NIRMALA BALA GHOSE IN CIVIL APPEALS NOS 966 AND 968 OF 1964 2 NIRMALA BALA GHOSE IN CIVIL APPEAL NO 967 OF 1964 Vs. BALAI CHAND GHOSE IN CIVIL APPEALS NOS 966 AND 968 OF 1964 2 BALAI CHAND GHOSEIN CIVIL APPEAL NO 967 OT 1964

JUDGEMENT

(1.) (for himself and K. Subba Rao J.): 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.