JUDGMENT
P.N. Bhagwathi, C.J.
1. There is only one question which now remains to be determined on this reference. There were originally five question referred to us for our opinion but of them, the third was not pressed on behalf of the assessee and the first, second and fourth were decided against the assessee when the reference was earlier heard by us. Our decision disposing of those question is now reported as Chooharmal Wadhuram v. Commissioner of Income-tax. The first question could not be disposed of by us at that time as we felt that in view of certain observation made by the Supreme Court in First Addl. Income-tax Officer v. Mrs. Suseela Sadanadan, it was necessary to calls for a supplemental statement of the case. The supplemental statement of the case has how been received and hence, the reference is before the us for the determination of the fifth question.
2. The fact giving rise to the reference have already been stated by us in our earlier judgment and it is, therefore, not necessary to rehearse them over against but in order that the discussion of the argument which have been advanced before the us may be intelligible, it would be desirable if we state a few facts bearing directly on the fifth question. The notice issued by the Income-tax Officer for reopening the assessment of the deceased, Chooharmal Wadhuram, for the assessment years 1946-47 and 1947-48 under section 34 (1) (a) were addressed to “Chooharmal Wadhuram, legal representatives – Daulatram and others” and though there were admittedly apart from Daultaram, other legal representative of Chooharmal Wadhuram, namely, three other sons and a widow named Lilavati, the notices were served only on Daulatram and were not the served on the other legal representatives. On these facts the assessee contended that, since the notice were not served on all the legal representatives of Chooharmal Wadhuram, the proceedings were not validly initiated and the order of the assessment made against the assessee invalid. The Tribunal took the view that so far as the account in the name of Daulatram Chooharmal with Messrs. Narandas Parshottamdas was concerned, Daulatram had operated on this account and all the adjustment which had been made in this account were the result of negotiations between the Daulatram and Messrs. Narandas Parshottamdas and Daulatram had, therefore, the administered that part of the estate of Chooharmal Wadhuram which consisted of the amount deposited in this account and, in the circumstances, the notices served on Daulatram as legal representative of the deceases were sufficient to bind his estate. The validity of this view taken by the Tribunal is challenged before the us behalf of the assessee and the point which is the raised in the fifth question is whether the proceedings under section 34 (1) (a) were validly initiated by serving notice under section 34 (1) (a) on Daulatram alone, though there were, besides him, other legal representatives of the deceased.
3. Now, the notices were admittedly issued by the Income-tax Officer under section 34 (1) (a) read with the section 24B (2) since the income which was sought to be assessed was the income the Chooharmal Wadhuram, who was dead at the date when the notice were issued. The determination of the problem before us, therefore, depends on the true interpretation of section 24B(2). What does section 24B(2) require ? Does it say that the notice under section 34 must be served on all the legal representative of a deceased assessee in order to make an assessment binding on his estate or is it enough if the notice is served on only one of the legal representatives ? To answer the question we must look at the language of section 24B (2) and the examine the principle on which it is founded. Section 24B was introduced in the Income-tax Act by Central Act XVIII of 1933, with a view to removing the lacuna pointed out by the Bombay High Court in Ellis C. Reid v. Commissioner of Income-tax. The Bombay High Court pointed out in this case that the according to the law as it then stood, where the person died after the commencement of the assessment year but the before his income of the previous year was assessed, his executor was not liable to any the tax and if the death occurred whilst assessment proceedings were pending, the proceedings could not be continued and the assessment could not be made the after person death. This act of machinery for assessment of income of a deceased person was remedied by the legislature by section by section 24B, which reads as follows :
“24B. Tax of deceased person payable by representative. – (1) Where a person dies, his executor, administer or other legal representative shall be liable to pay out the estate of the deceased person to the extent to the which the estate is capable of meeting the charge the tax assessed as the payable by such, person, or any tax which would have been payable by him under this Act if he had not died.
(2) Where 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, as the case may be his executor, administrator or other legal representative shall, on the serving of the notice under sub-section (2) of section 22 or under section 34, as the case may be, comply therewith, and the Income-tax Officer may proceed to assessee the total income of deceased person as if such executor, administrator or other legal representative were the assessee.
(3) Where a person dies, without the having furnished a return which he has been required to furnish under the provision of section 22, or having furnished a return which the Income-tax Officer may make an assessment of the total income of such person and determine the tax payable by him on the basis of such assessment, and for this purpose may, by the issue of the appropriate notice which would have had to be served upon the deceased person had he survived, require from the executor, administrator or other legal representative of the deceased person any account, document or other evidence which he might under the provision of section 22 and 23 have required from the deceased person.”
4. Sub-section (1) of section 24B makes inter alia, the legal representative liable to pay out of the estate of deceased person to the extent to which the estate is capable of meetings the charge, the tax assessed as payable by such person or any tax which would have been the payable to him under the Act if he had not died. The effect of the sub-section is, to the quote words of Hidayatullah J., as he then was, in Addl. Income-tax Officer v. E. Alfred that :
“……………… a legal representative is made liable to pay the tax which might have been assessed but not paid by the deceased person or which the be assessed after his death. It covers all situations and contingencies, and makes the liability absolute, limited, however, to the extent to which the estate of the deceased is capable of meetings the charge.”
5. Sub-section (2) and (3) of section 24B provide the machinery for assessment of income of a deceased person after his death. Sub-section (2) says that where a person dies before the publication of a general notice or before he is served with a person dies before the publication of a general notice or before he is served with a special notice under section 22 or section 34, his legal representative shall, on the service of the special notice, comply with such notice, and the Income tax officer may proceed to assess the total income of the deceased person as if the legal representative were the assessee; sub-section (3) provides that where a person dies after he is required to furnish a return but without having furnished such return, or where he had furnished the return but the Income tax officer has reason to believe it to be incorrect, the Income-tax Officer may make the assessment of total income of such deceased person, and determine the tax after serving such notice, as may be required under section 22 or section 23, upon the legal representative of the deceased person to produce the account, document or other evidence. We are concerned here with sub-section (2) of section 24B, since Chooharmal died before the services of the notice under the section 34 (1) (a) and we must, therefore, closely examine the language of that provision.
6. Section 24B, sub-section is founded on the principle which has been stated in the following words by Salmond on Jurispudence, twelfth edition, at page 120 :
“The right which a dead man thus leaves behind him vest in his representative. They pass to some person whom the dead man, or the law on his behalf, has appointed to represent him in the worlds of the livings. This representative bears the person of the deceased, and therefore, has vested in him all the inheritable rights, and has imposed upon him all the inheritable liabilities of the deceased. Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representative is in some sort identified by the law with him whom he represents.”
7. Since the person whose income is to be assessed is dead, his liability to be assessed is enforced against those who “represent him in the world of living,” or, in other words, those who represent his entire person in relation to his estate. Sub-section (2) of section 24B requires that the notice under section 22, sub-section (2) or section 34, as the case may be shall, be served on the executor, administrator or other legal representative of the deceased and the Income-tax Officer may then proceed to assess the total income of the deceased as if such legal representative were the assessee, that is to say, for the purpose of assessment, legal representative would represent the deceased person. Now where there is only one legal representative, there can be no difficulty. Service on him would be enough. But where there are more than one legal representative is it necessary to serve all or is service on one sufficient for making an order of assessment? Section 13(2) of the General Clauses Act (X of 1897) says that words in the singular will include their plural also. The expression, “legal representative” in section 24B, sub-section (2), must, therefore, take in the plurality of legal representatives. There is high authority for this proposition in the decision of the Federal court in Tirtha Lal v. Bhusan Moyee Desaii, where Mahajan J. said :
“The expression ‘legal representative’ must when there are two or more legal representatives be read in the plural. All legal representatives must be brought on the record and if refuses to join as plaintiff, he should be joined as a defendant.”
8. The learned judge quoted with approval the following passage from the judgment of Sir Shadi Lal C. J. in Muhammad Hassan v. Inayat Hussain :
“These words mean the representation before the court of the plenary interest of the deceased party. Sometimes that interest may be represented by a number of person as the case may be. But there should be a complete representation of the interest of the deceased person, whether through a single individual or through the number of person, so that there cannot be a partial representation of that interest. In other words, the expression ‘legal representative’ means and includes one person as well as several persons according as they represent the whole interest of the deceased person.”
9. Their Lordship of the Privy Council also expressed a similar view in Khiarajamal v. Daim. In that the case one Naurez had died and in at suit brought against this estate, Amirbaksh, by a guardian, Alahnawaz, was impleaded as the legal representative. Amirbaksh was one of the heirs of the Naurez but in no other sense his legal representative. Alahnawaz was not the in any legal sense his guardian. It was contained that Naurez’ heirs were bound by the proceedings in the suits and that this share of the property, what ever it was, was effectively sold in the suit, or at any rate that the share of Amirbaksh himself passed by the sale. Their lordships held that the estate of Naurez was not represented in law or infact in the suit and the sale of the property was without jurisdiction and null and void. It was further held that the share of Amirbaksh in his father estate was not bound Their Lordships expressed the opinion that this was not a mere question of form, but one of substance. It would therefore, seems clear that were a person dies leaving more than one legal representative, the Income-tax Officer must proceeds to assess the total income of the assessee by serving notice under section 22(2) or section 34, as the case may be, on all the legal representative. If the notice is served on only one legal representative, there would be no complete representation of the estate or, to use the words of Salmonds, “of the person of the deceased.” One only out of several legal representative would not represent the whole interest of the case and if the whole interest of the deceased is not represented before the Income-tax Officer, it is difficult to see how the Income-tax Officer can proceeds to assess the total income of the assessee. The assessment must on the principle and authority be made on those who represent the whole interest of the assessee – his entire estate – and assessment on only one of theme who partially represent the estate of the deceased, cannot be regarded as the sufficient to bind the estate of the deceased. This view is clearly supported by two decision so the Madras High Court, namely, E. Alfread, v. First Additional Income-tax Officer and Muniyemmal v. Third Additional Income-tax Officer, and one decision of the Mysore High Court namely, Commissioner of Income-tax v. N. A. Mandagi. There are also observations to the same effect in the judgment of the Supreme Court in the First Additional Income-tax Officer v. Mrs. Suseela Sadanandan where Subba Rao J., speaking on behalf of the Supreme Court observed :
“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 representative as the case may by.”
10. The observation of the Supreme Court would have ordinarily obviated any necessity on our part of the examine the question on principle but we find that towards, the close of the judgment, it has been stated by the learned judge that the whatever observation have been made on any point which would include these observation, are not intended to be the final decision of the Supreme Court on the point. Even so, the emphatic manner in which these observation have been made, supported as they are by a discussion of the legal principle and the relevant authorities on the point, clearly shows that the great weight must attach to these observations.
11. When we accept the general rule that the Income-tax Officer must proceed against all the legal representative of a deceased person by serving a notice on them, it does not mean that the rule must be applied with the unmitigated rigour in all kinds of the cases irrespective of their peculiar facts. There may be ceases where, though there are several legal representative, on may represent the whole interest of the deceased and in such a case there being complete representation of the interest of the deceased before the Income-tax Officer, the assessment made would bind the estate of the deceased. Such case may arise, for example, where one legal representative is managing the entire estate of the deceased and he, therefore, completely represents the interest of the deceased. This was the exception which the Supreme Court had in mind when it said in first Addl. Income-tax Officer v. Mrs. Suseela Sadanandan that :
“If it had been established that E. D. Sadanandan had alone been managing the entire the 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.”
12. Then there may be cases where though the one legal representative is served, he appears in the proceedings with the consent express or implied, of the other legal representatives : in such cases too the estate would be properly and completed represented by one legal representative and the assessment would be binding on the estate. That is why the Supreme Court observed in Mrs. Suseela Sadanandan case :
“Though notices were served only on one of the executors, the proceedings, mights show that the estate was properly represented by E. D. Sadanandan with the consent, express or implied, of the other executor and heirs.”
13. The last class of cases which may arise is where the Income-tax Officer bona fide and diligently believes one or more the only legal of them and subsequently it is found that, besides, those served, there were also other legal representatives of the deceased. There is no reason why in such cases the general rule evolved in the field of civil law should not be applied. It is now well settled as a result of the decision of the Supreme Court in Daya Ram v. Shyam Sundari, that :
“………… where a plaintiff or an appellant after diligent and the 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 representative 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.”
14. Though this rule has been laid down by the Supreme Court in the context of suits and appeals, it is one of general application and there is no reason why it should not be invoked in the case of the assessment of income of a deceased person in the hands of his legal representative. If this principles were rejected in its application to assessment of income of a deceased person and result in escarpment of such income from taxation without any fault on the part of the revenue authorities. What more can be expected from an Income-tax Officer than to make diligent and bona fide inquiry to find out who the legal representatives of the deceased assessee are and to serve notice on all those who are as a result of such inquiry ascertained to be the legal representatives? If the Income-tax Officer does this, it is all that the it is all that as the a reasonable man he can be expected to do and the legal representatives who are served would sufficient represent the estate of the assessee : vide First Addl. Income-tax Officer v. Mrs. Suseela Sadanandan. These are some kinds of the legal representatives are serves with notice. They constitute exceptions to the general rule which requires that the where an assessee dies leaving more than one legal representative, the Income-tax Officer must proceed to assess the income of the deceased by serving notice on all the legal representatives. These exception proceeds on the same principles on which the general rule is based, namely, that there must be complete representation of the estate of the deceased in the proceedings before the Income-tax Officer and it is because in the case falling within the exceptions one or more legal representation completely represent the estate of the deceased that it is held that service on them is enough to being the estate of the deceased.
15. Now turning to the facts found by the Tribunal, it is clear that the present cases does not fall within the any of the exceptions. There is nothing to show that Daulatram was in the management or administration of the entire estate of the deceased Chooharmal Wadhuram. On the contrary, the finding of the Tribunal is that the Daulatram had administered only that the part of the estate of Chooharmal Wadhuram which consisted of the amounts deposits in the account with Messrs. Narandas Parshottamsdas. It also appears from the record referred to in the supplemental statement of the case that the return showing the income of the deceased. Chooharmal, Wadhuram, for the assessment year 1953-54 was field by his widow, Bai Lilavati and the assessment order was also made on Bai Lilavati as legal representative of the deceased, Chooharmal Wadhuram on 31st December, 1953, long before the impugned notices were issued. It is, therefore, not possible to say that Daulatram managed or administered the whole of the estate of the deceased so as to be able to represent completely the estate of the deceased in the proceedings initiated by issued of the impugned notice. There is also no finding of the Tribunal nor the any material on record to show that Daulatram represented the estate of the deceased with the consent, express or implied, of the other legal representative. Merely because Daulatram appeared pursuant to the notice served on him and contested the proceedings, it does not follows that the did so with the consent, express or implied, of his brothers and widowed mother who were the other legal representatives. As a matter of fact, he raised an objection that the proceedings were not validly initiated since the notice were served on him alone though there were other legal representative of the deceased. The second exception which were have set out above cannot, therefore, apply. The supplemental statement of the case also negatives the applicability of the last exception. It is clear from the supplemental statement of the case that the Income-tax Officer knew that there were, besides Daulatram, other legal representatives of the deceased and yet he did not choose to service notice on them. The Tribunal has found in the supplemental statement of the case that the Income-tax Officer did not believe and could not possibly have believed Daulatram to be the sole legal representative of the Chooharmal Wadhuram and, since he knew that there were other legal representatives, there was no occasion for him to make any inquiry and there was, therefore, no inquiry, much less a diligent and bona fide inquiry. It is, therefore, not possible to hold that service of the notices on Daulatram alone was sufficient to bin the estate of Chooharmal Wadhuram. Daulatram did not completely represent the estate of the deceased, the estate was only partially represented and, therefore, the assessment of the income of the deceased, Chooharmal Wadhuram was not in compliance with the requirement of section 24B, sub-section (2).
16. The revenue, however, contended that even if the service of the notice on the Daulatram alone was not sufficient to bind the estate of the deceased in the sense that the order of the order of assessment could not be enforced against the other legal representatives who were not served with the notices, it was valid as the against Daulatram since Daulatram was a legal representative of the deceased and he was served with the notices. This contention over looks the basis principles that in order to assess the income the of a deceased person the assessment must be made on the all those who represent his interest or estate wholly and completely. There must be complete representation of the estate of the deceased in the proceedings. Otherwise, the position would be as if the deceased is not before the Income-tax Officer and obviously no assessment of income of the person can be made in his absence. One legal representatives does not represent the deceased; all the legal representatives together represent him and, therefore, they must all be before the Income-tax Officer in order to enable him to make a valid assessment of the income of the deceased. The assessment which is made is the assessment of the income deceased and it cannot be valid as against one legal representative and invalid as against another. Once the assessment is made the in compliance with the requirement of section 24B sub-section (2), and it is valid assessment the amount of tax assessed can be recovered from all the legal representatives under section 24B (1). Section 24B (1), as pointed out by Hidayatulah J. in Addl. Income-tax Officer v. Alfred make the legal representative liable to pay not only the tax which might have been assessed but not paid by the deceased but also the tax which might be assessed after his death. The tax which is determined by the Income-tax Officer by serving notice only on one or some of the legal representatives is tax which would have been payable by the deceased if he had not died and it would, therefore, logically, seem that it should be recoverable from the estate of the deceased in whosoever hands, whether he be a legal representative who is served or a legal representative who is not served and that is exactly what is provided by section 24B (1). But this would lead to a highly anomalous situation that the assessment of income of a deceased person made by the serving notice on one legal representative would be enforceable against another legal representative though he is not served with notice and had not opportunity of contesting the assessment proceedings. The legislature surely could not have intended to bring about such as extraordinary result. The correct view seems to be that if the Income-tax Officer wants to assess the income of a deceased person after his death, he must serve notice on all the legal representative so that the interest or estate of the deceased is completely represented before him and the assessment made by him is binding on the estate.
17. Strong reliance was placed on behalf of the revenue on the decision of the Supreme Court in Additional Income-tax Officer v. E. Alfred but we do not see how this decision is of any help to us in determining the question before us. The only point which fell for determination before the Supreme Court in this case was whether a legal representative who was served with the notice under section 22(2) and against whom the proceedings were initiated for assessing the income the of a deceased person was an “assessee” on whom penalty could be imposed under section 46 (1). The Supreme Court held that, since, a legal representative is deemed to be an assessee under section 24B (2), the fiction must be carried to its logical conclusion and the legal representative must be held to be an assessee also for the purpose of the applicability of section 45 and 46(1). There was no question before the Supreme Court whether service of notice on only one of the legal representatives was sufficient for valid initiation of proceedings. It was assumed before the Supreme Court as before the revenue authorities, the Tribunal and the High Court, that the assessment proceedings were validly initiated and the amount of tax validly determined and the only question put in issue was whether penalty could be imposed on a legal representative under section 46(1) if he defaulted in payment of tax and it was this question which was answered against the legal representatives. This decision does not, therefore, throw any light on the question before us.
18. We are, therefore, of the view that proceedings for the assessment year 1946-47 and 1947-48 under section 34 (1) (a) were not validly initiated by serving notices on Daulatram alone since there were admittedly, besides Daulatram, other legal representatives of the deceased who were not served. Our answer to the fifth question would, therefore, be in the negative. There will be no order as to costs.