THE ATTORNEY – GENERAL, Appellant, and VALLIYAMMA ATCHIE, Respondent

060-NLR-NLR-V-45-THE-ATTORNEY–GENERAL-Appellant-and-VALLIYAMMA-ATCHIE-Respondent.pdf


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The Attorney-General and Valliyarruma Atchie.
Present: Howard C.J. and Wijeyewardene J.
THE ATTORNEY – GENERAL, Appellant, and "V ALLTY AMMAATCHIE, Respondent.
51—D. C. (1-nty) Colombo, 10.
Estate Duty—Joint property of a Hindu family—Right of appeal from decisionof Commissioner—Decision ofBoardof Review underIncomeTax
Ordinance—Noestoppel by resjudicata—EstateDuty Ordinance,
No. 1 of 1938, ss. 34 and 73.
An appeal lies under section 34 oi the Estate Duty Ordinance from adecision of the Commissioner under section 73 of the Ordinance as to•whether the property left by a deceased person is the joint property of aHindu undivided family.
The decision of the Board of Review on an appeal under section 70 ofthe Income Tax Ordinance is not res judicata in respect of a matterthat arises for decision under section 73 of the Estate Duty Ordinance.
A
PPEAL from a judgment of the District Judge of Colombo. Thefacts appear from the argument.
H. H. Basnayake, C.C. (with him Walter -Jayawardene, C.C.), for theAttorney-General, appellant.—The decision of the Commissioner ofEstate Duty under section 73 of the Estate Duty Ordinance (Cap. 187), as-amended by section 5 of Ordinance No. 76 of 1938, is not a matter whichis subject to appeal to the District Court. The finding of the Com-missioner that the Ceylon estate of the deceased in this case was notjoint property of a Hindu undivided family is final and conclusive andcannot be questioned by the District Court. Section 34 which enablesappeals to the District Court relates to appeals from assessments madeby an assessor. The Commissioner does not make any assessments.This becomes clear when that section is read in conjunction with sections29, 32, 37, 38 and 39. Section 34 does not give a right of appeal from adecision of. the Commissioner under section 73. The Commissionerperforms an administrative, and not a judicial function under section 73.Dankotuwa Estates Co., Ltd. v. The Tea Controller1; Shell Co. of Australia v.Federal Commissioner of Taxation1 2. The words “ proved to the satisfac-tion of the Commissioner " have a conclusive effect—Murugappa Ghettrjv. The Commissioner of Stamps3 *; Liversidge v. Anderson et al*; Pointof Ayr Collieries, Ltd. v. Lloyd-George5; Carltons, Ltd. v. Commissioner.of Works et al.6 Wijeyesekere v. Festing7; Bamasamy Chettiar v. TheAttorney-G eneral6.
If the decision of the Commissioner of Estate Duty under section 73of Cap. 187 is conclusive, estate duty becomes payable notwithstandingthe foreign domicil of the deceased—Winans v. Attorney-General3;Blackwood v. The Queen10; Freke v. Lord Carbery11; Dulaney v. Merry &Son12.
1(1941) 42 N. L. R. 197.
2L. R. (1931) A. C. 275 at 295.
3(1922) 24 N. L. R. 231 at 234-5.
L. R. (1942) 1 A. G. 206.
(1943) 2 E. A. R. 546.
(1943) 2 A. E. R. 560.
L. R. (1919) A. G. 646 al 649.
(1937) 38 N. L. R. 313.
L. R. (1910) A. C. 27.
L. R. (1882-3) 8 A. C. 82.
L. R. (1873) 16 Eq. C. 461at 466-7-
L. R. (1901) 1K. B. D. 536 at 540-1.
HOWABD C.J.—The Attorney-General and Valliyamma Atchie.
231
The decision of the Board of Review of Income Tax that the estateof the deceased was not joint property of a Hindu undivided familyfor the purpose of section 20 (7) of the Income Tax Ordinance (Cap. 188)operates as res judicata, as regards that point, for the purpose of thepresent case also- The Board of Review constituted under section 10of the Income Tax Ordinance corresponds to the District Court in section.34 of the Estate Duty Ordinance. On both occasions the parties werethe same, namely, the Crown on one side and the legal representative ofthe deceased on the other. See Hoystead v. Commissioner of Taxation1;Spencer Bower on Res Judicata (1924 ed.) pp. 13, 128-9, 124, 11;Sankaralinya Nadar v. Commissioner of Income Tax, Madras 2 ; Guna-tilleke v. Fernando s. The case of Commissioners, of Inland Revenue v.Beneath *, which was eited on behalf of the respondent in the District Court,is not applicable because the decision in question in that case was not oneof a judicial tribunal and, further, was operative only for one year.
H. V. Perera, K..C. (with him N. Nadarajah, K.C., and S. J. V. Chelva-nayagam), for the plaintiff, respondent-—-As regards the words ** provedto the satisfaction of the Commissioner ” in section 73 of Cap. 187 theymean nothing more than “ proved before the Commissioner Similar-words occur in many sections, e.g., sections 17, 18 and 20, and merelyindicate the various functions of either the Commissioner or the assessors.Section 73 must be read together with section 34. The Commissioner'sdecision can be reviewed in an appeal taken under section 34—The Dukeof Beauford v. Craw shay s; Saravanamuttu v. Chairman, MunicipalCouncil, Colombo e.
On the question of res judicata, the Board of Review under the IncomeTax Ordinance is only a link in the administrative machinery and itsdecision does not involve any exercise of judicial power—Shell Co. ofAustralia v. Federal Commissioner of Taxation 7. Even if the Board ofReview can be regarded as a Court its decision cannot operate asres judicata in the present case—Commissioners of Inland Revenue v.JSneath (supra); Broken Hill Proprietary Co., Ltd. v. Municipal Council ofBroken Hill B-
II. H. Basnayake in reply.—The words in section 73 of Cap. 187 do notpermit of any other body reviewing the finding of the Commissioner.Their effect is similar to that of the words in sections 6, 53 (1), 58 &c.The Duke of Beaufort v. Craw shay (supra) is of assistance to the appellant.See also The Queen v. Commissioners for Special Purposes of the IncomeTax
Cur. adv. vult.
May 1, 1944. Howard C.J.—
This is an appeal by the Attorney-General from an order of the DistrictJ udge of Colombo holding : —
,(a) That an appeal lies under section 34 of the Estate Duty Ordinancefrom a decision of the Commissioner of Estate Duty undersection 73.
■* L. R. (1926) A. C. 155.5 L. R. (1866) 1 C. P. 699 at 706.
1 A. I. R. (1930) Mad. 209.* (1936) 38 N. L. R.21 at 24.
(1921) 22 N. L. R. 385 at 388.7 L. R. (1931) A. C.275 at 296.
1 L. R. (1932) 2 K. B. 362.8 L. R. (1926) A. C.94.
8 L. R. (1888) 21 Q. B. D. 313 at 319.
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HOWARD C.J.—The Attorney-General and Valliyamma Atchie.
That the plaintiff is not estopped from giving or leading evidence
to the effect that the Ceylon estate of the deceased K.M.N.S.P.Natchiappa Chettiar referred to in the * assessment for estateduty dated May 12, 1941, is joint property of a Hindu undividedfamily and of which the deceased was a member.
That the decision of the Board of Review of Income Tax that the
property left by the deceased is not joint property does notoperate as res judicata.
That the plaintiff who is also an heir of the deceased is entitled*
to question the right of the testator to make the will she hasproved and under which she has benefited.
In this Court Mr. Basnayake, on behalf of the Attorney-General, hasasked us to say that the learned Judge came to a wrong decision withregard to findings (a),(b) and (c). With regard to (a), section 73 of
the Estate Duty Ordinance is worded as follows: —
“ Where a member of a Hindu undivided family dies, . no estateduty shall be payable—
on any movable property which is proved to the satisfaction
of the Commissioner to have been the joint property of thatfamily; or
on any immovable property, where it is prove.d to the satisfaction
of the Commissioner that such property, if it had been move-able property, would have been the joint property of thatfamily.”
It is conceded by the respondent that the Commissioner was not satisfiedthat the property of the deceased was joint property of a Hindu un-divided family. In those circumstances Mr. Basnayake contends thatthere is no appeal from the decision of the Commissioner. To holdthat the decision of the Commissioner under this provision can be madethe subject of an appeal to the District Court would, in effect, substitutefor the words “ proved to the satisfaction of the Commissioner ” thewords “ proved to the satisfaction of the District Court In supportof this proposition Mr. Basnayake has cited the recent House of Lordsdecision in Liversidge v. Sir John Anderson & another 1 in which it washeld that, where the Secretary of State, acting in good faith underReg. 18b of the Defence (General) Regulations, 1939, makes an orderin which he recites that he has reasonable cause to believe a person to beof hostile associations and that by reason thereof it is necessary to exercisecontrol over him and directs that that person be detained, a court oflaw cannot inquire whether in fact the Secretary of State had reasonablegrounds for his belief. The matter is one for the executive discretionof the Secretary of State. At pages 219-220 in his judgment, ViscountMaugham stated as follows: —
” My Lords, I think we should approach the construction of Re-gulation 18b of the Defence (General) Regulations, without any generalpresumption as to its meaning except the universal presumption, appli-cable to Orders in Council and other like instruments, that, if there is a
1 (1942) 1 A. C. 206.
HOWARD C.T.—The Attorney-General and Valliyamma Atchie.
283
reasonable doubt as to the meaning of the words used, we should prefera construction which will carry into effect the plain intention of thoseresponsible for the Order in Council rather than one which will defeatthat intention. My Lords, I am not disposed to deny that, in theabsence of a context, the -prima facie meaning of such a phrase as ‘ ifA. 15. has reasonable cause to believe ' a certain circumstances or thing,it should be construed as meaning, ‘ if, there is in fact reasonable causefor believing ’ that thing and if A. B. believes it. But I am unable totake the view that the words can only have that meaning. It seemsto me reasonably clear that, if the thing to be believed is somethingwhich is essentially one within the knowledge, of A. B. or one for theexercise of his exclusive discretion, the words might well mean ifA. B. acting on what he thinks is reasonable cause (and, of course,acting in good faith) believes the thing in question.
His Lordship then proceeds to detail a number of circumstances which
tend to support the latter conclusion, and states as follows: —
“ Any one of these various circumstances is sufficient to satisfy thefirst fact which the Secretary of State must believe, and I do notdoubt that a court could investigate the question whether there weregrounds for a reasonable man to believe some at least of those factsif they could be put before the Court. But then he must at the sametime also believe something very different in it nature, namely, thatby reason of the first fact, ‘ it is necessary to exercise control over ’the person in question. To my mind this is so clearly a matter forexecutive discretion and nothing else that I cannot myself believe thatthose responsible for the Order in Council, could have contemplatedfor a moment the possibility of the action of the Secretary of Statebeing subject to the discussion, criticism and control of a judge in acourt of law. If, then, in the present case the second requisite, as tothe grounds on which the Secretary of State can make his order fordetention, is left to his sole discretion without appeal to a court, itnecessarily follows that the same is true as to all the facts which hemust have reasonable cause to believe.”
On page 221 His Lordship also says: —
“ Thirdly, and this is of even greater importance, it is obvious thatin many eases he will be acting on information of the most confidentialcharacter, which could not be communicated to the person detainedor disclosed in court without the greatest risk of prejudicing the futureefforts of the Secretary of State in this and like matters for the defenceof the realm. A very little consideration will show that the powerof the court (under s. 6 of the Act) to give directions for the hearingof proceedings in camera would not prevent confidential matters fromleaking out, since such matters would become known to the persondetained and to a number of other persons. It seems to me impossiblefor the court to come to a conclusion adverse to the opinion of theSecretary of State in such a matter. It is beyond dispute that he candecline to disclose the information on which he has acted on the groundthat to do so would be contrary to the public interest, and that thisprivilege of the Crown cannot be disputed. It is not ad rem on the
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HOWASD C.J.—The Attorney-General and Valliyamma Atchie.
question of construction to say in reply to this argument that thereare cases in which the Secretary of State could answer the attackon the validity of the order for detention without raising the point ofprivilege. It is sufficient to say that there must he a large numberof cases in which the information on which the Secretary of Stateis likely to act will be of a very confidential nature. That must havebeen plain to those responsible in advising His Majesty in regard tothe Order in Council, and it constitutes, in my opinion, a very cogentreason for thinking that the words under discussion cannot be read as-meaning that t^be existence of “ reasonable cause ’ is one which may bediscussed in a court which has not the power of eliciting the facts whichin the opinion of the Secretary of State amount to “ reasonable cause’. ”
Finally, His Lordship states that the objections to an appeal in a caseof mere suspicion and in time of war are not far to seek, but, howeverthat may be, an application to the High Court, with power to the Judgeto review the action of the Secretary of State, seems to be completelyinadmissible and he was unable to see that the words of the regulationin any way justify the conclusion that such a procedure was contemplated.A careful perusal of the judgment of Viscount Maugham and of theirother Lordships, who share his view, indicates that the extraordinaryand abnormal conditions arising from the war demanded that, in theinterests of the safety of the realm, the Secretary of State should havethe sole discretion to decide as to whether there is reasonable causefor believing that a person has hostile associations and that by reasonthereof it is necessary to exercise control over him. The matter wasone for executive discretion and their Lordships could not believe thatthose responsible for the Order in Council could have contemplatedfor a moment the possibility of the action of the Secretary of Statebeing subject to the discussion, criticism and control of a judge in acourt of law. The majority of their Lordships held that this was theplain intention of the Order in Council.
Mr. Basnayake also referred to two other recent cases, namelyPoint of Ayr Collieries, Ltd. v. Lloyd-George1 and Carltons, Ltd. v. Com-missioners of Works & others2. Both cases were decided by the Courtof Appeal which formulated the same principle as that expressed inLiversidge v. Anderson (supra) that the legislature intended the executiveto be answerable only to Parliament and that the Courts cannot questionthe bona fide action of the Minister. To hold otherwise would mean thatthe Courts would be made responsible for carrying on the executivegovernment in these matters. Having regard to the grounds on whichthese decisions were based, they do not, in my opinion, in any way assistthe argument put forward by Mr. Basnayake.
In Murugappa Chetty v. The Commissioner of Stamps3 it was heldthat the term “ debts and incumbrance ” in section 17 (1) (6) of theold Estate Duty Ordinance, No. 8 of 1919, refers to such debts andincumbrances as have been incurred or created within the Island, andfor the purpose of payment of estate duty, debts incurred or payableA (1943) Z A.. E. R. 546.1 (1943) 2 A. E. R. 560.
a 24 N. L. R. 231.
HOWARD C.J.—The Attorney-General and Valliyamma Atchie.
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out of the Island are not to be deducted from the estate. At the end ofhis judgment in this case Schneider J., stated as follows: —
“ Incidentally, I would also mention that the language of section17 (1) is such that the opinion of the Commissioner appears to concludethe question as to what are the * debts ’ or ‘ incumbrances ’ whichmight be deducted.”
This statement was purely obiter. The question of an appeal from thedecision of the Commissioner was not argued. The statement of thelearned Judge does not in any way bind the Court in regard to the questionwith which we are now confronted.
In Wijesekera v. Festing1 it was held by the P-rivy Council that whenafter the receipt of a report directed to be made under section 4 of theAcquisition of Land Ordinance, 1876, the Governor under section 6directs the Government Agent to take orders for the acquisition ofspecified lands in Ceylon, it is not open to the owner to contend in anycourt that the land is not needed for a public purpose.
Mr. Basnayake also cited in support of his argument a case under the•old Estate Duty Ordinance, No. 8 of 1919—N. Ramaswamy Chettiar v.The Attorney-General2. In this case it was held that estate duty that hasbeen overpaid may be recovered by action against the Crown. It wasargued by the Solicitor-General that the Commissioner was the solejudge of the question whether there has been an overpayment andwhether there should be a refund. With regard to that argument,Soertsz J., at pages 319-320 stated as follows: —
” The next point taken by the Solicitor-General is that the Com-missioner of Stamps in the sole judge of the question whether therehas been over payment and whether there should be a refund. TheCourts, he says, have no jurisdiction in the matter. In this connectionwe were referred to the case in re Nathan (L. R. 12 Q.B. 461). Thatcase arose on an application made under section 23 of 5 and 6 Victoria,Chapter 79, which is the counterpart of section 28 of our Estate DutyOrdinance. These sections provide that ‘when it is proved byaffidavit or declaration on oath or affirmation and proper vouchersto the satisfaction of the Commissioners …. ’
Brett M.B., commenting on a similar argument addressed to theCourt, said that it was not necessary to decide the point, but thathe would ‘ be very loth to hold that that is so, and to think that thereis no remedy open to persons in the position of the prosecutor ….and that the officials in a department of the Government have beenconstituted the sole and exclusive judge whether they ought to besatisfied or not ’. In this case too, it is not necessary to decide thatpoint for the plaintiff’s claim is not made under section 28, but undersection 27, of the Ordinance. In section 27 the words ‘ to the satisfac-tion of the Commissioner ’ do not occur. The simple words are ' ifat any time within three years …the value of the 'property
on which estate duty has been paid is found to exceed the true value
1 (1919) A. C. 646.a 38 N. L. R. 313.
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HOWAJRD C.T.—The Attorney-General and Valliyamma Atchie.
of the property subject to estate duty …. it shall be lawfulfor the Commissioner of Stamps, and he is hereby required to returnthe amount of duty which had been overpaid
It would appear that Soertsz J., was not called upon to decide anddid not decide whether the use of the words “ to the satisfaction of theCommissioner ” precluded the Courts from reviewing his decision. In,however, re Nathanl, Brett M.R. was apparently unwilling to holdthat officials in a department of the Government have been constitutedthe sole and exclusive judge whether they ought to be satisfied or not.In my opinion the case of N. Rartvaswamy Chettiar v. The Attorney-General {supra) does not support the contention of the Attorney-General.
In all the cases so far cited by me there was nothing in the phraseologyof the legislative enactment under review giving a right of appeal eitherexpress or implied.
In my opinion section 73 of the Ordinance cannot be considered apartfrom the other provisions of the Ordinance. It must accordingly beconstrued with particular reference to section 34 which is worded asfollows: —
“ Any person aggrieved by the amount of any assessment of estateduty made under this Ordinance, whether on .the ground of the valueof any property included in such assessment or the rate charged orhis liability to pay such duty or otherwise, may appeal to the appropriateDistrict Court in the manner hereinafter provided.”
The section therefore grants an appeal to the appropriate District Courtto “ any person aggrieved by the amount of any assessment of estateduty made under the Ordinance, whether on the ground of …or his liability to pay such duty or otherwise.” The respondent maintainsthat the property is that of a joint Hindu family and on this groundhe is not liable to pay. I do not think, therefore, that it can be arguedthat he is not a person aggrieved. He may therefore appeal. Similarlyf am of opinion that the terms of section 34 are wide enough to allow forappeals by persons who are aggrieved by decisions of the Commissioneror the Assessor, as the ease may be, under sections 6, 17, 18, 20, and 23.Both Counsel have called in support of their rival contentions the caseof The Duke of Beaufort v. Graze shay2. In this ease it was held thatwhere a statute gives powers to a Judge at nisi prius to exercise a discre-tion as to the admission of a document in evidence, his decision is subjectto the general supervision and control of the Court out of which therecord comes, unless the express language of the statute makes hisdecision final. 1 Wm. 4, c.22, s.10, makes the deposition of a witnesstaken under it inadmissible in evidence, unless it shall apear to thesatisfaction of the judge that the deponent is unable from permanentsickness or other permanent infirmity to attend the trial. Though it iscompetent to the Court to review his decision, it is for the judge tosatisfy himself of the deponent’s inability to attend, by such evidenceas he shall think fit; and that the Court will not interfere, unless it beshown that the judge has been misled by false evidence, or that injusticei L. B. 12 Q. B. 461.2 L. R. {1866) ; 1 C. P. 699.
HOtVAJRD C.J.—The Attorney-General and Valliyamma Atchie.
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has resulted from the course pursued at the trial. At page 706, Erie C.J.states as follows : —
“ The Judge who presides at nisi prius sits as a member of, and hisdecisions are subject to review by, the Court from which the recordcomes, unless he is acting under a statute the language of whichexpressly negatives or excludes the application of that general principle.Looking at the words of this statute, I have come to the conclusionthat they are not sufficient to deprive the Court of that ordinary jurisdic-tion. If the statute had contained negative words, the question wouldhave psesented itself in a very different shape. The result is, that,in my ipinion, the decision come to by my brother Blackburn in thiscase is subject to review. Then, having this general jurisdiction,ought we to exercise it in this case by holding that the learned Judgefell into a mistake, and grant a new trial ? Upon that part of the caseI think the rule fails.”
The case no doubt is an authority for the proposition that the Courtin the exercise of its ordinary jurisdiction will not interfere with theexercise by the judge at nisi prius of his discretion unless it is shown thathe has been misled by false evidence or that injustice has resulted. Butthat is a very different proposition from the contention now put forwardthat there is no review at all. It has also to be borne in mind thatthe language of section 73 of the Ordinance, no more than the phraseologyemployed in 1 Wm. 4, c.22, s.10 does not expressly negative or excludethe jurisdiction of the Courts by way of review. Moreover the languageof section 34, in my opinion, expressly provides for such review. Forthe reasons I have given I have come .to the conclusion that the DistrictJudge was right in holding that an appeal lies under section 34 from adecision of the Commissioner under section 73.
With regard to the question of res judicata, Mr. Basnayake has invitedour attention to Hoystead v. Commissioner of Taxation-1. The headnoteof this case is as follows: —
“ Under a will the annual income from an estate in Australia wasdivisible by the trustees between the testator's daughters. Thetrustees objected to an assessment for the financial year 1918-1919under the Land Tax Assessment Act, 1910-1916, of Australia; theyclaimed under s. 38, sub-s. 7, of the Act a deduction of £5,000 in respectof the share of each daughter. A case was stated for the opinion ofthe Full Court of the High Court upon the questions:(1) Whether
the share of the joint owners, or of any and which of them, in theland were original shares within s. 38; (2) How many deductions of£5,000 the respondent should make. The full Court answered thesequestions as follows:(1) The shares of the. six children surviving
at the date of the assessment; (2) Six. Judgment upon the objectionwas entered accordingly. Upon the assessment for 1919-1920 theCommissioner allowed only one deduction of £5,000, contending thatthe beneficiaries were not joint owners within the meaning of the Act.
1 11926) A. G. 155.
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HOWARD C.J.—-The Attorney-General and Valliyamma Atente.
Upon a case stated the Full Court upheld that view and held that theCommissioner was not estopped by the previous decision: —
Held, that the Commissioner was estopped, since although in theprevious litigation no express decision had been given whether thebeneficiaries were joint owners, it being assumed and admitted thatthey were, the matter so admitted was fundamental to the decisionthen given. ’ ’
The question as to how many deductions of £5,000 the trustees wereentitled to had already been settled for the years 1918-1919 and settledexpressly by tbe High Court of Australia. The Commissioner of Taxa-tion wished to withdraw the admission made in those proceedings—anadmission of a fact fundamental to the decision—and embark on afresh litigation upon a different assumption of fact. It was held that hecould not be permitted to do so and that he was bound by the previousjudgment, although it might be true that subsequent light or ingenuitymight suggest some traverse which had not been taken. With regardto this ease I would observe that it was a decision of the Full Court ofAustralia that caused estoppel by reason of res judicata. In the presentcase we are asked to saythat a decision of the Boardof Review onan
appeal under section 70of the Income TaxOrdinance (Cap. 188)is
res judicata in respect to a matter to be decided under section 34 of theEstate Duty Ordinance (Cap. 187). I cannot regard Hoystead v. Com-missioner of Taxation as supporting this contention.
On the other hand I consider that the case of Commissioners of InlandRevenue v. Sneath1 is an authority that supports the contention thatthe matter is not res judicata. In this case it was held that a decisionof the Commissioners forthe Special Purposeof theIncome Tax Acts
in assessing super tax fora previous year thatcertaindeductions canbe
made does not operate as a res judicata to prevent a contrary decision inassessing super tax for a later year. At pages .380-381Lord Hanworth M.R. stated the conditions that must be fulfilled ifan estoppel arising upon res judicata is to be effective as follows: —
“ There must be a Us inter -partes in which the point relied upon forestablishing the estoppel was not merely incidentally, or collaterally,discussed and litigated, but was fundamental to the conclusion reachedby the Court. The Court must be one of competent jurisdiction thathas seisin of the case for the purpose of reaching a final decision interpartes, though it may be a private tribunal such as an arbitratorswhose forum is a domestic one constituted by the parties themselves.
He then held that the assessment was final and conclusive betweenthe parties only in relation to the assessment for the particular yearfor which it is made. So the decision of the Board of Review constitutedunder the Income Tax Ordinance can be regarded as final and conclusivebetween the Crown and the respondent as to the latter’s income inregard to the particular year but not as to future years. This being so,the Board’s decision upon any incidental question of fact or law, howevernecessary it may be for the purpose of ascertaining the income for the
i (1932) 2 K. B. 362.
Sansoni and The Commissioner for Workmen’s Compensation.
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year of assessment, cannot be conclusive in reference to the ascertain-ment of the respondent’s income for any subsequent year of assessmentwith which the Board, has nothing to do. Still less can it be regardedas creating an estoppel by means of res judicata in a matter that arisesunder a different enactment—the Estate Duty Ordinance. The decisionof the Board was not a decision of a lis inter -partes so as to create anestoppel by way of res judicata. The cases of Broken Hill ProprietaryCo., Ltd. v. Municipal Council of Broken Hill1 and Sankaralinga Nadar v.Commissioner of Income Tax, Madras2 also lend support to this view.The District Judge was, therefore, correct in holding that the decisionof the Board of Review of Income Tax is not res judicata.
The further point referred to us, (b), argued by Mr. Basnayake hasnot been strongly pressed. It is suggested that as Natchiappa Chettiar,the deceased, represented to the Commissioner of Estate Duty that hisfather Suppramaniam left no property, therefore the property possessedby Natchiappa Chettiar during his lifetime and left at his death was notancestral but his own property. The plaintiff as executrix of NatchiappaChettiar cannot, therefore, so it is argued, be heard to say that thisproperty is property of a Hindu undivided family. There is no substancein this argument, particularly when it is borne in mind that the representa-tion was made as the representative of Suppramaniam. whereas thepresent representation is made by the executrix of ""Natchiappa Chettiar.This point also fails.
Eor the reasons I have given the appeal is dismissed with costs.
Wijeyewardene J.—I agree.
Appeal dismissed.