SAjN’SOjNT, J.—Junaid v. Commissioner of Inland Revenue
1962Present: Sansoni, J., and Sinnetamby, J.
A. C. JTJNATD, Appellant, aid COMMISSIONER OF INLANDREVENUE, Respondent
S. C. 2)61—Income Tax Case, BRA 286
Income Tax Ordinary (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 99 in section 2of the Income Tax Ordinance.
When a person without just authority takes upon himself to act aa executor,;as by intermeddling with the goods of a deceased person, he becomes liablebecause 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 aperson so liable.
Appeal by way of a case stated under section 78 of the Income Tax•Ordinance.
&. E. Chitty, Q.C., with K. Sivagurunathan and Desmond Fernando,for the Appellant.
Mervyn Fernando, Crown Counsel, with M. Kanay asunder am, for theRespondent.
Cur. adv. vult.
.March 6, 1962. Sansoni, J.—
This is an appeal by way of a case stated under section 78 of theIncome Tax Ordinance, Cap. 242.
The appellant was required b 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 year1958/59. He appealed against that assessment, but both the authorisedadjudicator and the Board of Review held against him.
SANSONI, J.—Jvnuyid v. Qomm/issioner of Intoad Rwcrtvm
A. C. Abdeendied on fed© eight of 4th December, 195$,. and the additionalassessment and the notice served <m the appellant a?# of eartaia-incidents -which sue said -to- have-©eemTad-that -mghk The Board ofReview, affirming the authorised adjudicator’s findings, decided that asum of over 12 lakhs of rupees in cash, which was in three safes in thedeceased’s house, was divided among certain persons who were there,and the appellant took a sum v.f P«s. 164,000. It i> this sum of Rs. 164,000that was claimed from him as tax, the liability being limited to theamount in cash which, according to the evidence, be received from theassets of the deceased.
Mr. Chitty urged as his first point that there was no evidence that theappellant received such a sum of money. We were taken through therelevant portions of the evidence recorded by the authorised adjudicatorand I am unable to agree with Mr. Chitty.
The witness Jamaldeen, who is the father of the deceased’s widowNoor Zaxeena, described how he f und the appellant and several otherpersons at the residence of the deceased on the night in. question. Therewas money on a table in the office room, and while it was being countedthere was a discussion as to how it should he divided. That moneycame from three safes which were opened by the deceased’s son ZareenAbdeen. One Idroos, a friend of the deceased who was there, wasasked to divide the money and seven lots of Rs. 160,000 each wereseparated to represent seven shares. Those who received those shareswere :
his first wife’s children who received 3 shares jointly
his brothers Mazahir and Junaid (the appellant) who each received
his widow, Noor Zareena, who received one share and
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 appellantreceived, according to the evidence, a further sum of Rs. 4,000 on behalfof his son Faleel. The witness said that he received Rs. 160,000 onbehalf of his daughter ; the appellant received one lot of Rs. 160,000and another sum of Rs. 4,000 on behalf of his son, and in that way all themoney was taken away. Under cross-examination he repeated what hehad said in examination in chief. At the close of his re-examination thefollowing passage occurs in the evidence:
Q.Now in this discussion for the division, did Mr. Junaid ask for ashare ?
A. Not that he asked.
Q. What did Junaid say in the discussion ?
A. I cannot remember what he said.
Q. But did he take the money allocated l
A. That I did not see, Six.
KAN'SONT, J.—Junaid v. Commissioner of Inland Revenue563
Mr. Clotty argued that the last answer given nullifies the evidencegiven previously by the witness. I do not take that view. The witnesshad repeatedly said that the appellant Junaid had received one lotof Rs. 160,000 plus_a further Rs. 4,000 and it was lof the authorisedadjudicator to say what view he took of the witness’s evidence as a.whole.
The next witness called was the widow. She did not see the actual!division, because she was in her bedroom as required by custom, but shesaid that at about 1 a.m. her father brought her a sum of Rs. 160,000’saying that it was her share. That money was later removed from herhouse by her father to his house.
The next witness was Noordeen, wbo had been a friend of the deceasedfor about 15 years. He was in the house when the deceased's body wasbrought there from the hospital. He spoke to having seen a lot of moneyon a table in the office room after some safes had been opened. It wasin currency notes of Rs. 50 and Rs. 100. It was divided, and be sawpersons taking it away in pillow cases. He saw the appellant taking onepillow case, Mazabir taking another, the first wife’s children taking another,the widow's father taking another. In all he saw five persons takingaway pillow cases containing money, and there was no money left on the- table thereafter. The witness, has, however, denied that he distributedthe money although he admitted that he was asked to do so by thosepresent.
The appellant was himself called as a witness by the Assistant Com-missioner. He admitted his presence in the bouse that night from about.11 p.m. till about 5.30 a.m. All he admitted having received was aboutRs. 2,500 or Rs. 3,000 at about 12.30 or 1 a.m. but he could hot rememberwho gave it to him. He denied that there was any distribution of cash,or that he received Rs. 164,000. I do not agree with the submission thatbecause the appellant was called by the Assistant Commissioner hisevidence had to be accepted as true. That was a matter for the authorisedadjudicator, who was the judge of questions of fact and the credibilityof witnesses. Viewing a1! the evidence in the light of the circumstances-spoken to, he was entitled to hold that there was a distribution of moneythat night, and that the appellant received a sum of Rs. 164,000.
The next point that arises for consideration is whether, on that view-of tbe facts, the appellant fell within the definition of “ executor ”. That-term has been defined in section 2 of tbe Ordinance as follows : “Executor”'means any executor, administrator, or other person administering theestate of a deceased person, and includes a trustee acting under a trust-created by the last will of the author of the trust. We have heard interest-ing arguments on whether- this definition is wide enough to cover the caseof the appellant who is said to have taken a sum of Rs. 164,000 out of theassets which bad been in the possession of the deceased at the time ofhis death. Tne question, in short, is whether such an act of intermeddlingwould make the appellant an executor de son tort (as a lawyer would
. 564SANSONI, J.—Jttnaid v. Oommieaioner of Inland Rwmue
term it) and whether 1m wmM oom@ within the defibuidon. This is amixed question of fact .and law* And I tbink it may be broken op intotwo parts :
Is an executor de son tort an executor within the definition?
Is the appellant an ns ecu tor d.e son tort?
By the words "any exec at or, administrator or other person administer-ing the estate ” it is obvious that the legislature intended to cast as widea net as possible, and to include all persons who may have taken part inthe administration of the estate whether they had a legal title to do so ornot. The term "executor” itself does not necessarily mean a rightfulexecutor, that is to say, a person who has been appointed an executor-by the deceased. It could also include one who has acted as an executorof an estate without a legal right to the position. Thus it has been heldthat if a man is sued as the executor of an executor for a debt of theoriginal testator, it is no answer to that action that he is only executorde son tort to the original rightful executor—see Meyrick v. Anderson1.This case was followed in Rahman Dole v. Abesiriwardene 2 where it washeld that a plaint describing the defendant as executor imports that heis executor either by right or by wrong, and a mere denial that the defen-dant has clothed himself with probate is no answer to the plaint.
It is instructive to turn back to a very early case dealing with thequestion : Who is an executor de son tort ? In Read's case3 the court hadto deal with an action of debt brought by one Read against Carter,executor of Yong. Yong, who had made his last will appointing A ashis executor, died leaving goods above the value Gf the debt. Beforethe will was proved the defendant Carter took the testatoris goods into,his possession and intermeddled with them. The will was proved later.The question for the court was whether the defendant, Carter, shouldbe charged as executor of his own wrong. Judgment was given for theplaintiff and the following three points were resolved :
fl) When a man dies intestate, and a stranger takes the intestate’sgoods and uses them, or sells them, in that case it makes himexecutor of his own wrong. Bor although the pleading insuch case be, that he was never executor, nor ever administered■as an executor ; and therefore it was objected, that he ought topay debt or legacy, or do something as executor : yet it wasresolved, and well agreed, that when no one takes upon him tobe executor, nor any hath taken letters of administration there,the using of the goods of the deceased by any one, or the takingof them into his possession, which is the office of an executoror administrator, is a good administration to charge them asexeoutora of their wrong ; for those to whom the deceased wasindebted in such case have not any other against whom they canhave an addon for recovery of their debts.
1U Q. J8, 729.■* tW«sr. <29.
SAJNSONI, J.—Jundid, v. Commissioner of Inland Revenue
When an executor is made, and be proves the will, or takes upoD
him the charge of the will, and administers in that case, if astranger takes any of the goods, and, claiming them for hisproper goods, uses and disposes of them as his own goods, that–doth not make him in construction of law an executor of hiswrong, because there is another executor of right whom he maycharge, and these goods which are in such case taken out of hispossession after that he hath administered, are assets in hishand; but although there be an executor who administers, yetif the stranger takes the goods, and claiming to he executor,pays debts, and receives debts or pays legacies, and intermeddlesas executor, there, for such express administration as executor,he may be charged as executor of his own wrong, although therebe another of right:
In the case at Bar, when the defendant takes the goods before the
rightful executor hath taken upon him, or proved the will,in this case he may be charged as executor of his own wrong,for the rightful execator shall not be charged but with the goodswhi'h come to his hands after he takes upon him the chargeof the will.
I draw attention to the intermeddling with the goods of the deceasedbeing described as an administration which renders the person liable asthe executor of his wrong. More than once in this judgment such inter-meddling is so described. It is on this basis that the liability accrues,for when a person without just authority takes upon himself to act asexecutor, as by intermeddling with the goods of the deceased, he becomes• liable because he has done acts which only a lawful executor is entitledto do. He incurs the liabilities of his usurped office without any of theprofits or advantages. It is well settled that even one act of intermeddlingis sufficient to render a person liable as executor de son tort, though mereacts of kindness or charity would not render a person so liable.
In the case before us, the question of fact as to whether there had beenan intermeddling by the appellant has been decided against him. Theconclusion to be drawn from that fact is a question of law. There canbe no doubt that he acted as an executor de son tort, and brought himselfwithin the meaning of “ executor ” as defined in section 2.. This is not acase where it can be said that there was no evidence that he intermeddled,or that the propeT inference from such intermeddling was that he did notrender himself liable as an executor.
I would dismiss the appeal with costs.
SxsirETiUffiSY, J.—I agree.
A. C. JUNAID, Appellant, and COMMISSIONER OF INLAND REVENUE, Respondent