Appeal No 1397 of 1969
Appeal from the judgment and order dated January 1 1968 of theKerala High Court in O P No 2413 of 1965
VASeyid Muhammad and A G Pudissery for the appellant
alias A R Somanatha Iyer and P Kesava Pillai for the respondent
The Judgment of the Court was delivered by Hegde J
One K C Sreemanavikraman alias Eattan Raja was the Zamorin of Calicut
He was a Sthanamdar
In respect of the sthanam property he was liable to pay agricultural income tax under the Kerala Agricultural Income tax Act 1950 in brief the Act for the period from November 1 1956 to March 31 1958
Sreemanavikraman Raja died on May 2 1958
Thereafter on May 12 1958 Sthanam Properties As sumption of Temporary Management and Control and Hindu Succession Amendment Act of 1958 came into force
After the death of Sreemanavikraman Raja the sthanam property was taken possession of by Kunhammaman Raja claiming to be the succeeding sthanamdar
In respect of the assessment due for the period November 1 1956 to March 31 1958 Kunhammaman Raja was assessed to tax as the successor sthanamdar
The said Kunhammaman Raja died on December 23 1960 without making any payment
Thereafter the next senior most member in the Zamorin family P C Cheria Kunjunni Raja took possession of the sthanam property
He also died soon after
During the life time of P C Cheria Kunjunni Raja the Agricultural Income tax Officer imposed a penalty of Rs 5000 for non payment of the tax referred to earlier
P C Cheria Kunjunni Raja paid a sum of Rs 20100out of the tax and penalty due as coercive proceedings were threatened to be taken against him
On the death of P C Cheria Kunjunni Raja the next senior most member in the Zamorin family was K C Cheria Kunjunni Raja
When the 936 Agricultural income tax Officer attempted to collect the tax imposed under the assessment order mentioned earlier from K C Cheria Kunjunni Raja he filed a petition before that officer representing that he had nothing to do with the sthanam property and the sthanam property stood divided under section 73 of the on the death of Sreemanavikraman on May 2 1958
The had come into force on June 18 1956
After the receipt of that representation the Agricultural Income tax Officer passed an order on March 25 1963 stating that as the successors of the Zamorin who died on 2 5 1958 had designated themselves as Zamorin Rajas they have the liability to pay the arrears due to the Government
He directed K C Cheria Kunjunni Raja to pay the tax and penalty imposed
Aggrieved by that order K C Cheria Kunjunni Raja filed a writ petition in the Kerala High Court challenging the validity of the threatened proceedings against him
The High Court quashed the demand notices issued by the Agricultural Income tax Officer to K C Cheria Kunjunni Raja
It held that the assessment having been made on Kunhammaman Raja his share alone was liable to be proceeded against
It further held that the liability  to pay that tax and penalty was that of the personal heirs of Kunhammaman Raja and that only to the extent they had come into possession of the assets of the said Raja
Thereafter the Inspecting Assistant Commissioner Kozhikode ordered that as the entire sthanam property had devolved on the 693 members all those persons were liable to pay the arrears of the tax and penalty
This order was made without notice to the parties
Meanwhile in the partition suit in the Zamorin s family the court appointed two joint receivers
The receivers objected to the order of the Assistant Commissioner demanding the arrears of tax referred to earlier from them
They represented to him that the estate in their hands is not liable to pay the arrears of tax and penalty demanded
But those representations were not accepted by the authorities
They threatened to proceed against the assets in the hands of the receivers
At that stage the receivers filed the writ petition from which this appeal arises
Therein they challenged the right of the Agricultural Income tax Officer to collect the arrears of tax and penalty from out of the properties in their hands
The question before the High Court was whether the tax due from Manavikraman Raja was realisable from the assets in the hands of the receivers
The writ petition was heard by a full bench of three judges
By a majority the High Court came to the conclusion that the only persons who were liable to pay the tax in question were the personal heirs 937 of Sreemanavikraman Raja who had received the income
The Court held that in view of section 73 of the  the sthanam property stood divided at the time of the death of Sreemanavikraman Raja into 693 shares out of which 692 shares went to members of the Tarwad of the deceased and one share to his Personal heirs wife and children
It opined that the tax due from Manavikraman Raja could have been levied and collected only from his personal heirs as they alone were liable to pay that tax
As a result of that conclusion it quashed the impugned demand
Section 7 of the provides for the devo lution of interest in the property of a tarwad tavazhi kutumba kavaru or illom
Section 73 provides  Notwithstanding anything contained in sub section
1 when a sthanamdar dies after the commencement of this Act the sthanam property held by him shall devolve upon the members of the family to which the sthanamdar belonged and the heirs of the sthanamdar as if the sthanam property had been divided per capita immediately before the death of the sthanamdar among himself and all the members of his family then living and the shares falling to the members of his family a the heirs of the sthanamdar shall be held by them as their separate property Explanation For the purposes of this sub section the family of a sthanamdar shall include every branch of that family whether divided or undivided the male members of which would have been entitled by any custom or usage to succeed to the position of sthanamdar if this Act had not been passed
 We have considered the scope of this section in Civil Appeal No 1137 of 1969
Hence it is sufficient for our present purpose to state that in view of section 73 of the  it must be held that on the death of Sreemanavikaraman Raja each of the members of his tarwad took a per capita share in the sthanam property as co owners and not as his heirs
His personal heirs took the share which the deceased was deemed to have got as his share when he was taking his last breath
Section 73 of the embodies a fiction
The purpose of that fiction was to gradually abolish the sthanams and to provide for the devolution of the sthanam properties on the members of sthani s tarwad except as regards one per capita share which the personal heirs of the sthanamdar are to inherit as the heirs of the sthanamdar
938 The nature of a sthanam was considered by this Court in K K Kochuni and ors
vs The State of Madras and ors
1 Therein this Court observed that according to the custom Sthanam means a position of dignity and respect and for maintaining that position properties were attached to that office and the same was held by the stani
Stani is solely entitled to the income of that property during his life time
The senior most member of a tarwad usually became the sthanamdar of the sthanam attached to that tarwad
On his succession to stanom
he stood separated from the rest of the family
He solely became entitled to the stanom property but he gave up his right in the tarwad property
All the same he and the members of his tarwad had the same right of succession to the properties of each other as if his severance from the family had been the result not of his succession to the stanom but a voluntary division between him and the rest of the family
Whatever might have been the customary law section 73 of the Hindu Succession Act the validity of which was not in issue before us by a fiction deems that the sthanam property stood divided amongst the stani and the members of his tarwad a split second before his death
From the language of the section
it is clear that the members of the tarwad took the property as co owners and not as the heirs of the deceased stani
This fiction was created for the purpose of providing for the devolution of the sthanam properties
The Act 28 of 1958 came into force only on May 12 1958
Therefore that Act cannot have any effect on the sthanam with which we are concerned in this case because that stanom stood destroyed on May 2 1958
Hence we need not refer to the provisions of that Act
The income of the sthanam property during November 1 1956 to March 31 1958 was the exclusive property of Sreemana vikaraman Raja
He was alone entitled to that income
Therefore he alone was liable to pay the tax
Under the Agricultural Income tax Act no charge is created on property in respect of the arrears of agricultural income tax
That being so the liability to pay the arrears of tax due from the deceased stani fell on his personal heirs and that only to the extent they received any of his assets
This position is clear from section 241 of the Act which provides that when 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 agricultural income tax assessed as payable by such person or any agriculture income tax which would have been payable by him under this Act if be had not died
1 939 The assessment made on Kunjunni Raja in his capacity as the successor sthanamdar was an invalid assessment
Legally he never became the sthanamdar
There was no sthanam after the death of Manavikraman Raja
With the death of Manavikraman Raja the sthanam came to an end
The only persons who could have represented the estate of Sreemanavikraman Raja were his personal heirs
They were not made parties to the assessment
No notice of the assessment proceedings was given to them
Kanjunni Raja was not one of his legal representatives
Even if it is considered that the sthanam properties had devolved on the members of the tarwad by succession
Kanjunni Raja alone could not have represented the entire body of successors numbering 692
There was no question of any bona fide enquiry by the assessing authority
It was clearly a case of misunderstanding the legal position
Further it does not appear that Kunjunni Raja was assessed as the legal representative of the deceased stani
He appears to have been assessed as the successor stani liable to pay the debts due from the estate
Hence the assessment was not made in accordance with law see Income tax Officer Kozhikode vs Mrs Susheela Sadananda and anr1
In this view of the matter it is not necessary for us to consider the other provisions of the Act providing for the assessment and collection of the tax due from a deceased person
In the result this appeal fails and the same is dismissed with costs
VPS Appeal dismissed


Summary:
Section 73 of the  by a fiction deems that the Sthanam property stands divided amongst the sthani and the members of his tarwad a split second before the death of the sthani
The members of the tarwad took the property as co owners and not as heirs of the deceased sthani
The purpose of the fiction was to gradually abolish the sthanams and to provide for the devolution of the sthanam properties on the members of sthani s tarwad except as regards one per capita share which the personal heirs of the sthani are to inherit as the heirs of the sthani
On May 2 1958 the Zamorin of Calicut died
In respect of the agricultural income tax under the Kerala Agricultural Income tax Act 1950 which he was liable to pay for the period November 1 1956 to March 31 1958 the person who took possession of the sthanam property claiming to be the succeeding sthani was assessed to tax as the sursthani After his death the Agricultural Income tax Officer attempted to collect the tax from the successive senior most members of the Zamorin s family
The validity of the assessment was challenged and the High Court held that the liability to pay the tax and penalty imposed was only that of the personal heirs of the person who took possession of the properties immediately after the death of the Zamorin and that only to the extent of the assets of that person which had come into their possession
Thereafter it was ordered by the Department that as the entire Sthanam property bad devolved on the 693 members of the tarwad all those persons were liable to pay the tax and penalty but the order was made without notice to the parties
When the authorities threatened to proceed against the properties in the hands of the Receivers who were appointed in the par tition suit in the Zamorin s family the Receivers filed a writ petition challenging the right of the Agricultural Income tax Officer to collect the arrears of tax and penalty from out of the properties in their hands
The High Court quashed the demand holding that the only persons who were liable to pay the tax were the personal heirs of the Zamorin as it was they who had received the income
Dismissing the appeal to this Court HELDUnder the law relating to sthanams the sthani was alone entitled to the income of the sthanam properties
Therefore the income of the sthanam property in the present case during November 1 1956 to March 31 1958 was the exclusive property of the Zamorin who has the sthani
Hence he alone was liable to pay the tax
Under the Agricultural Income tax Act no charge is created on property in respect of the arrears of agricultural income tax
Under section 241 of the Act the liability to pay 935 the arrears of tax due from the deceased sthani fell on his personal heirs and that only to the extent they received any of his assets
The assessment made of the person who took possession of the properties after the Zamorin s death as the successor sthani was an invalid assessment because legally he never became the sthani
On the death of the Zamorin the sthanam came to an end and the only persons who could have represented the estate of the Zamorin were his personal heirs who however were not made parties to the assessment
938 F H 939 A B Income tax Officer Kozhikode vs Mrs Susheela Sadananda  K K Kochuni vs State of Madras and M K B Menon vs Asstt
Controller of Estate Duty CA No 11371969 dt 5 10 1971 referred to