1. Deeds of dedication — Absolute versus partial endowment — Claims of benami ownership. (Para 1 , 3 , 4 )
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1965 Supreme(SC) 104
SUPREME COURT OF INDIA
J.C.Shah : K.Subba Rao : R.S.Bachawat
Nirmala Bala Ghose
Versus
Balai Chand Ghose
Case No. : 966 , 968 of 1964
Date of Decision : 3/29/65
Advocates Appeared: Gupta S.V. : Sastri A.V.Viswanatha
Advocates:
A.V.VISHWANATHA SASTRI, S.V.Gupta
A.V.VISHWANATHA SASTRI, S.V.Gupta
An endowment is absolute if the deed expresses the deity as the full owner and no beneficial interest is reserved for the settlor or heirs. Provisions for Shebaits' maintenance and residence are incidental and do not convert an absolute dedication into a partial one.
Headnote:(A) Hindu Law - Dedication of property to a deity - Absolute vs. Partial Dedication - Determination of intention from the deed - Provision for Shebaits' maintenance and residence - Code of Civil Procedure, 1908 - Order 41 Rule 33 - Power of appellate court to grant relief to non-appealing parties.
(B) Whether a dedication is absolute or partial 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 the intention is to create a charge in favour of the deity while the residue vests in the settlor, the dedication is partial. (Paras 9, 16)
(C) A reasonable provision for remuneration, maintenance, and residence of the Shebaits does not invalidate an absolute endowment. Since property dedicated to an idol is held in an ideal sense, management must be entrusted to a Shebait; thus, providing for the Shebait's upkeep out of the endowed property does not imply a reservation of beneficial interest by the settlor. (Paras 11, 16)
(D) The power of an appellate court under Order 41 Rule 33 of the Code of Civil Procedure to pass a decree in favour of a respondent who has not appealed is to be exercised with discretion. It is primarily intended to avoid inconsistent, contradictory, or unworkable orders and does not confer an unrestricted right to reopen decrees that have become final by acceptance or acquiescence. (Paras 22, 23)
Facts of the case:
A spouse executed a deed of dedication of certain properties to a deity. The other spouse later filed suits seeking a declaration of ownership, contending that the dedication was either a sham transaction or a partial dedication that created only a charge for the deity's worship, while the beneficial interest remained with the owner. The trial court and the High Court held the dedications to be either sham or partial.
Findings of Court:
The court found that the deed expressly stated the properties became the properties of the deity and vested in it absolutely, free from encumbrances. The provisions for the Shebaits' maintenance and residence were ordinary incidents of such dedication and did not reserve a beneficial interest for the settlor or heirs. Regarding a separate deed, since the deity did not appeal the finding of partial dedication, that decree became final and could not be reopened by a third party.
Issues: Whether the deed of dedication created an absolute or partial endowment; whether provisions for Shebaits' maintenance and residence detract from the absolute character of a dedication; and whether the appellate court can invoke Order 41 Rule 33 to grant relief to a non-appealing party.
Ratio Decidendi: The intention of the settlor is determined by reviewing all terms of the deed. If the deed declares the deity as the full owner and no beneficial interest is reserved, the dedication is absolute. Provisions for Shebaits' upkeep are charges upon the estate of the deity, not reservations of beneficial interest. Order 41 Rule 33 cannot be used to benefit a party who allowed a decree to become final unless it is necessary to resolve inconsistencies in the final orders.
Result: Appeals Nos. 966 and 968 allowed; Appeal No. 967 dismissed.
Legal Category Hierarchy
Table of Contents
2. Absolute transfer of ownership to deities — Creation of charges for worship — Reservation of beneficial interest for heirs. (Para 5 , 6 , 9 )
3. Reasonable Shebait remuneration and residence — Accumulation of surplus income — Effect on absolute dedication. (Para 11 , 13 , 14 , 19 )
4. Conspectus of deed provisions — Determination of absolute dedication — Non-invalidating effect of Shebait maintenance. (Para 9 , 11 , 18 , 19 )
5. First deed declared absolute dedication — Second deed's partial dedication affirmed. (Para 24 , 30 )
6. How is the distinction between absolute and partial dedication determined in a deed of endowment?
It is determined by a conspectus of all provisions. If property is wholly dedicated without beneficial interest reserved to the settlor or descendants, it is absolute; if it creates a charge with the residue vesting in the settlor, it is partial. (Para 9 , 16 , 18 )
7. Does providing remuneration, maintenance, or residence for Shebaits invalidate an absolute dedication to a deity?
No. Reasonable provision for remuneration, maintenance, and residence of Shebaits does not invalidate an absolute endowment, as the management of the property must necessarily be entrusted to a Shebait. (Para 11 , 17 , 19 )
8. Does the accumulation of surplus income or static expenses in an endowment imply a partial dedication?
Not necessarily. The intention of the settlor is paramount. Directions for accumulation or the fact that income exceeds static expenses do not automatically imply a reservation of beneficial interest. (Para 13 , 14 , 15 )
9. When can an appellate court exercise power under Order 41 Rule 33 of the Code of Civil Procedure to grant relief to a non-appealing party?
This power is exercised with discretion to avoid inconsistent or unworkable orders. It does not grant an unrestricted right to reopen decrees that have become final by acceptance or acquiescence. (Para 22 , 23 )
10. Is the right of Shebaitship considered a right of property?
Yes, Shebaitship is recognized as a right of property. Consequently, a decree that alters the nature of the endowment affects the Shebaiti right and entitles the Shebait to challenge such a decree. (Para 26 , 28 )
J.C.SHAH, J. (for himself and K. Subha Rao J.)
(1) 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 suit 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 15/09/1944 did not amount to an absolute dedication 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 court decreed suits Nos. 79 & 80 of 1954 holding that the plaintiff was the owner of the disputed properties and the deed of endowment Ext. 11 (a) executed on 8/03/1939 by Nirmala was `sham and colourable`. In suit No. 67 of 1955 the Subordinate Judge declared that Nirmala was a benamidar of Balai of the properties in suit and the deed of endowment dated 15/09/1944, Ext. 11, did not amount to absolute dedication of the properties to the deities Sri Satyanarayan Jiu and Sri Lakshminarayan Jiu.
(2) THE High court of Judicature at Calcutta, in exercise of its appellate jurisdiction, modified the decrees passed by the Trial court. The High court held that the deed Ext. 11(a) was not sham, but it amounted to a partial dedication in favour of the deity Sri Gopal Jiu i.e. it created a charge on the properties endowed for the purposes of the deity mentioned in the deed. The decree passed in suit No. 67 of 1955 from which appeal No. 269 of 1957 arose was dismissed subject to the `clarification or clarifications` that it created only a charge in favour of the city or deities for the purposes recited therein and that subject to the charge, the properties belonged to Balai. With certificates of fitness granted by the High court, these three appeals have been preferred.
(3) THE facts which give rise to these appeals are these. By his first wife, Balai with certitwo sons, Paresh and Naresh. After the death of his first wofe Balai married Nirmala who bore him four sons. Suresh Jogesh, Ramesh and Bhabesh. In 1954 Balai conteacted a third marriage and gave rise to cnarrels between. Nirmala and Balai. In 1919 Balai had purchased a house at No.2A Sabadhikari Lane in the town of Calcutta nad was living in that house with Nirmala. He installed in that house a family deity named Sri Gopal Jiu. On 13/06/1930 seven cottahas of homestead land comprising premises Nos. 155 and 155A (now Nos 155 and 154/2), Beliaghata Main Road, Calcutta, with buildings standing thereon were purchased by Balai in the name of Nirmala for Rs. 20,000.00. On 30/07/1937, two bighas and two cottahas of homestead land being the eastern portion of premises No. 153, Beliaghata Main Road, Calcutta were purchased for Rs. 15,000.00 also in the name of Nirmala. On 1/06/1938 a house at I-B Sarbadhikari Lane was purchased in the name of Nirmala for Rs. 7,000.00. On 8/03/1939 a deed of endowment Ext. 11 (a) styled Arpannama" (material clauses whereof which have a bearing on the dispute raised in two of these appeals will be presently set out) was executed by Nirmala dedicating premises Nos. 155 and 154/2, Beliaghata Main Road, to Sri Gopal Jiu. On 4/12/1940, premises No. 13, Beliaghata Road. comprising 4 bighas 11 chittaks and 14 sq. ft. of land with a building standing on a part thereof were purchased for Rs. 42,500.00 in the name of Nirmala and extensive additions and alterations were made in the building shortly thereafter. Balai and Nirmala moved into the new house at No. 13, Beliaghata Main Road. Sri Gopal Jiu was shifted from the Sarbadhikari Lane to the new house in premises No. 13, Beliaghata Main Road, and two deities Sri Satyanarayan Jiu and Sri
