Civil Appeal No 99 of 1951
Appeal from a Judgment and Decree of the High Court of Judicature at Bombay Stone CJ and Dixit 3 dated 14th July 1947 in First Appeal No 128 of 1943 affirming a decree dated 14th October 1942 of the Court of the Dis trict Judge of Kaira at Nadiad in Civil Suit No 15 of 1928
514 CK Daphtary N C Shah with him for the appellant
Rajani Patel for the respondent
March 7
The judgment of the Court was delivered by MUKHERJEA J
This appeal is on behalf of the defendant and it arises out of a suit under section 92 of the Civil Procedure Code commenced by the plaintiffs who were origi nally nine in number in the court of the District Judge of Kaira at Nadiad
Out of the nine plaintiffs only one is surviving and he is now the sole respondent in this appeal all the rest having died pending this protracted litigation which began as early as the year 1928
The case of the plaintiffs in substance was that one Kuberdas who was a religious teacher and a holy man rounded a cult known as Kaivalya or Karunasagar Panth the principal tenet of which is that the realization of the Infinite is possible only through the medium of a Guru or spiritual preceptor
Kuberdas received money and lands from his followers and disciples and with this fund he built a temple at Sarsa
Kuberdas by will appointed his principal disciple Narayandas to succeed him on the Gadi and Narayandas built another and a bigger temple wherein he installed an image of Kuberdas with the images of two staff bearers on two sides
The Mahants after Narayandas were Baldevdas Bhagwandas and Pragdasji who is the defendant in the suit and each one of them was appointed by a will executed by his predecessor
The defendant it is alleged had been acting in a manner contrary to the usages of the institution and was guilty of incontinence mismanagement and improper alienation of trust properties
On these allegations the plaintiffs prayed that 1 the properties described in the schedule to the plaint as well as other properties under the management of the defendant be declared to be religious and charitable trust properties of the Kaivalya or Karuna sagar Panth 515 2 the defendant be removed from the Gadi and posses sion of the properties and a suitable successor appointed in his place 3 the defendant be called upon to render accounts for the period of his management and 4 a scheme might be framed for proper management of the institution
The defendant in his written statement traversed all the material allegations in the plaint and contended infer alia that the suit was not maintainable inasmuch as no public trust of a religious and charitable character existed in respect to the suit properties which were the private properties of the defendant himself
On these pleadings a number of issues were framed by the District Judge of which the two following were tried as preliminary issues viz 1 Whether the temple and the properties in suit are public charitable properties  and 2 if not whether this court has jurisdiction to try the suit  By his judgment dated the 18th of July 1935 the Dis trict Judge decided both these issues against the plaintiffs and dismissed the suit
Against this decision the plain tiffs took an appeal to the High Court of Bombay
The learned Judges of the High Court who heard the appeal took the view that the ownership of
the suit properties was so restricted by the obligation to maintain the institu tion for purposes which only could be described as public charitable purposes that the suit must be regarded as one coming within section 92 Civil Procedure Code
The result was that the judgment of the trial court was reversed and the case was remanded to that court in order that it might be heard and disposed of on its merits
The judgment of the High Court is dated 24th of January 1938
Being aggrieved by this order the defendant prayed leave to appeal to the Judicial Committee but this application was refused
He thereupon filed a petition before the privy Council praying for special leave
516 The Privy Council also refused to grant leave on the ground that the matter was still then in an interlocutory stage
They however said specifically that the order of refusal was without prejudice to the presentation of a fresh peti tion after all the issues were determined
The case then went back to the trial court and on the evidence adduced by the parties the District Judge came to the conclusion that the allegations of misconduct and breach of trust made by the plaintiffs were not proved and in this view he dismissed the suit subject to the declaration already given by the High Court that the temple and the properties in possession of the defendant were public religious and charitable properties
The plaintiffs filed an appeal against this decision to the High Court of Bombay and the High Court by its judgment dated 14th of July 1947 affirmed the decision of the District Judge and dismissed the appeal
The defendant has now come up to this court on the strength of a certificate granted by the High Court and though formally it is an appeal against the final decree made by the High Court on 14th of July 1947 in substance it challenges the propriety of the order of remand passed on 24th January 1938 by which the High Court reversed the decree of dismissal made by the District Judge and remanded the case being of opinion that the properties in dispute did appertain to a public trust of a religious and charita ble character
Mr Daphtary appearing in support of the appeal has contended before us that on the question as to whether or not a public trust existed in respect of the properties in suit the view taken by the trial judge was right and that the decision of the High Court is based upon a misapprecia tion of the evidence on the record
We have been taken through the entire evidence by the learned counsel on both sides but having regard to the view which we propose to take in this case we deem it unnecessary to record any finding as to whether the properties in suit do or do not appertain to a public charitable trust
In our opinion after the 517 decision arrived at concurrently by both the courts below on the merits of the case it was beyond the scope of a suit framed under section 92 Civil Procedure Code to give the plaintiffs a bare declaration of this character and make it a part of the decree although the suit itself was dis missed
A suit under section 92 Civil Procedure Code 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 court are necessary for the administration thereof and it must pray for one or other of the reliefs that are specifically men tioned in the section
It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provision of section 92 Civil Procedure Code
As was observed by the Privy Council in Abdur Rahim vs Barkat Ali1 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 the case before us the prayers made in the plaint are undoubtedly appropriate to the terms of section 92 and the suit proceeded on the footing that the defendant who was alleged to be the trustee in respect of a public trust was guilty of breach of trust
The defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust
The denial could not certainly oust the jurisdiction of the court but when the courts found concurrently on the evidence adduced by the parties that the allegations of breach of trust were not made out and as it was not the case of the plaintiffs that any direction of the court was necessary for proper adminis tration of the trust the very foundation of a suit under section 92 Civil Procedure Code became wanting and the plaintiffs had absolutely no cause of action for the suit they instituted
In these circumstances the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was 1 1928 55 IA 96 67 518 unconnected with the grounds upon which the case was actual ly disposed of it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the plaintiffs
It has been argued by the learned counsel for the respondents that even if the plaintiffs failed to prove the other allegations made in the plaint they did succeed in proving that the properties were public and charitable trust properties a fact which the defendant denied
In these circumstances there was nothing wrong for the court to give the plaintiffs a lesser relief than what they actually claimed
The reply to this is that in a suit framed under section 92 of the Civil Procedure Code the only reliefs which the plaintiff can Claim and the court can grant are those enumerated specifically in the different clauses of t he section
A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses
When the defendant denies the existence of a trust a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it but when the case of the plaintiff fails for want of a cause of action there is no warrant for giving him a declaratory relief under the provision of section 92 Civil Procedure Code
The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit
The result is that in our  opinion the decision of the High Court should stand but the decree and the concluding por tion of the judgment passed by the trial court and affirmed by the High Court on appeal shall direct a  dismissal of the plaintiff s suit merely without its being made subject to any declaration as to the character of the properties
To this extent the appeal is allowed and the final decree modified
The order for costs made by the courts below will stand
Each party will bear his own costs in this appeal


Summary:
The question for decision in this appeal was whether a single transaction of sale of land measuring about three quarters of an acre was an adventure in the nature of trade so as to make it liable to income tax
The assessee appellant an Engineer by profession was engaged in various business activities including that of an engineering firm but admittedly had no dealing except the one in question in respect of land
In 1946 be entered into an agreement with the Hindusthan Co operative Insurance Society Ltd for the purchase of the land in question and paid a sum of Rs 32748 in two instalments being 25 of the estimated total price of the land
As his construction activities declined and the Government who had requisitioned the land were not immediately releasing it the appellant sold his rights under the agreement to a third party in 1947 and thereby received a sum of Rs 74000 odd in excess of the amount paid by him to the Society
The land however was not released by the Government until 1949
The Income tax Officer held that the transaction was an adventure in the nature of trade and the said sum was a profit therefrom taxable under section 10 of the Incometax Act and included it in the assessable income
The Appellate Assistant Commissioner in appeal held that the assessee a man of means had intended to purchase the land for his own use and that the motive of profit was entirely absent when the purchase was made and that as it was a case of appreciation of capital he was liable to pay Capital Gains tax
The Appellate Tribunal on appeal by the Department reversed the findings and the decision of the Appellate Assistant Commissioner and affirmed that of the Income tax Officer
After the assessee had obtained from this Court special leave to appeal he made an application to the High Court under section 662 of the Income tax Act which that Court dismissed as being barred by limitation
Held per Bhagwati and Sinha JJ Kapur J dissenting that admittedly the transaction in question being a single instance of its kind and not in the line of the business of the assessee it was for the Department to prove that the dominant intention of the appellant when he entered into the agreement with the Society was to embark on a venture in the nature of 847 trade as distinguished from a capital investment and they having failed to do so the appeal must succeed
Commissioners of Inland Revenue vs Reinhold  applied
There could be no doubt as held by the Court that the question for decision involved in such cases was one of law or a mixed question of fact and law
G Venkataswami Naidu and Co vs The Commissioner of I come tax   referred to and distinguished
The line of demarcation however between an isolated trans action and a venture in the nature of trade was very thin and each case had to be decided on the total impression all its facts and circumstances made on the mind of the judge
Case law reviewed
KAPUR J Even though the powers of this Court under article I36 of the Constitution were very wide they had to be exercised within the limits imposed by its own decisions and one such limitation was that this Court would not ordinarily interfere on questions of fact
Since the question involved in the instant case was a mixed question of law and fact the facts should properly be found by the body whose exclusive function under the Income tax Act was to do so
G Venkataswami Naidu  Co vs The Commissioner of Income tax  and Dhakeswari Cotton Mills vs The Commissioner of Income tax 1955 i SCR 94I referred to
Nor could an assessee be allowed to by pass the procedure prescribed by sections 661 662 of the Income tax Act to have question of law determined
Since however the Appellate Tribunal had in the instant case failed to consider certain essential facts the case should be remitted to it for a proper decision in the light of the observations made by this Court