Chinnnappa Reddy, J.
1. The petitioner is the widow of late Sri Siddappa of Gorantla who dies on 23-11-1961. Late Siddappa left behind him his widow, the petitioner his daughter Gowramma by a deceased wife, and his permanently kept mistress Mudiramma. About five years prior to his death Siddappa made a gift of Rs. 1,38,000/-, Rs. 69,000/- to T. M. Nagaraju son of Bhagirathamma, Daughter of the petitioner and Rs. 69,000/- to Mallikarjunappaa and Vaiswanadhapa, sons of Gowramma. Bhagirthmma predeceased her father. By a will dated 10-6-1957 Siddappa bequeathed the properties mentioned in the A Schedule annexed to the will to Gowramma with limited interest and thereafter to her sons, properties mentioned in the B Schedule to the petitioner with limited interest and thereafter to her daughter and her daughter's sons and the properties mentioned in the C Schedule to Mudiramma with absolute rights. After the death of Siddappa the Assistant Controller of Estate Duty passed an order dated 8-10-64 treating the petitioner as the accountable person and determining the net value of the estate at Rs. 2,08,354/- . The Assistant Controller treated the sum of Rs. 1,38,000/- as an asset of the estate on the ground that the gifts of cash to the grandsons were not bona fide gifts because no gift tax was paid thereon.
On 8-3-65 the Assistant Controller issued notices to the petitioner Gowramma and Mudiramma calling upon them to pay the proportionate estate duty which he determined at Rs. 5430-96 in the case of Gowramma, Rs. 5405-52 in the case of the petitioner and Rs. 167 in the case of Mudiramma. Meanwhile the accountable person, namely the petitioner, preferred an appeal to the appellate Controller of estate Duty objecting to the inclusion of the sum of Rs. 1,38,000/- in the estate of the deceased. The appellate Controller allowed the appeal on 24-8-65 and held that the amount could not be treated as an asset of the estate.
The Department preferred an appeal to the Income-tax Appellate Tribunal. The Tribunal rejected the appeal by its order dated 16-6-67. The Tribunal upheld the gifts as true and valid. The Tribunal also relied on the circumstance that the will D/- 10-6-57 made no reference to the cash of Rs. 1, 38,000/- and inferred therefrom that the amount of cash had ceased to be part estate of Sidappa. After the disposal of the appeal by the appellate Controller and during the pendency of the Department appeal before the Appellate Tribunal the Gift Tax Officer, Hindupur issued notices to the petitioner under Section 16(1) of the Gift Tax Act intimating her that a gift which was assessable to tax for the assessment year 1958-59 had escaped assessment and proposing to assess the said gift. The petitioner thereupon filed the present application for the issue of a Writ of Mandamus to prohibit the Gift Tax Officer form taking proceeding in pursuance of these notices.
2. The petitioner alleged in the affidavit filed in support of the Writ Petition that there were three legal representatives of the deceased Siddappa, herself, Gowramma and Mudiramma and that the Gift Tax Officer issued a notice under Section 16(1) of the Gift Tax Act only to her and not to the other two legal representatives. She therefore stated that the notice issued to her was bad in law. The Gift Tax Officer filed a counter-affidavit referring to the fact that in the estate duty proceedings the petitioner was treated as the accountable person and stating that he had no knowledge of nay other legal representatives of the deceased except the petitioner. According to him, there was no satisfactory reason to believe that there were other legal representatives of the deceased apart form the petitioner. he put the petitioner to strict proof of the allegation that there were other legal representatives.
To say the least, the counter-affidavit of the Gift Tax Officer is very unsatisfactory. It was his duty to make an enquiry regarding the existence of legal representatives other than the petitioner if not before issuing the notice to the petitioner, at least after the petitioner file the present Writ Petition making an express allegation that there were other legal representatives. to say that he had no satisfactory reason to believe that there were other legal representatives, is only to pretend to be blind to glaring facts. In his counter-affidavit the Gift Tax Officer referred to the proceedings of the Assistant Controller of Estate Duty, the appellate Controller of estate Duty and the appellate Tribunal. The order of the Appellate Tribunal referred tot he will executed by late Siddappa where in he referred to his daughters, grandchildren and his mistress, apart from the petitioner. The Assistant Controller of Estate Duty had made an order apportioning the duty payable between the petitioner, (and Mudiramma?).
3. In the face of these facts we do not see how the Gift Tax Officer could venture the statement that he had no knowledge that there were other legal representatives and that there was no satisfactory reason to believe that there were other legal representatives. It can only mean that the mean that the Gift Tax Officer was in different and did not care to enquire into the question as to who were the legal representatives of Siddappa and to acquaint himself with the necessary and relevant facts. Sri Ananta Babu, learned counsel for the Department tried to urge that even if here were other legal representatives, there was nothing to indicate that the Gift Tax Officer was in a position to know who the others were or that there were other legal representatives in existence on the date of the issue of notice. We are not a little surprised at this argument because if notices were issued to the petitioner. Gowramma and Mudiramma by the Assistant Controller of Estate Duty apportioning the duty between them and if the reason for the notice of the Gift Tax Officer was the infructuous attempt of the Assistant Controller to levy estate duty we see no reason why the Gift Tax Officer should have assumed that the petitioner alone was alive and that the other were not.
4. The question for consideration is what is the effect of the failure of the Gift Tax Officer to enquire and find out all the legal representatives of late Siddappa on the notice issued to the petitioner. Under Section 16(1) (a) of the Gift Tax Act where a Gift Tax Officer has reason to believe that by reason of the omission or failure on the part of the assessee to make a return of the gifts made any taxable fits has escaped assessment, he May at any time within eight years serve on the assesse a notice containing all or any of the requirements which may be included in a notice under Section 13.
Under Section 19 of the Act where a person dies, his executor, administrator or other legal representative shall be liable to pay out of the estate of the deceased person, to the extent to which the estate is capable of meeting the charge, the gift tax payable by such person or any sum which would have been payable by him under the Act. The third sub-section of Section 19 also provides that the provisions of Section 13, 14 and 16 shall apply to an executor, administrator or other legal representative as they apply to any person referred to in those Sections. 'Legal Representative' is defined in Section 2(xvi-b) of the Act as having the same meaning assigned to it as in Section 2 (ii) of the Code of Civil procedure. Section 2 (ii) of the Civil Procedure Code defines a 'legal representative' as meaning a person who in law represents the estate of a deceased person, and includes any persons who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.
We have already said that Section 19(3) makes Sections 13 and 16 applicable to legal representative. One of the results of the applicability of Sections 13 and 16 to a legal representative is the necessity to give notices to all the legal representatives if action if proposed to be taken under Section 16 of the Act on the ground that the gifts made by a deceased person have escaped assessment. Considering the provisions of section 24-B of the Income-tax Act of 1922 which are similar to the provisions of Section 19 of the Gift Tax Act a Division Bench of this Court consisting of Manohar Pershad, C. J. and Sharfuddin Ahmed, J. affirming a judgment of Gopalakrishnan Nair, J., held in Income-Tax Officer v. Muram Reddy sulochannamma : 64ITR106(AP) that a notice served on some out of several legal representatives was bad in law. The learned Chief Justice observed:---
'The question whether notice to one legal representative is sufficient or not or whether all the legal representatives have to be served with notices had come up before a Bench of the Madras High Court in the case of E. Alfred v. First Addl. Income-tax Officer, Salem and it has been held that in cases where an assessment under the Indian Income Tax Act is sought to be reopened and where the assessee is dead before the issue of a notice under Section 34 of the Act, the assessment could be completed only according to the provisions of Section 24-B (2) of the Act. The liability imposed under Section 24-B (2) of the Act attaches itself to all the legal representatives of a deceased on whom notices are served and as such all legal representatives of the deceased assessee are liable to be served with such notices.'
A reference was made to the observations of Sir Shadi Lal C. J. in Muhammad Hassan v. Inayat Hussain, AIR 1927 Lah 94 :
'These words mean the representation before the court of the plenary interest of the deceased party. Sometimes that interest may be represented by a single individual but it May also be represented by a number of persons as the case may be. But there should be a complete representation of the interests of the deceased person, whether through a single individual or through a number of persons, so that there cannot be a partial representation of that interest. In other words, the expression, 'legal representative, means and includes one person as will as several persons according as they represent the whole interest of the deceased person.'
The learned Chief Justice also referred to the observations of the Privy Council in Khirajmal v. Daim, (1905) 32 I A 23 :
'Ordinarily therefore, it is necessary to implead all the legal representatives of the deceased person on the record and a few of them do not represent the whole interest of the deceased and, if all are not made parties to the suit or appeal, it results in the abatement of these proceedings. on similar principles, before an arbitrator proceed further with the reference and give a binding award he should give notice to all the legal representatives of the deceased party and attempt to made them parties to the reference by notice though he may not be bound to follow the strict procedure of law required for substitution of parties under Order 22 of the Code of Civil Procedure.'
Holding that the estate of the deceased in the case before them could not be said to be represented by the person on whim the notices were served, the Learned Judges further held that the failure of the Income-tax Officer to issue notices to some of the legal representative rendered the notices to other legal representatives also invalid. We are bound by the decision of the Division Bench. Sri Ananta Babu, at one stage, faintly suggested that the decision required reconsideration. He did not however pursue the argument and no good reason was shown to us why we should take a different view.
5. In First Additional Income-tax Officer v. Buseela Sadanandan : 57ITR168(SC) their Lordships of the Supreme Court accepted the statement of the law made by Mahajan, J. in Tirthalal v. Shusan Kemoyardai that if there were two or more legal representatives of a deceased person, all must be impleaded to make the representation complete. Their Lordships however added that if a party after diligent and bona fide enquiry ascertained who the legal representatives of a deceased defendant were and brought them on record within the time limited by law, there would be no abatement and the impleaded legal representatives would sufficiently represent the estate of the deceased.
Basing his submission on this statement Sri Ananta Babu submitted that it was enough if the proceedings was initiated within the prescribed time against one of several legal representatives and that notices could be issued to other legal representatives alter. Their Lordships the Supreme Court took care to say in the above mentioned case that in order that few of several legal representatives may sufficiently represent the estate there must be a diligent and bona fide enquiry to ascertain the legal representatives. We have already pointed out that there was no bon fide attempt by the Gift Tax Officer to ascertain the legal representatives of Siddappa.
The petitioner was not a universal legatee under the will. She was given, but a life estate, in some items of property. The will and the proceedings and the Assistant Controller of Estate Duty apportioning ht estate duty shoed that there was also a daughter living. The petitioner was therefore not the sole residuary heir either. Viewed form any angle the petitioner was not the sole legal representative and that should have been patent even to the Gift Tax Officer. We have therefore no option but to allow the Writ Petition. The petitioner is entitled to her costs. Advocate's fee Rs. 100/-.
6. Petition allowed.