NIRMALA BALA GLLOSE AND ANOTHER versus BALAI CHAND GHQSE AND ORS.

Citation: [1965] 3 S.C.R. 550 · Decided: 29-03-1965 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Directions issued

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

NIRMALA BALA GllOSE Al'cl> ANOTHER 
v. 
BALAI CHAND GHQSE AND ORS. 
March 29, 1965 
(K. SuoBA RAO, J. C. SHAH AND R. S. BACl!AWAT, JJ.I 
Relig'ous 
Endowment-Dcl>utter-Construction 
of 
deed 
of 
sottle112ent-Endowment whether 
partial 
or 
complete--Tests f<Yf 
deciding-Provision for maintenance of sh~':t•Us irheth9r 1nak:>s en-
dowment partial-Effect of inva.iditu of ccrta n provisions of deed-
E.rpanding income and static eXJJcnses-lnfcrcnce from-Right of 
joont sheba"it to appeal if deities represented by guardian ad !item. 
Code of Civil Procedure (5 of 1908)--0rder 41 r. 33-Applicability 
of-When decree can be amended in appeal in favour of non--0ppeal-
1ng party. 
HELD: (i) The question whether a deed of dedication creates 
an abosulte or part'al 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 ded;cation Ls CC'ffi-
p:ete: if by the deed it is intended to create a charge :n favour of 
the deity and 
the residue vest• in the settlor, the dedicat'on i• 
partial. 
(ii) A reasonable provision for remuneration rna:ntenance and 
residence of the Shebaits does not make an endowment bad, for 
even when property is ded'cated absolutely to .an idol, and no bene-
ficial interest is reserved to the settlor, the property is held by the 
deity in an ideal sense. The possession and management of the pro-
perty must, in the very nature of things, be entrusted to Shebait or 
manc:ger and nomination of the settler himself and his heirs with 
rea~onablc rC'muncrat~on 0 11t of the cndo\ved property \vith right of 
residence in the property will not invalidate the endowment. [556E-GJ 
(i'i) A provision for the benefit of perscns other than :he Shebait 
may not be valid, if !t infringes the rule against pcrpetJitics er 
accumulat1ons, or rules agains: impermiss:bic res<rict;ons, but that 
does not affect the validity of the endowm<mt. The bcnefic;al interest 
in the provis~on found ;nvalid reverts to the deity or the settlor 
according as the endo\vmr.nt is abso~utc er partial. lf the endo\\·mcnt 
:s absolute and a che:rgc crcatrd !n favour •)f other persons is invalid, 
the benefit will enure to the d1•ity, and will not revert to the settlor 
or his he'rs. (556G-ll] 
(iv) There is n:> rule that \vhen the incumP is expanding and the 
expenses arc stat~c. leav:ng a substantial residue, it must be pre-
sumed, not\\';ths:anding the comprrhcnsive and unrcstric'.ted nature 
c-f the dispos'.tion. that the> sctt~or intended to create only a charge 
in f~vour of the C~ity. The quest.on is alwavs one of intention of 
the settler to be determined from a rcv:r.·,i; of all the dispositions 
under the deed of settlement. r560G] 
Surendrakeshrw Roy v. Doorgasundar< Dassee and A11r. L. R. 19 
I.A !08. explained. 
Sri Sri ls1cari BhubanPshtcari Thalcurani v. Brojon~th Dev and 
Ors. L.R. 64 I.A. ~03 and Sree Sree /shu:ar Sridhar Jew v. Sushi!a 
Bala Desi and Ors. [ 1954] S.C.R. 407. rel!ed on. 
550 
A 
... 
B 
D 
E 
F 
0 
B 
NIRMAL.\ V. ll,\LAC CHANJl (Shah, J.) 
551 
A 
Per Subba Rao rnd Shah, JJ.--When the guardian of the deitie, 
did not app·eal against the finding of the tr:al com;! that there was 
a partial ded'cation, it was not open to a joint Shebait who was not 
a guardian, to appeal against the decree and contend that the dedi-
cation 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 
B 
open to another party to the lit'gation, whose rights are otherwise 
not affected by tho 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 wh'.ch 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 abso-
C 
lute, and the guardian ad !item of the deities o!ces not appeal, ·it is 
open to a jo'nt shebait even when he is not a guardian to assail the 
decree in appeal. [56.5A] 
D 
E 
F 
G 
H 
Maharaja Jagadindra Nath Roy Baha"dur v. Rani Hemanta Kumari 
Debi, (1904) L. R. 31 I. A. 203, relied on. 
Shebaiti right is a right to property. This right is affected by a 
declaration that the dedica)ion in favour of the deities is partial and 
not absolute. The shebaiti right i

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