SUMATI LAL BANTHIA Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) BRIEF facts of the case are that one Smt. Rajkumari Maloo expired on 7-6-1957. She was regularly assessed under the provisions of Income Tax Act and Wealth Tax Act by the I. T. O. , Bikaner. She had no son but had one daughter Bhanwari Bai who was married to shri Manmal Kothari. Smt. Bhanwari Bai had pre- deceased Smt. Rajkumari Maloo. Smt. Bhanwari Bai had two daughters- Kanchan Bai and Kamla Bai and two sons - Jethmal and Ajaypal. It is said that Smt. Rajkumari adopted one chorulal as his son but unfortunately, said chorulal died. It was alleged that a will was executed by Smt. Rajkumari in her life time on 5-6-1951. In the said will, Smt. Rajkumari's brother-Champalal Banthia was the executor named, said Shri Champalal Banthia submitted petition before this Court for obtaining probate upon which S. B. Civil Testamentary case No. 2/1969 was registered. In that testamentary proceedings, said Chorulal submitted caveat and opposed the grant of probate for the will dated 5-7-1951. In the said proceedings, an issue was framed whether Chorulal was validly adopted by Smt. Rajkumari on 12-2-1951 through her husband Balchand as well as the issue whether Smt. Rajkumari executed the will dated 5-7-1951. Since the matter was contested, therefore, the issues were decided after contest and this Court after recording evidence of the parties, decided issue No. 1 and declared that Chorulal was legally adopted by Smt. Rajkumari on 12-2-1951. On question of execution of the will dated 5-7-1951, this Court held that the applicant failed to prove the due execution of the will. With these findings, the probate petition was dismissed by this Court vide order dated 7-9-1977.

(3.) LEARNED counsel for the respondents vehemently submitted that the executor of the will is a person who entitled to intermeddle with the properties of the deceased and thereby he is a person in the capacity of trustee and, therefore, is accountable person under section 53 of the Act of 1953. It is also submitted that Section 53 also includes the persons who may not have lawful title vesting in them but who received the property or remained in possession of the property also. It is also submitted that even as per Section 303 of the Indian Succession Act, 1922 (for short `the Act of 1922'), a person may become the executor by his own wrong. In this case, admittedly, deceased Champalal Banthia dealt with the properties of deceased Smt. Rajkumari Maloo and this fact is an admitted fact. Therefore, liability has been created by Section 304 of the Act of 1922 which very clearly provides that when a person has so acted as to become an executor of his own wrong, then he is answerable to the rightful executor or administrator or to any creditor or legatee of the deceased. In this case, Champalal Banthia himself submitted return before the authority concerned and, therefore, he cannot say that he was not liable or accoutanble person under Section 53 of the Act of 1953. Further the issue has been decided against deceased Champalal and it has been held that he is accountable person and that order passed became final and, therefore, the petitioner cannot challenge the liability of Champalal which was created by lawful order. In view of the above reasons, notice was rightly issued to the petitioner after the death of Shri Champalal. Further, it is submitted that the petitioner's contention that he has not received any property of deceased of Smt. Rajkumari through Champalal or otherwise is a question of fact which cannot be decided in the present writ petition as the writ petition has been preferred against the order dismissing the appeal by the appellate authority for which was dismissed want of prosecution. It is submitted that the respondent department has every right to recover the revenue from the persons who are liable to pay. In the alternative, it is submitted by learned counsel for the respondents that at the most, the matter can be remanded back so that the claim of the petitioner can be examined by the competent authority to find out whether he is liable to any property of Smt. Rajkumari or not.