JUDGMENT This Miscellaneous First Appeal is directed against the order of remand passed on 17.9.83 by Sri D.K. Chatterjee, Subordinate Judge, second court, Hooghly in Title Appeal No. 257 of 1981 reversing the judgment and decree dated 23.7.1981 of Sri P.K. Basu Mallick, Munsif, first court, Serampore, passed in Title Suit No. 175 of 1977. 2. Plaintiff's case in brief is that the disputed property is an absolute debattar property of the deity "Uttarbahini Thakurani" arid the descendents of the founder of the deity named Lakhi Narayan and Shambucharan were the shebaits in terms of the Tavadat (i.e., grant, Ext. 11). In the settlement record, Abhoy Charan and Manada two descendants of the above-named shebaits were shown as joint shebaits. Abhoycharan permanently settled at Dhanbad (in Bihar), foregoing the rights of the shebait-ship in favour of his co-shebaits Manada and her daughter Nandarani and in consequence, these two ladies had to perform the seba puja of the deity and they also used to enjoy the usufructs of the suit property and appropriate the income. Hiralal, the son of Abhoycharan being a permanent resident of Dhanbad did not claim the right of shebait-ship nor did he perform or even arrange to perform the seba puja of the deity at any point of time. After the death of Manada, Nandarani was compelled to take the aid of the plaintiff who is the son of her brother-in-law (i.e., husband's brother's son) in the performances of the seba puja of the deity and ultimately Nandarani by a deed 6.2.52 (Ext. 3) appointed the plaintiff to be the shebait in respect of the suit property. The plaintiff accordingly, performed his duty as shebait. On 23.12.73 Nandarani expired. In the R.S. record of rights, half share of Hiralal was wrongly recorded on the basis of his C.S. record even though Nandarani duly filed 'B' form under the West Bengal Estates Acquisition Act with a view to retaining the suit property. She also settled many lands and realised the compensation as the sole shebait Hiralal died on 11.4.62 at Dhanbad and his heirs also did not claim any right over the disputed property. Some local people formed an association under the name and style "Uttarbahini Bishalaxmi Matar Seva Samiti" and started claiming the deity to belong to the public and the samiti also attempted to interfere with the seba puja. Some local people formed an association under the name and style "Uttarbahini Bishalaxmi Matar Seva Samiti" and started claiming the deity to belong to the public and the samiti also attempted to interfere with the seba puja. Ultimately, these people managed to obtain two deeds dated 20.6.77 (Exts. A & B) from Indira Devi, the wife of Hiralal in favour of the defendant s. Indira Devi, according to the plaintiff, had no power to execute such documents alone in respect of the entire half share of Hiralal. Her processor-in-interest did not even perform the seba puja of the deity for the last 40/50 years nor did he come to the suit property. Since the Samiti has been trying to interfere with the seba puja of the deity since 4.9.77, the plaintiff has instituted the suit. 3. The defendant no. 1 contested the suit through defendant no. 2 denying the material allegations in the plaint and contending inter alia, that the said seba puja Samiti was formed with a view to supervising the temple performing seba puja of the deity and in fact they were performing their duties for the benefit of the deity. Being satisfied with such performance of the Samiti, Indira Devi on her own accord on behalf of herself and her sons executed the said two deeds in respect of their entire share of the properties. The defendants also denied that Indira Devi or her predecessor-in-interest ever gave up the right of shebait-ship or of the property. According to them, Indira Devi and her predecessor-in-interest visited the suit property at intervals and duly performed their part of seba puja. 4. On the above pleadings the learned Munsif framed 5 issues and decreed the suit on contest in part with cost. 5. Being aggrieved by the judgment and decree of the learned Munsif, the defendants preferred the Title Appeal No 257 of 1981. This appeal was heard by Sri D.K. Chatterjee, the learned Subordinate Judge. Second Court Hooghly and by his impugned judgment allowed the appeal on contest and remanded the suit on the ground that the Ext. 3 by which Nandarani nominated I he plaintiff as the next shebait was in fact, found to be a Will which required to be proved. 6. Second Court Hooghly and by his impugned judgment allowed the appeal on contest and remanded the suit on the ground that the Ext. 3 by which Nandarani nominated I he plaintiff as the next shebait was in fact, found to be a Will which required to be proved. 6. The points for decision before me are whether the long absence of a co-shebait or his heirs from the property of the deity and cessation of any seba puja for a long time may be deemed to be a relinquishment of the right of shebait-ship and whether the sale shebait can nominate another person to be the next shebait to perform the seba puju during and after her death. 7. Before deciding the points, it may be noted here that the concurrent finding of both the courts below as to the nature of the suit property is that it is a private debuttar property. This court, therefore, will not interfere in this concurrent finding in the second appeal. 8. Now I come to the first question. There seems to be no dispute to the fact that at one stage of time, after the settlement operation, Aboycharan and Manada, the descendants of Laxminarayan and Shambhucharan were proclaimed to be the joint shebaits. But from the evidence of record it is seen that Abhoy went to Dhanbad and settled there permanently, leaving the property of the deity in the hands of his co-shebait Manada and her daughter Nandarani. Hiralal, the son of Abhoy also settled permanently at Dhanbad. There is no evidence to show that Hiralal claimed any right of shebaitship or that he ever performed or arranged to perform the sheba puja at any point of time. So Manada and her daughter Nandarani had to share the heavy responsibility of performing the sheba puja of the deity and they alone used to enjoy the usufructs of the suit property. In the meantime Manada also died. So Nandarani single-handedly carried on the seba puja of the deity. She also took help of the plaintiff in performing the seba puja. She was ageing and there was none in the line of succession to succeed to the suit property and to shebaitship. The plaintiff was her Debar's son (i.e. son of her husband brother). So Nandarani executed a registered deed (Ext. 3) on 16.2.52 nominating the plaintiff as the next shebait. She was ageing and there was none in the line of succession to succeed to the suit property and to shebaitship. The plaintiff was her Debar's son (i.e. son of her husband brother). So Nandarani executed a registered deed (Ext. 3) on 16.2.52 nominating the plaintiff as the next shebait. The defendant contended that Nandarani was the shebait only in respect of half of the suit property. In respect of the other half, Sm. Indiradevi, wife of late Hiralal Chakraborty continued to be the shebait and by two registered ‘Arpannamas’ marked Exts. A & B both dated 20th June, 1977 she appointed the defendant as the shebait in respect of that 8 annas share. Now the question arises as to whether Indiradevi was the shebaiti in respect of that half share and whether she could validly nominate the defendant as the shebait in respect of that half. The learned Munsif discussed this point elaborately in his judgment and came to the finding that neither Indiradevi nor her husband Hiralal nor her father-in-law Abhoy had ever managed the disputed property or carried on the worship of the idol in course of 40/50 years. It is on record that Indiradevi (D.W.2) admitted in her cross-examination that Abhoy and Hiralal settled permanently at Dhanbad and that she also came from. Dhanbad to depose in court. From this fact the learned Munsif came to a finding that the long absence from the suit property of Hiralal, Abhoy and Indiradevi is tantamount to the abandonment of the deity and the disputed property and that this fact of abandonment may be treated in the instant case as evidence of relinquishment and he based his finding on the Treatise of Hindu Law on Religious and Charitable Trust by Hon'ble Mr. Justice B.K. Mukherjee. I have also perused that passage under note 6.107 at page 317 which continued up to page 318 of the Treaties (5th Edition 1983). The learned Munsif also relied on 35 CWN 478, Bhuban Mohan Koley v. Narendranath Kanwar. The judgment was handed down by a Division Bench of this Court consisting of Suhrawardi, J and Jack. J in 1930 and the same still holds good. It was held that a shebait being a manager ceases to be a shebait where he ceases to manage the property and carry on the worship of the idol. The judgment was handed down by a Division Bench of this Court consisting of Suhrawardi, J and Jack. J in 1930 and the same still holds good. It was held that a shebait being a manager ceases to be a shebait where he ceases to manage the property and carry on the worship of the idol. The learned Munsif, by pointing to various facts arid circumstances has shown that Nandarani had been exercising the rights of the shebait in respect of the entire suit property without any let and hindrance from any quarter and he came to the finding that there was relinquishment of the shebaitship by Hiralal, Abhoy and Indiradevi and therefore Indiradevi was not competent to alienate the property to the defendant by executing the Arpannamas Exts. A & B. Under the facts and circumstances as discussed, above I agree with the findings of the learned Munsif and held that Nandarani was the last shebait in respect of the entire suit property. I further held that the defendant is not entitled to any benefit under Exts. A & B. 9. Now I come to the next question as to whether Nandarani was competent to nominate the plaintiff Bholanath as the shebait and to manage the suit property. The first court of appeal has held that Ext. 3 is a Will that needs to be finally proved as a Will but he has also fairly observed that neither party agitated this point. I have perused Ext. 3. The recital in Ext. 3 itself shows that it is a deed of appointment of the shebait. But on perusal of the entire recitals it will give the impression that it is a Will. So the learned lower appellate court cannot be faulted if it treaties Ext. 3 as a Will. Even if we assume that Ext. 3 is a Will, we are to bear in mind that the defendant having no interest in the suit property, is not competent to challenge whether it is a Will or it is a letter of appointment or a letter of nomination to the shebaitship. That is the reason why the validity or otherwise of this document as a Will had not been challenged by the defendant. So we need not be unnecessarily exercised over this aspect of the matter. That is the reason why the validity or otherwise of this document as a Will had not been challenged by the defendant. So we need not be unnecessarily exercised over this aspect of the matter. A better claimant to the shebaitship of the suit property may challenge the testatrix of Ext. 3 that she was incompetent to nominate the plaintiff to be the shebait. But as we have seen, none except the plaintiff appears to be better equipped to claim the shebaitship. That being the position, I do not find any utility of proving Ext. 3 as a Will so far the instant suit is concerned. Assuming that it is a Will, the learned counsel for the appellant, relying on AIR 1972 Calcutta 95, Smt. Sovabait Dassi v. Kashinath Dey has submitted that the sole shebait under a deed of settlement could validly transfer his or her shebaity right by his or her Will under the Dayabhaga School. This reported case was decided by Masud, J. and his Lordship (as he then was) handed down the decision after discussing a large number of reported cases on this point. I am in respectful agreement with the decisions given by Masud, J. I find no reason to hold the contrary view that Nandarani was incompetent to nominate the plaintiff as the next shebait in respect of the suit property. In view of above discussions I allow this appeal and set aside the order on remand passed by the learned lower appellate cont. The judgment and decree passed by the learned Munsif are upheld. I make no order as to cost. Preparation of formal decree is dispensed with. Appeal allowed.