SHRI BISWANATH DEB, Vs. BAIRAGI PANDA AND ORS.

JUDGEMENT

(1.) THE suit has been brought by deity Shri Biswanath Deb of village Lohapur in the district of Puri through one Dhuli Dikshit as the Shebait -marfatdar. Dhuli and Banambar (defendant No. 4) are the sons of late Nilakantha Dikshit. The disputed Ka and Kha schedule properties belong to the deity. Plaintiff's case is that Defendant No. 4, the co -shebait marfatdar, absented from the village for a period of about 9 years, and Dhuli alone was performing the sebapuja. On 30 -8 -1949, Defendant No. 4 executed a Sebasamarpan Patra (ext. 1) in favour of Defendant No. 1 for a consideration of Rs. 100/ -. Defendant No. 1, in his turn executed another Sebasamarpan Patra (ext. A) on 15 -1 -1955 in favour of Defendants 2 and 3 for a consideration of Rs. 300/ -. Despite the execution of these documents, Dhuli continued in possession of the properties and the sebaiti right. Defendant No. 4 transferred Lot No. 2 of schedule Ka in favour of Defendant No. 5. Plaintiff's suit has been dismissed in respect of this item of property, on the finding that it was not Debuttor property, and he filed no appeal. The trial Court's judgment dismissing the Plaintiff's suit regarding Lot No. 2 of schedule Ka had become final.

(2.) DEFENDANTS 1 to 3 contested the suit alleging that they are joint marfatdars of the deity and that Dhuli and Defendant No. 4 were in separate possession of half of the disputed properties and performed sebapuja by turns. Defendant No. 4 being unable to perform his turn of worship executed the Sebasamarpan Patra (ext. 1) in favour of Defendant No. 1 in respect of the shebaiti right and the lands consisting of Kha schedule and Lot No. 1 of Ka schedule. Defendant No. 1 in his turn executed another Sebasamarpan Patra (ext. A). Both the transfers are valid.

(3.) THE position of law is well settled that alienation of a shebaiti right is void ab initio unless, firstly, the transfer is not for any pecuniary benefit, and the transferee is the next heir of the transferor or stands in the line of succession of Shebaits and suffers from no disqualification regarding the performance of the duties, and secondly, when a valid custom is proved sanctioning alienation of shebaiti right within a limited circle of purchasers, who are actual or potential Shebaits of the deity or otherwise connected with the family. Even if the "transfer' is made in the interest of the deity itself, and to meet some pressing necessity, the alienation of shebaiti right is void unless it comes within the aforesaid two exceptions (Mukherjee's Hindu Law and Religious Charitable Trust, 2nd Edition, pp. 212 -213).