Restrictions on the succession to the office of shebait that are contrary to the Hindu law of succession are void and unenforceable.

( 1 ) THE judgment of the Court was as follows : : The Background : This appeal arises out of a judgment and decree dated 16th of September, 2003 passed by the learned Single judge in C. S. No. 406 of 2001, upon an application under Chapter XIII of the. Original Side Rules of the High Court at Calcutta relating to originating summons.

( 2 ) THE plaintiffs/respondents sought for the determination of the following questions and reliefs:"a. Whether the restriction imposed by the said Deed of ekrarnama dated 25th May, 1820 and the Post-Script thereto dated 27th February, 1822 debarring the descendants of the said Sm. Chitra dassi not belonging to the same Gotra (Clan) as that of the Settlor from becoming Shebaits of the said deity Sri Sri Iswar Radha Gobinda jew is illegal, void and not binding on the plaintiffs, being contrary to hindu Law of Succession and or the general principles of the law of the land applicable thereto ? b. Whether or not the plaintiffs as the only heiresses and legal representatives of the said Baladeb Chandra Mullick have become and are entitled to act as Shebaits of the said deity Sri Sri Iswar Radha gobinda Jew in place and stead of their said predecessor-in-interest and are entitled to perform seva puja of the said deity as such Shebaits and according to the provisions of the Hindu Law and the General Law of the land? c. It be declared that the plaintiffs are lawfully entitled to act as shebaits of the said deity and to perform debseva and/or puja in place and stead of their father the said Baladeb Chandra Mullick and the objections raised by the Official Trustee of West Bengal are invalid, inoperative and not binding on the plaintiffs and further that the rule laid down as to the succession to Shebaiti right in the decree/order of this Hon'ble Court dated 4th December, 1879 passed by the Hon'ble mr. Justice Macpherson is bad in law and not binding on the plaintiffs. d. If the answers to the questions framed in Clauses (a) and (b)above are in the affirmative and in the plaintiffs' favour then directions be given to the Official Trustee of West Bengal to accept the plaintiffs as such Shebaits and to allow and make payments to the plaintiffs for performing the Seva Puja and all other periodical festivals of the said deity during their turn or pala of worship being turn or pala which was enjoyed by the said Baladeb Chandra Mullick. "

( 3 ) BY or under the judgment and decree dated 16th of September, 2003 question Nos. a, b and c above were answered in the affirmative. The appellants sought for leave to prefer the present appeal which having been granted and upon notice being served upon the plaintiffs/respondents, on the question of interim order, the matter was heard by this Court. In course of hearing on the question of interim order it appeared that a decision would virtually affect the rights of the parties and that the learned Counsel for both the parties had addressed the Court on the merit. We, therefore, proposed to hear out the appeal. By consent of parties, all formalities were dispensed with. The matter was directed to appear in the list when the parties had addressed the Court on merit. The appeal was treated as on day's list for hearing. Issues:

( 4 ) AFTER having heard the learned Counsel for the parties on the respective questions, it appears that the fundamental questions involved in this case can be divided into two broad points. (1) The first point that was urged by the appellant was with regard to the maintainability of the originating summons on the ground that the dispute involved cannot be answered in exercise of jurisdiction conferred upon this Court by the rules prescribed in chaptejr-XIII of the Original Side Rules. (2) The second point that was urged that the line of succession specified by the settlor being followed over a long period of time, it had taken the shape of a custom and usage which cannot be deviated from even by reason of subsequent change in law of succes