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TMI Blog1964 (10) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... e than one decision that the existence of an alternative remedy is no ground for refusing to issue an appropriate writ under article 226 of the Constitution if fundamental rights are affected. The High Court, therefore, rightly disposed of the petition on merits. 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 - - - - - Dated:- 29-10-1964 - Judge(s) : K. SUBBA RAO., J. C. SHAH., S. M. SIKRI JUDGMENT The judgment of the court was delivered by SUBBA RAO J.-- This appeal by special leave is directed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2nd respondent issued two notices to the 1st respondent ; one was a notice of attachment under section 27 of the Madras Revenue Recovery Act II of 1864, attaching the properties mentioned therein for recovery of a tax of Rs. 13,09,352-3-0 and stating that if the said amount was not paid on or before December 7, 1956, the attached properties would be sold, and the other was a notice of sale of land issued under section 36 of the said Act proclaiming that most of the attached properties would be sold on December 8, 1956. For one reason or other---the details need not be given here---the properties were not sold pursuant to the said notices. On November 15, 1957, the 2nd respondent issued fresh notices under sections 27 and 36 of the said Act demanding that the said amount should be paid on or before February 9, 1958, and stating that if the said amount was not paid on or before the said date the said attached properties would be sold on February 10, 1958. Thereafter, the 1st respondent filed O. P. 70 of 1958, under article 226 of the Constitution in the High Court of Kerala at Ernakulam for quashing the notices of attachment and for restraining the 2nd respondent from taking any step ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 34 of the Act were void on the ground that they did not comply with the provisions of sub-sections (1) and (2) of section 24B of the Act. Under sub-section (1) of section 24B 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 had not died. Under the said sub-section the liability of the legal representative is limited to the extent to which the estate is capable of meeting the charge. Under sub-section (2) thereof, if a person dies before the publication of the notice referred to in sub-section (1) of section 22 or before he is served with a notice under sub-section (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 the General Clauses Act (Central Act X of 1897), words in si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Indian Succession Act no rights as executor can be established in any court of justice : see Ganshamdoss Narayandoss v. Gulab Bi Bai and Hem Nolini v. Isolyne Sarojbashini. The effect of the non-probate of a will on the status of the executor has been the subject of innumerable decisions in this country. A detailed consideration of the said decisions is out of place in the present context. In Williams on Executors and Administrators, vol. 1, 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 24B 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 as 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 intended to be our final decision thereon, but only to afford a guide to the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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