This order would dispose of Writ Petition bearing No. 3237 of :975. Filed by Syed Mohammad Taqi Shah and Writ Petition No. 389 of 1977, filed by Mohammad Shabbir Abbas. In both the writ petitions, order of Controller of Estate Duty, Lahore. Dated 30-9-1970, has been challenged. Mohammad Taqi Shah, who filed Writ Petition No. 3237 of 1975, has also challenged the order of Income-tax Appellate Tribunal (Pakistan), 1 shore, dated 23-9-1975. It was maintained in the writ petition that the orders passed by Controller of Estate Duty and the Income-tax Appellate Tribunal (Pakistan), Lahore, were illegal, without lawful authority, void and of no legal effect.
2. Gel Mohammad Shah died issueless in year 1935 leaving behind two widows, both of them named Mst. Fateh Bibi, hereinafter to be referred as Mst. Fateh Bibi Awal and Mgt. Fateh Bibi Doyam.
Mutation No. 118 was attested in favour of both the widows of Gul Mohammad Shah, on 22-1 -1-193 s. Mst. Fateh Bibi Doyam died in May 1943. Her share was transferred to Mst. Fateh Bibi Awal till life or remarriage, vide Mutation No. 173, which was attested on 12-6-1943. Mst. Fateh Bibi Awal died in February 1954. Mutation No. 263 was attested in favour of the heirs of Gul Mohammad Shah, on 25- 9-1954.
3. Controller of Estate Duty. Lahore, directed the legal heirs of (Gu1 Mohammad Shah, on 24-10- '1967, to file Estate Duty Return within ten days, but no compliance was made. Another letter was Issued to the legal heirs for filing the Estate Duty Return and the case was fixed for 20-12-1967. Final opportunity was given to the legal heirs to file the return by 15-9-1970. A direction was given that in case of failure. Ex parts proceedings would be taken up. The ten legal heirs mentioned in the impugned order refused service. Notice under section 58-B of the Estate Duty Act, 1950, was issued, on 18-9-1970, wherein the valuation was proposed. It was made clear that in case legal heirs did not accept the proposed valuation, they could file Estate Duty Return in Form E. D. I. And attend office on 30-9-1970, failing which, estate duty would be levied as proposed. The ten legal heirs refused to receive the registered letter. Value on the basis of five years' sale average amounted to Re. 11,33,234. The Controller of Estate Duty issued demand notice and challans. Messrs Mohammad Taqi Shah filed an appeal against the order of the Controller of Estate Duty. Nobody appeared on behalf of the appellants before the Income-tax Appellate Tribunal (Pakistan), Lahore, on 23-9-1975.
The appeal was dismissed on the ground that it was time-barred and no application for condonation of delay bad been filed.
4. The learned counsel for respondents Nos. 1 and 2 raised preliminary objection that the writ petitions were not maintainable since the writ-petitioners had not availed of remedies available to them under sections 59 and 59-A of the Estate Duty Act.
5. The learned counsel for the writ-petitioner contended that since the impugned order had been passed without jurisdiction. It could be challenged through writ petition. He went to the extent that even if an appeal had been pending against the impugned order, writ petition eras still maintainable for the reason that the order had been passed in complete lack of jurisdiction. Lit also contended that the writ petition was competent in dispute arising between the parties in respect of a fiscal right based upon a statutory instrument. In support of his contention, the learned counsel referred to cases titled Raja Habib Ahmed Khan v. The Income-tax Officer, Hazara Circle, Abbotabad (1972 SCMR 631). Lt.. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty etc. (PLD 1961 SC 119) and Messrs Usmania Glass-Sheet Factory Limited, Chittagong v.
Sales Tax Officer, Chittagong (PLD 1971 SC 205). Since it. Had been urged that the impugned orders had been passed without lawful authority, the parties were directed to address the Court on merits.
6. There is no dispute about the fact that Syed Gul Muhammad Shah died in 1935. Mst. Fatah Bibi Doyam died In May 1943, while Mst. Fatah Bibi Awal died in February 1954. It stood established from Mutation No. 118, dated 22-12-1935 that on the death of Gul Mohammad Shah, his property was transferred to his two widows Mst. Fatah Bibi Awal and Mst. Fatah Bibi Doyam. On the death of Mst.
Fateh Bibi Doyam is year 1943, her share was transferred to Mst. Fatah Bibi Awal vide Mutation No. 173, dated 12-6-1943. Till life or remarriage. It would clearly prove that Mst. Fatah Bibi Awal was holding the estate of Gul Mohammad Shah till life or remarriage under the Customary Law. She was not the full owner and could not transfer the Paid land. After her death in year 1954, the land, which was held by her as limited owner, was transferred to the legal heirs vide Mutation No. 263, which was attested on 25-9-1954. It was contended by the learned counsel for the petitioner that since Gul Mohammad Shah had died before the Estate Duty Act, 1950 came into force, estate duty could not be levied. It was further urged that after the death of Gul Mohammad Shah, the property was held by his two widows as limited owners and they were not legally competent to dispose of the said property and thus the estate duty could not be levied as the property had not passed on to the two widows, Ire drew my attention to sections 4 and 6 of the Estate Duty Act.
7. The learned counsel for the respondents contended that the succession opened in year 1954 on the death of Mst. Fatah Bibi Awal and as the estate, Duty Act had come into force, the estate duty could be levied.
8. It is laid down in section 4 of the Estate Duty Act, 1950 that "in the case of every person dying after the commencement of this Act, there shall, save as hereinafter expressly provided, be levied and paid upon the principal value ascertained as hereinafter provided. Of all property, settled or not settled which passes on the death of such a person, a duty called estate duty at the rates laid down in the Schedule". The Act came into force in year 1950 Gul Mohammad Shah died in year 1935.
His property was transferred to the two widows in year 1935. Thus, the estate duty could not be levied on the two widows. Mst. Fatah Bibi Doyam died in year 1943 and her share was transferred to Mst. Fatah Bibi Awal vide Mutation No. 173 attested on 12-6-1943. Mst. Patch Bibi Awal died in year 1954 after the Estate Duty Act came into force. Here the question arises as to whether Mst. Fatah Bibi Awal was competent to dispose of the property, which was mutated in her name. She was holding the property as limited owner till death or remarriage. She was not legally competent to dispose of the said property. Tax could be levied only if she had been competent to dispose of the property. The property, which she was holding, could not be deemed to have passed on to her.