A shebait can transfer his shebaiti right by will in certain circumstances.

( 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