# NIRMALA BALA GllOSE Al'cl> ANOTHER v. BALAI CHAND GHQSE AND ORS

- **Citation:** [1965] 3 S.C.R. 550
- **Court:** Supreme Court of India
- **Decided:** 1965-03-29
- **Case number:** Civil Appeals Nos. 966 to 968 of 1964
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nirmala-bala-gllose-al-cl-another-v-balai-chand-ghqse-and-ors-3514
- **Pages:** 17

## Headnote

NIRMALA BALA GllOSE Al'cl> ANOTHER
v.
BALAI CHAND GHQSE AND ORS.
March 29, 1965
(K. SuoBA RAO, J. C. SHAH AND R. S. BACl!AWAT, JJ.I
Relig'ous
Endowment-Dcl>utter-Construction
of
deed
of
sottle112ent-Endowment whether
partial
or
complete--Tests f<Yf
deciding-Provision for maintenance of sh~':t•Us irheth9r 1nak:>s endowment partial-Effect of inva.iditu of ccrta n provisions of deedE.rpanding income and static eXJJcnses-lnfcrcnce from-Right of
joont sheba"it to appeal if deities represented by guardian ad !item.
Code of Civil Procedure (5 of 1908)--0rder 41 r. 33-Applicability
of-When decree can be amended in appeal in favour of non--0ppeal1ng party.
HELD: (i) The question whether a deed of dedication creates
an abosulte or part'al dedication must be settled by a conspectus of
all the provisions of the deed. If the property is wholly dedicated
to the worship of the idol and no beneficial interest is reserved to
the settlor. his descendants or other persons, the ded;cation Ls CC'ffip:ete: if by the deed it is intended to create a charge :n favour of
the deity and
the residue vest• in the settlor, the dedicat'on i•
partial.
(ii) A reasonable provision for remuneration rna:ntenance and
residence of the Shebaits does not make an endowment bad, for
even when property is ded'cated absolutely to .an idol, and no beneficial interest is reserved to the settlor, the property is held by the
deity in an ideal sense. The possession and management of the property must, in the very nature of things, be entrusted to Shebait or
manc:ger and nomination of the settler himself and his heirs with
rea~onablc rC'muncrat~on 0 11t of the cndo\ved property \vith right of
residence in the property will not invalidate the endowment. [556E-GJ
(i'i) A provision for the benefit of perscns other than :he Shebait
may not be valid, if !t infringes the rule against pcrpetJitics er
accumulat1ons, or rules agains: impermiss:bic res<rict;ons, but that
does not affect the validity of the endowm<mt. The bcnefic;al interest
in the provis~on found ;nvalid reverts to the deity or the settlor
according as the endo\vmr.nt is abso~utc er partial. lf the endo\\·mcnt
:s absolute and a che:rgc crcatrd !n favour •)f other persons is invalid,
the benefit will enure to the d1•ity, and will not revert to the settlor
or his he'rs. (556G-ll]
(iv) There is n:> rule that \vhen the incumP is expanding and the
expenses arc stat~c. leav:ng a substantial residue, it must be presumed, not\\';ths:anding the comprrhcnsive and unrcstric'.ted nature
c-f the dispos'.tion. that the> sctt~or intended to create only a charge
in f~vour of the C~ity. The quest.on is alwavs one of intention of
the settler to be determined from a rcv:r.·,i; of all the dispositions
under the deed of settlement. r560G]
Surendrakeshrw Roy v. Doorgasundar< Dassee and A11r. L. R. 19
I.A !08. explained.
Sri Sri ls1cari BhubanPshtcari Thalcurani v. Brojon~th Dev and
Ors. L.R. 64 I.A. ~03 and Sree Sree /shu:ar Sridhar Jew v. Sushi!a
Bala Desi and Ors. [ 1954] S.C.R. 407. rel!ed on.
550
A
...
B
D
E
F
0
B
NIRMAL.\ V. ll,\LAC CHANJl (Shah, J.)
551
A
Per Subba Rao rnd Shah, JJ.--When the guardian of the deitie,
did not app·eal against the finding of the tr:al com;! that there was
a partial ded'cation, it was not open to a joint Shebait who was not
a guardian, to appeal against the decree and contend that the dedication was absolute.
When a party allows a decree of the court of First Instance to
become final, by not appealing against the decree, it would not be
B
open to another party to the lit'gation, whose rights are otherwise
not affected by tho decree, to invoke the powers of the appellate
court under o. 41 r. 33 to pass a decree in favour of the party not'
appealing so as to give the latter a benefit wh'.ch he has not claimed ..
[564D]
Per Bachawat, J. (Partially dissenting)---When the trial court
decrees that the endowment in favour of the deities was not absoC
lute, and the guardian ad !item of the deities o!ces not appeal,

## Text

_Characters 0–39,192 of 47,582. This is a partial read: ask again with offset=39192 for what follows._

NIRMALA BALA GllOSE Al'cl> ANOTHER
v.
BALAI CHAND GHQSE AND ORS.
March 29, 1965
(K. SuoBA RAO, J. C. SHAH AND R. S. BACl!AWAT, JJ.I
Relig'ous
Endowment-Dcl>utter-Construction
of
deed
of
sottle112ent-Endowment whether
partial
or
complete--Tests f<Yf
deciding-Provision for maintenance of sh~':t•Us irheth9r 1nak:>s endowment partial-Effect of inva.iditu of ccrta n provisions of deedE.rpanding income and static eXJJcnses-lnfcrcnce from-Right of
joont sheba"it to appeal if deities represented by guardian ad !item.
Code of Civil Procedure (5 of 1908)--0rder 41 r. 33-Applicability
of-When decree can be amended in appeal in favour of non--0ppeal1ng party.
HELD: (i) The question whether a deed of dedication creates
an abosulte or part'al dedication must be settled by a conspectus of
all the provisions of the deed. If the property is wholly dedicated
to the worship of the idol and no beneficial interest is reserved to
the settlor. his descendants or other persons, the ded;cation Ls CC'ffip:ete: if by the deed it is intended to create a charge :n favour of
the deity and
the residue vest• in the settlor, the dedicat'on i•
partial.
(ii) A reasonable provision for remuneration rna:ntenance and
residence of the Shebaits does not make an endowment bad, for
even when property is ded'cated absolutely to .an idol, and no beneficial interest is reserved to the settlor, the property is held by the
deity in an ideal sense. The possession and management of the property must, in the very nature of things, be entrusted to Shebait or
manc:ger and nomination of the settler himself and his heirs with
rea~onablc rC'muncrat~on 0 11t of the cndo\ved property \vith right of
residence in the property will not invalidate the endowment. [556E-GJ
(i'i) A provision for the benefit of perscns other than :he Shebait
may not be valid, if !t infringes the rule against pcrpetJitics er
accumulat1ons, or rules agains: impermiss:bic res<rict;ons, but that
does not affect the validity of the endowm<mt. The bcnefic;al interest
in the provis~on found ;nvalid reverts to the deity or the settlor
according as the endo\vmr.nt is abso~utc er partial. lf the endo\\·mcnt
:s absolute and a che:rgc crcatrd !n favour •)f other persons is invalid,
the benefit will enure to the d1•ity, and will not revert to the settlor
or his he'rs. (556G-ll]
(iv) There is n:> rule that \vhen the incumP is expanding and the
expenses arc stat~c. leav:ng a substantial residue, it must be presumed, not\\';ths:anding the comprrhcnsive and unrcstric'.ted nature
c-f the dispos'.tion. that the> sctt~or intended to create only a charge
in f~vour of the C~ity. The quest.on is alwavs one of intention of
the settler to be determined from a rcv:r.·,i; of all the dispositions
under the deed of settlement. r560G]
Surendrakeshrw Roy v. Doorgasundar< Dassee and A11r. L. R. 19
I.A !08. explained.
Sri Sri ls1cari BhubanPshtcari Thalcurani v. Brojon~th Dev and
Ors. L.R. 64 I.A. ~03 and Sree Sree /shu:ar Sridhar Jew v. Sushi!a
Bala Desi and Ors. [ 1954] S.C.R. 407. rel!ed on.
550
A
...
B
D
E
F
0
B
NIRMAL.\ V. ll,\LAC CHANJl (Shah, J.)
551
A
Per Subba Rao rnd Shah, JJ.--When the guardian of the deitie,
did not app·eal against the finding of the tr:al com;! that there was
a partial ded'cation, it was not open to a joint Shebait who was not
a guardian, to appeal against the decree and contend that the dedication was absolute.
When a party allows a decree of the court of First Instance to
become final, by not appealing against the decree, it would not be
B
open to another party to the lit'gation, whose rights are otherwise
not affected by tho decree, to invoke the powers of the appellate
court under o. 41 r. 33 to pass a decree in favour of the party not'
appealing so as to give the latter a benefit wh'.ch he has not claimed ..
[564D]
Per Bachawat, J. (Partially dissenting)---When the trial court
decrees that the endowment in favour of the deities was not absoC
lute, and the guardian ad !item of the deities o!ces not appeal, ·it is
open to a jo'nt shebait even when he is not a guardian to assail the
decree in appeal. [56.5A]
D
E
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Maharaja Jagadindra Nath Roy Baha"dur v. Rani Hemanta Kumari
Debi, (1904) L. R. 31 I. A. 203, relied on.
Shebaiti right is a right to property. This right is affected by a
declaration that the dedica)ion in favour of the deities is partial and
not absolute. The shebaiti right in an absolute debutter is different
from the shebaiti right in a partial debutter. The joint shebait is entitled to defend his right even when the guardian of the deities doe•
not appeal. [565E, HJ
The Commissioner of Hindu Religious Endowments, Madras v.
Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] S.C.R.
1005, referred to.
CIVIL APPELLATE JURISDICTION:
Civil Appeals Nos. 966 to
968 of 1964.
Appeals from the judgment and decree dated September 23,
1959, of the Calcutta High Court in Appeals from Original Decrees
Nos. 268 to 270 of 1957.
S. V. Guptc, Solicitor-Genera/, A. K. Sen, and D. N. Mukherji,
for the appellants (in all the appeals).
A. V. Viswanatha Sastri and S. C. Majumdar, for respondent
No. I.
The Judgment of SUB BA RAo and SHAH JJ. was delivered by
SHAH, J. BACHAWAT, J. partially dissented.
Shah, J. This group of appeals arises out of suits Nos. 79 and
80 of 1954 and 67 of 1955 filed by the first respondent Balai Chand
Ghose (who will hereinafter be called "Balai")
in the Court of
the Eighth Subordinate Judge, Alipore, District 24-Parganas, West
Bengal. In Suits Nos. 79 and 80 of 1954 Balai prayed that he
be declared owner of the properties described in
the schedules
annexed to the respective plaints. In su.it No. 67 of 1955 he claimed that it be declared that his wife Nirmala, is a benamidar for
him and that the .deed of dedication dated Sept~mber 15, 1944 did
not amol'nt to an absolute dedic3tion of the properties in suit to
the deities Sri Satyanarayan Jiu & Sri Lakshminarayan Jiu and
that the plaintiff is the sole Shebait of the two deities. The Trial
Ofi2
[1965] 3 s:c.R.
Court decreed suits Nos. 79 & 80 of 1954 holding that the plaintiff
A
was the owner of the disputed properties and the deed of endowmer.t Ext. 11 (a) executed on March 8, 'J 939 by Nirmala was "sham
and colourable". In suit No. 6} of 1955 the Subordinate Judge
dedared that Nirmala was a benamidar of Balai of the properties
in suit and the deed of endowment dated September 15, 1944, Ext.
l l. -did not amou<lt to absolute dedication of the properties to the
B
deities Sri Satyanarayan Jiu and ·sri Lakshminarayan Jiu.
The High--Court of Judicature at ~lcutta, in exercise of its
appellate jurisdiy(ion,-ipodified the decrees passed by the Trial
Court. The High Court held that the deed Ext. 11 (a) was not sham,
but it am;)l111ted to a partial dedication in favour ·o~ the deity Sri
c
Gopal Jiu i.e. it created a charne on the 'properties endowed
for the purposes of the deity mentioned in the deed. · The
decree pasod in suit No. 67 of 1955 from ;.vhl.clu1ppeal No.
269 of 1957 arose was dismissed subject to the "clarification or
darific'ations" that it creqted only a charge in favour of the deity
or deities for the purposes recited therein arid thai subject to the
D
charge, the rroperties belonged to Balai. With certificates of fitness
granted by the .High Court. these three appeals have been preferred.
[After stating the facts which gave rise to the appeals His Lordship proceeded]
E
We may briefly set out the terms of the deed Ext. I l(a). It isdescribed ,as a deed of dedication iii respect of immovable properties valued at Rs. 20,000 for the Seba of the deity. After describing the. properties it is recited that the sett!or was in possession
and erijoyment of the properties and that she dedicated the properties for Deb-Seba. The deed then recites that the settlor had been
-carrying on the Seba of Sri" Gopal Jiu installed by her husband,
and that the properties dedicated by her husband were not sufficient for satisfactorily carrying on the Seba of Sri Gopal Jiu for
ever and for perpetuating the names of her father-in-law and
mother-in-law and for carrying on the work of worship of the deity
of Sri Gopal Jiu regularly for ever, the provisions then set out
were made. 'The· deed· pr_oceeds to state:
·~I dedicate the abovementioned two properties more fully
described in the schedule below in order that the daily·
and periodichl Seba etc. of the said Sri Sri Gopal
Thakur installed by n;iy husband may go on regularly.
From this day the said two properties become the
pebuttar properties of the said deity Sri Sri Gopal
Jiu Thakur and they vest in it in a state absolutely free
from encumbrances and defects. The saitl deity Sri Sri
Gopal Jiu becomes the full owner of the said two properties. As to this neither I nor any of my heirs and
legal representatives in succession
shall raise .0r be
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NIRMALA V. BALA! CHAND (Shah, J.)
553
entitled to lay any claim or demand at any time and
even if it be done it shall be wholly void and rejected"
Then the deed directs that "one good temple and ornaments worth
approximately Rs. 500/- for Sri Gopal Jiu Thakur will be made
out of the income of the Debuttar properties of Sri Gopal Jiu
Thakur and on the temple being constructed, the deity will be
installed and established therein and the expenses for worship etc.
and entertaining Brahmins and other expenses in connection with
the ceremony shall be met out of the income of the Debuttar properties of Sri Gopal Jiu Thakur". To meet the expenses for the worship of the deity the properties described in the schedule, it was
directed, will be let out on rent and all the exp6nses of the deity
will be defrayed out of the rents, that the Shebait shall maintain
proper accounts of the income and expenditure and deposit in the
deity's fund any surplus, repair the houses yearly, pay municipal
taxes etc., and out of the accumulations from the surplus income purchase immovable properties in the name of the deity and with the
income erect a house at 153, Beliaghata Main Road and deposit
the rent from that house in the Debuttar fund. The deed gives
detailed directions with regard to succession to the Shebaitship.
By the deed Nirmala and her husband Balai were constituted joint
Shebaits and it was directed that after Nirmala's death Balai shall
be the Shebait, am! after his death his two sons Paresh and Naresh
will become Shebaits of the deity. The settlor expressed the hope
that the two Shebaits and their lineal descendants will live in tlie
same mess as members of the family and directed that any one
who separated in mess will not be entitled to be a Shebait of the
deity, but if they separated in mess for want of accommodation
"out of their own accord and being unanimous", and all the properties remain joint, they shall be entitled to remain Shebaits. On
the death of the two sons, Paresh and Naresh, their sons will become Shebaits in accordance with the shares of their respective
fathers in the Shebaitship, and if any of the sons have more than one
son then all such sons will together get their father's turn of worship and will act in accordance with the terms of the deed and
carry on the worship of the deity and that in the absence of sons'
sons, the settlor's great grandsons will be appointed Shebaits, and
they will protect the Debuttar property. The deed then directs that
the daily Seba will be carried on in the same manner prescribed in
the deed of dedication relating to the Debuttar created by Balai
and the daily and periodical expenses for the worship of the deity
will be met out of the Debuttar properties dedicated by Balai. Provision was then made that on the occasion of each of the festivals
of Janmastami, Rasjatra and of Sri Gopal Jiu Thakur a sum of
Rs. 101 /- will be spent by the Shebaits for entertaining Brahmins
and the poor. A monthly remuneration of Rs. 25 /- is provided for
the person who acts as a Shebait and it is directed that so long as
the sons shall remain Shebaits in joint mess. they will get, for the
SUPREME L'OURT
REPJ tT~
(1965] 3 l.C.R.
expenses of their common family expenses four maunds of rice.
two ma'tinds of flour per month and Rs. 2 /- per day "for daily
.expenses". An additional amount of Rs. 101- per month is directed to
be spent on the Sankranti day i.e. on the last day of each month and
Rs. 51 /-on the occasion of Sivaratri out of the Debittrar estate. All
these exp~nscs, if is directed, are to be met out of the house rents and
the monthly Ticca rent of the lands of the Bmtee of the Debuttar
properties. but the Shebaits arc not entilled to let out the house or
land in permanent rights 10 any one nor are they entitled 10 mortgage, make a gift of. sell. encumber or transfer the S•lil:e in any
other manner. and if there be no tenant in the house or the rent
of the B11stee be not realised. the expenses of the deities will be
reduced and the Silebaits will get reduced remuneration proportionately.
Provision
is
made for the devolution of the office of
Shebait. Descendants in the female line are excluded from Shebaitship, until the entire male line is extinct. Provision is also made for
application of the compensation received for Debuttar property:
it is directed that out of the amount of compensation immovable
properties will be purchased by the Sh~baits in the name of the
deity or the amount will be invested in Government paper in the
name of the deity, and out of the interest thereof disbursements
directed in the deed will be made. The deed then directs that the
surplus amount remaining after meeting the cost of worship will
be a~cumulated. The Slzebaits are prohibited from residing in or
otherwise using the houses appertaining to the Debuttar estate and
it is directed that if any one resides or uses it. he will remain bound
to pay proper rent. Paragraph 12 of the deed then provides:
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"II in future the Shebaits be in want of rooms for their
residence then each of them will take three Cottahs of
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land within the Bustee No. 153, Beliaghata Main Road
beginning from the southern extremity and after erecting houses thereon at his own expense will continue
to enjoy and possess the same down to his sons, sons'
sons and other heirs in succession on payment of a
rent of Rs. 2 /- per Cottah per month to the Debuttar
O
estate and will pay for. taxes. rent~ and repairs etc. of
the said house from their respective funds".
In the event of any Slzebait dying sonless after constructing a
house, his widow will be entitled during her lifetime to reside in
the house and will also be entitled to get food and Rs
5 /- pcr
H
month as expenses. The deed then again states:
"Be it stated that no one will at any time be entitled to make
gift, sale or transfer in respect of the house built in
the said Bustee. The said house will form a part of the
De/mttar estate and the Shebait will
only remain in
possession of the same".
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N!RMALA <'. nALAI CHAND (Shah, J.)
555
Finally, the deed states that to the effect stated in the deed the
settlor gives to Sri Iswar Gopal Jiu Thakur installed by her husband "the properties etc. mentioned in the schedule below".
In the preamble as well as in the operative part of the deed,
it is stated that the settlor has dedicated the properties described
in the schedule to the deed for the purpose of carrying on the
worship of Sri Gopal Jiu Thakur. The deed expressly recites that
the properties have, by the deed of dedication, bec.ome the properties of the deity and they vest in the deity absolutely free from all
encumbrances, and that no other person has any right therein. The
deed undoubtedly contains some inconsistent directions, but the
predominant theme of the dedication is that the estate belongs to
the deity Sri Gopal Jiu and that no one else has any beneficial
interest therein.
The plea raised by Balai in the two suits was that the deed
of dedication Ext. l l(a) was "a mere colourable one and was never
acted upon" and that by the deed a cloud was "cast on" his title.
The Trial Court accepted the plea. The High Court held that the
deed was valid, but thereby only a partial dedication was intended.
That there is a genuine endowment in favour of the deity Sri Gopal
Jiu is now no longer in dispute. The only question canvassed at
the Bar is whether the dedication is partial 9r complete. Balai contends that it is partial: the deity represented by Nirmala contends
that it is absolute. Where there is a C:eed of dedication, the question
whether it creates an absolute or partial dedication must be settled
by a conspectus of all the provisions of the deed. If the property is
wholly dedicated to the worship of the idol and no beneficial interest is reserved to the settlor, his descendants or other persons, the
dedication is complete: if by the deed what is intended to create
is a charge in favour of the deity and the residue vests in the
settlor, the dedication is partial. Counsel for Balai contends that
notwithstanding the repeated assertions in the deed of dedication
that the property was endowed in favour of Sri Gopal Jiu and that
it was of the ownership of the idol, the deed contained diverse
directions which indicated that the dedication was intended to be
partial. Counsel relied upon the following indications in the deed
in support of the contention:
(!) A hereditary right was granted to the lineal descendants of ti)e settlor in the male line to act as Shebaits,
and provision was made for their residence, maintenance and expenses. This was not restricted to the Shebaits only, but enured for the benefit of the members
of the Shebaits' families.
(2) The income of the endowed property was In excess of
the amounts required for the expenses of the deity.
Expenses of the deity were, it was contended, static,
whereas the io~hme was expanding, leaving a large
556
IUPllUlll COUllT &HPORTi
[1~~5] 3 s.c.a ..
surplus undisposcd of. Provi~ion was made for reducing the expensei of the deity in the event of the income
of the property contractini:.
(3) The deed was supplementary to another deed executed
by Balai for the benefit of the deity, and the expenses
of the deity were primarily to come out of the property
endowed under that deed.
(4) Direction for accumulation of income of the property
endowed, and other properties which may be acquired,
without any provision for disposal of the accumulation
disclosed an intention on the part of the scttlor to tic
up the property in perpetuity for the benefit of the
male descendants subject to a fixed charge in favour
of the deity.
We do not propose to express any opinion on the validity
or otherwise of the directions. under which provision for accumulation of income is made or benefit is given to persons other than
the Shebaits arc concerned. This enquiry is ol)ly directed to the
question whether on the assumption that the directions are valid.
they indicate an intention on the part of the scttlor to create merely a charge on the estate endowed, reserving the beneficial interest
in the scttlor or her heirs.
A reasonable provision for remuneration.
maintenance and
residence of the Shebaits does not make an endowment bad, for
even when property is dedicated absolutely to an idol. and no
beneficial
interest is reserved to the senior. the property is held
by the deity in an ideal sense. The possession and management of
the property must. in the very nature of things. be entrusted to a
Shebair or manager. and nomination of the settlor himself and his
heirs with reasonable remuneration out of the endowed property
with right of residence in the property will not invalidate the endowment. A provision for the benefit of persons other than the
Shcbait may not be valid. if it infringes the rule against perpetuities
or accumulations. or rules against impermissible restrictions. but
that docs no, affect the validity of the endowment. The beneficial
interest in the provision found invalid reverts to the deity or the
settlor according as the endowment is ahsolute or partial. If the
endowment is absolute, and a charge creat< d in favour of other
persons is invalid the benefit will enure to the deity. and not revert
to the settlor or his heirs.
Evidence about the income of the endowment in 'avour of Sri
Gopal Jiu is somewhat vague and indefinite. The deed of endowment executed by Rdai for the deity to which the present deed
Ext. 11 fa) is supplementary is not before the Court, and there is
on the n:cord no evidence about the income from that endowment
and the directions made thereunder.
The defect in the record is
directly traceable to the nature of the plea raised by Balai in the
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NmMALA V. BALA.I CHAND (Shah, J.)
Court of First Instance. He had pleaded that the endowment
Ext. l l(a) made by his wife Nirmala was a "sham transaction" and
was not intended to create any interest in the deity:
it was not
the case of Balai that the endowment though valid was partial and
created a mere charge upon the property in favour of the deity.
Suits Nos. 79 & 80 of 1954 were tried with suit No. 67 bf 1955
and the question whether the endowment in favour of Sri Gopal
Jiu was partial or absolute appears to have been raised without
any pleading in the former suits. There is, however, some evidence
on this part of the case, to which our attention has been invited,
and on which the argument to support the decree passed by the
High Court is founded by counsel for Balai. Under the deed of
dedication Ext. 11 (a) "one good temple and ornaments worth approximately Rs. 500" are to be provided for out of the property
endowed. Janamashtami, Rasjatra and other festivals are to be
annually celebrated and in respect of each of these festivals
Rs. 101 I· are to be expended. The Shebait's remuneration is fixed
at Rs. 25 I· per month and for the benefit of the family of the Size.
bait four maunds of rice, two maunds .of Atta and a sum of Rs. 21·
per day for the daily expenses are provided. For performing the
Seba of Sri Satyanarayan Jiu on Sankranti day every montF
Rs. 10/- have to be spent, and Rs. 51 I· have to be spent on the
Sivaratri day. Provision has been made for paying Rs. 2/· per
month to a pious widow of the family for helping in the Puja and
to a widow bf a Shebait expenses at the rate of Rs. 5 I. per month
have to be paid. In the aggregate, these would amount to Rs. 2,4001·
per annum at the rates prevailing in 1939.
Income at the date of the endowment from the Bustee land
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153/ 1 was estimated by Nirmala to be Rs. 501· per month, and
income from
the house Nos. 155 & 15412 was estimated at
Rs. 200 I·. There is no clear evidence about the Municipal br other
taxes, rent collection expenses and repairs. But on the materials
found on the record, the plea that the income of the properties was
largely in excess of the total expenses to be incurred cannot be
G
accepted. The settlor had provided that if a Shebait is unable to
reside in the hbuse, he will be entitled to get a plot of land out of
premises No. 153 at the rate of Rs. 21· per month: whether this
rent was nominal or real, need not be investigated. If provision for
residence of the Shebait can be made under a deed of endowment
without affecting its validity, a provision whereby the Shebait will
H
be entitled to use the land belonging to the deity at specially lbw
rates may not by itself amount to an impermissible reservation by
the settlor. The plea that this was a simulate endowment has been
abandoned by Balai. Assuming therefore that the charge for rent
to be levied from the Shebaits as monthly rental was nominal, the
validity of the deed of dedication will not on that ground be affected. Use of land in future by the Shebaits for erecting houses will
undoubtedly reduce the land available for letting out at market
LjP(N4SCI-9
558
St;PREME COURT REPORTS
(1965) 3 B.O.R.
rates. If the annual income of the deity was Rs. 3,000/- per annum,
and some income under the deed of endowment executed by Balai,
and the outgoing were Rs. 2,400/- beside taxes, collection charges
for rents and the expenses for repairs, it would be reasonable to
hold that there was not much disparity between the total income
which the deity received in 1939 and the estimated outgoings. The
fact that on account of the pressure on land increasing in the town
of Calcutta, the rentals of immovable property may have gone up
later, will be irrelevant in decidin~ whether a substantial residue
was not disposed of by the deed. The direction in paragraph 6 of
the deed that in the event of the rent not being realised, the expenses of the deity will be proportionately reduced and there will be
proportionate reduction in
the
remuneration to be paid to the
Shebaits also acquires significance.
Whether the provision
for
accumulation of income of the
endowment is valid, does not call for determination in this case.
If there is an absolute dedication. but the direction for accumulation is invalid, the benefit of the income will enure for the benefit
of the deity without restriction: the Income will not revert to the
set ti or.
The High Court observed that the deed commenced with what
purported to be an absolute dedication to the deity, but it was
clear that the expenses for the Seba-Puja and other expenses of
the deities under the deed were not of an expanding character,
there being specific recitals in the deed which indicated that the
dedication was merely supplementary to the earlier deed of endowment by Balai for the Seba-Puja etc. of the deity. The High Court
observed:
"As a matter of fact there was specific recital in the deed
itself, which indicated that it was merely to be supplementary to the earlier Debuttar deed of the husband
Balai Chand Ghose, for the purpose of enabling the
said Sheba Puja etc. to be carried on regularly and in
a satisfactory manner. The e~penses are practically all
mentioned in the deed itself and however
elaborate
they may be, having regard to the nature of the properties and the estimate of the income, as appearing in
the evidence before us, it is difficult to hold that any
large part of said income would be spent on those
expenses. This. undoubtedly, is a strong test in favour
of holding that what was merely the creation of a
charge for those expenses out of the properties, mentioned in the Schedule to the deed. Moreover under
this deed (Ext. 11 (a)) (Vide clause 3) so far as the
daily and periodical Shebas were concerned their expenses. or at least, the daily
Sheba expenses, both
fixed : 1d occasional,
.
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. were to be met
out or the husband's <Balai Chand's) earlier Debuttar
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thus leaving practically not much pressure upon the
properties covered by this deed, Ext. I !(a). It is true
that in
several
places of this deed
(Ext.
I Ha),
reference has been made to the income of the
Debuttar
~tate or advantages
to
the
Debuttar
estate or investment, in the Debuttar estate, but they all,
in the context. can be read as referring to the Debuttar
estate, which was created by the dedication in question,
namely, the partial Debuttar or the charge which was
created in favour of the particular deity. Where a charge
is created and a dedication is made, it will not be inappropriate to refer to the dedicated properties as Debuttar, though only for the limited purpose of providing
for that charge. That, indeed, is the meaning of partial
dedication, as understood in Hindu Law.
The mere
use of the word 'Debuttar' would not necessarily constitute a particular endowment an absolute Debuttar. On
the same principle and in sam(lo. context, the payment
of rent by the Shebaits, occupying particular portion
of the dedicated properties for purposes of their residence, may also be explained. As a matter of fact on
a reading Of the entire deed, in the light of the circumstances of this case and upon a full consideration of
the same, we are inclined to hold this deed, Ext. l l(a).
upon its true construction, did not create an absolute
Debuttar, but created only a charge in favour of the
deity Sri Sri Gopal Jiu, named therein, for the various
services and other necessities, referred to in several
paragraphs of the said deed, Ext. 11 (a)".
The High Court opined that because the income of the endowed
properties was large and was capable of continuous expansion, and
the expenses for the purposes of the dmty were fixed, it may be inferred that the settlor intended to create a mere charge and not an
absolute dedication in favour of the deity. In support of this pr<>
position, the High Court placed strong reliance upon the judgment
of the Judicial Committee in Surendrakeshav Roy v. Doorgasundari
Dassee and Another('). In that case Rajah Bijoykeshav Roy
bequeathed by his will property to a Thakur, to secure proper
performanGe of the Sheba and other ceremtmies and directed his
two widows each to adopt a son, both of such sons being appointed Shebaits, subject to the control of the widows during their
minority, with monthly allowance from the surplus income. The
residue was not disposed of. Before the Judicial Committee it was
urged that all the property had been devised under the will of the
Raja to the deity and the heirs of the settlor had become Sheba its
and were merely entitled to manage the property in the usual way.
In dealing with that contention the Judicial Committee observed
atp.127:
r> L.R. 19 I.A. 108.
SUPREME COUaT RF.PORTS
(11165) 3 B.C.B.
"It is true that by 'the first sentence of the will all is given
to the Thakoor; and though in the plaint the question
is mooted whether the gift is made bona fide (and of
course such gifts may be a mere scheme for making
the family property inalienable~ it has not been really
disputed.
Nor
indeed
could it well be disputed in
this case. For the last part of the will shews clearlY.
enough that the income was to be applied first in performing the sheba of the Thakoor who is mentioned
as the object of the gift, and of other family Thakoors.
and in meeting the prescribed monthly allowances, and
in performing the daily and fixed rites and ceremonies
'as they are now performed and met'.
The testator
must have been well aware that after all these charges
had been met there would be a very large surplus. In
fact he directs that out of the surplus each adopted
son shall receive Rs. 1,000/- monthly; but of the residue after that he says nothing.
There is no indication that the testator intended any extension of the worship of the family Thakoors. He does
not. as is sometime> done, admit others to the benefit
of the worship. He docs not direct any additional ceremonies. He shews no intention save that which may
be reasonably attributed to a devout Hindu gentleman,
viz .. to secure that this family worship shall be conducted in the accustomed way. hy giving his property to
one of the Thakoors whom he venerates most. But the
effect of that, when the estate is large, is to leave some
beneficial interest undisposed of. and
that
interest
must be subject to the legal incidents of property".
But the judgment does not lay down any rule that where the
income is expanding and the expenses are static, leaving a substantial residue, it must be presumed, notwithstanding the comprehensive and unrestricted nature of the disposition. that the settlor
intended to create only a charge in favour of the deity. The question is always one of intention of the settlor to be determined from
~ review of all the dispositions under the deed of settlement.
In Sri Sri /swari Bhubaneshwari Thakurani v. Brojnnath Dey
and Others(') certain properties were dedicated by two brothers to
a domestic deity and it was directed that the right of Shebait should
go to their male heirs by primogeniture. In dealing with a dispute
whether under the deed of settlement. there was an absolute dedication to the deity, the Judicial Committee observed at p. 211:
"The dedication is not invalidated bv reason of the fact
·
that members of the settlor's family are nominated as
r> L.R. ~I !. \.
203.
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561
Shebaits and given reasonable remuneration out of the
endowment and also rights of residence in the dedicated property. In view of the privileges attached to dedicated property it has not infrequently happened, as
the Law Reports show, that simulate dedications have
been made,.and a close scrutiny of any challenged deed
of dedication is necessary in order to ascertain whether
there has been a genuine divestiture by the settler in
favour of the idol. The dedication, moreover, may be
either absolute or partial. The property may be given
out and out to the idol, or it may be subjected to a
charge in favour of the idol. 'The question whether the
idol itself shall be considered the true beneficiary, subject to a charge in favour of the heirs or specified relatives, of the testator for their upkeep, or that, on the
other hand, these heirs shall be considered the true
beneficiaries of the property, subject to a charge for the
upkeep, worship and expenses of the idol, is a question
which can only be settled by a conspectus of the entire
provisions of the will', Pande Har Narayan v. Surja
Kanwari (L.R. 43 I. A.' 143). It is also of importance
to consider the extent of the property alleged to be
dedicated in relation to the expense to be incurred and
the ceremonies to be observed in the worship of the
idol. The purposes of the dedication may be directed
to expand as the income increases, or the purposes
may be prescribed in limiting terms so that if the
inc.,me increases beyond what is required for the fulfilment of these purposes it may not be protected by
the dedication".
In a recent judgment of this Court in Sree Sree lshwar Sridhar
Jew v. Sushi/a Bala Dasi and Others(') it was observed that the
question whether the idol itself is the true beneficiary subject to a ·
charge in favour of the heirs of the testator, or the heirs are the
true beneficiaries subject to a charge for the upkeep, worship and
expenses of the idol, has to be determined by a conspectus of the
entire deed or will by which the properties are dedicated and that
a provision giving a right to the Shebaits to reside in the premises
dedicated to the idol for the purpose of carrying on the daily and
periodical worship and festivals does not detract from the absolute
character of a dedication to the idol.
I: is inexpedient to construe the terms of one deed by reference to the terms of another, or to lay down general rules appli·
cable to the construction of settlements varying. in terms. In construing a deed, the Court has to ascertain the intention of the
settlor, and for that purpose to take into consideration all the
(') [195*) S.C.R. 4-07.
ii~2
8Ul'JU~:.MJ.: COURT REPORTI'
(1965] :I B.O.R.
terms thereof. If, on a review of all the terms, it appears that after
endowing property in favour of a religious institution or a deity,
the surplus is either expressly or by implication retained with the
settlor or given to his heirs, a partial dedication may readily be
inferred, apparently comprehensive words of the disposition in
favour of the religious endowment notwithstanding.
The terms of Ext. 11 (a) however disclose a clear intention that
the entire property was to belong lo the deity and no one else had
beneficial interest or title thereto. The Shebaits and their descendants are given a certain interest in the property, but that direction
does not cut down the absolute interest conveyed to the deity, nor
can it be interpreted as reserving a beneficial interest in favour
of the settlor or his heirs. The direction operates to create> a charge
upon the estate of the deity, and not to reduce the eslale itself to
a charge.
To recapitulate, therefore, the property is dedicated absolutely for the deb-seba of the deity: no beneficial interest is reserved
to the settlor or his heirs: and the direction for accumulation of
the income does not affect the validity of that dedication. Provision
for maintenance and residence of the Shebaits being an ordinary
incident of such a dedication cannot be interpreted as restrictive
of the estate of the deity. It is unnecessary to decide whether the
directions for appropriation of a part of the income for persons
other than the Shebaits may be valid; if it be invalid, the interest
will revert to the deity and not to the seltlor. It must, therefore,
be held that ExL 11 (a) creates an endowment for the benefit of the
deity absolutely, subject to certain charges in favour of the Shebaits
and tlJe descendants of the settlor.
It is unnecessary, in view of the course which the proceedings
in suit No. 67 of 1955 have taken, to set ou\ the terms of Ext. 11
execu~ea by Balai and Nirmala on September 15, 1944. Suit No. 67
of 1955 was filed originally by Balai against the two deities Sri
Satya11arayan Jiu and Sri Lakshminarayan Jiu and Nirmala, and
Balai sought to represent the two deities. On an objection raised
to the constitution of the action by Nirmala, Sunil Sekhitr Bhattacharjce was appointed guardian of the two deities for the action.
Bhattacharjee tiled a writcen statement denying the claim made
by Balai and submitted that th~ deJication in tavour of the deity
was absolute. An issue was raised about the nature of the endowment and the Trial Court declared that the endowment was partial
and the beneficial interest remained vested in Balai. The Trial
Court had rejected the case of the deities that there was an absolute dedication, and the guardian for the suit did not challenge
that decree on behalf of the two deities. Nirmala appealed and contended that there was an absolute dedication in favour of the deity,
but she did not represent the deities and could not raise that claim,
unless she got herself formally appointed guardian of the deity by
order of the Court. The High Court confirmed the decree passed
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NIRMALA u. BALA! CHAND (Shah, J.)
563
by the Trial Court, subject to certain modifications which are not
material.
In this appeal, the two deities are also impleaded as pai:tyrespondents, but the deities have not taken part in the proceedmg
before this Court, as they did not in the High Court. The decree
against the two deities has become final, no appeal having been
preferred to the High Court by the deities. It is not open to
Nirmala to challenge the decree insofar as it is against the deities,
because she does not represent the deities. The rights conferred by
the deed. Ext. 11 upon Nirmala are not affected by the decree of
the Trial Court. She is not seeking in this appeal to claim a more
exalted right under the deed for herself, which may require reexamination even incidentally of the correctness of the decision of
the Trial Court and the High Court insofar as it relates to the
title of the deities. It was urged, however, that apart from the
claim which Nirmala has made for herself, the Court has power
and is indeed bound under 0. 41 r. 33 Code of Civil Procedure to
pass a decree, if on a consideration of the relevant provisions of the
deed, this Court comes to the conclusion that the deed operates
as an absolute dedication in favour of the two deities.