Case: Nirmala Bala Ghose And Another Vs. Balai Chand Ghose And Ors

Shah, J.(for himself and K. Subba 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 September 15,1944 did not amount to an absolute dedication of the properties in suit to the deities Sri Satyanarayan Jiu and Sri Lakshminarayan, Jiu and that the plaintiff is the sole shebait of the two deities. The Trial Court decreed suits Nos. 79 and 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 Sir 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 certificate 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 had two sons, Paresh and Naresh. After the death of his first wife. Balai married Nirmala, who bore him four sons, Suresh, Jogesh, Ramesh and Bhabesh. In 1954 Balai contracted a third marriage and that gave rise to quarrels between Nirmala and Balai. In 1919 Balai had purchased a house at No. 2-A Sarbadhikari Lane in the town of Calcutta and was living in that house with Nirmala. He installed in that house a family deity named Sri Gopal Jiu. On June 13, 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-. On July 30, 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 also in the name of Nirmala. On June 1, 1938 a house at 1-B.Sarbadhikari Lane was purchased in the name of Nirmala for Rs.7,000. On March 8, 1939 a deed of endowment Ext. 11 (a) styled Arpanama" (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 December 4, 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 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 Lakshminarayan Jiu were installed in the new house. By deed of dedication Ext. 11 dated September15,1944 executed by Balai and Nirmla, three properties-premises Nos. 13, Beliaghata Main Road, 1-B Sarbadhikari Lane and 37, Sura First Lane-were dedicated for the benefit of Sri Satyanarayan Jiu and Sri Lakshminarayan Jiu. After 1947, on parts of the open land in premises No. 13, four houses were constructed and a part of the land was let out by Balai. 4. On September 11, 1954, Balai filed suit No. 79 of 1954 claiming a declaration that he was the owner of premises No. 153, Beliaghata Main Road. On the same day, he filed another suit No. 80 of 1954 claiming a declaration that he was the owner of premises Nos., 155 and 154/2. To both these suits Nirmala and Sri Gopol Jiu represented by Nirmala, were impleaded as party-defendants. Balai filed a third Suit-No. 67 of 1955-for a declaration that Nirmala was his benamidar in respect of the properties described in the plaint and that by the deed of endowment dated September 15, 1944 there was no absolute dedication in favour of Sri Satyanaraym Jiu and Sri Lakshminarayan Jiu, but the property was charged for worship and for a declaration that he was the sole shebait of the deities. To this suit the two deities represented by one Sunil Sekhar Bhattacharjee were impleaded as defendants 1 and 2. Nirmala was impleaded as the third defendant. 5. It was the case of Balai in suits Nos. 79 and 80 of 1954 that the deed Ext. 11 (a) dated March 8, 1939 executed by him dedicating the properties to Sri Gopal Jiu was a "sham and nominal" transaction and that he was and remained the owner of the properties and was in possession thereof. In suit No. 67 of 1955, it was not the case of Balai that the deed of dedication was simulate; his case was that under the deed Ext. 11 a charge was created for purposes set out therein in favour of the two deites and subject to that charge he was the owner of the properties endowed. 6. Suits Nos. 79 and 80 of 1954 ,were resisted by Nirmala on behalf of herself personnally and as representing the deity Sri Gopal Jiu. She contended that premises Nos. 153, 155 and 154/2 were acquired by her with the aid of funds gifted to her by her husband Balai and the acquisition was not made benami for Balai, that in any event Balai was bound by the deed dated March 8, 1939, that the deed of endowment dedicating the properties to the deities was not "colourable,or sham, and that since the date of dedication the deity was in possession. Balai could not claim a declaration that he was the owner of the property. In suit No. 67 of 1955 Nirmala contended that she had purchased the three properties in suit with her own stridhan funds an that she was not a benamidar for Balai, that the allegations made by Balai that, he was in possession was false, that the endowment made on September 15, 1944 was an absolute debuttar transferring the ownership to the deities absolutely, that Balai was neither the sole shebait nor the owner of the properties and that the deities were the owners thereof. It was contended on behalf of the deities that there was an absolute endowment created by the deed Ext. 11 and that the deities were the owners of the properties endowed by the deed. 7. The Subordinate Judge held that the deed Ext. 11(a) was "a sham and colourable transaction" that it was never acted upon by the parties and that Balai was entitled to the declaration claimed by him. In suit No. 67 of 1955 he held that by the deed Ext. 11 the properties settled were charged for the Seba-puja of Sri Satyanarayan Jiu and Sri Lakshminarayan Jiu, and of the residue Balai was the owner. He accordingly decreed suits Nos. 79 and 80 of 1954 declaring Balai to be the owner of the properties in suit. He also decreed suit No. 67 of 1955 declaring that the properties in dispute therein were only charged with Seba-puja of the deities. In appeals Nos. 268 and 270 of 1957 against the decrees in suits Nos. 79 and 80 of 1954 by Nirmala and Sri Gopal Jiu, the High Court of Calcutta held that the deed Ext. 11(a) was a valid and effective dedication which created a partial dedication in favour of the deity Sri Gopal Jiu for purposes of the deity as set out in the deed. In appeal No. 269 of 1957 from the decree in suit. No. 67 of 1955 the High Court affirmed the view of the Trial Court that by the deed Ext. 11, subject to the direction that the Seba-puja of Sri Satyanarayan Jiu and Sri Lakshminarayan Jiu will be carried on, the properties will stand charged for the various purposes and expenses mentioned in the deed. The High Court issued a consolidated direction in the two sets of the appeals that the Subordinate Judge will, on application by the parties interested, ascertain "all the charges and the amounts and the other details mentioned in the two deeds Exts. 11 and 11(a)" and make a suitable provision for the temple or the location of the respective deities and also for the Shebaits residence in terms of the dedication and the temple or temples and the Shebaits residence and dispose of the suits by passing appropriate final decrees. The High Court directed:"In working out the charges etc. as aforesaid, for giving effect to the purposes of the two deeds of dedication [Arpannamas Exts. 11 and 11 (a)], the learned Subordinate Judge will make suitable provision for the "temple or temples for the location of the respective deities and also for the Shebaits residence in terms of the said Arpannamas and the temple or temples and the Shebaits residence so provided, will be absolute Debuttar in the light of the decision of Iswari Bhubaneswari Thakurani v. Brojo Nath Dey, (64 Ind. App. 203): (AIR 1937 PC 185 ) affirming on appeal Surendra Krishna Ray v. Shree Ishwar Bhubaneshwari Thakurani, I.L.R. 60 Cal. 54 : (AIR 1938 Cal 295 ) as, so far as that matter is concerned, in view of the aforesaid authority, that alone is the proper way to give effect to the purpose of the aforementioned two deeds of dedication [Exts. 11 and 11(a)] and the charges created thereunder." The appellant Nirmala does not, in these appeals, challenge the finding that she was a benamidar for Balai in respect of the properties purchased under the deeds dated June 13, 1930 and July 30, 1937 and December 4, 1940, that the properties belonged to Balai and that the real executant of the deed Ext. 11 was Balai. The only plea advanced by Nirmala is that by the two deeds Exts. 11(a) and 11 an absolute and not a partial dedication in favour of the deities was intended. For reasons, which we will presently set out, it is unnecessary to consider the appellants plea in respect of the properties endowed under the deed Ext. 11. 8. We may briefly set out the terms of the deed Ext. 11(a). It is described as a deed of dedication in respect of immoveable 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 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 proceeds to state:"I dedicate the abovementioned 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 nor any of my heirs and legal representatives in succession shall raise or be entitled to lay and 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 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 defrayed out of the rents, that the Shebait shall maintain proper accounts of the income and expenditure and deposit in the deitys fund any surplus, repair the houses yearly, pay municipal taxes etc, and out of the accumulations from the surplus income purchase immoveable 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 Nirmals 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 fathers 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 settlors 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 expenses at their common family 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 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 immoveable 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 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 sait Bustee. The said house will form a part of the Debuttar estate and the shebait will only remain in possession of the same." 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 no one else has any beneficial interest therein. 9. 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 concepectus 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. The 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 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. 10. We do not propose to express any opinion on the validity or otherwise of the directions; under which provision for amumulation 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 directions 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 settlor or her heirs . 11. A reasonable provision for remunerations, 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 thing, 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 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 settlor according as the endownment it absolute or partial. If the endowment is absolute, and a charge created in favour of other person; is invalid, the benefit will enure to the deity, and not revert to the settlor or his heirs. 12. Evidence about the income of the endowment in favour of Sri Gopal 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 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 and 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 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 Shebaits remuneration is fixed 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 Sankaranti 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. 13. 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 and 154/2 was estimated at Rs. 200. There is no clear evidence about the Municipal or other taxes, rent collection express 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 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 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. User of land in future by the Shebaits for erecting houses will undoubtedly reduce the land available for letting out at market 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 outgoings 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 immoveable 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-A 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. 14. Whether the provision for accumulation 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. 15. 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 Chose, 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 its, it is difficult to hold that any large part of the said income would be spent on those expenses. This, undoubtedly, is a strong test in favour of holding that, what was intended 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 and occasional were to be met out of the husbands (Balai Chands) earlier Debuttar 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 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 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 that 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. Doorgasundari Dassee, 19 Ind App 108 (PC). 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 the heirs of the settlor had become Shebatis, and were merely entitled to manage the property in the usual way. In dealing with that Contention the Judicial Committee observed at p. 127: 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 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 shows 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. 16. In 64 Ind. App. 203: (AIR l937 PC 185) 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 (of 64 Ind. App.): (at pp. 187-188 of AIR):"The dedication is not invalidated by reason of the fact that members of the settlors 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 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 Kunwari, 48 Ind. App. 143: (AIR 1921 PC 20). 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." 17. In a recent judgment of this Court in Sree Sree Ishwar Sridhar Jew v. Sushila Bala Dasi, 1954 SCR 407: (AIR 1954 SC 69 ) 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. 18.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 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. 19. 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 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. 20. 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 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. 21. 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 sough 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 that 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 arise that claim, unless she got herself formally appointed guardian of the deity by order of the Court. The High Court confirmed the decree passed by the Trial Court, subject to certain modification which are not material. 22. 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 re-examination 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 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. Under 41 B. 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 filled 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: 23. 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 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 Q. 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 Rs.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 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.

Decision:
1[ds]22. 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 re-examination 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 O. 41 R. 33Code 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. Under 41 B. 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 filled 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:23. 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 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 Q. 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 Rs.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 so, would result in making inconsistent, contradictory or unworkable orders. We do not think that power under O.41 R.33 of theCode of Civil Procedure can be exercised in this case in favour of the deities10. We do not propose to express any opinion on the validity or otherwise of the directions; under which provision for amumulation of income is made or benefit is given to persons other than the Shebaits are concerned. This enquiry is only directed to the questionwhether on the assumption that the directions arevalid,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 settlor or her heirs14. Whether the provision for accumulation income of the endowment isvalid,does not call for determination in this case. If there is an absolute dedication, but the direction for accumulation is, thebenefit of the income will enure for the benefit of the deity without restriction: the income will not revert to the settlor.