SOVABATI DASSI Vs. KASHI NATH DEY

JUDGEMENT

(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:

(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.