Substitution of legal representatives not compulsory where the estate was already represented and Order XXII did not apply to the petition.

Order XXII CPC was held not to extend to a petition under section 261 of the Income-tax Act, as that petition was treated as a self-contained proceeding for leave to appeal to the Supreme Court. Formal substitution of legal representatives was therefore not required and no abatement arose on the assessee's death, especially since the estate had already been substantially represented and the widow had notice of the appellate proceedings. On the facts, Smt. Chhedana was also permitted to come on record as legal representative because she relied on a registered will and no effective dispute to that claim was raised.

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Issues: (i) Whether Order XXII of the Code of Civil Procedure, 1908 applied to a petition under section 261 of the Income-tax Act, 1961 so as to require formal substitution of legal representatives and attract abatement on the death of the assessee; (ii) whether Smt. Chhedana was entitled to be brought on record as the legal representative of the deceased assessee.

Issue (i): Whether Order XXII of the Code of Civil Procedure, 1908 applied to a petition under section 261 of the Income-tax Act, 1961 so as to require formal substitution of legal representatives and attract abatement on the death of the assessee.

Analysis: The petition under section 261 was held to be a self-contained proceeding for certificate to appeal to the Supreme Court and not one of the proceedings to which Rule 38A of Chapter VIII or Rule 26 of Chapter XXIII of the Rules of the Court applied. Those rules extended the procedural scheme of Order XXII only to the classes of proceedings specifically mentioned in them. The court also held that the provisions of section 131 of the Income-tax Act, 1961 did not import Order XXII, and that the absence of substitution in the section 261 proceeding did not create abatement. The object of substitution, namely notice and opportunity of hearing to the estate of the deceased, had already been substantially satisfied because the widow had notice of the appellate proceedings before the Tribunal and had herself participated there.

Conclusion: Order XXII did not apply to the section 261 petition, and no abatement arose.

Issue (ii): Whether Smt. Chhedana was entitled to be brought on record as the legal representative of the deceased assessee.

Analysis: The widow had asserted a registered will in her favour and had placed material showing prior notice of the death and the pending appellate proceedings. The court treated the estate as already represented at the appellate stage and held that the procedural object of substitution had been fulfilled. In the absence of any rejoinder disputing the will, the widow alone was treated as representing the estate for the purpose of the proceeding.

Conclusion: Smt. Chhedana was permitted to be brought on record as the legal representative of the deceased assessee.

Final Conclusion: The applications were allowed, substitution of the widow as legal representative was directed, and the leave petition was ordered to proceed for hearing.

Ratio Decidendi: Where the procedural purpose of bringing the estate of a deceased party before the court has already been substantially met and the governing procedural rules do not extend Order XXII to the proceeding in question, formal substitution cannot be insisted upon as a condition for maintaining the proceeding, and abatement does not arise.

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