Raman Nayar, Krishnamoorthy Iyer, JJ. -
(1.) The question is whether the tax due under the provisions of the (Kerala) Agricultural Income Tax Act, 1950 (for short, the Act) in respect of income derived by a sthanamdar from sthanam property is, after his death, leviable from the person or persons on whom the property has devolved. The tax, of nearly Rs. 85,000/-, assessed in this case was in respect of income derived during the period, 1-11-1956 to 31-3-1958, from the sthanam property of the Zamorin of Calicut by the then Zamorin, Sreemanavikraman Raja. On his death in May 1958, after the Hindu Succession Act came into force, the next Zamorin, Kunhammaman Raja, succeeded to the title, but the property devolved on the 692 members of the Zamorni's family and on Sreemanavikraman Raja's heirs in separate shares in accordance with S.7(3) of the Hindu Succession Act. However, it would appear that, by reason of S.5(2) of Kerala Act 28 of 1959, Kunhammaman Raja, and after him, the succeeding Zamorins, assumed management of the entire property until the present petitioners took over as receivers of court appointed in a partition suit between the several sharers. It was Kunhammaman Raja that was assessed to the tax - that was done under S.24(2) of the Act - and he paid a sum of Rs. 18,000/- and odd towards the tax while his successor Zamorin, P. C. Cheria Kunhunni Raja, paid Rs. 20,000/- and odd. For the balance of the tax, and for a penalty of Rs. 5000/- imposed on P. C. Cheria Kunhunni Raja, demands have been made on the petitioners by the Inspecting Assistant Commissioner (the respondent herein) by his orders Exts. P 1, P 3 and P 5, and these orders the petitioners seek to quash.
(2.) It is important to remember that, before the passing of the Hindu Succession Act, the estate of a sthanamdar in the sthanam property was akin to a Hindu widow's estate - see Kochunni v. State of Madras & Kerala ( AIR 1960 SC 1080 ) and whatever might have been his limited powers of disposal during his lifetime, his estate determined completely with his death and no interest of his survived that event. The property, in the hands of the succeeding sthanamdar, was no more the estate of the deceased sthanamdar than property in the hands of a remainderman is the estate of the deceased life estate holder. But, by reason of S.7(3) of the Hindu Succession Act, when a sthanamdar dies after the commencement of that Act, the sthanam property held by him devolves on the members of the sthani family and on his own heirs as if the property had been divided per capita immediately before his death among himself and the other members of the sthani family. In the share falling to him in that notional division, and devolving on his heirs, he must be regarded as having had a full estate, and that share, along with any other separate property he might have owned, would constitute his estate in the hands of his legal representatives. But, the shares devolving on the members of the sthani family, are in no sense the estate of the deceased sthanamdar. He never at any time had any interest in that that survived his death, and the Hindu Succession Act did not give him any. That, as held in Asst. Controller v. Balakrishna Menon ( 1967 KLT 148 ) (F. B.) what passes on the death of a sthanamdar within the meaning of S.5 of the Estates Duty Act, is the entire property which belonged to the sthanam and not merely the sthanamdar's share in the notional division of S.7(3) of the Hindu Succession Act, is neither here nor there. The decision does not say that the property that so passes remains the estate of the deceased sthanamdar. That estate, as recognised by sub-s.(1) of S.7 of the Estates Duty Act read with the explanation to sub-s.(4) thereof, determines with the death of the sthanamdar, and it is only by reason of sub-s.(1) of the section that the property is deemed to have passed on the sthanamdar's death.
(3.) Under S.3 read with S.17 and 18 of the Act, the liability to pay the tax assessed is, subject to certain exceptions as in S.23 and 24, solely that of the person who derives the income, and there is no provision in the Act which makes the liability a charge on the property from which the income is derived, or provides for recovery of the tax from the property as such, although of course, the defaulter's interest in the property (which interest might range from full ownership to that of a mere licensee or trespasser, or, when the interest has ceased, as on the determination of a lease, to nothing) being part of his property, can be proceeded against. The argument that, because under S.41(3) of the Act, an arrear of tax due from an assessee can be recovered as if it were an arrear of land revenue, the provisions of the Revenue Recovery Act making land security for the revenue, due on it are attracted so as to make the land from which agricultural income is derived security for the tax assessed on such income even if the person liable to pay the tax has no subsisting interest in the land, is so obviously unsustainable that it scarcely needs refutation.;