Transfer of Shebaiti right is permissible if it is for the benefit of the deity and under family custom.

( 1 ) THIS appeal is preferred by the plaintiff against an appellate judgment and decree of affirmance.

( 2 ) THE appellant filed a suit for a declaration that the disputed properties were the absolute Debuttar Properties and by virtue of transfer the plaintiff acquired the Shebaiti right to the extent of six annas odd gandas to the exclusion of the defendant respondents Nos. 1 and 3 who claimed under the same shebaiti right by virtue of a Will left hy same transferor one Satish Chandra Roy and for permanent injunction and for other reliefs.

( 3 ) I need not repeat the facts of the case which are fully set out in the judgment of the appellate court. The controversy centres round the question whether by the deed of transfer named as 'arpannama' dated 12-6-1935 the transferor Satish Chandra Roy who was admittedly a Co-shebait of the family Deity of Roys "sri Sri Radhakanta Jew Thakur" transferred absolutely his Shebaiti right to the present plaintiff. It is admitted in this case that the disputed properties are the absolute Debutter properties of the Deity. It is also admitted that along with the Arpannama Satish Roy executed one 'ijarapatta' (lease) in favour of the defendant No. 5, brother of the plaintiff, on the same date for thirty years in respect of the disputed properties. Now, the case of the plaintiff in substance is that by the Arpannama and by the Ijarapatta the entire Shebaiti right of Satish Roy was transferred absolutely to the present plaintiff a co-shebait and out of the rent of Rs. 190/- reserved in the Patta the appellant would be entitled to get Rs. 100/-to carry on the Seba Puja of the Deity forever. The defendants Nos. 1 and 2 grandsons, and the defendant No. 3, a son of Satish Roy, who died on 14-10-1949 set up his will and claimed the Shebaiti right in his share and denied the plaintiff's claim of Shebaiti right. Some of the other defendants who were the Co-shebaits filed written statement supporting the case of the plaintiff.

( 4 ) IT appears that sons and grandsons of Satish Roy contested the suit at the trial stage but the other defendants who filed the written statement did not appear at the trial. The Trial Court took the view of a construction of both the documents that the plaintiff obviously acquired some interest in the 'palas' but they were not sufficient to confer full title or right. The trial Court also on a further question of adverse possession held against the plaintiff and dismissed the suit. The appellate Court below, though the appeal was not contested by any of the respondents, substantially agreed with the trial Court and held that the alienation of Satish Roy in favour of the plaintiff by the Arpannama was not valid and operative against his legal heirs and the plaintiff could not claim title to Shebaiti right on additional reason that the Arpannama was not a document of transfer and the Shebaiti right was not at all transferred to the plaintiff by this document. The correctness of this decision is now challenged before me in the present appeal.

( 5 ) THE first question that arises for consideration is whether the Arpannama is a document of transfer of Shebaiti right absolutely and secondly, whether such Arpannama could operate as a valid deed of transfer against the legal heirs of Satish Roy. It appears that the appellate court from a construction of the operative portion of the document Arpannama read with 'ijarapatta' found that the executant did not divest himself of Shebaiti right but simply made arrangement for the proper performance of Puja during his Pala. Mr. Mukherjee appearing in support of the appeal has contended that since the 'pala' or turn of worship of Satish Roy by the impugned document was made over to plaintiff absolutely and forever in favour of the appellant and his heirs and assignees successively with a further covenant binding the executant, his heirs and assigns the document must be accepted as a deed of transfer of Shebaiti right absolu