Attorney General V. Ramaswamy Iyengar, V.

1953 Present: Gratiaen J. and Gunasekara J.

THE ATTORNEY-GENERAL, Appellant, and V. RAMASWAMI

 IYENGAR et al. (Administrators of the Estate in Ceylon of

Rm. AR. AR. Rm. Arunachalam Chettiar, deceased),
Respondents

S. C. 235-D. C. Colombo, 37 (Special)
 

Estate Duty-Hindu undivided family-Way of proving a question of foreign law -Death of " co-parcenary member " in 1934-Liability of his estate to pay estate duty-"Passing " of property-" Executor "-Ordinance No. 8 of 1919, 88. 7, 8, 17(6)-Ordinance No. 1 of 1938 (Cap. 187), ss. 24, 77, 79-Wills Ordinance (Cap. 49), s. 7-Partition Ordinance (Cap. 56), s. 18.

A. C, a Natucottai Chettiar, and his father were the only " co-parcenary o members " of a Mitakshara Hindu undivided family which, regarded as an entity, owned considerable " joint property " in various countries including Ceylon. A. C. predeceased his father in 1934. During his lifetime, there had been neither a complete nor a partial division of title or separation of interests in the joint property of the family.

The Crown claimed estate duty in respect of A. C. 's estate in Ceylon. The assessees were the administrators of the estate of his father, who had himself died subsequently in 1938.

Held, (i) that the law governing a Mitakshara Hindu undivided family involved a question of foreign law which must be regarded as a " question of fact" of which the Courts in Ceylon cannot take judicial notice. The decision of the Court must, therefore, be based upon the testimony of the qualified experts who gave evidence and upon the references to textbooks and judicial decisions which were incorporated in their evidence.

(ii) that, under the Mitakshara law, the joint property belonged to the entire family group to the exclusion of its individual members. Upon the death of A. C. no effective change occurred in the title or possession of the joint property belonging to the undivided family. His father who survived him did not, in consequence of the death, receive any " property " which he did not have before. The Crown's claim to estate duty failed, because there was neither an actual nor a notional " passing " of property within the meaning of sections 7 and 8 of the Estate Duty Ordinance, No. 8 of 1919.

(iii) that in regard to the immovable property which formed part of the estate sought to be taxed, section 7 of the Wills Ordinance and/or section 18 of the Partition Ordinance had no relevancy to the " devolution " of a " co-par-cener's  interests in any part of the joint property of a Hindu undivided family.

(iv) that the present assessees could not be made accountable in the present case for any estate duty levied under section8 (1) (a) of the Estate Duty Ordinance, No. 8 of 1919, in view of sections 79 and 24, and the meaning of " executor " in section 77, of the later Estate Duty Ordinance (Cap. 187).

APPEAL from a judgment of the District Court, Colombo.

Walter Jayawardena, Crown Counsel, with V. Tennekoon and G. F. Sethukavaler, Crown Counsel, for the appellant.

H. V. Perera, Q .C., with S. J. V. Chelvanayakam, Q. C., Peri Sunderam, and S. Sharvananda, for the respondents.

Cur. adv. vult.

October 12, 1933. GRATIAEN J.-

This is an appeal by the Crown against a judgment of the learned District Judge of Colombo rejecting a claim for estate duty in respect of the estate in Ceylon of a person to whom I shall refer for convenience as " Arunachalam Chettiar (jnr.)". He died in India on 9th July, 1934, and the assessees are the administrators of the estate of his father " Arunachalam Chettiar (snr.) ", who himself died subsequently in 1938.

The assessees had paid under protest to the Commissioner of Estate Duty a sum of Rs. 283,213.24 representing the duty claimed from them in respect of the son's estate, the property being described in the formal notice of assessment as " the deceased's interest in the business of RM. AR. AR.

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