JUDGMENT Majumdar, J. - This summons has been taken out on behalf of the Plaintiffs Surendra Kumar and Narendra Kumar Karforma both shebaits of the Thakur Sree Sree Iswar Radhakanta Jew who entered into an agreement with the Defendant for sale of the premises No. 95, Pathuriaghata Street belonging to the said Thakur for determination inter alia of the following question: (a) Having regard to the facts and circumstances under which the Plaintiff have agreed to sell the aforesaid promises whether a marketable title can be made out by them as sin baits for the sale of the said premises. The Thakur who is located in the other premises belonging to the Thakur at 3, Akshoy Dutt Lane was later on added as a Plaintiff and is represented by the said shebaits. The facts as alleged by the Plaintiffs are: One Mohendra Nath Pramanik who was maternal uncle of the Plaintiffs' grandfather Bhuban Karforma by his Will made on or about 27th March, 1873, appointed the said Bhuban Mohan and one Sm. Chuni Dassi as his executor and executrix and also directed thereby inter alia as follows : (a)That the executor and executrix after causing the Government bills, etc., of (5) Unreported decision of S.R. Das, J., in Original Suit No. 483 of 1945. the premises No. 95, Pathuriaghata Street and No. 3, Manoo Doctor's Lane to be made in the name of Sree Sree Iswar Radhakanta Jew, should perform the regular sheba of the said Thakur from the income of the said House. (b)That they or their heirs should never be able to make gift or sale of the said houses. The said premises No. 3, Manoo Doctor's Lane subsequently came to be known as No. 3, Akshoy Dutt Lane. The said Mohendra Nath Pramanik died sometime thereafter in the year 1873 and the probate of his Will was obtained by the said executor and executrix from this Court in or about 1874 and they administered that estate in terms of the Will and acted as shebaits until 1880 when the said executrix died leaving no heirs. 2. Thereafter the said Bhuban Mohan acted as the sole shebait and realised rents, issues and profits of both the said premises and applied the income arising out of the said properties towards the sheba and worship of the said Thakur. 3. 2. Thereafter the said Bhuban Mohan acted as the sole shebait and realised rents, issues and profits of both the said premises and applied the income arising out of the said properties towards the sheba and worship of the said Thakur. 3. After the death of Bhuban Mohan in 1881 his two sons Prasanna Kumar and Surya Kumar became shebaits. The said Prosanna Kumar died in 1908 leaving him surviving the Plaintiff Surendra Kumar as his heir. Surendra thus became and acted as a shebait along with Surya Kumar. Upon the death of the said Surya Kumar in 1933, the Plaintiff Narendra as his son and sole heir became a shebait. Thus since 1933 the Plaintiffs Surendra and Narendra became the shebaits and have been so acting since then. 4. The shebaits entered into an agreement with the Defendant for sale of the said premises No. 95, Pathuriaghata Street on the 2nd May, 1945 They have alleged in their affidavit that the said premises is very old and is in a dilapidated condition and does not fetch any income beyond Rs. 85 per month against which rates and taxes thereof have to be paid at Rs. 42 per quarter. The other premises No. 3, Akshoy Dutt Lane, fetches only an income of Rs. 60 per month out of which again the rates and taxes thereof amounting to Rs. 30 per quarter have to be met. They have no surplus in their hand after meeting expenses of worship and they have to contribute substantial sums from their personal incomes for carrying on the sheba. The condition of the said premises No. 95, Pathuriaghata Street is such that it was impracticable, if not impossible, to repair the same and that the cost of pulling down the said Structure and rebuilding the same would be at least Rs. 25,000. If the said premises comes down whatever income is obtained in respect thereof will be lost and it would be practically impossible to meet the- expenses of the debsheba. 5. It is the Plaintiffs' case that in order to avoid such loss they have entered into the said agreement with the Defendant for sale of the said premises at Rs. 34,000 which, according to the shebaits, is more than its proper value stated in the report of the Engineer, Mr. 5. It is the Plaintiffs' case that in order to avoid such loss they have entered into the said agreement with the Defendant for sale of the said premises at Rs. 34,000 which, according to the shebaits, is more than its proper value stated in the report of the Engineer, Mr. T.K. Ghosh, who, while preparing an estimate for repairs reported also the present valuation of the property. 6. The agreement for sale has not been produced before me but from the frame of the question it seems that the shebaits undertook to deduce a marketable title. The Defendant does not dispute the facts as stated in the affidavit and on these materials the Court has been called upon to determine the said question. 7. The provisions relating to vendors and purchasers summonses as provided in Rule 4, Chapter XIII of the High Court Rules (Original Side) is really a reproduction of clause 9 of the Vendors and Purchasers Act, 1874, which entitles Vendors and Purchasers in England to obtain relief in a summary way by means of originating summons where a suit for specific performance would lie. The same principle may be noticed to be underlying the rules of this Court also. The questions that will be determined by the Court in such summons are to be found in the said Rule 4 which provides that summons can be taken out for the determination of any question which may arise in respect of any requisition or objection or any other question arising out of or connected with the contract (not being a question affecting the existence or validity of the contract). The words within the brackets are very important. In determining, therefore, the question raised in the present summons it has to be seen first if it affects the existence or validity of the agreement for sale of the said premises before any opinion be given or relief granted. 8. Admittedly the property concerned is debutter belonging to the Thakur Sree Sree Iswar Radhakanta Jew of whom the Plaintiffs, Surendra and Narendra, are the shebaits. The powers and duties of a shebait under Hindu Law may now be taken as almost settled. The test as to whether a shebait can alienate the corpus of a debater property is the existence of necessity. The powers and duties of a shebait under Hindu Law may now be taken as almost settled. The test as to whether a shebait can alienate the corpus of a debater property is the existence of necessity. Such alienation can only be reported to as an extreme measure and it must be established that there was no other means available for the needs of the Thakur., It is only under such justifying circumstances that a shebait can be a vendor and enter into an agreement for sale of debutter property. It is also well settled that when a person enters into any agreement with a shebait for sale of any debutter property, he is bound to inquire about the existence of the necessity which alone can justify the sale. In the above view of law, any agreement for sale of a debutter property by a shebait in the absence of necessity would be entirely void and cannot be enforced in. specific performance either against the shebait of the Thakur [Motee Doss v. Mudhoo Soodun (1864) 1 W.R. 4]. Thus the question of the existence of necessity in my opinion is one which is fundamental for giving effect to a contract for sale by shebait and it certainly affects the validity of such contract and does not arise out of it. 9. Now considering the main question before me, though nothing has been said therein about legal necessity, that is inextricably involved therein, it may be resolved into two parts thus: (a) Whether having regard to the fact and circumstances under which the Plaintiffs have agreed to sell the aforesaid premises there was sufficient legal necessity. (b) whether a marketable title can be made out by the Plaintiffs as shebaits. 10. The Court will have to say first that there was justifying necessity before it could say that a marketable title has been made out. Thus the question raised in the summons necessarily affects the validity of the contract and cannot be determined by this summary procedure. But even were I of opinion that the question in the summons did not affect the validity of the contract I would refrain from determining the question by this summary procedure of originating summons. 11. The mode of procedure by originating summons is intended for the decision of matters which are not of involved nature and are not questions which require considerable discretion. 11. The mode of procedure by originating summons is intended for the decision of matters which are not of involved nature and are not questions which require considerable discretion. When correctness of facts are not disputed by any party the Court under its rules has to determine the question in a summary way on mere affidavit-evidence and there is no procedure by which the truth or otherwise of such evidence can be tested even if the Court be in doubt. Such procedure may be convenient when a vendor transfers his own property or such property which has been vested in him by act of parties or operation of law, but it seems to be inappropriate when a shebait seeks to vend the property of a Thakur; for, there the Court must have to be satisfied beyond doubt that there was qualifying necessity. This satisfaction, I am of opinion, cannot be established on mere affidavit. If the Court is to give its certificate on such affidavits a wide door to fraud would no doubt be opened for unscrupulous shebaits and purchasers for making out a case of easy disposal of debutter property which is ordinarily extra commercium. By collusion between the shebait and the purchaser a well-staged case may be got up for obtaining a certificate of the Court. It has been held by Ameer Ali, J., in the case of Sree Sree Iswar Norain Jew v. Soler 41 C.W.N. 627: ILR (1937) Cal. 138 (1936) that the Court has no power to grant on application by shebait to sanction his transaction on the ground of necessity. I fully agree with the views of the learned Judge and desire to add that asking for certificate of the Court by an originating summons on mere affidavit as to necessity would amount to circumventing that decision and obtaining sanction of the Court indirectly. 12. In the circumstances aforesaid I am of opinion that where a shebait purports to sell any debutter estate, it is not competent for the Court to give any opinion or entertain such summons for determination of question like the present one. 13. The Plaintiffs' shebaits had relied upon three unreported decisions of this Court where relief had bees granted although the question of legal necessity was involved. The first two of the said decisions, viz., Malkabai v. Sm. 13. The Plaintiffs' shebaits had relied upon three unreported decisions of this Court where relief had bees granted although the question of legal necessity was involved. The first two of the said decisions, viz., Malkabai v. Sm. Sasimukhi Dassee Unreported decision of Panckridge, J., in Original Suit No. 1613 of 1935 decided by Panckridge, J., and Sm. Umasundari Mitter v. Ajit Kumar Mitter Unreported decision of McNair, J., in Original Suit No. 210 of 1940 decided by McNair, J., relate to sales by widow of her husband's estate for legal necessity. The said decisions are of no assistance to me inasmuch as the learned Judges deciding those cases have not gone into the question as to whether the question of legal necessity can be raised and determined in Vendors and Purchasers summons. Further, the analogy between the case of a Hindu widow representing her husband's estate and the case of a shebait managing a debutter property is gather remote though there might arise a question of legal necessity in respect of their transactions under certain circumstances. But a widow can always sell her husband's estate. Such sale in any event would enure during her life-time and if there he legal necessity or ratification by the reversioners the sale would be absolute. Sale by a widow would not be void ab initio, while in the case of a shebait no estate is vested in him and he cannot sell any interest in the debutter property unless there is legal necessity. Absence of legal necessity would make the transaction absolutely void. The last case that has been referred to me is the decision of Das, J. in Charu Chandra Dutt v. Lukhmichand Bhiwaniwalla Unreported decision of S.R. Das, J., in Original Suit No. 483 of 1945. This is a case where an agreement of sale of debutter property by shebait was involved. On the admitted facts Das, J., has answered that a true case of legal necessity had been made out by the Plaintiff who was a shebait. It appears that one of the two shebaits had entered into an agreement for sale and obtained the summons for determination of the question raised, therein. The Thakur does not appear to have been represented. 14. I regret I cannot agree with the said decision. It appears that one of the two shebaits had entered into an agreement for sale and obtained the summons for determination of the question raised, therein. The Thakur does not appear to have been represented. 14. I regret I cannot agree with the said decision. In view of the opinion that I have expressed above I should dismiss the summons, each party bearing his own cost.