Sabyasachi Mukharji, J.
1. Tulsi Charan Law died on 6th of January, 1962, leaving behind him his wife, six sons and four daughters. He left a will executed on 20th December, 1956. In the said will he provided as follows:
'(1) My just debts and funeral expenses shall be first paid out of my estate.
(2) That all the movable and immovable properties receivable by me under the will of late father, Kumar Surendra Nath Law, inclusive of the compensation moneys to be received from the Govt. due on acquisition of the Narayangarh and Dafarpota Zamindaries, I devise, give and bequeath equally to my wife, Sm, Mahamaya Dassi, and to my six sons, Ajit, Sarat, Ranjit, Sanat, Biswanath and Sankar. My wife shall have life interest, power of alienation. After her death her share be taken equally by my sons or their heirs (males only).
(3) That during the life time of my wife after my death she shall act as the guardian of the persons and properties of my such sons, who will then remain minors till such of them attains 24 (twenty-four) years or married provided always that till the death of my said wife all of my sons irrespective of their age or 'marriage shall live jointly with my major sons.
(4) That in the event of my sons predeceasing me or my wife after my death or in the event of any of them renouncing the world having no male heirs, his share subject to the life interest of his wife and marriage of daughters, if any, shall be taken by all other brothers or their respective heirs equally.
(5) That in the event of my sons not attaining the age of inheritance at the time of death of my wife my eldest son, Ajit, with other major sons shall act as such guardian with no power of alienation.'
2. No executor was appointed under the said will. The wife and the major sons applied to this court for the grant of letters of administration in respect of the properties left by late Tulsi Charan Law. It is not clear from the statement of the case as to when that application was made. It is stated that probate proceedings were pending in this court as mentioned hereinbefore. It is not apparent as to since when the said probate proceedings were pending in this court. It appears that Smt. Tarasundari Auddy, one of the married daughters of the testator, filed a caveat in this court challenging the will. Pending the suit this court by its order dated 1st of May, 1963, appointed Smt. Mahamaya Dassi, the widow of the testator as administratrix pendents lite. In the said order, it was provided as follows:
'It is ordered that subject to the said applicant, Sm. Mahamaya Dassi, furnishing security for rupees one lakh by way of a personal bond in favour of the Registrar, Original side, of this court she be and is hereby appointed the administratrix pendente lite in the above goods, And it is further ordered that the said Smt. Mahamaya Dassi do keep a separate account with the State Bank of India of the compensation moneys receivable from Government and insurance moneys and other moneys which will be realised by her. And it is further ordered that the said Smt. Mahamaya Dassi shall not be entitled without further order of this court to incur any other expenditure except paying rates and taxes of the corporation, income-tax, the estate duty and other taxes for obtaining grant in the above goods and expenses for maintenance of her family consisting of herself, her sons and her unmarried daughters at the rate of Rs. 2,500 per month.'
3. We are concerned in this reference with the assessment years 1963-64 and 1964-65 and the corresponding accounting years were the respective financial years. It is clear that for the assessment year 1963-64 for which the financial year was from April 1, 1962, to March 31, 1963, there was no administratrix pendente Ute and during the subsequent year an appointment had been made as mentioned hereinbefore. But it appears that for both the years Sm. Mahamaya Dassi had furnished returns of income under the I.T. Act, 1961, as administratrix pendente lite to the estate of Tulsi Charan Law showing the status as individual. Whether in respect of the first year with which we are concerned that was the correct position taken up by Mahamaya Dassi or whether the ITO was justified in proceeding on that basis is a point on which none of the parties have agitated. But this is a point in respect of which we shall advert later.
4. The assessee claimed before the ITO that the shares of the legatees were definite and so the property income should be allocated amongst the seven beneficiaries under the will and the assessment should be made under Section 161 but not under Section 168 of the I.T. Act, 1961. The ITO rejected the claim of the assessee. He held that since the dispute about the will was pending in this court the number of legatees and the share of each legatee remained indeterminate and so the question of allocation of income amongst the seven beneficiaries did not arise at all and the income from the estate should be assessed in the hands of the administratrix under Section 168 of the I.T. Act, 1961. He was also of the view that the allocation of property income claimed by the assessee's representative under Section 26 of the I.T. Act, 1961, did not arise at all and Section 168 of the I.T. Act did not contemplate any such allocation. He, therefore, included the whole income of the estate in the assessments of the administratrix.
5. The assessee preferred appeals for both the years before the AAC. It was urged before him that Sm. Mahamaya Dassi was a representative assessee under Clause (iii) of Sub-section (1) of Section 160 of the I.T. Act, 1961, and the assessment had to be made under Section 161 but not under Section 168. The AAC held that if the will was taken as valid the beneficiaries would be seven and if the will was not accepted the heirs under the Hindu Succession Act, 1956, would be eleven and each would be entitled to 1/11th share and thus in either case the shares were definite and so the consolidated assessment in the hands of Smt. Mahamaya Dassi was wrong. He, accordingly, set aside the assessments for both the years.
6. The revenue preferred appeals before the Appellate Tribunal. The Tribunal held that since the suit filed by one of the daughters was pending, the shares had become unascertainable. Till the litigation was over the shares were not definite according to the Tribunal and so the provisions of ss, 164 and 26 would be applicable and the assessments had to be made as an association of persons. The Tribunal also held that since no executor was appointed under the will, the question of administering the estate did not arise and so Section 168 was not applicable. Thus, it was ultimately held that so long as the dispute between the heirs inter se was pending, it was not possible to hold that the shares were definite and ascertainable and the assessments should be made as 'association of persons '.
7. In the premises, under Section 256(1) of the I.T. Act, 1961, the following question of law has been referred to this court :
'Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the shares of the heirs to the estate of Tulsi Charan Law (deceased) were not definite and ascertainable and as such the assessments should be made as 'association of persons' under Sections 164 and 26 of the Income-tax Act, 1961?'
8. In order to determine whether Section 164 of the I.T. Act, 1961, would be applicable in the instant case, it is, in our opinion, necessary first to decide whether Section 168 had any application to the facts and circumstances of this case. It may in this connection be appropriate to refer to the relevant provisions of the Act, Section 26 of the I.T. Act, 1961, deals with the property owned by co-owners. It provides:
Section 26: 'Where property consisting of buildings or buildings and lands appurtenant thereto is owned by two or more persons and their respective shares are definite and ascertainable, such persons shall not in respect of such property be assessed as an association of persons, but the share of each such person in the income from the property as computed in accordance with Sections 22 to 25 shall be included in his total income.'
9. Section 160 of the I.T. Act, 1961, deals with representative assessee. It may be noted that under Clause (iii) of Sub-section (1) of Section 160 of the I.T. Act, 1961, 'representative assessee' means :
'in respect of income which the court of wards, the administrator-general, the official trustee or any receiver or manager (including any person, whatever his designation, who in fact manages property on behalf of another) appointed by or under any order of a court, receives or is entitled to receive, on behalf or for the benefit of any person, such court of wards, administrator-general, official trustee, receiver or manager,'
10. Section 161 of the I.T. Act, 1961, which deals with the liability of a representative assessee, is as follows :
'(1) Every representative assessee, as regards the income in respect of which he is a representative assessee, shall be subject to the same duties, responsibilities and liabilities as if the income were income received by or accruing to or in favour of him beneficially, and shall be liable to assessment in his own name in respect of that income, but any such assessment shall be deemed to be made upon him in his representative capacity only, and the tax shall, subject to the other provisions contained in this Chapter, be levied upon and recovered from him in like manner and to the same extent as it would be leviable upon and recoverable from the person represented by him.
(2) Where any person is, in respect of any income, assessable under this Chapter in the capacity of a representative assessee, he shall not, in respect of that income, be assessed under any other provision of this Act.'
11. Section 164 of the I.T. Act, 1961, deals with the charge of tax where the share of beneficiaries is indeterminate or unknown and is to the following effect:
'Where any income in respect of which the persons mentioned in Clauses (iii) and (iv) of Sub-section (1) of Section 160 are liable as representative assessees or any part thereof, is not specifically receivable on behalf or for the benefit of any one person, or where the individual shares of the persons on whose behalf or for whose benefit such income or such part thereof is receivable (which persons are hereinafter in this Section referred to as the beneficiaries) are indeterminate or unknown, tax shall be charged as if such income or such part thereof, were the total income of an association of persons, or, where such income or such part thereof, is actually received by a beneficiary, then at the rate or rates applicable to the total income or total world income of the beneficiary if such course would result in a benefit to the revenue.'
12. Section 168 of the I.T. Act, 1961, deals with the executors and is to the following effect :
'(1) Subject as hereinafter provided, the income of the estate of a deceased person shall be chargeable to tax in the hands of the executor,--
(a) if there is only one executor, then, as if the executor were an individual; or
(b) if there are more executors than one, then, as if the executors were an association of persons ;
and for the purposes of this Act, the executor shall be deemed to be resident or non-resident according as the deceased person was a resident or non-resident during the previous year in which his death took place.
(2) The assessment of an executor under this section shall be, made separately from any assessment that may be made on him in respect of his own income,
(3) Separate assessments shall be made under this section on the total income of each completed previous year or part thereof, as is included in the period from the date of the death to the date of complete distribution to the beneficiaries of the estate according to their several interests.
(4) In computing the total income of any previous year under this section, any income of the estate of that previous year distributed to, or applied to the benefit of, any specific legatee of the estate during that previous year shall be excluded ; but the income so excluded shall be included in the total income of the previous year of such specific legatee.
Explanation.--In this section, 'executor' includes an administrator or other person administering the estate of a deceased person.'
13. All these sections are in Chap. XV of the I.T. Act, 1961, which deals generally with liability in special cases.
14. Before we embark to determine the question referred to this court, it will be necessary to examine whether Section 168 of the I.T, Act, 1961, would be applicable and, if so, in that case, whether there is any scope for allocation of income as contemplated by Section 26 of the I.T. Act, 1961, because if Section 168 applies then whether any question of the shares being definite and ascertainable under Section 164 of the I.T. Act, 1961, applies at all would also be a matter which requires to be considered.
15. It may, however, be mentioned that on behalf of the assessee it was contended that the Tribunal had negatived the contention of the revenue that Section 168 applied to a situation like the present and no question had been sought for from the Tribunal on this aspect of the matter. Indeed, no question has been referred to this court on this aspect of the matter. Therefore, it was urged on behalf of the assessee that this question cannot be gone into at this stage. In this connection, reliance was placed on the case of CIT v. Asiatic Textiles Ltd. : [1970]75ITR291(Cal) . What happened there was that the assessee-company purchased certain shares in another company at inflated prices in order to enable its managing agents to acquire the managing agency of the other company. As compared with the market value of the shares on the last day of the accounting year, the assessee incurred a loss which was held to be a capital loss. On an appeal, in proceedings under Section 23A of the Indian I.T. Act, 1922, the assessee's claim that this capital loss had to be taken into consideration in determining its commercial profits was upheld by the Tribunal. The Tribunal further held that on no commercial principle the company was entitled to record in its books of account the depreciation in the value of its investments. On a reference to the High Court, at the instance of the revenue, it was held that the capital loss had to be taken into account in determining the reasonableness of the distribution of dividend. The question, whether depreciation in the value of investments could lead to a loss until and unless the investments were realised, was sought to be raised before the High Court on behalf of the revenue. But the High Court refused to entertain the question on the ground that the department had not sought a reference of the question either in its application for reference under Section 66(1) or apply to the High Court under Section 66(2). There a different and separate question was for the first time sought to be raised which involved investigation of fresh faets. It is settled that the courts will not permit a separate and independent question to be raised for the first time at the hearing of the reference. But if the determination of the question referred to the court involves examination of another legal aspect upon which depends the relevancy of the question posed to the court, in our opinion, in such a situation, it cannot be said that such another aspect could not be examined by the court. It is apparent in this case that if Section 168 of the I.T. Act, 1961, applies then there is no scope for any allocation of shares of income to the different parties. Then the question referred to this court would be wholly irrelevant and academic. In order to determine the relevancy of the question referred to this court, it is necessary for us to determine whether Section 168 of the I.T. Act, 1961, at all applies. From that point of view the question of applicability of Section 168 of the I.T. Act, 1961, is another aspect of the question to determine the relevancy of the question posed to this court. In such circumstances, in our opinion, it is not inappropriate for this court to examine the contention whether Section 168 is at all applicable or not. Reliance was also placed on the observations of this court in the case of CIT v. A. K. Das : [1970]77ITR31(Cal) . There the court held that Section 256 of the Act laid down the whole procedure how reference had to be made. That procedure gave the Appellate Tribunal no jurisdiction or power to admit cross-objections within the meaning of the Civil Procedure Code to raise a question of law not raised by an application in the prescribed form within the time prescribed and make a reference of the same to the High Court. The said observation, in our opinion, does not in any way militate against the examination of the question whether another section would be applicable in order to answer the question posed to us.
16. Our attention was also drawn on behalf of the assessee to the observations of this court in the case of CIT v. Burmah-Shell Oil Storage and Distribution Co. of India Ltd. (Bombay : [1978]115ITR891(Cal) . There, this court observed that under Section 256(1) of the I.T. Act, 1961, the High Court had no power to entertain a new or an independent question of law which the Commissioner in his application for reference had not called for the Tribunal to refer to the High Court. The said observation was made in an entirely different context. Furthermore, the examination of the question whether Section 168 applied and as such there was no scope of the applicability of the concept of allocation of income and as such no scope of examining whether the shares of the parties were definite or ascertain-able is, in the facts and circumstances of the case, not an independent and a separate question as such, but a different aspect of the question posed to us. Reliance was also placed on the observations of the Supreme Court in the case of CIT v. Smt. Kasturbai Walchand Trust : [1967]63ITR656(SC) . There, the question that was referred to the Bombay High Court was whether under Clause (8) of the trust settlement made on the 25th November, 1946, with which the Bombay High Court was concerned came into operation immediately following the declaration made by Bai Kasturbai on the 21st July, 1955, and as such the income that accrued or arose to the trustees to the trust properties from 21st July, 1955 onwards was exempt under Section 4(3)(i) of the Act. An attempt was made on behalf of the Com-misioner to raise the question about the validity of the deed of surrender. The Supreme Court in that context observed that the question of validity of the deed of surrender was a separate and an independent question and would involve an examination of question of fact as well as of law and such separate and independent controversy could not be entertained within the framework of the question referred and the court had no power to go into the new question not referred. The said observations, in our opinion, were made in an entirely different context. As we have mentioned before, the point whether Section 168 of the I.T. Act, 1961, applied in the facts and circumstances of the case and as such, there was no scope for the controversy whether the shares of the parties to the estate of Tulsi Charan Law were definite and ascertainable, in our opinion, is another aspect of the question referred to us. The examination on this aspect is necessary, before we could examine the question referred to us, as being relevant, otherwise the question referred to us would merely become an academic one. In those circumstances, therefore, we are unable to entertain the objection of the assessee as to the examination of the question whether Section 168 of the I.T. Act, 1961, at all applied to the facts of this case.
17. Then we have to examine whether Section 168 does apply to the facts of this case. We have set out the relevant provisions of Section 168 of the I.T. Act, 1961. In this case, there was no question of executor but, as we have noted in the Explanation to Section 168, it has been stated that the executor mentioned in the section included an administrator or other person administering the estate of the deceased person. The question is whether an administratrix pendents lite appointed in the facts and circumstances of the case mentioned hereinbefore can be called to be an administrator or other person administering the estate appointed as contemplated in the Explanation to Section 168 of the I.T. Act, 1961. In order to examine this question, it may be relevant to refer to the relevant provisions of the Indian Succession Act, 1925.
18. Section 2 of the Indian Succession Act, 1925, provides the definition and Sub-clause (a) of Section 2 defines administrator as a person appointed by a competent authority to administer the estate of a deceased person when there is no executor. The definition is significant because it means a person who is appointed to administer the estate when there is no executor. The executor has been defined under Clause (c) of Section 2 of the said Act to mean a person to whom the execution of the last will of the deceased person is, by the testator's appointment, confided. It is only in the case where there has to be an executor but the executor is not there either because no executor has been named or because the executor has declined to act or is dead or otherwise not available, in such cases, if an administrator is appointed to whom the letter of administration is granted with a copy of the will annexed it would come within the meaning of the definition under Clause (a) of Section 2 of the Act but in view of the circumstances in which an administratrix pendente lite can be appointed as contemplated under Section 247 of the Act which we shall presently note, it is doubtful whether such an administrator pendente lite would come within the definition of administrator as contemplated under Section 2(a) of the Act. Be that as it may, we may note here that Section 211 of the said Act provides the executor or an admistrator, as the case may be, of a deceased person is his legal representative for all purposes and the property of the deceased vests in him as such. The expression that the property of the deceased person vests in the administrator or the executor, as such, is significant because though the legal title vests in the executor or the administrator under Section 211 of the Act the right of enjoyment belongs to the beneficiary. Section 213 stipulates that no right as executor or legatee can be established in any court of justice, unless a court of competent jurisdiction has granted probate of the will under which the right is claimed, or has granted letters of administration to the will or with authenticated copy of the will annexed. Section 214 deals with the proof of right of title as a condition precedent to the recovery through the courts of debts from debtors of the deceased person. Section 227 of the Indian Succession Act provides that probate of a will when granted establishes the will from the death of the testator and renders valid all intermediate acts of the executor as such. Section 232 of the said Act provides for grant of administration to universal or residuary legatees when the deceased has made a will but has not appointed an executor or when the deceased has appointed an executor who is legally incapable or refuses to act and or who has died before the testator or before he has proved the will, or where the executor died after having proved the will but before he has administered all the estate of the deceased. When an universal or a residuary legatee is admitted to prove the will, the letters of administration with the will annexed may be granted to him of the whole estate or of so much thereof as might be unadministered. Section 247 which deals with administration pendente lite provides as follows :
'247. Administration pendente lite.--Pending any suit touching the validity of the will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration, the court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the court and shall act under its direction.'
19. This section is relevant and important for our present purpose. In order to give the court power to appoint administrator or administratrix pendente lite, there must be a pending suit touching the validity of the will of the deceased or for obtaining or revoking any probate or any grant of letters of administration. It is only then when a suit is pending in respect of the matters mentioned hereinbefore that the court is authorised to appoint an administrator pendente lite in terms of this section, who is given all the rights and powers of a general administrator other than the right of distributing such estate and every such administrator shall be subject to the immediate control of the court and shall act under its direction. Therefore, an administrator can be appointed only if there is a suit pending touching the validity of the will or obtaining or revoking any probate or any grant of letters of administration. Secondly, such an administrator or administratrix shall be subject to the immediate control of the court which appoints him/her and shall act under the direction of that court. Thirdly, he or she shall have all the powers of a general administrator but he/she shall not have the power to distribute the estate. This is the effect of the provisions of Section 247 of the Act. In this connection, we may refer to Section 269 which deals with the powers of the District Judge for protection of property. That section reads as follows ;
'269. When and how district judge to interfere for protection of property.--(1) Until probate is granted of the will of a deceased person, or an administrator of his estate is constituted, the district judge, within whose jurisdiction any part of the property of the deceased person is situate, is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, appoint an officer, to take and keep possession of the property.'
20. In England the position of the administrator pendente lite has been thus stated in Williams and Mortimer on Executors, Administrators and Probate, 1970, 15th edn., Chap. 30, Limited Grants ; Sec. 'O', dealing with the 'Administration pendente lite' at page 296, and page 298 under the heading 'Powers and duties of an administrator pendente lite '. It is stated therein as follows :
'The administrator has all the rights and powers of a general administrator, other than the right to distribute ; he is subject to the control of the court and must act under its direction. He is an officer of the court, under the direction of which he represents the deceased.
The powers and duties of an administrator pendente lite begin on the date on which the order appointing him is perfected and end with the final order in the proceedings. The grant is not revoked by such final order but ceases, reviving in the case of appeal, until that appeal is disposed of.
An administrator pendente lite may only pay a legacy or an annuity with the consent of all persons who might be adversely affected by his doing so. Where there was a dispute as to the alleged debts the administrator was not allowed to pay them until they had been passed by a Registrar.
In cases where a dispute arises between the parties as to what course the administrator should take over any matter, directions of a Registrar should be sought on summons. In cases of great difficulty or importance the Registrar will refer the summons to a judge.'
21. In Halsbury's Laws of England, 3rd Edn., Vol. 16, para. 456, at p. 245, the position relating to grant pendente lite is stated as follows :
' 456. Grant pendente lite.--Where any legal proceedings touching the validity of the will or codicil of a deceased person, or for obtaining, recalling or revoking any grant are pending, the High Court may grant administration of the estate of the deceased to an administrator, who has all the rights and powers of a general administrator other than the right of distributing the residue ; he is subject to the immediate control of the court and acts under its directions. The court is not bound in this case to appoint two such administrators where a life or minority interest arises.
This provision applies specifically to cases of death after 1925, but similar provisions for administration pendente lite were contained in the Court of Probate Act, 1857, and they still operate in regard to death before 1926. In practice the dividing date makes no difference, except that, in the event of a person dying before 1926 and leaving real estate, a receiver of such estate might have to be appointed instead of a general administrator pendente lite.'
22. Similar observations appear in the 4th Edn. of Halsbury's Laws of England, Vol. 17, para. 1003, at p, 524, which state as follows :
'1003. Grant pendente lite: Where any legal proceedings touching the validity of the will or codicil of a deceased person, or for obtaining, recalling or revoking any grant are pending, the High Court may grant administration of the estate to an administrator, who has all the rights and powers of a general administrator other than the right of distributing the residue; he is subject to the immediate control of the court, and acts under its directions. The court is not bound in this case to appoint two such administrators where a life or minority interest arises.'
23. In Tristram and Coote's Probate Practice, 23rd Edn,, at p. 583, the duties and powers of an administrator pendente lite have been noted as follows:
'Duties of administrator: The duties and liabilities of an administrator pendente lite are governed by Section 163 of the Judicature (Consolidation) Act, 1925. He is an officer of the court, under whose direction he represents the deceased.
His duties begin from the date of the order and terminate with the decree, whether there is an executor named in the will or not. His powers begin from the date of the grant made to him, which becomes inoperative with the decree. It is not formally revoked, but ceases.
An appeal operates as an extension of the suit, and the administrator pendente lite continues to act until the suit is finally disposed of. The grant revives for this period.
Powers: He is not allowed to distribute the residue of the estate, but otherwise he has the rights and powers of a general administrator. Where it is necessary to obtain the directions of the court, application may be made to the Registrar on summons, or when the matter is of greater importance to the judge on summons. He must not pay a legacy, or an annuity given by a disputed will, except by consent of all persons interested in the residue; and where there was a dispute as to an alleged debt of the deceased's, he was not allowed to pay the debts until they had been passed before the Registrar.'
24. Therefore, in England it is apparent that apart from the residuary estate, an administrator is authorised to distribute the estate left by the deceased ; he carries out the execution of the will except distributing the residual estate. In India, under Section 247 of the Indian Succession Act, 1925, such an administrator pendente lite has no power to distribute any part of the estate. In Paruck's Indian Succession Act, 6th Edn., p. 506, it has been noted that the word, 'as such' used in Section 211 of the Indian Succession Act indicated that the executor or administrator was not the absolute owner of the property in the sense of being the beneficial owner thereof. The property only vested for the purpose of representation and administration. But, under Section 247, such an administrator, as we have noted, by virtue of the section, has no power to distribute or carry on the distribution. Indeed, in the case of Kali Kumar Chatterji v. Rash Vehari Banerji, ILR 1947 (2) Cal 195, at page 202, S. R. Das J., as his Lordship then was, observed that even with the consent of the parties interested in the estate, the court could not make an order for distribution otherwise forbidden by the statute.
25. We have noted Section 168 and Sub-sections (3) and (4) of the I.T. Act, 1961. Section 168, in our opinion, contemplates the distribution of the assets in the case of the administration of an estate by the executor. If the executor or the administrator cannot distribute the assets then Sub-section (3) and sub- Section (4) would be inappropriate. Indeed, the Explanation to Section 168 of the said Act is a pointer to the fact that an executor or an administrator administers the estate of the deceased person but an administratrix pendente lite can only be appointed when there is a dispute as to whether there is a will or not of there is any dispute touching the existence or the validity of the will. If there is such a dispute then there cannot be any question of administering the estate of the deceased because whether there will be anything to administer according to the terms of the will would depend upon the validity of the will which is in dispute. Section 247 only contemplates the preservation of the property until the question as to the existence or the validity of the will is determined. In those circumstances, in our opinion, the administrator or administratrix pendents lite is different from the administrator, as such, contemplated under Section 168 of the I.T. Act, 1961. It may also be mentioned that Section 104 of the Succession Act is important because in the case of legacy in general terms the legatee has a vested interest in it from the day of the death of the testator. So, from that point of view the property vests in the legatee. There is another aspect of the matter. If it is ultimately held that there is no will then the administrator or administratrix pendents lite cannot be said to be holding the property of the deceased because if there is no will then the property of the deceased would devolve on the heirs at law or on intestacy from the date of death of the testator. In those circumstances there cannot be any one administrator holding the property during the pendency of the determination of the question whether there is any will or not on behalf of the executor.
26. It would be necessary now to examine some of the decisions in which the nature of the administration pendents lite has been examined.
27. In the case of Gourmani Dassi v. Baroda Kanta Jana, AIR 1919 Cal 980, it was held that the position of an administrator pendente lite in probate proceedings was clearly analogous to that of a receiver in a partition suit. In the case of Subba Reddy v. Andemma : AIR1951Mad393 , it was held that pending any suit touching the validity of the will of a deceased person, the court may appoint under Section 247 of the Succession Act an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator other than the right of distributing such estate. The position of such an administrator would be analogous, as held by the Division Bench of the Madras High Court, to be that of a receiver appointed under 0. 40, Rule 1 of the CPC. In the case of Ganpat Pralhad v. Pralhad Madhoba Ruikar Trust, AIR 1952 Nag 253, it was held that the position of a receiver appointed under Order 40, Rule 1 of the CPC was analogous to that of an administrator appointed under Section 247 of the Succession Act. In the case of Pandurang Shamrao Laud v. Dwarkadas Kalliandas, AIR 1933 Bom 342, the Bombay High Court held that the position of an administrator pendents lite was similar to that of a receiver with this distinction that the administrator pendente lite represented the estate of the deceased for all purposes except distribution. . The court discussed the essentials of the appointment of an administrator and there had to be a bona fide dispute.
28. On behalf of the revenue reliance was placed on certain observations of this court in the case of Brinddban Chandra Shaha v. Sureswar Shaha Paramanic [1909] 10 CLJ 263 and reliance was placed on the observations of Sir Asutosh Mookerjee J., at page 275 of the report, that the estate of the deceased in case of an administrator pendente lite vested in such administrator. But the said observations were made in the background of the court's opinion that while the suit was pending there was no one legally entitled to receive or to hold the assets or to give discharges and, therefore, it was necessary to appoint an administrator pendente lite. Therefore, when a suit was pending touching the validity of the will there was nobody to give a legal discharge and in that context it was observed that the administrator pendente lite had the estate vested in him and it did not mean that the property became vested in the administrator pendente lite beneficially and for all purposes and the income of the beneficiary became the income of the administrator pendente lite. Reliance was also placed on certain observations of the Division Bench of this court in the case of Bajranglal Khemka v. Smt. Sheila Devi [1970] 74 CWN 444, where the court observed that the administrator pendente lite had all the powers of a general administrator that the estate of the deceased vested in him. The attention of the court was not drawn to the fact that the administrator pendente lite did not have the power to distribute the assets that the general administrator had as we have noted from the section itself. But the said observations, in our opinion, do not in any way affect the position as to whether the administrator spoken of in the Explanation to Section 168 is an administrator pendente lite or not. The said Division Bench also relied on the observations of Mr. Justice P. B. Mukharji (as his Lordship then was) in the case of Williams Harold Gibbs v. Deva Prosad Roy [1950] 85 CLJ 280, the said learned judge had observed that an administrator pendente lite had the estate vested in him but no estate vested in an admin-istrator-ad-litem. But the rights vested in an administrator pendente lite are limited as have been mentioned in Section 247 of the Succession Act and it is analogous to the rights of a receiver under Order 40 of the Code of Civil Procedure.
29. In the case of Executors of the Estate of J. K. Dubash v. CIT [1951] 19 ITR 182, it was held by the Supreme Court that from the day of the death of the testator the estate including the business got vested in the executors and they carried on the business in that case within the meaning of Section 3 read with Section 10 of the Indian I.T. Act, 1922, and as such became personally liable as assessees. That was the case where an executor was appointed who had obtained probate for carrying on business. The said observations, in our opinion, do not in any way affect the question as to whether an administrator pendents life is an administrator contemplated under the Explanation to Section 168 of the I.T. Act, 1961. An executor gets the property vested from the day of death of the testator when the probate is granted to him, but it is significant to remember that an administrator Pendents life does not get any right or authority on such death of the testator but from the date of appointment and by virtue of appointment by the appropriate court. Reliance was placed on certain observations of the Division Bench of this court in the case of Basunta Kumar Chakraborty v. Gopal Chander Das [1914] 18 CWN 1136: The court held that the will, of which probate had not been taken, might be proved in a proceeding other than a proceeding under the Probate Act. We are not concerned with such a proposition. But it was further observed that the will uncovered by a probate or letter of administration could not prove that anybody named therein had title to the estate of the testator. A legal heir of a testator in possession of his general estate could maintain a suit for the benefit of the estate so long as any other claimant did not establish his right to the same under the will. The said decision, in our opinion, does not in any way affect the question with which we are concerned in the instant reference. In the case of Hem Nalini Judah v. Isolyne Sarojbashini Bose : AIR1962SC1471 , the Supreme Court observed that Section 213 of the Succession Act created a bar to the establishment of any right under the will by an executor or a legatee unless a probate or letter of administration of the will had been obtained, whether the right was claimed by a person as a plaintiff or as a defendant. The words of Section 213 were not restricted only to those cases where the claim was made by a person directly claiming as a legatee. The section did not say that no person could claim as a legatee or as an executor unless he obtained probate or letter of administration of the will under which he claimed. What the section said was that no right as an executor or legatee could be established in any court of justice unless the probate or letter of administration had been obtained of the will under which the right was claimed and, therefore, it was immaterial who wished to establish the right as a legatee or an executor. The said observations, in our opinion, do not help the instant question whether the administrator pendente lite appointed in the circumstances mentioned hereinbefore can be considered to be an administrator in terms of the Explanation to Section 168 of the I.T. Act, 1961. In the case of Asit Kumar Ghose v. Commr. of Agrl. I.T. : [1952]22ITR177(Cal) , it was held that an executor did not, while the administration was still incomplete, hold the estate or receive its income on behalf of any one else, but did so on behalf of himself as the person in whom the estate was vested at the time. Even if the executor and trustee be the same person, he did not assume the latter character till the administration was completed and the residuary legacy ascertained and assented to. Till then he was liable to be assessed not in a representative capacity under the special sections of the I.T. Act, but under the general provisions as the owner of the income. In our opinion, the aforesaid observations clearly point out that, in order to hold the estate of the testator, the executor or the administrator must be one where the will has been proved. Where the will has been proved, in those circumstances only either the executor or the administrator can be said to be holding the estate of the deceased and the said estate of the deceased can be said to have been vested either in the executor or the administrator, but where the question as to whether there has been any will or not and as the question whether an executor or administrator to whom a copy of the will can be granted has not been decided and is pending and there is an administrator for the preservation of the property, there it cannot be said that on the appointment of such an administrator the estate of the deceased became vested in him. If there is no valid will the property would vest in the heirs at law on intestacy. In such a case such an administrator as an administrator pendente lite under Section 247 cannot have the estate of the deceased vested in him.
30. In the case of Estate of I.A.T. Warde v. CIT : [1961]43ITR219(MP) , the Division Bench of the Madhya Pradesh High Court dealt with the case where W, who was the owner of certain mines and collieries, died executing a will appointing three persons as executors and giving directions as to how the income from the mines and collieries had to be disposed of. Pending grant of probate of the will the district judge appointed a receiver under Section 54(2) of the Administrator-General's Act, 1913, read with Section 269 of the Succession Act, 1925, to take over and manage the property of the deceased. The question was how the income of the property in the hands of the receiver should be assessed. It was held that the receiver was a person appointed by an order of the court for managing the property of the deceased on behalf of the executors, within the meaning of Section 41(1) of the I.T. Act, and assessment had to be made on the receiver with regard to the income of the estate in like manner and to the same amount as would be made on the executors under Section 24B as an association of persons, i.e., at the rate applicable to the total income on the aggregate income of the estate. It was further held that under Section 211 of the Indian Succession Act, 1925, the executor of a deceased is his legal representative for all purposes and all the property of the deceased person vested in him as such. The property vests in the executor by virtue of the will and not because of the probate. It is the will which gives the property to the executor. The grant of probate is only the method by which the will is established and the estate vests even before the grant of the probate. Section 269 of the Succession Act authorised the district judge to appoint an officer to take and keep possession of the property until probate is granted of the will of the deceased person. The officer so appointed does not become a legal representative of the deceased and his estate does not vest in him as such. The estate of the deceased remains vested in the executor and the officer appointed under Section 269 of the Succession Act only manages and takes possession of the property on behalf of the executor. We have noticed the significant difierence of the circumstances under which an officer can be appointed to protect the estate of the deceased under Section 269 of the Succession Act and the admistrator pendente lite under Section 247 of the Succession Act. An administrator pendente lite under Section 247 of the Succession Act presupposes a suit disputing the validity of the will while under Section 269 there is no such condition for such a suit disputing the validity of the will; on the other hand Section 269 proceeds on the assumption that there is a valid will and for the protection of the property pending the grant of the probate an officer is appointed.
31. In that case, the court held that the estate of the deceased did not vest in such an officer. The appointment of such an officer for the management of the estate was not on behalf of the beneficiaries but on behalf of the executors of the will. That cannot be the position in the case of an administrator pendente lite because Section 247 proceeds on the assumption that there is a dispute as to whether there is any executor or general administrator.
32. In the case of Atul Bala Dasi v. Nirupama Devi : AIR1951Cal561 , this court considered the factors which are necessary for making an appointment of an administrator pendente lite. Our attention was drawn to a decision in the case of Smt. Santimoyee Bose v. CIT : [1969]74ITR133(Cal) . But in view of the peculiar nature of the facts in that case it is not necessary for us to discuss the said decision in detail. Reliance was also placed on the observations of the Supreme Court in the case of CIT v. Smt. Kasturbai Walchand Trust : [1967]63ITR656(SC) . There, the court observed that under Section 41 of the Indian I.T. Act, 1922, the liability of the income of a trust to tax was independent of the amount actually received by the beneficiary. The said observations were made in the context of the facts which were entirely different from the facts of the present case and, therefore, in our opinion, it is not necessary for us to discuss the aforesaid decision in any detail.
33. Counsel for the revenue also drew our attention to the observations of this court in the case of CIT v. Ganga Properties Ltd. : [1970]77ITR637(Cal) .
34. The said observations relating to beneficial ownership and legal ownership were also made in a different context and we do not think that the said observations will have any relevancy in deciding the controversy in the present case.
35. Our attention was also drawn to the decision in the case of James Anderson, Administrator of the Estate in India of Henry Cannon v. CIT : [1963]47ITR229(Bom) . There, the Bombay High Court was dealing with the nature of the liability of the executor. But the court was dealing with the position under the Indian I.T. Act, 1922, which did not have a provision similar to Section 168 of the I.T. Act, 1961. Furthermore, the context in which the observations of the Division Bench of the Bombay High Court were made in that case were different. We may incidentally mention that the said decision of the Bombay High Court has been confirmed by the Supreme Court. But it is not necessary for us in the context of the facts and circumstances of this case and in view of the provisions of Section 168 of the I.T. Act, 1961, to discuss the said decisions.
36. We may incidentally refer to the observations of the Supreme Court in the case of CIT v. Managing Trustees, Nagore Durgha : [1965]57ITR321(SC) , where the Supreme Court dealing with the case of a representative assessee in the context of Section 41 of the Indian I.T. Act, 1922, observed that the doctrine of vesting was not germane to the question where Section 41 applied. In some of the persons, enumerated in the section, the property vested, and in others it did not vest, but they only managed the property. In general law a property did not vest in a receiver or a manager but it vested in a trustee but both the trustees and the receiver were included in Section 41. The same would be the position under Section 161 of the I T. Act, 1961. The Supreme Court observed that the common thread that passed through Section 41 of the Indian I.T. Act, 1922, and Section 161 of the I.T. Act, 1961, was that all of them functioned legally or factually for others. They managed the property for the benefit of others. A reasonable interpretation of the section would be that all the categories of persons mentioned therein were deemed to receive the income on behalf of another person or other persons or manage the property for his or their benefit. None of them had any beneficial interest in the income ; he collected the income for the benefit of others.
37. In view of the nature of the duties required to be performed by the administrator pendente lite appointed under Section 247 of the Indian Succession Act, 1925, and in view of the circumstances under which administration pendente lite can be mide, we are of the opinion that the administrator pendente lite is not an administrator as contemplated in the Explanation to Section 168 of the I.T. Act, 1961, and, as such, Section 168 does not apply.
38. In the case of Administrator General of West Bengal for the Estate of Raja P. N. Tagore v. CIT : [1965]56ITR34(SC) what had happened was that under the will of the testator, who died in July, 1938, the residuary estate was bequeathed to his five sons. The executors and trustees were required to manage the estate for a period of 15 years before the end of which numerous specific legacies were to be paid out of the savings from the income of the estate. They were not competent to sell any portion of the corpus of the estate for this purpose. On 24th August, 1938, the sons obtained probate of the will but on 10th May, 1948, the Administrator-General of West Bengal was appointed administrator and letters of administration de bonis non of the estate were granted to him. In the relevant accounting periods, the administration of the estate were not complete and the question was whether the income from the estate was specifically receivable on behalf of the sons, who were the residuary beneficiaries. It was held that as the administration of the estate was not complete, the administrator-general received the income of the estate on his behalf and not on behalf of the sons who were residuary beneficiaries and as such Section 41 of the Act of 1922 did not apply. The position here is entirely different. Here, there is no administrator de bonis non. The administratrix pendente lite, as we have mentioned hereinbefore, performs entirely different functions. She holds the estate until the question is decided whether there has to be an administrator with a copy of the will annexed or an executor is to be appointed or not. Therefore, she cannot have the estate as administratrix or executrix vested in her. She cannot have the right of heirs at law. She can hold, the property until the question of the heirs at law to be divested or the rights of the administratrix or executrix is determined by the court. In that context, the observations of the said decision are not applicable to the facts of the instant case, as was rightly observed by the Tribunal.
39. An argument was made in the instant case that unless the residuary was determined the beneficiaries would not have any interest. It was further urged that, in the instant case, there was a residuary estate coming to the sons and the wife. We are, however, unable to accept this position. Section 142 of the Indian Succession Act, 1925, deals with specific legacies. Section 325 of the Indian Succession Act, however, provides that in any event debts had to be paid off before the legatees take their bequests. In our opinion, the bequests made in the instant case cannot be described to be bequest of residuary estate. Reliance was also placed on the observations of the Judicial Committee in the case of Secretary of State for India in Council v. Smt. Parijat Debi where the Judicial Committee observed that until the administration was complete the residuary legatee did not obtain his share. The said observations, in our opinion, cannot have any application because, as we have mentioned, the bequests made in the instant case, with the terms used, as set out hereinbefore, are not in the nature of residuary estate or residuary bequest.
40. For the aforesaid reasons, we hold that Section 168 of the I.T. Act, 1961, neither applies to the facts and circumstances of this case nor is there any question of the heirs not getting any estate until the residuary is determined, in the facts and circumstances of this case.
41. Next question is whether in view of the fact that Sm. Mahamaya Dassi being administratrix pendents lite managing the affairs of the heirs, she can be treated as representative assessee under Clause (iii) of Sub-section (1) of Section 160 of the I.T. Act, 1961, and whether in view of Section 161 of the Act of 1961 read with Section 164, the shares of the different persons on whose behalf the income is received can be said to be indeterminate or unknown. As mentioned hereinbefore, for the first year, it is doubtful whether Smt. Mahamaya Dassi can be said to be managing the affairs on behalf of the other heirs because there was no order of appointment so far as the first year is concerned. But in the instant reference this controversy has not been urged and; both the revenue as well as the assessee have proceeded on the basis that she was so managing. And, therefore, she is to be treated as a representative assessee. The question is, whether the shares of the beneficiaries can be said to be either definite or ascertainable. The case of the revenue is that in view of the pendency of the proceedings regarding the validity of the will, the shares have become indefinite and cannot be ascertained. It was urged that if the will is proved as valid then the parties would have 1/7th share and on the other hand if it was held that the will was not valid then the parties would have 1/11th share. It was, therefore, urged that the parties would have either 1/7th or 1/11th share because of the pendency of the litigation. This question, so far as this court is concerned, in our opinion, is concluded by the judgment of the Division Bench of this court in the case of In re Keshardeo Chamria : [1937]5ITR246(Cal) . There, the court observed that before a person could be taxed as owner under Section 9 of the Indian I.T. Act, 1922, it must be decided that he was in fact the owner of the property in question and this decision rested with the ITO subject to the rights of appeal under Sections 30 and 31 of the said Act. But the mere existence of a dispute as to title even where the suit had been filed, could not by itself hold up an assessment until the final determination of the suit. It was further held that in order to bring a person within Section 41 of the Indian I.T. Act, 1922 it was not enough that the person could be appointed to manage the property but that person should further manage it on behalf of another. At page 258 of the report, the court observed that the ITO had prima facie the power to decide that the assessee was the owner of a half share in the properties without waiting for the final order in the suit in the High Court. Where a share or right to get a share of a person is dependent upon a contingency then it can be paid that the share is either not definite or is not ascertainable but the litigation or adjudication made in the suit would not grant the share to the parties. It would only decide what was the share of the parties. That would be the true effect of the adjudication in the probate proceedings. The parties or heirs at law will not get their shares as a result of the adjudication as to the validity of the will. The probate proceedings will only adjudicate the validity of the will. But the shares of the parties will be either known from the will or if the will is not proved, on intestacy. The pendency of adjudication on the question of the validity of the will does not make the share of the parties contingent or -uncertain. This is one of the processes open in law to adjudicate the title of the parties or the shares of the parties. The powers of the ITO are also, so far as revenue purposes are concerned, plenary in the sense he has to decide who is the owner and to whom does a particular income belong. He must, of course, decide the question in accordance with the other provisions of law. But it is for the revenue authority to decide in accordance with law the rights of the parties and to decide to whom the income in respect of the properties in question does belong. In that light, in such a case, the presence of the dispute as to the will, in our opinion, does make the share indefinite or unascertainable. Reliance was placed, however, on certain observations in the case of the decision of the Lahore High Court in Sh. Abdul Rakman v. CIT . There, a Muhammedan died leaving two sons and daughters and they were assessed for some years as an association of individuals. The daughters instituted a suit for partition claiming their shares according to Muhammedan law. The brothers contended that the family was governed by Christian law under which the daughters were altogether excluded from inheritance. There, the court held on an application under Section 9(3) of the Indian I.T. Act for separate assessment of the shares of each individual in respect of income from property, that so long as the litigation between the parties was pending it was impossible to hold that the shares of the parties were definite and ascertainable within the meaning of Section 9(3) of the Indian I.T, Act and that the parties were not entitled to have their shares of the income separately assessed. The court noted that the term 'definite' in ordinary parlance means 'fixed, exact and clear' and in a case where even if it could not be decided as to how many heirs would eventually share the property it could not be urged that the share of any heir was so fixed or clear. With great respect to the learned judges of the Division Bench, we are unable to agree with the aforesaid decision of the Division Bench of the Lahore High Court. An indication may be obtained of the principle of what is meant by a share which is either definite or unascertainable from the decision of the Supreme Court in the case of CIT v. Puthiya Ponmanichintakam Wakf : [1962]44ITR172(SC) , where one U and his wife created a wakf of their properties, A mutawalli appointed thereunder was directed to manage the properties in such a way as to do acts necessary for charitable purposes and to meet the maintain-ance expenses of their children and grandchildren and the female children that might be born to them in future and to the female children born to the said female children. After payment of taxes and expenses for repairs as the maintenance of the properties, the mutawalli was to utilise the balance of the income for the daily house and food expenses and dress and other necessities of the then male and female members of the tarwad and for conducting certain religious and charitable ceremonies. It was held that although the number of beneficiaries was ascertainable at any given point of time the beneficiaries had no specified share in the income of the properties but had only a right to be maintained. It was only the share of this type or such fixed income or the fixed amount which would make, in our opinion, the shares which could be described to be indefinite or unascertainable. The Division Bench of the Bombay High Court had an occasion to consider this question in the case of CIT v. Purushotam Gangadhar Bhende : [1977]106ITR932(Bom) , where a Portuguese citizen governed by the Portuguese Civil Code was married as per the custom of Goa and under the relevant provisions of the Portuguese Civil Code a house property which yielded an income of Rs. 3,810 in the previous year relevant to the assessment year 1968-69 became the property of the communion of the husband and wife. The ITO assessed the income from the property as that of a body of individuals. The AAC held that the respective shares of the husband and wife must be taxed in their individual hands separately under Section 26 of the I.T. Act, 1961, and reversed the order of the ITO. The Tribunal confirmed the order of the AAC. On a reference, it was contended for the revenue that so long as the communion lasted, the husband and wife had no definite and ascertainable share in the communion property. The Bombay High Court held that under the provisions of the Portuguese Civil Code as well as Article 10 of the Commercial Code, in the corpus as well as in the income of the communion property of the husband and wife, immovable as well as movable, the husband and the wife, each had during the subsistence of a marriage celebrated as per the custom of Goa, a fixed and certain half share which could be ascertained on the termination of the communion by divorce, separation or death. On the death of one of the spouses, communion property did not devolve by survivorship, but the half share of the deceased spouse went by succession to his or her own heirs or legatees. It was further held that the respective half shares of the husband and wife in the income from the house property which was the property of the communion of the husband and wife married according to the custom of Goa, should be assessed separately in equal shares in the hands of each of them and not in the hands of the body of individuals of the communion of husband and wife for the relevant assessment year. At page 935 of the said report, the court gave the meaning of the expressions 'definite' as well as 'ascertained' and 'ascertainable'. What was required was that the share may not be fixed and not ascertained but capable of being fixed and ascertained.
42. Judged by these principles, in our opinion, in this case, it cannot be said that the shares of the parties were not definite or ascertainable, but shares required to be ascertained and the I.T. authorities were competent to ascertain the shares. The revenue is also competent to make protective assessment. In order to protect the interest of the revenue protective assessments are recognised under the I.T. Act (see observations in the cases of Beli Ram & Brothers v. CIT and Lalji Haridas v. ITO : [1961]43ITR387(SC) .
43. In our opinion, the mere pendency of a dispute does not make, in the facts and circumstances of this case, the shares of the parties in the properties, either indefinite or incapable of ascertainment.
44. In the premises, we answer the question in the negative and in favour of the assessee.
45. In the facts and circumstances of this case, each party will pay and bear its own costs.
Sudhindra Mohan Guha, J.
46. I agree.