A shebait who is absent from the property of the deity for a long time and fails to perform the seba puja may be deemed to have relinquished his right to shebaitship. A shebait can nominate another person to be the next shebait, even if the nomination is made by a Will.

This Miscellaneous First Appeal is directed against the order of remand passed on 17.9.83 by Sri D.K. Chatterjee, Subordinate Judge, second court, Hooghly in Title Appeal No. 257 of 1981 reversing the judgment and decree dated 23.7.1981 of Sri P.K. Basu Mallick, Munsif, first court, Serampore, passed in Title Suit No. 175 of 1977.

2. Plaintiff's case in brief is that the disputed property is an absolute debattar property of the deity "Uttarbahini Thakurani" arid the descendents of the founder of the deity named Lakhi Narayan and Shambucharan were the shebaits in terms of the Tavadat (i.e., grant, Ext. 11). In the settlement record, Abhoy Charan and Manada two descendants of the above-named shebaits were shown as joint shebaits. Abhoycharan permanently settled at Dhanbad (in Bihar), foregoing the rights of the shebait-ship in favour of his co-shebaits Manada and her daughter Nandarani and in consequence, these two ladies had to perform the seba puja of the deity and they also used to enjoy the usufructs of the suit property and appropriate the income. Hiralal, the son of Abhoycharan being a permanent resident of Dhanbad did not claim the right of shebait-ship nor did he perform or even arrange to perform the seba puja of the deity at any point of time. After the death of Manada, Nandarani was compelled to take the aid of the plaintiff who is the son of her brother-in-law (i.e., husband's brother's son) in the performances of the seba puja of the deity and ultimately Nandarani by a deed 6.2.52 (Ext. 3) appointed the plaintiff to be the shebait in respect of the suit property. The plaintiff accordingly, performed his duty as shebait. On 23.12.73 Nandarani expired. In the R.S. record of rights, half share of Hiralal was wrongly recorded on the basis of his C.S. record even though Nandarani duly filed 'B' form under the West Bengal Estates Acquisition Act with a view to retaining the suit property. She also settled many lands and realised the compensation as the sole shebait Hiralal died on 11.4.62 at Dhanbad and his heirs also did not claim any right over the disputed property. Some local people formed an association under the name and style "Uttarbahini Bishalaxmi Matar Seva Samiti" and started claiming the deity to belong to the public and the samiti also attempted to interfere with the seba puja. Ultimately, these people managed to obtain two deeds dated 20.6.77 (Exts. A & B) from Indira Devi, the wife of Hiralal in favour of the defendant s. Indira Devi, according to the plaintiff, had no power to execute such documents alone in respect of the entire half share of Hiralal. Her processor-in-interest did not even perform the seba puja of the deity for the last 40/50 years nor did he come to the suit property. Since the Samiti has been trying to interfere with the seba puja of the deity since 4.9.77, the plaintiff has instituted the suit.

3. The defendant no. 1 contested the suit through defendant no. 2 denying the material allegations in the plaint and contending inter alia, that the said seba puja Samiti was formed with a view to supervising the temple performing seba puja of the deity and in fact they were performing their duties for the benefit of the deity. Being satisfied with such performance of the Samiti, Indira Devi on her own accord on behalf of herself and her sons executed the said two deeds in respect of their entire share of the properties. The defendants also denied that Indira Devi or her predecessor-in-interest ever gave up the right of shebait-ship or of the property. According to them, Indira Devi and her predecessor-in-interest visited the suit property at intervals and duly performed their part of seba puja.

4. On the above pleadings the learned Munsif framed 5 issues and decreed the suit on contest in part with cost.

5. Being aggrieved by the judgment and decree of the learned Munsif, the defendants preferred the Title Appeal No 257 of 1981. This appeal was heard by Sri D.K. Chatterjee, the learned Subo