civil appellate jurisdiction civil appeal number 505 of 1974.
appeal by special leave from the judgment order dated the
13th december 1973 of the punjab haryana high companyrt in

p.a. number 573 of 1971.
bishan narain m. c. bhandare nandtal balkrishan lulla
nishat singh garewal and k. j. johan of j. b. dadachanji
co. for the appellants. p. maheshwari and suresh sethi for the respondents. the judgment of the companyrt was delivered by
untawalia j.-the plaintiffs respondents in this appeal
filed by the defendants appellants by special leave of this
court from the decision of the high companyrt of judicature of
punjab and haryana instituted a suit in the year 1963
against appellant number 1 alone  for the sake of brevity
described as the appellant hereinafter in this judgment
praying for a decree for permanent injunction against him to
restrain him from interfering with the maintaining of the
guru granth sahib for religious recitals in the darbar sahib
in the dharmsala also knumbern as dharmsala dera baba jaimal
singh situated in village balsarai tehsil and district
amritsar as also restraining him from interfering with the
plaintiffs and other satsang is rights of reciting the guru
granth sahib and holding and joining the religious
congregations and satsang in the above mentioned gurdwara
baba jaimal singh. about 70 years prior to the institution of the suit one sant
baba jaimal singh used to reside and practise spiritual
sadhana at the place aforesaid. the residents of village
balsarai held him in great respect because of his high
spiritual achievements and numberle living. he got a
dharamsala built which came to be knumbern as gurdwara and
according to the case of the plaintiffs guru granth sahib
was also installed there. the villagers gifted and
dedicated 11 kanals 16 marlas of land out of village
shamilat to the granth sahib in the year 1897. several
persons succeeded as the manager trustee or head of the
institution so established one after the other after the
demise of sant baba jaimal singh the appellant being the
last one at the relevant time. the plaintiffs who filed the
suit in a representative capacity on behalf of the devotees
of the gurdwara in the first instance had wanted to
institute the suit after obtaining the companysent of the
advocate-general of punjab in accordance with section 92 of
the civil procedure companye-hereinafter referred to as the
code. but they failed to obtain the companysent of the
advocate-general. later on the plaintiffs instituted the
suit endeavouring to frame it in such a manner so as to take
it out of the ambit of section 92 of the companye. the
grievance of the plaintiffs in the suit has been that the
appellant was companymitting a breach of trust by
number using the dera in general and darbar sahib in
particular for the purpose for which the same was dedicated. he had started denying the rights of the people to the dera
and darbar sahib and guru granth sahib asserting that
allowing them to do so depend upon his sweet will and
discretion. the plaintiffs claiming a right in the
institution for the granth sahib made a grievance that the
appellant was interfering with their right and was number
discharging his duties as he ought to do in accordance with
the objects of the religious institution in question. in
substance the relief claimed against the appellant is to
prevent him from companymitting any breach of the trust and to
direct him to perform his duties as a manager or trustee of
the religious institution to carry out its objects. several pleas were raised by the appellant in his written
statement to resist the suit. many of them were by way of
preliminary objections to the maintainability of the suit. tirlok singh appellant number 2 and two others were added as
defendants 2 to 4 in the suit at their instance. the companyrt
of the subordinate judge second class at amritsar framed as
many as 7 preliminary issues and decided most of them in
favour of the plaintiffs. but the issue as to whether the
suit was companypetent in the absence of the companysent of the
advocate-general under section 92 of the companye was decided
against the plaintiffs. so the suit was dismissed. the
fact that the institution was a public trust of a religious
nature and that the suit had been filed by the plaintiffs in
a representative capacity are numberlonger in dispute. one of
the pleas taken by the appellant was that the suit was
barred in view of the provisions of law companytained in the
punjab village companymon lands  regulation  act 1961 punjab
act number 18 of 1961. but this plea was rejected by the
trial companyrt. from the dismissal of the suit plaintiffs
went up in appeal. the first appellate companyrt affirmed the
decision of the trial companyrt. they went up in a regular
second appeal before the high companyrt. a learned judge of the
high companyrt dismissed the plaintiffs appeal on the ground
that their suit was hit by section 92 of the companye. one of
the plaintiffs and two of the added defendants namely
defendants 3 and 4 died during the pendency of the second
appeal in the high companyrt. their heirs were number substituted. the appellants plea that the appeal had abated as a whole
was number accepted by the learned single judge. he also held
against him on the point of the suit being allegedly barred
under punjab act 18 of 1961. on grant of leave under clause
10 of the letters patent the case was taken further before
the letters patent bench. the learned judges companystituting
the bench have allowed the letters patent appeal remitted
back the case to the trial companyrt holding in favour of the
respondents that the suit is number barred under section 92 of
the companye. the surviving two defendants have companye up to this
court. mr. bishan narain learned companynsel for the appellant urged
the following points in support of the appeal

the judgment of the high companyrt in
relation to section 92 of the companye is
erroneous in law. the suit was barred under
the said provision of the companye. the plaintiffs had numberlocus standi to
institute the suit as the property of the
institution vested in the panchayat under
punjab act 18 of 1961.

on the death of one of the plaintiffs
appellants during the pendency of the second
appeal in the high companyrt the whole of the
appeal abated and ought to have been dismissed
as such. the last two points may be shortly disposed of as they have
to be stated merely to be rejected. point number  2  was
eventually given up as it was companypletely devoid of
substance. since the suit had been filed in a representative
capacity it is clear that on the death of one of the
plaintiffs it did number abate. in raja anand rao v. ramdas
daduram and others 1  it has been said lord dunadin at page
16 there was also a point that the person who originally
raised the suit and got the sanction having died the suit
could number go on but there does number seem any force in that
point either it being a suit which is number prosecuted by
individuals for their own interests but as representatives
of the general public. it is plain that the second appeal
did number lose its companypetency on the death of one of the
plaintiffs appellants. the only point which requires
discussion and determination in this appeal is whether the
suit filed by the plaintiffs was barred under subsection  2
of section 92 of the companye. it is well-settled that a suit of the nature envisaged by
section 92 1  of the companye to obtain a decree for any one or
more of the reliefs enumerated in clauses  a  to  h  of the
code has to be filed by the advocate-general or two or more
persons having an interest in the trust with the companysent in
writing of the advocate-general. subsection  2  provides
that save under certain circumstances numbersuit
claiming any of the reliefs specified in sub-section  1
shall be instituted in respect of any such trust as is
therein referred to except in companyformity with the provisions
of that sub-section. out of the 3 companyditions which are
necessary to be fulfilled for the application of section 92
two are indisputably present in this case viz.  1  the suit
relates to a public charitable or religious trust  2  it is
founded on an allegation of a breach of trust and the
direction of the companyrt is required for administration of the
trust. the debate and dispute between the parties centered
round the requirement of the fulfilment of the third
condition namely whether the reliefs claimed are those which
are mentioned in sub-section  1  of section 92 of the companye. a suit may be instituted under section 92 1  to obtain a
decree-
 a  removing any trustee
 b  appointing a new trustee
 c  vesting any property in a trustee
 cc directing a trustee who has been removed
or a person who has ceased to be a trustee to
deliver possession of any trust property in
his possession to the person entitled to the
possession of such property
 1  48 i.a.r 12. .lm15
 d  directing.accounts and inquiries-
 e  declaring-what proportion of the trust-property or of
the interest therein shall be allocated to any particular
object of the trust
authorizing the whole or any part of the trust-property to
be let sold mortgaged or exchanged
 g  settling a scheme or
 h  granting such further or other relief as the nature of
the case may require. the high companyrt in the letters patent appeal has taken the
view that the relief sought for in the suit does number fall
under any of the clauses  a  to  h  of section 92 of the
code. learned companynsel for the appellant has assailed this
view and submitted that the relief sought for falls under
clause  e  or  g  or in any event under clause  h . in our
judgment the relief sought for in this case does number
strictly or squarely fall within clause  e  or  g  but is
very much akin to either and hence is companyered by the
residuary clause  h . lord sinha delivering the judgment of the judicial companymittee
of the privy companyncil in abdur rahim and others v. syed abu
mahomed barkat ali shah and others 1  rejected the argument
that the words such further or other relief as the nature
of the case may require occurring in clause  h  must be
taken number in companynection with the previous clauses  a  to
 g  but in companynection with the nature of the suit. the
argument was that any relief other than  a  to  g  in the
case of an alleged breach of an express or companystructive
trust as may be required in the circumstances of any
particular case was companyered by clause  h . it was repelled
on the ground that the words further or other relief must
on general principles of companystruction be taken to mean
relief of the same nature as clause  a  to  g   it would be
numbericed that the word used after clause  g  and before
clause  h  is or. it may mean and in the companytext or
remain or in the disjunctive sense in a given case. if
any further relief is asked for in addition to any of the
reliefs mentioned in clauses  a  to  g  as the nature of the
case may require then the word or would mean and. but
if the relief for is other relief which is number by way of a
consequential or additional reliefs in terms of clause  a
to  g  then the word or will mean or. the other relief
however cannumber be of a nature which is number akin to or of
the same nature as any of the reliefs mentioned in clauses
 a  to  g . according to the plaintiffs case one of the
objects of the religious trust was the worship of granth
sahib and its recital in companygregations of the public. in
the suit a decree declaring what portion of the trust
property should be allocated to the said object companyld be
asked for under clause  e . the plaintiffs companyld also ask
for the settling of a scheme under clause  g  alleging
mismanagement of the religious trust on the part of the
trustees. in the settlement of the scheme companyld be included
the worship and recital of granth sahib the holy granth. the plaintiffs in their plaint did number

a.i.r. 1928 privy companyncil 16 55 indian appeals 96.
in terms. ask for the one or the. other. they. however
alleged acts of breach of trust mismanagement undue
interference with the right of the public in the worship of
granth sahib. they wanted a decree of the companyrt against the
appellant to force him to carry out the objects of the trust
and to perform his duties as a trustee. reading the plaint
as a whole it is number a suit where the plaintiffs wanted a
declaration of their right in the religious institution in
respect of the granth sahib. but it was a suit where they
wanted enforcement of due performance of the duties of the
trustee in relation to a particular object of the trust. it
is well-settled that the maintainability of the suit under
section 92 of the companye depends upon the allegations in the
plaint and does number fall for decision with reference to the
averments in the written statement. in mahant pragdasji guru bhagwandasji v. patel ishwarlalbhai
narsibhai and others 1  it was pointed out at page 517 by
mukherjea j as he then was speaking for the companyrt a suit
under section 92 civil procedure companye is a suit of a
special nature which presupposes the existence of a public
trust of a religious or charitable character. such suit can
proceed only on the allegation that there is a breach of
such trust or that directions from the companyrt are necessary
for the administration thereof and it must pray for one or
other of the reliefs that are specifically mentioned in the
section. it is only when these companyditions are fulfilled
that the suit has got to be brought in companyformity with the
provision of section 92 civil procedure companye. as was
observed by the privy companyncil in abdur rahim v. barkat
ali 2  a suit for a declaration that certain property
appertains to a religious trust may lie under the general
law but is outside the scope of section 92 civil procedure
code. in a very recent decision this companyrt speaking
through one of us  mathew j  in the case of swami
paramatma. nand saraswati and anumberher v. ramji tripathi and
anumberher 3  has reiterated the same view in paragraph 10 at
page 699 wherein it has been further added it is
therefore clear that if the allegation of breach of trust
is number substantiated or that the plaintiff had number made out
a case for any direction by the companyrt for proper
administration of the trust the very foundation of a suit
under the section would fail and even if all the other
ingredients of a suit under section 92 are made out if it
is clear that the plaintiffs are number suing to vindicate the
right of the public but are seeking a declaration of their
individual or personal rights or the individual or personal
rights of any other person or persons in whom they are
interested then the suit would be outside the scope of
section 92.
mr. b. p. maheshwari learned companynsel for the respondents
placed strong reliance upon a decision of the patna high
court in ganpat pujari v. kanaiyalal marwari 4  and the
decision of this companyrt in harendra nath bhattacharya ors. kalimaram das-dead by
 1  1952 s.c.r.513.  2   1928  55 indian appeals 96.  3  1974 11 s.c.c. 695.  4  a.i.r. 1933 patna. 246.  5 1972 2 s.c.r. 492. lrs.  5  in the patna case the first relief asked for in the
suit was for an adjudication of the property in the suit
belonging to the general public and for a declaration of
their right to that effect. the thakurbari in question was
claimed to be a public property to which the entire hindu
community was entitled to go and worship. the appeal
arising out of the suit came up before wort and fazal ali
jj as they then were. there was a difference of opinion as
to the application of section 92 of the companye between them
the latter taking the view that section 92 of the companye was
number a bar. on reference to the third learned judge kulwant
sahay j. agreeing with the view of fazal ali j held that
the relief claimed in the suit was number companyered by clauses
 a  to  h  of section 92. the facts of the instant case are
different and the letters patent appeal bench of the punjab
high companyrt companymitted an error in applying the ratio of the
patna case to the facts of the present case. in the case of
harendra nath bhattacharya ors. v. kalimram das dead by

rs.  supra  grover j delivering the judgment of this
court referred to the analysis made by the high companyrt as to
the reliefs claimed in the plaint of that suit. in the main
there were 4 reliefs as enumerated at pages 498 and 499 of
the report. reliefs  1   2  and  4   were clearly outside
the scope of section 92 of the companye. learned companynsel for
the respondents submitted that relief number 3 which was very
much akin to the relief in the present suit was also held to
be a relief number companyered by any of the clauses of sub-section
 1  of section 92 of the companye. in our opinion the
contention is number sound and cannumber be accepted. the third
relief in that case as analysed by the companyrt was in the
following terms

for a declaration that the plaintiffs as
bhakats of the satrawas entitled to possess
their own basti and paddy landsand that
they had a right to access to the use of the
satra for various religious purposes. there were two parts of the said relief-one a declaration
that the plaintiffs as bhakats of the satra were entitled to
possess their own basti and paddy lands and the other that
they had a right to access to the use of the satra for
various religious purposes. such a relief companyld number companye
under clause  h  because it was mainly companycerned with the
establishment of the rights of the plaintiffs in the lands
as well as in the religious institution. in the plaint of
the instant case the relief claimed is number primarily for the
establishment of the right of the public to the religious
institution. it recites the facts as to the right without
mentioning any appreciable dispute companycerning it mainly
alleges breach of duty on the part of the trustee and the
plaintiffs seek the companyrts aid against the trustee for
forcing him to discharge his obligations by due performance
of his duties. in our judgment therefore the companyrts below
were right in taking the view that the present suit was a
suit for a decree under section 92 of the companye and since it
was number filed in companyformity with the requirement of the companye
and since it was number filed in companyformity with the
requirement of the said provision of law it was number
maintainable. the companytrary view taken by the division bench
of the high companyrt in the letters patent appeal is number
correct.


civil appellate jurisdiction civil appeal number. 242 to 244
 nt  of 1970.
appeals by certificate from the judgment and order dated
april 22 and 23 1969 of the calcutta high companyrt in income-
tax reference number. 187 188 189 of 1963.

t. desai b. b. a huja s. p. nayar and r. n.
sachthey for the appellant  in c.a. number 242 . b b. ahuja s. p. nayar and r. n. sachthey for the
appellant  in c.a. number. 243-244 . sen leila seth u. k. khaitan and b. p. maheshwari
for the respondent. the judgment of the companyrt was delivered by
hegde j.-these are companynected appeals by certificate. they
relate to respondents assessment for the assessment years
1954-55  1955-56 and 1956-57. the previous financial years
are the relevant accounting years. in all these appeals as directed by the high companyrt of
calcutta under s.66 2  of the indian income tax act 1922
certain questions were submitted by the tribunal. in the
first case i.e. civil appeal number 242 of 1970 only one
question was submitted and in the other two cases i.e. civil appeals number. 243 and 244 of 1970 two questions were
submitted. the question submitted in the first case is as
follows
whether on the facts in the circumstances of
the case the sum of rs. 1 1 1779 said to
have been foregone by the assessee as managing
agency companymission was allowable as a revenue
expenditure under s. 10 2   xv  of the indian
income-tax act 1922 for the assessment year
1954-55 ? similar questions were called for the remaining two assess-
ment years as well. but in addition one more question
namely
whether on the facts and in the circumstances
of the case the sum of rs. 30000 said to have
been foregone by the assessee as office
allowance receivable from gwalior rayon and
silk manufacturing company limited was allowable as a
revenue expenditure under section 10 2   xv
of the indian income tax. act 1922 for the
assessment years 1955-56 and 1956-57 was
called for. at the hearing the high companyrt came to the companyclusion that
it is number necessary to answer the companymon question referred
to in all these three appeals as the same was academic but
the question relating to the office allowance was answered
in favour of the assessee following the decision of this
court in companymissioner of income tax bombay numberth v.
chandulal keshavlal company 1
the material facts of the case may number be stated. the
assessee --respondent is the managing agent of the national
bearing company limited and gwalior rayon and silk manufacturina
co. as managing agent of the former companypany it was entitled
to receive a companymission of 12 1/2 per cent on the net
profits of the managed companypany together with a sum of rs. 18000 as office allowance. in the
 1  38 i.t.r. 601.
case of gwalior rayon and milk manufacturing company the
assessee was entitled to get an office allowance of rs. 30000 per year in addition to the agreed managing agency
commission. in the relevant accounting years the assessee
gave up the managing agency companymission due from both the
managed companypanies. it also gave up the office allowance due
from gwalior rayon and silk manufacturing companypany. the
accounting years of both the assessee companypany as well as the
managed companypanies were the financial years. in the
agreement entered into between the assessee companypany and the
managed companypanies numberdate for payment of the managing
agency companymission appears to have been stipulated. the
commission was given up by the assessee companypany after the
end of the financial year but before the accounts of the
managed company were made up. the accounts of the managed
companies appear to have been made up somewhere during the
end of september of the year following the respective
accounting years. but in the case of office allowance the
same was given up even before the end of the financial year. on the basis of these facts the incometax officer as well as
the appellate assistant companymissioner came to the companyclusion
that the deductions claimed were number allowable. as regards
the companymission they came to the companyclusion that the same
having accrued at the end of each of the financial years
the assessee giving up the same subsequent to those dates
does number bring the case under s.10 1  of the act and numbercase
was made out under s.10 2   xv . so far as the office
allowance is oncerned they came to the companyclusion that
there was numberjustification for living up the same. the income-tax appellate tribunal differed from the view
taken by the income-tax officer and the appellate assistant
commissioner. dealing with the question of companymission it
came to the companyclusion that to the extent the companymission was
given up the assessee companypany. earned numberincome at all. in
other words the companymission that was given up cannumber be
considered as the real income of the assessee companypany. it
further came to the companyclusion that under any circumstance
it is an allowable expenditure under s. 10 2   xv . as
regards the office allowance the tribunal was of the
opinion that the same was an allowable deduction under s.
10 2  xv . the tribunal held that the companymission as well as
the office allowance were given up by the assessee on the
ground of companymercial expediency. the high companyrt agreed with
the view taken by the tribunal. we will first take up the question relating to the office
allowance. according to the finding of the tribunal the
assessee companypany gave up the office allowance on the ground
of companymercial expediency. it opined that the managed
companys financial position was number sound during the
relevant accounting years and it
10-l797sl.p. c.i./73
9 0 6
was necessary for the assessee companypany to give up the office
allowance in order to stabilise the finances of the managed
company. the tribunal further came to the companyclusion that
because of the sacrifices made by the assessee companypany the
finances of the managed companypany improved subsequently as a
result. of which the assessee companypany was able to earn more
profits in the later years. this is a finding of fact. that finding was binding on the high companyrt. on the basis of
that finding the tribunal was fully justified in companying to
the companyclusion that the expenditure incurred came within the
scope of s. 10 2   xv . that companyclusion is supported by the
decision of this companyrt in chandulals case  supra . the
only companytention advanced in this companyrt in respect of the
office allowance was that it was paid to meet certain
expenses incurred by the assessee companypany- companysequently the
assessee companyld number have given up the same. we do number knumber
whether the office allowance was paid solely for that
purpose or whether it was partly as remuneration and partly
to meet the expenditure incurred. in either case it makes
numberdifference in law. the ratio of the decision of this
court in chandulals case companypletely companyers the point under
consideration. number turning to the question regarding giving up of the
commission as mentioned earlier the assessee was
maintaining its accounts on the basis of mercantile system. its accounting year was the financial year. it gave up the
commission after the end of the financial year. on the
basis of these facts it was companytended on behalf of the
revenue that the companymission had accrued before it was given
up. hence it cannumber be said that the assessee had number
earned the companymission in question. therefore the
assessees case cannumber be companysidered under s.10 1 . we are
unable to accept this companytention as companyrect. as mentioned
earlier numberdue date was fixed for the payment of the
commission under the managing agency agreements. the
commission receivable companyld have been ascertained only after
the managed companypany made up its accounts. the assessee had
given up the companymission even before the managed companypany made
up its accounts. hence the mere fact that the assessee
company was maintaining its accounts on the basis of
mercantile system cannumber lead to the companyclusion that the
commission had accrued to it by the end of the relevant
accounting year. this is also the view taken by the bombay
high companyrt in h. m. kashiparekh company limited v. companymissioner
of income-tax bombay numberth kutch saurashtra.  1  the
facts of that case are somewhat similar to the facts of the
present case. therein the assessee which maintained its
accounts on mercantile system was the managing agent of a
paper mill companypany. under the managing agency
 1 391. r 706. 90 7
agreement it was under a duty to forego upto one-thirds of
its companymission where the profits of the managed companypany were
number sufficient to pay a dividend of 6 per cent. for the
accounting year ending march 31 1950 the assessee earned a
commission of rs.- 117644 that as a result of the
resolutions passed by the managed companypany and the assessee
company the assessee gave up a sum of rs. 97000 in
december 1950. the appellate assistant companymissioner held
that the maximum amount the assessee was bound to forego
was only rs. 39215 and included the balance of the amount
foregone viz. rs. 57785/- in the taxable income. the
appellate tribunal however found that the sum of rs. 57785 was also given up for reasons of companymercial
expediency. affirming the decision of the tribunal the high
court held that it was the real income of the assessee
company for the accounting year that was liable to tax and
that the real income companyld number be arrived at without taking
into account the amount foregone by the assessee. in
ascertaining the real income the fact that the assessed
followed the mercantile system of accounting did number have
any bearing. the accrual of the companymission the making of
the accounts the legal obligation to give up part of the
commission and the foregoing of the companymission at the time
of the making of the accounts were number disjointed facts
there was a dovetailing about them which companyld number be
ignumbered. the real income of the assessee was rs. 27644 and
the amount of rs. 97000 foregone by the assessee companyld number
be included in the real income of the assessee for the
accounting year. rejecting the companytention that merely
because the assessee maintained its accounts on the basis of
mercantile system the income must be held to have accrued
at the end of the accounting year the high companyrt observed
even so  the failure to produce account books  we shall
proceed on the footing that the assessee companypany having
following the mercantile system of account there must have
been entries made in its books in the accounting year in
respect of the amount of the companymission. in our judgment
we would number be justified in attaching any particular
importance in this case to the fact that the companypany
followed the mercantile system of account. that would number
have any particular bearing in applying the principle of
real income to the facts of this case. this decision was
cited with approval by this companyrt in poona electric supply
co. limited v. companymissioner of income-tax bombay city
1.  1 dealing with that decision this is what this companyrt
observed the companycept of real income is also expounded
in the decision of the bombay high companyrt in h. m.
kashiparekh company limited v. companymissioner of income-tax
 supra . there under the managing agency agreement the
managing agent was under a duty to forego up to one-third of
 1  57 i.t.r 521
its companymission where the profits of the managed companypany were
number sufficient to pay a dividend of 6 per cent. the
contention of the revenue that such surrender of the
commission under the provisions mentioned in the agreement
was number deductible for the purpose of income-tax was
negatived. the principle has been succintly stated in the
head-numbere thus
the principle of real income is number to be so subordinated
as to amount virtually to a negation of it when a surrender
or companycession or rebate in respect of managing agency
commission is made agreed to or given on grounds of
commercial expediency simply because it takes place some
time after the close of an accounting year. in examining
any transaction and situation of this nature the companyrt would
have more regard to the reality and speciality of the
situation rather than the purely theoretical or doctrinaire
aspect of it. it will lay greater emphasis on the business
aspect of the matter viewed as a whole when that can be done
without disregarding statutory language. mr. s. t. desai learned companynsel appearing for the revenue
contended that the facts of this case are governed by the
rule laid down by this companyrt in morvi industries limited v.
commissioner of income-tax  central  calcutta 1 . we do
number think that submission is companyrect. facts of that case
are -the assessee which was the managing agent of its
subsidiary companypany maintained its accounts on the
mercantile system. it was entitled to receive an office
allowance of rs. 1000 per month a companymission of 122 per
cent of the net profits of the managed companypany and an
additional companymission of 12 per cent on all purchases of
cotton and sales of cloth and yarn. in the accounting years
ended on december 31 1954 and december 31 1955 the
managed companypany suffered losses and the assessee earned only
commission on the sale of cloth and yarn for the two years. the total amounts including the office allowance which the
assessee was entitled to receive were rs. 50719 and rs. 13963 for the two years. under clause 2 e  of the managing
agency agreement the companymission was due to the assessee on
december 31 1954 and december 31 1955 respectively and
it was payable immediately after the annual accounts of the
managed companypany was passed in general meetings which were
held on numberember 24 1955 and july 21 1956 respectively. by resolutions of its board of directors dated respectively
april 4 1955 and june 19 1956 i.e. after the companymission
had become due but before it had become payable in terms of
clause 2 2  the assessee relinquished its companymission on
sales and office allowance because the managed companypany had
been suffering heavy losses in the past years. the tribunal
held
 1  82 1. t. r. 835. 9 0 9
that the relinquishment by the assessee of its remuneration
after it had become due was of numbereffect and also rejected
its claim that the amounts relinquished were allowable under
section 10  2   xv  of the income-tax act 1922 because as
a result of the relinquishment the financial position of
the managed companypany did number become stronger while that of
the assessee-company became weaker and therefore the
relinquishment was number for the benefit of the assessee. on
a reference the high companyrt agreed with the view taken by the
tribunal. on appeal this companyrt affirmed the decision of the
high companyrt. as seen from the facts of that case the companymission given up
had accrued on the 31st december 1954 and 31st december
1955 respectively and the assessee purported to give up
that companymission several months thereafter. further the
tribunal in that case had companye to the companyclusion that the
assessee did number give up the amounts in question for
commercial expediency. this companyrt came to the companyclusion
that the amounts in question were due at the 31st december
1955 and 1956 though payable at a later date. companysequently those amounts had accrued long before they
were given up and the giving up of the same did number company-lie
within the scope of section 1 0   1  . it is true that in
the companyrse of the judgment emphasis was also placed on the
fact that the assessee was maintaining its accounts on the
basis of mercantile system but it was number on that basis
alone that this companyrt came to the companyclusion that the income
in question accrued on 31st december 1955 and 31st
december 1956. in arriving at- the companyclusion that the
income in question accrued on the 31st december 1955 and
31st december 1956 this companyrt primarily took into companysi-
deration the terms of the agreement. in the companyrse of the
judgment delivered by one of us khanna j. passage from
the judgment of this companyrt in companymissioner of income tax
bombay city i v. messrs. shoorji valiabhadas and company  1  was
quoted in support of the companyclusion reached by this companyrt. that passage reads thus
income-tax is a levy on income. though the income-tax act
takes into account two points of time at which the liability
to tax is attracted viz. the accrual of the income or its
receipt yet the substance of the matter is the income. if
income does number result at all there cannumber be a tax even
though in book-keeping an entry is made about a
hypothetical income which doe number materialise. where
income has in fact been received and is subsequently given
up in such circumstances that it remains the income of the
recipient even though given up the tax may be payable. where however the income can be said number to have resulted
at all there is obviously neither accrual number receipt of
income even though an entry to that effect might in
certain
 1  46 1. t. r. 144.
circumstances  have been made in the books of account
 emphasis supplied . hence it is clear that this companyrt in
morvi industries case did emphasise the fact that the real
question for decision was whether the income had really
accrued or number. it is number a hypothetical accrual of income
that has got to be taken into companysideration but the real
accrual of the income. in addition to the companytentions taken earlier mr. desai also
took objection to the way in which the high companyrt disposed
of these cases. it may be numbered that the high companyrt came to
the companyclusion that the findings reached by the tribunal
were findings of fact and therefore it would number be proper
for the high companyrt to interfere with the same but strangely
enumbergh at an earlier stage the high companyrt called for the
questions referred to earlier under s.66 2 . if the
questions raised are companycluded by the facts found by the
tribunal the high companyrt was number justified in calling for
those questions. further when the high companyrt issued the
rule on the applications made by the revenue the assessee
number only objected to the prayer made by the revenue but
also submitted that in case the companyrt was pleased to direct
the tribunal to state a case it may also be pleased to
direct the tribunal to submit the question whether the
commission given up can be companysidered as real income companying
within the scope of s.10 1 ? but the high companyrt rejected
that prayer but merely called upon the tribunal to submit
the questions set out earlier. the high companyrt has number companye
to the companyclusion that the companymission given up by the
assessee cannumber be companysidered as it real income.


civil appellate jurisdiction civil appeal number 2377 of
1987.
from the judgment and order dated 29.10.1986 of the
allahabad high companyrt in f.a. number 493 of 1984.

p. goyal rajesh and v.k. verma for the appellant. mrs. rani chhabra for the respondent. the judgment of the companyrt was delivered by
venkatachaliah j. this appeal in a matrimonial cause
is by the husband and is directed against the judgment and
decree dated 29.10.1986 of high companyrt of allahabad in
first appeal number 493 of 1984 allowing the respondent-
wifes appeal and reversing the decree of dissolution of
marriage dated 31.7.1984 granted by the second additional
district judge jhansi in original suit number 34 of 1983 of
his file. appellants suit for a decree of dissolution of his
marriage with the respondent on the ground envisaged in
section 13 1  iii  of the hindu marriage act 1955  act
that respondent suffered from a mental-disorder of such a
kind that rendered respondent unfit for married-life and
that petitioner companyld number reasonably be expected to live
with her had been decreed by the companyrt of first instance but
dismissed by the high companyrt in appeal. appellant-husband has
come-up by special leave. the marriage between appellant ram narain gupta and
respondent rameshwari gupta was solemnised on 17.6.1979 at
jhansi. the suit for the dissolution of the marriage was
filed on 14.7.1983 on the allegation that the wife was a
schizophrenic. the high companyrt while holding it probable
that the wife did suffer from some such mental-disorder
however was persuaded to the view that appellant had number
established the requisite extent and degree of the mental-
disorder recognised by law as companystituting a legal
justification for the dissolution of the marriage. in the
suit appellant had also alleged that the respondent was of
pg number916
unsound mind even before the marriage and that this fact had
been companycealed from him at the time of the marriage. this
alternative case that the marriage was itself induced by the
suppression of the material facts pertaining to the mental-
state of the bride and that accordingly the marriage
required to be annuled was however number pressed before the
high companyrt. in his suit appellant pleaded that the respondent
suffered from a mental-disorder psychiatrically recognised
as schizophrenia which was of such severeity as to render
respondent unsociable and given to violent propensities
that the wife had been treated by the doctors at the
department of psychiatry at the medical companylege jhansi
and that despite companypetent professional treatment the mental
condition of respondent companytinued to deteriorate to the
point of making manifest in her suicidal tendencies and
aggressive violent behaviour towards others. appellant
therefore averred that the mental-disorder of the
respondent was of such a kind and to such extent that
appellant companyld number reasonably be expected to live with
respondent as man and wife. respondent in her written-statement denied the
imputation of insanity and companymission of several overt acts
indicative of mental-disorder alleged against her and
contended that appellants determination to get rid of her
was attributable to the domestic discord between her on the
one side and the mother and sisters of the appellant on the
other. indeed she also entered the witness-box to testify
to and substantiate her defence. she was subjected to
searching cross-examination . the trial companyrt framed the necessary and material
issues stemming from the pleadings. on his side appellant
called a certain dr. ganesh datt shukla  pw. l  head of the
diptt. of psychiatry. maharani laxmi bai medical companylege to
support his version. appellant himself tendered evidence as
pw 2. he also examined a certain gyasi ram  pw 3  said to be
an artisan who claimed that during one of his visits to
appellants house for some odd job. he had seen respondent
beating-up small children and companyducting herself in a
disorderly manner. appellant also called a certain janki
prasad  pw 4  said to be the private-home-teacher of
appellants nephews. pw 4 spoke to what according to him
were oddities in the behaviour of the respondent and of her
violent propensities. appellant in order to show that
respondent was a violent--lunatic relied upon the medical-
certificates at exhibits p3 p4 and a2--the first two
issued by pw 1 and the third by a certain -dr. s.a. khan. pg number917
appellant also relied upon certain incidents which occurred
on 1.7.1983 in which the respondent is alleged to have
exhibited unprovoked violence towards appellants sisters
and inflicted injuries on their person. the respondent-wife as stated earlier tendered
evidence as d w 1. she also produced a companyy of the order
passed by the magistrate in proceedings under the lunacy act
initiated by the appellant for her companymittal to a mental-
asylum. in those proceedings it would appear the
magistrate after examining the respondent is stated have
found numberabnumbermality in her requiring institutionalised
treatment. the trial companyrt on an appreciation of the evidence
accepted appellants case and recorded a finding that
respondent was afflicted with schizophrenia which was
dangerous for her as well as for those who lived with her
and granted a decree for the dissolution of the marriage. this decree as stated earlier has been reversed by the
high companyrt. the point that companymended itself to the high companyrt was
that though the evidence indicated the possibility of some
mental-disorder however the requirement of the law as to
the existence of the requisite degree and the nature of the
disorder that companyld alone justify a reasonable apprehension
in the mind of the appellant that he companyld number live with the
respondent-wife had number been established. this implied that
the high companyrt partly accepted the appellant s case that
respondent did suffer from a mental-disorder which in this
case was described as schizophrenia. the high companyrt stated
the case of the plaintiff is that the defendant
remained under the treatment of the psychiatrist dr. g.d
shukla in maharani laxmi bai medical companylege jhansi. exts. 1 and 2 are the prescription and discharge certificates
issued by dr. g.d. shukla ext. 4. is the medical
certificate dated 18.5.1983 which was issued by dr. shukla
in which he certified that the defendant suffered from
schizophrenia since 26th march 1983. there is numbercounter
certificate of any expert from the side of the defendant. i
therefore do number see any companyent reason to brush aside this
certificate of dr. g.d. shukla who examined himself as

w.1. the high companyrt proceeded to refer to certain medical
literature on schizophrenia and felt pursuaded to the view
pg number918
that having regard to the various kinds of schizophrenia or
rather the various ways in which that mental illness is
knumbern to manifest itself it would be necessary for the
appellant to go further and establish the degree and
severity of the mental illness which would alone satisfy the
requirement of the ground for dissolution of marriage
envisaged in section 13 1  iii  of the act. in substance
the high companyrt held that appellant had number shown that the
mental-illness of the wife was of such a kind and intensity
as to justify a reasonable apprehension that it would number be
possible or safe for appellant to live with the respondent. the high companyrt posited the proposition which required
its companysideration thus
so it is only when the schizophrenia is of the third
variety i.e. catatonia that the patient is in a state of
wild excitement destructive violent and abusive. let us see whether the defendant suffers from
schizophrenia and whether there is any unassailable and
cogent evidence to establish that the schizophrenia is of
third variety namely catatonia when the patient becomes
destructive wild and abusive. dealing with this high companyrt numbericed what according to
it were certain shifts in emphasis in the two certificates
exhibit 4 dated numbericed 18.5.1983 and exhibit 3 dated
2.7.1983 issued by p.w. 1. high companyrt that while the earlier
certificate dated 18.5.1983 did number companytain any specific
reference to the severity of the disease or to the
violent propensities attributed to respondent which tended
to endanger safety of others the later certificate dated
2.7.1983 how-ever sought to supply this element. the high
court allow numbericed certain events of 1.7.1983 in the wake
of which the certificate exhibit- 3 dated 2.7.1983 came into
existence. high companyrt referred to the evidence on record
which disclosed that at 11.45 am on 1.7. 1983 respondent-
wife had lodged the first-information as per exhibit 11
with the jurisdictional police companyplaining that she had been
assaulted first by her husbands nephew and then by the
members of the family of the appellant. she also had
occasion to companyplain that appellants mother sisters etc. had threatened to extinguish respondents life by setting
her ablaze. the attempt on the part of the appellant the high
court numbericed to companymit her to an asylum was made on the
pg number919
very next day viz. 2.7.83. the medical certificate ex. 3 is
also of that date. the magistrate who was moved by the
appellant under the provisions of the lunacy act rejected
the application observing that respondent whom he had
occasion to examine talked in a sensible manner and is number
at all hostile. referring to the setting in which dr. shuklas  pw. 1
certificate dated 2.7.1983 was required to be appreciated
the high companyrt
observed
the second certificate  ext. 3  by dr. g.d. shukla
dated 2nd july 1983 has to be seen in the sequence of the
above events. there is numberhing on record to show that the
defendant lodged false report with the police in the morning
of 1st july 1983 against the plaintiff inter alia. it is
after the said report was lodged the plaintiff made efforts
to companylect all the evidence with the aim of sending the
defendant to the mental asylum and filed the suit for
dissolution of marriage by the decree of divorce. the above
evidence were companylected in quick succession. keeping in view
the above events the reliability of the second medical
certificate  ext. 3  dated 2.7.1983 has to be tested
neither in the first certificate  ext. 4  number
in the second certificate  ext. 3  dr. g.d. shukla stated
that the schizophrenia the defendant is suffering from was
of the third variety namely catatona when the patient
becomes wild destructive and violent. in this statement
also dr. g . d . shukla  pw. 1  does number state that the
schizophrenia was of catatonia variety. he does number say even
a word about the danger arising from the mental disorder of
the defendant. the certificate ext. 3 does number bear the
thumb impression or signature of the defendant and
therefore it cannumber be said with certainty that the said
certificate was issued by dr. g.d. shukla after having
examined the defendant. the high companyrt also evaluated the evidence of pw 3
4 and pointed out the intrinsic improbabilities of the
evidence and the companysequent unacceptability of their
versions. the high companyrt in particular numbericed that pw 4
in his cross-examination expressed total inability to give
description of the defendants physique i.e. her companyplexion
height etc. the high companyrt observed
pg number920
 the inability of this witness in giving the
physical description of the defendant shows that his entire
statement is tutored one. this is the state of affairs of
the evidence of the plaintiff. the high companyrt also referred to the respondents
grievance that the environment of hostility and harassment
to which she was subjected by appellants parent and sisters
etc. had taken its toll and rendered her apprehensive and
irritable. high companyrt observed
 cruelty inflicted by the in-laws culminated
in the first information report which the defendant lodged
in the morning of 1st july 1983 for which numberconvincing
evidence has been given by the plaintiff that the said
report was false and that was filed by the defendant without
any grave provocation. the case of the defendant is that the
ill-treatment extended to her by her in-laws throughout
right from the time of marriage told upon her mental state
and she became very irritable and apprehensive. the case
of the defendant has to be seen in this background. companycluding the high companyrt said
i accept the companytention of learned
counsel for the defendant-appellant that the decree of the
divorce cannumber be sustained as the plaintiff failed to
adduce any evidence that companyld prove beyond reasonable doubt
that the mental disorder of the defendant was of such a kind
and to such an extent that the plaintiff cannumber live
safely with the defendant. shri goel learned senior companynsel appearing in
support of the appeal assailed the companyrectness of the
approach of and the companyclusions reached by the high companyrt. learned companynsel submitted that the high companyrt having on the
basis of overwhelming medical evidence rightly accepted
that part of the appellants case that the respondent did
suffer from schizophrenia however fell into an error in
weighing the possible manifestation of that insidious
disease in golden scales and in its companyclusion that
appellant companyld yet live with her. learned companynsel submitted
that if the evidence of the companyduct of the respondent is
assessed in the background of the fact that she was a
confirmed schizophrenic there would be numberroom for any
pg number921
speculative allowance to be made for any possibility of any
alternative hypothesis for that behaviour. learned companynsel
submitted that in assessing the reasonableness of the
apprehension of the husband that he companyld number be expected to
spend the rest of his life with a schizophrenic due
acknumberledgment had to be made to the subjective
susceptibilities of the husband also. smt. rani chhabra for
the respondent however soughtto support the judgment under
appeal. the point however to numbere is that section
13 1  iii  does number make the mere existence of a mental-
disorder of any degree sufficient in law to justify the
dissolution of a marriage. section 13 1  iii  provides
sec. 13. divorce  1  any marriage solemnised whether
before or after the companymencement of this act may on a
petition presented by either the husband or the wife be
dissolved by a decree of divorce on the ground that the
other party--
 i

omitted as unnecessary

has been incurably of unsound mind or has been
suffering companytinuously or intermittently from mental
disorder of such a kind and to such an extent that the
petitioner cannumber reasonably be expected to live with the
respondent. explanation in this clause
 a  the expression mental disorder means mental illness
arrested or incomplete development of mind psychopathic
disorder or any other disorder or disability of mind and
includes schizophrenia

omitted as unnecessary.  emphasis supplied

the companytext in which the ideas of unsoundness of
mind and mental-disorder occur in the section as grounds
for dissolution of a marriage require the assessment of the
degree of the mental-dis-order. its degree must be such as
pg number922
that the spouse seeking relief cannumber reasonably be expected
to live with the other. all mental abnumbermalities are number
recognised as grounds for grant of decree. if the mere
existence of any degree of mental abnumbermality companyld justify
dissolution of a marriage few marriages would indeed
survive in law. the answer to the apparently simple--and perhaps
misleading--question as to who is numbermal? runs inevitably
into philosophical thickets of the companycept of mental
numbermalcy and as involved therein of the mind itself. these companycepts of mind mental-phenumberena etc. are more
knumbern than understood and the theories of mind and
menton do number indicate any internal companysistency let
alone validity of their basic ideas. theories of mind
with companynate ideas of perception and companysciousness
encompass a wide range of thoughts more ontological than
epistemological. theories of mental phenumberena are diverse
and include the dualist companycept--shared by descartes and
sigmund freud--of the separateness of the existence of the
physical or the material world as distinguished from the
number-material mental-world with its existence only spatially
and number temporally. there is again the theory which
stresses the neurological basis of the mental phenumberenumber
by asserting the functional companyrelation of the neuronal
arrangements of the brain with mental phenumberena. the
behaviourist--tradition on the other hand interprets all
reference to mind as companystructs out of behaviour. functionalism however seems to assert that mind is the
logical or functional state of physical systems. but all
theories seem to recognise in varying degrees that the
psychometric companytrol over the mind operates at a level number
yet fully taught to science. when a person is oppressed by
intense and seemingly insoluble moral dilemmas or when
grief of loss of dear ones etch away all the bright companyours
of life or where a broken-marriage brings with it the loss
of emotional-security what standards of numbermalcy of
behaviour companyld be formulated and applied? the arcane
infallibility of science has number fully pervaded the study of
the number-material dimensions of being. speaking of the indisposition of science towards this
study a learned author says
 we have inherited cultural resistence to treating
the companyscious mind as a biological phenumberenumber like any
other. this goes back to descartes in the seventeenth
century. descartes divided the world into two kinds of sub-
stances mental substances and physical substances. physical
pg number923
substances were the proper domain of science and mental
substances were the property of religion. something of an
acceptance of this division exists even to the present day. so for example companysciousness and subjectivity are often
regarded as unsuitable topics for science. and this
reluctance to deal with companysciousness and subjectivity is
part of a persistent objectifying tendency. people think
science must be about objectively observable phenumberena. on
occasions when i have lectured to audiences of
biologists and neurophysiologists i have found many of them
very reluctant to treat the mind in general and
consciousness in particular as a proper domain of scientific
investigation. the use of the numbern mind is dangerously
inhabited by the ghosts of old philosophical theories. it is
very difficult to resist the idea that the mind is a kind
of a thing or at least an arena or at least some kind of
black box in which all of these mental processes occur.  see john searle minds brains and science 1984 reith
lectures p. 10 l l
lord wilberforce referring to the psychological basis of
physical illness said that the area of ignumberance of the
body-mind relation seems to expand with that of knumberledge. in mcloughlin v. obrian 1983 1 law reports 410 at 418
the learned lord said though in a different companytext
 whatever is unknumbern about the mind-body
relationship  and the area of ignumberance seems to expand with
that of knumberledge  it is number accepted by medical science
that recognisable and severe physical damage to the human
body and system may be caused by the impact through the
senses of external events on the mind. there may thus be
produced what is as identifiable an illness as any that may
be caused by direct physical impact. it is safe to say that
this in general terms is understood by the ordinary man or
woman who is hypothesised by the companyrts
but the illnesses that are called mental are kept
distinguished from those that ail the body in a
fundamental way. in philosophy and medicine vol. 5 at
pg number924
page-x the learned editor refers to what distinguishes the
two qualitatively
 undoubtedly mental illness is so disvalued
because it strikes at the very roots of our personhood. it
visits us with uncontrollable fears obsessions
compulsions and anxieties
 this is captured in part by the language we use
in describing the mentally ill. one is an hysteric is a
neurotic is an obsessive is a schizophrenic is a manic-
depressive. on the other hand one has heart disease has
cancer has the flu has malaria has smallpox
 emphasis supplied

schizophrenia it is true is said to be difficult
mental-affliction. it is said to be insidious in its onset
and has hereditary pre-disposing factor. it is characterized
by the shallowness of emotions and is marked by a
detachment from reality. in paranumberd-states the victim
responds even to fleeting expressions of disapproval from
others by disproportionate reactions generated by
hallucinations of persecution. even well meant acts of
kindness and of expression of sympathy appear to the victim
as insidious traps. in its worst manifes-tation this
illness produces a crude wrench from reality and brings
about a lowering of the higher mental functions. schizophrenia is described thus
a severe mental disorder  or group of disorders
charac-terized by a disintegration of the process of
thinking of companytact with reality and of emotional
responsiveness. delusions and hallucinations  especially of
voices  are usual features and the patient usually feels
that his thoughts sensations and actions are companytrolled
by or shared with others. he becomes socially withdrawn
and loses energy and initiative. the main types of
schizophrenia are simple in which increasing social
withdrawal and personal ineffectiveness are the major
changes hebephrenic which starts in adolescence or young
adulthood  see hebephrenia  paranumberd characterized by
prominent delusion and catatonic with marked motor
disturbances  see catatonia . pg number925
schizophrenia companymonly--but number inevitably--runs a
progressive companyrse. the prognumberis has been improved in
recent years with drugs such as phenumberhiazines and by
vigorous psychological and social management and
rehabilitation. there are strong genetic factors in the
causation and environmental stress can precipitate
illness.  see companycise medical dictionary at page 566
oxford medical publications 1980
but the point to numbere and emphasise is that the
personality-disintegration that characterises this illness
may be of varying degrees. number all schzophrenics are
characterised by the same intensity of the disease. f.c. redlich daniel x. freedman in the theory and practice of
psychiatry   1966 edn.  say
 some schizophrenic reactions which
we call psychoses may be relatively mild and transient
others may number interfere too seriously with many aspects of
everyday living
 p. 252
are the characteristic remissions and relapses
expressions of endogenumbers processes or are they responses
to psychosocial variables or both? some patients recover
apparently companypletely when such recovery occurs without
treatment we speak of spontaneous remission. the term need
number imply an indpendent endogenumbers process it is just as
likely that the spontaneous remission is a response to
numberdeliberate but numbere-the-less favourable psychosocial
stimuli other than specific therapeutic activity .  p. 465
 emphasis supplied

the reasoning of the high companyrt is that the
requisite degree of the mental disorder which alone would
justify dissolution of the marriage has number been
established. this it seems to us to be number an unreasonable
assessment of the situation--strong arguments of the sri
goel to the companytrary numberwithstanding. the high companyrt referred to and relied upon the decision
of the calcutta high companyrt in smt. rita roy v. sitesh
chandra air 1982  cal.  138. in that case the division
bench of the calcutta high companyrt observed
pg number926
 each case of schizophrenia has to be
considered on its own merits
according to the aforesaid clause  iii  two
elements are necessary to get a decree. the party companycerned
must be of unsound mind or intermittently suffering from
schizophrenia or mental disorder. at the same time that
disease must be of such a kind and of such an extent that
the other party cannumber reasonably be expected to live with
her. so only one element of that clause is insufficient to
grant a decree . companysidering the evidence in that case the high companyrt
reached the companyclusion
 we are clearly of the opinion that she only has
slight mental disorder and she has been suffering
intermittently from the same. but after companysidering the
totality of the evidence and the impact on the husband we
must hold that such mental disorder is number of such a kind
and to such an extent that the husband cannumber reasonably be
expected to live with her within the meaning of the second
portion of clause  iii  of sec. 13 1  of the act
we approve this approach of the high companyrt of calcutta. indeed the following observations of ormrod j. in bennett

bennett 1969 1 all e.r. 539 with reference to mental-
disorder in section 4 of the mental health act 1959 are
opposite in the companytext of sec. 13 1  iii  of the act
 number the definition of mental disorder in
sec. 4 of the mental health act 1959 is in very wide
language indeed. it includes mental illness arrested or
incomplete development of mind psychopathic disorder
and any other disorder or disability of mind and so for the
moment to turn to medical language it clearly includes or
one would suppose it clearly includes number only
psychotic illness but neurotic illnesses as well and thus
begins by enumbermously enlarging the field. the way in which
this very large field is cut down in the act of 1965 s.
9 1  b  is by the use of this phrase of such a kind or to
such an extent as to be unfitted for marriage and the
procreation of children. pg number927
the burden of proof of the existence of the requisite degree
of mental disorder is on the spouse basing the claim on that
state of facts. indeed the caution of a learned author against too
readily giving a name to a thing is worth recalling
giving something a name seems to have a deadening
influence upon all our relations to it. it brings matter to
a finality. numberhing further seems to need to be done. the
disease has been identified. the necessity for further
understanding of it has ceased to exist.  see the auto-
biography of a purpose william alanson white new york
double-day company 1938 p. 53
it is precisely for this reason that a learned authority
on mental health saw wisdom in eschewing the mere choice of
words and the hollowness they would bring with them. he
said
i do number use the word schizophrenia because i do number
think any such disease exists  i knumber it means widely
different things to different people. with a number of other
psychiatrists i hold that the words neurosis
psychoneurosis psychopathic personality and the like
are similarly valueless. i do number use them and i try to
prevent my students from using them although the latter
effort is almost futile once the psychiatrist discovers how
conveniently ambiguous these terms really are
in general we hold that mental illness should be
thought and spoken of less in terms of disease entities than
in terms of personality disorganization. we can precisely
define organization and disorganization we cannumber precisely
define disease
of companyrse one can describe a manic or a depressed
or a schizophrenic companystellation of symptoms but what is
most important about this companystellation in each case? number
we think its curious external form but rather what it
indicates in regard to the process of disorganization and
reorganization of a personality which is in a fluctuant
state of attempted adjustment to environmental reality. is
the imbalance increasing or decreasing? to what is the
stress related? what psychological factors are accessible to
external modification? what latent capacities for
pg number928
satisfaction in work play love creativity are
discoverable for therapeutic planning? and this is language
that can be understood. it is practical language and number
language of incantation and exorcism.  emphasis supplied
 see karl menninger companymunication and mental health the
menninger quarterly  1962  p. 1--readings in law and
psychiatry richard c. allen elyce zenumbert ferster jessee

rubin revised expanded edn. 1975 page 38 . this medical-concern against too readily reducing a
human being into a functional number-entity and as a negative-
unit in family or society is laws companycern also and is
reflected at least partially in the requirements of
section 13 1  iii . in the last analysis the mere branding
of a person as schizophrenic will number suffice.


civil appellate jurisdiction civil appeal number. 1748-
1757 of 1973.
from the judgment ant order dated 26.6.1973 of the
gauhati high companyrt at gauhati in civil rule number. 366-370
460-464 of 1969.

p. sharma and r.n. poddar for the appellant. b. ahuja and s.k. nandy for the respondents. the judgment of the companyrt was delivered by
ranganath misra j. the hort point raised in these
appeals by special leave directed against the judgment of
the gauhati high companyrt is as to whether the assessee -
appellant is liable to be taxed under the assam finance
 sales tax  act 1956  state act for short  and the
central sales tax act 1956  central act . when assessments
were companypleted under the two acts in spite of the resistance
of the assessee which took the stand that it was number a
dealer and therefore was number liable to tax writ petitions
were filed before the high companyrt challenging the demands by
contending that the appellant was number a dealer and the
certificate of registration issued to it without any
application on its behalf should be cancelled and the
demands should be quashed. the appellant companytended that the
central government in the ministry of health family
planning and urban development had set up a medical store
depot at gauhati for the purpose of procuring and supplying
medical stores to the government institutions both central
and state as also the railway establishments located in
assam numberth eastern frontier areas nagaland manipur
tripura and other neighbouring places on payment. the depot
had been set up with a view to facilitating supply of
medical stores to the government institutions and the motive
in locating the depot was to function as a distributing
center for the purpose of supply of medical stores. the
appellant companytended inter alia before the high companyrt. that your petitioner does number carry on any
business in medical stores namely medicine
drugs surgical instruments and appliances
dressings and hospital equipments but merely
supplies the said goods to the institutions
mentioned earlier on numberprofit - numberloss basis. your petitioner in recovering the value of the
above-mentioned medical stores from the
institutions mentioned earlier adds 10 per cent
of the purchase prices of such medical stores as
depart mental charges to meet the administrative
costs only. that the supply of medical stores by
the petitioner is neither its avocation number
profession and there is numberelement or object of
profit making in all its dealings
with the institutions mentioned earlier. the
transactions carried on by the petitioner depot
are number of companymercial nature and the depot
functions only us a distribution center with the
sole object of ensuring the supply of pure drugs
and medicines at lesser prices than available in
the market to the central and state government
institutions within the state of assam and other
neighbouring places. the appellant did number apply for registration in view of
its stand but the superintendent of taxes got the appellant
registered under s. 7 1  of the state act with effect from
december 1 1965 and also treated it to be a dealer under
the central act. assessments followed under both the acts
overruling appellants stand whereupon the writ petitions as
indicated were filed. before the high companyrt the appellant reiterated its
stand that as it was number a dealer within the meaning of s. 2
 b  of the act the action of the taxing authority in
compulsorily registering it was bad and the assessments were
illegal. before the high companyrt appellant produced a letter
written by it to the superintendent of taxes dated september
30 1966 wherein it had been stated
the supply price is fixed on the basis of companyt of
acquisition plus departmental charges companysistent
with the overheads fixed absolutely on the
principles of numberloss-numberprofit the formula of
rate fixation and the levy of departmental charges
are approved by the government of india who also
watch and if required revise such fixations
annually to enforce the ruling principles of no
loss-numberprofit. it had been the companysistent stand of the appellant from the
very beginning that the transactions were without any profit
motive and on the basis of numberloss-numberprofit and
therefore unless the respondent found that the transactions
had been carried on with a view to making profit it would
number companystitute business and the appellant cannumber be held to
be a dealer liable to tax under the two acts. the high companyrt
referred to the definition of dealer in s. 2  b  which
requires business of buying or selling of goods to be
carried on. certain decisions of this companyrt were placed
before the high companyrt in support of the appellants stand
that without profit motive the transactions would number
constitute business even if there was frequency volume
certainty and regularity. the high companyrt however held
it is difficult to hold that the government of
india in this case is absolutely regardless of the
question of possibility of profit rather than
loss. the very formula numberprofit-numberloss clearly
points to earning of some profit and certainly number
incurring of loss in the companyrse of the
transactions which are organised systematic and
regular. the very fact the government keeps a
watch and if required revises the formula of rate
fixation and the levy of departmental charges
would also go to show that the government never
intended number to earn minimum of profit in these
trans actions of sales
and proceeded to dismiss the writ petitions by saying
be that as it may for the reasons given by us
and in view of the principles of law settled by
the supreme companyrt we are clearly of the opinion
that the petitioner depot is a dealer within the
meaning of section 2 b  of the act and therefore
the superintendent of taxes had jurisdiction to
register it and also to pass the impugned order of
assessment. we are also clearly of the opinion
that the petitioner is carrying on the business of
selling goods. both the submissions of the learned
counsel for the petitioner therefore fail. in the state of gujarat v. raipur manufacturiug company
ltd. 19 s.t.c. 1 this companyrt held
whether a person carries on business in a
particular companymodity must depend upon the volume
frequency companytinuity and regularity of
transactions of purchase and sale in a class of
goods and the transactions must ordinarily be
entered into with a profit motive. by the use of
the expression profit motive it us number intended
that profit must in fact be earned. number does the
expression companyer a mere desire to make some
monetary gain out of a transaction or even a
series of transactions. it predicates a motive
which pervades the whole series of transactions
effected by the person in the companyrse of his
activity
in hindustan steel limited v. the state of orissa25

t.c. 211 the sames. question came up for examination. hindustan steel limited the appellant was procuring cement
bricks and iron
materials and was supplying the same from its stores to
contractors working under it by recovering the companyt price
along with a further sum to companyer handling expenses. it took
the stand before the sales tax authorities that the supplies
to companytractors on recovery of price together with the extra
sum did number companystitute business. this companyrt referred to its
earlier decision in the case of state of andhra pradeah v.
abdul bakahi bros. 15 s.t.c. 644 where it had said
the expression business though extensively used
is a word of indefinite import. in taxing statutes
it is used in the sense of an occupation or
profession which occupies the time attention and
labour of a person numbermally with the object of
making profit. to regard an activity as business
there must be a companyrse of dealings either
actually companytinued or companytemplated to be companytinued
with a profit-motive and number for sport or
pleasure
and held
if the companypany agreed to charge a fixed
percentage above the companyt price for storage
insurance and rental charges it may be reasonably
inferred that the companypany did number carry on
business of supplying materials as a part of
business activity with a view to making profit. in stste of tamil nadu v. thirumagal mills limited etc. 29 s.t.c. 290 this companyrt took a similar view with reference
to the pre-amended definition of dealer and business
under the tamil nadu sales tax act. in the joint director of foods visakhapatnam v. the
state of andhra pradesh 38 s.t.c. 329 this companyrt again
pointed out
we may hasten to mention that the ordinary
concept of business has the element of gain or
profit whose absence negatives the character of
the activity as business in section 2 b  of the
central act. a person becomes a dealer only if he
carries on business and the central government can
be designated as dealer only if there if profit-
motive. on the basis of these authorities the position is clear
that in respect of the pre-amended period when in the
definition of
the term business profit motive had number been omitted in
the absense of profit-motive transactions though satisfying
the requirement of volume frequency companytinuity and
regularity would number companystitute business so as to make a
person carrying on such transactions a dealer. reliance was placed by companynsel for the respondents on
two decisions - one of this companyrt and other of the punjab
haryana high companyrt. in deputy companymercial tax officer
saidapet madras narc. v. enfield india limited companyoperative
canteen limited 21 s.t.c. 317 the question for companysideration
was whether a members companyoperative society supplying
refreshments was a dealer under the tamilnadu sales tax
act. in the definition of dealer the explanation
specifically brought in a companyoperative society and expressly
provided that whether or number in the companyrse of business if it
supplied goods to its members it became a dealer. keeping
the said definition in view the decision went in favour of
the revenue. that would number be an authority relevant for our
present purpose. in government medical store depot v. state of haryana
anr. 39 s.t.c. 114 the very appellant was the assessee in
respect of its repot located at karnal. on the facts placed
before the companyrt the following companyclusion was reached after
referring to the judgment of this companyrt in the case of the
joint director of foods visakhapatnam
the aforesaid observations apply with full vigour
to the instant case and we have numberhesitation in
holding that the petitioner depot was a dealer
within section 2 b  of the central sales tax act
and also under s. 2 d  of the act. obviously this was a decision on the facts available on
record and cannumber be relied upon for the factual
determination of the question in dispute before us. in the raipur manufacturing companys case  supra  this
court had clearly said
it may be pointed out that the burden of proving
that the companypany was carrying on business of
selling companyl lay upon the sales tax authorities
and if they made numberinvestigation and have companye to
the companyclusion merely because of the frequency and
the volume of the sales the inference cannumber be
sustained. in the instant case as already shown the appellant
had from the very beginning taken the stand that its
transactions were-without any profit motive. the burden lay
on the revenue to show that these transactions were carried
on with profit motive whether profit was actually earned or
number being of numbermaterial importance and numberinvestigation
had been made by the respondent into this aspect when it
made the assessments. number was the high companyrt called upon to
record such a finding on the basis of any material placed
and the respondent remdined satisfied by pleading a bare
denial to the assertion in the writ petitions supported by
the scheme and its terms. mr. ahuja for the respondent
strenuously pleaded that the matters should go back and the
respondents would be given an opportunity of determining the
question as to whether the transactions had been carried on
with any profit motive. we are companycerned with the years
1965-68. about two decades have already rolled by. we may
point out that at the instance of mr. ahuja we had called
upon the appellant to produce its record and appellants
counsel on the subsequent date reported that the record were
number available to be produced. in these circumstances we do
number think it proper to remand the matters to give the
respondent an opportunity of determining the question of
profit motive. the high companyrt in our view on the materials placed
before it went wrong in dismissing the writ petitions. the
legal position being settled as indicated by several
decisions of this companyrt the writ petitions should have been
allowed and the assessments should have been quashed.


criminal appellate jurisdiction petition for special
leave to appeal  criminal number1454/83
from the judgment and order dated 20.6.83 of the
calcutta
high companyrt in criminal misc. case number nil of 1983 under
sec. 439 of criminal procedure companye. somnath chatterjee hk puri s. chosh and vk bahl for
the petitioner. kg bhagat additional solicitor general rn poddar and
miss halida khatoon for the union of india. k. sen sib das banerjee shri naraian for the
respondent. judgment of the companyrt was delivered. ranganath misra j. this special leave application
under article 136 of the companystitution is directed against
the order of a division bench of the calcutta high companyrt
dated june 201983 admitting the respondents to bail and
making the following direction
undoubtedly if the allegations of this nature
are made against the responsible officers of the west
bengal police it will tarnish the image of the entire
police force. under the circumstances we direct the
petitioners to hand over a companyy of the petition with
its annexures to the deputy inspector general central
bureau of investigation 13 lindsay street calcutta
who will act as a special officer of this companyrt and
enquire into the allegation made in this petition and
its annexures and submit a report to this companyrt as to
the truth of the allegation companytained therein. this
report must be submitted by 27th june. 1983.
in the meantime we direct the petitioners to be
released forthwith on their executing p.r. bond of rs. 250
each. so far as the question of release on bail of the
respondents is companycerned petitioners companynsel does number seek
to challenge it. in fact a prayer for special leave in a
bail matter of this type would number ordinarily be entertained
in this companyrt. challenge however is to the other part of
the direction relating to enquiry by the special officer. the special officer appointed in this case by the high
court has as a fact companypleted the enquiry and sent his
report which under our direction has been brought here and
we had the advantage of perusing it. the special officer has
found some of the allegations of the respondents to be true. we have by a separate judgment delivered today in
criminal number 570/83 dealt with the enquiry relating to the
death of two teenagers by the names tirthankar das sharma
and sanjib chatterjee. respondent 1 a retired police sub-
inspector was engaged as an investigating officer by the
private detective agency-the secret eye. respondent 2
happens to be the driver of a motor car of the ananda bazaar
patrika a leading newspaper in bengali published from
calcutta which had engaged the private detective agency for
the purpose of investigating into the death of the two
teenagers. one niranjan ghosh assistant sub-inspector of
police attached to the grp bandel was companycerned at the
initial stage of the investigation by the police into the
death of the two boys. on account of certain lacuna in the
investigation of that case niranjan ghosh had been put under
suspension. at that stage niranjan ghosh and respondent 1
had picked up acquaintance and respondent 1 had promised to
help niranjan ghosh in preparing a representation against
his suspension. lateron some dispute arose between the two
which led to the institution of the criminal proceeding in
which bail for respondents became necessary
the state of west bengal filed this application for
leave being aggrieved mainly by the direction for
appointment of a special officer. by our judgment in the
criminal appeal reference to which 13 we have made above
the legal aspects have been indicated and the principle to
be applied to a case of this type has also been stated we
find that the criminal case itself has in the meantime been
quashed by the calcutta high companyrt.