Masud, J. - (1.) The important point to be decided in this suit is whether a sole shebait can lawfully alienate his right to shebaitship by will under Daya-bhaga School of Hindu Law. The facts of the case may be briefly stated as follows:
(2.) The settler of a deed of endowment, Kashinath Dey, died in 1902 leaving his widow Sm. Jhanobi Moni Dassi and a son Pulin Behari Dey. Pu-lin Behari Dey died a few years after the death of Kashinath Dey, as stated by Mr. Dipankar Ghosh on behalf of the defendant and not objected to by Mr. Debi De on behalf of the plaintiff, leaving Kalicharan Dey as his sole heir. Kalicharan died on December 20, 1958 leaving Kashinath Dey, the present defendant, being the adopted son of Kalicharan. Kalicharan had a natural son Panchugopal who died in May 1933. Kalicharan left a will dated November 21, 1958 whereby he appointed the defendant as the sole shebait. The material portions of the Deed of Settlement dated September 22, 1884 are stated below: ".....Also witnesseth that In consideration of the premises the said Kassi Nath Dey (Doth) hereby appoint his wife the said Shreemutty Jhanobee Monee Dassi to be the sole sabait of the said Idol Sree Sree Iswar Sreedhar Jew Thakur and to perform in the daily and periodical worship on the said Idol and to perform the several poojahs hereinbefore mentioned and from and after her death the said Kassi Nath Dey hereby appoint his son Poolin Behari Dey to be the sabait of the said Idol Sree Sree Ishwar Sreedhar Jew Thakur and from and after his death the said Kassi Nauth Dey hereby appoints the heirs of the said Poolin Senary Dey to be the joint sabaits of the said Idol but in the event of the said Poolin Be-hary Dey having no heirs surviving then and in that case the said Kassi Nauth Dey hereby appoints his grandson by daughters to be the joint sabaits of the said Idol ....." The immovable properties under the said deed of endowment are the family dwelling house No. 4 Gobinda Chandra Sen Lane, Calcutta and premises No. 19. Gobinda Chandra Sen Lane, Calcutta. It is also provided in the said Deed of Endowment that the idol will remain installed in the upper floor of premises No. 4 Gobinda Chandra Sen Lane and that she-bait or shebaits will reside in the said floor. The deed also provides for performance of the daily and periodical worship of the Idol, the performance of Rashjatra, Doljatra, Jhulan-jatra, Janmashtami ceremonies and also for the support and maintenance of the shebait out of the income of the remaining tenanted portions of the said two buildings. In 1935 the widow of Panchu Gopal was a minor and she through her father and next friend Prosad Das Dey instituted a suit against Kalicharan Dey (suit No. 1096 of 1935). On July 28, 1936 a consent decree was passed relevant portions of which are as follows: "I. That the plaintiff would be paid Rs. 20/- a month for her maintenance by the defendant Kalicharan Dey and after his death out of his estate. II. That the specific portion in the first floor of premises No. 4 Gobinda Sen Lane as fully shown and described in the said terms of settlement as well as in the plan annexed thereto was set apart for the exclusive residence of the plaintiff." In or about 1938 the plaintiff attained majority. The said specific portion of premises No. 4 Gobinda Chandra Sen Lane is still in the control of the plaintiff. On an application by the plaintiff before the Execution Court a consent order was passed on February 23, 1938 to the effect that the plaintiff, inter alia, accepted Rupees 3,600/- and Rs. 460/- in full satisfaction of her claim against Kalicharan or his estate for future maintenance and costs respectively. On or about May 1, 1949 Kalicharan adopted the defendant Kashinath. On December 20, 1958 Kalicharan died leaving himself surviving the defendant Kashinath and the plaintiff, the widow of the said predeceased son Panchu Gopal. In July 1959 the plaintiff has instituted this suit claiming for a declaration that she is also a shebait of the said deity and tor other consequential benefits of a shebait as provided under the Deed of endowment. She even has asked for removal of the defendant Kashinath. Her counsel, however, abandoned the latter relief, i. e., removal of Kashinath from his office of shebaitship. The counsel, on behalf of the guardian of the deity without mentioning any ground, has submitted that a scheme for the administration of the estate should be framed by this Court. The counsel for all the parties agreed to have the matter disposed of without adducing any oral evidence. The following issues have been framed and settled: 1. Is the plaintiff a Sebait of the Defendant Deity under the Deed of Trust dated September 22, 1884? 2. Is the plaintiffs claim as a Sebait for residence and maintenance barred under the earlier consent decree and Order passed in suit No. 1096 of 1935? 3. Is the suit as framed maintainable ? 4. To what relief, if any, is the plaintiff entitled ? Issues Nos. 1 and 2:
(3.) Mr. De, on behalf of the plaintiff, has argued that the plaintiff is entitled to be a coshebait with Kashinath inasmuch as under the Hindu Law a shebait cannot create a new line of succession in respect of the shebaitship and no alienation of shebaiti right by will is permissible as it was done by Kalicharan in favour of Kashinath in the present case. Reliance has been placed by him on Manohar Mukheriee v. Bhupendra Nath Mukherjee, AIR 1932 Cal 791 (FB) and also Sankatha Pandey v. Brii Mohan Pandey. (SB). It has also been strenuously argued by him that shebaitship being an inseverable combination of an office and a proprietary right is a special kind of property which cannot be transferred by will. Reference has been made by him to Bameswar Bamdev v. Anath Nath, the observations of Mr. B. K. Mukherjee J. on the Hindu Law of Religious and Charitable Trust (third edition) pages 169. 177. 181 and 183, Gos-sami Sree Girdharjee v. Romanlal-jee Gossami, (1888) 16 Ind App ]37 (144) (PC) and Sm. Angurbala Mallik v. Debabrata Mallick. He has. therefore, requested, the court to hold that the plaintiff and the defendant being the heirs of the founder are jointly entitled to be the shebait of the said debattar estate.;