ISWAR MADAN MOHUN JIEW v. PRIYAMONI DASI — 1971 DIGILAW 221 (CAL)

( 1 ) THIS is an appeal by the defendant against a judgment and decree of reversal decreeing the suit. The suit was instituted by Smt. Priyamoni Dasi for the deity Iswar Madan Mohan Jew Thakur for possession in her shebaiti right of the suit lands on removal of the defendant from the office of the shebait of the deity. The plaint case in that deity was the family deity of the plaintiff since the time of her ancestor. The properties in suit were gifted over by the owner Satrughana, an ancestor of the plaintiff, to her husband, by a deed of gift dated Agrahayana 25, 1298 B. S. for meeting the expenses of sebapuja of the deity and thereupon he was put in possession of the properties. The plaintiff's husband died leaving the plaintiff as his only heir and legal representative and she came in possession of the properties. Thereafter she had been carrying on the sebapuja of the deity out of the usufructs of the said properties as shebati of the deity. By a deed of gift dated March 9, 1921 (Ext. 4), a co-sharer of the plaintiff made a gift of some other properties to the plaintiff as such shebait for the performance of the sebapuja of the deity out of the income of such properties. By a third deed of gift dated September 24, 1921 (Ext. 5) certain other properties were gifted the plaintiff as shebait of the said deity with directions on her to perform the sebapuja out of the income thereof. The plaintiff since had been regularly carrying on the sebapuja as such shebait out of the income of the said properties. She was a childless woman and in advanced age and was attacked with various ailments. She engaged the defendant for the purpose of carrying on shebapuja property and by a deed of gift dated September 4, 1926 (Ext. A), she transferred the said properties to the defendant as shebait of the said deity. The deed contained certain conditions so that the sebapuja of the deity could be carried on properly by the defendant whom she knew to be pious Brahmin. The conditions of the gift were that the entire income of the properties so gifted would be utilized for the sebapuja and for no other purpose. The deed contained certain conditions so that the sebapuja of the deity could be carried on properly by the defendant whom she knew to be pious Brahmin. The conditions of the gift were that the entire income of the properties so gifted would be utilized for the sebapuja and for no other purpose. The deity would not be removed from the house of the plaintiff at any time and if it is so done the deed of gift would be invalid. The defendant and after him has male decendants thereby were made the shebait of the deity and given power to receive and realise rent mutating their names in the landlord's office. The defendant was also required to reside in the bastu land comprised within the land so transferred and was not entitled to live elsewhere. There were also further directions for observing Rus festivals as also other festivals. The plaintiff come to learn that the defendant had been negligent in the performance of the sebapuja. He did not reside in the bastu land of the plaintiff and also caused the structure therefrom to be destroyed by his negligence and had also removed the deity from its original temple. The defendant had been treating the debuttar lands as secular properties and also had been misappropriating the paddy and other crops of the gifted lands. For misappropriating the debuttar lands permanently the defendant got recorded in the settlement proceedings his own personal name in respect of most of the debutter lands. For all these and other reasons, the defendant had proved himself unfit to remain as shebait of the deity and it is necessary to remove him from that office in the interest of the deity. Accordingly the suit was instituted for recovery of possession as shebiat of the lands described in schedule Ka for lands which did not vest in the state, on removal of the defendant from office of shebait upon the finding that he was unfit to be the shebait of the deity. This suit was instituted on November 13, 1964. ( 2 ) THE suit was contested by the defendant who filed a written statement denying all material allegations in the plaint. This suit was instituted on November 13, 1964. ( 2 ) THE suit was contested by the defendant who filed a written statement denying all material allegations in the plaint. It was stated that the properties were not debuttar properties and never belonged to the deity nor was the plaintiff a shebait as alleged and accordingly the plaintiff had no locus standi to institute the suit. It was further stated that the properties were all through treated as the personal properties of the plaintiff as would also appear from the deed of gift. The defendant contended that the properties were the personal properties of the plaintiff Priyamoni, charged with debaseva only and were transferred to him as such and accordingly, the question of his removal did not arise. There was never any dedication of the properties of the deity and the defendant had been in occupation of the gifted properties in due compliance of sebapuja as required by the deed of gift. It was further stated that no part of income of such properties was ever spent for his personal benefit, and, on the contrary, the entire income of usufructs of the lands were spent for sebapuja in accordance with the directions of the deed. It was further stated that the deed was not a conditional gift but the provisions thereof were merely directory. The defendant further stated that in the district settlement, the suit properties were recorded in the personal name of the plaintiff and they were mutated in his own name in the current settlement as the properties never belonged to the deity nor was the defendant a shebait. Though in respect of the khatian No. 277 it was noted that the usufructs of the properties wee used for debaseva, such recording was not necessary. As to the allegations about the removal of the deity, it was stated that as the temple of temporary structure fell down in the cyclone of 1349 B. S. in spite of the repairs, the deity was removed to adjoining pucca bastu and the sebapuja and festival were all through being carried on regularly without interruption. The defendant alleged that this suit was instituted at the instant of interested parties and there was a further objection that the suit was barred by limitation. The defendant alleged that this suit was instituted at the instant of interested parties and there was a further objection that the suit was barred by limitation. ( 3 ) ON a trial on evidence before the learned Subordinate Judge, it was held that the suit properties were absolute debuttar properties for which no document was necessary, and not secular properties as claimed by the defendant and even though the plaintiff conveyed the suit properties to the defendant in her personal capacity the same would not change the nature and character of the properties. It was also held that the defendant could not follow the terms of the gift when the removed the deity elsewhere as the original temple fell down and also himself resided outside the gifted bastu as there was no existence of the plaintiff's husband. It was also held that there was no appropriate evidence to hold that the defendant did not duly perform the sebapuja of the deity nor there was any violation of the provisions of the deed. In absence of proof of the defendant's default, the suit was bound to fail. There was a further case by the plaintiff during hearing that the deed of was a document but the learned Judge did not allow the plaintiff to make a case a different from the plaint during hearing. The learned Judge also held that though the right of management as a shebait could not be transferred, in absence of a specific case the defendant could not make out a case of acquisition by adverse possession of the shebait right. It was further held that the suit was not maintainable in the present form by the plaintiff as shebait if she relied on the deed of gift and it was doubtful whether the plaintiff could be allowed to sue in the capacity of a shebait of the deity. Further anamoly was noticed as the suit in effect was by the deity against itself. In view that was taken, the suit was dismissed. ( 4 ) AN appeal was taken against the said decision by the plaintiff and it was held that all the documents established that the properties were the absolute debuttar properties of the deity and the plaintiff was its shebait and in that capacity she had instituted the suit and not in her personal capacity. ( 4 ) AN appeal was taken against the said decision by the plaintiff and it was held that all the documents established that the properties were the absolute debuttar properties of the deity and the plaintiff was its shebait and in that capacity she had instituted the suit and not in her personal capacity. It was further held that the deed of gift was void ab initio as also held by the Subordinate Judge as the law does not allow the transfer of shebait right and the plaintiff executed the document in her personal capacity. The Appellate Court was however of opinion that as the deed of gift void ab initio, the Court not allow the parties to depend upon the invalid documents even if it was not pleaded so in the plaint. The Appellate Court further found that as the deed of gift was void, the deity's title was not affected thereby and the defendant could not acquire any right, title and interest in the suit properties. In regard to the case made by the defendant's lawyer that the defendant had been in possession of the suit properties since 1926, it was held that the defendant acquired no title to the suit properties by adverse possession. It was found on the defendant's own case that he had used the entire income of the properties for sebapuja and never for his personal benefit and there was thus no animus for adverse possession of the suit properties. It was also held that as the plaintiff deity's interest to reliefs prayed for in the suit. It was also found even accepting the deed of gift as a valid document that the defendant was guilty of violation of its terms and conditions by removal of the deity from its original temple and no steps were taken to bring the deity back to the original abode after repairing and constructing the temple resulting in violation of the express desire of the plaintiff. It was accordingly held that the defendant thus became liable for the penalty and the plaintiff was thus entitled to get back the suit properties from the defendant, though the defendant did not violate any provisions for sebapuja. Further the suit was not by the deity against itself, but a shebait against the defendant as shebait and there was thus no anamoly. Further the suit was not by the deity against itself, but a shebait against the defendant as shebait and there was thus no anamoly. Accordingly the appeal was allowed and the suit was decreed declaring that the defendant was not entitled to remain a shebait and the plaintiff was entitled to the recovery of possession of the suit properties. ( 5 ) THE present appeal is against this decision by the defendant as shebait against Priyamoni as shebait of the deity. It appear that Priyamoni Dasi died intestate on November 21, 1968 and an application was filed by the appellant for substitution of one Murari Mohan Patra. An application was also filed by one Rakhal Chandra Patra claiming to be the preferential heir of the sole respondent Priyamoni Dasi. This application by Rakhal was not opposed by the appellant, who did not press his own application and was accordingly allowed and this appeal is now against Rakhal Chandra Patra as shebait of the deity duly substituted and he is contesting this appeal before us. ( 6 ) MR. Basanta Kumar Panda, the learned Advocate for the appellant, has contended firstly that the properties were not absolutely debuttar properties but were properties charged with debaseva. The suit was accordingly not maintainable and the plaintiff was not entitled to any relief. These contentions have been challenged by Mr. Purna Chandra Basu, the learned Advocate for the substituted respondent who has contended the properties were absolute debuttar properties as would also appear from the original deed of 1296 B. S. by Satrughana. Mr. Basu contended that this deed was not produced by the appellant though this document along with other connected documents were handed over to the defendant at the time of the gift by Priyamoni in 1926 and the fact of handing over of the documents was mentioned in the said deed of gift of 1926. It was contended that as the appellant did not produce this document as adverse presumption against him should be made for its non-production. ( 7 ) IT would appear that in the concluding portion of the deed of gift it is mentioned that four documents were handed over to the defendant. According to the plaintiff the four documents were the three deeds of gift and one certified copy of a decree, while according to Mr. ( 7 ) IT would appear that in the concluding portion of the deed of gift it is mentioned that four documents were handed over to the defendant. According to the plaintiff the four documents were the three deeds of gift and one certified copy of a decree, while according to Mr. Panda, thee were two deeds and two decrees and all these documents were duly produced in Court and exhibited while the original deed of 1296 B. S. was never handed over to the defendant. It appears to us that it is not possible to come to any definite conclusion that this deed of 1296 B. S. was handed over to the defendant and accordingly there is no scope for making any adverse presumption against the appellant for it non-production. It would however appear from the deed of gift (Ext. A) that the properties were given by Satrughana for meeting the expenses of debaseva and that the husband of the plaintiff and after him the plaintiff herself had been carrying on the debaseva out of the usufructs of the properties. It is also the case of the defendant that entire income of the gifted properties as also of the properties specifically gifted under the subsequent documents were being utilized for debaseva and no income was ever spent for any other purpose. It has been observed in Dr. B. K. Mukherjea's"the Hindu Law of Religious and Charitable Trusts", Third Edition at page 135 as follows: -"where the entire income from the properties or a substantial portion thereof is directed to be applied, or is required for such purposes, then the property itself must be held to have been absolutely dedicated for those purposes. " ( 8 ) ON the above authority there cannot be any dispute in the admitted facts of the case that the properties were the absolute debuttar properties of the plaintiff deity and not personal properties charged with mere debaseva. ( 9 ) MR. Panda took another objection that the original deed of dedication to the deity of 1296 B. S. required registration under Section 123 of the Transfer of Property Act, 1882 and in absence of such registration it must be held that the document of 1296 B. S. could not be treated as a valid gift. ( 9 ) MR. Panda took another objection that the original deed of dedication to the deity of 1296 B. S. required registration under Section 123 of the Transfer of Property Act, 1882 and in absence of such registration it must be held that the document of 1296 B. S. could not be treated as a valid gift. It would appear however that in case of a gift to a deity the provisions of section 123 would have no application as the gift contemplated by that section is one by a living person to another living person. It would also appear from section 1 of the Trusts Act that the provisions of section 5 is expressly excluded of religious and charitable endowment. It was appointed out by Mukherjea, J. in the said book at page 76: -"the operation of section 5 of the Indian Trusts Act is specifically excluded from such cases by the saving provision of the Act itself and it cannot be said that an endowment of property for religious or charitable purpose is a gift within the meaning of Transfer of Property Act. It is undoubtedly possible for a founder to dedicate property in the form of a gift, he can also, if he likes, create a trust through the medium of trustees; but neither of them is necessary all that is necessary is that the religious purpose of object of the donor shall be clearly specified and that property entitled for the endowment should be set apart dedicated to these purposes". ( 10 ) IN the present case, we have in the recital of Exhibit A that the properties was set apart by Satrughana for carrying on the deba seva of the deity out of income thereof and the entire usufruct of the properties were in fact applied for deba seva. Such acts amounted to a dedication resulting in an absolute debuttar in respect of the properties comprised therein which were also included in the said deed (Ex. A ). We hold, accordingly, in agreement of the courts, below, that the suit properties were absolute debuttar properties. ( 11 ) THE next question that requires consideration is as to whether the deed of 1926 (Ext. A) was a valid and legal document. The courts below have held that the document was a void ab initio and of no effect. We hold, accordingly, in agreement of the courts, below, that the suit properties were absolute debuttar properties. ( 11 ) THE next question that requires consideration is as to whether the deed of 1926 (Ext. A) was a valid and legal document. The courts below have held that the document was a void ab initio and of no effect. Accordingly no title could be acquired in respect of properties comprised therein as contended by the appellant to the contrary. It is settled law that the shebaiti right is not a transferable right under the Hindu law. As was observed by Dr. Mukherjea in his book cited above (at page 178 ). "although shebaiti right is heritable like any other property it lacks the other incident of proprietary right viz. the capacity of being freely transferred by the person in whom it is vested. The reason is that the personal proprietary interest which the shebait has got is ancillary to and inseparable from his duties as a ministrant of the deity, and a manager of its temporalities. As the personal interest cannot be detached from the duties, the transfer of shebaitship mean a delegation of the duties of the transferor which would not only be contrary to the express intentions of the founder but would contravene the very policy of law". ( 12 ) APART from the above infirmity, the deed of 1926 suffers from another fatal defect in that it purports to transfer the entire debuttar properties. Such transfer has always been held void and of no effect. As was observed by Dr. Mukherjea again in his said at page 222. ". . . . . the alienation by the shebait can only be made of certain items of endowed property A transfer of the endowment as a whole is wholly void and the transferee would acquire no title by such alienation even as against the transferor so long as he is alive. This was the decision of Privy Council in the cases of Math in Gnanasamanda v. Valu Pandaram, 27 IA 69 and Damodar Das v. Lakhan Das, 37 IA 147. The same principle would apply to a debuttar also. This was the decision of Privy Council in the cases of Math in Gnanasamanda v. Valu Pandaram, 27 IA 69 and Damodar Das v. Lakhan Das, 37 IA 147. The same principle would apply to a debuttar also. " ( 13 ) IN the case of (1) Hemanta Kumari v. Sri Sri Iswar Sridhar Jew, 50 Calwn 629, Mukhrjea, J. (as he then was) speaking for the Court held that such alienation is void as the manager acts in negation of the trust. On the position in law cited above, the purported transfer of shebaiti right or of all items of the properties is thus void ab initio and the transferee defendant thereby acquired no interest in the suit properties. ( 14 ) THE next question urged by Mr. Panda is that the plaintiff was not competent to institute the present suit as she herself executed Exhibit A and could not thereafter be allowed to turn round and impugne its validity. This contention has been challenged by Mr. Basu and he has referred to certain decision about the maintainability of the suit by the plaintiff. In (2) Juggutmohinee v. Sookhemony, (1872) 17 WR 41 (44) it was observed:". . . . a former abuse of trust, in another instance, cannot be pleaded against a trustee who seeks to prevent a repetition of abuse, even if he were formerly implicated in the same indefensible courses against which he is seeking to protect the property, though it would be a reason for excluding him from the administration of the property as shebait. The Court could not with any propriety say, we will decline to protect the property and leave it further exposed to loss, and decline to make a declaration that it is trust properly, merely because they would not trust the plaintiff with its administration. " ( 15 ) IT was held in (3) Smt Mallika Dasi v. Ratanmani Chakraborty, 1 Calwn 49 that a person is not precluded from raising question that his priestly office with emoluments are inalienable merely because he mortgaged the same. Accordingly, we are of opinion that merely because that a shebait executed a deed transferring her shebaiti right as also the debuttar properties which is void, it cannot be said that he is not entitled to institute an action for safeguarding the properties as also interest of the deity in its estate. Accordingly, we are of opinion that merely because that a shebait executed a deed transferring her shebaiti right as also the debuttar properties which is void, it cannot be said that he is not entitled to institute an action for safeguarding the properties as also interest of the deity in its estate. In such circumstances, it will be the duty of the Court to safeguard the interest of the deity whether the action is brought by the guilty shebait or anyone else. In Sairness to Priyamoni the transferor, it must be remembered that she transferred the properties upon condition of due performance of seva puja. We hold accordingly that suit was maintainable by her a shebait of the deity in the circumstances. ( 16 ) THE next question requiring consideration is whether there are justifiable grounds for removing the defendant from his office as defacto shebait and for recovery of possession of the suit properties on the basis of Exhibit A and he had been discharging functions of defacto shebait though his title is lacking in view of the invalidity of Exhibit A. As was held in (4) Panchkari v. Amodelal, 41 Calwn 1349, a defacto shebait has been described as a person who exercised all the functions of a shebait and in possession of the debuttar properties though his title is lacking. We shall now consider whether the defendant had properties even as a defacto shebait on which the present suit has been instituted. The Court of Appeal below has found that there had been performance of the seva puja by the defendant imposed by Exhibit A and though this document was invalid, it could be taken into consideration for examining the performance by the defendant of other terms and conditions of the gift. The Court of Appeal has found that the defendant had been guilty of negligence in not making proper repairs to the temple and also of removing the deity from the temple of the plaintiff. The more serious act which rendered the defendant unsuitable to hold the position of defacto shebait was that he had been asserting his adverse and hostile title against the deity itself. Mr. Basu referred us to paragraph 17 of the written statement in which it has been alleged by the defendant that he had been treating the properties as his personal properties only charged with debaseba. Mr. Basu referred us to paragraph 17 of the written statement in which it has been alleged by the defendant that he had been treating the properties as his personal properties only charged with debaseba. There can be no dispute to the proposition that under the Trusts Act, 1882 or under the laws applicable to Hindu Religion Endowment the action of the shebait setting up his title adverse of hostile against the deity amounts to breach of trust and justify his removal. In (5) Chintamon Bajaji Dev v. Ganesh Deb, (1882) ILR Bombay 612 it was observed that the defendants' assertion of their right to treat the trust property as their private estate and to apply the trust fund to their private purpose was sufficient to justify their removal from the trust. In (6) Peary Mohun v. Manohar (1921) ILR 48 Calcutta 1019 (27), the Privy Council observed:",. . . as a part of office it is indisputable that there are duties which must be performed, the estate does need to be safeguarded and kept in proper custody and it be found that a man in the exercise of his duties has put himself in a position in which the Court thinks that the obligations of his office can no longer be faithfully discharged that is sufficient ground for his removal. " ( 17 ) AGAIN in the case of (7) Gulzarilal v. Collector of Etah, (1930-31) 35 CWN 699 (703), it was observed:". . . standard of rectitude and accuracy expected from every trustee of charitable funds is of the highest and that standard must in all circumstances be maintained by the Courts if the safety of the property held upon such trusts not to be imperiled throughout the whole of India. " ( 18 ) IT would appear from the examination of the certified copy of khatian Exhibits D 15 and D 22 which are admittedly of the debuttar lands being the properties under one of the subsequent deeds of gift, the defendant had caused entries to be recorded in the last revisional settlement describing himself as the recorded tenant in his personal name. This would also appear from the certified copy of some other khatians of the suit properties that the defendant was asserting a title for himself in negation of the character of the debuttar estate. This would also appear from the certified copy of some other khatians of the suit properties that the defendant was asserting a title for himself in negation of the character of the debuttar estate. As we have seen, this assertion of this personal title in the suit properties was also made by the defendant in his written statement. There is no case or evidence to indicate that the defendant took any steps to rectify such entries in the name of the debuttar estate. Such action obviously indicated an act of breach of trust on his part against the deity and justify his removal from the office of de facto shebait or even de jure shebait if he was so. The plaintiff as representing the deity was therefore entitled to recover possession of the debuttar properties from the defendant on his removal from his office as de facto shebait if such claim is not otherwise barred by law. ( 19 ) THE next point that has been urged by Mr. Panda is that the suit is hopelessly barred by limitation. The defendant has been in possession of the properties since 1926 while the present suit has been filed, as we have seen, in 1964. Mr. Basu has disputed the above contention and submitted that in view of section 10 of the Limitation Act, 1963 and its Explanation, the suit could not be barred by limitation. Section 10 provides that no suit for the purpose of following property or its proceeds in the hands of person in whom the property has become vested in trust for specific purpose shall be barred by any length of time. Property comprised in Hindu, Muslim and Buddist religious and charitable endowment shall, by the explanation to the section, be deemed to be property vested in trust for a specific purpose and the manager is also deemed to be there trustee thereof. ( 20 ) WE have seen that the deed Ex. A is void ab initio in so far it purports to transfer the shebaiti right and the endowment. Accordingly there was no vesting by the need of the properties in the defendant as contemplated under the section nor is he is a legal representative or assignee of Priyamoni as shebait. ( 20 ) WE have seen that the deed Ex. A is void ab initio in so far it purports to transfer the shebaiti right and the endowment. Accordingly there was no vesting by the need of the properties in the defendant as contemplated under the section nor is he is a legal representative or assignee of Priyamoni as shebait. The defendant however had been in possession of the properties and was put and must be deemed to be in such possession as an agent of the shebait or as de facto shebait holding the properties upon trust for deity. There is therefore no question of limitation involved in the suit by the deity for recovery of possession of the debuttar properties on his removal from de facto shebait or her agent as the case may be, unless it could be said that the defendant's possession of the properties had been adverse to the deity and matured to perfect and indefeasible title by adverse possession beyond the statutory period. ( 21 ) THIS brings under Section the last point of contention between the parties on the question of adverse possession. Mr. Panda has made a grievance that in view of the pleadings in the plaint, there was no scope for the defendant to raise the plea and to lead evidence in support of his case of adverse possession. There could be reasons otherwise for such grievance but in view of the case made in the written statement that the entire income of the properties were utilized for deba seba, there was no scope for pleading adverse possession invariation with the above fact. We do not think that in the circumstances there was any prejudice caused to the defendant in our considering the case of adverse possession on the case made in the written statement. ( 22 ) MR. Panda has referred to certain decisions in support of case for adverse possession, the proposition being that possession under an invalid document is adverse from the date of its execution. In (7) Sudarsan Das v. Ram Kirpal AIR 1950 PC 44, it was held that adverse possession began when the purchaser in court auction obtained effective possession in regard to undivided share and such possession was and continued over the statutory period by collection of proportionate share of rents. In (7) Sudarsan Das v. Ram Kirpal AIR 1950 PC 44, it was held that adverse possession began when the purchaser in court auction obtained effective possession in regard to undivided share and such possession was and continued over the statutory period by collection of proportionate share of rents. In (9) Collector of Bombay v. Municipal Corporation of the city of Bombay, AIR 1951 sc 469 , it was held that possession not being referable to any legal title was prima facie adverse to the Government as owner from the very date possession was taken under invalid grant. Such possession continued openly as of right over the statutory period and thereby riget was acquired by adverse possession to hold the land in perpetuity free of rent as an incident of title. The principle in Sudarsan Das's case was followed in (10) Dr. Guranditta Mal Kapur v. Amar Dass Chela, AIR 1965 Supreme Court 1966. ( 23 ) ADVERSE possession, as has been held in judicial decisions, means a hostile possession which is expressly or impliedly in denial of the title of the true owner. There must be an animus of assertion of hostile as the basis of such possession and such possession must find expression in overt acts by the person claiming it or from attending circumstances, such acts must again continue openly and without interruption for over the statutory period to riped into an absolute and perfect title. ( 24 ) APPLYING the above principles to the present case, it would appear that the defendant was put in possession of the suit properties upon trust for carrying on deba seva of the deity out of the usufructs therefrom. The defendant in his written statement stated in clear and unequivocal terms that the entire usufructs of the debuttar properties were utilized for deba seva and no portion thereof was spent for any other purpose. In such circumstances it is not possible to find that the defendant was asserting his hostile in negation of the endowment. On the contrary he was giving full effect to the endowment which was to defray the expenses of the deba seba from the usufructs of the properties, though he made bare assertion in his written statement that he treated the properties as his personal properties which was inconsistent with his conduct and overt acts as stated in his written statement. On the contrary he was giving full effect to the endowment which was to defray the expenses of the deba seba from the usufructs of the properties, though he made bare assertion in his written statement that he treated the properties as his personal properties which was inconsistent with his conduct and overt acts as stated in his written statement. There was thus a complete absence of the requisite animus for adverse possession as also of any overt act or circumstances till the commencement of current settlement proceedings when the defendant got the properties recorded in his own name. Till then there was no assertion of hostile title and the suit properties and the statutory period of twelve years did not run out when the suit was instituted by the deity in 1964. It is thus obvious that in the circumstances if cannot be held the defendant's adverse possession as stated above matured to an indefeasible and perfect title. In the decisions cited by Mr. Panda, it would appear that the properties concerned in those proceedings had been in possession and enjoyment of the person claiming it by adverse possession for their own benefit and interest, which is not the case here. The plea that properties were recorded in the CS settlement in the name of the Priyamoni or her husband personally, is also of avail, as they being dejure shebait could not acquire any title against the deity so long as they remained the shebait. As was pointed out by Dr. Mukherjea in his said book at page 244:"in (11) Sree Sree Iswar Sridhar Jew v. Msst. Sushila Bala dasi, 1954 SCR 407 , The Supreme Court approved of the above decision in (12) Surendra v. Shree Shree Iswari Bhubaneswari, ILR 60 Cal. 54, 77 and observations therein and held that so long as a shebait held the office of shebait, it was not open to him to acquire a title against the deity by adverse possession". ( 25 ) ACQUISITION of shebaiti right against the real shebait, as also contended by Mr. Panda is not possible in this case where the deity itself is the plaintiff and instituted the suit for recovery of possession of the suit properties on removal of the defendant form further acting as its shebait. For the above reasons, and as all contentions urged by the appellant fail, the appeal is dismissed with costs. Panda is not possible in this case where the deity itself is the plaintiff and instituted the suit for recovery of possession of the suit properties on removal of the defendant form further acting as its shebait. For the above reasons, and as all contentions urged by the appellant fail, the appeal is dismissed with costs. Basu, J. : I agree. The appeal fails and dismissed with cost.