P. D. DESAI, J. ( 1 ) MAHARAJA Mahendrasinhji of Morvi owned extensive property situate in India as well as in England. The property yielded considerable income. He died possessed of those properties. He had executed two distinct Wills one of property in India another of property situate in England. The Will governing the property situate in India was executed on 31/10/1953 A codicil to the said Will was executed on 9/02/1956 The Will in respect of the property situate in England was executed on 4/06/1954 Under each Will the late Maharaja had appointed different executors. The assessee widow of the deceased Maharaja was amongst the executors appointed of the property situate in India and is now the sole surviving executrix in respect of such pro- perty. She was however not appointed an executor in respect of the property situate in England. ( 2 ) FOR assessment years 1965-66 1966 and 1967-68 the previous years being the financial years ended on 31/03/1965 March 31 1966 and 31/03/1967 respectively returns of income were filed by the executors of the property situate in India. The assessment order for assess- ment year 1965-66 was passed on 31/01/1970 computing the total income at Rs. 3 81 842 and the net taxable income at Rs. 2 54 117 (including foreign income of Rs. 95 813 against The Executors of the Estate of Late Maharaja Mahendrasinhji of Morvi in the status of A. O. P. The assessment order for assessment year 1966-67 was passed on 29/12/1970 computing the total income at Rs. 3 84 968 and the net taxable income at Rs. 2 37 517 (including a foreign income of Rs. 1 4 467 against H. H. Maharani Vijaykunverba of Morvi and M. P. Dadachanji Surviving Executors of the estate of Late Maharaja Mahendrasinhji of Morvi in the status of A O. P. The assessment order for assessment year 1967-68 was passed on 15/09/1971 computing the total income at. Rs. 3 48 422 and the total income at Rs. 2 7 700 (including foreign income estimated at Rs. Rs. 3 48 422 and the total income at Rs. 2 7 700 (including foreign income estimated at Rs. 1 5 0 or) against H. H. Maharani Vijaykunverba and H. P. Dadachanji Surviving Executors of the Estate of Late Maharaja Mahendrasinhji of Morvi in the status of A. O. P. It is not in dispute that the sums described as foreign income and included in the aforesaid three assessments represented the income derived by the executors from the property situate in England. ( 3 ) AGAINST the orders of assessment aforesaid three separate appeals were preferred to the Appellate Assistant Commissioner. The grounds raised in the appeals included the contention with regard to wrongful taxation of U. K. income. The submission before the Appe- llate Assistant Commissioner was that the income arising from the property situate in England which constituted the income of a distinct set of executors separately appointed under a different Will in respect of such property could not be taxed in the hands of the executors of the property situate in India and that since the testator had made two distinct Wills in respect of property situate in two different countries the property situate in each country should be regarded as constituting a separate estate within the meaning of sec. 168 of the Income-tax Act 1961 and income from each of such estates was liable to be taxed separately. The argument in other words was that they were two separate and distinct assessable entities and that the income of one estate could not be clubbed with the income of the other. The Appellate Assistant Commissioner disposed of the appeals by his separate orders dated 1/02/1972 He held that a single assessment of the entire income including the income derived from the property situate in England against the executors in the status of A. O. P. was properly made. The Appellate Assistant Commissioner disposed of the appeals by his separate orders dated 1/02/1972 He held that a single assessment of the entire income including the income derived from the property situate in England against the executors in the status of A. O. P. was properly made. This conclusion was based on the grounds that : (i) estate means ones collective assets and liabilities and a person can therefore have only one estate (ii) the entire estate of the late Maharaja wherever situate therefore constituted a single estate notwithstanding the appointment of separate sets of executors therefore (iii) though the executors of one properly situate in England were not members of the A. O. P. taxed the said executors should also be deemed to have become members of such A. O. P. since the income derived from such property was included in the assessments and (iv) the consideration whether or not the executors of the property situate in India had received the whole or any portion of the income from the executors of the property situate in England was not relevant for the purpose of bringing the entire income to tax under sec. 168 in the hands of the A. O. P. against whom the assessments were made. The appeals were accordingly dismi- ssed so far as the point under consideration is concerned. ( 4 ) THERE were further appeals before the Income-tax Appellate Tribunal against the aforesaid decisions. The submission before the Tribunal was that the relevant provisions of the Income-tax law were required to be read along with the provisions of the Indian Succession Act 1925 and that since under the latter Act only such estate vested in legal owner- ship on the executors in respect of which they were appointed executors under the Will. there were in the eye of law two separate estates-one situate in India and the other in England-and that in the hands of the executors of the estate in India only such income could be brought to tax as arose or accrued to them out of such estate and that the income arising from the estate in England could not be clubbed with such income and brought to tax in their hands because neither the estate nor the income arising from that estate vested in the executors of the property situate in India. ( 5 ) THE Tribunal found that : (i) there was nothing in the assess- ment orders to indicate that any objection was raised on behalf of the executors against the inclusion of the income from the property situate in England in their assessment; (ii) the material provisions of the Indian Succession Act 1925 can have no bearing on the construction of sec. 168 of the Act; (iii) under sec. 168 what is chargeable to tax is the income of the estate of a deceased person and estate for the purposes of the said section would mean the whole and not part of the estate (iv) there was only one assessable entity namely the estate of the deceased and the income therefrom was chargeable to tax in the hands of the executor if there was only one executor as if he were an individual and if there were more than one executors then in the hands of the executors in the status of an A. O P. (v) the assessable entity therefore remained one and single and it cannot vary according to the number of executors appointed for different properties left by the deceased and (vi) in the present case the estate consisted of property situate both in India and England and the entire income from the whole of the estate Was liable to be brought to tax irrespective of whether the tax assessed as payable exceeded income from the property situate in India. In the light of the aforesaid findings the Tribunal dismissed the appeals. ( 6 ) AT the instance of the assessee the Tribunal has stated a case in respect of the following question : Whether on the facts and in the circumstances of the case the Tribunal was right in holding that the income from the properties in the United Kingdom was char- geable to tax in the hands of the assessees ? ( 7 ) THE question which arises for determination rests for its deter- mination on the true and correct interpretation of sec. 168. Before we consider the provisions of the said section however it would be convenient to briefly refer to the contents of the two Wills. ( 7 ) THE question which arises for determination rests for its deter- mination on the true and correct interpretation of sec. 168. Before we consider the provisions of the said section however it would be convenient to briefly refer to the contents of the two Wills. ( 8 ) UNDER the Will dated 31/10/1953 which related to the dis- position of property situate elsewhere than in England Scotland Northern Ireland Eire the Isle of Man and the Channel Islands the testator appointed his wife (the assessee) his uncle and his solicitor to be the executrix and executors and trustees of his Will. A number of persons were successively named as executors in case the uncle or solicitor predeceased or was unable or unwilling to accept executorship. The Will also appointed certain persons as guardians of the minor children of the testator during their respective minority. The testator declared that except such property as was ear-marked for the Ruler of Morvi State all his property estate and effects were his self-acquired property and that he had full and absolute power to dispose of the same by his Will including certain immovable properties which stood in the joint names of himself and his wife. The testator directed monthly payments ill certain sums by way of Jivai being made to the three Maharanis and also provided inter alia that they would be entitled to continue to occupy the residen- tial accommodation in Bombay or in Morvi or in Poona which each of them occupied at the time of his death with rent if any paid for such residential accommodation out of the income of the estate. The testator then made provision for his unmarried daughters living at the date of his death and directed that certain Government securities hotel in the joint names of himself and his wife with all accumulations of interest shall be divided into as many equal shares as there were unmarried daughters living at the time of his death and that such shares shall be held in trust by the executors for each of such unmarried daughters and the income therefrom shall be accumulated until the marriage of each of such daughters and on the occasion of each marriage a sum of upto Rs. 1 0 0 shall be spent and the balance of the concerned securities or sale proceeds thereof shall be paid and given to each daughter on her marriage. For the maintenance education welfare and benefit of such unmarried daughters the direction was that the executors shall pay a sum of Rs. 1000. 00 per month to each of such daughters out of the in- come of the estate. All estate effects and property both moveable and immovable governed by the Will and not otherwise disposed of there under were constituted the residuary estate after payment of funeral and testamentary expenses and debts and legacies and such residuary estate was left to the son absolutely if there be only one son at the time of the death of the testator and in case the testator left behind more than one son the estate was to be divided into two equal parts or shares and one of such equal parts or shares was bequeathed to the eldest son absolutely and the other equal part or shares was to be divided in equal shares amongst the sons other than the eldest son. There were further directions with regard to the disposition of the residuary estate in case there was no son living at the time of the testators death. But they need not be set out. There were also further directions given in the Will with regard to the administration and investment of the funds of the estate reimbursement of the executors and trustees mode of succession to the office of executor or trustee in the event of retirement death etc. ( 9 ) BY the codicil dated 9/02/1956 the testator revoked the provisions made in his Will with regard to marriage maintenance education welfare and benefit of his unmarried daughters in view of the fact that his mother had by four deeds of trust executed after the execution of the Will but before the execution of the codicil made provision for the said daughters. ( 10 ) THE Will dated 4/06/1954 appointed the Lloyds Bank Limited and two Solicitors having their offices in London to be the executors and trustees of the Will. The Will expressly confirmed the Will with the codicil thereto made in India relating to the disposition of the property situate elsewhere that in England Scotland Northern Ireland Eire the Isle of Man and the Channel Islands. The Will expressly confirmed the Will with the codicil thereto made in India relating to the disposition of the property situate elsewhere that in England Scotland Northern Ireland Eire the Isle of Man and the Channel Islands. Under the Will the testator left to his wife free of duty such sum as shall represent the aggregate of the sums that stand to my credit in my several banking accounts in the aforesaid countries. The remainder of the estate was devised and bequeathed upon trust unto the trustees absolutely with the direction that they shall at such time or times and in such manner as they shall think fit sell call in and convert into money such parts thereof as may not consist of money subject however to full power to postpone such sale and conversion for such a period as the trustees without being liable to account might think proper. The trustees were directed to pay funeral and testamentary expenses and debts and legacies bequeathed under the Will and then with the consent of his wife `during her lifetime and afterwards at the discretion of the trustees to invest the residue of monies in or upon any of the investments authorised under the Will. The trustees were directed to stand possessed of the residuary trust fund consisting of the residue of monies and of investments for such of the male children of the testator who survived him and attained the age of 21 years and if more than one one-half thereof for the eldest of such male children and the other half equally between such male children. There were further provisions with regard to disposition in case of the death of a son during the lifetime of the testator and in case of no male child surviving the testator or surviving upto the age of 21 after the death of the testator. In the latter event the trustees were directed to hold the residuary trust fund upon trusts to pay the income thereof unto the wife of the testator during her lifetime and after her death to hold such estate in trust in equal shares if more than one for all the daughters of the testator who attained the age of 21 years or married under that age absolutely. There were further directions with regard to the administration of the estate with which we are not concerned. There were further directions with regard to the administration of the estate with which we are not concerned. One of the final declarations was that the Will shall in all respects be interpreted and have effect in accordance with the provisions of the English law and that in particular the trustees shall have all the powers conferred upon trustees by sections 31 and 32 of the Trustees Act 1925 ( 11 ) BEFORE we turn to the relevant provisions in the income-tax law with regard to the assessment of the income of a deceased person or of his estate it would be advantageous to recall that dead men are no longer persons in the eye of the law. They have laid down their legal personality with their lives and are now as destitute of rights as of liabilities. They do not even remain the owners of their property until their successors enter upon their inheritance. And yet the law does in some degree recognise and take account after a mans death of his desires and interests when alive. Amongst the things in respect of which the anxieties of living men extend beyond the period of their deaths in such sort that the law will take notice of them is his estate. For many years after a man is dead his hand may continue to regulate and determine the disposition and enjoyment of the property which he owned while living. His last Will duly declared in the document which is significantly called by that name is held inviolable (generally speaking) by the law. For half a century and more the rights and responsibilities of living men may thus be determined by an instrument which was of no effect until the author of it was in his grave and had no longer any concern with the world or its affairs (see Salmond on Jurisprudence Twelfth Edition. pp. 301 302 and 444 ). ( 12 ) THIS power of the dead hand (mortua manus) is so familiar a feature in the law that we accept it as a matter of course and have some difficulty in realising what a singular phenomenon it in reality is. We speak of the estate of a deceased person as if it were itself a person. We say that it owes debts or has debts owing to it or is insolvent. We speak of the estate of a deceased person as if it were itself a person. We say that it owes debts or has debts owing to it or is insolvent. The law however recognises no legal personality in such a case. The rights and liabilities of a dead man devolve upon his heirs executors and administrators not upon any flctitious person known as his estate (see Salmond on Jurisprudence Twelfth Edition pp. 306 444 ( 13 ) WE are herein concerned with executors and let us therefore consider the position of an executor and the mode of his appointment his powers functions and duties under the general law. ( 14 ) THE word executor as the term is at present accepted signi- fies. . . . . . the person appointed ordinarily by the testator by his Will or codicil to administer the testators property and to carry into affect the provisions of the Will. (see Halsburys Laws of England Fourth Edition Vol. 17 paragraph 702 at p. 373 ). Sec. 2 (c) of the Indian Succes- sion Act 1925 defines the word executor to mean a person to whom the execution of the last Will of a deceased person is by the testators appointment confided. ( 15 ) IN the ordinary course a person is appointed executor indefin- itely and is therefore charged with the administration of the whole Will and of all the testators property. As Swinburne said in the sixtee- nth century"to appoint an executor is to place one in the stead of the testator who may enter to the testators goods and chattels and who hath action against the testators debtors and who may dispose of the same goods and chattels towards the payment of the testators debts and performance of his will". The testator may however make two distinct Wills one of property in his own country another of property abroad and he may appoint certain persons executors of his property within the country and others of his property abroad. Even in the same Will a testator may appoint different executors for different parts of his estate wherever situate. In the ordinary course however an executors appointment is absolute and he is charged with the administration of the whole Will and of all the testators property. Even in the same Will a testator may appoint different executors for different parts of his estate wherever situate. In the ordinary course however an executors appointment is absolute and he is charged with the administration of the whole Will and of all the testators property. When the testator appoints an executor in respect of a particular or special property such an executor is called a special executor. Executors appointed generally for all the property are called the general executors (see Jarman on Wills Eighth Edition p. 157 Williams on Executors and Administrators Fourteenth Edition p. 19 Executors and Administrators Fifth Edition by Mustoe pp. 1 and 2 and Halsburys Laws of England Fourth Edition Vol. 17 Paragraphs 712 and 713 ). Secs. 224 248 255 and 257 of the Indian Succession Act 1925 which respectively provide inter alia that: (a) when several executors are appointed probate may be granted to them all simultaneously or at different times : (b) if an executor is appointed for any limited purpose specified in the Will the probate shall be limited to that purpose; (c) whenever the nature of the case requires that an exception be made probate of a Will shall be granted subject to such exception and (d) whenever a grant with exception of probate has been made the person entitled to probate of the remainder of the deceaseds estate may take a grant of probate of the rest of the deceaseds estate recognise that an executor can be appointed for a limited or specified purpose or absolutely and that where a testator appoints two executors or two sets of executors one for general purposes and another for a limited purpose probate shall be granted to both by the same instrument distinguishing the powers of each of them when there is an application by both. However if an application is only by a special executor a probate will be granted to him only limited to the purpose relatable to his appointment and if the application is made by the general executor a probate will be granted to him as in the ordinary case but with a reservation to the special executor for obtaining the limited probate. ( 16 ) WHAT happens to the representation of the estate of the dece- ased and how is it to be administered when there are two or more executors? ( 16 ) WHAT happens to the representation of the estate of the dece- ased and how is it to be administered when there are two or more executors? The law on this point is also well-settled. If there are two or more executors they are regarded as one person and they have ordinarily a joint interest in the estate. All co-executors are regarded in the light of an individual person and they have therefore a joint and entire interest in the estate of the testator which is incapable of being divided; and in case of death of any executor such interest vests in the survivor without any new grant by the Court. Hence subject to what is said hereafter the acts of any one of them done for the purpose of administration are deemed to be the acts of all for they have all a joint and entire authority over the whole property. But general executors and special executors may act independently in regard to the ad- ministration of the property separately vested in them. For example where the testator has appointed special executors for property situate abroad and other persons to be his general executors with regard to the property within the country the latter can take title to the testators estate within the country without the concurrence of the special executors. All the co- executors therefore of a deceased person are ordinarily his legal repre- sentatives for all purposes (see Williams on Executors and Administrators Fourteenth Edition p. 372 and 432 and Executors and Administrators Fifth Edition by Mustoe p. 57 ). Secs. 211 311 and 312 of the Indian Succession Act 1925 which provide inter alia that : (a) the executor of a deceased person is his legal representative for all purposes and all the property of the deceased person vests in him as such (b) when there are several executors the powers of all may in the absence of any dire- ction to the contrary be exercised by any one of them who has proved the Will and (c) upon the death of one or more of several executors in the absence of any direction to the contrary in the Will all the powers of the office Income vested in the survivors or survivor reflect in their provisions the aforesaid well-established position of law. ( 17 ) WHAT is the nature or quality of the interest of an executor in the estate of the deceased? The position of an executor is a peculiar one. He is appointed by the will but then by virtue of his office by the operation of law and not under the bequest in the will he takes a title to the property of the testator which vests to him. The interest which an executor has in the property of the deceased is very different from the absolute and ordinary interest which everyone has in his own property for an executor has his estate as such in auter droit merely viz. as the minister or dispenser of the property of the dead (see Williams on Exe- cutors and Administrators Fourteenth Edition p. 264 and Executors and Administrators Fifth Edition by Mustoe p. 57. ). Sec. 211 of the Indian Succession Act 1925 which provides inter alia that all the property of the deceased person vests in him as such (underlining supplied) makes it clear that it is only the legal estate that vests in the executor and that the Vesting is not of the beneficial interest. The pro- perty only vests for the purpose of representation and administration. It is possible however that a will may appoint the same persons to be executors and trustees and even if this is not the case an executor may become a trustee by his dealings with the assets. When an executor is functus officio as to any of the assets and still retains them in his possession he becomes clothed with the character of a trustee of those assets. For instance as soon as the executor has assented to a legacy he becomes a trustee of the subject matter of the legacy for the legatee or when the residuary estate is vested in the executor upon trust for sale and distribution according to the directions contained in the will the executor holds the residue as a trustee. In such circumstances the exe- cutor loses his vested right of property as executor and becomes so far as the title to it is concerned a trustee under the will (see Executors and Administrators Fifth Edition by Mustoe p. 67 and 69 ). In such circumstances the exe- cutor loses his vested right of property as executor and becomes so far as the title to it is concerned a trustee under the will (see Executors and Administrators Fifth Edition by Mustoe p. 67 and 69 ). ( 18 ) AGAINST the aforesaid background we must now move on to the consideration of the relevant provisions with regard to the assessment of income of a deceased person or of his estate as contained in the in- come-tax law. In Ellis C. Reid v. Commissioner of Income-tax 5 I. T. C. 100 the Bombay High Court held that according to the income-tax law as it then stood where a person died after the commencement of the assessment year but before his income of the provisions year was assessed his executor was not liable to pay the tax and if the death occurred whilst assessments were pending the proceedings could not be continued and the assessment could not be made after the persons death. This lacuna in the machinery of assessment was rectified by the enactment of sec. 24b in the Indian Income-tax Act 1922 by the Indian Income-tax (Second Amendment) Act 1933 By the incorporation of sec. 24b the legislature extended the legal personality of a deceased assessee under the Act which had ceased on his death and therefore the income received by him before his death or if he died during the previous year by his heirs and legal representatives after his death in that previous year became assessable to tax in the relevant assessment year. Sec. 24b however did not authorise levy of tax in receipts by the legal representatives of a deceased person in the years succeeding the year of account being the previous year in which such person died. In other words the legal personality of a deceased assessee was extended under the said section for the duration of the entire previous year in the course of which he died and therefore the income received by him before his death and that received by his heirs and legal representatives after his death but in that previous year became assessable to tax in the relevant assessment year. The legislature not having made any provision generally for assessment of income receivable by the estate of the deceased person sec. The legislature not having made any provision generally for assessment of income receivable by the estate of the deceased person sec. 24b was held not to supply the machinery for taxation of income received by a legal representative to the estate after the expiry of the year in the course of which such person died (see C. I. T. v. Amarchand N. Shroff 48 I. T. R; 59 and C. I. T. v. James Anderson 51 I. T. R. 345 ). ( 19 ) IN the present Act sec. 159 replaced sec. 24b and it provides a machinery for the assessment of tax on the income of a deceased person on whom the tax had been originally charged. Thereunder it is expressly recognised that upon the death of the assessee the liability to pay any sum which the deceased would have been liable to pay if he had not died is that of his legal representative and for the purposes of the Act the legal representative is treated as an assessee. If at the date of the death of the deceased assessee a return in respect of the income earned by him in the previous year had already been filed and the assessment proceedings had commenced it would not be necessary to start the proceedings afresh against the legal representative since any proceeding taken against the deceased prior to the date of his death is by a fiction deemed as having been taken against the legal representative. From the stage onwards however the proceeding must be continued against the legal representative who in the eye of law represents the legal personality of the deceased assessee and the provisions of the Act will apply accordingly. ( 20 ) ON its apparent tenor sec. 159 enables the making of an assessment on the legal representative in respect of the income which acc- rued or arose to or was received by the deceased assessee. It does not authorise an assessment on the legal representative in respect of the income received by such legal representative after the demise of the deceased on account of the estate having been vested in him. Standing by itself therefore sec. 159 does not advance the position further than that which obtained under sec. 24b of the previous Act. However what sec. 159 leaves untouched is covered by sec. 168 of the present Act. Under sec. Standing by itself therefore sec. 159 does not advance the position further than that which obtained under sec. 24b of the previous Act. However what sec. 159 leaves untouched is covered by sec. 168 of the present Act. Under sec. 168 subject to the other provisions contained in the said section the income of the estate of a deceased person is chargeable to tax in the hands of the executors (a) if there is only one executor then as if such executors were an individual; or (b) if there are more executors than one then as if such executors were an association of persons. For the purpose of the Act the executor is deemed to be resident or non-resident according as the deceased person was a resident or non-resident during the previous year in which his death took place (see sec. 168 (1) ). The assessment of an executor is required to be made separately from any assessment that may be made on him in respect of his own income (see sec. 168 (2) ). Separate asse- ssments under sec. 168 are required to be made on the total income of each completed previous year or part thereof as is included in the period from the date of the death to the date of complete distribution to the beneficiaries of the estate according to their several interests (see sec. 168 (3) ). In computing the total income of any previous year under sec. 168 any income of the estate of that previous year distributed to or applied to the benefit of any specific legatee of the estate during that previous year is required to be excluded but the income so excluded must be included in the total income of the previous year of such specific legatee (see sec. 168 (4) ). For the purposes of sec. 168 executor includes an administrator or other person administering the estate of a deceased person. . ( 21 ) READING the provisions of sec. 159 and sec. 168 together it appears that sec. 159 applies to the assessment of the income of the deceased only upto the date of his death and not upto the end of the accounting year in which the death occurred. . ( 21 ) READING the provisions of sec. 159 and sec. 168 together it appears that sec. 159 applies to the assessment of the income of the deceased only upto the date of his death and not upto the end of the accounting year in which the death occurred. The income of the estate for the period from the date of death upto the end of the accounting year in which the death occurred and for the subsequent accounting years is required to be assessed under sec. 168. Section 168 alone therefore governs the assessment of the income of the estate of a deceased person and conte- mplates the levy of tax on such income in the hands of the executor in accordance with the provisions of the said section. ( 22 ) HAVING set out the factual and legal position we turn to the consideration of the questions raised before us on behalf of the assessee. The submission on behalf of the assessee was as follows :- (1) In respect of two separate sets of property situate in two different countries the deceased Maharaja executed two separate Wills where under two distinct sets of executors were appointed. There were therefore two separate estates and only such estate vested in legal ownership in the distinct set of executors in respect of which they were appointed executors under the Will. Conseque- ntially in the hands of the executors of the estate in India only such income could be brought to tax as arose or accrued to them out of such estate and the income arising from the estate in England could not be clubbed with such income and brought to tax in their hands under sec. 168. (2) Alternatively even if it is assumed that the estate was one and single and that the income of such estate was chargeable to tax in the hands of all the executors collectively the assessment could be validly made only if all the executors ale served with notice and are present before the assessing authority and are collectively taxed as association of persons. (3) Sec. 168 is inapplicable in the instant case because on a true construction of the Will dated 4/06/1954 in regard to the property situate in England the executors appointed under the said Will had since assumed the character of trustees and they held the property and realized the income therefrom as trustees. Income received by them as trustees could not be clubbed with the income received by the executors appointed under the Will dated 31/10/1953 in regard to the property situate in India and brought to tax under sec. 168. ( 23 ) WE proceed to deal with these grounds seriatim. Re. Ground No. 1 : ( 24 ) THE broad submission regarding separate estates is wholly misconceived and it cannot be accepted having regard to the general position of law as well as the specific provisions of sec. 168. As earlier pointed out jurisprudencially the estate of a deceased person by itself has no legal personality. The rights and liabilities of a dead man devolve upon his heirs executors and administrators and not upon any fictitious entity known as his estate. However the law recognises and gives effect after a persons death to his desires as expressed in his last Will and testament in regard to his estate and the disposition and enjoyment of the property which he owned while living is regulated and determined as laid down in the Will. The executor appointed by the dead man under his Will or codicil administers the estate in accordance with the provi- sions of the Will. For the convenient administration of his estate the law permits a person to make more than one Will in respect of different items of his property and to appoint different executors in respect of different parts of his property. It is true that in such a case the diffe- rent executors take title to the separate parts of estate and that they may act independently in regard to the administration of the property separately vested in them. However all such executors are the legal representatives of the deceased person and they are the ministers or dispensers of the estate of the deceased which vests in them in separate parts but which still nevertheless is the estate of the deceased. However all such executors are the legal representatives of the deceased person and they are the ministers or dispensers of the estate of the deceased which vests in them in separate parts but which still nevertheless is the estate of the deceased. Indeed the word estate means the totality or entirety or the property of a deceased as is evident from the following statement of law explaining the true import of the said word in Blacks Law Dictionary 5 Editions at page 491:"the total property of whatever kind that is owned by a decedent prior to the distribution of that property in accordance with the terms of a Will or when there is no will. by the laws of inheritance in the State of domicile of the decedent. It means ordinarily the whole of the property owned by anyone the reality as well as personality. As used in connection with the administration of the decedents estate term includes property of a decedent trust or other person as such property exists from time to time during the administration and hence may include probate asset as well as property passing by intestacy". In Strouds Judicial Dictionary 4 Edition vol. 2 at page 937 it has been stated inter alia the word estate doth comprehend all that a man hath property or ownership in. . . . . . . . . . . . . It would thus appear that merely because in respect of two separate sets of property situate in two different countries a deceased person has executed two separate Wills whereunder two distinct sets of executors are appointed there are no two separate estates. The estate which was one and single during the lifetime of the testator still continies as such even after his death though its administration and dispensation may be vested in separate parts in different persons. The theory that under circumstances there are two separate estates has thus no basis in general law. ( 25 ) SO far as sec. 168 is concerned the position is no different. The theory that under circumstances there are two separate estates has thus no basis in general law. ( 25 ) SO far as sec. 168 is concerned the position is no different. Against the background of the legislative history referred to earlier it is clear that the underlying object of the said provisions is to extend the legal personality of a deceased assessee so as to levy tax on the income received by the legal representatives of such assessee in the periods sub- sequent to the date of the death till the date of the complete distribution to the beneficiaries of the estate according to their several interests. The machinery therein provided for the taxation of the income of the estate of a deceased person postulates that such estate is to be treated as one and whole and as indivisible. It indicates that the estate which was one and single prior to the death of the deceased assessee is not to be treated as having split into several estates merely because for the convenient admi- nistration thereof separate executors are appointed. Sub-sec. (1) of sec. 168 contemplates and takes care of such a situation by providing that the income of the estate of a deceased person shall be chargeable to tax in the hands of the executor if there are more executors than one then as if the executors were an association of persons. Therefore in the case of plurality of executors whether they are general executors charged with the administration of the whole of the estate or whether they are special executor in respect of different parts of property such executors are to be assessed to income-tax as if they are an association of persons. The machinery this provided ensures the entire income of the whole estate being brought to tax in the hands of the executors under a single assess- ment. Even sub-secs. (3) and (4) of sec. 168 require the estate being looked upon as a single whole and not as separate estates whatever might be the arrangement made for the administration of such estate by the deceased assessee. ( 26 ) IN our opinion therefore the broad admission made on behalf of the assessee with regard to there being separate estates is not well- founded in law. ( 26 ) IN our opinion therefore the broad admission made on behalf of the assessee with regard to there being separate estates is not well- founded in law. The estate of the deceased Maharaja situate within and outside the country is to be treated as one and indivisible for the purpo- ses of the levy of tax under sec. 168 irrespective of the fact that there are separate sets of executors appointed under two different Wills in respect of the property situate within and without the country. The income from the whole of such estate can be brought to tax in the hands of the executors in the course of a single assessment made against such executors in the status of association of persons. The clubbing of income which arose or accrued to the executors out or such estate whether the estate be situate outside India or in India and whether it is vested in general executors or special executors is permissible under sec. 168. ( 27 ) THE subsidiary submission under this head namely the taxability of the income arising from the property situate in England in the hands of the executors of the property situate in India on the facts and in the circumstances of the case is essentially linked up with the second ground urged on behalf of the assessee and it will be convenient to deal with the question while considering the said ground. Re Ground No. 2: ( 28 ) AS earlier pointed out under sec. 168 in case of there being more executors than one the income of the estate of a deceased person is to be brought to tax in the hands of such executors as if the executors were an association of persons. In the instant case the returns were filed and the assessments were made against the executors of the estate of the late Maharaja in the status of association of persons. While making the assess- ments the income derived from the property situate abroad has also been taken into consideration. So far as the assessment orders for assessment years 1966-67 and 1967-68 are concerned the names of only two executors are specifically mentioned and they are described as the surviving exe- cutors of the estate of late Maharaja Mahendrasinhji of Morvi. While making the assess- ments the income derived from the property situate abroad has also been taken into consideration. So far as the assessment orders for assessment years 1966-67 and 1967-68 are concerned the names of only two executors are specifically mentioned and they are described as the surviving exe- cutors of the estate of late Maharaja Mahendrasinhji of Morvi. It would thus appear that so far as those two assessment periods are concerned the assessment has proceeded only against the executors of the property situate in India although while computing the taxable income the income of the property situate abroad in respect of which separate executors were appointed under the will dated 31/10/1953 is taken into account. It would not be unreasonable to assume however that the income received from the property situate abroad might have been included in the assessments in question only upon the relevant information being furnished by the concerned executors. Besides the Tribunal has observed as follows on this aspect of the matter:"there is nothing in the assessment orders for the aforesaid assessment years to indicate that any objection was raised on behalf of the executors against inclusion of the income from properties situate in foreign countries which is described as foreign income in the assessment orders"in the statement of case however it has been mentioned that at the time of the finalization of the statement it was submitted on behalf of the assessee that the assessee has in fact objected to the inclusion of the income from the property situate abroad when the assessee was heard by the Income-tax Officer. Apart from mentioning such submission how- ever the Tribunal has not said anything further. Before the Appellate Assistant Commissioner an objection appears to have been taken on the ground that the executors of the property situate abroad having not been treated as members of the association of persons the assessment of income received from such property could not have been made in the instant proceeding by clubbing it along with the income received from the property situate within the country. The Appellate Assistant Commi- ssioner found that since the income from the property situate abroad was included in the assessments the executors of such property should be deemed to have become members of the association of persons and that it is not necessary that the returns should also have been signed by all the members of the association of persons. When the matter went before the Tribunal the emphasis was on the aspect of there being two distinct and separate estates and the requirement of the income from each estate being separately taxed. The order of the Tribunal does not indicate that any specific objection was raised on the ground under consideration and all that we find stated in the order of the Tribunal in regard to this aspect is what has been extracted above. The question which arises against the aforesaid background is whether the assessee can be permitted to agitate this contention. ( 29 ) IT appears to us that since in the instant case the executors of the estate of the deceased Maharaja who are taxed in the status of association of persons appear to have furnished to the Income-tax Officer the relevant information with regard to the income derived from the property situate abroad and they allowed the assessment of such income being made by the Income-tax officer in their hands without any objection after affording to them a full opportunity of being heard it is not open to them to take up the plea at a later stage as a last resort or an afterthought that the assessment of such income in their hands is not permissible unless all the executors were served and collectively taxed as association of persons. Sec. 168 merely prescribes the method for making an assessment of tax in a special case. It does not bear upon the initial jurisdiction of the taxing authority but deals with matters incidental to it. If the assessing authority in the exercise of his jurisdiction omits to take one or more of the various procedural steps or commits an error of procedure the assessment would be null and void only in the omission error or breach as the case may be is so fundamental as could not be waived because it affects inherent jurisdiction. In the instant case the assessment is made on the executors of the estate of the deceased Maharaja. In the instant case the assessment is made on the executors of the estate of the deceased Maharaja. Some at least of the executors were present before the taxing authority. They did not object to the inclusion of the income derived from the property situate abroad in the computation of total income upon which tax was to be levied in their hands. Indeed they appear to have furnished the requisite information either in the return or otherwise which is not clear from the record. The Tribunal has in terms found so and although in the statement of case it has been mentioned that a submission was made on behalf of the assessee that an objection was in fact taken the Tribunal has not recorded any further finding on the point. Under these circumstances the executors must be taken to have exercised the option of abandoning the plea that such income cannot be brought to tax in their hands and they having not raised an objection at the appropriate time they must be taken to have waived the same (see C. I. T. v. Sumanthhai C. Munshaw 128 I. T. R. 142 ). We are accor- dingly of the opinion that the second objection raised on behalf of the assessee is not well-founded and that it cannot be entertained. Re. Ground No. 3: ( 30 ) IT is true that sec. 168 deals with the assessment of the income of the estate of a deceased person in the hands of the executor. The period during which the section applies and remains operative is from the date of the death to the date of complete distribution to the bene- ficiaries of the estate according to their several interests. The income of the estate during that entire period computed in accordance with the provisions of the Act (after giving effect to sub-sec (4) of sec. 168 in the process of such computation) is to be assessed in the hands of the executor by separate assessment made on the total income of each completed previous year or part thereof covered by the said period. If therefore the executor becomes functus officio as to any part or whole of the estate and still retains such part or whole in his possession in the character of a trustee either under the provisions of the will or on account of his dealings sec. If therefore the executor becomes functus officio as to any part or whole of the estate and still retains such part or whole in his possession in the character of a trustee either under the provisions of the will or on account of his dealings sec. 168 would obviously become inapplicable from the point of time the executor had become functus officio. ( 31 ) THE legal position in regard to the nature and quality of the interest of the executor in the estate of the deceased and the point of time when an executor even if he is also named as the trustee sheds the former character and assumes the latter character is well-settled. As earlier pointed out the property of the deceased vests in the executor only for the purpose of representation and administration. In other words it is only the legal estate that vests in the executor and the vesting is not of the beneficial interest. Still however while the administration is incomplete the executor holds the estate and receives its income on behalf of himself as the person in whom the estate lies vested at that time. It is possible however that a will may appoint the same person to be an executor and a trustee or an executor may become a trustee by the manner of his dealings with the estate. However till the administra- tion has not reached such a point that it could be inferred that the administration has been completed the executor does not become functus officio and continues to hold the estate and receives income therefrom as an executor and representative of the deceased. As soon as however the administration has been completed say by the residuary estate having been ascertained and the legacy having been assented to. the executor becomes functus officio and even if he still retains the estate in his possession he becomes clothed with the character of a trustee. Under such circumstances the executor loses his vested right of property as an executor and becomes so far as the title to it is concerned a trustee under the will and the receipt by him or the income from the estate in his possession is thenceforth in the character of a trustee. Under such circumstances the executor loses his vested right of property as an executor and becomes so far as the title to it is concerned a trustee under the will and the receipt by him or the income from the estate in his possession is thenceforth in the character of a trustee. The decisions of the Madras High Court in V. M. Raghavalu Naidu and Sons v Commissioner of Income-tax 18 I. T. R. 787 and of the Calcutta High Court in Asit Kumar Ghose v. Commissioner of Agricultural Income-tax 20 I. T. R 177 lend support to the aforesaid view. ( 32 ) IN the instant case the question in issue before the Tribunal indeed was as to the chargeability of the income from the property in the United Kingdom in the hands of the assessee against whom assessments were made as executors. In other words the question of chargeability to tax of such income in the hands of the assessee in the character of executors was clearly under issue. Even the question referred for our opinion is widely worded and brings into controversy the issue as regards the chargeability of the income from the property in the United Kingdom to tax in the hands of the assessee in the character of executors. How- ever it cannot be gainsaid that the abovementioned aspect of the question was not argued before the Tribunal. Indeed as pointed out by the Tribunal in the forefront of its order the Wills in question were not even produced before it. The Wills have come on the record of the reference only as accompaniments to the statement of case. Under the circumstances the Tribunal has not at all applied its mind to the abovementioned aspect of the question namely whether qua that part of the estate situate in the United Kingdom which was the subject matter of the Will dated 4/06/1954 the concerned executors had become functus officio and held such property and derived income therefrom in the character of trustees. The question cannot be answered from that angle merely by the interpretation of Will for factual aspects are also involved. The question cannot be answered from that angle merely by the interpretation of Will for factual aspects are also involved. ( 33 ) TWO courses are therefore open to us: To call for a supple- mentary statement of the case from the Tribunal or to decline to answer the question and leave it to the Tribunal to take appropriate steps to adjust its decision in the light of the well-settled legal position referred to earlier. Following the decision of the Supreme Court in C. I. T. v. Indian Molasses Co. Pvt. Ltd. 78 I. T. R. 474 we therefore consider it appro- priate to decline to answer the question on the ground that the Tribunal has failed to consider and decide the question in all its legal and factual aspects. It will be open to the Tribunal to dispose of the appeals before it in light of the observations made by this Court after determining the said aspect which ought to have been decided. We wish to make it clear however that it would not be open to the assessee to raise before the Tribunal the questions which are already concluded by this decision. ( 34 ) IN the result for the reasons aforesaid we decline to answer the question referred to us by the Tribunal for our opinion. Each party shall bear its own costs of the reference. Order accordingly. .