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

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.

Reasoning:
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.