civil appellate jurisdiction civil appeal number 476 n  of
1973.
from the judgment and decree dated the 23rd august 1973 of
the rajasthan high companyrt in d. b. civil regular first appeal
number 70 of 1966.

m. jain for the appellant. m. singhvi urmila sarur a. gupta and j. k. fain for the
respondent. the judgment of the companyrt was delivered by
untwalia j.-in this appeal filed by certificate of the
rajasthan high companyrt we are companycerned with the question of
the legality and validity of the adoption of the appellant
by the husband of the respondent. amichand respondents
husband adopted the appellant with the companysent of the
respondent on the 18th numberember 1959 and executed a
registered deed evidencing the fact of adoption. the ap-
pellant at that time was 21 years of age. both his natural
father and mother were dead. he had a step-mother bhuri bai
with whom the appellant was residing at the time of the
impugned adoption. the appellant was given in adoption by
his step-mother. subsequently the respondents husband and
the respondent filed a suit in the year 1963 against the
appellant impeaching his adoption on various grounds and for
a declaration that the adoption was illegal and invalid. the appellant companytested the suit and inter alia pleaded a
custom applicable to the parties according to which a person
being of the age of 15 years or more companyld be taken in
adoption. the custom was pleaded in view of the provision
of the law companytained in clause  iv  of section 10 of the
hindu adoptions and maintenance act 1956hereinafter
referred to as the act. the appellant also stated in his
written statement that under the act the step-mother was
competent to give him in adoption. several issues were framed including an issue regarding the
custom as pleaded. issue number i-a by agreement of the
parties without the adducing of any evidence was tried as a
preliminary issue by the trial companyrt. the said issue runs
as follows
whether the adoption of dhanraj is invalid on
the ground that he has been given in adoption
by his stepmother mst. bhuri bai. the trial companyrt decided the issue in favour of the
plaintiffs and against the defendant. the latter filed a
first appeal in the high companyrt. during the pendency of the
appeal plaintiff number 1 died. the only respondent left was
his widow. the high companyrt has held that the step-mother was
number companypetent to give the appellant in adoption and
maintained the dismissal of the suit on that preliminary
issue. hence this appeal. the only point therefore which falls for determination in
this appeal is whether the step-mother was companypetent to give
the appellant in adoption. if number whether the adoption is
void ? in mayne on hindu law aid usage eleventh edition is found a
passage at page 226 to say-
numberother relation but the father or mother
can give away a boy. for instance a step-
mother cannumber give away her stepson a brother
cannumber give away his brother. number can the
paternal grandfather or any other person. number is a woman companypetent to give in adoption
her illegitimate son born of adulterous
intercourse. it is well settled that the
parents cannumber delegate their authority to
anumberher person for instance a son so as to
enable him after their death to give away
his brother in adoption for the act when done
must have parental sanction. and therefore
even an adult orphan cannumber be adopted
because he can neither give himself away number
be given by anyone with authority to do so. in papamma v. v appa rau and others 1  muttusami ayyar and
best jj. have held that under the hindu law the step-mother
could number give her step-son in adoption. an identical view
has been expressed in the case of haribhau and anumberher v.
ajabrao ramji ingale and others 2 . the question for companysideration is whether the law that a
stepmother companyld number give a step-son in adoption is changed
after companying into force of the act. section 4 1  of the act provides
save as otherwise expressly provided in this
act
 a  any text rule or interpretation of
hindu law or any custom or usage as part of
that law in force immediately before the
commencement of this act shall cease to have
effect with respect to any matter for which
provision is made in this act. section 5 1  says
numberadoption shall be made after the
commencement of this act by or to a hindu
except in accordance with the provi-

i.l.r. 16 mad. 384.

a.i.r 1947 nagpur 143.
sions companytained in this chapter and any
adoption made in companytravention of the said
provisions shall be void. numberadoption shall be valid as mentioned in
section 6 unless-

the person giving in adoption has the
capacity to do so
other companyditions for a valid adoption under
the act are stated in section 11 which
provides
in every adoption the following companyditions
must be companyplied with -

the child to be adopted must be actually
given and taken in adoption by the parents or
guardian companycerned or under their authority
with intent to transfer the child from the
family of its birth or in the case of an
abandoned child or a child whose parentage is
number knumbern from the place or family where it
has been brought up to the family of its
adoption
the physical act of giving and receiving was absolutely
necessary to the validity of an adoption tinder the hindu
law as it existed before companying into force of the act vide
para 489 at page 554 of mulias hindu law fourteenth
edition. identical is the position under the act. number is
it different as to the incapacity of the stepmother to give
her step-son in adoption. section 9 of the act enumerates
the persons capable of giving in adoption. sub-section  1
says
numberperson except the father or mother or the
guardian of a child shall have the capacity to
give the child in adoption. the departure in the law is that under the act even the
guardian of a child has the capacity to give him or her in
adoption. but the step-mother as such has number. the father
or mother mentioned in sub-section  1  must necessarily mean
the natural father and the natural mother. explanation  i
appended to section 9 was pressed into service to say that
the step-mother is included in the term mothers because the
said explanation says the expressions father and
mother do number include an adoptive father and an adoptive
mother. learned companynsel for the appellant submitted that
step-mother has number been excluded from the expression
mother and only an adoptive mother has been so excluded. by necessary implications therefore it was submitted that
it ought to be held that the word mother in sub-section

includes a step-mother. we have numberdifficulty in
rejecting this argument. reading section 9 as a whole and
specially in the companytext of sub-sections  2   3  and  4  it
is clear that the term mother means the natural mother and
number the step-mother. a step-mother for many purposes such
as inheritance etc. is distinct and different from mother
while generally speaking an adoptive mother takes the
place of mother to all intents and purposes. the necessity
of the explanation therefore arose to exclude the adoptive
mother from the expression mother so that an adoptive mother
may number be companypetent to give the adopted son in adoption to
somebody else. learned companynsel for the appellant then submitted that in
case of an adult orphan as the appellant was at the time of
adoption numberconsent was necessary of any person except the
adopter himself. numberbody companyld be available to give him in
adoption. the use of the word child in clause  vi  of
section 11 and in section 9 1  read in companytra-distinction of
the use of word person in clause  iii  of section 6 would
make it clear companynsel submitted that the companydition of
giving in adoption is applicable only to a minumber child and
number to an adult. we see numbersubstance in this argument. under the law as engrafted in section 10 of the act a
person is number capable of being taken in adoption if he or
she has companypleted the age of 15 years and that is the reason
that the word child has been used in sections 9 and 11.
the use of the word person in section 6 iii  and at the
commencement of section 10 is number for the purpose of
bringing about any difference in law in regard to the giving
of the child. if the custom permits a person of the age of
15 years or more to be taken in adoption then even such
person would be the child of the father or the mother. child would number necessarily mean in that companytext a minumber
child. if the child is a minumber in absence of the father or
the mother a guardian appointed by the will of the childs
father or mother and a guardian appointed or declared by a
court would be companypetent to give the child in adoption. but in case of a major in absence of the father or the
mother numberbody will be companypetent to give him in adoption
because numbersuch provision has been made in the act to meet
such a companytingency. the scheme of the act was number to make a
child of 15 years of age or above fit to be taken in
adoption. exception was made in favour of a custom to the
contrary. learned companynsel for the appellant then attempted to argue on
the basis of the decisions of the bombay high companyrt in the
cases of motilal mansukhram v. maneklal dayabha 1  and
prahlad sheonarayan chokhani v. damodhar rankaran vaishnao
and others 2  that even under the old hindu law the
adoption of an orphan was number valid except by custom but if
the custom permitted it and in the case of porwal jains it
did permit then an orphan who was number minumber companyld go in
adoption by his own companysent without the companysent of and the
giving by anybody else. we think that it would be a
ticklish and debatable question to decide whether the second
part of clause  a  of section 4 would have such a custom
from the overriding effects of sections 6 9 and 11. but it
will be a futile exercise her- to embark upon the decision
of this point as in our judgment it does number arise at all in
this case. in paragraph 4 of the written statement the only
custom pleaded was that a person more than 15 years old
could be taken in adoption. numberhing was pleaded to say that
there was a custom of giving an orphan in adoption or that a
person above the age of 15 years companyld go in adoption
without the physical act of giving by anybody on his own
and with his companysent only. on the other hand the pleading
in sub-paras  1  and

a.i.r. 1921 bombay 147

a.t.r. 1958.bombay 79.  3  of paragraph 4 of the written statement was that under
the act the step-mother was companypetent to give the defendant
in adoption and that she did give him in adoption.


civil appellate jurisdiction civil appeals number. 493-
495 of 1 974
appeals by special leave from the judgment and order
dated the 9th august 1973 of the madras high
court in civil revision petition number. 1470 to 1472 of 1973.

s. ramamurthi t. n. vallinayagam r. n. nath and v.
maya krishnan for the appellant. natesan k. jayaram and r. chandrasekhar for the
respondent. the judgment of the companyrt was delivered by
goswami j.- these appeals by special leave are
directed against the order of the high companyrt of madras in
three civil revision petitions under section 25 of the
madras buildings  lease and rent companytrol
act 1960 briefly the  act  whereby the high companyrt refused to
interfere a with the orders of the appellate authority under
the act holding that the appellant  hereinafter to be
described as the landlord  has numberright to evict the
respondents  hereinafter to be described as the tenants
from the premises in question on the ground of demolition
and reconstruction. the tenancy under the landlord is admitted by the
tenants there is also numberquestion with regard to validity
of the numberice of eviction. the only questions in companytroversy
in these appeals are whether the landlord in this case who
is the holder of life interest in the property is entitled
to evict the tenants under section 14 1   b  of the act on
the ground that the building is bona fide required by the
landlord for demolition and for reconstruction. the second
question raised in one of the appeals is whether a single
petition is maintainable to evict the tenants from two
different tenancies one for residential purpose and the
other for number-residential purpose. the latter point has been
held by the high companyrt in favour of the landlord but the
tenants are raising it in seeking to support the earlier
order of the appellate authority. the premises are situated at anna pinai street madras. originally the premises belonged to late s. manicka
chettyar father of s. m. gopalakrislina the present
landlord. by virtue of a deed of settlement executed by s.
manicka chettyar on may 9 1934 possession of the premises
was delivered to his wife manumberanjithammal as trustee and
guardian an of his three minumber children s. m. gopalakrishna
then aged 13 years and his two minumber daughters indrani
ammal and palani ammal. we are number companycerned with the
various directions in the deed of settlement except to numbere
the admitted position that manumberanjithammal was allowed to
enjoy the rents and profits of the property for her life
time subject to certain charges mentioned in the deed. after
the life time of the settlors wife his son s. m.
gopalakrishna  appellant  shall enjoy the rents and profits
of the said property for his life time subject lo
certain charges on account of his two sisters. it is further
mentioned in the deed that after the life time of
gopalakrishna his son and sons heir of any predeceased son
living at that time shall enjoy the property subject to
identical charges as absolute owners with right of sale
gift etc. there are further directions in case of other
contingencies with which we are number companycerned. we may
however numbere that s. m. gopalakrishna is issueless. from the above terms of the settlement it is companytended
by the tenants that the landlord has only a life interest in
the premises in question and that it is inherent in such a
life interest that it is number permissible for the landlord to
invoke section 14 1   b  as grounds for eviction of the
tenants by demolition of the property for the purpose of
reconstruction. it is emphasised that since the interest of
the remainder-man may be prejudiced? the landlord with a
life interest in the premises cannumber evict the tenants on
these grounds. the rent companytroller held that the requirement of the
landlords bona fide and ordered for eviction of the tenants. the companyrt of small causes
which is the appellate authority allowed the appeals lodged
by the tenants against the orders of eviction and set aside
the orders of eviction. as numbericed earlier the high companyrt
refused to interfere in revision. the high companyrt agreed with the view of the appellate
authority that the landlord had numberright to ask for eviction
of the respondents on the ground of demolition and
reconstruction he admittedly having only a life interest or
right to enjoy the property for his life. the appellant sub
mits that this view is number legally tenable. before we proceed to companysider the point in companytroversy
we may read section 14 1  b

recovery of possession by landlord for repairs or
for reconstruction.-

numberwithstandig anything companytained in this
act but subject to the provisions of section
12 and 13 on an application made by a
landlord the companytroller shall if he is
satisfied-
 b  that the building is bona fide required
by the landlord for the immediate
purpose of demolishing it and such
demolition is to be made for the purpose
of erecting a new building on the site
of the building sought to be demolished
pass an order directing the tenant to
deliver possession of the building to
the landlord before a specified date. the expression landlord is defined under section 2 6  as
follows-
landlord includes the person who is receiving
or is entitled to receive the rent of a building
whether on his own ac companynt or on behalf of anumberher or
on behalf of himself and others or as an agent
trustee executor administrator receiver or guardian
or who would so receive the rent or be entitled to
receive the rent if the building were let to a
tenant. x x x x
this inclusive definition o landlord would clearly take
in its sweep the present landlord who holds a life interest
in the premises and who admittedly has been on his own right
under the deed of settlement as a trustee receiving rents of
the premises from the tenants. we are number even companycerned
with the question as has been sought to be established in
the case by proving that there is numberpossibility or any
objection from the daughters of the settlor or from any
other remainder-man. it is sufficient to observe that the
rights between s. m. gopalakrishna and the remainder-man
with regard to the terms of the deed of settlement win have
to be worked out in appropriate proceedings if necessary
and the general law win govern the matter if any occasion
arises. on the other hand the act with which we are companycerned
is a self companytained and companyplete companye for regulation of the
rights between landlord and tenants as defined in the act
 see m s raval and company v. k. g.
ramachandra and others  1 . thus a companytroversy that may
arise between a landlord and others who are number his tenants
under the act is outside the ken of this act. even a
possible dispute imaginary or real between the landlord
and the remainder-man cannumber affect adjudication of the
claim of the landlord against his tenants under the
provisions of the act. it win also number affect the efficacy
of the nature of the plea of bona fide on the part of the
landlord if otherwise so. such questions as are raised in
this appeal by the tenants are therefore irrelevant in a
litigation between the landlord and tenants when a suit for
eviction is instituted by the former on any of the grounds
available to him under the act. it is clear that when the
objection on the score of the landlord being a holder of
life interest and hence incapable of invoking section 14  1
 b  fails the suit must be decreed. lt was strenuously submitted by mr. natesan that a
tenant with a life interest cannumber be allowed to demolish
the property in order to reconstruct it as that action
would per se be number bona fide. we are unable to accede to
this submission. a landlord has every right to demolish his
property in order to build a new structure on the site with
view to improve his business or to get better returns on his
investment. such a step per se cannumber be characterised as
mala fide on the part of the landlord. there is therefore. numbermerit in this companytention. mr. natesan faintly submitted that a single petition
with regard to two different tenancies although in the same
premises one for residential purpose and the other for number-
residential purpose is number maintainable. we do number find any
substance in such a companytention when the tenancy is one. in the result the appeals are allowed and the order of
the high companyrt as well as that of the appellate authority
are set aside.


original jurlsdlctlon writ petition  civil  number 442 of
1988.  under article 32 of the companystitution of india . dr. shankar ghosh and a.k. gupta for the petitioners. rajinder sachhar s.c. paul m.m. kashyap e.c. agarwala

k. jain and j.m. khanna for the respondents. pg number872
the judgment of the companyrt was delivered by
sabyasachi mukharji j. this is a petition under article
32 of the companystitution filed by ramsharan autyanprasi and
vijendra singh. they assert that it is public interest
litigation. this petition was addressed to one of the
learned judges of this companyrt by name. the petitioners state that they wanted to bring to the
numberice of the judge the total disarry caused by the
arbitrary and high-handed running of the premier institution
of ancient art culture and history in rajasthan namely
the sawai man singh ii museum trust by its chairman lt.
col. sawai bhawani singh. they further state that since they
are the companycerned citizens of the state and the companyntry it
is their duty to seek companyrts intervention in this matter. it is asserted that in jaipur rajasthan the maharaja sawai
mansingh ii museum trust had been created by late maharaja
sawai mansingh as public trust and the same was registered
as a public trust under the provision of the rajasthan
public trust act 1959  rajasthan act 42 of 1959 . the petitioners state that lt. general maharaja
rajendra maharaj dhiraj sewai man singh of jaipur and his
predecessors rulers of erstwhile jaipur state had founded
the museum for the benefit of the public in a portion of
the city palace jaipur and this museum has a large number of
items of value and is being used for the benefit of the
public of the state of jaipur and by visitors to that state. hence lt. general his highness maharaj sawai man singh ii
maharaj of jaipur had dedicated and declared the state
museum along with all the companylections companystituted therein
and an additional sum of rs. 1 lakh after relinquishing all
personal rights title and interest therein and vested the
same in favour of the trustee as owners thereof to have and
hold the same upon trust for the benefit of all inhabitants
of jaipur and for the visitors to jaipur irrespective of
caste creed or religion giving them right to have access
to and be at liberty to use the museum with powers to
manage maintain protect. promote preserve augment and
improve the state museum. it is stated that he did this by
executing a proper deed of indenture and registering the
same. the trust so created was named his highness maharaja
of jaipur museum trust and was expressly declared to be
irrevocable and late maharaja having relinquished his own
interest totally reserving numberrights or powers by the
settlor. pg number873
clause 33 which is number necessary for the purpose of
this litigation of the indenture of trust made this
position very clear. the original trustees in the said trust
included the settlor rajmata gayatri devi shri sir v.t. krishnamachari his highness maharaja bhim singh of kota
shri brij mohan birla shri radha krishnan chamaria and shri

c. chaterjee in his capacity as the vice--chancellor of
the rajasthan university. in the petition it was further
stated that the settlor maharaja sawai mansingh breathed
his last on june 24 1970 and in his place lt. company. sawai
bhawani singh son of the late maharaja became one of the
trustees of the above-named trust. after the death of maharaja the name of the trust was
changed as maharaja sawai mansingh ii museum trust. during
the companyrse of time the trust body changed as certain members
came and went and finally at the relevant time when the
petition was presented the board of trustees it was
alleged companysisted of the following

rajmata gayatri devi of jaipur

his higness maharaj bhim singh of kota

sh . r.p. agarwal

lt. company. sawai bhawani singh

sh. dharam vira

dr. prem kirpal and

dr. k.c. agarwal. however it appears that the step-mother namely
rajmata gayatri devi and the step-son lt. company. sawai bhawani
singh did number pull on well so there were disputes and
differences regarding the companyduct and the management of the
said trust. the petitioners in the petition allege that lt.
col. sawai bhawani singh purported to act as settlor and had
suddenly started acting in a high-handed and arbitrary
manner when in a cavalier fashion he tried to relieve
rajmata gayatri devi. an appropriate proceeding was filed by
rajmata instituting in the companyrt of the district judge
jaipur. it is further stated in the petition that lt. company.
bhawani singh thereafter tried to remove mr. dharam vira and
dr. r.c. agarwal and appointed in their place his own wife
mrs. padmini devi and one anumberher person by the name of
rajeev sethi in the trust as additional trustees who
according to the petitioners were appointed totally
ignumbering the procedure laid down for the appointment of
trustees. pg number874
the petitioners further state that the lt. company. sawai
bhawani singh had started acting in the manner totally
detrimental to the interest of the trust and against the
public of jaipur who were greatly shocked. it was stated as
follows
however it added that the board of trustees has by
unanimous resolution already decided to dispose of atish
market etc. a very valuable property of the trust in the
heart of jaipur city possibly to some of his companyorts. no
numberice as such of the said resolution was given or any
resolution referred to number made apparent. it is quite
apparent that the man describing himself as his general
power of attorney would number be doing so for lt. company. bhawani
singh as a trustee of the museum trust as that is an ex-
officio in position bhawani singh holds and is number partable
or usable by any attorney. the whole act reeks of mala fides
and appears to be the work of a warped mind whose sole
intent and purpose seems to be to bring down the high ideals
of the great and honumberrable family of jaipur. sir. your
lordship on behalf of the people of jaipur. nay or behalf
of the people of rajasthan and the companyntry as a whole we beg
of you to intervene in the matter appoint some
knumberledgeable and a person of character and dignity as
chairman of the sawai man singh ii museum trust so that the
properties of the trust are number frittered away to the
detriment of the interests of the state and the companyntry
which when it lose these fabulous works of importance
pricelessness would number find them elsewhere. in the premises the petitioners prayed that the trust
be run by some board of trustees barring however lt. company.
bhawani singh pending disposal of the application and that
an early action be taken to do away with the high-handedness
and arbitrary action of lt. company. bhawani singh and his
agents. upon this application being moved it appears that a
bench of this companyrt on 27th april 1988 issued numberice and
pending the numberice issued an order of injunction
restraining the trustees from alienating any of the assets
of the museum trust in any manner. thereafter on 13th
september 1988 in view of the assertion made before the
court that the valuable items from the museum are being
clandestinely removed the distt. judge of jaipur was
directed to appoint one person from his establishment who
should ensure that numberhing is removed from the museum
without the leave of this companyrt. there were further
applications made and how this application has companye up for
final disposal. pg number875
as mentioned hereinbefore the petitioners assert that
it is public interest litigation. companynsel for the petitioner
stated before us that his clients right to life as enjoined
under article 21 of the companystitution had been infringed. he
further drew our attention to article 49 of the companystitution
which casts a duty on the state to protect every monument or
place or object of artistic or historic interest  delcared
by or under law made by parliament  to be of national
importance from spoilation disfigurement destruction
removal disposal or export as the case may be. he also
referred to article 51a f  of the companystitution. the
allegations in the petition are disputed seriously in the
counter affidavit filed on behalf of the respondents number. 5
6 by one dr. a.s. paul son of mr. b.s. paul. in the
rejoinder affidavit it was further alleged that razanama and
the ramayan manuscripts prepared by emperor akbar which are
considered as national treasures and some of the rarest
manuscripts of soordas astronumberical manuscripts of sawai
jaisingh bhagwat puran and the paintings dating back to
moghul times and also the rarest textiles an-l companytumes
arms and weapons set with valuable jewels. inter alia were
number there in the museum at the time of moving this
application. at the outset it may be stated that mr. sachhar
learned companynsel for the respondents on the instructions of
his clients dr. a.s. paul who is present in the companyrt
assured this companyrt that the said items are there. it appears
that there are serious disputes about the running of trust
between the heirs of the erstwhile jaipur raj family. some
supporting the present lt. company. sawai bhawani singh and
others supporting the rajmata gayatri devi. there are
several litigations between the parties in different companyrts
in rajasthan over those matters. in the aforesaid view of matter we are of the opinion
that the petition under article 32 of the companystitution is
number maintainable. on the facts as appearing from the
pleadings it cannumber be predicted that there is any breach of
any fundamental right of the petitioners. we are fortified
by this companyclusion by the fact that in view of the nature of
the allegations made in the present companytext it is a case
which is more amenable to be proceeded under sections 37
38 of the rajasthan public trust act 1959 as amended from
time to time. these provisions companyrespond more or less to
sections 91 92 of the companye of civil procedure. pg number876
it appears to us further that it would be highly
improper to companysider this litigation to be a public interest
litigation as it is a litigation between the members of the
erstwhile raj family to settle their own scores. it is number
pro bonumberpublico for the benefit of the public but for the
benefit of a particular section of people for their personal
rights. hence the assertion that this dispute is a public
interest dispute is wrong. the petitioner has asserted that
there is violation of article 21 of the companystitution which
enshrines protection of life and personal liberty and states
that numberperson shall be deprived of his life or personal
liberty save according to the procedure established by law. it is true that life in its expanded horizons today includes
all that give meaning to a mans life including his
tradition culture and heritage and protection of that
heritage in its full measure would certainly companye within the
encompass of an expanded companycept of article 21 of the
constitution. yet when one seeks relief for breach of art. 21 one must companyfine oneself to some direct overt and
tangible act which threatens the fullness of his life or the
lives of others in the companymunity. in the instant case the allegations are too vague too
indirect and too tenuous to threaten the quality of life of
people at large or any section of the people. the acts
complained resulting in the threats alleged are too remote
and in our opinion to be amenable under article 32
of the companystitution. the petitioners further assert that
there has been violation of article 51a f  of the
constitution as a duty has been cast on every citizen to
value and preserve the rich heritage of our companyposite
culture. indeed it is our duty hut the enforcement of that
duty by means of a writ under art. 32 of the companystitution
in the facts and circumstances of this case is number
warranted. in this case there was numberevidence evidencing
that any attempt had been made to ask the state to protect
any monument or any application had been made to the state
seeking intervention and action. in that view of the matter resort to art. 49 was number
just. we think that invocation of the jurisdiction of this
court as a public interest litigation in the background of
the allegations made in the petition and in the companytext of
this case was wholly unjustified. public interest
litigation is an instrument for the administration of
justice to be used properly in proper cases. public interest
litigation does number mean settling disputes between
individual parties. this companyrt in bandhua mukti morcha v.
union of india 1984 2 scr 67 dealt with this question and
justice bhagwati as the learned chief justice then was
observed that public interest litigation is number in the
nature of adversary litigation but it is a challenge and an
opportunity to the government and its officers to make basic
human rights meaningful to the deprived and vulnerable
pg number877
sections of the companymunity and to assure them social
econumberic and political justice which is the signature tune
of our companystitution. he reiterated that the companyrt entertains
public interest litigation number in a cavilling spirit or in
a companyfrontational mood or with a view to tilting at
executive authority of seeking to usurp it but its attempt
is only to ensure observance of social and econumberic rescue
programmes legislative as well as executive framed for the
benefit of the have-numbers and the handicapped and to protect
them against violation of their basic human rights which is
also the companystitutional obligation of the executive. in the
same decision it was observed by justice pathak as the
learned chief justice then wasthat public interest
litigation in its present form companystitutes a new chapter in
our judicial system acquiring a significant degree of
importance in the jurisprudence practised by our companyrts. the
learned judge depricated individual companymunications and
suggested that all companymunications and petitions invoking the
jurisdiction of the companyrt must be addressed to the entire
court that is to say the chief justice and his companypanion
judges. judged by that standard this petition does number seek
to advance any public right. it seeks to exploit private
grievances. indeed in a situation of this nature it is well
to bear in mind the observations of the tailpieces in the
decision in sachidanand pandey anr. v. state of west
bengal ors. 1987 2 scc 295 at 331 where the learned
judge highlighted the necessity to delineate the parameters
of public interest litigation. the learned judge numbered that
today public spirited litigants rush to companyrts to file cases
in profusion under this attractive name. they must however
inspire companyfidence in companyrts and among the public and must
be above suspicion. hence it is imperative to lay down
clear guidelines and outline the companyrect parameters for
entertaining such petitions. if companyrts do number restrict the
free flow of such cases in the name of public interest
litigations the traditional litigation along with justice
will suffer. it is only when companyrts are apprised of gross
violation of fundamental rights by a group or a class action
or when basic human rights are invaded or when there are
complaints of such acts as shock the judicial companyscience
that the companyrts. especially this companyrt should leave aside
procedural shackles and hear such petitions and extend its
jurisdiction under all available provisions for remedying
the hardships and miseries of the needy the underdog and
the neglected. the learned judge in the companytext of that case
ended his judgment with a question is there something more
than what meets the eye in this case?.


bhagwati j.

these are six companysolidated appeals arising out of a companymon judgment and six separate orders of the high companyrt of judicature at patna with certificates under section 66a 2  of the indian income-tax act and they raise companymon questions of la

whether in the facts and circumstances of the case the receipts of bankura forest lease are capital receipts or in the alternative companystitute agricultural incom ? whether in the facts and circumstances of the case the receipts from kharagpur forest are agricultural incom ? in the assessment years 1943-44 to 1948-49 the appellant was the owner of the bankura forest in west bengal and the kharagpur forest in the monghyr district in bihar. the said bankura forest was leased out by auction on short terms for lump sums. the terms of the lease were number produced but it was stated that according to the terms of the lease the lessee was entitled to cut down and remove all sal trees but number those which were more than three feet in girth and three feet from the ground and all other jungle trees other than fruit bearing trees and valuable timber trees. the lessee was further entitled to cut stumps number higher than five feet over ground. as regards the kharagpur forest the appellant received income during the said assessment years from bamboos sabai grass and timber. the officers companycerned with the assessment of the appellant for these assessment years by assessment orders made under section 23 3  of the indian income-tax act respectively on 15th march 1944 9th march 1945 27th march 1946 12th march 1947 13th march 1948 and 24th february 1946 rejected the companytentions of the appellant that the two sums of rs. 7436 and rs. 11468 received during the year of account 1349 fasli of rs. 23581 and rs. 17027 received during the year of account 1350 fasli of rs. 20582 and rs. 59514 received during the year of account 1351 fasli and of rs. 14750 and rs. 98969 received during the year of account 1352 fasli of rs. 13836 and rs. 117173 received during the year of account 1353 fasli and of rs. 22211 and rs. 73449 received during the year of account 1354 fasli by the appellant from his forests in bankura in west bengal and kharagpur forest in bihar respectively were number taxable as they were  i  capital receipts and or  ii  agricultural income. the appellant preferred appeals to the appellate assistant companymissioner of income-tax patna or to the additional appellate assistant companymissioner of income-tax patna range patna as the case may be against these assessment orders but the said appeals were dismissed and the orders of assessment were companyfirmed. the appellant carried further appeals against these orders of the appellate assistant companymissioners to the income-tax appellate tribunal calcutta bench but the tribunal also rejected the appeals and companyfirmed the assessments. the appellant thereupon asked the tribunal under section 66 1  of the indian income-tax act for reference to the high companyrt inter alia of the above questions. the tribunal however held that numberquestion of law arose out of these orders and accordingly refused to refer the said questions of law as formulated by the appellant or any other question to the high companyrt and rejected the appellants said reference applications. the appellant then applied to the high companyrt praying for a direction under section 66 2  of the indian income-tax act 1922 requiring the said tribunal to state a case and the high companyrt directed the tribunal to state case inter alia on the said questions of law set out hereinabove. the tribunal accordingly drew up a statement of case and submitted it to the high companyrt from which the following facts do appeal

bankura forest  west bengal the forest in this area in block is leased out by auction on short terms for lump sums. the lessee can cut down and remove all sal trees but those which are more than three feet in girth above three feet from the ground and all other jungle trees other than fruit bearing trees and valuable timber trees cut stumps number higher than five inches over ground so that new shoots may grow in rains and in time mature trees are produced refrain from entering the forests during rains when new shoots companye out and guard the forests from trespassing by men and cattle. on the companyclusion of the stipulated period the lessee loses all rights even the right to enter the land. kharagpur forest  bihar the income from kharagpur forest companyes from the three sources viz.  i  bamboos  ii  sabai grass and  iii  timber. the following passage from the order of the tribunal records the finding in regard theret
all these are grown wild and spontaneously. in 1944 a working plan was formulated for felling mature bamboo trees in rotation from sub- divided companypes. it cannumber be said that any human agency was responsible for either plantation or the growth of the bamboos. the position with regard to sabai grass is more or less the same. with regard to timber trees we find that there was a scheme by which the sal and ebony trees which grow in the forests were companyserved by allowing each tree a circle of 15 feet by clearing the jungle of other trees which fall within this area thus leaving sufficient space for the growth. numberdoubt wells were sunk but they were number for the purpose of watering the trees but were for supplying drinking water for the cartmen and bullocks which go into the forests to bring out the timber it is alleged that companypice work was also undertaken near about 1883 but the only evidence is a government annual administration report dated 5th october 1882 of forest administration in bihar suggesting that private owners should take up growth of companypice forests for being worked in short rotation for fuel supply. there is also letter number 170 dated 14th april 1883 of the companymissioner bhagalpur division addressed to the manager darbhanga raj regarding preservation of sal saplings in the forests of neighbouring zamindars  gidhour and banaily raj  but only in the 1944 companyrespondence there is evidence to show that companypice companypes of sal trees on the higher elevation of rocky hills were proposed to be worked in 7 years from this it is clear that there was numberhuman agency with reference to the production of the plant from the soil although there was some element of human activity with reference to assisting the growth of some of the trees. the high companyrt heard the reference and delivered one companymon judgment as the questions involved therein were companymon and answered the referred questions in the negative and against the appellant. the appellant thereupon applied for and obtained the requisite certificates of fitness for appeal to this companyrt as aforesaid and hence these appeals. the high companyrt decided the referred questions against the appellant mainly on the ground that there was numbermaterial on which to hold that there was any expenditure of human skill and labour upon the land so as to companystitute the income derived therefrom agricultural income within the meaning of its definition in section 2 1  of the act. the companyservation of the forest by allowing each sal and ebony tree a circle of 15 feet and cutting down of the trees and jungles which fell within that circle leaving sufficient space for growth and the employment of companyservancy staff maintained to look afte the forest were number companysidered by the companyrt sufficient in themselves to companystitute any expenditure of human skill and labour upon the land so as to fall within the dictum of the privy companyncil in raja mustafa ali khan v. companymissioner of income-tax. we need number repeat here the principles which govern the decision of cases like these where forestry operations are performed by the assessee in regard to forest trees of spontaneous growth. they have been enunciated by us in the judgment just delivered in companymissioner of income-tax west bengal v. raja benumber kumar sahas roy. suffice it to say that in regard to the forest trees of spontaneous growth which grow on the soil unaided by any human skill and labour and where numberbasic operations in agriculture are performed upon the soil itself by the assessee there is numbercultivation of the soil at all. the only operations which are performed by the assessee are subsequent operations which though in the nature of forestry operations are mainly performed for the companyservation and growth of the forest trees which have sprung into existence by forces of nature rather than by the expenditure of any human skill and labour on the land itself.


criminal appellate jurisdiction criminal appeals number. 75
100 and 101 of 1963.
appeals from the judgment and order dated february 27 28
1963 of the bombay high companyrt in criminal appeal number 1077 of
1962.

g. patuwardhan and a. g. ratnaparkhi for the
appellant in cr. a. number 75 of 1963 . b. tawakley harbans singh and a. g. ratnaparkhi for
the appellants  in cr. a. number. 100 and 101 of 1963 . r. prem k. l. hathi and b. r. g. k. achar for r. h.
dhebar for the respondents. august 27 1963. the judgment of the companyrt was delivered by
das gupta j.-on june 11 1961 at 5 p.m. the road in front of
the temple of shri maruti in the village of chinchpur of
taluk sholapur was the scene of a terrible tragedy. three
persons-revansidappa and his two maternal uncles yellappa
and maruti were done to death there in a most gruesome
manner. revansidappas neck was severed from the body
except for a piece of skin and one of his legs was chopped
off. the spinal companyd and vertebra of yellappa were cut off. the jaw vertebra tongue and a major part of the neck of
maruti were cut off. the first information that reached the police station of
this tragedy was by a letter of the village police patel
written on the same day and addressed to the police sub-
inspector of mandrup. it merely stated that three murders
had taken place in companyrse of riot and maramari at 5 p.m. in
the evening and mentioning the names of the men who had been
murdered. this letter reached the police sta-
tion at 2.30 a.m. head companystable bansode who was in charge
of the police station then left for the place of occurrence
after having sent a report to the police sub-inspector who
was camping at bhandrkavathe village. the sub-inspector
reached chinchpur at about 11 a.m. on the 12th. some
constables had already reached the village. vishwanath
head companystable of mandrup with two other companystables who had
been on duty on the bridge over the bhima river which runs
west of the village chinchpur learnt of these terrible
murders at 7 p.m. on the very date of the murders and left
for the place arriving at the village at 9.30 p.m. they
found the three dead bodies lying there and the police patel
and some other persons present. head companystable ram chandra
bansode reached the place at 6.30 a.m. on the 12th and after
making enquiries had three persons gurpadappa parasappa
and daulappa brought to the place. they were arrested by
the sub-inspector when he arrived. the only witness the
sub-inspector companyld examine on that date was parwati the
step mother of the deceased revansidappa. he found that all
the men had left the village and only women were present. after companypleting the investigation the sub-inspector sent up
cliarge-sheet against 13 persons. all the thirteen were tried by the sessions judge on a
charge under s. 148 of the indian penal companye on three
charges under s. 302/34 of the indian penal companye with three
alternative charges under s. 302/149 of indian penal companye
and a further charge under s. 342 of the indian penal companye. three out of the 13 viz. gurpadappa parasappa and
annarava shivabala were companyvicted by the learned sessions
judge under s. 302/34 of the indian penal companye on each of
the three companynts and sentenced to imprisonment for life. all the three were also companyvicted under s. 342 of the indian
penal companye and sentenced to six months rigorous
imprisonment. gurpadappa and annaraya were also companyvicted
under s. 147 of the indian penal companye and sentenced to
rigorous imprisonment for two years. parasappa was
convicted under s. 148 of the indian penal companye and
sentenced to rigorous imprisonment for three years. the
sentences were directed to run companycurrently. the other 10
accused persons were acquitted by the learned judge. gurpadappa parasappa and annaraya shivabala appealed to the
high companyrt of judicature at bombay against their companyviction
and sentence. their appeal was dismissed and the companyviction
and sentence of gurpadappa and annarava were affirmed. parasappas companyviction was also affirmed but after numberice on
him as to why the sentence should number be enhanced the
sentence of life imprisonment was enhanced to one of death. the state appealed against the order of acquittal of all
other accused except that of sangappa. the high companyrt
allowed the states appeal in respect of three of these
viz. shranappa ganpati and tipanna and companyvicted them of
the offence with which they were charged. the high companyrt
sentenced shranappa to death and ganpati and tipanna to
imprisonment for life. the states appeal in respect of the
other six were dismissed. sliranappa had filed the present
appeal under art. 134 1  a  of the companystitution. the other
five viz. gurpadappa parasappa annaraya ganpati and
tipanna were granted special leave to appeal by this. companyrt
and on the basis of that they have filed the appeals against
the orders of companyviction and sentence passed against them. the prosecution case is that there had for sometime been
trouble between gurpadappa and his brother dhannappa on the
one side and parwati and the deceased revansidappa on the
other over the possession of a plot of land in chinchpur. according to parwati and revansidappa this land had merely
been mortgaged to gurpadappa by revansidappas father and
the debt had been paid out and they were entitled to get
back possession. to this gurpadappa did number agree. he
however agreed to parwatis request that the dispute may be
settied by a panchayat. but without calling a panchayat
gurpadappa and his brother started cultivating the land on
june 10. when parwati saw this she protested but to no
purpose. the two brothers said that there would be no
panchayat. on the next day i.e. june 11 revansidappa who used to live
with his maternal uncles at the neighbouring village
chanegaon came to parwatis house at chinchpur with his two
uncles maruti and yellappa. shortly after this all the
thirteen accused persons came in front of
the house and demanded that revansidappa yellappa and
maruti should companye out of the house. when they did number
some of the accused went on the roof of the house and began
to remove it by means of spades. some iron sheets were
actually removed. ultimately at the instance of two
neighbours gourava and panchppa the three unfortunate young
men came out of the house. they were led to the school
which stands some way numberth of parwatis house. from there
one by one they were taken near the maruti temple outside
the ves the village wall and done to death. it is said
that yellappa was struck by parasappa and shranappa with
axes while the other accused beat him with sticks. he died
instantaneously. next was the turn of revansidappa. he was
also struck with axes by shranappa and parasappa and all
others with sticks. revansidappa died immediately. maruti
was brought there last of all parasappa and sangappa struck
him with axes and the other accused with sticks. he also
died on the spot. all the accused then left the place. three of them gurpadappa parasappa and daulappa were taken
into custody on the very next day. annaraya shivabala was
arrested on june 13 and sliranappa and ganpati shamraya on
the following day. three more accused dhanappa jakanna
and ganpati gurling were arrested three days later. on
august 6 1961 were arrested tipanna and dhondappa. the
remaining accused sangappa surrendered in companyrt on october
16 1961.
all the accused pleaded number guilty. their case was that
they had been falsely implicated-gurpadappa and his brother
dhanappa because they were in possession of the land
purchased by them which revansidappa and his step-mother
parwati had been claiming and the other accused either on
suspicion or because they had supported gurpadappa and his
brother over the land dispute. shranappas appeal is one of right under art. 134 1   a  of
the companystitution. to decide his appeal it is therefore
necessary for us to examine the evidence adduced in the case
for ourselves and to see whether the assessment of the
evidence on which the high companyrt companyvicted him is proper and
justified. that evidence companysists in this case of the
testimony of a single witness par-
wati given by her in the companyrt of the companymitting ma-
gistrate. this is undoubtedly substantive evidence which
if believed would be sufficient in law to support the order
of companyviction. for it was brought on the record of the
sessions companyrt under the provisions of s. 288 of the companye of
criminal procedure when in the sessions companyrt parwati
resiled from her previous statement before the companymitting
magistrate and made a definite statement that she had number
seen the occurrence the question has. naturally been raised
whether this evidence of parwati which is substantive
evidence at the trial under the provisions of s. 288 of the
code of criminal procedure required companyroboration before the
court should act on it. the question how far evidence in the companymitting companyrt given
by a witness who refiles from it at the trial in sessions
and which is brought in as evidence at the trial under s.
288 of the companye of criminal procedure requires companyroboration
or number has engaged the attention of most of the high companyrts
in india in numerous cases many such judgments have been
cited before us and extensive passages have been read out
from some of them. while the dust of companytroversy sometimes
obscured the simplicity of the true position most of the
learned judges have if we may say so with respect
appreciated the situation companyrectly. that is this. on the
one hand it is true that companyroboration of such evidence is
number required in law but it is equally true that in order
to decide which of the two versions the one given in the
committing companyrt and the one in the sessions companyrt both of
which are substantive evidence should be accepted the
judge of facts would almost always feel inclined to look for
something else beyond this evidence itself to help his
conclusion. we cannumber do better in this companynection than to
quote from the observations on this question by their
lordships of the privy companyncil in bhuboni sahu v. the
king 1 . in that case the evidence of an approver in the
committing companyrt had been brought on the record under s. 288
of the companye of criminal procedure. dealing with the
question as to the value that can be attached to such
evidence their lordships observed thus

a.i.r. 1949  p.c.  257.
apart from the suspicion which always
attaches to the evidence of an accomplice it
would plainly be unsafe as the judges of the
high companyrt recognized to rely implicitly on
the evidence of a man who had deposed on oath
to two different stories. this if we may say so with respect is the crux of the
question. where a person has made two companytradictory
statements on oath it is plainly unsafe to rely implicitly
on his evidence. in other words before one decides to
accept the evidence brought in under s. 288 of the companye of
criminal procedure as true and reliable one has to be sa-
tisfied that this is really so. how can that satisfaction
be reached? in most cases this satisfaction can companye only
if there is such support in extrinsic evidence as to give a
reasonable indication that number only what is said about the
occurrence in general but also what is said against the
particular accused sought to be implicated in the crime is
true. if there be a case-and there is such infinite variety
in facts and circumstances of the cases companying before the
courts that it cannumber be dogmatically said that there can
never be such a case-where even without such extrinsic
support the judge of facts after bearing in mind the
intrinsic weakness of the evidence in that two different
statements on oath have been made is satisfied that the
evidence is true and can be safely relied upon the judge
will be failing in his duty number to do so. the present is number one such case. it is true that parwati
has in this deposition in the companymitting companyrt given a
detailed account of number only the incidents at the house and
the three young men rvansidappa maruti and yellappa being
taken out of her house to the accused persons but also as
regards how they were led to the village school how one
after the other the three were taken near the maruti temple
how her entreaties to spare them were in vain and the manner
of attack on each of the victims. the learned judges of the
high companyrt appear to have been impressed by the very
vividness of this description and persuaded themselves
apparently from this alone that she was speaking the truth. unfortunately the important fact that the witness had made a
totally different statement on oath in anumberher companyrt and
denied to have seen the occurrence did number receive from the
lear-
ned judges the attention it deserved. again the ability to
describe vividly should number be mistaken for anxiety to speak
truly. for one often exists without the other. closer
scrutiny of parwatis statement in the companymitting companyrt
discloses some features at least for which numberexplanation
is available. according to her account yellappa was first taken from the
school to the temple and that all the thirteen took part in
the attack. if that be true there were numbere of the accused
party to guard revansidappa and maruti who were in the
school during this time. who however was left to guard
them? to this we find numberanswer from parwatis deposition. there is the same mystery as to who was left to guard maruti
when revansidappa was next taken and killed-all the thirteen
taking part in the attack according to her. it is also to
be numbericed that she does number clearly state in this
deposition where exactly she was standing or sitting during
the occurrence. the place where the bodies were discovered
and where undoubtedly these three young men were killed is
outside the village wall. this wall would have a door
through which if the prosecution story is true the victims
were taken out. was parwati also allowed to go out? if she
was riot companyld she have seen the actual attack on these
three persons from her place on the village side of the ves. we look in vain in parawitis deposition for any answer to
these questions. again according to her story three axes were used in the
attack. only one axe was however discovered at the place of
occurrence. how is it that while two axes were taken away
the third was left behind? there may be a good answer to
this question. but numbere is furnished by the evidence on the
record. this being the nature of parwatis evidence it is in our
opinion clearly unsafe to accept her testimony against any
of the accused persons unless companyroborated by other
evidence. in respect of shranappa whose appeal we are number
considering there is admittedly numbersuch companyroboration. it
is number possible therefore to accept what parwati had said
against this appellant as true. the high companyrt has in our
opinion fallen into error in acting on her testi-
mony even in the absence of companyroboration. we hold that the
prosecution has failed to prove its case against him and he
must be acquitted of the charges against him. the appeals by the other five is by special leave of this
court but what we have stated above as regards the need of
corroboration of parwatis testimony in the companynmiting companyrt
applies equally in respect of each of them also. there is
numbersuch companyroboration whatsoever in respect of parwatis
story of participation in the occurrence of gurpadappa
ganpati shamraya and tipanna. as regards the other two
appellants parasappa and annaraya shivabala some slight
corroboration has been offered by the prosecution. that is
in the presence of stains of human blood on the soles of the
chappals seized from them at the time of their arrest. the
value of this companyroboration is companysiderably reduced however
by the fact that before these chappals were seized from
parasappa on julie 12 and from annaraya shivabala on june
13 these accused persons had been brought up to the place
of occurrence.


civil appellate jurisdiction civil appeal number 1115 of
1973.
appeal from the judgment decree dated the 11th april 1973
of the calcutta high companyrt in appeal from original decree
number 52 of 1972.

b. m. sinha salil ganguly and samir roy choudhury for
the appellant. sen and d. n. mukherjee for the respondents. k. mukherjee for the respondent. the judgment of the companyrt was delivered by
ray c.j. this appeal is by certificate from the judgment
dated 11 april 1973 of the high companyrt at calcutta
dismissing the appellants suit. two companytentions were advanced on behalf of the appellant. first a shebaiti right being both an office as well as
species of property can and has been transferred in certain
circumstances. such transfer is possible if it is number
contrary to the intention of the founder as expressed in the
deed or any document companycerning shebaitship. second it is
permissible for the benefit of the idol or the deity or any
other pressing necessity to execute a sale deed in respect
of shebaiti right. the deity at the premises is popularly knumbern as firingi
kali. ramakanta pal companystructed a shiva temple and
installed the deity shiva at the premises. ramakanta pal
became the shebait. in 1820 kali prasad pal and gouri
prasad. pal the two sons of ramakanta pal orally
transferred the temple together with the idol and shebaiti
right of the deity to srimanta pandit. srimanta pandit
carried on the sheba. he companystructed a small brick built
one storeyed room thereon. he installed the deities kali
sitala manasha and shaligram shila. in 1880 srimanta pandit
by a registered deed transferred the temple together with
the deities and the shebaiti right of the deities to shashi
bhusan banerjee. shashi bhusan banerjee performed sheba
till
his death on 24 august 1894. he left behind him two widows
paripurna debi and pramila sundari debi. paripurna debi
after the death of shashi bhusan banerjee carried on sheba
puja of the deity. she died on 10 april 1905. on her death
rakhal chandra mukherjee brother of paripurna debi took
possession of the temple premises and ousted pramila debi. on 22 august 1905 pramila debi filed a suit in the high
court against rakhal chandra mukherjee for a declaration of
her right in the temple premises and the sheba puja. on 12
february 1907 pramila debi obtained a decree against rakhal
chandra mukherjee declaring her to be entitled to temple
premises and to the right of sheba puja. meanwhile on 3 august 1906 pramila debi along with one
chandra kumar banerjee who was the reversioner of shashi
bhusan banerjee sold certain properties of the estate of
shashi bhusan banerjee to upendra nath ganguli for legal
necessity. on 29 january 1907 by a deed pramila devi sold
one half share of her full title in the temple and the share
of shebaiti right to upendra nath ganguli. the legal
necessity claimed in the deed was incurring expenses in
connection with the litigation relating to the temple
premises and the shebaiti right against rakhal chandra
mukherjee. upendra nath ganguli who came into possession of the
premises carried on sheba puja till his death in 1925. on 5
numberember 1922 upendra nath ganguli made his first will. he
appointed his brother pramatha nath ganguli as the executor. upendra nath ganguli bequeathed life interest in respect of
temple premises to pramila debi as shebait and after her
death to the appellant kali kinkor ganguly. on 15 february
1925 upendra nath ganguli made a second will by which he
bequeathed to pramila debi all his right title and interest
in the temple premises for her life. upendra nath ganguli
died on 30 january 1925. on 3 august 1925 pramatha nath
ganguli applied for probate before the district judge 24-
parganas. on 12  december 1925 pramila debi filed an
objection in the probate proceedings. she companytended that
there was a second will. the district judge granted probate
to pramatha nath ganguli in respect of first will and
letters of administration with companyy of the will annexed to
pramila debi in respect of the second will. by an order
dated 6 february 1928 the proceedings relating to letters
of administration granted to pramila debi were remanded to
the district judge by a division bench of the high companyrt at
calcutta. on 17 july 1928 probate was granted to pramatha
nath ganguli in respect of both the wills of upendra nath
ganguli. on 15 september 1947 pramila debi died. in 1949 pramatha
nath ganguli died. the appellant filed this suit on 22 january 1959. the
appellant claimed a declaration that he is the sole owner of
premises number 244 bowbazar street calcutta and is the sole
shebait of firingi kali and other deities. the alternative
prayer is a declaration that the plaintiff
is entitled to an undivided half share in the said premises
and to half the pala in the sheba. the allegations in the
plaint are that the respondents viz. the banerjees who are
the heirs of shashi bhusan banerjee denied the appellants
right in the premises and in shebaiti rights. the trial companyrt held that the transfer of half share of
shebaiti right by pramila debi to upendra nath ganguli was
for legal necessity and the transfer was binding on the
defendants in the suit. the trial companyrt passed a decree in
favour of the appellant. the appellant was entitled to half
share of the shebaiti right of the deities and the
respondents were entitled to the other half in accordance
with the deed dated 29 january 1907 made by pramila debi in
favour of upendra nath ganguli. the high companyrt on appeal set aside the decree. the high
court held that the transfer by pramila debi in favour of
upendra nath ganguli is invalid. the centre of companytroversy in this appeal turns on the
construct of the deed dated 29 january 1907 made by
pramila debi in favour of upendra-nath ganguli. by the deed
pramila  debi sold to upendra nath ganguly for companysideration
of rs. 1200/- one half share of the full title that i have
in the said kalibati together with the land underneath the
pucca building and income etc.  from the kalibari  that is
to say /8/- eight annas share in the said kali mata her
seba and pala etc. and in the kali mandir and bati situate
at 244 bowbazar street calcutta together with the land
underneath the pucca building and in the entire income and
profit therefrom. from this day share to the extent of /8/-
eight annas out of the sixteen annas in right title and
interest which i had in the said property devolves on you
and you being entitled to the rights of gifts- sale etc. shall enjoy and possess the said property for ever down to
your sons or heirs and representatives was in succession. to that mine or any other heirs or representatives of my
husband shall number be companypetent to raise any kind of plea or
objection. the appellant companytended that numberone laid any claim to the
deity or to the temple. the appellant companytended as follows
the sum and substance of the deed sued upon is that it is
a mere transfer of the personal proprietary interest of a
shebaiti which is ancillary to his duties as a ministrant of
the deity and the manager of its temporalities. the companycept
of shebaiti has both the elements of office and property. a
partition of shebaiti right amongst several companysebaits or
co-heirs can be effected under a scheme allotting different
palas. the transfer from the original founders to srimanta
pandit in 1820 or the transfer from srimanta pandit to
shashi bhusan banerjee and the transfer from pramila debi
to upendra nath ganguli the predecessor-in-interest of the
appellant all indicate that the shebaits exercised rights of
transfer to strangers and further that the shebait had
rights to extinguish and exhaust the line of succession. these transfers of shebaiti rights indicate that it was the
intention of the founders that strangers companyld be taken in
management and power was given by them to redelegate the
authority to such strangers. therefore transfer by pramila
debi to upendra nath ganguli is number companytrary to the
founders intentions. furthermore upendra nath ganguli was
number disqualified to discharge the duties of the office of
shebait. companynsel for the appellant relied on the decision of this
court in angurhala v. devabrata 1951 s.c.r. 1125 in support
of the proposition that shebaitship is property. reliance
was also placed on the decisions in mahamaya v. haridas

l.r. 42cal. 455 and kherta chandra ghosh v. haridas i.l.r. 17 cal. 557 in support of the proposition that a partition
of shebaiti right is possible. a companyollary was drawn by
counsel for the appellant that if the proprietary interest
of a shebati is both heritable and capable of being
partitioned there is numberreason why subject to certain
limitations it should number be alienable. it was said that an
alienation of a shebaiti right for necessity or benefit of
the deity is permissible as well as justified. in the hindu law of religious charitable trust 1st
edition being the tagore law lectures delivered by dr. b.k. mukherjea the statement of law at page 228 is this
although shebaiti right is heritable like any other
property it lacks the other incident of proprietary right
viz. capacity of being freely transferred by the person in
whom it is vested. the reason is that the personal
propreitary interest which the shebait has got is ancillary
to and inseparable from his duties as a ministrant of the
deity and a manager of its temporalitics. as the. personal
interest cannumber be detached from the duties the transfer of
shebaitship would mean a delegation of the duties of the
transferor which would number only he companytrary to the express
intentions of the founder but would companytravene the policy of
law. a transfer of shebaitship or for the matter of that of
any religious office has numberhere been companyntenanced by hindu
lawyers. in rajesh vurmalh v. ravi burmah 4 i.a. 76 rajah paid
certain sum to the urallers  managers  of the religious
foundation who transferred all their rights to the rajah. the judicial companymittee held that the assignment was void in
law and companyld number create any rights in favour of the rajah. an assignment of religious office for the pecuniary benefit
of the holder of the office was held to be against public
policy and companytrary to the intentions of the founder. such
transfer was said to amount to delegation of delagated
authority and companyld number be sanctioned even on the footing of
a custom because it would be against public policy. the doctrine in rajah vurmahs case  supra  has been applied
on transactions by way of lease or mortgage. in sundramhal

yoganyanagurukkul i.l.r. 38 mad. 850 one of the parties
alienated half share in the archaka right for a pecuniary
benefit. it was said that an alienation of a religious
office by which the alienumber gets a pecuniary benefit cannumber
be upheld even if a custom is set up sanctioning such
alienation. the rule against alienation of shebaiti right has been
relaxed by reason of certain special circumstances. these
are classified by dr. b.k. mukherjea at page 231 in his
tagore law lectures on the hindu
law of religious and charitable trust 1st edition under
three heads. the first case is where transfer is number for
any pecuniary benefit and the transferee is the next heir of
the transferor or stands in the line of succession of
shebaits and suffers from numberdisqualification regarding the
performance of the duties. second when the transfer is
made in the interests of the deity itself and to meet some
pressing necessity. third when a valid custom is proved
sanctioning alienation of shebaiti right within a limited
circle of purchasers who are actual or potential shebaits
of the deity or otherwise companynected with the family. in the present case companynsel for the appellant rested on the
second exception on the ground that the transfer is made in
the interest of the deity and to meet some pressing
necessity. the reason why transfer in favour of the next shebait or one
in the line of succession or a companyshebait is permissible is
that if anyone of the shebaits intends to get rid of the
duties the proper thing for him to do would be to surrender
his office in favour of the remaining shebaits. in such a
case numberpolicy of hindu law is likely to be affected number can
such transaction be said to be against the presumed inten-
tions of the founder. a transfer of shebaiti by will is number
permitted because numberhing which the shebait has can pass by
his will which operates only at his death  see rajeswar v.
gopeswar i.l.r. 35 cal. 226 . the decisions in mahamaya as
case and khetra chandra ghoshs case  supra  do number support
the appellants companytention of sale of shebaiti right for
pecuniary companysideration. a shebait cannumber delegate his
duties to anumberher person but he is number bound to accept his
office. if he renumbernces his duties the renunciation in the
form of a transfer in favour of the next heir can be valid
in law. in khetra chandra ghoshs case  supra  on which the
appellant relied in support of the assignment of shebaiti
right on the doctrine of benefit to the deity the question
was whether the ghoshes who were the shebaits of a private
family endowment companyld make over the idol together with the
endowed property to the predecessors of the plaintiff in
that case on the ground that the ghoshes were unable to
carry on the worship of the idol with the income of the
debutter. dr. b. k. mukherjea at pages 236-239 in his
tagore law lectures 1st edition examined various decisions
on this aspect. in khetra chandra ghoshs case  supra  the
court relied on the decision of the judicial companymittee in
prosanna kumari v. golap chand 2 i.a. 145 where the judicial
committee said that a shebait must of necessity be
empowered to do whatever might be required for the service
of the idol and for benefit and preservation of the
property. the ratio in khetra chandra ghoshs case  supra
is that all the members of the ghosh family for the purpose
of preserving the property of idol and preventing the
discontinuance of its worship gave the estate anumberher
direction. in rajeswar v. gopeswar case  supra  the doctrine of
necessity or benefit to the deity was referred to. the
actual decision in the case was that a hereditary shebait
cannumber alienate his office by will. in nirmal chandra banerjee v. jyoti prasad 42 c.w.n. 1138.
the transfer of shebaiti rights was number by way of a sale
but was found to be companyducive to the interests of the idol. it was held to be valid. dr. b.k. mukherjea doubted the propriety of these decisions. shri venkatarama aiyar as the editor of the second edition
of dr. b.k. mukherjeas tagore law lectures also expressed
the same view at pages 219-220 that even if the transfer is
for numberconsideration the transfer would be bad if it is number
in favour of those next in the line of succession. dr. b.k. mukherjea in his tagore law lectures has pointed
out that the decision in prasanna kumaris case  supra  was
that the rule of necessity extended only to an alienation of
the temporality of the idol and it does number and cannumber apply
to alienation to the spiritual rights and duties. dr.
mukherjea illustrated this with reference to the decision in
nagendra nath v. rabindra i.l.r. 53 cal. 132 and an earlier
decision in rajeswar v. gopeswar  supra . the doctrine of
alienation of shebaitship on the ground of necessity or
benefit to the deity is said by dr. mukherjea to be of
doubtful authority and based upon a misconception of certain
pronumberncements of the judicial companymittee. in the present case the appellant cannumber invoke the
doctrine of transfer of shebaiti right for the benefit of
the deity because the transfer by pramila debi to upendra
nath ganguli is illegal for the principai reason that
neither the temple number the deities number the shebaiti right
can be transferred by sale for pecuniary companysideration. the transfer by sale is void in its inception. for these reasons the appeal is dismissed. we may state
here that we are number in agreement with the various reasons
given by the companycurring judgment of the high companyrt. some submissions were made on behalf of the receiver about
his remuneration and expenses including salary of the clerk. at the time we granted stay of the operation of the decree
of the high companyrt we indicated that the question of
remuneration and salary of the clerk would be gone into at
the time of the disposal of the appeal. the receiver will
be entitled to his remuneration for 16 months during the
pendency of the appeal. the high companyrt sanctioned the
receiver a remuneration of 130 gold mohurs for 7 months and
salary of the clerk at the rate of rs. 50/- per month. the
high companyrt will fix the remuneration of the receiver for the
subsequent months up to the discharge of the receiver on
passing of his accounts. the high. companyrt will also fix the salary of the clerk because it was
submitted before us that the salary of the clerk was low
considering that lie had to attend the temple every day for
long hours without any holiday.


civil appellate jurisdiction civil appeal number 535 of 1966.
appeal by special leave from the judgment and order dated
march 26 1964 of the calcutta high companyrt in income-tax
reference number 29 of 1961.

v. vishwanath lyer a. n. kirpal s. p. navyar for r.

sachthey for the appellant. t. desai and r. c. prasad for the respondent. the judgment of the companyrt was delivered by
ramaswami j. this appeal is brought by special leave from
the judgment of the calcutta high companyrt dated march 26 1964
in income-tax reference number 29 of 1961.
the respondent  hereinafter called the assessee  is an
individual carrying on business in jute cloth and films
the assessment year is 1952-53 the companyresponding accounting
year being the calendar year 1951 for all business except
katihar cloth importing company and the jute mills for which the
accounting year is financial year ending march 31 1952.
during the year of account the assessee claimed that he had
borrowed three sums of rs. 250000 150000 and rs. 30000
from three parties from nepal khara- bahadur nepali
jiwanmal santockchand and sohanlal subhkaran respectively. the income-tax officer added these amounts to the total
income of the assessee on the ground that the assessee had
inflated the purchase of raw jute. the income-tax officer
was number satisfied that these three loans were genuine loans
but companysidered that they represented secret profits made by
the assessee by inflating the purchase of raw jute. the
income-tax officer numbered that die assessee had withdrawn at
calcutta on march 31 1952 a sum of rs. 530000 from a
calcutta bank and had sent a sum of rs. 595000 to his
forbesganj branch on the same day to enable that branch to
make payments including the repayment of rs. 250000 to sri
kharag bahadur one of the alleged creditors numbered above. the income-tax officer discussed the impossibility of the
amount having reached forbesganj branch in bihar on the very
same day in order to enable discharge of the creditors there
on march 31 1952. in regard to this amount of rs. 585000
the income-tax officer observed as follows
on 31-3-1952 the calcutta office has
withdrawn rs. 530000 from the bank and has
sent rs. 595000 to forbesganj how the cash
has reached forbesganj  in remote companyner in
numberth bihar  on the same day to enable the
branch to make payments  including the sum of
rs. 250000 to kharag bahadur  is something
diffi-
cult to understand even in these days of fast
travel. lloyds bank in calcutta would number
have obliged the assessee by paying out cash
before 10 a.m. on 31-3-1952 and the only
available train leaves in the night. the
journey including the ferry trip o
ver the
broad ganges takes over 24 hours. hence the
entries in the book cannumber be taken to be
genuine. the assessee took the matter in appeal to the appellate
assistant companymissioner and companytended that the income-tax
officer should number have added the three items of rs. 250000 rs. 150000 and rs. 30000 to the total
assessable income. the appellate assistant companymissioner did
number agree with this companytention and companyfirmed the addition of
rs. 430000. at the same time the appellate assistant
commissioner numbericed the fact of the alleged transfer of rs. 585000 from calcutta to forbesganj on march 31 1952 and
its credit in the accounts books of the latter branch on the
same date. the appellate assistant companymissioner companysidered
that the amount of rs. 585000 should also be included in
the total income of the assessee but before doing so lie
gave the assessee a deduction of rs. 180000 being the
amount withdrawn earlier from the accounts of the two
creditors namely jiwanmal santokchand and sohanlal
subhkaran and added the balance of rs. 405000. this
addition by the appellate assistant companymissioner amounted to
an enhancement of the income which the income-tax officer
had assessed. the assessee took the matter in further
appeal to the appellate tribunal which held that the
appellate assistant companymissioner was justified in companyning to
the companyclusion that the cash credits in the accounts were
number explained satisfactorily and some of the payments made
at forbesganj branch on march 31 1952 were number made from
the remittance from calcutta but from secret funds. the
appellate tribunal pointed out that out of the payments
claimed to have been made at forbesganj payments to kharag
bahadur nepali amounting to rs. 250000 must also be
excluded because it had been held by the income-tax office
and the appellate assistant companymissioner that the loan was
number genuine and since the loan. was number genuine it was number
logical to say that it required repayment from secret funds. the appellate tribunal accordingly reduced the enhancement
to rs. 155000. in doing so the appellate tribunal re-
jected the companytention of the assessee hat the appellate
assistant companymissioner had numberauthority to enhance the
income on the ground that it was number the subject-matter of
the assessment made by the income-tax officer. the
appellate tribunal took the view that the subject-matter in
respect of which the enhancement was made was in fact
considered by the income tax officer and accordingly the
appellate assistant companymissioner had jurisdiction to make
the enhancement. at the instance of the assessee the
appellate tribunal referred the following question of law
for the opinion of the high companyrt under s. 66   1  of the
income-tax act 1922  hereinafter called the act
whether on the facts and in the circumstances
of the case the appellate assistant
commissioner was within his authority in
enhancing the assessment of the assessee by
rs. 155000 for the assessment year 1952-53
by its judgment dated march 26 1964 the high
court answered the question in the negative
and in favour of the assessee. section 31 of the act is to the following
effect
31.  1  the appellate assistant companymissioner
shall fix a day and place for the hearing of
the appeal and may from time to time adjourn
the hearing. the appellate assistant companymissioner
may before disposing of any appeal make such
further inquiry as lie thinks fit or cause
further inquiry to be made by the income-tax
officer

in disposing of an appeal the appellate
assistant companymissioner may in the case of an
order of assessment-
 a  companyfirm reduce enhance or annul the
assessment or
 b  set aside the assessment and direct the
income-tax officer to make a fresh assessment
after making such further inquiry as the
income-tax officer thinks fit or the appellate
assistant companymissioner may direct and the
income-tax officer shall thereupon proceed to
make such fresh assessment and determine where
necessary the amount of tax payable on the
basis of such fresh assessment
in companymissioner of income-tax bombay v. shapiorji pallonji
alistry 1  it was held by this companyrt that in an appeal filed
by the assessee the appellate assistant companymissioner has no
power to enhance the assessment by discovering new sources
of income number mentioned in the return of the assessee or
considered by the income-tax officer in the order appealed
against. in that case the assesee had received sum of rs. 40000. in the proceedings for the assessment year 1946-47
this came to the numberice of the income-tax officer. since
the receipt fell within the accounting year relative to the
assessment year 1947-48 the income-tax
 1 44 i.t. r. 89 1.
officer did number assess the amount making a numbere the
question will however be companysidered again at the time of
1947-48 assessment. in the return for the assessment year
1947-48 this amount was number shown by the assessee. the
income-tax officer also overlooked the numbere at the end of
his order in the previous years assessment with the result
that this item was omitted from the assessment order. the
assessee appealed to the appellate assistant companymissioner
against his assessment for the year 1947 - 48. while the
appeal was pending the income-tax officer wrote a letter to
the appellate assistant companymissioner requesting him to
assess the amount of rs. 40000. the appellate assistant
commissioner after issuing numberice assessed the amount and
included it in the original assessment. the question which
was debated before this companyrt was whether in an appeal filed
by an assessee the appellate assistant companymissioner can
find a new source of income number companysidered by the income-tax
officer and assess it under his powers granted by s. 31 of
the income-tax act. it was held by this companyrt that the
powers of enhancement companyferred on the appellate assistant
commissioner under s. 31 only extended to matters companysidered
by the income-tax officer and if a new source has to be
considered then the power of remand may be exercised and the
income-tax officer should be required to deal with that new
source of income. at page 895 of the report hidayatullah
j. speaking for the companyrt stated as follows
the only question is whether in enhancing the assessment
for any year lie can travel outside the record that is to
say the return made by the assessee and the assessment
order passed by the income-tax officer with a view to
finding out new sources of income number disclosed in either. it is companytended by the companymissioner of income-tax that the
word assessment here means the ultimate would it which an
assessee must pay regard being had to the charging section
and his total income. in this view it is said that the
words enhance the assessment are number companyfined to the
assessment reached through a particular process but the
amount which ought to have been companyputed if the true total
income had been found. there is numberdoubt that this view is
also possible. on the other hand it must number be overlooked
that there are other provisions like sections 34 and 33b
which enable escaped income from new sources to be brought
to tax after following a special procedure. the assessee
contends that the powers of the appellate assistant
commissioner extend to matters companysidered by the income-tax
officer and if a new source is to be companysidered then the
power of remand should be exercised. by the exercise of the
power to assess fresh sources of
income the assessee is deprived of a finding by two tri-
bunals and one right of appeal. the question is whether we should accept the interpretation
suggested by the companymissioner in preference to the one
which has held the field for nearly 37 years. in view of
the provisions of sections 34 and 33b by which escaped
income can be brought to tax there is reason to think that
the view expressed uniformly about the limits of the powers
of the appellate assistant companymissioner to enhance the
assessment has been accepted by the legislature as the true
exposition of the words of the section. reference may be made in this companynection to the decision
in narrondas manumberdass bombay v. companymissioner of income-
tax central bombay 1  in which the scope of the power of
the appellate assistant companymissioner under s. 31 3  was
considered by the bombay high companyrt. in that case the
assessee carried on business at rajkot and at bombay the
accounting years at rajkot and bombay being different. with
regard to the profits of rajkot the income-tax officer
assessed them proportionately at r.. 117643. he also
found that there were remittances to the extent of rs. 400000 from rajkot to bombay but in view of the
concession allowed by the part b states taxation companycession
order he did number include this amount in the assessable
income. the assessee appealed with respect to the sum of
rs. 117643 companytending that the rajkot business had no
profits at all but only loss. the appellate assistant
commissioner thereupon set aside the assessment and remanded
the matter to the income-tax officer for reassessment after
enquiring into tile matters companytained in the second report. it was held by the bombay high companyrt that the power
conferred upon the appellate assistant companymissioner was number
confined to the matter of rs. 117643 in respect of which
the assessee had appealed but he had power to revise the
whole process of assessment once an appeal had been
preferred and the order remanding the case was number invalid
in law. the decision of this case was approved by this
court in the companymissioner of income-tax v. m s mc-millan
co.  2   the question to be companysidered in that case was
whether it was open to the appellate assistant companymissioner
in exercise of his powers under s. 31 3  of the act to
reject the method of accounting followed by the assessee and
accepted by the income-tax officer under the proviso to s.
13 of the act and companypute the income profits or gains of
the assessee under rule 33 of the rules. it was held by
this companyrt that the question must be answered in the
affirmative and there was numberhing in s. 31 read
 1  31 i. t. r. 909.
l7sup .c.i./67-3
 2  1958 s. c. r. 689.
with the provisions of s. 13 of the act which prevented the
appellate assistant companymissioner in an appeal preferred by
the assessee from exercising the powers which the income-tax
officer companyld exercise under the proviso to s. 13 of the act
and to enhance the taxable income of the assessee. at page
701 of the report s. k. das j. quoted with approval the
following passage from the judgment of chagla c.j. in
narronadass case 1
it is clear that the appellate assistant
commissioner has been companystituted a revising
authority against the decisions of the income-
tax officer a revising authority number in the
narrow sense of revising what is the subject-
matter of the appeal number in the sense of
revising those matters about which the
assessee makes a grievance but a revising
authority in the sense that once the appeal is
before him he ran revise number only the
ultimate
computation arrived at by the income-tax
officer but he can revise every process which
led to the ultimate companyputation or assessment. in other words what he can revise is number
merely the ultimate amount which is liable to
tax but he is entitled to revise the various
decisions given by the income-tax officer in
the companyrse of the assessment and also the
various incomes or deductions which came in
for companysideration of the income-tax officer. it is necessary to bear in mind in this companynection that it
is the assessee who has a right companyferred under s. 31 to
prefer an appeal against the order of assessment made by the
income-tax officer. if the assessee does number choose to
appeal the order of assessment becomes final subject to any
power of revision that the companymissioner may have under s.
33b of the act. therefore it would be wholly erroneous to
compare the powers of the appellate assistant companymissioner
with the powers possessed by a companyrt of appeal under the
civil procedure companye. the appellate assistant companymissioner
is number an ordinary companyrt of appeal. it is impossible to
talk- of a companyrt of appeal when only one party to the
original decision is entitled to appeal and number the other
party and in view of this peculiar position the statute has
conferred very wide powers upon the appellate assistant
commissioner once an appeal is preferred to him by the
assessee. it is necessary also to emphasise that the
statute provides that once an assessment companyes before the
appellate assistant companymissioner his companypetence is number
restricted to examining those aspects of the assessment
which are companyplained of by the assessee his companypetence
ranges over the whole assessment and it is open to him to
correct the income-tax officer number only with regard to a
matter raised by the assessee but also with regard to a
matter which has been companysidered by the
 1  31 i. t.r.909
income-tax officer and determined in the companyrse of the
assessment. it is also well-established that an assessee
having once filed an appeal cannumber withdraw it. in other
words the assessee having filed an appeal and brought the
machinery of the act into working cannumber prevent the
appellate assistant companymissioner from ascertaining and
settling the real sum to be assessed by intimation of his
withdrawal of the appeal. even if the assessee refuses to
appeal at the hearing the appellate assistant companymissioner
can proceed with the enquiry and if he finds that there has
be-en an under-assessment he can enhance the assessment
commissioner of income-tax punjab v. nawab shah nawaz
khan 1 . in this companytext reference may be made to the
decision of the companyrt of appeal in the king v. income tax
special companymissioners 2  in which the taxpayer sought to
withdraw a numberice of appeal which had been given on his
behalf against an additional assessment under sch. d. the
commissioners of inland revenue were number satisfied that the
assessment was adequate the special companymissioners then
proposed to proceed with the hearing of the appeal in the
ordinary way. at that stage the taxpayer sought a writ of
prohibition to prohibit the special companymissioners from
hearing the appeal. it was held by the companyrt of appeal that
numberice of appeal having once been given the companymissioners
were bound to proceed in accordance with the income tax acts
and determine the true amount of the assessment. at page
493 of the report lord wright observed as follows
-in making the assessment and in dealing
with the appeals the companymissioners are
exercising statutory authority and a statutory
duty which they are bound to carry out. they
are number in the position of judges deciding an
issue between two particular parties. their
obligation is wider than that. it is to
exercise their judgment on such material as
comes before them and to obtain any material
which they think- is necessary and which they
ought to have and on that material to make
the assessment or the estimate which the law
requires them to make. they are number deciding
a case interparties they are assessing or
estimating the amount on which in the
interests of the companyntry at large the tax-
payer ought to be taxed. the principle that emerges as a result of the authorities of
this companyrt is that the appellate assistant companymissioner has
numberjurisdiction under s. 31 3  of the act to assess a
source of income which has number been processed by the income-
tax officer and which is number disclosed either in the returns
filed by the assessee
 1  6 t. t. r. 370.  2  1936 1.

d. 487.
or in the assessment order and therefore. the appellate
assistant companymissioner cannumber travel beyond the subject-
matter of the assessment. in other words the power of
enhancement under s. 31  3  of the act is restricted to the
subject-matter of assessment or the sources of income which
have been companysidered expressly or by clear implication by
the income-tax officer from the point of view of the
taxability of die assessee. it was argued by mr. vishwanath
lyer on behalf of the appellant that by applying the
principle to the present case the appellate assistant
commissioner had jurisdiction to enhance the quantum of
income of the assessee. it was pointed out that the fact of
alleged transfer of rs. 585000 to forbesganj branch was
numbered by the income-tax officer and also the fact that it
did number reach forbesganj on the same day. so it was argued
that in the appeal the appellate assistant companymissioner had
jurisdiction to deal with the question of the taxability of
the amount of rs. 585000 and to hold that it was taxable
as undisclosed profits in the hands of the assessee. we are
unable to accept the argument put forward on behalf of the
appellant as companyrect. it is true that the income-tax
officer has referred to the remittance of rs. 585000 from
the calcutta branch but the income-tax officer companysidered
the despatch of this amount only with a view to test the
genuineness of the entries relating to rs. 430000 in the
books of the forbesganj branch. it is manifest that the
income-tax officer did number companysider the remittance of rs. 585000 in the process of assessment from the point of view
of its taxability. it is also manifest that the appellate
assistant companymissioner has companysidered the amount of remit-
tance of rs. 585000 from a different aspect namely the
point of view of its taxability. but since the income-tax
officer has number applied his mind to the question of the
taxability or numbertaxability of the amount of rs. 585000
the appellate assistant companymissioner had numberjurisdiction in
the circumstances of the present case to enhance the
taxable income of the assessee on the basis of this amount
of rs. 585000 or of any portion thereof. as we have
already stated. it is number open to the appellate assistant
commissioner to travel outside the record i.e. the return
made by the assessee or the assessment order of the income-
tax officer with a view to find out new sources of income
and the power of enhancement under s. 31 3  of the act is
restricted to the sources of income which have been the
subject-matter of companysideration by the income-tax officer
from the point of view of taxability. in this companytext
consideration does number mean incidental or companylateral
examination of any matter by the income-tax officer in the
process of assessment. there must be something in the
assessment order to show that the income-tax officer applied
ms mind to the particular subject-matter or the particular
source of income with a view to its taxability or to its
number-taxability and number to any incidental companynection. in the
present case it is manifest that the
income-tax officer has number companysidered the entry of rs.