Transfer of a portion of the absolute debuttar property by the shebait without legal necessity is not void but only voidable and valid during the lifetime or tenure of office of the alienating shebait.

1. THE plaintiffs have alleged that the disputed property belonged to one Baikuntbanath Kundu. By a registered deed of arpannama dated 3-11-1915 he dedicated all his properties including the land in suit to the deity Sri Radhagovinda jew Thakur and that is an absolute debuttar. Ultimately his daughter-inlaw, Haripriya Dassi, became shebait of the deity and possessed the property. By a registered kobala dated. 9-8-1956 she sold a portion of the debuttar property, that is the suit land to the plaintiffs for legal necessity. But in the R. S. Khatian it is erroneously recorded that the land had vested in the State. They were threatened with dispossession by the Government tahasildar. Hence the suit for permanent injunction on declaration of the plaintiffs' title to the disputed land and for a further declaration that the entry in the R. S. Khatian is incorrect.

2. THE defence of the State, defendant no. 1, is that the suit land was not retained by submitting a return in the b Form and it vested in the State. There was no legal necessity. Hence the plaintiffs acquired no title to the suit land.

The learned Munsif accepted the defence version and dismissed the suit. The plaintiffs filed an appeal and lost the same. Hence this appeal.

3. THE learned Advocate appearing on behalf of the appellants has contended that the suit land forms part of an absolute debuttar property. In. view of the, provisions of the section 6 (i) of the West Bengal Estates Acquisition. Act, 1953, there is no ceiling limit regarding the retention of an absolute debuittar Property So, no question' of retention or of vesting of the same in the of riling a return in the B Form does, arise. The transfer was made for legal necessity and hence the plaintiffs' title must be declared.

4. THE learned Advocate appearing on behalf of the State has contended that the final court of fact has stated that there was no legal necessity for such transfer. That finding" cannot be challenged in the second appeal. The cases in A.I.R. 1957 S.C. 49 at page 55, and in 22 C.W.N. 49, have been referred to support this contention. It has been stated that the entry in the record-of-rights regarding vesting must be found to be correct.

The final court of fact has stated that there was no legal necessity. The finding cannot be challenged in second appeal. The main question is, what is the effect of transfer of a portion of the absolute debuttar property by the shebait when there was no legal necessity. It is common ground that the property was dedicated to the deity. Law is that if the whole of the absolute debuttar property is transferred by the shebait, then the transfer is absolutely void. But if only a portion of the absolute debuttar property is transferred by the shebait without legal necessity, the transfer is not void. Such transfer is only voidable and is valid during the life time or tenure of the office of the alienating manager. Consequently the transferee's position becomes adverse to the endowment only when the alienating shebait ceases to be the manager on account of death, retirement or otherwise. This view was taken by the Judicial Committee in the cases in 26 C. W. N. 537 PC. vidyabharati-vs-Baluswami, 37 C. W. N. 54 P. C. Mohart Rofacharan Das-v-Naurangilal. In the former case, a portion of the debuttar property was transferred without legal necessity. These decisions were followed by a Bench of our High Court; where Mr. Justice bijan Kumar Mukherjee speaking for the Bench accepted this proposition, vide the case of Hemanta Kumari Deb in 50 C. W. N. 629 at, pages 631 and 632. This Bench decision was subsequently followed by this Court in A.I.R. 1952 Cal. 387.

5. IT" has already been indicated that the entire absolute" debuttar property was not transferred. The transfer was not made by her in her personal capacity, but by her as the shebait of the deity. Consequently it must be held that the transfer is not altogether void and the same is valid during the life time