JUDGMENT Chandrasekhara Menon, J. 1. Petitioner is the son of one O. Gopalan. Gopalan died in April, 1965, For the Estate Duty due from the estate of deceased Gopalan, on a certificate issued under S.46(2) of the Income Tax Act, 1922 by the Assistant Controller of Estate Duty, Calicut (1st respondent in this petition), the Tahsildar, Kozhikode (2nd respondent herein in proceedings under the Revenue Recovery Act effected an attachment of the amount in deposit in O.S. 19/70, Sub Court, Kozhikode, wherein the petitioner had obtained a decree for money against defendants in that suit on the foot of a promissory note. The amount as per the decree comes to Rs. 14,430.48. The Petitioner has filed this original petition challenging the legality and validity of the R. R. Proceedings resulting in the attachment of the decretal amount due to him. 2. The contention of the petitioner is that the amount in deposit in O. S. 19/70 on the file of the Sub Court, Kozhikode, does not form part of the assests of deceased Gopalan and therefore, the same is not liable to attachment for the estate duty from the assests of Gopalan. According to him under S.5 of the Estate Duty Act, 1953, (Shortly stated the Act), the liability for the estate duty is only on the properties of the deceased and under S.74 of the Act the same is a first charge on the properties of the deceased. Therefore, it is argued by the learned counsel for the petitioner that the separate properties of the legal representatives of deceased are not liable to the estate duty from the estate of the deceased. It may be stated here that the petitioner is one of the legal representatives of Gopalan. 3. For a correct understanding of the contentions in the case it will be useful to look into the relevant sections in the Act which are herein below extracted: S.2(12) defines who is a legal representative of a deceased person. It may be stated here that the petitioner is one of the legal representatives of Gopalan. 3. For a correct understanding of the contentions in the case it will be useful to look into the relevant sections in the Act which are herein below extracted: S.2(12) defines who is a legal representative of a deceased person. It reads: "(2) 'legal representative' means a person who is in law represents the estate of a deceased persons and includes:- (i) An executor, (ii) As regards an obligation under this Act'in possession or in whom any interest in the property so passing is at any time vested; (b) every trustee, guardian, committee or other persons in whom any interest in the property so passing or the management thereof is at any time vested and; (c) every person in whom any interest in the property so passing is vested in possession by alienation or other derivative title, shall be accountable for the whole of the estate duty on the property passing on the death but shall not be liable for any duty in excess of the assets of the deceased which he actually received or which, but for his own neglect or default, he might have received: Provided that nothing in this section shall render a person accountable for duty who acts merely as agent or bailiff for another persons in the management of property. (2) Notwithstanding anything contained in sub-s.(1) where an heir at law proves to the satisfaction of the controller that some other person is in adverse possession of any assests of the deceased, the heir inlaw shall not be accountable for the portion of the estate' any person who takes possession of or intermeddles with, the estate of a deceased person or any part thereof, and (iii) Where the deceased was a coparcener of a Hindu Family, the manager for the time being of the family". The levy of duty is by S.5(1) of the Act. The levy of duty is by S.5(1) of the Act. S.5(1) reads: "(1) In the case of every persons dying after the commencement of this Act, there shall, save as hereinafter expressly provided, he levied and paid upon the principal value ascertained as hereinafter provided of all property, settled or not settled, including agricultural land situate in the territories which immediately before the 1st November, 1956, where comprised in the states specified in the First Schedule to this Act, which passes on the death or such person, a duty called 'estate duty' at the rates fixed in accordance with S.35". The accountable persons and their duties and liabilities are indicated in S.53. It reads: "53 (1) Where any property passes on the death of the deceased“ (a) Every legal representative to whom such property so passes for any beneficial interest ''duty payable in respect of such assets: Provided that he shall becomes so accountable, if an (?) to the extent that, he subsequently recovers possession of such assests. " (3) Every person accountable for estate duty under this section shall, within 6 months of the death of the deceased, deliver to the Controller an account in the prescribed form and verified in the prescribed manner of all the properties in respect of which estate duty is payable: Provided that the controller may extend the period of 6 months aforesaid on such terms which may include payment of interest as may be prescribed. (4) Where the person accountable knows of any property which he has not included in his account because he does not known its amount or value, he may state that such property exists, but he does not know the amount or value thereof and that he undertakes, as soon as the amount and value are ascertained to bring a supplementary account thereof and to pay both the duly for which he may be liable in respect of such property and any further duty payable by reasons thereof for which he may be liable in respect of the property mentioned in the original account. (5) Where two or more persons are accountable: "Whether in the same capacity or in different capacities, for estate duty in respect of any property passing on the death of the deceased, they shall be liable jointly and severally for the estate duty on the property so passing". (5) Where two or more persons are accountable: "Whether in the same capacity or in different capacities, for estate duty in respect of any property passing on the death of the deceased, they shall be liable jointly and severally for the estate duty on the property so passing". S.74 states that estate duty will be a first charge on property liable thereto. S.74 reads; "(1) Subject to the provisions of S.19, the estate duty payable in respect of property, movable or immovable, passing on the death of the deceased, shall be first charge on the immovable property so passing (including agricultural land) in whomsoever it may vest on his death after the debts and encumbrances allowable under Part VI of this Act; and any private transfer or delivery of such property shall be void against any claim in respect of such estate duty. (2) A rateable part of the estate duty on an estate in proportion to the value of any beneficial interest in possession in movable property which passes to any person (other than the legal representative of the deceased) on the death of the deceased shall be a first charge on such interest: Provided that the property shall not be so chargeable as against a bona fide. ''Purchaser thereof for valuable consideration without notice. (3) The controller may release the whole or any part of any property, whether movable or immovable from charge under this section in such circumstances and on such conditions as he thinks fit". The learned counsel for the petitioner referred to the decision in Abdul Rahim v. Income Tax Officer LIX ITR 273, and laid stress on the following observations therein appearing at pages 276 and 277: "Having initiated proceedings under S.24B and completed the assessment the render, they are precluded from invoking S.26(2). If the assessments were under S.24B, the liability of the legal representatives is confirmed to the estate of the deceased in their hands. In other words, they could be required to pay the tax out of the estate of the deceased, without incurring any personal liability. If the assessments were under S.24B, the liability of the legal representatives is confirmed to the estate of the deceased in their hands. In other words, they could be required to pay the tax out of the estate of the deceased, without incurring any personal liability. This position becomes clear not only from the language of the two sections but also from authoritative pronouncements of the Supreme Court in Additional Income Tax Officer v. Alfred (44 ITR 442) First Additional Income Tax Officer, "Karaikudi v. Abdul Kassim (46 ITR 149) and Commissioner of Income Tax v. Amarchand Shoroof (48 ITR (SC) 59). In these cases, the scheme of S.24B of the Act is dealt with, and the proposition is laid down that, in the three eventualities contemplated by that section the liability of the legal representatives though, by a legal fiction, the legal representatives are deemed to be assessees, is limited to the estate in their hands, although the income was not derived by them, but by the person whose estate they represent. The instant case is governed by the doctrines of the above decisions". Here the matter arose under the Indian Income Tax Act, 1922. 4. The counsel for the petitioner also cited the following decision in support of his contention; AIR 1958 Mad. 301 , 1971 KLT 852 and 1967 KLT 148 . 5. The learned counsel for the department contended that under the Act, the liability for payment of estate duty was a personal liability of the assessee with the limitation that such person shall not be liable for any duty in excess of the assests of the deceased which are actually received by him, or which, but for his own neglect or default, he might have received. Reliance was places on the decision of a Division Bench of the Gujarat High Court in Commissioner of Income Tax v. Indumati Ratanlal 70 ITR 353, There Bhagawati, C. J. (as he then was) said: "The first question which therefore arises for consideration on the argument of the revenue is as to the nature of the liability of the assessee for payment of the estate duty and that calls for a consideration of the relevant provisions of the Estate Duty Act. 1953 S.2(12) of the Act defines 'legal representative' to mean a person who in law represents the estate of a deceased person and includes (1) an executor (ii) as regards any obligation under the Act, any persons who takes possession, of or intermeddles with the estate of a deceased person or any part thereof, and (iii) where the deceased was a coparcener of a Hindu Family, the manager for the time being of the family, S.5, which is the charging section, provides that in the case" of every person dying after the commencement of the Act, there shall, subject to certain exceptions which are immaterial, be levied and paid upon the principal value of all property, settled or not settled, which passes on the death of such person, a duty called 'Estate Duty' at the rates fixed in accordance with S.35. Now though the estate duty is levied upon the principal value of the property passing on the death of the deceased, it has to be paid by somebody: some person has to be made liable for payment of it and that it done by S.53, sub-s.(1) S.53 sub-s.(1) lays down who shall be liable for payment of estate duty to the State and according to that sub-section, where any property passes on the death of the deceased, (a) every legal representative to whom such property so passes for any beneficial interest in possession or in whom any interest in the property so passing is at any time vested, (b) every trustee, guardian, committee or other person in whom any interest in the property in the property in the property so passing or the management thereof is at any time vested and (c) every person in whom any interest in the property so passing is vested in possession by alienation or other derivative title, shall "be accountable for the whole of the estate duty on the property passing on the death. S.53, sub-s.(5) provides that where two or more persons are accountable for estate duty in respect of any property passing on the death of deceased, their liability shall be joint and several. S.53, sub-s.(5) provides that where two or more persons are accountable for estate duty in respect of any property passing on the death of deceased, their liability shall be joint and several. But there is a limitation on the liability of every person accountable for estate duty and that limitation is that such person shall not, liable for any duty in excess of the assests of the deceased which are actually received by him, or which, but for his own neglect or default, he might have received. The liability of every accountable person is thus a personal liability, though it is limited in extent to the assets of the deceased actually or constructively ' received by him, qualitatively it is a personal liability and not a liability payable only out of the assets of the deceased; the assets of the deceased actually or constructively received merely constitute the limit of the liability". 6. A Division Bench of this Court has held in respect of the liability of the legal representatives of a deceased assessee that the taxing authorities can attach the personal properties of the heirs of a deceased assessee for arrears of income tax due by him if it is found that the assets have come into their hands and that they have not properly accounted for the same. In that case, Banu Asan v. Income Tax Officer, Quilon XLVII ITR 99, Ansari, C. J. Has stated at page 100: "Obviously, the heirs incur no liability to pay the tax of the deceased assessee personally, unless some assets of the deceased be shown to have come into their hands, of which they cannot give satisfactory account. They would to that extent be personally liable, but that follows the finding of the assets of the deceased having not been properly administered. It further follows that before the taxing authority attaches the personal properties of such heirs, the authority must be satisfied about improper administration, and the collector has not expressly so found in the case before us. In case that be found to be the position, it would make the personal properties of the heirs liable to attachment, which would include what has been settled under the settlement deed under the settlement in 1949, liable, but there should be a finding supported by materials". 7. In case that be found to be the position, it would make the personal properties of the heirs liable to attachment, which would include what has been settled under the settlement deed under the settlement in 1949, liable, but there should be a finding supported by materials". 7. What Bhagawati, C. J. has stated in 70 ITR 53 (cited supra), appears to me a clear and correct statement of law on the question. 8. Therefore, I hold that the attachment effected is not in any way illegal. There is no case for the petitioner that the estate of the deceased is of a value less than the amount covered by the decree Ext, P8. The O.P. is hence dismissed. No. costs.