JUDGMENT : Misra, J. - The suit has been brought by deity Shri Biswanath Deb of village Lohapur in the district of Puri through one Dhuli Dikshit as the Shebait-marfatdar. Dhuli and Banambar (defenedant No. 4) are the sons of late Nilakantha Dikshit. The disputed Ka and Kha schedule properties belong to the deity. Plaintiff's case is that Defendant No. 4, the co-shebait marfatdar, absented from the village for a period of about 9 years, and Dhuli alone was performing the sebapuja. On 30-8-1949, Defendant No. 4 executed a Sebasamarpan Patra (ext. 1) in favour of Defendant No. 1 for a> consideration of Rs. 100/-. Defendant No. 1, in his turn executed another Sebasamarpan Patra (ext. A) on 15-1-1955 in favour of Defendants 2 and 3 for a consideration of Rs. 300/-. Despite the execution of these documents, Dhuli continued in possession of the properties and the sebaiti right. Defendant No. 4 transferred Lot No. 2 of schedule Ka in favour of Defendant No. 5. Plaintiff's suit has been dismissed in respect of this item of property, on the finding that it was not Debuttor property, and he filed no appeal. The trial Court's judgment dismissing the Plaintiff's suit regarding Lot No. 2 of schedule Ka had become final. 2. Defendants 1 to 3 contested the suit alleging that they are joint marfatdars of the deity and that Dhuli and Defendant No. 4 were in separate possession of half of the disputed properties and performed sebapuja by turns. Defendant No. 4 being unable to perform his turn of worship executed the Sebasamarpan Patra (ext. 1) in favour of Defendant No. 1 in respect of the shebaiti right and the lands consisting of Kha schedule and Lot No. 1 of Ka schedule. Defendant No. 1 in his turn executed another Sebasamarpan Patra (ext. A). Both the transfers are valid. 3. The learned trial Court found that the shebaiti right was not transferable and the transfer of the deity's properties was not for legal necessity and that Defendants I to 3 were not members of the family of Dhuli and Defendant No. 4, were not joint marfatdars with them but were strangers: It also rejected the defence story of separate possession of lands by Dhuli and Defendant No. 4 and of the performance of the sebapuja by turns. After coming to the conclusion that Dhuli was in possession of the deity's properties, it declared Plaintiff's title to the properties in Kha schedule and Lot No. I of Ka schedule, and confirmed Plaintiff's possession. It declared ext. I as invalid. Before the learned Subordinate Judge two contentions were advanced and the other findings were not challenged. He dismissed the first contention that the suit was not maintainable at the instance of Dhuli Dikshit. He however, accepted the second contention that the alienation being made for the performance of the sebapuja of the deity and for he benefit of the endowment was valid. On that footing he dismissed the Plaintiff's suit. "The second appeal has been filed by the Plaintiff against the appellate decree. 4. The position of law is well settled that alienation of a shebaiti right is void ab initio unless, firstly, the transfer is not for any pecuniary benefit, and the transferee is the next heir of the transferor or stands in the line of succession of Shebaits and suffers from no disqualification regarding the performance of the duties, and secondly, when a valid custom is proved sanctioning alienation of shebaiti right within a limited circle of purchasers, who are actual or potential Shebaits of the deity or otherwise connected with the family. Even if the "transfer' is made in the interest of the deity itself, and to meet some pressing necessity, the alienation of shebaiti right is void unless it comes within the aforesaid two exceptions (Mukherjee's Hindu Law and Religious Charitable Trust, 2nd Edition, pp. 212-213). Nagendra Nath Palit Vs. Robindra Narain Deb is the leading decision on the question. After making a full review, their Lordships summarised the legal position thus. The rule of necessity extends only to an alienation of the temporalities of the idol. It does not, and, in my opinion, it cannot be made to apply to an alienation of the spiritual rights and duties the fulfillment of which is the primary function of a shebait. To apply such a rule to the spiritual duties of a shebait would be to contravene a fundamental principle of Hindu Law, and to violate the religious instincts of orthodox Hindus. Indeed in the nature of things there can be no necessity for a voluntary transfer of the spiritual duties of a shebait. To apply such a rule to the spiritual duties of a shebait would be to contravene a fundamental principle of Hindu Law, and to violate the religious instincts of orthodox Hindus. Indeed in the nature of things there can be no necessity for a voluntary transfer of the spiritual duties of a shebait. x x x x And the doctrine that a shebait at his will and pleasure is at liberty to alter the line of shebaits on the ground that to do so will be "for the benefit of the deity", in my opinion, offends against the Common Law of India, and is in conflict with the uniform rulings of the Judicial Committee of the Privy Council. The same view has been taken by the Patna High Court in Richha Ram v. Balabhadra Das 1 C.L.T. 15. and Sree Gopinath Deb v. Srimatya Nila Dibya 1. C.L.T. 51, in cases from Orissa. AIR 1962 Calcutta 490, was followed in Niranjan Panda v. Narayan Panda ILR 1953 Cuttack 508. The transfer, in this case, is admittedly of shebaiti right and does not come within the aforesaid exceptions. It is void ab initio. The further 'argument of Mr. Asok Das that the alienation of the Debuttor land is not to be set aside is also untenable. The recitals in the document make it absolutely clear that the transfer of the lands is intertwined with the transfer of office and it is difficult to uphold some of the provisions of the deed and to reject the others. The identical contention was rejected in Sree Gopinath Deb v. Srimatya Nila Dibya. 5. Ext. I is also void on another ground. The Shebaits, as trustees, must act jointly and the office vests in the Shebaits collectively. Though some sort of division amongst the Shebaits inter se is permissible for doing sebapuja by turn, it is allowed only on grounds of convenience. In the eye of law, the Shebaits remain one body the deity is represented by all of them acting together, and no one Shebait represents the idol in part or possesses any interest in fractional share of the idol's property. This principle is settled by the pronouncement of their Lordships of the Judicial Committee in 45 O.W.N. 665. In the eye of law, the Shebaits remain one body the deity is represented by all of them acting together, and no one Shebait represents the idol in part or possesses any interest in fractional share of the idol's property. This principle is settled by the pronouncement of their Lordships of the Judicial Committee in 45 O.W.N. 665. The transfer of the deity's properties by Defendant No. 4 alone without the concurrence of Dhuli, even for necessity and benefit of the deity, is invalid in law. 6. Mr. Asok Das raises a new contention that the lakharaji interest of the deity has vested in the State of Orissa during the pendency of the second appeal on 27-4-1963 under the Orissa Estates Abolition Act and the suit by the deity in respect of the lands is not maintainable. It is to be made clear that this argument has no application to the shebaiti right which does not vest in the State. Reliance is placed on Praful Kumar Dhal v. Kali Panda 27 C.L.T. 17, where it was laid down that on failure of the intermediary occupying the house or the homestead to apply within the prescribed period, his right to possess stands extinguished and he becomes no more than a mere trespasser. An affidavit has been filed by Dhuli stating that after the vesting, necessary application has been made to the proper authority within the prescribed period for settlement of fair and equitable rent. A copy of the affidavit has been served upon Mr. Asok Das who has not filed any counter. In view of the affidavit, the decision has no application to this case. 7. The learned trial Court had passed the decree confirming possession of the deity. The finding that the deity is in possession has not been upset in first appeal. On the finding that ext. 1 is void and confers no title on Defendant No. 1, no further title is conveyed by ext. A. The result is that the deity continues to have its title and is entitled to continue in possession through Dhuli and Defendant No. 4. As Defendant No. 4 was responsible for the deity's filing the suit to remove the cloud from its title, the deity could not have sued through Defendant No. 4 who was rightly made a party Defendant. As Defendant No. 4 was responsible for the deity's filing the suit to remove the cloud from its title, the deity could not have sued through Defendant No. 4 who was rightly made a party Defendant. In view of the aforesaid analysis, Plaintiff's suit with regard to schedule Kha and Lot No. I of schedule Ka is decreed and its possession confirmed. 8. The appeal is allowed with costs throughout. Final Result : Allowed