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"Whether, on the facts and in the circumstances of the case, the amount of Rs. 2,344 was rightly included as dividend in the total income of the assessee for the assessment year 1949-50 ?"

On the 2nd December, 1964, the court made an order on the reference and answered the question in the negative, that is to say, in favour of the assessee and against the department. Thereupon, the department made an application for leave to appeal to the Supreme Court against the said order. On the 7th May, 1965, when the application came up for hearing, it was contended that the assessee was dead and, therefore, the proceedings could not continue. By a letter dated 18th May, 1965, the petitioners solicitor made enquiries of the advocate for the assessee as to the date of the death of the assessee and information regarding the heirs and legal representatives of the assessee. By letter dated 3rd June, 1965, the petitioners solicitor was informed that the assessee died on the 20th April, 1965, leaving a will dated 16th November, 1964. The assessee left him surviving his widow, Smt. Jogamaya Debi, and a son, Pronob Kumar Lall Singha. Shyam Sankar Lall Singha is the brother of the deceased assessee. The said Pronob Kumar Lall Singha and Shyam Sankar Lall Singha are executors of the last will and testament of the deceased. On or about 14th July, 1965, the said Pronob Kumar Lall Singha as executor of the said unprobated will has actually made an application for substitution in Income-tax Reference No. 4 of 1964. Similar application for substitution has been made in Income-tax Reference No. 5 of 1964. In the instant case, an application has been made for substitution of the names of the widow, son and brother abovenamed. It is prayed that the names of Smt. Jogamaya Debi, Pronob Kumar Lall Singha and Shyam Sankar Lall Singha be substituted in place and stead of the assessee, Gouri Sankar Lall Singha, since deceased, in the Income-tax Reference No. 132 of 1961, and in the cause title of the application for leave to appeal to the Supreme Court. Mr. Burman, appearing for the parties sought to be added, has taken up the point that the application has abated under the provisions of Order 22, ruler 4, of the Civil Procedure Code, and, consequently, no substitution can be made.

The question, therefore, arises as to whether the provisions of Order 22 of the Civil Procedure Code apply to the facts and circumstances of this case. Order 22, rule 4, of the Code of Civil Procedure, lays down that where the sole defendant dies and the right to sue survives, the court, upon an application made in that behalf, shall cause the legal representatives of the deceased defendant to be substituted as parties and to proceed with the suit. Sub-rule (3) lays down that where within the time limited by law, no application is made under sub-rule (3), the suit shall abate as against the deceased defendant. The period of limitation is 90 days from the date of the death of the deceased defendant. If this rule applies, the application has clearly abated because it has been made beyond 90 days of the date of death of the deceased assessee.

"It was further suggested that the assessee being dead, the proceedings had abated and no further action could be taken, and that no machinery existed whereby the executor could be substituted for the assessee in the reference. The same question came before the Patna High Court in Maharajadhiraja of Darbhanga v. Commissioner of Income-tax, where the learned judges, following the decision of Sankey J. in Smith v. Williams, held that where the proceedings had once commenced they must go forward until adjudicated upon notwithstanding the death of the assessee after the commencement of the proceedings, and that if there were no procedure entitling the legal representatives of the assessee to continue the proceedings the court would mould a convenient form of procedure to meet the case.