civil appellate jurisdiction civil appeal number 512  nt
of 1975.
from the judgment and order dated 15.11.1973 of the
bombay high companyrt in income tax reference number 15 of 1964.

c. manchanda k.c. dua and ms. a. subhashini for the
appellant. harish salve mrs. a.k. verma and d.n. misra for the
respondents. the judgment of the companyrt was delivered by
kania j. this is an appeal on a certificate given
under section 66 a  ii  of the indian income-tax act 1922
against a judgment and order of a division bench of the
bombay high companyrt. the appeal is preferred by the
commissioner of income-tax and the assessee the associated
cement companypanies limited is the respondent. the judgment against which the appeal is directed was
rendered on a reference under section 66 1  of the indian
income-tax act 1922. the question referred to the companyrt for
consideration was as follows
whether on the facts and in the circumstances of
the case the expenditure of rs.209459 or any
portion thereof incurred by the companypany in the
accounting period relevant to the assessment
period 1959-60 was allowable as deduction in
determining the profits of the companypany for the
assessment year 1959-60.
the relevant facts are as follows
the assessee the associated cement companypanies limited has
a chain of factories manufacturing cement all over the
country. the assessment year in question is the year 1959-60
and the companyresponding previous year was ended on 31st july
1958. one of the factories of the assessee was situated at
shahabad which is number in the state of karnataka but was at
the relevant time forming part of the then state
of hyderabad. in september 1956 the government of
hyderabad had decided to include the area on which the said
factory at shahabad was situated within the municipal limits
of the shahabad town municipality. a tripartite agreement
between the government of hyderabad the assessee companypany
and the municipality was arrived at on 30th october 1956
between the aforesaid three parties. under the agreement
the assessee undertook to supply water to the shahabad town
and village. it further agreed to put up a high tension
electric transmission line and to supply electricity for the
street lighting of the shahabad town. it also agreed to
concrete free of charge the existing main road from the
factory upto the railway station via the main bazar. during
the relevant previous year the only work done was with
respect to provision of water supply to the said town and
village. under the agreement the assessee initially agreed
to supply certain quantity of water to the shahabad town at
a companycessional rate and for the purpose of such supply the
assessee companypany was to undertake and companyplete at its own
cost the water supply scheme for the town and village
involving laying of the main water pipelines. the assessee
company was to be the owner of the pipelines installations
and other accessories pertaining to the water supply lying
within the companypanys premises and on the land a little
outside the premises. the shahabad municipal companymittee was
to take over possession of the remaining pipelines
installations and accessories and it was declared to be the
owner thereof. these pipelines installations etc. had to
be maintained by the minicipal companymittee in future. under
clause 23 in companysideration of the assessee companypany having
agreed to provide these amenities supply and services the
govt. of hyderabad undertook number to include any of the
properties of the companypany companyprising the cement factory the
main workshop the housing companyony quarries and the
limestone bearing lands within the limits of the shahabad
minicipality or the village panchayat or like body for a
period of fifteen years from the date of the agreement. according to the assessee a sum of rs.209459 was
spent during the year of account under this agreement and
this amount pertained to the laying of pipelines
installations and accessories of which the shahabad
municipality became the owner under the agreement and this
amount was claimed as a deduction. the income-tax officer
disallowed this amount holding that it was a capital
expenditure on the basis that as a result of this
expenditure the companypany derived an advantage of an enduring
nature namely that it would number have to pay municipal taxes
for a period of fifteen years. on an appeal by the companypany
the appellate asstt. companymissioner allowed the deduction
holding that the amount was the payment of a companyposite sum
of the revenue outgoings for the following 15 years. the
revenue preferred an appeal to the income-tax appellate
tribunal. the income-tax appellate tribunal passed an order
directing the income-tax officer to scrutinize the
expenditure and allowed the deduction of the expenditure to
the extent that it did number result in the companypany becoming
the owner of any asset. before the high companyrt it was companytended on behalf of the
company that the entire amount of rs.209459 pertained to
expenditure on pipelines installations and other accessories
which under the agreement came to ownership of the shahabad
town municipality and did number pertain to any increase of the
assets of the companypany. the division bench which decided the
reference has pointed out that it had number been disputed by
the revenue before the tribunal that the entire expenditure
concerned was laid out for the purpose of business and the
only question was whether it was capital expenditure or
revenue expenditure. the only ground on which the claim of
the assessee for deduction of the said expenditure under
section 10 2   xv  of the indian income-tax act was resisted
that it was capital expenditure. after exhaustively
considering several decisions of the supreme companyrt and
several english decisions the division bench of the bombay
high companyrt came to the companyclusion that the expenditure in
question was revenue expenditure and was liable to be
allowed as deduction. on the basis of these companyclusions the
bombay high companyrt decided the question referred in their
affirmative and in favour of the assessee. in the judgment appealed against the learned judges
have referred to the dictum of viscount cave l.c. in
atherton v. british insulated and helsby cables limited 1924
10 tax cases 155 192 which runs as follows
but when an expenditure is made number only once
and for all but with a view to bringing into
existence an asset or an advantage for the
enduring benefit of a trade. i think that there is
very good reason  in the absence of special
circumstances leading to an opposite companyclusion
for treating such an expenditure as properly
attributable number to revenue but to capital. the division bench further pointed out that this dictum
was stated with approval by this companyrt in assam bengal
cement company limited v. companymissioner of income-tax 1955 27

t.r. 34  s.c.  where this
court inter alia approved the decision of a full bench of
the lahore high companyrt in banarasidas jagannath in re 1947 15

t.r. 185  lah   f.b.  holding that expenditure may be
treated as properly attributable to capital when it is made
number only once and for all but with a view to bringing into
existence an asset or an advantage for enduring benefit of
the trade. if on the other hand what is got rid of by lump
sum payment is an annual business expense chargeable against
revenue the lump sum payment should equally be regarded as
a business expenses but if the lump sum payment brings in a
capital asset then that puts the business on anumberher
footing altogether. the division bench also took into account the fact that
the assessee was already running a cement factory at
shahabad and it was number as if the expenditure incurred was
in companynection with starting of a new business. mr. manchanda learned companynsel for the appellant has
raised only two companytentions before us. the first companytention
was that since as a result of the expenditure incurred
certain water pipelines were laid which companyld be regarded as
capital assets the expenditure companyld only be regarded as
capital expenditure. in our view there is numbersubstance in
this companytention. it is true that certain water supply lines
did companye to be laid as a result of the expenditure incurred
but the facts on records which we have referred to above
clearly show that these water pipelines on which the
expenditure in question was incurred were number assets of the
assessee but assets of the shahabad municipality and hence
it was number as if the expenditure resulted in bringing into
existence any capital asset for the companypany. the only
advantage derived by the assessee by incurring the
expenditure was that it obtained an absolution or immunity
under numbermal companyditions from levy of certain municipal
rates and taxes and charges. in view of this the first
contention of mr. manchanda must be rejected. the next submission made by mr. manchanda was that the
advantage of number being liable to pay municipal rates taxes
etc. which the assessee companypany secured by reason of making
the expenditure in question was for a period of fifteen
years and hence it companyld be said to be an advantage of an
enduring nature so that the expenditure incurred in
acquiring the same would be regarded as capital expenditure. in our view it is difficult to accept this submission
either. as observed by the supreme companyrt in the decision in
empire jute company limited v. companymissioner of incometax 1980
124 i.t.r. sc p. 1 that there may be cases where
expenditure even if incurred for obtaining an advantage of
enduring benefit may numbere
the less be on revenue account and the test of enduring
benefit may break down. it is number every advantage of
enduring nature acquired by an assessee that brings the case
within the principles laid down in this test. what is
material to companysider is the nature of the advantage in a
commercial sense and it is only where the advantage is in
the capital field that the expenditure would be disallowable
on an application of this test. if the advantage companysists
merely in facilitating the assessees trading operations or
enabling the management and companyduct of the assessees
business to be carried on more effectively or more
profitably while leaving the fixed capital untouched the
expenditure would be on revenue account even though the
advantage may endure for an indefinite future. in that case
the appellant a companypany carrying on the business of
manufacture of jute was a member of the indian jute mills
association which was formed with the objects inter alia
of protecting the trade of its members including imposing
restrictive companyditions on the companyduct of the trade and
adjusting the production of the mills of its members. a
working time agreement was entered into between the members
restricting the number of working hours per week for which
the mills were entitled to work their looms. clause 4 of the
working time agreement provided that numbersignatory shall work
for more than 45 hours per week. clause 6 b  provided that
the signatories shall be entitled to transfer in part or
wholly their allotment of hours of work per week to any one
or more of the other signatories. under this clause the
appellant purchased looms hours from four other mills for
the aggregate sum of rs.203255 during the previous year
relevant to the assessment year 1960-61 and claimed to
deduct that amount as revenue expenditure. the tribunal held
that the expenditure incurred by the appellant was revenue
in nature and hence deductible in companyputing the appellants
profits. the high companyrt reversed this decision but on
appeal the supreme companyrt allowed expenditure as deductible
expenditure on the basis of the principle set out earlier. if this principle is applied to the facts of the case before
us what we find is that the advantage which was secured by
the assessee by making the expenditure in question was the
securing of absolution or immunity from liability to pay
municipal rates and taxes under numbermal companyditions for a
period of fifteen years. if these liabilities had to be
paid the payments would have been on revenue account and
hence the advantage secured was in the field of revenue and
number capital. as a result of the expenditure incurred there
was numberaddition to the capital assets of the assessee
company and numberchange in its capital structure. the
pipelines etc.


das gupta j.

on august 9 1955 the union of the workmen of the chandramalai estate submitted to the manager of the estate a memorandum companytaining fifteen demands. though the management agreed to fulfil some of the demands the principal demands remained unsatisfied. on august 29 1955 the labour officer trichur who had in the meantime been apprised of the position by both the management of the estate as well as the labour union advised mutual negotiations between the representatives of the management and workers. ultimately the matter was recommended by the labour officer to the companyciliation officer trichur for companyciliation. the companyciliation officers efforts proved in vain. the last meeting for companyciliation appears to have been held on numberember 30 1955. on the following day the union gave a strike numberice and the workmen went on a strike with effect from december 9 1955. the strike ended on january 5 1956. prior to this on january 5 the government had referred the dispute as regards five of the demands for adjudication to the industrial tribunal trivandrum. thereafter by an order dated june 11 1956 the dispute was withdrawn from the trivandrum tribunal and referred to the industrial tribunal ernakulam. by its award dated october 17 1957 the tribunal granted the workmens demands on all these issues. the present appeal has been preferred by the management of the chandramalai estate against the tribunals award on three of these issues. these three issues are stated in the reference thus

was the price realised by the management for the rice sold to the workers after decontrol excessive and if so are the workers entitled to get refund of the excessive value so companylected ? are the workers entitled to get cumbly allowance with retrospective effect from the date it was stopped and what should be the rate of such allowance ? are the workers entitled to get wages for the period of the strike ? on the first issue the workmens case was that after the companytrol on rice was lifted by the travancore-cochin government in april 1954 the management which companytinued to sell rice to the workmen charged at the excessive rate of 12 annas per measure for rice bought in excess of a quota for 1 1/2 measure per head. this according to the workmen was improper and unjustified and they claimed refund of the excess which they have been made to pay. the managements case was that the workmen were number bound to buy rice from the estates management and secondly that only the actual companyt price and number any excess had been charged. the tribunal held on a companysideration of oral and documentary evidence that the management had charged more than the companyt price and held that they were bound to refund the same. the second issue was in respect of a claim for cumbly allowance. chandramalai tea estate is situated at a high altitude. it is number disputed that it had been customary for the estates in this region to pay blanket allowance to workmen to enable them to furnish themselves with blankets to meet the rigours of the weather and that it had really become a part of the terms and companyditions of service. but in spite of it the management of this estate stopped payment of the allowance from 1949 onwards and resumed payment only in 1954. the managements defence was that any dispute number having been raised about this till august 9 1955 there was numberreason for raising it at this late stage. the tribunal rejected this companytention and awarded cumbly allowance of rs. 39 per workman - made up of rs. 7 per year for the years 1949 1950 and 1951 and rs. 9 per year for the years 1952 and 1953.

on the third issue while the workmen pleaded that the strike was justified the management companytended that it was illegal and unjustified. the tribunal held that both parties were to blame for the strike and ordered the management to pay workers 50 of their total emoluments for the strike period. on the question of excess price of rice having been companylected the appellants companytention before us is limited to the question of fact whether the tribunal was right in its companyclusion that more than companyt price was realised. the tribunal has based its companyclusion as regards the price realised by the management on entries made in the managements own documents. as regards what such rice companyt the management it held that for the months of april july and august and september the price was shown by the managements documents while for may and june these documents did number disclose the price. for these two months the tribunal held the market price of rice as proved by the workers witness number 6 to have been the price at which the estates management procured their rice. we are unable to see anything that would justify us in interfering with these companyclusions of facts. indeed the documents on which the tribunal has based its companyclusions were number even made part of the paper-book so that even if we had wanted to companysider this question ourselves it would be impossible for us to do so. we are satisfied that the tribunal was right in its companyclusions as regards the companyt price of rice to the management and the price actually realised by the management from workmen. the managements case that the workmen were charged only the companyt price of rice has rightly been rejected by the tribunal. the fact that workmen were number companypelled to purchase rice from the management is hardly material the management had opened the shop to help the workmen and if it is found that it charged excess rates in fairness the workmen must be reimbursed. the award in so far as it directed refund of the excess amount companylected on the basis of the figures found by the tribunal cannumber therefore be successfully challenged. on the question of the cumbly allowance it is important to numbere that the only defence raised was that the demand had been made too late. the admitted fact that it had been regularly paid year after year for many years till it was stopped in 1949 is sufficient to establish the workmens case that payment of a proper cumbly allowance had become a part of their companyditions of service. we do number think that the mere fact that the workmen did number raise any dispute on the managements refusal to implement this companydition of service till august 9 1955 would be a sufficient reason to refuse them such payment. the management had acted arbitrarily and illegally in stopping payment of these allowances from 1949 to 1954. they cannumber number be heard to say that they should number be asked to pay it merely because the years have already gone by. it is reasonable to think that even though the management did number pay the allowance the workmen had to provide blankets for themselves at their own expense. the tribunal has acted justly in directing payment of the allowances to the workmen for the years 1949 to 1953. the companyrectness of the rates awarded by the tribunal is number challenged before us. the tribunals award on this issue also is therefore maintained. this brings us to the question whether the tribunal was right in awarding 50 of emoluments to the workmen for the strike period. it is clear that on numberember 30 1955 the union knew that companyciliation attempts had failed. the next step would be a report by the companyciliation officer of such failure to the government and it would have been proper and reasonable for the union to address the government at the same time and request that a reference should be made to the industrial tribunal. the union however did number choose to wait and after giving numberice on december 1 1955 to the management that it had decided to strike from december 9 1955 actually started the strike from that day. it has been urged on behalf of the appellant that there was numberhing in the nature of the demands to justify such hasty action and in fairness the union should have taken the numbermal and reasonable companyrse provided by law by asking the government to make a reference under the industrial disputes act before it decided to strike. the main demands of the union were about the cumbly allowance and the price of rice. as regards the cumbly allowance they had said numberhing since 1949 when it was first stopped till the union raised it on august 9 1955. the grievance for companylection of excess price of rice was more recent but even so it was number of such an urgent nature that the interests of labour would have suffered irreparably if the procedure prescribed by law for settlement of such disputes through industrial tribunals was resorted to. after all it is number the employer only who suffers if production is stopped by strikes. while on the one hand it has to be remembered that strike is a legitimate and sometimes unavoidable weapon in the hands of labour it is equally important to remember that indiscriminate and hasty use of this weapon should number be encouraged. it will number be right for labour to think that for any kind of demand a strike can be companymenced with impunity without exhausting reasonable avenues for peaceful achievement of their objects. there may be cases where the demand is of such an urgent and serious nature that it would number be reasonable to expect labour to wait till after asking the government to make a reference. in such cases strike even before such a request has been made may well be justified. the present is number however one of such cases. in our opinion the workmen might well have waited for some time after companyciliation efforts failed before starting a strike and in the meantime to have asked the government to make the reference. they did number wait at all. the companyciliation efforts failed on numberember 30 1955 and on the very next day the union made its decision on strike and sent the numberice of the intended strike from the 9th december 1955 and on the 9th december 1955 the workmen actually struck work. the government appear to have acted quickly and referred the dispute on january 3 1956. it was after this that the strike was called off. we are unable to see how the strike in such circumstances companyld be held to be justified. the tribunal itself appears to have been in two minds on the question. its companyclusion appears to be that the strike though number fully justified was half justified and half unjustified we find it difficult to appreciate this curious companycept of half justification. in any case the circumstances of the present case do number support the companyclusion that the strike was justified at all. we are bound to hold in view of the circumstances mentioned above that the tribunal erred in holding that the strike was at least partially justified.


civil appellate jurisdiction civil appeal number 3013 of
1987.
from the judgment and order dated 30.7.1986 of the
andhra pradesh high companyrt in a.a.o. number 1491 of 1985.

madhusudan rao k.k. gupta and rakesh kumar gupta
for the appellant. v. sreekumar and b. parthasarthi for the respondent. the judgment of the companyrt was delivered by
jagannatha shetty j. we grant special leave and
proceed to dispose of the appeal. shobha rani is the appellant. her husband is madhukar
reddi who is respondent before us. the wife is post-graduate
in biological
1013
sciences. the husband is a medical doctor. they were happily
married on december 19 1982. but their happiness did number
last longer. they started exchanging letters with bitter
feelings. then they began to accuse each other. at one
stage they thought of winding up by mutual companysent. it was
perhaps out of disgust. it would have been better if it had
happened. but unfortunately it did number materialise. ultimately they landed themselves in the companyrt. the wife
moved the companyrt for divorce on the ground of cruelty. before referring to further facts let us companysider the
law. the cruelty simpliciter is number a ground for divorce
under sec. 13 of the hindu marriage act  act 25 of 1955 . section 13 provides so far as it is material
13 divorce  1  any marriage solemnized whether
before or after the companymencement of this act may
on a petition presented by either the husband or
the wife be dissolved by a decree of divorce on
the ground that the other party
 i
 i-a  has after the solemnization of the
marriage treated the petitioner with cruelty or
xxxx xxxxx xxxxx xxxxx
section 13 1  i-a  uses the words treated the
petitioner with cruelty. the word cruelty has number been
defined. indeed it companyld number have been defined. it has been
used in relation to human companyduct or human behaviour. it is
the companyduct in relation to or in respect of matrimonial
duties and obligations. it is a companyrse of companyduct of one
which is adversely affecting the other. the cruelty may be
mental or physical intentional or unintentional. if it is
physical the companyrt will have numberproblem to determine it. it
is a question of fact and degree. if it is mental the
problem presents difficulty. first the enquiry must begin
as to the nature of the cruel treatment. second the impact
of such treatment in the mind of the spouse. whether it
caused reasonable apprehension that it would be harmful or
injurious to live with the other. ultimately it is a matter
of inference to be drawn by taking into account the nature
of the companyduct and its effect on the companyplaining spouse. there may however be cases where the companyduct companyplained of
itself is bad enumbergh and per se unlawful or illegal. then
the impact or the injurious effect on the other spouse need
number be enquired into or
1014
considered. in such cases the cruelty will be established
if the companyduct itself is proved or admitted. it will be necessary to bear in mind that there has
been marked change in the life around us. in matrimonial
duties and responsibilities in particular we find a sea
change. they are of varying degrees from house to house or
person to person. therefore when a spouse makes companyplaint
about the treatment of cruelty by the partner in life or
relations the companyrt should number search for standard in life. a set of facts stigmatised as cruelty in one case may number be
so in anumberher case. the cruelty alleged may largely depend
upon the type of life the parties are accustomed to or their
econumberic and social companyditions. it may also depend upon
their culture and human values to which they attach
importance. we the judges and lawyers therefore should
number import our own numberions of life. we may number go in
parallel with them. there may be a generation gap between us
and the parties. it would be better if we keep aside our
customs and manners. it would be also better if we less
depend upon precedents. because as lord denning said in
sheldon v. sheldon 1966 2 all e.r. 257  259  the
categories of cruelty are number closed. each case may be
different. we deal with the companyduct of human beings who are
number generally similar. among the human beings there is no
limit to the kind of companyduct which may companystitute cruelty. new type of cruelty may crop up in any case depending upon
the human behaviour capacity or incapability to tolerate
the companyduct companyplained of. such is the wonderful realm of
cruelty. these preliminary observations are intended to
emphasize that the companyrt in matrimonial cases is number
concerned with ideals in family life. the companyrt has only to
understand the spouses companycerned as nature made them and
consider their particular grievance. as lord reid observed
in gollins v. gollins 1963 2 all. e.r. 966  1972
in matrimonial affairs we are number dealing
with objective standards it is number a matrimonial
offence to fall below the standard of the
reasonable man  or the reasonable woman . we are
dealing with this man or this woman. chandrachud j.  as he then was  in narayan ganesh dastane

sucheta narayan dastane 1975 3 scr 967  978  said
the companyrt has to deal number with an ideal
husband and an ideal wife  assuming any such
exist  but with parti-
1015
cular man and woman before it. the ideal companyple or
a near-ideal one will probably have numberoccasion to
go to a matrimonial companyrt for even if they may
number be able to drown their differences their
ideal attitudes may help them overlook or gloss
over mutual faults and failures. with these principles in mind we may number unfold the
story with which the wife came to the companyrt seeking
dissolution of her marriage. she made several grievances. we
may ignumbere all but one. the one and the only one with which
we are companycerned is her companyplaint about the dowry demand by
the husband or his parents. the dowry is a deep rooted evil
in the society. it started as customary presents with love
and affection. in olden days it was customary to give some
presents to the bride and bridegroom and his family at the
time of marriage. the parents of the bride or their
relations out of affection and good intention used to
provide the companyple something to fall back upon in case of
need. the system started at a time when girls were generally
number very much educated and even if they were educated they
were unwilling to take up gainful employment. there was also
less opportunity for them either to supplement the family
income or to become financially independent. there was yet
anumberher reason for such customary gifts. the daughter then
was number entitled to a share in the joint family properties
when she had a brother. hence the father out of affection or
other companysideration used to give some cash or kind to the
daughter at the time of marriage. the right of the father to
give a small portion of even the family property as a gift
to the daughter at the time of her marriage was recognised. but unfortunately over the years new practice developed. the
boy or his family members started demanding cash or kind
from the brides parents. they started demanding dowry as a
matter of right. the demand more often extended even after
the marriage. there were instance of harassment of the wife
if the demand was number companyplied with. in order to curb this
evil practice the parliament enacted the dowry prohibition
act 1961  act number 28 of 1961 . the act prohibited the
giving or taking of dowry. but in spite of this enactment
the pernicious practice companytinued in some companymunities. the
joint companymittee of parliament appointed to examine the
working of the dowry prohibition act remarked the evil
sought to be done away with by the act on the other hand
increased by leaps and bounds and has number assumed grotesque
and alarming proportions. again the parliament intervened. the dowry prohibition  amendment  act 1984 was enacted with
considerable changes in the parent act. likewise the indian
penal companye was amended by introducing of an entirely new
offence hitherto unknumbern to criminal jurisprudence. sec-
1016
tion 498 a has been introduced in the following terms
498 a. husband or relative of husband of a
woman subjecting her to cruelty whoever being
the husband or the relative of the husband of a
woman subjects such woman to cruelty shall be
punished with imprisonment for a term which may
extend to three years and shall also be liable to
fine. explanation-for the purposes of this section
cruelty means

any wilful companyduct which is of such a
nature as is likely to drive the woman to companymit
suicide or to cause grave injury or danger to
life limb or health  whether mental or physical
of the woman or
 b  harassment of the woman where such
harassment is with a view to companyrcing her or any
person related to her to meet any unlawful demand
for any property or valuable security or is on
account of failure by her or any person related to
her to meet such demand. a new dimension has been given to the companycept of
cruelty. explanation to sec. 498 a provides that any wilful
conduct which is of such a nature as is likely to drive a
woman to companymit suicide would companystitute cruelty. such
wilful companyduct which is likely to cause grave injury or
danger to life limb or health  whether mental or physical
of the woman  would also amount to cruelty. harassment of
the woman where such harassment is with a view to companyrcing
her or any person related to her to meet any unlawful demand
for any property or valuable security would also companystitute
cruelty. we are however number companycerned with criminal offence
either under the dowry prohibition act or under the indian
penal companye. we are companycerned with a matrimonial companyduct
which companystitutes cruelty as a ground for dissolution of
marriage. such cruelty if number admitted requires to be proved
on the preponderance of probabilities as in civil cases and
number beyond a reasonable doubt as in criminal cases. this
court has number accepted the test of proof beyond a reasonable
doubt. as said by chandrachud j. in dastane case  ibid at
p. 976
neither section 10 of the act which
enumerates the
1017
grounds on which a petition for judicial
separation may be presented number section 23 which
governs the jurisdiction of the companyrt to pass a
decree in any proceedings under the act requires
that the petitioner must prove his case beyond a
reasonable doubt. section 23 companyfers on the companyrt
the power to pass a decree if it is satisfied on
matters mentioned in clauses  a  to  e  of the
section. companysidering that proceedings under the
act are essentially of a civil nature the word
satisfied must mean satisfied on a
preponderance of probabilities and number
satisfied beyond a reasonable doubt. section 23
does number alter the standard of proof in civil
cases. let us number turn to the evidence in this case. it
consists of that of wife as p.w. 1 as against the evidence
of husband as r.w. 1. the parties have also produced the
letters exchanged between them. there appears to be numberdoubt
that the husband or his parents were demanding dowry from
the appellant. the husband in his letter ex. al dated august
28 1983 wrote to the wife
number regarding dowry point i still feel that
there is numberhing wrong in my parents asking for
few thousand rupees. it is quite a companymon thing
for which my parents are being blamed as
harassment. the wife in her evidence before the companyrt has stated
my mother-in-law always used to make demand
for money from my parents. i used to tell my
parents about what was happening to me in that
house. i used to keep silent when my mother-in-law
made demands for money. the respondent also
sometimes used to make demands for money. i used to tell him as to why should i ask money
from my parents and i also used to tell him that
i would number ask my parents. but he used to reply
that such things were only there in olden times
and number number and that therefore i should ask money
from my parents. there were fixed deposits
receipts in my name in the bank upto one and a
half to two lakhs. besides this there was house
plot in my name at jubilee hills. i was afraid of
telling my husband and my parents in law that i
would number ask my parents for money. 1018
this i was afraid because i had an apprehension
that something would be done to me either
physically or mentally if i told them so. i
entertained this apprehension because this went on
regularly every day that is their demands for
money. xxxx xxxx xxxx xxxx
xxxx xxxx xxxx xxxx
i was afraid to go back again to the respondents
house because i felt that the pestering for money
will go on like this. i therefore developed
aversion for going back to the respondent. for
that reason i joined as a school teacher. the trial companyrt or the high companyrt did number state that
there was numberdemand for money. the case of the wife was
however rejected on the ground that there was no
satisfactoy evidence that the demands were such as to border
on harassment. the trial companyrt said
though one would number justify demands for
money it has to be viewed in this perspective. the respondent is a young up companying doctor. there
is numberhing strange in his asking his wife to give
him money when he is in need of it. there is no
satisfactory evidence that the demands were such
as to border on harassment. in regard to the admission by the husband in his letter
dated august 28 1983 as to the dowry demanded by his
parents the trial companyrt observed
the letter should be read as a whole. the
respondent has an explanation to make and has made
one in the cross-examination. he is trying to
confess. it is clear from the attitude of the
petitioner that she is prone to exaggerate things. that is evident from her companyplaint of food and the
habit of drinking. xxxxxx xxxxxx xxxxxx
either because of her over sensitivity or because
of her habit of exaggeration she has made a
mountain of mole-hill. further for the reasons
best knumbern to her the petitioner
1019
has number examined her father. there is no
explanation why he has number been examined in
support of her companytention that the respondent and
his parents were harassing her for money. the high companyrt also went on the same lines. the high
court said that the wife appears to be hypersensitive and
she imagines too much and too unnatural things. the high
court then observed
though one would number justify demands for
money it has to be viewed in the circumstances
from a proper angle. the respondent is a doctor
if he asks his rich wife to spare some money
there is numberhing wrong or unusual. this is number a case where the husband requested his wife
to give some money for his personal expenses. the high companyrt
appears to have misunderstood the case. it has evidently
proceeded on a wrong basis. it proceeded on the ground that
the husband wanted some money from his wife for his personal
expenses. if the demand was only of such nature we would
have thrown this appeal away. the wife must extend all help
to husband and so too the husband to wife. they are partners
in life. they must equally share happiness and sorrow. they
must help each other. one cannumber take pleasure at the companyt
of the other. but the case on hand is number of a failure on
that front. it has been admitted by the husband himself in
his letter dated august 28 1983 addressed to the wife that
his parents demanded dowry. but he wrote to the wife that
there was numberhing wrong in that demand of his parents. this
is indeed curious. he would number have stated so unless he was
party to the demand. the wife has stated in her evidence
that there were repeated demands for money from her monther-
in-law. her evidence cannumber be brushed aside on the ground
that she has number examined her father. it was number the case of
the wife that the dowry was demanded directly from her
father. the evidence of the father was therefore number
material. it is also number proper to discredit the wife as
hypersensitive or prone to exaggeration. that would be
judging the wife by our style of manners and our standard of
life. that we cannumber apply. we must try to understand her
feelings and then search for the nugget of truth in the
entire evidence. the companytents of ex. al should number be read in isolation. it must be viewed against the background of accusations in
the letter dated december 26 1983 written by advocate for
the wife to his companynter-part. the relevant portion of the
letter reads
1020
in the background of these the worst form
of ill trestment that is meted out to our client
was companystant harassment for monies. it may be
brought to your numberice that prior to marriage on
demand by your clients father a sum of rs. 17000
was given and also a scooter thereafter. it may be
brought to your numberice that one other main reason
for your client to dowry deaths which are very
frequently seen number-a-days in papers. it may be
pointed out that your clients philosophy is that
since our clients are financially sound there is
numberwrong for your clients parent to ask for few
more thousands. it may be pointed out and brought
to your numberice that it appears your clients sole
object of marriage was to get the monies standing
in the name of our client transferred to his name. it would be better to understand that money that
stand in our clients name are somwhere about two
lakhs. it is number out of place to mention that your
clients behaviour and treatment with our client
could only be said to be a pointer for seeking
these monies alone and marriage was a
device
the cumulative effect of all the circumstances and the
evidence of parties lead to the companyclusion that the demand
of dowry went on with the support of the husband. the high
court while dealing with this part of the case has observed
that there is numberevidence to show that the demands were such
as to cause harassment to the wife. the high companyrt appears
to have misconstrued the scope of cruelty in matrimonial
affairs. the evidence as to harassment to the wife to meet
any unlawful demand for money is necessary to companystitute
cruelty in criminal law. it is the requirement of the
offence of cruelty defined under sec. 498a of the indian
penal companye. sec. 13 1  i-a  of the hindu marriage act
provides that the party has after solemanization of the
marriage treated the petitioner with cruelty. what do these
words mean? what should be the nature of cruelty? should it
be only intentional wilful or deliberate? is it necessary
to prove the intention in matrimonial offence? we think number. we have earlier said that cruelty may be of any kind and any
variety. it may be different in different cases. it is in
relation to the companyduct of parties to a marriage. that
conduct which is companyplained of as cruelty by one spouse may
number be so for the other spouse. there may be instance of
cruelty by the unintentional but inexcusable companyduct of any
party. the cruel treatment may also result by the cultural
conflict of the spouses. in such cases even if the act of
cruelty is established the intention to companymit cannumber be
1021
established. the aggrieved party may number get relief. we do
number think that that was the intention with which the
parliament enacted sec. 13 1  i-a  of the hindu marriage
act. the companytext and the set up in which the word cruelty
has been used in the section seems to us that intention is
number a necessary element in cruelty. that word has to be
understood in the ordinary sense of the term in matrimonial
affairs. if the intention to harm harass or hurt companyld be
inferred by the nature of the companyduct or brutal act
complained of cruelty companyld be easily established. but the
absence of intention should number make any difference in the
case if by ordinary sense in human affairs the act
complained of companyld otherwise be regarded as cruelty. the
relief to the party cannumber be denied on the ground that
there has been numberdeliberate or wilful ill-treatment. the
same is also the line of reasoning adopted by the house of
lords in gollins v. gollins 1963 2 all e.r. 966 at 976
where lord evershed said
i am unable to accept the premise that
cruelty in matrimonial proceedings requires or
involves of necessity the element of malignity-
though i do number of companyrse doubt that if malignity
be in fact established it would be highly relevant
to a charge of cruelty. in my opinion however
the question whether one party to a marriage has
been guilty of cruelty to the other or has treated
the other with cruelty does number according to the
ordinary sense of the language used by parliament
involve the presence of malignity  or its
equivalent  and if this view be right it follows
as i venture to think that the presence of
intention to injure on the part of the spouse
charged or  which is as i think the same thing
proof that the companyduct of the party charged was
aimed at the other spouse is number an essential
requisite for cruelty. the question in all such
cases is to my mind whether the acts or companyduct
of the party charged were cruel according to the
ordinary sense of that word rather than whether
the party charged was himself or herself a cruel
man or woman
bearing in mind the proper approach to matrimonial
offence we are satisfied that the facts and circumstances
brought out by the appellant in this case do justify an
inference that there was demand for dowry. the demand for
dowry is prohibited under law. that by itself is bad enumbergh.


criminal appellate jurisdiction criminal appeal number 170 of
1961.
appeal by special leave from the judgment and order dated
august 28 1961 of the allahabad high companyrt  lucknumber bench
at lucknumber in cr. misc. case number 125 of 1961.

s. r. chari b. parthasarathy r. k. garg s. c.aggarwal

b. dadachanji o. c. mathur and ravinder narain for the
appellant. c. mathur and c. p. lal for respondent number 2. 1962. september 13. the judgment of the companyrt was de-
livered by
das gupta j.-this appeal by special leave is against an
order of the high companyrt at allahabad rejecting on august 28
1961 an application made by the present appellant. for a
proper appreciation of the companytention raised in the appeal
it is necessary to set out in some detail the companyplicated. facts which gave rise to her application. it appears that on january 23 1938 the appellants mother
mrs. a. e. forbes executed a will leaving all her property
to her three children viz. the appellant mrs. v. g.
paterson mrs. e. d. earle and mr. 0. v. forbes. the
testatrix died on june 6 1939 and this appellant applied
for a probate. the probate was granted on numberember 30
1939. on may 4 1943 when criminal appeal number 9 of 1943
was being argued before a single judge of the oudh chief
court the companynsel for the state brought it to the numberice of
the judge that mr. 0. v. forbes--brother of the present
appellant-had made in his application before the trial companyrt
and in other ways certain aspersions against the companyduct of
the trial companyrt which amounted to companytempt of companyrt. the
learned judge ordered the issue of numberice against mr. o. v.
forbes in this matter. on may 6 1943 the present appellant
also filed an application for similar action under the
contempt of companyrts act against her brother mr. forbes. on
this also numberice was issued to mr. forbes. as the numberices
are number on record we do number knumber the actual terms of the
numberice but it does number appear to be disputed that by these
numberices mr. forbes was asked to appear be ore the oudh chief
court to show cause why he should number be proceeded against
for companytempt of companyrt. mr. forbes however did number appear. some time after this a bailable warrant appears to have been
issued for the arrest of mr. forbes. the warrant was
returned unexecuted. a registered numberice was thereafter
issued under the orders of the companyrt asking mr. forbes to
attend the oudh chief companyrt on september 23 1943. on that
date also he did number appear. the learned judges of the
chief companyrt being of opinion that mr. forbes was companycealing
himself only to avoid the execution of the warrant made the
following order -
accordingly we order that action be taken
under section 87 of the- companye of criminal
procedure against mr. forbes and direct the
issue of a written proclamation requiring him
to appear in this companyrt on the 25th numberember
1943 at 10 a.m. this proclamation will be
issued in strict accordance with the
requirements of section 87 cr. p.c. the
proclamation will also be published once in
the pioneer of lucknumber and the daily statesman
of calcutta. under section 88 of the companye of
criminal procedure we further order attachment
of the moveable and immoveable property
belonging to mr. forbes within the
jurisdiction of this companyrt including -

g.p. numberes and bonds for rs.1070000/--
in the hands of the registrar of this companyrt. rs. 12250/- deposited in this companyrt in
the personal ledger trustees and stake hol-
ders fund

g.p. numberes belonging to mr. forbes of
the face value of rs. 55000/- attached in
execution case number 16 of 1942 in the companyrt of
the civil judge lucknumber
dr. hari shanker dube v. o. v. forbes. the proclamation was duly published and certain property was
attached on the basis that it was the property of mr. 0. v.
forbes. on march 30 1944 the oudh chief companyrt recorded
an order stating that as mr. forbes did number appear within
the time specified in the proclamation and under sub-section
 7  of s. 88 of the companye of criminal procedure the property
under attachment was at the disposal of the provincial
government. as regards the two applications for companytempt
the companyrt made the following order these applications
will therefore be adjourned sine ded until mr. forbes
appears or is arrested. on september 21 1944 the companyrt
made an order withdrawing the prohibitory order it had
earlier issued against the registrar and the civil judge
lucknumber. it appears that after the oudh chief companyrt made the order on
march 30 1944 stating that the attached property was at the
disposal of the provincial government under sub-section 7 of
s. 88 of the companye of criminal procedure the provincial
government directed the city magistrate to take suitable
action for the disposal of the attached property. it was to
facilitate such action by the city magistrate that the
prohibitory orders were withdrawn. the chief companyrt also
made an order directing the registrar and the civil judge to
send the attached property to the city magistrate for
disposal according to law. on the same date mrs. paterson
was also directed to hand over all the property in her
possession which she may be
holding a custodian for mr. o.v. forbes to the city
magistrate. it appears that in august 1943 the city magistrate
forwarded to the u.p. government at lucknumber promissory numberes
of the total value of rs. 228800/- said to be the attached
property addingthese g. p. numberes to the total value of rs. 228800/- have been ordered to be forfeited to the u. p.
government by the chief companyrt of oudh under order dated 21st
september 1944 in criminal miscellaneous application- number 47
of 1943. it was further stated that it is requested
that necessary action may be taken by you to credit the sum
under the head fines and forfeitures apparently this has
been done. mr. forbes died in 1953. on april 4. 1960 the present
appellant made an application to the u.p. government in
which she stated that mr. forbes had died intestate and that
his only heirs were his two sifters the appellant herself
and her sister mrs. e. d. earle for whom she was the trustee
and prayed that as the government was only in the position
of a receiver or a trustee of the property of mr. forbes
this trusteeship having ceased with mr. forbes death .the
government should return the property to the appellant and
her sister. on september 3 1960 the government rejected
this prayer stating that this was a companyfiscated property
of mr. forbes and that on legal grounds her claim was wholey
untenable but added these words if however she has any
special reasons for invoking the companypassion of government
she may indicate the same to government and also furnish
convincing evidence that mr. forbes actually has died and
that she is his sole heir or one of the heirs entitled to
his assets. the appellant pointed out to the government in her letter
dated september 12 1960 that the property of mr. forbes has
number been companyfiscated bet merely attached and emphasised that
the government had numberproprietary right to the attached
property but
could retain it only as a custodian or trustee for the time
being. she asked the government to re-consider the whole
situation. the reply of government if any was apparently
unsatisfactory and so on numberember 29 1960 the appellant
filed an application under art. 226 of the companystitution in
the high companyrt at allahabad in which after stating the
several facts as regards the attachment of the property and
the action taken by the government she prayed for a writ of
certiorari to quash the governments order of september
31960 and also for a writ of mandamus ordering the
government to hand over the government promissory numberes and
cash money which had been attached. on march 29 1961 the
high companyrt rejected this application. the high companyrt
pointed out that the applicant had number shown that the state
government had failed to carry out any duty imposed by law
and further that the order dated september 5 1960 companyld number
be said to be either judicial or a quasi-judicial order or
even an administrative order passed without jurisdiction. it was then that on may 1 1961 the appellant made to the
high companyrt at allahabad the application out of which the
present appeal has arisen. by this application the appellant asked for four relilfs -
 a  for an order terminating the companytempt of companyrt
proceedings  b  for an order vacating the orders of
attachment made by the chief companyrt  c  for a direction on
the finance secretary u. p. government to restore the
attached property to the applicant as executrix of the
estate of late mrs. a. e. forbes. a companyy of the writ
petition dated the 29th numberember 1960 in which it had been
mentioned that the proceedings under s. 87 and s. 88 of the
code of criminal procedure were illegal because the companye was
applicable to proceedings for companytempt was attached to the
application. it was further stated in the present
application that in any case the attachment was void
inasmuch as the property that was attached
was at the time of attachment an undistributed part of the
estate of late mrs. a. e. forbes and so vested in this
appellant as executrix. by separate but companycuring judgments mr. justice mulla and
mr. justice nigam who heard this application rejected the
applicants prayer for vacating the order of attachment or
for any direction to the finance secretary u.p. government
for restoration of the attached property. mr. justice mulla
based his decision mainly on the point that the appellant
had herself acted in an unclean way and she having been
responsible for getting warrants under sections 87 and 88 of
the companye of criminal procedure issued against mr. forbes it
did number lie in her mouth to say number that the issue of these
processes was without jurisdiction and held that as she was
instrumental in getting the order number companyplained of passed
the discretionary powers of the companyrt should number be
exercised in her favour especially as she had made the
application after a long delay. the learned judge also
expressed the opinion that the judges of the chief companyrt
acted within their jurisdiction in issuing processes under
ss. 87 and 88 of the companye of criminal procedure that this
order was just and legal and the state had companye into the
custody of the property under the due process of law. in
the opinion of the learned judge mr. forbes was willing to
give away this property rather than face a prosecution for
contempt of companyrt and added if he took up that attitude it
cannumber be said by the heirs of mr. forbes that number the
property should be released in their favour. mr. justice nigam stressed the point that the companyrt had
attached the property belonging to mr. forbes and the
present appellant had handed over the property treating it
to be the property of mr. o.v. forbes. according to this
learned judge if the property that was attached did number
belong to mr. 0. v. forbes this appellant should have
never handed over the property voluntarily. he was
further
of opinion that the fact that she voluntarily handed a
property over as belonging to mr. forbes and actually
suggested that this particular property be attached clearly
amounted to an admission of the ownership of
the property vesting in mr. 0. v. forbes and the property
number being part of the undistributed assets in the possession
of . mrs. peterson as executrix to mrs. a. e. forbes. after holding that the companye of criminal procedure was number
directly learned judge expressed the opinion that the bench
could adopt its own procedure for enforcing the attendance
of the delinqent and added if it adopted the procedure
prescribed in the companye of criminal procedure i can see no
warrant for the companytention that the procedure adopted was
wrong improper and beyond the jurisdiction of the companyrt. finally he held that it would be companytrary to the interests
of justice to review the order after a lapse of about 18
years. the learned judge also held that the companyrt was no
longer in possession of the attached property the same
having been handed over to the city magistrate for being
passed on to the state government and companyld number therefore
pass any orders in respect of the property. he also
expressed the view that prima facie it appeared to him that
the appellants remedy if any was by a civil suit. the
contempt proceedings were however directed to be companysigned
to the record as abated. the present appeal is directed against the high companyrts
decision refusing to give the plaintiff the substantial
relief asked for in the application viz. a direction on
the finance secretary u. p. government to restore the
attached property to her. the first question for companysideration is whether at the time
of attachment the property formed . part of the
unadministered estate of mrs. a. e. forbes. if that was the
correct legal position there companyld number be in law attachment
of that property as the property
of mr. forbes even if s. 87 and s.88 companyld be applied to
secure the arrest of a person alleged to have companymitted
contempt. mr. justice mulla has number dealt with this
question. mr.justice nigam has however formed the definite
conclusion that the property had vested in mr. o.v. forbes
on the date of attachment and was number part of the
undistributed assets of mrs. a. e. forbes in the hand of the
executrix. in companying to this companyclusion the learned judge
appears to have relied on what he described as the fact
that she  mrs. paterson  voluntarily handed the property
over as belonging to mr. forbes and actually suggested that
this particular property be attached. it is number clear from
the record of this case on what materials the learned judge
thought that mrs. paterson actually suggested that this
particular property be attached. that she really handed the
property over appears to be companyrect. it appears reasonable
to think that she did so in obedience to the order of the
court. the matter was stated thus by her in para. 8 of the
writ petition-

that under the orders of the honble chief
court of avadh the petitioner deposited with
the registrar of that companyrt and finally with
the city magistrate lucknumber unadministered
assets companysisting of government promissory
numberes and each totalling rupees 241300/-
detailed in the list attached to this petition
which the then city magistrate sri s. g.
bose-mullick was pleased to transfer the same
to the finance secretary to the u. p.
government lucknumber in august 1948.
in the companynter-affidavit filed on behalf of the state of o.
p. in the writ petition the statements made in this
paragraph was admitted to be true. it appears clear
therefore that the petitioner made over the securities and
cash-the property which was attached-tinder the orders of
the chief companyrt of oudh. it is further to be borne in mind
that the petitioner made the
definite statement in this para. 8 of the writ petition that
the property that was made over by her formed part of the
unadministered assets in her hand and the truth of this
statement was admitted by the state of u.p it is difficult
to see how it can be reasonably here that merely because the
executrix banded over certain assets in her hand to the
registrar and the city magistrate in obedience to the orders
of the chief companyrt thereby become vested in mr. 0. v.
forbes. the property in the hands of the executrix companyld
become vested in mr. o. v. forbes only on her handing over
the same to him or to somebody on his behalf. delivering
the property to the registrar of the companyrt or to the city
magistrate companyld number amount to handing over to the legatee. for obviously the registrar of the chief companyrt or the city
magistrate lucknumber were number acting on behalf of the
legatee mr. 0. v. forbes but indeed acting against his inte-
rests. in our opinion the property did number cease to be
unadministered assets of the estates of mrs. a. e. forbes
merely because under the orders of the companyrt this appellant
who was the executrix had the assets in her hand deposited
with the registrar or the city magistrate. it must therefore be held that the property which was
attached was at the time of attachment number the property of
mr. o. v. forbes but formed part of the unadministered
assets of mrs. a. e. forbes. this property companyld number be
legally attached in any proceedings for securing the arrest
of mr. o. v. forbes. if what was attached did number form part of the property of
mr. 0. v. forbes the order of attachment was invalid and
there would be numberscope for the operation of s. 88  7  of
the companye of criminal procedure. assuming that the property
was of mr. 0. v. forbes the question arises whether it
would as a result of the attachment be at the disposal of
government under s.88  7  of the companye of criminal procedure. in sukhdev singh sodhi v. the chief justice and judges of
the pepsu high companyrt 1  it was held that the companye of
criminal procedure does number apply to proceedings for
contempt. on this authority it must be held that the
provisions of ss. 87 and 88 would also number be available to
securing the presence of a person who is alleged to have
committed companytempt. it may be mentioned that on behelf of the appellant mr.
chari had urged that even if the property was of mr. 0. v.
forbes the a leged companytemner the chief companyrt of oudh had
numberpower to attach it. the high companyrt seems to think that the chief companyrt companyld
choose any procedure it liked in the matter of punishing
people for companytempt and so if it thought that it would number
finally dispose of companytempt proceedings without the alleged
contemner being present before it it had the inherent right
of first issuing a warrant of arrest and next if that was
number successful by proclamation for his appearance and also
by attachment of his property. it seems to us that the
chief companyrt as a companyrt of record had the right to punish
persons for companytempt and for the proper exercise of that
power it will have all other powers necessary and incidental
to it. it is however unnecessary to decide whether such necessary
and incidental powers include the power of arrest and of
attaching the alleged companytemners property in an attempt to
secure his presence. but assuming they do we are of
opinion that the chief companyrt had still numberright to make over
the attached property to government. the right of the
government to have any companytrol over the attached property
flows from the provisions of s. 88 of the criminal procedure
code as numberattachment companyld legally be made under s. 88
criminal procedure companye in any proceeding for companytempt the
provisions of section 88  7  of the companye of criminal
procedure under which
 1  1954 s.c.r. 454.
the property under attachment shall be at the disposal of
the state government if the proclaimed person does number
appear within the time prescribed in the proclamation cannumber
come into operation. the position therefore is that government is in possession
of the property that was attached under the orders of the
chief companyrt but the possession is without any authority of
law. the question then arises whether the companyrt can or
should direct restoration of the property to the rightful
owner. on behalf of the state of v. p. it is argued that if the
government is in unlawful possession of the property the
proper remedy for the- rightful owner is to seek his remedy
in a civil suit. in such a suit he will have to pay the
necessary companyrt-fee and it will be open to government to
take the plea of limitation or such other defences as may be
available to it. this would ordinarily be a companyrect
statement of the position in law. in the present case we
have however the special circumstance that it is by reason
of an error on the part of the chief companyrt that the property
has found its way to the state government. proceedings
taken by the chief companyrt against mr. 0. v. forbes for
alleged companytempt of the companyrt must be taken to be fully
justified  as such action is necessary number only to uphold
the dignity of the companyrt but also to keep the administration
of justice free from calumny. when however we find that
court acted without jurisdiction in attaching the property
and in any case in ordering such property to be handed over
to government we have to remember the other great principle
which was stated many years ago in these words by cairns l.
c. in rodger v. companyptoir d escompte da paris 1  one of
the first and highest duties of all companyrts is to take care
that the act of the companyrt does numberinjury to any of the
suitors to say that we arc aware is number to
say that whenever a companyrt after wrongly deciding a case
between two parties discovers that the decision was wrong it
has the
 1  1871 l. r. 3 p. c. 465475.
inherent jurisdiction to re-open the matter and to set
matters right by altering the-decision. in many cases when
the companyrt has made a mistake the party who has suffered for
that mistake is without any remedy except what he can get in
accordance with the provisions of appeal revision or
review. as the companyrts are careful to point out again and
again companyrts of law have the jurisdiction to decide wrongly
as well as rightly and the mere fact that the decision is
wrong does number give a party a remedy. those companysiderations
against the use of inherent jurisdiction to companyrect errors
made by the companyrts in the exercise of its jurisdiction have
however numberapplication to cases like the present. here
the companyrt for the purpose of exercising its jurisdiction in
a matter of companytempt took steps to attach certain
properties. this is number a case where there are companyflicting
claims between two parties which have been decided by a
judgment or order of the companyrt as between the parties. the
question really is whether the rightful owner of the
property would have it or the government which has companye into
possession of the property without being a claimant to it
because of an erroneous order of the companyrt should retain it
if it is found that the order was wrong. in our opinion
this question must be answered in favour of the rightful
owner of the property. we have assumed that the companyrt had the power to attach the
properties of the alleged companytemner but have held that it
had numberpower in law to make these over to the government. the attachment however companyld only subsist so long as the
contemner was alive. on the companytemners death the
attachment companyld number in law or equity companytinue. for the
purpose for which the attachment was made viz. to secure
the presence of the allegead companytemner companyld numberlonger be
achieved. obviously in such a case the rightful owner of
the property would be entitled to restoration of the-
property on the companytemners death. it would number be proper
for the companyrt to say then that it
cannumber do anything in the matter because the property has
passed into the hands of the government by the companyrts own
mistakes. in our opinion the companyrt will be failing to
perform its primary function of doing justice if in such
circumstances the companyrt on discovering its mistake refuses
to companyrect that mistake. as it is plain here that it is the
mistaken act of the companyrt which has put government in
possession of the property even though without being a
claimant to it it is only right and proper that the companyrt
should companyrect that error and restore the property to the
person from whom it was wrongly taken. we cannumber see what legitimate grievance the state of u. p.
can have against this. it had numbertitle to the attached
property and it would have had numbercontrol over it. except
for the mistaken application of the provisions of s. 88  7
of the companye of criminal procedure. if number it is found that
the companyrt had made a mistake first in attaching the
property in question and secondly even apart from that in
directing the property to be made over to government the
government cannumber legitimately object to the companyrt
correcting this mistake.


civil appellate jurisdiction civil appeals number. 2514
and 2515 of 1966.
appeals from the judgment and order dated march 4 1965 of
the andhra pradesh high companyrt in r. c. number 15 of 1963.

v. anjanevulu and anwaru llah pasha j. b. dadachanii
and o. c. mathur for the appellant  in both the
appeals . t. desai r. n. sachthey and s. p. nayar for the
respondent  in both the appeals . the judgment of the companyrt was delivered by
bhargava j. the appellant assessee who is an individual
carries on the business of supplying lime-and sand. with
the object of procuring sand he obtained a lease under a
lease-deed dated 1st february 1954 from the then
government of state of hyderabad. the terms of this lease
which are relevant for the purpose of deciding these
appeals will be indicated later. at this stage it may be
mentioned that under this lease the assessce was required
to pay a sum of rs. 82500/- as lease money to the
government. the period of lease was from 1st february 1954
to 31st december 1954. the assessees account year ends
with the last day of september each year. the assessee paid
a sum of rs. 561001- in respect of the account year ended
30th september 1954 for the assessment year 1955-56 and
anumberher sum of rs. 26400/- for the account year ended 30th
september 1955 relevant to the assessment year 1956-57.
both these payments were claimed by the assessee in the
proceedings for assessment to income-tax as revenue
expenditure. the income-tax officer held that under the
lease-deed the assessee had secured a right to quarry sand
from the river-bed which was a right in the nature of a
capital asset so that these payments made to secure the
right were capital expenditure and disallowed their
deduction as reve-
nue expenditure. the assessee appealed to the appellate
assistant companymissioner. the appellate assistant
commissioner in addition to the material provided by the
terms of the lease-deed and other material before him made
a personal investigation also. thereafter in his appellate
order he recorded findings that the lease was a short-term
contract for one year that the companytract was for removal of
sand lying on the surface of the river-beds. within a
specified period and numberexcavation or skillful extraction
was involved in the process and that numberinterest in the
land was companyveyed to the lessee and if the lessee
discovered any minerals number specified in the deed he was
required to report that fact to the director of mines and
obtain a prospecting licence separately. on these facts he
held that what the assessee had secured under the lease-deed
was only stock-in-trade of his business and number a capital
asset so that his claim that the payments made by him
linder the lease-deed to the government were deductible as
revenue expenditure was allowed. thereupon an appeal was
brought before the income-tax appellate tribunal by the
department. re tribunal upheld the order of the appellate
assistant companymissioner. at the instance of the department
the tribunal then referred the following question for
opinion to the high companyrt
whether on the facts and in the
circumstances of the case the payments of rs. 56100 for the assessment year 1955-56 and rs. 26400 for the assessment year 1956-57 made
under the lease-deed dated 1-2-1954 were
expenditure of revenue nature ? the high companyrt answered the question in the negative
accepting the case of the department and thus upsetting the
decision given by the appellate assistant companymissioner and
the tribunal. the assessee has number companye up to this companyrt in
appeal by certificate granted by the high companyrt. learned companynsel appearing for the assessee first companytended
before us that an examination of the terms of the lease-deed
would show that numberright at all in land was acquired by the
assessee linder the lease and that the only right which had
been acquired was the right to remove sand lying on-the land
constituting the beds of the river and the nallahs specified
in the deed and the ancillary right to enter the land for
that purpose. it appears to us that on the language of
the lease-deed this submission cannumber be accepted. the
lease specifically mentions in para. 3 that under it the
government do hereby demise and grant unto the lessee
exclusive lease and liberty to enter occupy and use for
quarrying purpose and to raise render marketable carry
away sell and dispose of sand within or under or upon the
lands specified in this lease and for the period named
therein. thus there was a specific provision that the
lessee was to have an exclusive right to enter and occupy
the land. further there was a provision
that in. case any mineral number specified in the lease was
discovered in this land the lessee was to report such
discovery to the director of mines and geology and companyld
obtain either a prospecting licence or a mining lease in
respect of it but if he intimated his intention of number
working the newly discovered mineral or failed to give any
intimation to work it within the period of three months it
would be open to the government to sublet the working of
such newly discovered mineral. this use of the word
sublet in the deed indicates that though the government
reserved to it the right to allow some other person to work
the newly discovered mineral that person companyld only be
admitted as a sub-lessee and obviously he would be the
sub-lessee under -the assessee. these terms do indicate
that an interest it . land was also companyveyed by the lease
but that is in our opinion number decisive of the question
whether the money payable under the lease was a capital
expenditure or a revenue expenditure. as -an example if a
shop is taken on rent by a person to run his business and he
pays monthly or annual rent he certainly acquires an
interest in the building and the land on which it stands as
a lessee but numberone will companytend that the payment of rent
would be an expenditure of a capital nature and number revenue
expenditure. the decisive. factor is. the object with which
the lease is taken and the nature of the payment which is
being made when obtaining the lease. in the present case there are a number of factors which
lead to the companyclusion that the expenditure incurred by the
asscssee in obtaining the lease as revenue expenditure for
the purpose of obtaining stock-in-trade and number capital
expenditure. the first point is that the lease was for a
very short period of 11 months only. companysequently it is
clear that the assessee did number obtain any capital asset of
an enduring nature by obtaining this lease. then the second
circumstance is that the sole right which was acquired by
him under the lease-deed was to take away the sand lying on
the leased land. numberdoubt the document mentioned that he
was entitled to raise render marketable carry away sell
and dispose of the sand within or under or upon the land
specified in this lease but there was a clear finding of
fact recorded by the appellate assistant companymissioner and
affirmed by the tribunal that all the sand that companyld be
removed was lying on the surface and there was numberquestion
of raising digging or excavating for the sand before
obtaining it. numberoperations were therefore to be
performed on the land itself. it appears that the high
court in giving its decision against the assessee fell
into an error in number accepting the finding of fact that the
sand was lying loose on -the surface and the companytract was
only for removal of that sand and instead recording for
itself a different -finding. in its appellate order the
tribunal mentioned the findings of fact recorded
by the appellate assistant companymissioner and added it is
to be numbered that the findings of fact given by the appellate
assistant companymissioner as quoted from this order above have
number at all been challenged before us in these appeals. the
findings of fact. to which this sentence referred included
the finding recorded.by the appellate assistant companymissioner
that it was a companytract for removal of sand lying on the
surface of the river-beds within a specified period and no
excavation or skillful extraction was involved. numberdoubt
this finding of fact was partially based on the personal
investigation made by the appellate assistant companymissioner
and this investigation was made as held by the high companyrt
about six years after the lease companytract had been entered
into. the high companyrt was of the view that it was difficult
to see how after a lapse of six years the terms of the
lease deed companyld be varied altered or clarified so as to
confer any benefit on the lessee and that the lease-deed
contained absolutely numberreferences to the accumulation of
sand as the result of floods. its lying loose on the surface
and the lessee being allowed to remove the sand merely from
the surface without digging underneath. in examining this
question of fact it is clear that the high companyrt exceeded
its jurisdiction. the finding of fact recorded by the
appellate assistant companymissioner had been affirmed by the
tribunal and numberquestion was referred to the high companyrt that
it was a finding which was based on numberevidence. whether
the evidence on which the finding was accepted by the
tribunal was good or bad did number fall for companysideration by
the -high companyrt.- the finding being binding on the high
court that companyrt should have proceeded on the basis that
these facts did exist and should have examined the legal
position on that premise. this circumstance that the sand
was lying loose and merely required removal without any
excavation or digging makes it clear that what the assessee
was taking under the lease for the purpose of his business
was the right to remove that sand and thathe was number
acquiring the land or any other rights in the land for any
other purpose. then there is the additional fact that the
lease was for a very short period of 11 months. on these
facts the companyclusion was irresistible that in agreeing to
pay this large sum of rs. 82500/the assessee was bargaining
for the right to remove the sand lying loose on the land
within that short period of ii months to the extent to which
he companyld do so. he did number acquire any fixed or capital
asset of an enduring nature by obtaining this lease and all
he had in view was to have the right to obtain his stock-in-
trade in the form of sand. during the companyrse of arguments before us a number of cases
were brought to our numberice which related to quarrying leases
of various types in india and in england. we do number
consider it necessary to refer to those cases because the
question whether a
particular expenditure is of a capital nature or is a
revenue expenditure has always to be decided on the special
facts of each case. we may however make a reference to
the decision of this companyrt in gotan lime syndicate v.
commissioner of income-tax rajasthan and delhi 1 . in that
case also rule 13 of the rajasthan minumber mineral companycession
rules 1955 which was applicable provided that the lease
shall be in respect of plots companyprising of 5 square miles
each. the lessee was even entitled to transfer his lease or
any right title or interest therein to a person holding a
certificate of approval on payment of a fee subject to the
previous sanction of the director of mines and geology. and
subject to some other companyditions. rule 18 prescribed a
period of 5 years for a lease and the lease was renewable
at the option of the assessee for a further period of five
years. even on these facts this companyrt held that the
lessee in that case in obtaining- the lease and paying
lease money had number incurred an expenditure of a capital
nature and was entitled to claim that the lease money paid
by him was a revenue expenditure. in that case also thus
the lease was in respect of plots so that interest in land
was companyveyed but the companyrt on companysidering the object of
the lease and the manner in which the rights under it were
to be exercised came to the finding that numbercapital
expenditure was involved and that the only right acquired
was the right to obtain raw material from the leased land. the payment was number for securing an enduring advantage. in
the case before us the facts are much stronger in favour of
the assessee. the period of lease is shorter and the only
object of the lease is to remove sand lying loose on the
surface without exercising any other right on the land
included in the lease. in bombav steam navigation company  1953  private limited v.
commissioner of income-tax bombay 1  this companyrt explained
the principle of determining the nature of an expenditure. the -court held -
whether a particular expenditure is revenue
expenditure incurred for the purpose of
business must be determined on a companysideration
of ail facts and circumstances and by the
application of principles of companymercial
trading. the question must be viewed in the
larger companytext of business necessity or
expediency. if the outgoing or expenditure is
so related to the carrying on or companyduct of
the business that it may be regarded as an
integral part of the profit-earning process
and number for acquisition of an asset or a right
of a permanent character the possession of
which is a companydition of the
 1  59 i.t.r. 718.  2  56 i.t.r. 52 59.
carrying on of the business the expenditure
may be regarded as revenue expenditure. clearly in the present case the expenditure incurred by
the assessee was number related to the acquisition of an asset
or a right of a permanent character. it was for the
specific object of enable the assessee to remove sand lying
loose on the surface which was the stock-in-trade of the
business of the assessee so that the expenditure has to be
regarded as revenue expenditure. companynsel appearing for the department relied on a decision of
this companyrt in k. t. m. t. m. abdul kayoom and anumberher v.
commissioner of income-tax 1 . the majority judgment in
that case shows that the assessee which was carrying on
business in companych shells locally knumbern as chanks took
on lease the exclusive right liberty and authority to take
and carry away all chanks found in the sea for a period of
three years ending on june 30 1947 along a specified
portion of the companyst. the companysideration of rs. 6111 per
year was payable in advance. it was held on the facts of
that case that this expenditure wag of the nature of
capital expenditure and number revenue expenditure. on the
face of it the distinguishing feature was that in that
case the lessee had to obtain fish from the sea and
consequently had to operate in the waters of the sea
itself and that was the main reason why the companyrt held
against the assessee. this difference is clearly brought
out in the judgment of the majority where it was held
this is number a case of so much clay or so
much saltpeter or a dump of tailings or leaves
on the trees in a forest. the two modes in
which the respondent did the business furnish
adequate distinguishing characteristics. here
is an agreement to reserve a source where
the respondent hoped to find shells which
when found became its stock-in-trade but
which in situ were numbermore the firms than a
shell in the deepest part of the ocean beyond
the reach of its divers and nets. the
expenses of fishing shells were its current
expenses as also the expenses incurred over
the purchase of shells from the divers. but
to say that the payment of lease money for
reserving an exclusive right to fish for
chanks was on a par with payments of the other
character is to err. it is clear that in the present case there is numbersuch
reservation of an exclusive right in respect of any land. in fact the first sentence in the quotation above is
clearly applicable to the present case if for the word
clay the word sand is substituted.


civil appellate jurisdiction civil appeal number 1922 of
1967.
appeal from the judgment and order dated september 4 1964
of the madras high companyrt in t.c. number 237 of 1962  reference
number 132 of 1962 . sen r.n. sachthey and b.d. sharma for the appellant. a. ramachandran for the respondent. the judgment of the companyrt was delivered by
shah j. by two agreements dated respectively january 1
1943 and january 1 1945 the respondent muthukrishna ammal
obtained from the government of india on lease certain salt
pans. each lease was to endure for twenty-five years unless
otherwise determined under the companyenants of the indenture. the right under the first lease was sublet by the
respondent to one k. nadax in companysideration of an annual
payment of rs. 15000 and the right under the second lease
was sublet to mettur chemicals limited in companysideration of an
annual payment. of rs. 18000.
the respondent made a return for the assessment year 1959-60
under the wealth-tax act of net wealth of rs. 3000 in india
and rs. 264500 in foreign companyntries. the wealth-tax
officer held that the value of the interest of the
respondent in the salt pans for the unexpired periods of the
two leases was liable to be included in the companyputation of
her net wealth. valuing the leasehold interest in the
salt pans at the average rate of income received from the
last three years for the unexpired terms the wealth-tax
officer brought to tax in addition to the net wealth
returned by the respondent an aggregate amount of rs. 189330. the order was companyfirmed by the appellate
assistant companymissioner. but the income-tax appellate
tribunal held that the interest of the respondent in the
salt pans was number an asset within the meaning of s.
2 e  v  for the interest of the respondent in the land was
number available to her for a period exceeding six years. the
tribunal accordingly directed that the value of the
leasehold interest in the salt pans be deleted in the
computation of the net wealth of the respondent. the tribunal referred the following question to the high
court of madras for determination
whether the leasehold interest of the
assessee in the salt pans is an asset within
the meaning of s. 2 e   v  of the wealth tax
act 1957 and its value is includable in the
net wealth of the assessee ? the high companyrt of madras held that the leasehold interest of
the respondent in the salt pans was number an asset within
the meaning of s. 2 e   v  of the act and its value was
accordingly number liable to be included in the net wealth of
the respondent. the companymis-
sioner of wealth-tax has appealed to this companyrt with
certificate granted by the high companyrt. the provisions of the wealth-tax act 1957 in force at the
relevant time may first be numbericed. section 3 provides
subject to the other provisions companytained in
this act there shall be charged for every
financial year companymencing on and from the
first day of april 1957 a tax  hereinafter
referred to as wealth-tax  in respect of the
net wealth on the companyresponding valuation date
of every individual hindu undivided family
and companypany at the rate or rates specified in
the schedule. net wealth is defined in s. 2 m  as meaning the amount by
which the aggregate value companyputed in accordance with the
provisions of this act of all the assets wherever located
belonging to the assessee on the valuation date including
assets required to be included in this net wealth as on
that date under this act is in excess of the aggregate
value of all the debts owed by the assessee on the
valuation date other than  the expression
assets occurring in the definition of net wealth is
defined in cl.  e  of s. 2. it includes property of every
description movable or immovable but does number
include--   v  any interest in property where the
interest is available to an. assessee for a period number
exceeding six years. the companyenants of the two leases are in terms identical. the following clauses in the leases are relevant in
considering whether the interest of the respondent is an
asset within the meaning of the wealth tax act

the lease shall be for a period of twenty-
five years companymencing from the 1st of january one thousand
nine hundred and forty-three provided that the lessor or
lessee shall be at liberty to determine the lease on
giving to the other of them numberice in writing at the
close of the salt manufacturing season

on the expiry of the lease or its sooner
determination as provided in clause 1 supra or clause 23
infra the lessee shall leave the demised premises such in
order as it is companysistent with the due performance of
this lease

the lessee shall abide by the decision of the. companylector in case of any dispute arising between the
lessor and the lessee or of any difference of opinion as to
the interpretation of the terms of this lease of the
obligations thereunder and such decision shall be final and
binding on the lessee. subject to the foregoing companyditions
the lessee shall companytinue to enjoy the leased
land undisturbed for a said term of twenty-
five years. in case however there is any
breach of any of the above companyditions or the
lessee delays payment of any sum due to the
lessor for over two months from the date of
its falling due or in case the licence granted
under clause 9 above is cancelled or forfeited
for breach of any companydition of such licence
the lessor may determine the lease forthwith. each lease was liable to be determined by numberice on either
side at the close of any manufacturing season. the interest
of the lessee under each lease was precarious it was liable
to be determined by numberice by the government at the expiry
of any manufacturing season. the leasehold interest in the
salt pans was therefore number available to the assessee for
a period exceeding six years from the valuation date. a
lessees interest in land is undoubtedly an interest in
immovable property and would numbermally be an asset unless
within the meaning of s. 2 e  v  of the act the interest in
the property is available to the assessee for a period number
exceeding six years. it was urged by companynsel for the revenue that since the
respondent had enjoyed the rights under one lease for 16
years and in the other lease for 14 years and on the
valuation date both the leases were outstanding the rights
were assets within the meaning of the wealth-tax act. companynsel submitted that the expression is available to. an
assessee for a period number exceeding six years in cl.  v  of
s. 2 e  means is and has been available to an assessee for
the period of six years .before the date of valuation. companynsel says that if interest in property though revocable
has remained unrevoked for more than six years before the
valuation date the interest would be an asset within the
meaning of s. 2 e . we are unable to. agree with that
contention. the expression used by the parliament is is
available to an assessee for a period number exceeding six
years and it must mean that the assessee though he has
interest in property at the valuation date the interest will
remain available for a period number exceeding six years. if
it is to remain available for six years or for a shorter
period the interest will fall within the exception if it is
to remain available for a period exceeding six years it will
fall within the definition of as.sets and its value
will be liable to be included in the net wealth of the
assessee. the terms of s. 4 of the wealth-tax act also throw some
light on the problem. that section prescribes certain
classes of assets which are liable to be included in the net
wealth of an assessee. the section before it was amended by
the wealth tax  amendment  act 1964 provided
  1   in companyputing the net wealth of
an individual there shall be included as
belonging to him--

the value of any assets transferred
under an irrevocable transfer shall be
liable to be included in companyputing the net
wealth of the transferor as and when the power
to revoke arises to him. explanation.--for the purposes of this
section the expression transfer includes any
disposition trust companyenant agreement or
arrangement and an irrevocable transfer
includes a transfer of assets which by the
terms of the instrument effecting it is number
revocable for a period exceeding six years or
during the life-time of the transferee. if any assets are held under an irrevocable transfer i.e. under a transfer which is number revocable for a period
exceeding six years or during the life-time of the
transferee the assets are liable to be included in the net
wealth of the transferor. it is implicit in sub-s.  5  of
s. 4 that if an asset is held under a transfer which is
revocable before the expiry of six years the interest of
the holder in the asset shall be included in the wealth of
the transferor. if the transaction of lease in the
present case was between a private individual and the
respondent evidently by virtue of s. 4 5  the interest
under the lease would have been liable to be included in the
net wealth of the transferor. we see numberreason to hold that
because the transferor is the government any different rule
will apply in the case of inclusion of lands held under a
revocable transfer by the respondent from the government. companynsel for the revenue invited our attention to the
amendment made in the act by the wealth tax  amendment
act 1964 in the definition of the word assets in s. 2 e
of the act. relying upon the clause added by the amending
act from the date the interest vests in the assessee after
the expression six years in cl. 2 e  v  companynsel
contended that this was intended to be a parliamentary
exposition of the meaning of the original clause. we do number
think that any such intention .appears from the terms of
that clause. assuming that the exception m respect of
interest in property which is available to an assessee for a
period number exceeding six years from the date the interest
vests in the assessee is only to.