- (1.) THIS is an application for substitution in a pending application for leave to appeal to the Supreme Court. The facts are shortly as follows : The proceedings relating to the assessment of one Gfouri Sankar Lall Singha (hereinafter referred to as the "assessee" ). The assessee received certain dividends from Ukhra Estate Zamindaries Limited and claimed that these dividends were not taxable because they came out of the funds of the company which were not in any sense taxable profits. The Income Tax Officer held against the assessee and this was upheld by the Appellate Tribunal. The assessse thereupon requested the Tribunal to make a reference to the High Court under section 66 (1) of the Income Tax act (hereinafter referred to as the said act ). The Tribunal thereupon referred the following question under the provision of section 66 (1) of the said act : - "whether on the facts and in the circumstances of the case the amount of Rs. 2,344/- was rightly included as dividend in the total income of the assessee for the assesment year 1949-50 ?"
(2.) ON the 2nd December, 1964, the Court made an order on the reference and answered the question in the negative, that is to say, in favour of the assessee and against the Department. Thereupon the Department made an application for leave to appeal to the supreme Court against the said order. On the 7th May 1965 when the application came up for hearing it was contended that the assessee was dead and, therefore, the proceedings could not continue. By a letter dated 18th May, 1965 the petitioner's solicitor made enquiries of the Advocate for the assessee as to the date of the death of the assessee and information regarding the heirs and legal representatives of the assessee. By letter dated 3rd June 1965 the petitioner's solicitor was informed that the assessee died on the 20th April 1965 leaving a Will dated 16th November 1964. The assessee left him surviving his widow Sm. Jogamaya Debi and a son Pronob Kumar lall Singha. Shyam Sankar Lall singha is the brother of the deceased assessee. The said Pronob Kumar Lall singha and Shyam Sankar Lall Singha are executors of the last Will and testament of the deceased. On or about 14th July 1965 the said Pronob Kumar lall Singha as executor of the said unprobated Will has actually made an application for substitution in Income-Tax reference No. 4 of 1964. Similar application for substitution has been made in Income-Tax Reference No. 5 of 1964. In the instant case, an application has been made for substitution of the names of the widow, son and brother abovenamed. It is prayed that the names of Sm. Jogamaya Debi, Pronob kumar Lall Singha and Shyam Sankar lall Singha be substituted in place and stead of the assessee Gouri Sankar Lall singha since deceased, in the Income Tax Reference No. 132 of 1961 and in the cause title of the application for leave to appeal to the Supreme Court. Mr. Burman appearing for the parties sought to be added, has taken up the point that the application has abated under the provisions of Order 22, rule 4 of the Civil Procedure Code and consequently no substitution can be made.
(3.) THE question therefore, arises ae to whether the provisions of Order 22 of the C. P. Code apply to the facts and circumstances of this case. Order 22, rule 4 of the Code of Civil Procedure lays down that where the sole defendant dies and the right to sue survives the court, upon an application made in that behalf, shall cause the legal representatives of the deceased defendant to be substituted as parties and to proceed with the suit. Sub-rule (3) lays down that where within the time limited by law, no application is made under sub-rule (3), the suit shall abate as against the deceased defendant. The period of limitation is 90 days from the date of the death of the deceased defendant. If this rule applies, the application has clearly abated because it has been made beyond 90 days of the date of death of the deceased assessee.;