JUDGMENT

1. In this suit only one question has been left for my decision. With regard to the rest, an order has been made by consent of the parties. The facts of the case are as follows: One Sriman Chandra Mukherjee died in the year 1878 leaving a will whereby he created a debutter & appointed his wife, Bama Sundari, executrix & directed that the pltf deities should be installed by her. Pursuant to this direction, the pltt deities were installed by Bama Sundari. Thereafter, in the year 1933, a suit was filed being Suit No. 2385 of 1933 in which, on 30-8-1934, a decree was passed declaring certain persons to be shebaits. The “persons who were declared shebaits were (1) Bimal Chandra Mukherjee, (2) Charu Chandra Mukherjee, (3) Dino Nath Mukherjee, (4) Anadi Mohon Mukherjee, (5) Jnanendra Nath Mukherjee, (6) Govinda Chandra Mukherjee, (7) Atul Chandra Mukherjee, (8) Dulal Chandra Mukherjee & (9) Kali Krishna Mukherjee. They are the descendants of one Harish Chandra Mukherjee, brother of the said Sriman Ch. Mukherjee.

2. A genealogical table has been annexed to the plaint & the relationship of the parties would appear from the said genealogical table.

3. Thereafter, in the year 1937, another suit was filed, being Suit No. 1498 of 1937 & in that suit, on 28-8-1938, a decree was passed by consent. By that decree a scheme was framed for the management of the worship of the deities & the following persons were declared shebaits: (a) Jnanendra Nath Mukherjee, (b) Dulal Chandra Mukherjee, (c) Govinda Chandra Mukherjee. (d) Bimal Chandra Mukherjee, (e) Charu Chandra Mukherjee, (f) Dino Nath Mukherjee, (g) Pran Nath Mukherjee, (h) Lakhi Kanta Mukherjee & (i) Kali Krishna Mukherjee.

4. It appears that Atul Chandra Mukherjee who was one of the shebaits under the decree dated 30-8-1934 passed in Suit No. 2385 of 1933, had died & his share was inherited by his brother, Govinda Chandra Mukherjee. Govinda Chandra Mukherjee thus became entitled to a 2/7th share in the shebaiti right—1/7th of himself & 1/7th inherited from his brother Atul.

5. In the scheme of management which was framed, after declaring the names of the persons who were declared shebaits, it was provided that the palas or tarns of worship should be divided into certain shares. Govinda Chandra Mukherjee was declared entitled to 2/7th share in the pala or turn of worship of the said deities & he was given two palas, namely, the second pala or turn of worship commencing on 1st Aswin 1347 B.S & erding on the last day of Bhadra 1348 B.S & the fifth pala of turn or worship commencing on 1st Aswin 1350 B.S & ending on the last day of Bhadra 1351 B.S It was further provided by that scheme that the debutter estate should be managed by a board of shebaits to be constituted for the time being. The board should consist of six shebaits, one from each of the six groups & such board, constituted as above, should remain in office for a period of three years. Then comes the most material part of the scheme,—material for the purpose of determination of the matter in controversy before me. Under cl. 15 of the scheme of management, it was provided that the members of the board should every three years elect one of themselves to be its secretary to conduct correspondence on behalf of the board, to call meetings & to do all such acts as the board may direct. It thus appears that in order to be a secretary, one has to be a member of the board, & in order to be a member of the board, one has to be a shebait.

6. After the final decree which was passed as aforesaid, a board was constituted consisting of the foil owing persons: Govinda, Bimal, Jnanendra, Pran Nath, Dulal & Kali Krishna. Manindra Nath Banerjee was the eldest son of Govinda. He was not a shebait & Manindra was appointed as proxy for Govinda. On 11-10-1939, the board took possession & on 12-10-1939 the first meeting of the board was called & at that meeting Manindra was appointed the secretary. The dispute between the parties started thereafter & the dispute centred round the question as to who would be the secretary. On 19-10-1939, Gnanendra wrote to Manindra alleging that none but an original member can be appointed secretary & as such his appointment was invalid. This position was not accepted by Manindra & the persons supporting him. Thereafter disputes went on amongst two groups of shebaits, one supporting Manindra's appointment as secretary & the other denying the validity thereof & ultimately there was a deadlock in the management of the debutter estate. It appears that on 11-1-1940 Gnanendra issued an advertisement in the Samaj Patrika of Cuttack stating that he was the secretary & on 21-1-1940 Govinda's, father of Manindra, issued a not in the same paper to the effect that Manindra was the Secretary. Govinda issued handbills reiterating the statement made in his advertisement.

7. In this state of things came into existence the document as to which the dispute between the parties before mainly relates. On 24-2-1940 a deed of gift was executed by Govinda whereby he transferred Atul's 1/7th share in the shebaiti right which he had inherited to his sons, namely, Manindra, Patit & Panindra. The deed of gift inter alia provides as follows:

“Whereas the donor is desirous of making a gift of the one seventh of the shebaitee to which he is & become entitled to as the heir and brother of the said Atul Chandra Mukherjee being half of the two seventh share mentioned in the said scheme & one of the two palas allotted to him & in favour of thf donees “….” & in consideration of natural love & affection of the Donor for the Donees the Donor doth hereby give, make over & transfer unto the Donees All that the one seventh share of the shebaitee to which he is entitled.”

8. It appears that the main contention of the group of shebaits who were opposed to the appointment of Manindra as secretary, was that he was not a shebait & as such he was incompetent to be a member of the board & as such he was incompetent to be elected as secretary of that board. By this deed of gift dated 24-2-1940, this objection has been sought to be removed & according to the contentions of the group who were supporting Manindra there could be no further objection to Manindra continuing as the secretary after the said deed of transfer. Thereafter, on 20-3-1941, a notice of motion was taken out in Suit No. 1498 of 1937 in which a decree had already been passed & that notice of motion was taken out by Gnanendra for an order that the appct be allowed to continue as the duly elected secretary of the board of shebaits for at least three years from the date of his appointment & Govinda & Manindra were to account for all realisations made by them & an injunction was sought inter alia against Manindra restraining him from interfering with the management of the estate. This appln. was not ultimately pressed & on 6-5-1941 it was dismissed with costs by his Lordship the Hon'ble Panck-ridge, J.

9. Thereafter, on 16-8-1941, this suit was filed. Various reliefs have been claimed in the suit & an I have already said, the parties have settled their other disputes & pursuant to such settlement an order has already been made directing a reference to be taken. The only outstanding point which has been kept for my decision is whether this deed of gift in favour of Manindra is valid & whether by such deed of gift any right of shebaiti has passed to Manindra & his brothers.

10. In order to decide this matter; it is necessary at the very outset to determine what is a ‘shebaiti’ right? Is it a property? If so, what is the nature of such property & what are its ingredients? That the right of shebait under the Hindu law is a property is well established after the decision of the P.B in Monohar Mukherji v. Bhupendra Nath, 60 Cal. 452 : (A.I.R (19) 1932 Cal. 791 F.B) & Mr. Sinha as I have understood him does not dispute this proposition. But then the question is what kind of property it is & whit are its ingredients. To my mind decision of the point in question before me will depend to a great extent upon a clear analysis of the essentials or the ingredients of the rights of shebait. A shebait has the right to worship the deity & as such he is the ministrant & custodian of the idol itself. On the other hand, he is the manager of the properties of the deity, which are in his custody. Mukherji, J., in Monohar Mukherji v. Bhupendra Nath, 60 Cal. 452 : (A.I.R (19) 1932 Cal. 791 F.B) held as follows:

“Shebaitship, in its true legal conception, involves two ideas, the ministrant of the deity & its manager; it is not a bara office, but an office together with certain rights attached to it.”

11. The shebait has also some property or personal interest in the estate of the idol which is under his management. The shebait has certain duties to perform in relation to the deity & its properties & at the same time he has some right & a personal interest in the said properties. These then are two elements in the conceptions of the shebaiti right, viz., elements of office & property. Mukherjee, J. in discussing the nature of such property in Monohar Mukherji v. Bhupendra Nath, 60 Cal. 452 : (A.I.R (19) 1932 Cal. 791 F.B) said as follows:

“Sufficient has already been said before to establish that the shebait deals with the property in his custody & management as if he has some property, though not the full rights or property in it, the legal property vesting in the idol. Though he cannot alienate the property of the deity except for legal necessity he may create proper derivative tenures & estates conformable to usage alienation without necessity will enure only for the period of the tenure of his office an though the was a limited owner. It is in him & not in the idol that the right of suit is vested & it is his minority that counts for the purpose of limitation.”

12. His Lordship at p. 479 also held as follows:

“……The idea of limited ownership is the essenes of the position of the manager or custodian of dedicated property by whatever name he may be called.”

13. If then the two elements of office & property are the ingredients of the shebaiti right such elements are mixed up & blended together in the conception of shebaitship. In Bhabatarini v. Ashalata, I.L.R (1943) 2 Cal. 137 : (A.I.R (30) 1943 P.C 89) their Lordships of the Judicial Committee held as follows:

“It is only with some difficulty that any theory can successfully hold together the two elements of office & property but the shebaiti right involves bath & neither elements is to be discarded.”

14. In delivering judgment in the same case in H.C Mukherjee, J. also held as follows:

“It seems to me that the elements of office & property, of duties & personal intarest are mixed up & blended together in the conception of shebaitship.”

15. This being the position & the conception of shebaitship being the amalgam of office & property the question arises whether the right of transfer of shebaitship is repugnant to or inconsistent with such a conception. Mr. A.K Sen has urged before me & he has placed in support of his argument certain observations in Bhabatarini v. Ashalata Debi, I.L.R (1943) 2 Cal. 137 : (A.I.R (30) 1943 P.C 89) that the shebaiti right itself being a property, although it may be an amalgam of the two elements of office & property, it is transferable. In Bhabatarini v. Ashalata, (I.L.R (1943) 2 Cal. 137 : (A.I.R (30) 1943 P.C 89) no doubt there is an observation to the following effect:

“The shebait has certainly a right of property in his office & it may be correct to say that he has some sort of beneficial interest in the debutter property.”

16. It is too late now to dispute that shebaiti right is a property but the point is why it is held to be a property. Mr. Sinha also has not disputed before me that it is a property. As I said before there are two elements, viz., elements of office & property or in other words duties & personal interest in the conception of shebaitship & those two elements are mixed up & blended together & are inseparable from each other. That being so when the right of a shebait comes to be described it cannot but be described as a property. As has been held by their Lordships of Judicial Committee in Peary Mohan v. Monohar Mukherjee, 48 Cal. 1019 at p. 1027 : (A.I.R (9) 1922 P.C 235):

“The close intermingling of duties & personal interest which together make up the office of shebait may well prevent closeness of the analogy, but as a part of the office it is indisputable that there are duties which must be performed, that the estate does need to be safeguarded & kept in proper custody.”

17. To my mind it is because of this inseparable blending of the two elements of office & properties that the shebaiti right itself is described as property. But from this it does not follow that because the shebaiti right can be & must be called a property it is transferable. Because the moment the question whether such right can be transferred comes to be determined one has to again consider the essential or ingredients of a shebaiti right, what that right consists of & decide the matter in the light thereof.

18. As I said before the essentials are office & the properties. Question is can the shebaiti right which is the amalgam of those two elements be transferred. Before I express my views on this point, I should add that the element of property is secondary to the element of office in the conception of shebaitship. In other words the beneficial interest or the property which the shebait has in the debutter estate is because of his holding the office of a shebait. As he has to perform the duties which are imposed on him as a shebait he has also some kind of beneficial interest in the properties of the deity which are in his custody. The duties & obligation which he has to perform as shebait is the more important element and the personal interest which he has in the debutter estate is secondary & consequential to the performance of such duties. The fact that a shebait can be removed by Ct. shows that shebaiti right is a property of a peculiar character & office is the most important part of such right. In Monohar Mukherji v. Bhupendra Nath, 60 Cal. 452 : (A.I.R (19) 1932 Cal. 791 F.B) Mukherjee, J. has also held:

“The right to the land such as the shebait has is only secondary to & dependent on his office & if the right to recover the office is barred the right to recover the land is also barred.”

19. The decision in Bhabatarini v. Ashalata, (I.L.R (1943) 2 Cal. 137 : A.I.R (30) 1943 P.C 89) did not in any way alter the law laid down in Monohar Mukherji v. Bhupendra Nath, 60 Cal 452 : (A.I.R (19) 1932 Cal. 791 F.B). In my view the true conception of a shebaiti right being an amalgam of office & property it is contrary to & inconsistent with any conception of transferability of such right. It can hardly be disputed that the element of office involved in the conception of the shebaiti right cannot form the subject-matter of a transfer. How can then it be said that the element of property which is inseparably mixed no & blended with the element of office in a shebaiti right or the entire right of a shebait which is the amalgam of office & property can form the subject-matter of a transfer. A shebait occupied a fiduciary position in relation to the deity & its property & although not strictly speaking a trustee his position is similar to that of a trustee. He is the ministrant of the deity, he is to remain in custody of the deity & all its jewellery, ornaments, utensils & other; properties moveable and immoveable he in to look after the worship of the deity, & manage all its properties. Thus it is a position of trust & responsibility which is imposed upon a shebait & I cannot reconcile myself to the view that he can relieve himself of this responsibility by transferring his rights to some one else. If, of course, there is a complete renunciation on the part of the shebait of all his rights the position would be different. Because in that case it would amount to a sort of civil death of the shebait with the result that the person who stands next in line in succession would automatically come in & become shebait or shebaits. Nobody can force the shebait to remain a shebait & if he chooses to renounce his entire shebaiti right nobody can stop him from doing that. What is to happen in such a case? The persons who are next in succession must as of necessity come in & become shebait. A number of authorities have been cited by both parties & before I deal with them I can say this that viewed from this aspect of the matter which I have just now indicated there is not much conflict on principle amongst the various authorities which have been cited.

20. Mr. A.K Sen contends that in any event when there is a transfer of the shebaiti right without consideration & without any pecuniary advantage being derived by the transferor thereby in favour of persons who are next in line of succession who are otherwise competent to hold the office of a shebait, such a transfer is valid. Because he contends that in such a case the only effect is to accelerate succession & apart from that there is no adverse effect on the endowment. He has mainly relied upon the decisions reported in Sitarambhat v. Sitaram Ganesh, 6 Bom. H.C.R 250; Mancharam v. Pranshankar, 6 Bom. 298; Bajeshwar v. Gopeswar, 35 Cal. 226 : (7 C.L.J 315); Nirod Basini v. Shibadas Pal, 36 Cal. 975 : (3 I.C 76); Official Receiver v. Jagmaya Dafsi, 50 C.W.N 272 & Prayag Das v. Govinda Charlu, A.I.R (22) 1935 Mad. 220; (157 I.C 547). In the case reported in Sitarambhat v. Sitaram Ganesh, 6 Bom. H.C.R 250 it was held that the sale of an hereditary priestly office will be upheld where the purchasers are the next in succession from the vendor to such office. In his judgment Couch, C.J held as follows:

“With regard to the other point, whether there was a valid sale it is not necessary in this case to decide the question as to whether such offices can be sold to strangers. In this case the purchasers were grand-children who would eventually succeed in office as heirs & the grandfather did nothing more than relinquish his right in their favour. There have been previous dealings with this office of a somewhat similar nature, which is some evidence of a usage justifying the alienation in the present case.”

21. It appears that the purchasers in the case reported in Sitarambhat v. Sitaram Ganesh, 6 Bom. H.C.R 250 were the only heirs of the vendor & the transfer was of the entire interest of the vendor in the shebaiti right. The transfer in that case has been upheld on the ground that the transferor “did nothing more than relinquish his right in favour of his heirs”. The result of the transaction is the same as renunciation by a shebait of his entire rights as shebait resulting in acceleration of the interest of the persons next in line of succession. The transfer in that case has also been justified on the ground of usage.

22. In the case reported in Mancharam v. Pranshankar, 6 Bom. 298. It has no doubt been held that there is no reason why the alienation of a religious office to a person standing in the line of succession & free from objection relating to the capacity of a particular individual to perform the worship of an idol or do any other functions connected with it, should not be upheld. But their Lordships in that case followed the principle laid down in the decision reported in Sitarambhat v. Sitaram Ganesh, 6 Bom. H.C.R 250 & after citing the passage in that decision which I just now cited held as follows:

“We do not think that there is much difference in principle between the case just cited & that now before us, though the endowment in the present case is of too recent a foundation to render any evidence of usage possible. In both cases the purchasers are persons standing in the line of succession & claiming through females & though in the present case the purchaser is not the next heir but only a possible heir for he is Ganapa-thram's sister's son, & therefore a ‘Bandhu’ if not a ‘Sapindo’ yet the next heir Ganpathram's widow, has expressed her acquiescence in the bequest to the pltf.” Thus it appears again that the result of the transfer in that case is the same as renunoiation by a shebait of his rights resulting in acceleration of the interest of the person standing next in the line of succession. To my mind, the transfer in that case really amounted to such renunciation & can be supported on that principle & viewed from this aspect of the matter there is no difference on principle between the decision of this case & the one reported in Nagendra Nath v. Rabindra Nath, 53 cal. 132 : (A.I.R (13) 1926 Cal. 490) (Page J.) to which I shall hereafter refer. To my mind a transfer of the entire interest of a shebait in favour of the next in line of succession can be justified on the ground of & is the same as complete renunciation.

23. In Rajeswar v. Gopeswar, 35 Cal. 226 : (7 C.L.J 315) Maclean, C.J held as follows:

“No doubt there are cases & authorities for the proposition that a shebait may by an act inter vivos alienate the shebaitship but I think I am fairly stating the result of these cases when I say that such alienations are not regarded with much favour & that somewhat special circumstance must exist to support them need not go through the authorities which I think substantiate that preposition. But all of them relate to alienations inter vivos & with the exception of one auhority to which I shall refer in a moment there is more for the proposition that a shebait can by his will bequeath the shebaitahip. On principle I do not see how he can do so: for, the question at once arises what has he to bequeath or alienate under his will? A shebait is a manager or quasi trustee for the benefit of the idol. His office endures only for his life; his will only comes into operation on his death. What is, there then for him to alienate by will? Nothing.”

24. It seems that the only question which was considered by their Lordships in that case, was whether shebaitship can be transferred by will & their Lordships' definite opinion was that it can not be. As to the question whether shebaitship can be transferred inter vivos. Maclean G.J held that it cannot be transferred except under special circumstances. What these special circumstances are has not been laid down by his Lordship.

25. Mr. A.K Sen has placed great reliance on Nirod Basini v. Shibadas Pal, 36 cal. 975 : (3 I.C 76). In this case the pltf. was a joint shebait with the defts. other than deft. 2. A deed of Arpannamah was executed by defts. 5 to 7 who were residing at a distant place from the place of worship in favour of their maternal uncle (the pltf.). The pltf. became entitled to those defts' share in the said Thakur's Sheba. The question for decision was whether the transfer was valid. Their Lordships following the decision reported in Mancharam v. Pranshankar, 6 Bom. 298 upheld the transfer. In delivering judgment their Lordships held as follows:

“It is to be observed in Mancharam v. Pranshankar, 6 Bom. 298, the fact that the alienation was to person in the line of succession and capable of performing the worship of the idol was regarded as the justification for the alienation & that in Rajesxuar v. Gopeswar, 35 Cal. 226 : (7 C.L.J 315) Mitra, J., treated “clear benefit to the Thakur” in the same way. In the present case, therefore, as the alienation was by an Arpannama to a closely connected member of the family who seems to have mora interest in the worship of the idol than any one else & as it seems to have been made without any idea of personal gain, in order to prevent the interference of the applt. who claims herself as an alliance of the defts. 5 to 7, we consider that the case is governed by the special Circumstances to which Maclean, C.J refers.”

26. In my opinion in both the cases reported in Sitarambhat v. Sitaram Ganesh, 6 Bom. H.C.R 250 & Mancharam v. Pranshankar, 6 Bom. 298 the transfers were justified, because the purchasers were the next heir of the transferors & as such the transfers were nothing more than relinquishment of the right of the transferors in favour of the transferee who would eventually succeed to the office as heirs.

27. With highest respect for their Lordships who decided the case reported in Nirod Basini v. Shibadas, 36 Cal. 975 : (3 I.C 76), I cannot see how that principle can be extended to the case of a transfer in favour of a maternal uncle. So far as I have understood the proposition which Mr. A.K Sen also urged before me, is that when a transfer is in favour of a person next in the line of succession such transfer is valid; the effect of it being simply to accelerate succession. However decision in the case reported in Nirod Basini v. Shibadas, 36 Cal. 975 : (3 I.C 76) has also proceeded on the basis of benefit to the Thakur that the circumstances of that case were the special circumstances to which Maclean, C.J refers. Mr. Binha has urged before me that there is no reasoning given in that decision. I should add that prior to the P.B decision in Monohar Mukherji v. Bhupendra Nath, 60 Cal. 452 : (A.I.R (19) 1932 Cal. 791 F.B) the character of the shebaiti right was not clearly laid down. In fact the decision reported in Rajeswar v. Gopeswar, 35 Cal. 226 : (7 C.L.J 315) proceeded on the view that shebaitship is an office. It seems to me that the said two decisions are not of much assistance for the purpose of deciding the matter in dispute before me after the F.B decision in Monohar Mukherji v. Bhupendra Nath, 60 Cal. 452 : (A.I.R (19) 1932 Cal. 791 F.B). In Mahamaya v. Haridas, 42 Cal. 455 : (A.I.R (2) 1915 Cal. 161) cited by Mr. A.K Sen all that was decided was that the palas of Kalighat Temple have been transferred during at least 90 years though in a limited market which those alone can enter who are qualified to become shebaits by birth or marriage, the time when these customs originated being unknown. It appears that in the plaint filed in that suit, the pltf. had alleged that the Palas were transferable according to immemorial custom & deft. 1 who alone contested the claim set up in his written statement the case that the Palas are not transferable by custom & even if the alleged custom is proved, no Ct. shall recognise it or enforce it as being unreasonable & opposed to public policy. Mukherjee, J., in delivering judgment in that case held as follows:

“As rfgards the second question, it has not been disputed on behalf of the mtgee chat in the absence of a custom or usage to the contrary or any term to that effect in the deed of endowment, a religious trust or the right of management of a religious or charitable endowment or a religious office attached to a temple or any other endowment cannot be alienated by the holder. There is also authority for the proposition that alienation of a religious office may be validly made in favour of a person standing in the line of succession & not disqualified by personal unfitness. But the applt. does not invite us to go even as far as the proposition. She asked us to assume that a Pala or turn of worship is not alienable except by custom it contends that the custom which has been proved in this case should be recognised by the Ct.”

28. Thus it appears that the only question which their Lordships were called upon to decide, was whether the custom in that case possessed the characteristics essential for the validity of a custom. No doubt there are certain observations in their Lordships' judgment to the effect that a Pala or turn of worship is heritable & partible & it possesses the attribute of transferability as amongst the members of the family of the shebait. But those observations were to my mind in the nature of an obiter dictum & their Lordships were not called upon to decide those questions in that case. In the case of Official Receiver v. Jogmaya Dasi, 50 C.W.N 272 there is undoubtedly an observation by his Lordship Das, J. to the following effect:

“It is competent to a shebait to renounce or make gift of his office to a person standing in the line of succession who is otherwise not disqualified by his personal unfitness.”

29. This observation was made by Das, J. relying on the decision reported on Mancharam v. Pranshankar, 6 Bom. 298 and Nirod Basini v. Shibada Pal, 36 Cal. 975 : (3 I.C 76). This particular point, viz., whether the shebait can sell his right & if so to what extent was not the point in dispute in that case & it was not necessary for Das, J. to decide that question. Besides it appears from that observation itself that Das, J. was treating renunciation & gift to a person standing in the line of succession on the same footing. The case of Prayag Doss v. Govinda Charlu, A.I.R (22) 1935 Mad. 220 : (157 I.C 547) was a case of Archakas & not of shebaits. In delivering judgment his Lordship Chariar, J. held as follows:

“In the case of Rajah Vurmah Valia v. Ravi Vurmah, 1 Mad. 235 : (4 I.A 76 P.C) the P.C also refers to the doctrine of delegatus non potest delegare & the possibility that the recognition of the right of transfer may defeat the presumed intentions of the endowment. These two considerations have greater relevancy to cases where the trustees office is ought to be alienated than to transfer Archakship; indeed in a case of Archakas the right of delegation has been expressly recognised by permitting the system of proxies.”

30. It thus appears that his Lordship was distinguishing the P.C case reported in Rajah Vurmah Valia v. Ravi Vurmah Kunshi Kutty, 1 Mad. 235 : (4 I.A 76 P.C) on the ground that the transfers before him were of Archakaship. His Lordship followed the decision reported in Mancharam v. Pranshankar, 6 Bom. 298 & held as follows:

“The facts here are almost ad idem with those in Mancharam v. Pranshankar, 6 Bom. 298 & we have not been referred to any reported case where that decision has been dissented from on similar facts.”

31. As I said before the decision reported in Mancharam v. Pranshankar, 6 Bom. 298 follows the principle laid down in Sitarambhat v. Sitaram, 6 Bom H.C.R 250 with which I do not disagree. If a shebait transfers his entire right in favour of the next heir in succession then such transaction if it amounts to relinquishment is valid. But it must be a case of the transferor giving up his entire interest so that it may amount to relinquishment resulting in acceleration of the interest of the next heir in succession. But if as in this case the transferor retains a portion of his rights as shebait & transfers the remaining portion even if such transaction be to the next heir in succession such a transfer in my view cannot be upheld. I have not been shown any authority which would support such a transfer. To my mind it is repugnant to the very conception of a shebaiti right which as I have said before consists of office & property inseparably mixed up & blended together looked at from this point of view. I find no difficulty in reconciling the decision reported in Sitarambhat v. Sitaram Ganesh, 6 Bom H.C.R 250 which has been followed in subsequent decisions & the decision reported in Nagendra Nath v. Rabindra Nath, 53 Cal. 132 : ((A.I.R (13) 1936 Cal. 490) to which I shall presently refer. Before dealing with the case reported in Nagendra Nath v. Rabindra Nath, 53 Cal. 152 : (A.I.R (13) 1926 Cal. 490) I should add that the case reported in Prayag Doss v. Govinda Charlu, A.I.R (22) 1935 Mad. 220 : (157 I.C 547) was decided also on the ground of custom as established in support of such transfer. The point in question came up for decision in the case reported in Nagendra Nath v. Rabindra Nath, 53 Cal. 132 : (A.I.R (13) 1926 Cal. 490) Page J. discussed the subject at a great length & has reviewed all the previous decisions on that point. His Lordship while considering the nature of a shebaiti right held as follows:

“The duties & the privileges of a shebait are primarily those of one who fills a sacred office After dedication the proprietary title to the property is vested in the idol the right to possess & the duty to manage the property in the shebait ………. But the right of management is attached to the office, not the office to the right of management for which there may be a shebait without endowed property there cannot be a property dedicated to an idol without a shebaiti to manage it.”

32. As to the question of transferability of a shebaiti right his Lordship held as follows:

“The Judicial Committee have never deviated from the principles laid down in the above cases & it is settled law that—in the absence of custom or usage to the contrary or any terms to that effect in the deed of endowment, a religious trust or the right of management of a religious or charitable endowment or a religious office attached to a temple or any other endowment cannot be alienated by the holder, per Mukherjee, J., in Mahanaya Debi v. Earidas, 42 Cal. 455 : (A.I.R (2) 1915 Cal. 161.)”

33. The most important portion of his Lordship's judgment which is material for decision of the question now before me is as follows:

“It is not settled whether the renunciation of a shebaiti try the office holder in favour of a sole immediate heir would be void Narayana v. Ranga, 15 Mad. 183 : (2 M.L.J 19). It may be though do not decide that such an alienation would contravene the doctrine of delegatus non potest delegare, but if it be assumed that a shebait is competent to abdicate from his office, in my opinion such an act would operate to transfer the office to the person entitled thereto as reversioners under the foundation or in default of any directions by the founder or of custom according to the principles of the common law of India. The office would not pass to the assignee under or by virtue of any assignment of his office by the abdicating shebait whether it purported to be in favour of the sole Immediate heir or any other person for any such assignment is wholly void & inoperative.”

34. I most respectfully agree with the views taken by Page J. mentioned above. As I said before in my opinion only if a transaction relating to the rights of shebait can be supported on the theory of complete renunciation it should Stand but not otherwise. In this connection, I should add that although the question of transfer, ability of the rights of a shebait was not the subject-matter of the decision in Monohar Mukherji v. Bhupendra Nath, 60 Cal. 452 : (A.I.R (19) 1932 Cal. 791 F.B) still in delivering judgment in that case Mukherjee, J. cited with approval the proposition laid down in Mahamaya Debi v. Haridas, 42 Cal. 455 : (A.I.R (2) 1915 Cal. 161), viz., that in the absence of custom or usage to the contrary a right of management of a religious or charitable endowment or a religious office attached to a temple or any other endowment cannot be alienated by the holder. But palas or turns of worship may be by custom heritable, divisible & bequeathable as in the case of shrine at Kalighat, Monohar Mukherji v. Bhupendra Nath, 60 Cal. 452 : (A.I.R (19) 1932 Cal. 791 F.B). In the case of Govinda Kumar v. Debendra Kumar, 12 C.W.N 98, decided by Eampiari, C.J & Sharfuddin, J. (being an appeal from an original decree), it was held that shebaiti right cannot be transferred even to a co-shebait or to one who is next in succession. In delivering judgment their Lordships held as follows:

“Babu Golap Chandra Shastri has in his above mentioned work (p. 447 laid down a rule of law on the authority of Mancharam v. Pranshankar, 6 Bom. 298) chat the shebaiti right may be transferred to a co-shebait or to one who is not in succession. But we prefer to follow the authority of the Ct. in the case of Prosunno Kumar v. Saroda Prosunno, 22 Cal. 989 where it was held that even a shebait could not grant a Maura shi Makarari lease of any portion of a debutter property to a co. shebait & the same is null & void.”

35. Their Lordships made these observations with regard to the question which was agitated before them, namely, whether it is legal for one shebait to convey his share in the shebaiti right to any other shebait & the derision in Mancharam in Pranshankar, 6 Bom. 298 was not accepted by them nor was it accepted by Page J. in the case reported in Nagendra Nath v. Babindra Nath, 53 Cal. 132 : (A.I.R (13) 1926 Cal. 490).

36. But their Lordships in the case reported Govinda Kumar v. Debendra Kumar, 12 C.W.N 98, did not consider the question of renunciation, by a shebait of his entire rights. As I said before-looked at from this point of view the decision in Mancharam v. Pranshankar, 6 Bom. 298 may be well reconciled. I should also refer to a decision in Panchanan Banerjee v. Surendra Nath, 50 C.L.J 382 : (A.I.R (17) 1930 Cal. 180), in which Bankin, C.J held as follows:

“If a person sells religious office it is contrary to what is laid down by the P.C in the well known case Raja Verma Valia v. Ravi Vurmah, 4 I.A 76 : (1 Mad. 235 P.C). The doctrine on the subject has recently been considered by my learned brother Page, J. in the case of Nagendra Nath v. Ravindra Nath, 53 Cal. 132 : (A.I.R (13) 1926 Cal. 490). This is clear case of sale by which a shebait is trafficking for gain in her own office & that is the fundamental & real character of the transaction. It is said that as there was an anomalous doctrine by which a, widow may accelerate the opening of the reversion to her husband's estate by surrendering the whole interest which vested in her, effacing & assuming a character that is at-times compared to civil death so with reference to the office of a shebait if she abandoned the office or surrendered it so as to let in the next reversioner the transaction) may be considered good although in the ordinary way the sale of religious office for gain will not be valid. I am of opinion that the transaction before this Ct. is in no way analogous to a valid surrender by a Hindu widow of her-whole interest in her husband's estate.”

37. This being my view of the law of the matter the next question which arises is whether the transfer by Mr. A.K Sen's client of his shebaiti right can be upheld on the doctrine of surrender or self-effacement. Clearly it cannot be. For the simple reason that Mr. Sen's client did not part with his whole interest in the shebaiti right but retained a portion of it and transferred another to his sons. Besides it seems to me that there was a clear object or purpose in making such transfer & the transfer can be said to be, in the language of Rankin, C.J, a ‘bad bargain’. I shall deal with that aspect of the matter hereafter. Apart from that the transfer cannot be supported on the doctrine of self-effacement or surrender as I have just now said.

38. I should now consider the question though it does not strictly arise in the present case, viz., whether a transfer of a shebaiti right can be justified on the ground of benefit of the Thakur. Page, J. has also dealt with this question & has come to the conclusion that such a doctrine is opposed to Hindu law & in any event cannot be extended to an alienation of the spiritual rights & duties of a shebait. I again respectfully agree with the view held by Page J. It seems to me that the doctrine of benefit of the deities applicable to the case of a transfer of the corpus of the debutter property has been sought to be extended to the case of a transfer of the rights of shebait. With all respect to the learned Judges concerned, I fail to see how & on what principle it can be so extended. Page J. in his judgment on this point has stated as follows:

“In support of this contention learned counsel for the daft, referred to the decision of this Ct. in Nirode Basini v. Shivadas, 36 Cal. 975 : (3 I.C 76) & the dictum of Mitra, J. in Rajeswar Mulliek's case, (35 Cal. 226 : 7 C.L.J 315). With all, respect to the learned Judges who decided these cases for the reasons which I am about to state, I am of opinion that the decision in Nirode Basini Dasi's case, 36 Cal. 975 : (3 I.C 76) & also in Rajeswar Munich's case, (35 Cal. 226 : 7 C.L.J 315) so far as it is founded upon the same reasoning are not in accordance with law of India as enunciated by the Judicial Committee of the P.C & I cannot acquiesce in them.”

39. Besides there is no material before me which would justify me in coming to the conclusion that the transfer in this case was in fact for the benefit of the deity, even if I had held that benefit of the deity would justify an alienation of the rights of the shebait. On the other hand, the materials before me point to the fact that the transaction in question was not a bona fide one & was made with a purpose other than benefiting the deity. It admitted that by the decree dated 28-8-1939 Manindra was not declared a shebait. It is also admitted that under the scheme in order to become Secretary one has to become a member of the board & one cannot be a member of the board unleas one becomes a shebait. From the facts it appears that there was a dispute between the two contesting groups as to who would be the Secretary. It seems clear to me that the gift of a portion of a shebaiti right by Govinda to his sons was made in order to enable Manindra to become the Secretary. That was at least one of the objects if not the main object or purpose of the transfer in question. In my opinion, the transaction in question was not a bona fide one & cannot be upheld. Even if this case cannot be strictly called to be case of “trafficking for gain” in his “own office”

40. it is something very much akin to it & I do nob see any difference in principle between the two. If a shebait should not be permitted to sell for gain his own ‘rights as a shebait I cannot see why he should be permitted to effect a transfer which is not a bona fide transaction. Furthermore a has been held by Page, J.: Nagendra Nath v. Babindra Nath, 53 Cal. 132 : (A.I.R (13) 1926 Cal. 490) even if the doctrine of necessity can be extended to an alienation of the rights & duties of a shebait it must be a case of “imperious necessity” or an “unavoidable necessity” compelling the shebait to alienate, such an alienation being clearly “for the benefit of the deity.” No such thing has been proved before me. To put in the words of his: Lordship Page, J. “the contention that the Ct. ought to uphold” the transaction on the ground that it was or might be for the benefit of the “deities” is misconceived, & irrelevant & I reject it.”

41. In the premises, I hold that the gift of a portion of a shebaiti right by Govinda in favour of his sons is bad & cannot be upheld & Manindra did not become a shebait by virtue of it. Mr. A.K Sen has urged before me that a shebati can be divided into palas & palas are properties & can’ be transferred. Mr. Sen contends that if a pala is a property then the two distinct palas which Govinda had are two distinct properties & one of such palas can be transferred. He relied on Mahamaya Debi v. Haridas Haldar, 42 Cal. 455 : (A.I.R (2) 1915 Cal. 161) in support of his proposition.

42. Whether a pala is a property or not the decision in 42 Cal. 455 is on the assumption that it is not alienable except by custom (42 Cal. at 471) & the questions left for their Lordships' decision in that case was whether the customs proved in that case possessed characteristics essential for the validity of a custom. No doubt there is an observation by Mookherjee, J. in that case to the effect that a pala is heritable, divisible & partible bub their Lordships were not called upon to decide that, particular point.

43. To my mind the position is this. The shebaits can no doubt for the sake of convenient management of the debutter property & worship of the deity enter into an arrangement or scheme amongst themselves whereby each shebait may get a pala or turn of worship but it is nothing, more than an arrangement binding so far as ordinary routine management is concerned. (Das, J. Official Receiver v. Jogmaya Dassi, 60 C.W.N 272). This does not mean that a shebaiti right becomes identical with & resolves itself into mere-palas or turns of worship on “partition” (as Mr. A.K Sen describes the “arrangement” just-now mentioned.) To my mind a shebaiti right is: something more than a mere pala or turn of worship. The word ‘partition’ as prosed with reference to secular properties although helpful is not; the proper description of such arrangement or scheme under which each shebait gets a pala or turn of worship. In Official Receiver v. Jogmaya Dassi, 50 C.W.N 272 it was held by Das, J. as follows:

“Although shebaits can for proper administration of debutter estate make arrangement or scheme for separate management they can not while retaining their office of trust abdicate altogether their duties & functions (S) delegate all their authorities including that of sale, gift or mtg. or the like to a co-shebait……mutual arrangement for separate management being in the nature of a scheme is binding so far as routine management is concerned but does not disentitle a shebait in case of dereliction of duty by another shebait from asserting the right as shebaits or from intervening or taking legal steps to modify or cancel the arrangement & prevent mismanagement.”

44. As was held in that case the right of a suit on behalf of deity right of sale of the debutter properties & all other rights remain vested into the shebaits jointly. If then this is the correct analysis of what is known as ‘palas’ or turns of worship then even if such pala could be transferred, & my view being that it cannot be except under custom, it does not mean that a shebaiti right itself is transferred thereby. If, on the other hand, it can be said that pala represents shebaiti right: then I hold that palas cannot be transferred except under the circumstances mentioned before i.e when such transfer amounts to renunciation. In this particular case there is greater difficulty in the way of Mr. Sen's client by reason of the fact that he retains one ‘pala’ to himself & assigns another to his sons treating each as separate properties of his own.

45. Therefore in my view the assignment by Govinda in favour of his sons is bad & Manindra does not become a shebait as result of such transfer.

46. After the argument of learned counsel on this point had been closed, Mr.-A.C Mitra appearing on behalf of Gobinda urged before me that this question), namely, Manindra has become a shebait by virtue of the assignment is barred by principle of res judicata. It would have been better if this point had been raised before I heard argument on the merits of the matter. However due to some misunderstanding it was not done & I cannot blame anybody for that. In any event I cannot agree with Mr. Mitra's contention that this question is barred by the principle of res judicata. Mr. Mitra puts his point in this way.

47. On 20-3-1941, a notice of motion was taken out by Ganendra Nath Mukherjee inter alia for an order that the appct. be allowed to continue as the duly elected Secretary for at least 3 years, the said Manindra Nath Mukherjee be restrained from interfering with the debutter estate & the general management thereof. The said notice of motion was taken out in Suit No. 1494 of 1937 in which a decree was already passed on 20-8-1939. It appears that in the said decree liberty to apply had been given to the parties & the said appln. was made pursuant to such liberty. The said appln. was not ultimately pressed & it was therefore dismissed with coats. Mr. Mitter contends that some of the grounds urged in that appln. & on which reliefs were claimed were the Manindra was not duly elected as the Secretary, secondly the transfer in favour of his sons by Govinda of his shebaiti right was invalid. Mr. Mitter contends that the appct. not having been proceeded with & the same being dismissed the said issues involved in that appln. were barred by the principle of constructive res judicata. I am unable to accept Mr. Mitter's contention. An issue cannot be said to have been “heard & finally decided” as is required by S. 11, G.P O. unless a finding on the issue was necessary to the determination of the suit, or in other words, the Ct was bound to decide that issue before any relief in the suit or proceedings could be given. In this case the Ct. was not bound to consider & decide the validity of the said transfer in favour of Manindra & his brothers before granting reliefs asked for in the said appln. Reliefs asked for could still be given or refused by the Ct. on a prima facie view to the matter without having to decide finally the question of title raised therein. Further it appears that in para. 20 of the petn. used as grounds of the said notice of motion the petnr. put his case on an alternative basis, namely, that even if the Ct. comes to the conclusion that the deed of transfer of the shebaiti right was valid the same having come into existence long after the alleged appointment of Manindra as Secretary could not make such appointment valid. To my mind the Ct. was not bound to finally decide the question of validity or otherwise of the said deed of transfer before granting or refusing the reliefs claimed in that appln.

48. Another point of view has been urged by Mr. Sinha before me in support of his contention that the matter in issue before me is not barred by the principle of res judicata. Mr. Sinha has urged that in the said Suit No. 1498 of 1937 a final decree had already been passed & the suit had to all intents & purposes terminated. No doubt liberty to apply had been reserved but it does not follow that under such liberty parties could agitate for all times matters which are extraneous to & do not form the subject-matter of the said suit. What a particular shebait or a group of shebaits were doing in the course of management of the estate under the scheme as framed under the said decree & whether they were behaving improperly & contrary to such scheme cannot be agitated in that suit by way of mere appln. under the liberty to apply reserved by the decree therein. In fact the cause of action on which the said appln. was based arose long after the final disposal of the said suit. To my mind the said appln. was wholly misconceived & the Ct. had no jurisdiction to entertain it. In the circumstances how can it be contended that the Ct. was bound to decide those questions on that appln.? In fact the Ct. had no jurisdiction & was bound not to decide those questions on that appln.

49. I therefore hold the it the matter in issue before me is not barred by the principle of res judicata.

50. I hold that Mr. A.K Sen's client & Mr. Mitter's client should pay the costs occasioned by the trial of this issue. As the parties aggrieved by my order want to prefer an appeal against the same I stay the operation of the decree passed by me for a fortnight after the re-opening.

V.B.B

51. Order accordingly.