Nirmala Bala Ghosh and Another vs Balai Chand Ghosh

P.N. Mookerjee, J.—These three appeals are at the instance of the contesting defendant or defendants in the three suits, out of which the appeals arise. The suits were instituted in or about the year 1954 and 1955 and they were numbered as Title Suit Nos.79 and 80 of 1954 and Title Suit No.67 of 1955 in the Eighth Court of the Subordinate Judge at Alipore, 24-Parganas. In Title Suits Nos.79 and 80 of 1954, the plaintiff Balai Chand Ghosh prayed for a declaration that he was the owner of the disputed properties, included in the suit, and that the deed of endowment, mentioned in the plaint, and marked as Ex. 11(a), was a sham and colourable document, which was never acted upon or given effect to. In Title Suit No.67 of 1955 the same plaintiff prayed for a declaration that the main contesting defendant Nirmala Bala Ghosh, who was his wife was his benamdar, so far as the disputed properties were concerned, and that the deed of endowment, mentioned in the plaint and marked as Ext. 11 did not create or constitute an absolute dedication to the deities, named there in, but created only a charge for their Sheba Puja. In this suit, there was also a prayer by the plaintiff that he was the sole shebait of the said deities although, in the deed (Ext. 11), he and his wife Nirmala Bala were apparently made joint Shebaits. The suits have been decreed by the learned Subordinate Judge except with regard to the plaintiff''s prayer that he was the sole Shebait under the Arpannama (Ext. 11). From these decrees, the present appeals have been filed by the principal contesting defendant or defendants, that is, Nirmala Bala as Shebait of the deity or deities concerned and/or for self.

In the Court below, the defence plea was that the suit properties were originally Nirmala Bala''s own properties, having been acquired, not only in her name but also with her money and for her benefit and that, thereafter they were constituted the debuttar estates of the deities, mentioned in the two Arpannamas [Exts. 11 and 11(a)]. In this Court, as we shall see presently, that plea has been just a little modified.

Of the three appeals before us, namely, Nos.268, 269 and 270 of 1957, First Appeal No.268 of 1957 arises from the decree in Title Suit No.79 of 1954; First Appeal No.269 of 1957 arises from Title Suit No.67 of 1955; and the third or the remaining Appeal, F.A. No.270 of 1957 arises from the remaining suit, Title Suit No.80 of 1954. In the two appeals, First Appeal No.270 of 1957, both Nirmala Bala and the deity Sri Sri Gopal Jew, represented by her as the Shebait under the Arpannama [Ext. 11(a)] are the appellants before us. In the other appeal, First Appeal No.269 of 1957, Nirmala Bala aloen is the appellant.

The relevant facts lie within a short compass and the two questions, which really rise for consideration, are whether the suit properties originally belonged to the husband Balai Chand Ghosh or to the wife Nirmala Bala Ghosh and whether, under the two Arpannamas [Exts. 11 and 11(a)], valid debuttars, either partial or absolute, have been created. The learned Subordinate Judge has answered the first question in favour of the plaintiff and he has held that, although the relevant conveyances and the relative documents of the title stand in the name of Nirmala Bala, the said acquisitions were made really by her husband Balai Chand Ghosh with his own money, and Nirmala Bala was merely his benamdar. With regard to the two Arpannamas (Exts. 11 and 11(a)] the learned Subordinate Judge has accepted the plaintiff''s case in the plaint that, so far as Ext. 11(a) is concerned, it was a sham paper transaction which was never intended to be acted upon and that, thereunder, no debuttar, either partial or absolute was created. With regard to the other Arpannama (Ext. 11) also the learned Subordinate Judge was inclined to the view that it was of the same character and was really a sham deed or a sham and paper transaction, never intended to be acted upon, but, having regard to the plaintiff''s own case and prayer in the plaint, he did not ultimately go to that length but contended himself by merely giving a declaration that the deed (Ext. 11) created a valid debuttar but only of a partial character and the deities, named therein, only obtained thereunder a charge for their Sheba Puja on the properties covered by the said deed.

The properties in suit are premises Nos.153/1, Beliaghata Main Road; 154/2 and 155 Beliaghata Main Road; 13, Beliaghata Road, and 1/B, S. K. Sarbadhikari Lane. Of these the first three properties, namely, premises Nos.153/1, 154/2 and 155 Beliaghata Main Road, are covered by the first Arpannama [Ext. 11(a)] which is dated 8th March, 1939, and which was executed by the ostensible owner Nirmala Bala, who purported to do so with the consent of her husband Balai Chand Ghosh. These properties were, undoubtedly, acquired under conveyances which all stood in the name of Nirmala Bala and, accordingly, the Arpannama in question, namely, Ext. 11(a), was executed by her, as aforesaid. The other two properties, namely, No.13, Beliaghata Road, 1/B, S. K. Sarbadhikari Lane, along with another property, namely, premises No.37, Sura First Lane, which, admittedly, belonged to the husband, Balai Chand Ghosh, and which is not a suit property here, were comprised within the second Arpannama (Ext. 11), which was dated 14th September, 1944, that being the date of its execution and the date of its registration being the 15th. These properties, except the husband''s admitted one, namely, premises No.37, Sura First Lane, were also acquired under conveyances, which stood in the name of the wife Nirmal Bala, and the Arpannama in question, namely, Ext. 11(a) appears to have been executed by both the husband and the wife, Balai Chand Ghosh and Nirmala Bala Ghosh. The Arpannamas were executed, as stated above,, in the years 1939 and 1944, and for some time, there was no trouble between the parties and no dispute whatsoever, but, eventually, due to some family troubles, disputes arose between the husband and the wife and, later on, the said disputes aggravated and reached a climax due to the subsequent marriage of the husband Balai Chand Ghosh with the wife''s (Nirmala Bala''s) step-sister. As a result of this, there appears to have been a complete estrangement between the husband Balai Chand Ghosh and his wife, appellant Nirmala Bala Ghosh and the sons, born of these parents. The mother Nirmala Bala is apparently, now living with his sons and the husband Balai Chand Ghosh is living separately with his newly married wife, by whom also he appears to have had some children. Matters eventually came to a head, with the result that the present suits were instituted by the husband Balai Chand Ghosh, for reliefs aforesaid, and the suits having been decreed in the form or forms, mentioned hereinbefore, the present appeals have been taken by the wife Nirmala Bala for self and/or Shebait, as stated above.

Before us, Mr. Gupta, appearing on behalf of the appellant wife, did not challenge the finding of the learned Subordinate Judge that the money, with which the properties in suit were purchased, belonged to the husband Balai Chand Ghosh. Prima facie, therefore, Nirmala Bala would be the husband''s benamdar and the real title in the suit properties, therefore, must be held to have been originally with the husband Balai Chand Ghosh. Mr. Gupta, however, raised a contention before us that, although the consideration money or monies might have been paid or supplied by the husband, his intention was that the relative acquisitions would be for the benefit of the wife, if whose name the properties were being acquired, for the purpose of making provision for her. In a word, Mr. Gupta wanted to attract the doctrine of advancement, though not on any presumption, either of fact or of law, but on positive facts and inferences emerging, according to him, fro the circumstances of this case. This aspect, however, does not appear to have been mooted before the learned Subordinate Judge and it would be wholly inconsistent with the written defence, filed on behalf of the appellant wife. In the written statement, the extreme and specific case was made that the properties in suit were purchased by the wife out of her own Stridhan money, or money obtained by her previously, either fro her husband or from her relations by way of gift. That case, however could not be substantiated before the learned Subordinate Judge and Mr. Gupta also, in this Court, did not attempt to support that part of the appellant''s defence. It is difficult, in the circumstances, to give effect to the new plea or to uphold the new aspect, which has been put forward or presented before us by Mr. Gupta on this part of the case, and we may add further that there is, practically speaking, no evidence also in support of any such contention. In these circumstances, the finding of the learned Subordinate Judge that the properties in suit were acquired by the husband Balai Chand Ghosh in the name of his wife Nirmala Bala and that the latter was merely the benamdar of the former cannot but be accepted. That finding, therefore, will be affirmed by us and the point, raised by Mr. Gupta to the contrary, must be overruled.

The crucial question, however, is whether these properties, after their acquisition as aforesaid, were made debuttar, either partial or absolute, under the two deeds of Arpannamas [Exts. 11 and 11(a)]. There is no dispute that the first Arpannama [Ext. 11(a)] of the year 1939, which was executed by the wife Nirmala Bala alone, was executed with the consent of the husband Balai Chand Ghosh. The question, however, is whether this document and the subsequent Arpannama (Ext. 11) of the year 1944, which was executed by both the husband and the wife, were valid and effective documents for the principles of creating debuttar of the properties, comprised therein, either partial or absolute. The learned Subordinate Judge, as we have stated hereinbefore, came to the conclusion that the first deed of 1939, namely, Ext. 11(a), was a sham and paper transaction, never intended to be acted upon, and that, notwithstanding the said deed, the title to the properties, dealt with by it, namely, premises Nos.153/1, 154/2 and 155, remained with the original owner Balai Chand Ghosh. It is the propriety of this finding which has to be considered with regard to this particular document.

For a true perspective of the entire position, it is essential to refer here to some circumstances. It is an admitted fact that the husband had, prior to this deed [Ext. 11(a)] created a debuttar of some of his properties. It is also quite clear from the evidence that both the husband and the wife were religious-minded and devout Hindus. They had also their family deity, or, at least a deity, which was being worshipped by them for a sufficiently long time, namely, the idol of Sri Sri Gopal Jew. The husband''s admitted debuttar, prior to the deed of 1939, was in favour of this deity and as a matter of fact, in the Arpannama Ext. 11(a), there is a clear recital that the sheba puja of the said deity was being performed under the said previous debuttar created by the husband, that is, out of or with the income of the properties, dedicated or endowed thereunder, but that the said income from the said debuttar properties, not being sufficient for the purpose it was necessary to supplement the same and for that purpose primarily, the deed of 1939 [Ext. 11(a)] was being executed.

The test of debuttar lies in the intention of the maker or creator. If really the person who professes to make the endowment or create the debuttar has done something to manifest that intention effectively, the endowment would be created and even if thereafter the purposes of the endowment be not carried out, - and that even by the donor or creator himself, that is, by the very same person, - that will amount merely to a breach of trust or the like. The crucial question, therefore, is what was the position at the date when the deed of endowment [Arpannama, Ext. 11(a)] was executed. The husband Balai Chand Ghosh has deposed and he has asserted that the deed was created merely as a benami document, just as the acquisition of the property in the name of his wife was also a benami transaction. This plea of double benami however, has hardly been made out on the evidence before the Court. As a matter of fact, no motive could be assigned for such double benami, which would be acceptable to the Court on the evidence on record. Beyond the mere assertion of the husband, nothing has transpired in evidence why a benami Arpannama had to be created and for what purpose. The learned Subordinate Judge had laid much stress upon the fact that the details, which were provided for in the deed [Ext. 11(a)], have not been carried into effect either by the husband or by the wife, who were joint Shebaits under the said deed. That, however, would only be a matter of subsequent conduct which may well be nothing more than a breach of trust or the like, or may explain the extent, to which the endowment was intended to be created or the dedication actually made or intended to be made. The real question, is, what was the intention of the parties when the deed was executed. Where there is no deed of endowment, the position may appear to be more difficult, but where there is a deed of endowment, prima facie, at least, that will be a factor in favour of a real or genuine intention to create the endowment, although it may certainly be shown that the deed, executed, was merely a benami document or a sham paper transaction. In the context of circumstances in which the above deed [Ext. 11(a)] of 1939 was executed, and having regard to the absence of any evidence of motive for creating a double benami, as suggested by the Plaintiff, husband Balai Chand Ghosh in his evidence, we would not be inclined to hold that the deed [Arpannama Ext. 11(a)] was executed without any intention of its being acted upon, or that it was not intended to be given effect to at all.

Prima facie, therefore, we start with the presumption here that a valid endowment, - whatever be its extent, - was sought to be created by the said deed. Is there anything in the deed now which will contradict or rebut this presumption? The learned Subordinate Judge has, in this connection, referred to several clauses of the deed of endowment or Arpannama [Ext. 11(a)] and he has attempted to show that none of these clauses has been given effect to. The first clause to which reference has been made by the learned Subordinate Judge, relates to the construction of a temple for the deity and seeks to provide it with ornaments to the extent of Rs.500/-. The learned Subordinate Judge has found upon evidence that no such temple has been created, but it is an admitted fact that actually the deity is being worshipped and in a temple and in the circumstances the mere fact that the particular temple, as mentioned in the deed, as not yet been constructed does not, in our opinion, necessarily contradict or go against the intention to create a valid debuttar by this deed. The learned Subordinate Judge has also referred to the fact that nothing has been disclosed as to what has been done with the surplus income. He has, in some places referred to the husband''s evidence that the surplus income has been spent for purposes of his family and he has concluded that this sufficiently indicates that this particular deed, Ext. 11(a), was never intended to be acted upon or given effect to. We are unable to accept this conclusion. A deed may well be a valid deed of dedication but that does not mean that it will necessarily be an absolute dedication and if it is not an absolute dedication and only the deity''s expenses etc. are charged upon the properties, comprised in the deed, the surplus income may well be spent for purposes of the dedicator''s family. That will certainly not go against the validity of the deed necessarily but will only be relevant for the purpose of determining its true character, namely, whether it is a partial or an absolute debuttar. The learned Subordinate Judge has also referred to some of the other clauses in this deed [Ext. 11(a)], in support of his conclusion that this document was never intended to be acted upon. In our opinion, none of those clauses also, read in their perspective, would necessarily support the conclusion of the learned Subordinate Judge and having regard to the context, which we have set out above and the absence of evidence to the contrary, we are inclined to hold that when executing this deed, the wife was merely carrying out the wishes of the husband-owner of creating a debuttar for the deity, named therein.

That, however, would not mean an end of the matter. An arpannama may be a valid document, but, at the same time, it may not, on its true construction in the circumstances of a particular case, amount to an absolute dedication, but may constitute only a charge for the expenses of the deity or the religious and/or charitable purposes, as mentioned in the said deed.

The question whether a particular deed has created an absolute endowment or constitutes merely a charge on the dedicated properties for purposes of the endowment, is often one of extreme difficulty and it is not unoften that a prima facie absolute dedication has eventually been found and held to constitute only a charge as aforesaid Indeed, as Sir George Rankin purported to point out in the case of Surendra Krishna Roy v. Shree Shree Ishwari Bhulaneswari Thakurani (1) ILR 60 Cal 54 at pages 81 and 84, cases often come before the Court where, but for the authorities absolute dedication may well be inferred. The authorities, however, and the principles they embody for construing dedications or endowment are too well established to permit any deviation or interference with the same and the basic approach which they indicate has to be remembered or borne in mind and applied in the matter of such construction.

The leading decisions on the point, so far as the Privy Council is concerned, are to be found in the cases of Surendra Keshav Roy v. Doorga Sundari Dassee (2) 19 IA 108; Jadu Nath Singh v. Thakur Sitaramji (3) 44 IA 187, Pande har Narayan v. Surja Kanwari (4) 48 IA 143; and Sri Sri Iswari Bhubaneswari Thakurani v. Brojonath De (5) 64 IA 203, and with them, should be considered also the very pertinent and elaborate discussion of Sir George Rankin in the case (1) ILR 60 Cal 54, supra, which went up on appeal to the Privy Council in (5) 64 IA 203 (supra). In all these decisions, the test that is laid down is the test of intention. That, indeed, is the test for ascertaining whether a purported dedication is sham or simulate or real. That also is the test for judging its nature, character and extent, or, in other words, for determining whether it is absolute or partial in the sense of creating only a charge as aforesaid. Where, as here, there is a deed of endowment, that, of course, will constitute the primary evidence of such intention, but the circumstances also may be well be relevant and, in some cases, even the ultimate determining factor.

In the case, again, of a private endowment, and a family deity, in particular, a useful and practical or workable test has been suggested for gathering the above intention of the donor or creator of the endowment. That applies where the properties dedicated are too large for the particular endowment and from their very nature or from the circumstances, attending the particular dedication, they are likely to fetch an expanding income, but the prescribed ceremonies and their expenses are more or less fixed and are not intended to expand with the growing income. In such circumstances, unless the contrary clearly appears to have been the intention of the donor, the dedication will normally be to the extent of a charge for the religious and charitable expenses, enjoined under the terms of the particular endowment, leaving the dedicated properties otherwise free and unaffected. The contrary, of course, may be indicated or furnished either by the deed of dedication or otherwise and, similarly, the circumstances or the deed may support and strengthen the above normal inference. Not unoften it becomes a pretty difficult question to arrive at the correct conclusion, particularly when the case, like the present, is highlighted by circumstances, all of which may not wholly fit in with one or the other of the above two points of view.

The instant case is one of a private endowment or of family deities and, in the particular circumstances here, all the above considerations are obviously pertinent and clearly germane. As in Sri Sri Iswari Bhubaneswari''s case. (5) (supra), the nature and situation of the dedicated properties and the relative provisions in the two deeds of dedication [Exts. 11 and 11(a)] clearly indicate that the said properties were intended to be developed and the income to be increased but the religious and charitable expenses including the deities'' expenses were not intended to grow or expand with the growing income from the said dedicated properties. In Ext. 11, again, the ultimate dedication of at least half the surplus income, which was bound to be considerable, was eventually meant for the Shebaits'' benefit and was to be available to them not merely for their residence and maintenance but absolutely and for any purpose whatsoever and that surplus, however considerable it may be, was to be wholly under the dominion and control of the persons who would happen to be Shebaits without any limit or restriction. The mere fact that these ultimate beneficiaries were the Shebaits would not, in the above context, be of much relevance or significance and this disposition cannot be considered to be a gift to the Shebaits or a gift to the idol sub modo and co covered by the authority of the decision in the case of Jadu Nath Singh, (3) (supra), or, protected by phrase "reasonable remuneration" as used in the quoted decisions. In Ext. 11(a), no doubt, there are provisions for investment of the surplus, which also was bound to be considerable, in the name of the deity, but the ruling idea of the deed seems to be, as expressed in its opening lines in clear, categorical and unambiguous terms, to supplement the prior endowment of the husband and to supply the deficit in the deities'' expenses, etc., as contained in the said earlier deed, and the additional expenses, not very considerable, for religious and charitable purposes, mentioned in the instant deed of dedication [Ext. 11(a)]. In the above circumstances, both the deeds, Exts. 11 and 11(a), may well be held, on the authorities cited, to have created only charges on the dedicated properties to the extent necessary for meeting the expenses of deb sheba etc., and other connected religious and charitable expenses, as prescribed in the said two deeds and it will be reasonable to hold that nothing more was intended by the donor or donors.

It is true that, prima facie, the deeds, Exts. 11 and 11(a), may be suggestive of absolute debuttar but, in the light of the authorities and the principles, discussed above, and, taking a broad and reasonable view of their provisions, which are not all unequivocal in character, in the context of relevant circumstances, it will be reasonable, in our opinion, to construe them as creating partial debuttar in the sense of constituting charges on the dedicated properties, as indicated hereinbefore.

It will be useful to recall in this connection certain passages from the above quoted authorities which lay down the principles for deciding cases of the present type. Thus, in the case of Surendra Keshav Roy v. Doorga Sundari Dasee (2) supra at pages 127-8, a significant statement appears as follows:

"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 his family worship shall be conducted in the accustomed way, by giving his property to one of the Thakoors whom he venerate 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."

It is true that in the above case, there was no specific clause, dealing with the destination of the surplus or the residue to which fact Lord Hob-house referred before making the aforesaid statement of observation, but it has to be remembered also that in the relevant document, namely, the will, the properties were expressly dedicated and given to the deity. In these circumstances, the absence of a specific provision with regard to the ultimate surplus or residue may well have been taken, in consonance with the approach, indicated by us earlier, simply to strengthen and support the normal inference, arising from the largeness of the income of the somewhat fixed expenses of the deities, that a charge only was created and no absolute dedication was made or intended.

In the case of Sri Sri Iswari Bhubaneswari Thakurani (5) supra, there was a specific clause dealing with the destination of the surplus or the residue which was interpreted by their Lordships to be a gift to the heirs of the settlor, but that also was, strictly speaking, utilised for strengthening the above normal inference. This will be clear if we bear in mind that, in the above case (5) (64 IA 203), the Privy Council approved the decision of this Court (1) (ILR 60 Cal 54), which, at page 82, lines 8-18, appears clearly to have proceeded upon the above view, and if we remember further that, in stating the guiding principles for determining the nature and character of an impugned deed of dedication, namely, whether it created an absolute or partial endowment, their Lordships of the Judicial Committee made no reference to this aspect but expressed themselves in general terms as follows:

"The effect of a valid deed of dedication is to place the property comprised in the endowment extra commercium and beyond the reach of creditors. The dedication is not invalidated by reason of the fact that members of the settlor''s family are nominate 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 whether the idol itself shall be considered the true beneficiary, subject to a charge in favour of the heirs or specified relatives of that 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 (4) (1921) LR 48 IA 143, 145 and 146. 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 fulfillment of these purposes, it may not be protected by the dedication."

The same principle was reaffirmed and restated in Dr. Mukherjea''s Tagore Law Lectures of 1936, delivered in 1951, on the Hindu Law of Religious and Charitable Trust at pp. 176-7 of the published treatise in the following terms:

"But it happens in some cases that property dedicated is very large and the religious ceremonies which are expressly prescribed by the founder cannot and do not exhaust the entire income. In such cases, some portion of the beneficial interest may be construed as undisposed of and cannot but vest as secular property in the heirs of the founder. There are cases again where, although the document purports, on the face of it, to be an out and out dedication of the entire property to the deity, yet a scrutiny of the actual provisions reveals the fact that the donor did not intend to give the entire interest to the deity, but reserved some portion of the property or its profits for the benefit of his family relations. In all such cases the debuttar is partial and incomplete and the dedicated property does not vest in the deity as a juridical person. It remains with the grantees or secular heirs of the founder subject to a trust or charge for the religious uses."

We do not deem it necessary to refer to any other passage from the authorities, cited, but we may incidentally note here one argument of Mr. Gupta to the effect that largeness or expanding nature of the income or property and the fixity of the expenses, from which the normal rule enunciated by us above, has been deduced would be relevant only for ascertaining whether the particular dedication is sham or not and would not be relevant for determining its partial or absolute character. This argument appears to be based on the decision in the case of Jadu Nath Singh v. Thakur Sitaramji (3) supra, and particularly on the passage, appearing there at page 190, which runs as follows:

"If the income of the property had been large, a question might have been raised, in the circumstances, as throwing some doubt upon the integrity of the settlor''s intention, . . . . ."

But it is at once refuted by the two cases, reported in (2) 19 IA 108 and (5) 64 IA 203, supra. If Mr. Gupta was right in his above submission, these two cases, with which (3) 44 IA 187, was found by their Lordships to raise no conflict, would have been differently decided.

The other argument of Mr. Gupta on this part of the case was that even where the deed contains no sufficient provision for expanding worship or expenses, the Shebait is entitled to spend the whole of the growing income by increasing the expenses of the sheba puja etc. Assuming that this argument cannot be wholly rejected, it would certainly be amply met, in the circumstances of the present case, by the aforesaid two cases (19 IA, 64 IA, supra), which, so far as this particular aspect is concerned, is sufficiently similar to the instant case before us. In support of his argument, Mr. Gupta referred us to the decision of this Court in the case of Sarojini Dassi v. Ganendra Nath Das (6) 23 CLJ 241, but, apart from other distinguishing features and circumstances, there was, in that case, express power given to the Shebait to spend the surplus income of the debuttar properties on inter alia, other religious ceremonies or charitable purposes.

It is only necessary to add here that, in argument, reference was made also the recent pronouncement of the Supreme Court in the case of Sree Sree Iswar Sridhar Jew v. Sushila Bala Dasi and others (7) (1954) SCA 498, but the special circumstances, on which stress has been laid by us, or in the two leading cases in (2) 19 IA 108 and (5) 64 IA 203 supra, were not present and did not require consideration in the case before the Supreme Court which accordingly is obviously distinguishable.

What we have said above is sufficient for holding that under both the Arpannamas [Exts. 11 and 11(a)], the endowments created were partial and not absolute in that they merely constituted charges for the deb-sheba and other expenses, mentioned in the respective deeds. But out of deference to the arguments before us, we would add a few words more on the above two deeds.

We shall take up first the Arpannama [Ext. 11(a)]. This deed, as we have sufficiently acknowledged hereinbefore, prima facie, supports an absolute dedication, but, as pointed out by bus, it has to be considered and construed in the light of the principles, laid down by their Lordships of the Judicial Committee in the two leading cases on the point, namely, (2) 19 IA 108 and (5) 64 IA 203, supra, which affirmed the judgment of this Court by Rankin, C.J. and Costello, J., in the case of Surendra Krishna Roy v. Sri Sri Iswari Bhubaneswari Thakurani (1) ILR 60 Cal 54. There also the circumstances were very much similar and the point that arose for consideration before their Lordships was whether the particular document or deed of endowment created an absolute debuttar or created merely a charge in favour of the deity. Their Lordships clearly indicated that the relevant enquiry in such cases would be to ascertain whether it was the intention of the donor to dedicate the properties absolutely to the deity or only to create a charge by providing for the sheba puja etc. and other expenses of the deity out of the income of the same and the broad practical and workable test that was laid down in that behalf by their Lordships of the Judicial Committee in both the above cases was that, if the properties be such as would, in all expectation, be fetching increasing incomes and were likely to develop in value, but the expenses were not on the footing of an expanding trust, the proper inference would, ordinarily, be on a true construction of the deed in the light of those circumstances, that the real intention of the donor or settlor was merely to create a charge in favour of the deity or deities for their expenses etc., as mentioned in the said deed. In the cases cited, special stress was laid on this aspect of the matter and upon this, their Lordships came to the conclusion that in the one case (19 IA 108) the dedicated properties were merely charged with the deity''s expenses and in the other (64 IA 203) only the Thakurbari and the Shebait''s residence were absolute debuttar properties but with regard to the rest or the bulk of the dedicated properties, only a charge was created and no absolute dedication was intended by the settlor. In the case, last cited (5) 64 IA 203, their Lordships reviewed and considered all the earlier relevant decisions on the point, namely, (2) 19 IA 108, (3) 44 IA 187 and (4) 48 IA 143, supra, and, after a close and careful scrutiny of all those cases, they came to the conclusion that what we have stated above was a very satisfactory and workable test for the purpose of arriving at a decision on this particular point. Applying the same test here, we are clearly of the opinion that, so far as the Arpannama, Ext. 11(a), of the year 1939 is concerned, - and similar also will be the position, as we shall presently see, with regard to the other Arpannama, (Ext. 11), of the year 1944, - it would amount merely to a charge on the properties mentioned in the said Arpannama, for the expenses of the sheba puja, etc. of the deities as stated or prescribed in the said deed. We do not think that this view will be in conflict with any of the provisions, contained in the said deed, when it is properly read as a whole and in the context of the circumstances of this case. It is true that the deed begins with what purports to be an absolute dedication to the deity. But it is clear also that the sheba puja etc. of the deity and the other expenses which are contemplated for and in connection with the said deities under the said deed, were not of an expanding character. As a matter of fact, there was a 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 Ghosh, for the purpose of enabling the s 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 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 periodically shebas were concerned, their expenses or at least, the daily sheba expenses, both fixed and occasional, as translated by Mr. Gupta during arguments, were to be met out of the husband''s (Balai Chand''s) 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 the same context, the payment of rent by the Shebaits, occupying particular portions 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 Jew, named therein, for the various services and other necessities, referred to in several paragraphs of the said deed, Ext. 11(a). We would, therefore, modify the decision of the learned Subordinate Judge, as far as this particular document, Ext. 11(a), is concerned, by declaring that this Arpannama Ext. 11(a), is a real and valid document, but it operates only to create a charge in favour of the deity Sri Sri Gopal Jew, as stated hereinbefore.

Coming now to the second Arpannama, namely, of the year 1944, which is Ext. 11, in the present case, we think that here also the position would be substantially similar. As a matter of fact, in the plaint itself, no challenge was made to the real character of this deed, Ext. 11. It is true that in evidence the plaintiff attempted to raise the said contention in regard to this deed also as in regard to the similar deed of 1939, but having regard to the circumstances and the evidence of the case and particularly in the context to which reference has been made above in connection with the earlier deed, Ext. 11(a), we do not think that this new case, attempted to be made by the plaintiff in evidence, can be accepted. We are not also inclined to hold that the learned Subordinate Judge was right in relation to this deed, Ext. 11, in construing its provisions, as he has purported to do, in the light of the subsequent events and in holding, or to be accurate, in inclining to hold, - that the same were not given effect to and, accordingly, the deed Ext. 11, was invalid and of no effect, it being merely a paper transaction, never intended to be acted upon. In our opinion, this deed Ext. 11, also, as stated by the plaintiff himself, in his plaint, was a real document and, having regard to its provisions, it was, broadly speaking, properly construed by the plaintiff in his plaint, as constituting a charge on the properties, covered by it, for the deity or deities, named therein. It is only necessary in this connection to refer to some of the provisions of this deed Ext. 11, and the attending or surrounding circumstances for the purpose of applying the test, - the same test, which we have applied to the other deed, Ext. 11(a), - to this deed also. Here also, apart from clause 6 of the deed, there is hardly any provision which even remotely may suggest expanding expenses for the sheba puja etc. of the deity. The different purposes, mentioned in paragraph 6 also, however, much they may be elaborately construed, would not, having regard to the evidence before us, affect or exhaust any major or considerable part of the properties or the income from the same, mentioned in this particular deed, Ext. 11. It is significant also to note that so far as this particular document (Ext. 11) is concerned, in paragraph 9, express provision has been made for half the surplus income, which certainly would be a substantial part and also quite large and considerable in amount, being given to the Shebaits for their own enjoyment. This is an additional circumstance in this deed (Ext. 11), which suggests that by this deed (Ext. 11) also only a charge was intended to be created by the maker or creator of the endowment. In our opinion, therefore, this second deed also, namely, the Arpannama (Ext. 11) created only a charge in favour of the deity or deities, named therein, for the various purposes recited in the said document and subject to that charge the properties would belong to their original owner, the husband Bala Chand Ghose.

In the result, then, the decision of the learned Subordinate Judge would be modified, strictly speaking, only to this extent that his finding that the Arpannama [Ext. 11(a)] is a sham paper transaction will be set aside. It will be declared to be a valid and effective transaction but only to the extent of creating a partial dedication in favour of the deity Sri Sri Gopal Jew, or, in other words, for creating a charge for the various purposes of the said deity, as mentioned in the said Arpannama. The other findings of the learned Subordinate Judge will be affirmed with only this clarification that the charge, created by the document (Ext. 11), would be for the sheba puja etc. of the deity or deities as mentioned in the said deed, for and including the various purposes and expenses of and in relation to the deity or deities, as mentioned and enumerated therein.

It is only necessary to add that in terms of this judgment and for giving full effect to it, it will be open to either party to apply to the learned Subordinate Judge in the instant suits for ascertaining all the charges and the amounts and the other details thereof under the aforesaid two deeds [Exts. 11 and 11(a)] to enable him to dispose of these suits finally by passing appropriate decrees therein, which will, of course, be of the nature of final decrees, disposing of the suits and the disputes between the parties finally and once for all.

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 Arpannama and the temple or temples and the Shebaits'' residence, so provided, will be absolute debuttar in the light of the decision in Sri Sri Iswari Bhubaneswari Thakurani''s case (6) (64 IA 203, affirming on appeal ILR 60 Cal 54), 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.

In the light of the foregoing discussion, First Appeal No.268 of 1957 and First Appeal No.270 of 1957 will be allowed in part and the relative decrees of the learned Subordinate Judge will be modified, as indicated hereinbefore and the other appeal, viz. First Appeal No.269 of 1957, will be dismissed, subject, of course, to the clarification or clarifications, mentioned earlier in this judgment, and for the ascertainment and working out of the charges etc. referred to hereinbefore, all the three instant cases will go down to the Court below which will deal with them further for the said purpose in terms of this judgment and will finally dispose of all of them in accordance with law.

Having regard to the facts and circumstances of these cases and the relationship between the parties and also the nature of the disputes between them, we direct the parties to bear their own costs up till this stage both in this Court and in the Court below. Future costs will, however, be in the discretion of the learned Subordinate Judge, when he finally disposes of the three instant suits by passing appropriate final decrees therein in terms of this judgment.

In the special circumstances of these cases, we also propose to reserve liberty to either party to mention these appeals or any of them before this Court for further directions, if the same be deemed necessary for the final disposal of the connected suit or suits, as aforesaid.

Law, J.

I agree.