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PETITIONER: NIRMALA BALA GHOSE AND ANOTHER

       Vs.

RESPONDENT: BALAI CHAND GHOSE AND ORS.

DATE OF JUDGMENT: 29/03/1965

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SUBBARAO, K. BACHAWAT, R.S.

CITATION:  1965 AIR 1874            1965 SCR  (3) 550  CITATOR INFO :  RF         1982 SC  98  (9)

ACT: Religious    Endowment--Debutter--Construction  of  deed  of settlement--Endowment whether  partial.  or  complete--Tests for deciding--Provision for maintenance of shebaits  whether makes  endowment  partial--Effect of invalidity  of  certain provisions    of    deed-Expanding   income    and    static expenses--Inference  from--Right of joint shebait to  appeal if deities represented by guardian ad litem. Code   of   Civil  Procedure  (5  of  1908)--Order   41   r. 33--Applicability  of--When decree can be amended in  appeal in favour of non-appealing party.

HEADNOTE: HELD: (i) The question whether a deed of dedication  creates an  abosulte  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 it is intended to create a charge in favour  of the   deity   and  the  residue vests in  the  settlor,  the dedication is partial. (ii)  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 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 Sitebait 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. [556E-G] (iii) A provision for the benefit of persons other than  the Shebait may not be valid, if it infringes the  rule  against perpetuities    or   accumulations,   or    rules    against impermissible  restrictions,  but that does not  affect  the validity  of the endowment. The beneficial interest  in  the provision  found  invalid  reverts  to  the  deity  or   the

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settlor  according as the endowment is absolute or  partial. If the endowment  absolute and a charge created in favour of other  persons  is invalid, the benefit will  enure  to  the deity,  and  will not revert to the settlor  or  his  heirs. [556G-H] (iv) There is no rule that when 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 a review of all  the  dispositions under the deed of settlement. [560G] Surendrakeshav Roy v. Doorgasundari Dassee and Anr. L.R.  19 I.A. 108, explained. Sri Sri Iswari Bhubaneshwari Thakurani v. Brojonath Der and Ors.  L.R.  64 I.A. 203 and Sree  Ishwar  Sridhar  Jew    v. Sushila Bala Desi and Ors. [1954] S.C.R. 407, relied on. 551 Per  Subba  Rao  and Shah, JJ.--When  the  guardian  of  the deities  did  not appeal against the finding  of  the  trial court  that there was a partial dedication, 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 open to another party to the litigation,  whose rights  are otherwise not affected by the 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 which 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 absolute, and the guardian ad litem of the  deities does not appeal, it open to a joint shebait even when he  is not a guardian to assail the decree in appeal. [565A] Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemanta  Kumari Debi, (1904) L.R. 31 I.A. 203, relied on. Sihebaiti  right  is  a right to  property.  This  right  is affected  by a declaration that the dedication 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 en-  titled  to defend his right even when the guardian of the deities  does not appeal. [565E, H] The Commissioner of Hindu Religious  Endowments,  Madras  v. Sri  Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,  [1954] S.C.R. 1005, referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION:  Civil Appeals Nos. 966   958 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. Gupte, Solicitor-General, 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. 1. The  Judgment  of SUBBA 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

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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 September 15, 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 552  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 March 8, 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  September  15,  1944,  Ext. 11,  did  not  amount  to absolute  dedication  of the properties to the  deities  Sri Satyanarayan Jiu and Sri Lakshminarayan Jiu.     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. [After stating the facts which gave rise to the appeals  His Lordship proceeded]     We may briefly set out the terms of the deed Ext. II(a). It  is  described  as a deed of  dedication  in  respect  of immovable  properties valued at Rs. 20,000 for the  Seba  of the  deity.  After describing the properties it  is  recited that  the settlor was  in  possession and enjoyment  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 GopaI 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 proceeds ,to state:               "I   dedicate   the    above   mentioned   two               properties   more  fully  described   in   the               schedule  below  in order that the  daily  and               periodical  Seba  etc. of the said   Sri   Sri               Gopal Thakur installed by my husband may go on               regularly.   From  this  day  the   said   two               properties  become the Debuttar 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 said  deity               Sri Sri  Gopal Jiu becomes the full -owner  of               the said two properties. As to this neither  I

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             nor any of my heirs and legal  representatives               in’ succession  shall raise or be                         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  expenses  of the  deity  will  be derrayed 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, and  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 the  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,  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  Shebart and it is directed that so long as  the  sons shall remain Shebaits in joint mess, they will get, for the 554 expenses  of  their common family expenses  four  maunds  of rice,  two  maunds  of flour per month and Rs. 2/-  per  day "for  daily expenses". An additional amount of Rs. 10/-  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 Debuttar estate.  All these  expenses,

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it is directed, are to be met out of the house rents and the monthly  Ticca  rent  of  the lands of  the  Bustee  of  the Debuttar  properties, but the Shebaits are not  entitled  to let out the house or land in permanent rights to any one nor are  they  entitled  to  mortgage, make  a  gift  of,  sell, encumber  or transfer the same in any other manner,  and  if there be no tenant in the house or the rent of the Bustee be not  realised, the expenses of the  deities will be  reduced and    the   Shebaits   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 Shebaits 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 accumulated. The  Shebaits  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:               "If in future the Shebaits be in want of rooms               for   their residence then each of  them  will               take  three Cottahs of 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 and other heirs in  succession               on payment of a rent of Rs. 2/- per Cottah per               month to the Debuttar estate and will pay  for               taxes,  rents  and repairs etc.  of  the  said               house from their respective funds".               In  the  event of any Shebait  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/- per 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               Debuttar  estate  and the Shebait  will   only               remain in possession of the same". 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, become 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

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no one else has any beneficial interest therein. The plea raised by Balai in the two suits was that the  deed of dedication Ext. 11 (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 or complete. Balai contends  that it  is  partial: the deity represented by  Nirmala  contends that  it is absolute. Where there is a deed  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:               (1)  A  hereditary right was  granted  to  the               lineal  descendants of the 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               income was expanding,  leaving a large               556               surplus undisposed of. Provision was made  for               reducing  the  expenses of the  deity  in  the               event   of   the  income   of   the   property               contracting.               (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 settlor to tie 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 are concerned. This  enquiry is only  directed to the question whether on the  assumption that  the directional are valid, they indicate an  intention on the part of the settlor to create merely a charge on  the estate  endowed,  reserving the beneficial interest  in  the

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settlor 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 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 a Shebait 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 Shebait may not be valid, if it infringes the  rule against  perpetuities  or accumulations,  or  rules  against impermeable   restrictions,  but that does  not  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 absolute or partial.  If  the endowment  is absolute, and a  charge  created 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 favour of  Sri GopaI  Jiu  is somewhat vague and indefinite.  The  deed  of endowment  executed  by  Balai for the deity  to  which  the present  deed Ext. 11 (a) is supplementary is not before the Court,  and  there is on the record 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 557 Court   of   First   Instance.  He  had  pleaded  that   the endowment  Ext. 11 (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 of 1955 and the question whether the  endowment  in favour of Sri GopaI Liu  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 rounded by counsel for Balai.  Under  the deed of dedication Ext. 11(a) "one good temple and ornaments worth apapproximately 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/- are to be expended. The Shebait’s  remuneration is fixed at Rs. 25/- per  month  and for the benefit of the family of the Shebait four maunds  of rice, two maunds of Atta and a sum of Rs. 2/per day for  the daily expenses are provided. For performing the Seba of  Sri Satyanarayan   Jiu  on  Sankranti  day every month Rs.  10/- have  to  be  spent, and Rs. 51/- 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 of a Shebait expenses at the rate of Rs. 5/- per month have to be paid. In the aggregate, these would amount  to  Rs. 2,400/per annum at the rates  prevailing  in 1939. Income  at  the date of the endowment from the  Bustee  land 153/1 was estimated by Nirmala to be Rs. 50/- per month, and income  from  the  house  Nos. 155 & 154/2 was estimated  at Rs. 200/-. There is no clear evidence about the Municipal or other  taxes, rent collection expenses and repairs.  But  on

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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 accepted. The settlor  had provided that if a Shebait is unable to reside in the house, he  will be entitled to get a plot of land out  of  premises No. 153 at the rate of Rs. 2/- 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  be entitled  to  use  the  land belonging  to  the deity at specially low 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 P(N4SCI--9 558 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 outgoing. 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 deciding 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 settlor. 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               expenses 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,

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             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.  II(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   and    occasional,               were  to  be met out of the  husband’s  (Balai               Chand’s)’ earlier Debuttar               559               thus  leaving  practically not  much  pressure               upon the properties covered by this deed, Ext.               11  (a). It is true that in   several   places               of  this  deed  (Ext.  11 (a),  reference  has               been  made  to  the  income  of  the  Debuttar               estate   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 H indu Law.               The mere use of the word ’Debuttar’ would  not               necessarily constitute a particular  endowment               an  absolute Debuttar. On the  same  principle               and  in same 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.  11(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  deity 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  proposition,  the High  Court placed strong reliance upon the judgment of  the Judicial  Committee  in Surendrakeshav Roy  v.  Doorgasundan Dassee  and Another(1). In that case Rajah  Bijoykeshav  Roy bequeathed  by  his will property to a  Thakur,  to   secure proper  performance  of the Sheba and other  ceremonies  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

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the heirs of the settlor had become Shebaits and were merely entitled to manage the property in the usual way. In dealing with  that contention the Judicial Committee observed at  p. 127: (1) L.R. 19 I.A. 108, 560               "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 sometimes               done,  admit  others  to the  benefit  of  the               worship.  He  does 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. by 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 a review  of all the dispositions under the deed of settlement. In  Sri Sri Iswari Bhubaneshwari Thakurani v. Brojonath  Dey and  Others(1)  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 by  reason               of  the  fact that members  of  the  settlor’s               family are nominated as               (1) L.R. 64 I.A  203,               561               Shebaits and given reasonable remuneration out

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             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 settlor 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.  Surju  Kanwari               (L.R.  43 1.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 income 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  Ishwar  Sridhar Jew  v.  Sushila Bala Dasi and Others(1)  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. It  is  inexpedient  to construe the terms of  one  deed  by reference  to the terms of another, or to lay  down  general rules applicable 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 (1) [1954] S.C.R. 407. 562 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.

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The terms of Ext. 11 (a) however disclose a clear  intention that  the entire property was to belong to the deity and  no one  else  had  beneficial interest or  title  thereto.  The Shebaits and their descendants are given a certain  interest in  tile 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 estate 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 Shebails may be valid;  if  it  be invalid,  the interest will revert to the deity and  not  to the  settlor. It must, therefore, be held that Ext.  11  (a) creates   an  endowment  for  the  benefit  of   the   deity absolutely,  subject  to certain charges in  favour  of  the Shebaits and the 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  out the  terms  of  Ext. 11 executed by  Balai  and  Nirmala  on September 15, 1944. Suit No. 67 of 1955 was filed originally by  Balai against the two deities Sri Satyanarayan  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   Sekhar Bhattacharjee was appointed guardian of the two deities  for the action. Bhattacharjee filed a written statement  denying the claim made by Balai and submitted mat the dedication  in favour 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 563 by  the Trial Court, subject to certain modifications  which are not material. In this appeal, the two deities are also impleaded as  party respondents,  but  the deities have not taken  part  in  the proceeding  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

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urged,  however, that  apart  from the claim  which  Nirmala has  made  for herself, the Court has power  and  is  indeed bound  under O. 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.  Order  41  r.  313, insofar  as  it  is  material, provides:               "The Appellate Court shall have power to  pass               any decree  and make any order which ought  to               have  been passed or made and to pass or  make               such  further or other decree or order as  the               case  may  require,  and  this  power  may  be               exercised  by the Court  notwithstanding  that               the  appeal is as to part only of  the  decree               and  may be exercised in favour of all or  any               of  the respondents or parties  although  such               respondents or parties may not have filed  any               appeal or objection:" The  rule is undoubtedly expressed in terms which are  wide, but it has to be applied with discretion, and to cases where interference  in  favour  of  the  appellant    necessitates interference  also with a decree which has by acceptance  or acquiescence  become  final  so as to enable  the  Court  to adjust  the  rights of the parties. Where in an  appeal  the Court reaches a conclusion which  is  inconsistent with  the opinion  of  the Court appealed from and  in  adjusting  the right  claimed  by the appellant it is  necessary  to  grant relief to a person who has not appealed, the power conferred by  O.  41 r. 33 may properly be invoked. The  rule  however does not confer an unrestricted right  to  re-open   decrees which  have become final merely because the appellate  Court does not agree with the opinion of the Court appealed from. The two claims made against Nirmala and the deities in  suit No.  67 of 1955, though capable of being joined in a  single action  were  distinct. Against the deities it  was  claimed that  the property was partially dedicated in their  favour; against  Nirmala it was 564 claimed  that  she was merely a benamidar  for  the  settlor Balai  and  that  she was not a Shebait under  the  deed  of settlement.  The  High Court has passed a  decree  declaring that dedication in favour of the deities is partial and  has further held, while affirming her right to be a Shebait that Nirmala was merely a benamidar in respect of the  properties settled by the deed. There was no inconsistency between  the two  parts of the decree, and neither in the High Court  nor in  this Court did Nirmala claim a right for  herself  which was  larger than the right awarded to her by the  decree  of the  Trial Court. In considering the personal rights claimed by Nirmala under the deed Ext. 11, it is not necessary, even incidentally, to consider whether  the deities were given an absolute   interest.  There  were  therefore  two  sets   of defendants in the suits and in substance two decrees  though related  were  passed.   One of the decrees can stand  apart from the other. 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 open to another party  to  the litigation, whose rights are otherwise  not  affected by the 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 which  he  has not claimed. Order 41 r. 33  is primarily intended to confer power  upon  the appellate Court to do justice  by  granting relief to a party who has not appealed, when refusing to  do

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so,  would result in making inconsistent,  contradictory  or unworkable orders. We do not think that power under O. 41 r. 33  of the Code of Civil Procedure can be exercised in  this case in favour of the deities.     Appeals  Nos.  966  and 968 of 1964  must  therefore  be allowed  with  costs  throughout. It is  declared  that  the properties in deed Ext. 11(a) were absolutely  dedicated  in favour  of  the deity Sri Gopal Jiu. Suits Nos. 79 &  80  of 1954 will therefore stand dismissed. This will, however,  be without  prejudice  to  the concession  made  on  behalf  of Nirmala  that  she was a benamidar of her husband  Balai  in respect  of the properties settled by the deed Ext. 11  (a). Appeal No. 967 of 1964 will stand  dismissed  with costs  in favour of Balai.     Bachawat, J. I agree entirely with what has fallen  from my learned brother, Shah, J. with regard to the deed, Ext. 1 1(a), and 1 agree that the deed creates an endowment for the benefit of the deity absolutely, subject to certain  charges in  favour  of  the  Shebaits and  the  descendants  of  the settlor. With  regard to Ex. 11, my learned brother has held that  it is  not open to Nirmala Bala to challenge the decree  passed in  Suit  No. 67 of 1955. With the greatest respect  for  my learned brother, I am unable to agree with this  conclusion. The trial Court decreed that the dedication under Ex. 11  is partial and not absolute, and I think it was open to Nirmala Bala to challenge the decree in the 565 High  Court,  and  on the appeal to  the  High  Court  being dismissed, it is open to her to challenge the decree of both the  Courts by an appeal to this Court. It is true that  the deities  were represented by independent guardians ad  litem for the purposes of this litigation. But Nirmala Bala is one of  the joint Shebaits of the deity, and as such, she has  a right to assail the decree.     In Maharaja Jagadindra Nath Roy Bahadur v. Rani  Hemanta Kumari Deb(1), Sir Arthur Wilson observed:                  "But  assuming the religious dedication  to               have been of the strictest character, it shall               remain  that the possession and management  of               the dedicated property belong to the  shebait.               And  this carries with it the right  to  bring               whatever   suits   are   necessary   for   the               protection of the property.  Every  such right               of  suit is vested in the shebait, not in  the               idol". As a joint Shebait of the deity, Nirmala Bala has the  right to  file this appeal against the decree which declares  that the  dedication is partial and not absolute. Such an  appeal is  necessary  for  the protection of the  property  of  the deity.  The other Shebait and the deities are parties to the appeal,  and  I  am unable to hold that the  appeal  is  not maintainable at the instance of Nirmala Bala.     Moreover, it is well-settled that a Shebaiti right is  a right  of  property. In The  Commissioner,  Hindu  Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt(3), B.K. Mukherjea, J. observed:                  "It  was  held  by  a  Full  Bench  of  the               Calcutta     High     Court    [Monahai     v.               Bhupendra(3)],  that  Shebaitship  itself   is               property, and this decision  was  approved  of               by  the  Judicial Committee in Ganesh  v.  Lal               Behary(4),   and  again  in   Bhabatarini   v.               Ashalata(5).  The  effect  of  the  first  two               decisions as the Privy Council pointed out  in

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             the last case, was to emphasis the proprietary               element in the Shebaiti right and to show that               though  in some respects an anomaly it was  an               anomaly to be accepted as having been admitted               into  Hindu Law from an early date. This  view               was  adopted in its entirety by this Court  in               Angurbala v. Debabrata(6) . It follows that the shebaiti right of Nirmala Bala under the deed,  Ex.  11  (a) is a right of property.  This  right  is affected by the declaration that the deed, Ex. 11(a) created a  partial and not absolute debuttar. The shebaiti right  is an  absolute  debuttar   is  certainly  different  from  the shebaiti right in a partial debuttar. The decree  (1) [1904] L.R. 31 I.A. 203, 210 (2)  [1954] S.C.R.  1005, 1018. (3) 60 Cal. 4.52. (4) 63 I.A. 448. (5) 70 I.A. 57. (6)  [1951] S.C.R. 1125.             566 under appeal therefore affects the shebaiti right of Nirmala Bala.  She  is aggrieved by the decree, and is  entitled  to challenge it in appeal. In  this  view  of the matter, I hold  that  the  appeal  by Nirmala  Bala  from  the decree in Suit No. 67  of  1955  is maintainable.    I  would,  therefore,  have  examined   the contention  of  the appellant with regard to Ex. 11  on  the merits,  and   then   disposed of the  appeal.  But  as  the majority  view is that the appeal is not   maintainable,  no useful  purpose  will  be served by an  examination  of  the merits of the appellant’s case with regard to Ex. 11. ORDER     Following the judgment of the majority, Appeals Nos. 966 and  968  of 1964 are allowed with costs throughout.  It  is declared  that  the  properties in  deed  Ext.  11(a)   were absolutely  dedicated in favour of the deity Sri Gopal  Jiu. Suits  Nos. 79 & 80 of 1954 will therefore stand  dismissed. This  will, however, be without prejudice to the  concession made  on  behalf of Nirmala that she was  benamidar  of  her husband  Balai in respect of the properties settled  by  the deed  Ext. 11(a). Appeal No. 967 of 1964 is  dismissed  with costs in favour of Balai. 567