1962   Present : Sansoni, J., and Sinnetamby, J.


A. C. JUNAID, Appellant, and COMMISSIONER OF INLAND REVENUE, Respondent

S. C. 2/61-hvcome Tax Case, BRA 285

    Income (Fax Ordinance (Cap. 242)-Section 2-Liability of executor de son tort as " executor "-Meaning of term " executor de son tort ".

An executor de son tort falls within the definition of " executor " in section 2 of the Income Tax Ordinance.

When a person without just authority takes upon himself to act as executor, as by intermeddling with the goods of a deceased person, he becomes liable because he has done acts which only a lawful executor is entitled to do.

Even one act of intermeddling is sufficient to render a person liable as executor de son tort, though mere acts of kindness or charity would not render a person so liable.

APPEAL by way of a case stated under section 78 of the Income Tax Ordinance.

G. E. Chitty, Q. C., with K. Sivagurunathan and Desmond Fernando, for the Appellant.

Mervyn Fernando, Crown Counsel, with M. Kanagasunderam, for the Respondent.

Cur. adv. vult.

 March 6, 1962. SANSONI, J.-

This is an appeal by Way of a case stated under section 78 of the Income Tax Ordinance, Cap. 242.

The appellant was required by the Commissioner of Inland Revenue to pay, as an executor of the estate of A. C. Abdeen, a sum of Rs. 164,000 as income tax on an additional assessment made in respect of the year 1958/59. He appealed against that assessment, but both the authorised adjudicator and the Board of Review held against him.

A. C. Abdeen died on the night of 4th December, 1958, and the additional assessment and the notice served on the appellant arose out of certain incidents which are said to have occurred that night. The Board of Review, affirming the authorised adjudicator's findings, decided that a sum of over 12 lakhs of rupees in cash, which was in three safes in the deceased's house, was divided among certain persons who were there, and the appellant took a sum of Rs. 164,000. It is this sum of Rs. 164,000 that was claimed from him as tax, the liability being limited to the amount in cash which, according to the evidence, he received from the assets of the deceased.

Mr. Chitty urged as his first point that there was no evidence that the appellant received such a sum of money. We were taken through the relevant portions of the evidence recorded by the authorised adjudicator and I am unable to agree with Mr. Chitty.

The witness Jamaldeen, who is the father of the deceased's widow Noor Zareena, described how he found the appellant and several other persons at the residence of the deceased on the night in question. There was money on a table in the office room, and while it was being counted there was a discussion as to how it should be divided. That money came from three safes which were opened by the deceased's son Zareen Abdeen. One Idroos, a friend of the deceased who was there, was asked to divide the money and seven lots of Rs. 160,000 each were separated to represent seven shares. Those who received those shares were :

(1) his first wife's children who received 3 shares jointly

(2) his brothers Mazahir and Junaid (the appellant) who each received one share

(3) his widow, Noor Zareena, who received one share and

(4) his brother-in-law Saleem who received one share on behalf of his wife, a sister of the deceased.

In addition to the sum of Rs. 160,000 representing one share, the appellant received, according to the evidence, a further sum of Rs. 4,000 on behalf of his son Faleel. The witness said that he received Rs. 160,000 on behalf of his daughter; the appellant received one lot of Rs. 160,000 and another sum of Rs. 4,000 on behalf of his son, and in that way all the money was taken away. Under cross-examination he repeated what he had said in examination in chief. At the close of his re-examination the following passage occurs in the eviden