee’ is in default in making a payment of income-tax, the Income-tax Officer may in his discretion direct that, in addition to the amount of the arrears a sum not exceeding that amount shall be recovered from the ‘assessee’ by way of penalty.” (underlining (here into ‘???’) mine).

16. It is, plain that Section 46(1) of the Income-tax Act, which is applied by Section 73 of the Act (Estate Duty Act) to recover estate duty and penalty, can be applied only against the “assessee in default”. This is emphasised in more than one place in Section 46(1) of the Indian Income-tax Act, above quoted. It seems to me therefore that quite apart from the validity of the proceedings evidenced by Ext. P-1 against the petitioners who are not parties thereto, proceedings for recovery of the duty and penalty covered by the same, cannot be directed against them under Section 46 of the Indian Income-tax Act, 1922 which has been applied to the Estate Duty Act by S. 73(5) thereof.

17. On behalf of the 1st respondent, it was claimed that proceedings for assessment evidenced by Ext. P-1 were taken bona fide representation of the Estate of the deceased, with the result that all accountable persons, including the petitioners are bound by the assessment. The plea in this form was not taken in the counter-affidavit, and the petitioners have had no chance to meet it. I cannot entertain it under Article 226 of the Constitution I may also express my views on the merits of the plea.

18. 1st respondent's counsel relied upon decision in Alfred v. First Addl. Income-tax Officer, Salem, AIR 1958 Mad 11 and also on the recent decision of the Supreme Court in First Addl. Income-tax Officer, Kozhikode v. Mrs. Suseela Sadanandan, (1965) 57 ITR 168 (SC). The Supreme Court observed:

“There is also a large body of authority holding that if a party bona fide impleaded one of the legal representatives as representing the estate of a 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, AIR 1965 SC 1049 has summarised 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 consensus 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 fie 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. Here 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 inter meddled with the estate and was in actual management thereof’.”

19. It was, of course, made clear by the Supreme Court that they should not be understood as having expressed any final views on the question.

20. On behalf of the petitioner, reliance was placed on the decision of the Federal Court in Thirtha Lal v. Bhusan Moyee Dasi, AIR 1949 FC 195 in which it was observed:

“It is axiomatic that if a person is not a party to, or properly represented in any proceedings, he cannot be bound by those proceedings. The ordinary rule of law is that in case of death of a party a valid award cannot be given which will bind the estate unless the legal representatives of the deceased are made parties to the reference. This can be done by giving notice to them where the reference is not through Court and where proceeding for substitution of the legal representatives is not necessary. As pointed out by that learned Judge, Sir Ashutosh Mookerjee, in Manindra Nath v. Mohanundra Roy, 13 Ind Cas 181 : 15 Cal LJ 360 the submission to arbitration is not revoked by the death of one of the parties if the intention is that not merely the parties themselves should be bound by the decision of the arbitrator but also their representatives-in-interest; but if the hearing is not completed, it will be necessary to bring the representatives of the deceased party on the record or to make them party to submission. If, on the death of a party, his representative-in-interest proceeds with the arbitration and becomes a party to it, the award pronounced in the reference is binding on him. The principle that in a pending suit all parties must join in the reference also applies to arbitration out of Court. If one of the parties dies and his representatives do not join, the reference would be bad.”

21. Petitioner's counsel contended that there is a fundamental difference between the assessment to income-tax and assessment to estate duty. Be that as it may, it seems to me that the theory of a bona fide representation, of the estate in assessment proceedings, as expounded by the Supreme Court in Suseela Sadanandan's case, (1965) 57 ITR 168 (SC) is inapplicable here. There is no pleading that of the seven persons proceeded against in Ex. P-1 any one or some of them could or did, represent the estate of the deceased Indeed, the principle of representation is unknown to Mohammedan Law by which the parties are governed in the present case. On the facts too, it transpires that at the earlier stage, a notice under Section 55 of the Act was issued to No. (1) in Ex. P-1. At a later stage, No. 7 in Ex. P-1 appeared by Advocate, and gave information about the settlement deed in 1951 Summons to produce the same was again issued to No. 1 in Ex. P-1 At the penalty stage of the proceedings, three of the persons in Ex. P-1 (other than Nos. 1 and 7) appeared on 5-2-1963, and produced the settlement deed dated 25-7-1951 and also the partition deed dated 11-4-1960 from which it was seen that the deceased left other children, besides those proceeded against in Ext P-1. It was No. 6 in Ex. P. 1 that filed an appeal against Ex. P-1. In these circumstances, even if a plea of bona fide representation of the estate were to be entertained, I am inclined to hold against such a plea on the merits.

22. It was argued that the petitioners had no opportunity to prove their case that the estate was not dutiable by reason of the circumstances detailed in sub-paragraphs (c) and (d) of para 8 of the affidavit referred to earlier. The point is sought to be answered by reference to paragraphs 11 and 12 of the counter-affidavit.

23. It was stated that information from the Agricultural Income-lax Officer, Kottarkara, was to the effect that the deceased had 86 acres and 63 cents of land and that he was assessed on the entire income from these lands from 1955–1956 to 1959–1960 Counsel for the 1st respondent stated that this would not have happened if the settlement deed, of 1951 were a genuine and bona fide transaction, and that only lands covered by the Agricultural Income-tax assessment were taken into account for purposes of estate duly but, the fact remains that the petitioners never had any change to show that the settlement deed of 1951 was a real and genuine transaction. There is further nothing to show that the petitioner's case that a portion of the deceased's Kuthagapattom properties had been assigned away by the Government to strangers dining his lifetime, and that a portion had been sold away for arrears of agricultural income-tax, had even been considered by the Department these allegations are not even traversed in the counter-affidavit, except in a general way in paragraph 11, that the facts stated in the affidavit could not be verified by the Department on account of the non-co-operative attitude of the assessee in Ex. P-1. The fact that an appeal filed against Ex. P1, by one of the assessees was dismissed, as stated in paragraph 13 of the counter-affidavit, can not in my view, advance the case of the Department the petitioners have been denied any opportunity to state their case against the assessment, and the order evidenced by Ex. P-1 offends the rules of natural justice.

24. It follows that neither Ex. P-1 nor Ex. P-3 can be enforced against the petitioners. It follows also that the attachment on the petitioners' moveables evidenced by Ex. P. 2 cannot be proceeded with.

25. A writ of prohibition will issue against the respondents from enforcing Exs. P-1 to P-3, or taking any steps in pursuance thereof against the petitioners.

26. The O.P is allowed as above. There will be no order as to costs.

27. Nothing contained in this judgment shall be understood as an expression of opinion by me against the validity or effect of Exs. P-1 and P-3 against those who are parties to the said proceedings.

LI/D.R.R

28. Petition allowed.

Ameen Pillai Rawther... v. Asst. Controller Of ...