N.C. Mukherji, J.
1. The plaintiff is the appellant in this Court. The plaintiff filed a suit for permanent injunction. The case of the plaintiff may briefly be staled as follows:--
2. By an Arpannarna dated 3-10-29, Chandi Charan Chakraborty and Baladeb Chakraborty dedicated and transferred the property described in Schedule A of the plaint to their ancestral Deity Sri Sri Sitala Debi Thakurani installed in some portion of the suit premises. They appointed themselves as shebaits and devolved a scheme of shebaits for performance of puja and seva of the said Deity. They also agreed to perform the seva by pala system in alternate months. The plaintiff is one of the sons of Chandi Charan and the defendants Nos. 2 to 4 are the sons of Baladeb Chakraborty. The defendant No. 1 is the son of the plaintiff's own brother, who is dead. After the death of Chandi Mod Baladeb their respective heirs carried on the performance of the puja and seva according to the pala system. The plaintiff carried on the seva and puja jointly with the defendant No 1 in the allotted pala. By mutual arrangement the plaintiff and the defendant No. 1 sub-divided the pala between them. It was settled that each one would perform 15 days pala in their allotted month. The plaintiff contends that since 17th Kartic, 1369 B.S. the defendant No. 1 threatened him to oust from his office of shebait and to obstruct him from performing seva and puja of the deities and receiving offering during the last 15 day? of his turn of worship. The plaintiff therefore prays for permanent injunction restraining the defendant No. 1 from his aforesaid acts.
3. The defendant No. 1 denies all the allegations made by the plaintiff and slates that on 6-4-48 the plaintiff executed a Deed of Gift in his favour and gifted his shebaiti pala and all his rights thereto and that since then he enjoys the pala accruing on his own account and also by the gift made by the plaintiff.
4. Both The Courts below held that the Deed of Gift executed by the plaintiff on 6-4-48 was valid and it legally transferred the shebaiti right to the defendant No. 1. In that view of the findings the plaintiff's suit was dismissed. Being aggrieved this appeal has been filed.
5. Mr. Manomohan Mukherjee appearing on behalf of the appellants submits that even assuming that the Deed of Gilt was duly executed by the plaintiff in favour of the defendant No. 1, it could not create any right in favour of the latter as there is clear provision in the Arpannama Ext. 1, that a shebait will not be entitled to transfer his shebaiti right. It is submitted by Mr. Mukherjee that both the Courts mis-read and mis-interpreted the recitals of the Arpannama. The relevant portion of the Arpannama dated 3-10-29 reads as follows: -
'The property mentioned in the schedule below will not be attached and sold in execution of any money decree against us or our heirs. We and our heirs and representatives will not be able to transfer the property mentioned in 'Kha Schedule' either by way of gift, sale or mortgage or by way of mokrari mourasi lease, nor shall we be able to give in security the said property. So long we shall be alive we will remain she-bait of the Deity and we shall possess and use the property mentioned in the 'Kha' schedule as Sebait only. After our demise our heirs will make Debsheba of the said Deity as the Shebait only and will manage and use the said property but in no way at any time any shebait will be able to make a gift, sale and mortgage of the property in schedule 'Kha' or permanently lease out or let out the property or use it as their personal property'.
6. As both the courts have concurrently found that the plaintiff executed the Deed of Gift voluntarily and there was no force or fraud, the question of valid execution of the document cannot be agitated in this Court. The only point that awaits decision here is whether by the Deed of Gift the plaintiff could transfer his shebaiti right in favour of the defendant No. 1. If such a right cannot be transferred in view of the recitals of the Arpannama and if such transfer is again restricted according to the principles of Hindu Law, then it must be said that the plaintiff even though he executed the Deed of Gift has not been divested of his shebaiti right. Both the courts below have held that there was absolute necessity fur such a transfer as the plaintiff under circumstances was not in a position to go on with seva-puja and the transfer was in favour of a person who was in the line of shebaiti. On going through the recitals of the Arpannama carefully it seems to me that the settlers intended that there should be no transfer of the Debattar properly and also of the shebaiti right. In support of the contention that a shebaiti right cannot be transferred Mr. Mukherjee first relies on a decision reported in 30 Cal WN 389 = (AIR 1926 Cal 490). Nagendra Nath Palit v. Robindra Narain Deb. It has been held by Page, I, 'There is a distinction between a shebailfs obligation to perform the spiritual duties of his office and his obligation to manage the temporalities of the idol. A shebaiti primarily and mainly is a sacred office and because in certain circumstances a shebait may be entitled to alienate the temporalities of the deity, it does not follow that in similar or any circumstances he is entitled to transfer the spiritual duties and privileges which appertain to his office. In the nature of things, there can be no necessity for a voluntary transfer of the spiritual duties of a shebait, and the doctrine that a shebait at his own will and pleasure is at liberty to alter the line of shebaits on the ground that to do so would be for the benefit of the deity offends against the common law of India and is in conflict with the uniform rulings of the, Judicial Committee of the Privy Council.' Mr. Mukherjee next refers to a decision reported in 45 Cal WN 665, Sree Sree Iswar Lakshi Durga Mar Tatneswar v. Surendra Nath Sarkar. It is a Bench decision and it has been held that 'The She-bails of a deity, when more than one, form one body in the eye of law. The deity is represented by all of them acting together and no one shebait can be said to represent the idol in part or to possess any specific interest in any share of the idol's property ......An alienation of the idol itself and the office of shebaitship by a shebait is void'. Relying on the decisions referred to above and also bearing in mind the principles of Hindu Law on this aspect, I am of the opinion that by executing the Deed of Gift the plaintiff could not transfer his shebaiti right in favour of the defendant No. 1 and that being so the defendant No. 1 on the basis of the said Deed of Gift could not acquire any right. In such circumstances the plaintiff's suit ought to have been decreed by the Courts below.
7. In the result, the appeal is allowed on contest. The judgment and decree passed by the Courts below are set aside. The plaintiff do get a decree for permanent injunction as prayed for. There will be no order as to costs in this appeal. Let the records go down to the Court below early.