Judgement

RAY, C. J.:- This appeal is by certificate from the judgment dated 11 April, 1973 of the High Court at Calcutta dismissing the appellant s suit.

2. Two contentions were advanced on behalf of the appellant. First, a shebaiti right being both an office as well as species of property can and has been transferred in certain circumstances. Such transfer is possible if it is not contrary to the intention of the founder as expressed in the deed or any document concerning shebaitship. Second, it is permissible for the benefit of the idol or the deity or any other pressing necessity to execute a sale deed in respect of shebaiti right.

3. The deity at the premises is popularly known as Firingi Kali. Ramakanta Pal constructed a Shiva temple and installed the deity Shiva at the premises. Ramakanta Pal became the shebait In 1820 Kali Prasad Pal and Gouri Prasad Pal the two sons of Ramakanta Pal orally transferred the temple together with the idol and shebaiti right of the deity to Srimanta Pandit. Srimanta Pandit carried on the sheba. He constructed a small brick built one storeyed room thereon. He installed the deities Kali, Sitala. Manasha and Shaligram Shila. Sitala. In 1880 Srimanta Pandit by a registered deed transferred the temple together with the deities and the shebaiti right of the deities to Shashi Bhusan Banerjee. Shashi Bhusan Banerjee performed sheba till his death on 24 August, 1894. He left behind him two widows Paripurna Debi and Pramila Sundari Debi. Paripurna Debi after the death of Shashi Bhusan Banerjee carried on sheba puja of the Fdeity. She died on 10 April, 1905. On her death Rakhal Chandra Mukherjee brother of Paripurna Debi took possession of the temple premises and ousted Pramila Debi.

4. On 22 August, 1905 Pramila Debi filed a suit in the High Court against Rakhal Chandra Mukherjee for a declaration of her right in the temple premises and the sheba puja. On 12 February, 1907 Pramila Debi obtained a decree against Rakhal Chandra Mukherjee declaring her to be entitled to temple premises and to the right of sheba puja.

5. Meanwhile on 3 August, 1906 Pramila Debi along with one Chandra Kumar Banerjee who was the reversioner of Shashi Bhusan Banerjee sold certain properties of the estate of Shashi Bhusan Banerjee to Upendra Nath Gangull for legal necessity. On 29 January, 1907 by a deed Pramila Debi sold one half share of her full title in the temple and the share of shebaiti right to Upendra Nath Ganguli. The legal necessity claimed in the deed was incurring expenses in connection with the litigation relating to the temple premises and the shebaiti right against Rakhal Chandra Mukherjee.

6. Upendra Nath Ganguli who came into possession of the premises carried on sheba puja till his death in 1925. On 5 November, 1922 Upendra Nath Ganguli made his first will. He appointed his brother Pramatha Nath Ganguli as the executor. Upendra Nath Ganguli bequeathed life interest in respect of temple premises to Pramila Debi as shebait and after her death to the appellant Kali Kinkor Ganguly. On 15 January, 1925 Upendra Nath Ganguli made a second will by which he bequeathed to Pramila Debi all his right, title and interest in the temple premises for her life. Upendra Nath Ganguli died on 30 January. 1925. On 3 August, 1925 Pramatha Nath Ganguli applied for probate, before the District Judge 24-Parganas. On 12 December, 1925 Pramila Debi filed an objection in the probate proceedings. She contended that there was a second will. The district Judge granted probate to Pramatha Nath Ganguli in respect of first will and letters of administration with copy of the will annexed to Pramlia Debi in respect of the second will. By an order dated 6 February, 1928 the proceedings relating to letters of administration granted to Pramila Debi were remanded to the District Judge by a Division Bench of the High Court at Calcutta. On 17 July, 1928 probate was granted to Pramatha Nath Ganguli in respect of both the wills of Upendra Nath Ganguli.

7.