1. Out of these eight appeals for the assessment years 1977-78 to 1980-81, four related to Mrs. Veera D. Thackersey, while the remaining four related to her daughter Mrs. Asha Ostowari.
2. Mrs. Veera, who was a Christian lady, obtained divorce from her husband Mr. Richard Withenbury by a decree dated 38-12-1946 and thereafter married Shri Dhairyawan on 11-1-1949 under the provisions of the Special Marriage "Act, 1872. The other assessee, Mrs. Asha, is the daughter of Dhairyawan and Mrs. Veera. Shri Dhairyawan died on 6-10-1973. After his death, Dhairyawan's mother Mrs. Manekbai challenged the validity of the marriage of Dhairyawan with Mrs. Veera.
Mrs. Veera applied for letters of administration. The First Civil Judge, Senior Division, Pune, upheld the validity of the said marriage and directed that letters of administration be granted to Mrs. Veera on her furnishing solvent in the sum of Rs. 25 lakhs on her producing estate duty certificate.
3. Dhairyawan owned considerable property. The property came in possession of Mrs. Veera and Mrs. Asha on the death of Dhairyawan.
Dhairyawan's mother, Mrs. Manekbai, filed, a suit for the possession of the property of Dhairyawan. In that suit, her alternate prayer was that the property should be partitioned between her and Mrs. Veera and Mrs.
Asha. A compromise took place between the parties in that suit on 23-4-1981, under which the said Mrs. Manekbai agreed to receive certain amounts in cash in full satisfaction of her claim. The property left by Dhairyanwan, remained in joint possession of Mrs. Veera and Mrs. Asha as his legal heirs.
4. Mrs. Veera and Mrs. Asha filed separate returns of their income for the above-mentioned assessment years. Each of them included her half share in the income from the said property in the said returns. In the assessment of Mrs. Veera, the ITO observed that the whole income from the estate of the deceased Dhairyawan should be assessed in the hands of Mrs. Veera in her capacity as administrator of the estate under Section 168 of the Income-tax Act, 1961 ('the Act'). However, Mrs.
Veera had filed return in her individual capacity and not in the capacity of an administrator. Even then, the ITO included the entire income of the estate in the said individual assessments as against half income returned by her. While doing so, he made the following observations : Thus, in view of the wide definition of 'executor' made by Explanation (to Section 168), Mrs. Veera would be covered by the definition and, therefore, the income from the estate of late Shri D.A. Thackersey would be charged to tax only in the hands of his wife Mrs. Veera. Considering the above position of the law, full income from the estate left by Shri D.A. Thackersey is included in the hands of the assessee without prejudice to the entire estate being assessed in the hands of executor/administrator of the estate.
5. It would thus be seen that on the one hand, the ITO held that the entire income was assessable in the hands of executor/administrator under Section 168, while on the other hand, he assessed the entire income in the individual assessments of Mrs. Veera. He did not make the said assessments of Mrs. Veera, a protective assessment. Identical orders were passed in the four assessment years.
6. Similarly, as already stated, Mrs. Asha had filed returns declaring held income from the estate of Dhairyawan as her individual income. The ITO assessed this income on protective basis, on the ground that the said half income from the said estate had already been included in the assessment of Mrs. Veera. Mrs. Veera and Mrs. Asha filed appeals against those assessment orders.
7. The AAC considered all the materials produced before him and held that the properties left by the deceased Dhairyawan were in physical possession of Mrs. Veera and Mrs. Asha, with effect from 6-10-1973, in their capacity of legal heirs of the said Dhairyawan. Consequently, according to him, the provisions of Section 168 were not applicable. He observed that those properties had vested in Mrs. Veera and Mrs. Asha on the death of Dhairyawan and that when those properties had once vested, they cannot be divested by the subsequent events. The appointment of Mrs. Veera as administrator was, according to him, in the nature of an interim appointment and that provisions of Section 168 would not be attracted merely because of the said appointment. He observed that there was no material on record to indicate that Mrs.
Veera worked as an administrator, with effect from 6-10-1973. Mere management of the properties which had already vested in Mrs. Veera and Mrs. Asha in the capacity of legal heirs would not make Mrs. Asha as an administrator within the meaning of that expression in Section 168.
Accordingly, he held that in the relevant assessment years, Mrs. Veera was liable to be assessed in respect of half income derived from the estate, while Mrs. Asha was liable to be assessed for the other half income. He directed the ITO to make the assessments accordingly.
8. As far as the four appeals relating to Mrs. Veera are concerned, the common ground raised is that the learned AAC had erred in holding that the provisions of Section 168 were not applicable in the assessee's case and, consequently, in directing the ITO to accept the half share in the income of the properties left by late Dhairyawan and revise the assessments, accordingly.
9. As far as the four appeals relating to Mrs. Asha are concerned, the common ground raised by the department is that the learned AAC had erred in holding that the assessments made by the ITO in the case of the assessee, Mrs. Asha, was a regular assessment and not the protective assessment.
10. We have carefully considered the submissions made before us. It is an admitted position that the deceased had not executed any will.
Consequently, there was no question of any executor administering the estate of the deceased. Since the deceased had died intestate, the property vested in the legal heirs immediately on his death. In the present case, Mrs. Veera and Mrs. Asha were his heirs. Consequently, the property vested in the said Mrs. Veera and Mrs. Asha. Each of them had undivided half share in the said property. Consequently, half the income from the estate was liable to be included in the individual assessment of each of these two heirs. The contention of the department is that since Mrs. Veera had been granted letters of administration on 30-11-1977 by the First Civil Judge, the entire income was liable to be assessed in the hands of Mrs. Veera as an administrator. Reliance is placed on the Explanation in Section 168.
11. Before we deal with this aspect, we may observe that the department had never treated Mrs. Veera as mere administrator of the estate. This is obvious from the copies of several documents brought on record. In the order passed under Section 154 of the Act, on 7-4-1976 by the ITO in respect of the assessment year 1972-73, the name of the assessee was mentioned as Mrs. Veera and Mrs. Asha, legal heiresses and legal representatives. In letter, dated 25-7-1981, sent by the ITO to the Sub-Registrar for the certificate issued under Section 230A(1) of the Act, it was mentioned that all the properties left by the deceased belonged absolutely to Mrs. Veera and Mrs. Asha from 6-10-1973 as his legal heirs and legal representatives. In the refund vouchers for the assessment years 1971-72 and 1973-74, in respect of the assessments of the deceased, the names of Mrs. Veera and Mrs. Asha were shown as legal heirs of the deceased. Copies of several cheques sent by the estate manager of the Government of India, in respect of rent payable regarding the property left by the deceased, indicate that Mrs. Veera and Mrs. Asha have been mentioned as co-owners. All these materials indicated that Mrs. Veera and Mrs. Asha had acted throughout with effect from the date of death of the deceased as co-owners of the properties left by the deceased and that at no point of time, either of them had acted as mere administrator of the estate. The question is whether in spite of these facts, mere order of the Court granted letters of administration to Mrs. Veera attracted the provisions of Section 168.
12. On behalf of the department, reliance was placed on the decision of the Bombay High Court in CIT v. Mrs. Usha D. Shah  127 ITR 850.
In that case, the assessee, who was a widow was not in possession of the property of her husband and had not received any income from such property. The property was in possession of the mother of the deceased and the said mother had received the entire income. On these facts, it was held that one-sixth share of the assessee was liable to be included in her individual assessment because the entire income was liable to be included in the assessments of the mother as administrator. In our case, the facts are different. Mrs. Veera and Mrs. Asha, unlike in the said decision, were in possession of the entire property left by the deceased as legal heirs and that they had received the income from the property as legal heirs. The property was not in possession of any third person acting as an administrator. The conduct of Mrs. Veera and Mrs. Asha indicated that neither of them had acted as an administrator of the property. In these circumstances, the ratio of the decision of the Bombay High Court would not be applicable.
13. In this connection, we may usefully refer to the subsequent decision of the Bombay High Court in CWT v. Keshub Mahindra  139 ITR 22. In that decision, the Bombay High Court was called upon to examine the precise scope of Section 19A of the Wealth-tax Act, 1957, which is analogous to Section 168 of the 1961 Act. In Section 19A also, there is an Explanation which says that the term 'executor' includes administrator or other person administering the estate of the deceased person. In that case, it was contended that the sole heir should be assessed as administrator of the estate during the period when the said heir was paying the debts of the deceased and thereby administering the estate. This contention was not accepted. It was held that provisions of Section 19A would be applicable only when the deceased had left a will bequeathing the property to the persons mentioned in the will. The observations made in the said decision are as follows : ...Section 19A is a special provision, and unless a person falls within the provisions of Section 19A, it will not be possible to give him the benefit of Section 19A, the operation of which, we have found, is attracted only in a case where the deceased has left a will....
The decision in Mrs. Usha D. Shah's case (supra), on which the assessee had relied was held to be distinguishable because of the peculiar facts of that case.
14. The ratio of the subsequent decision of the Bombay High Court, discussed above, is that provisions of Section 19A of the 1957 Act (which are in pan materia with Section 168 of the 1961 Act) would be attracted only in those cases where the deceased had left a will. They would not be atracted in cases where the deceased had died intestate.
The term 'adminstrator' in the Explanation in the said section refers to the administrator appointed by the Court when the executordies or when on executor is named in the will. The reason for non-application of the said section in cases where the death is intestate is that the property vests in the legal heirs from the time of the death of the deceased and that the said vesting does not remain in abeyance.
Subsequent grant of letters of administration in cases of intestate death would not divest the legal heirs of the property vested int hem, particularly when the heirs are already in possession as heirs at the time of grant of letters of administration.
15. We may here refer to the decision of the Calcutta High Court in Mahamaya Dassi v. CIT  126 ITR 748, wherein it was held that appointment of an administrator pendente lite would not attract the provisions of Section 168, when the property had vested in definite shares in certain persons. The same principle, in our opinion, would apply when the letters of administration are granted by the Court in the cases of intestate succession. It is to be noted that the purpose for which an order for grant of letters of administration was obtained by Mrs. Veera was to protect the property from going into the hands of her mother-in-law. She and Mrs. Asha were already in possession of the properties as legal heirs. Their title was being disputed by Mrs.
Manekbai. As a measure of protection against the said assault on the title that the proceeding for obtaining letters of administration were initiated. Consequently, the order of the Court dated 30-11-1977 granting letters of administration would not make any difference as far as the legal position regarding the title was concerned.
16. We may mention here that the stand taken by the ITO was not logical. On the one hand, he observed that it was the administrator in whose hands the entire income should be assessed. On the other hand, he did not take steps to assess the administrator. He assessed the entire income in the individual assessment of Mrs. Veera. On the facts on record, we are satisfied that half the income was liable to be assessed in the hands of Mrs. Veera, while the other half was liable to be assessed in the hands of Mrs. Asha. Consequently, the order of the ITO assessing the entire income in the hands of Mrs. Veera and making protective assessment of Mrs. Asha was erroneous and was rightly set aside by the AAC. We confirm the order passed by the learned AAC.17. In the result, all the departmental appeals are liable and are hereby dismissed.