TaxTMI 
TaxTMI 
TaxTMI 
1965 (3) TMI 107
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....ed 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. 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 deity 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 b....
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.... 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....
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....mount 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' sons and other heirs in succession on payment of a rent of ₹ 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". 5. In the event of any Shebait dying sonless after constructing a house, his widow will be entitled during her lifetime to reside in the hou....
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.... 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 indication is 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 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 e....
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....eable to the nature of the plea raised by Balai in the 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 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 ₹ 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 ₹ 101/- are to be expended. The Shebait's remuneration is fixed at ₹ 25/- per month and f....
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....oings. 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. 13. 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. 14. 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 supple....
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....n 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)". 15. 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. Doorgasundari Dassee and Another L.R. 19 IndAp 108. 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 r....
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....eed of settlement. 17. In Sri Sri Iswari Bhubaneshwari Thakurani v. Brojonath Dey and Others [L.R. 64 IndAp 203] 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 if the fact that members of the settlor's family are nominated as 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 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 whe....
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....ms 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 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 estate itself to a charge. 21. 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 settlo....
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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. 33, 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 :" 24. 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....
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.... 33 of the Code of Civil Procedure can be exercised in this case in favour of the deities. 26. 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. 27. Bachawat, J. I agree entirely with what has fallen from my learned brother, Shah, J. with regard to the deed, Ext. 11(a), and I 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. 28. 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 d....