Judgment 1. THIS is an appeal by the sole principal defendant, Prafulla Kumar Neogy, from an appellate judgment and decree of affirmance concerning a suit by two brothers, Nilratan and Ramratan, now the first two respondents to this appeal, each with a triple surname of Ghosh Sarkar Haldar, as sebaits of Shri Shri Iswari Durga Mata Thakurani, for a declaration that the said principal defendant, namely, the appellant before me, has no manner of a tenancy right in a 3-cottah parcel of land with pucca structures thereon situate in Bhadreswar Sarkar Bagan Lane in the sub-division of Serampore and for certain other incidental reliefs. 2. THE subject-matter of this litigation is recorded as plot No. 3846 and described as Bastudalan: in Khatian no. 1900 of Bhadreswar. For a proper apprehension of the appeal as argued at the Bar, suffice it to say this. One Girindra Nath ghosh Sarkar (the third surname Haldar is missing in the second paragraph of the plaint), a quondam sebaiti, was appointed the common manager, but only to be removed by the district judge, Hooghly, on April 5, 1935. Some 12 years later in or about November, 1947, he died. But much before he had died and shortly after the removal from his office of common manager, to be exact, on January 25, 1936, he had sold his tenancy right under the Devottar estate in the subject-matter of this litigation to Bholanath, the appellant's father, now dead. The first two respondents came to know of it, a sham sale of a sham tenancy right, only after girindra's death. Hence the suit by them seeking to strike down the sale deed of January 25, 1936, and for 'the declaration just noticed along with other consequential reliefs. 3. OF the various pleas the appellant answers the suit with, two only need be noticed. One, the defect of parties is such that it is fatal to the suit. Two, the appellant's tenancy which devolved upon him from his father has been recognized by the sebaits and cannot therefore go down. 4. THE first plea, touched in the written statement in a laconic manner, is' developed at the trial. One such development is that Satyendra with the usual or unusual surname is a sebait and still not joined as a party. 4. THE first plea, touched in the written statement in a laconic manner, is' developed at the trial. One such development is that Satyendra with the usual or unusual surname is a sebait and still not joined as a party. It is held by the learned munsif and on appeal by the learned subordinate judge that absence of Satyendra does not matter, renounce as he did his sebaitship by a gift in favour of Nilratan, the first respondent, and that Girindra had no tenancy under the Devottar estate and could therefore convey no tenancy either to the appellants father. 5. MR. Ghosh, the learned advocate for the appellant, opens the appeal just on these two points. He asks me to hold the transfer by Satyendra of his sebaiti interest as void on the authority of (1) Prasanna Deb Raikat v. Bengal duars Bank Ltd., 64 C.L.J. 379. But that reveals a transfer, a sale, for a consideration of Rs. 7500. No wonder 'therefore that that is struck down as void. But here is an act of renunciation. You cannot compel a sebait to continue as a sebait, as Rankin, C.J. points out in Panchanan Banerjee and anr. v. Surendra Nath Mukherjee and ors. (2) 50 C.L.J. 382, relied upon by mr. Banerjee, the learned advocate for the appearing respondent. In the course of discussions, in which Mr. Banerjee participates too, the following passage from Dr. Mukherjea's Tagore law Lectures on The Hindu Law of Religious and Charitable Trust at page 235 comes to be read among other things: "a shebait like a trustee cannot delegate his duties to another person, but he is not bound to accept his office, and if he renounces his duties which he always can, then even if the renunciation be in the form of a transfer in favour of the next heir, it can be held valid in law. if any one of the she baits intends to get rid of his duties, the proper thing for him to do would be to surrender his office in favour of the remaining shebait. When the transfer is in favour of the remaining shebaits, or the sole and immediate heir of the transferor, it can safely be said that no policy of Hindu law is likely to be affected." Indeed, Mr. Banerjee reads this passage. Thereupon, Mr. When the transfer is in favour of the remaining shebaits, or the sole and immediate heir of the transferor, it can safely be said that no policy of Hindu law is likely to be affected." Indeed, Mr. Banerjee reads this passage. Thereupon, Mr. Ghosh is good enough to abandon the point of Satyendra's non-joinder being fatal to the suit. 6. THE second point is about the existence of Girindra's tenancy under the Devottar estate. If this tenancy does not exist, conveying it by a sale deed to the appellant's father will be conveying a non-existent tenancy. That must necessarily be so idle. And whether a tenancy exists or not is certainly a question of fact, as Mr. Banerjee rightly submits. Mr. Ghosh, however, seeks to spell out errors of law from the reasons given by the learned subordinate judge in holding that such a tenancy does not exist. Here is a summary of the reasons which weigh with him. One, removed from the office of common manager on April 5, 1935, Girindra effected the transfer of his so-called tenancy right on January 25, 1936. Two, the record of rights was finally published in or about 1935 and still the tenancy went unrecorded. On the contrary, the land in controversy was suffered to be recorded as the khas land of the Devottar estate. Three, even much earlier than that, to wit, in 1926 Girindra as common manager submitted cess returns without showing the tenancy. Therefore no tenancy of Girindra existed then. Four, not a scrap of paper is there in support of the tenancy, even though the sale deed in favour of the appellant's father recites that antecedent dakhilas issued by the Devottar estate in favour of his vendor, Girindra, were made over to him a consideration which must be construed against the tenancy. Five, the entry in the account submitted to the district judge by Girindra, the common manager, showing a payment by him of Rs. 3 as rent for 1339 and 1340 B. S. is so "liquid" that it does not prove the existence of a tenancy for the land in controversy here. Worse, this sort of accounting by one who is about to be removed for incompetence, dishonesty and the like and is in fact removed has little value. 3 as rent for 1339 and 1340 B. S. is so "liquid" that it does not prove the existence of a tenancy for the land in controversy here. Worse, this sort of accounting by one who is about to be removed for incompetence, dishonesty and the like and is in fact removed has little value. Six, no case is made out as to the origin of the tenancy or the legal necessity for such a demise. Seven, grant of dakhilas by Girindra after his removal by Rajendra, son of Satyendra, when alive and that too renunciating his sebaiti right, by Satyendra himself before the renunciation and by Manmatha, proves neither legal necessity nor benefit to the Devottar estate and recognition of the tenancy footed so can be avoided by the suing sebaits. Eight, in all circumstances legal necessity cannot be presumed not a permanent tenancy. Put at its highest, a non-permanent tenancy is seen. And that can always be avoided fey the succeeding sebaits. Nine, the issue of a general printed notice asking the tenants hot to pay rent to a certain person was sent to and received by the appellant's father. But this cannot be taken as an admission of the tenancy ; because the gomasta who was handed over a list of tenants to be addressed to is now dead, because the list did not contain the appellant's father's name as deposed to by Nilratan, the first respondent, and because though more than 12 years had passed after the respondent's father's death, neither the appellant nor his father paid rent ever to them (the first two respondents. Mr. Ghosh sees an error of law as the learned judge draws no presumption adverse to the first two respondents in spite of non-production of the list of tenants handed over to the gomasta. To that one answer is that under section 114 of the Evidence Act, 1 of 1872, the court may presume ; not that the court shall. If upon all that is catalogued above, the learned judge has chosen not to draw an adverse presumption, it can hardly be said that he is blameworthy. Far less can it be said that he has fallen into an error of law. If upon all that is catalogued above, the learned judge has chosen not to draw an adverse presumption, it can hardly be said that he is blameworthy. Far less can it be said that he has fallen into an error of law. Another answer is that if such an omnibus printed notice be taken as an admission of the appellant's tenancy, an admission is not conclusive : section 31 of the Evidence Act. The learned judge's finding comes to saying that it is erroneous. And, of course, no estoppel arises here. 7. ON the second reason given by the learned judge, Mr. Ghosh contends that the records of rights were finally published in or about 1936. Be it so. Even then non-mention of a tenancy had much earlier than that remains unexplained. As is well-known, for years a lot of spade-work precedes final publication of a record of rights. In any event, there is little law in it. 8. UPON the whole of the evidence absence of legal necessity is patent. Is patent too a spurious tenancy apparently bolstered up by a disgruntled and dismissed common manager. Then, as Mr. Banerjee rightly contends, piecemeal recognition by this sebait and that can do the appellant little good. All the sebaits constitute one body in the eye of law. So even the act of majority can bind neither the dissentient minority nor the Devottar estate. In Lala Monmohan v. Janki prosad, (3) 49 C. W. N. 195 (P. C.), even the sole de facto manager could not bind the idol with the mortgage he had entered into. No valid title would pass, it was held, unless the act was dome with the sanction and approval of all co-trustees. I have taken this from Dr. Mukherjee's Tagore Law Lectures ibid at pages 252-253 -referred to by Mr. Banerjee. 9. IN the circumstances, it is not necessary to deal with in detail the further contention of Mr. Banerjee on the lines of (4) Vidya Varuthi's case, 48 I. A. 302 at page 327, that the receipt of rent by a sebait after the tenancy created by his predecessor had ended with his predecessor's life can only be referable to a new tenancy created by himself. Here all sebaits' having not joined in recognizing the appellant or his father and all forming as it were but one, no new tenancy is easily discernible either. 10. Here all sebaits' having not joined in recognizing the appellant or his father and all forming as it were but one, no new tenancy is easily discernible either. 10. THE finding on the non-existence of Girindra's tenancy must therefore stand. Once it does, lack of a tenancy right of the appellant's father is there to be seen. His vendor could not have conveyed what he himself had not. In the result, the appeal fails and is dismissed with costs. It remains to be recorded that upon the wealth of materials disclosed and findings of fact come to and this is a second appeal I have not required any additional evidence to pronounce the judgment I have just pronounced. And it is my requirement that counts. It is not a case either where the court of appeal below refused to admit the additional evidence now sought to be led. Nor is there any other substantial cause seen More, what I see is not diligence but utter lack of it. Hence, I have not received the additional evidence as prayed for by the appellant.