The right of a worshipper to sue for declaration of debutter property is not unqualified, and the appellate court has jurisdiction to set aside a decree even if the deity or shebait was not a party to the appeal.

JUDGMENT

Lodge, J. - This second appeal arises out of a suit instituted by a worshipper of a Hindu family deity in which the plaintiff prayed for the removal of the shebait, for the framing of a scheme for the proper sheba of the goddess, for a declaration that certain immovable properties were debutter properties and for a permanent injunction restraining the defendants from interfering with the sheba and puja of the deity and the collection of profits from the debutter properties. One Hara Kishore Roy was the owner of 1 anna, 13 gandas, 1 kara, 1 krant, share in hisya Krishna Ballav Roy which was one of the separate shares of a revenue paying estate known as taluk Daul Jagat Ballav Roy. In the year 1848, Hara Kishore Roy executed a document by which he created a permanent dartaluk in favour of the family deity. Sri Sri Baradeswari Hara Kishore was the first shebait and was succeeded by his adopted son Barada Kishore Roy. Barada Kishore died leaving three sons, the eldest of whom was Mohini. The three sons died leaving as the only male descendant of Hara Kishore in the direct line, Dhirendra son of the eldest son Mohini. Mohini had married twice. Dhirendra is the son of Mohini's first-wife who has since died. The plaintiff Sashi Kumari is the widow of Mohini, and the step-mother of Dhirendra. The plaintiff impleaded her step son, Dhirendra as shebait: he was defendant 1 in the suit. In addition, plaintiff impleaded certain persons who were alleged to be transferees of portions of the debutter property and certain other persons as members of the founder's family interested in the endowment. Also the deity herself was made defendant 13 in the suit and was represented by a pleader guardian appointed by the Court. The plaintiff alleged that there had been breach of trust on the part of the various shebaits who had transferred portions of the debutter property as though it had been their private property, and that there had been negligence on the part of defendant 1 in the performance of his duties as shebait. The shebait, defendant 1, did not contest the suit. The guardian appointed on behalf of the deity, defendant 13, reported that the interest of the deity was the same as that of the plaintiff. Certain of the alienees contested, disputing the debutter character of the properties and also disputing plaintiff's right to institute the suit. The original Court decreed the suit in part in the following terms:

It is hereby declared that the deity defendant 13 has a dartaluk at an annual jama of Rs. 7 under and in respect of 6 annas 17 gandas 2 karas share of touzi No. 119 of the Tippera Collectorate described in schedule Kha of the plaint and 'that the said dar-taluk is the debutter property of the Goddess Sri Baradeswari (defendant 13). It is further declared that all the lands of schedule Ka excepting O. S. dag 1929 form the exclusive lands of the aforesaid dar-taluk of defendant 13. It is further ordered and decreed that defendant 1 be removed from the office of shebait of defendant 13 and a scheme be framed by the Court for better management and administration of the debutter estate and for proper maintenance of the sheba and puja of the deity defendant 13; and that all the defendants connected with the founder's family and interested to see due performance of the sheba and puja of the Goddess Sree Baradeswari be invited to submit schemes for approval of the Court within two months hence. The claim for permanent injunction and the claim to C. S. dag 1929 are disallowed.

2. Against this decree defendants 2, 3, 5, 7, 11 and an heir of defendant 4 appealed. The appellants were all transferees; but they were not all the alleged transferees impleaded in the suit. Some of those alleged transferees did not join in the appeal. The sole respondent impleaded in the appeal was the plaintiff, Sashi Kumari Debi. Neither the shebait, defendant 1, nor the deity defendant 13 was made party to the appeal. The attention of the appellants was drawn b