A. Misra, J.
1. Defendant is theappellant.
2. Plaintiffs filed the suit for removal of the defendant from the shebait marfatdarship of plaintiff No. 1, the deity, and appointing plaintiff No. 2 to perform its seba-puja from out of the usufructs of the, suit schedule properties. According to them, Bhima Das, father-in-law of the defendant purchased some of the deity's properties from the father of plaintiff No. 2 and since then he as a co-marfatdar was performing his turn of seba-puja of the deity. After Bhima's death, his son Dol-govind was also performing the seba-puja of the deity along with other shebaits from out of the usufructs of the suit lands. Dolgovind died leaving his widow (defendant) as his sole heir and successor. Since 1960, the defendant who is serving at Bhanjanagar as a female Jail warder hasnot been performing the seba-puja of thedeity and misappropriating the income. On these grounds, the deity and its mar-fatdar (plaintiff No. 2) filed the suit for the above reliefs.
3. Defendant resisted the suit pleading that she has been performing the seba-puja regularly in accordance with the usual custom; that plaintiff No. 2 has no right to institute the suit and also challenged the jurisdiction of the court to entertain the suit.
4. The trial court decreed the suitin part directing removal of the defendantfrom the office of shebait marfatdar on thefinding that she is not performing theseba-puja regularly. It, however, held thatplaintiff No. 2 is not entitled to recoverpossession of the properties. On appeal bythe plaintiffs, the lower appellate courtconcurred in the finding of the trial courtthat the defendant is liable to be removedfrom the shebait marfatdarship as she isnot performing the seba-puja of the deityregularly. In addition, it holds that as thausufructs of the suit properties are to be utilised for the seba-puja of the deity, the defendant is liable to hand over the same to plaintiff No. 2 who is to utilise it for deity's purposes as its shebait marfatdar.
5. The defendant has preferredthis appeal challenging the judgment anddecree of the lower appellate court on the ground that as since 1919 Bhima Das andhis successors have been in possession ofthe properties, they have prescribed a lightthereto and the plaintiffs are not entitledto dprive them of the same. She has alsochallenged the legality of the decision ofthe court below in removing her from theshebait marfatdarship. The plaintiffs filedcross-objection claiming to be put in possession of the deity's properties as theirmain prayer for removal of the defendant from office having been allowed, plaintiff No. 2 is entitled to the consequential relief or recovering possession of the deity'sproperties.
6. The points that arise for decision in this appeal are as follows : (1) Whether the court has jurisdiction to removethe defendant from shebait marfatdarshipand if such removal is valid; (2) whetherthe defendant can claim to have prescribed a right to the deity's properties; (3)whether in the present suit, a decree directing the defendant to make over the usufructs of the suit properties to plaintiffNo- 2 can be passed and (4) whetherplaintiff No. 2 is entitled to recover possession of the deity's properties from thedefendant.
7. Point No. 1 :-- The first contention on behalf of the appellant is that the shebait marfatdarship is not merely an office, but includes the elements of office and property which are mixed up and blended together. Therefore, removal from the office amounts to forfeiture ofrights in the properties. The legal position regarding position of shebaits is well settled. In the decision in AIR 1951 SC 293 (Angurbala v. Debabrata), in para. 11, the position has been explained as follows :--
'The exact legal position of a shebait may not be capable of precise definition but its implications are fairly well established. It is settled in Vidya Varuti v. Baln-sami, 48 Ind Anp 302 = (AIR 1922 PC 123) that the relation of a shebait in regard to debutter property is not that of a trustee to trust property under the English law. In English law the legal estate in the trust property vests in the trustee who holds it for the benefit of cestui que trust. In a Hindu religious endowment on the other hand the entire ownership of the dedicated property is transferred to the deity or the institution itself as a juristic person and the Shebait or Mahant is a mere manager. But though a Shebait is a manager and not a trustee in the 'echni-cal sense, it would not be correct to describe the shebaitship as mere office. The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the Shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right.'
Thus, in the case of a holder of office of Shebait, the title to the debutter property does not vest in him, but the office is blended or mixed with proprietary rights as it carries with it some sort of emoluments or other benefits associated with the office. This being the position, the contention that by virtue of his removal, the Shebait's right to the debutter property is forfeited is not correct. All that such removal entails is loss of benefits associated with the office. This being the position of the Shebait's right in relation to the endowed property, the next point for consideration is whether removal of a Shebait from his office is permissible. The legal position on this aspect is also well settled. In paragraph 423 of Mulla's Hindu Law, 13th Edition the position has been summarised as follows :--
'The courts have jurisdiction to deal with the managers of public Hindu temples, and, if necessary for the good of the religious endowment, to remove them from their position as managers. The court may also remove a shebait of a private endowment for misconduct and direct him to render accounts for a certain period in its discretion.'
In Mukherjea's book on the Hindu Law of Religious and Charitable Trusts, 3rd Edition, in paragraph 249 under the heading 'Administration of debutter', it has been observed :
'A shebait who is guilty of miscon-duct or abuse of his position as a trustee can be removed by the court in a proper judicial proceeding.'
Similarly, in paragraph 386, while dealing with the reasons for removal of a shebait, it has been observed :
'What constitutes a sufficient reason is a matter of determination by the court in the exercise of a sound judicial discretion and there must be a clear necessity for interference for the saving of the de-butter estate. It would be sufficient ground if the shebait by his conduct places himself in such position which makes it impossible for him to discharge faithfully the duties of his office.'
Thus, for justifying reasons in appropriate cases, there cannot be any doubt that a shebait can be removed from his office. In the present case, it has been found by both the courts that the defendant has been serving as a female Jail warder in Bhanjanagar and the person who was engaged by her to perform the seba-puja is not doing the same regularly. This concurrent finding is not open to challenge in second appeal. Therefore, when the defendant's predecessors who came into possession of the properties were performing the seba-puja from the usufructs assuming the role of co-marfatdars and the defendant has failed to do it in spite of being in possession of the properties, it is a sufficient and valid ground for her removal from the shebait marfatdarship,
8. Point No. 2 :-- The next contention of Mr. Mohanty, learned counsel appearing for appellant is that the transfer by the plaintiff's father in favour of Bhima Das in 1919 being void, the transferee and his successors must be deemed to have prescribed a title to the properties and irrespective of the question of removal of the defendant from the office of shebait marfatdar, possession of the properties cannot be recovered from her. For more than one reason, this contention cannot be entertained. Firstly, the decree does not direct recovery of possession of the properties from the defendant. Secondly, a case of prescribing a title to the deity's properties has not been pleaded in the written statement and cannot be raised for the first time in appeal. Thirdly, defendant's case is that all along her predecessors and herself have been performing the seba-puja from out of the usufructs of the disputed lands. Prima facie, therefore she does not claim to have asserted a hostile title as against the deity at any time. In these circumstances, the question of defendant prescribing a title to the suit properties cannot be considered within the scopeof this suit and such a contention cannot be entertained in this appeal.
9. Point No. 3 :-- Next it is contended that in view of the frame of the suit and the nature of reliefs sought, the lower appellate court has erred in directing the defendant to make over the usufructs to plaintiff No. 2. In my opinion, there is some force in this contention. The suit is not framed either for recovery of possession of the defaulter properties in possession of the defendant or recovery of any amount as usufruct of the same. The two simple prayers made in the plaint are to remove the defendant from the office of shebait marfatdar of the deity (plaintiff No. 1) and appoint plaintiff No. 2 to perform the seba-puja out of the usufructs of the deity's properties. So far as the first prayer is concerned, as already discussed, the courts below have ordered removal of the defendant from the office of shebait marfatdar. Plaintiff No. 2 admittedly is a marfatdar and this being his private deity, he is entitled to perform the seba-puja from out of the usufructs of the deity's lands.
When he has not sought any relief either to recover possession of the properties or recover the usufructs, the court cannot decree such a relief in this suit. The lower appellate court has taken the view that once plaintiff No. 2 is to perform the seba-puja of the deity and the defendant is removed from office, the latter cannot be allowed to enjoy the usufructs without performing the obligations. It is true that once the defendant is removed from the office, the right to manage the deity's properties will vest in plaintiff No. 2, but he is to work out his remedies either to recover the usufructs from year to year or recover the properties whichever will be legally available to him. Within the scope of the present suit, a relief by way of directing the defendant to make over the usufructs to plaintiff No. 2 cannot be given, because such a case has not been made out in the pleadings and there is no material to determine the quantum of usufructs or for which years they are to be delivered. So, this part of the relief granted by the lower appellate court cannot be allowed.
10. Point No. 4 :-- This contention relates to the cross-objection filed by the plaintiffs to recover possession of the properties as a consequential relief to allowing the other prayers. As already discussed, a prayer for recovery of possession has not been made. The relief that has been prayed for and granted is limited to removal of the defendant from office and appointment of plaintiff No. 2 as marfatdar to manage the seba-puja. As a consequence of the reliefs, it does not necessarily follow that plaintiff No. 2 is to recover possession of the properties. It is argued that when a trustee is removed and a new trustee is appointed, it is necessary to vest the trust property in the new trustee. This is true, but that can be done in a properly framed suit where a new trustee by virtue of the office to which he is appointed has to work out his remedies against persons in possession of the deity's properties.
11. In the result, the appeal is allowed in part. The decree of the lower appellate court directing removal of the defendant from shebait marfatdarship and appointing plaintiff No. 2 to manage seba-puja of the deity with the usufructs from the deity's properties is confirmed, but the decree directing the defendant to make over the net usufructs obtained from the suit properties to plaintiff No. 2 is set aside. The cross-objection is dismissed. In the circumstances, each party will bear his own costs.