Judgment SANJIB BANERJEE, J. The court’s opinion has been sought on ten questions raised in the originating summons, but it is only the third and sixth questions on which the plaintiffs have focused. Kirrun Chandra Bandopadhya, created a Trust by a document of April 3, 1928, settling an immovable property and a princely sum of Rs.7,000/- out of the government promissory notes that he owned in favour of his ancestral deities. The first shebait under the Trust was to be the settlor; the second, if surviving, was to be his widow; the third, was to be his daughter; and, fourth was to be settlor’s grandson through his daughter. The immovable property settled was premises No.118 and 119D Grey Street with the shebait being required to perform the sheba or worship of the deities, manage the immovable property and compulsorily reside at a portion of the property. In course of time, such compulsory residence has become a substantial benefit and it is primarily the issue relating to the right of residence that the plaintiffs urge in these proceedings. The plaintiffs suggest that no transfer could be effected under the deed of Trust in view of Sections 13 and 14 of the Transfer of Property Act and Section 23 of the Contract Act. The plaintiffs have raised queries claiming to be beneficiaries of the Trust and seeking, in effect, an order of administration of the Trust. Alternatively, the plaintiffs seek the determination of a question of construction arising under a Will as a person claiming to be interested. The plaintiffs have invoked Chapter XIII of the Rules on the Original Side of this court and say that they are entitled to seek the view of this court under Rules 1, 2 and 9 thereof. At the time that the Trust was created, the first defendant, the eldest great grandson of the settlor through his daughter’s son, was yet unborn. The plaintiffs claim that Section 13 of the Transfer of Property Act would not permit any interest to be created in any property transferred for the benefit of a person not in existence at the date of the transfer, unless it extends to the whole of the remaining interest of the transferor in the property. The plaintiffs claim that Section 13 of the Transfer of Property Act would not permit any interest to be created in any property transferred for the benefit of a person not in existence at the date of the transfer, unless it extends to the whole of the remaining interest of the transferor in the property. Shebaitship is a property, argue the plaintiffs, but since the first defendant was unborn at the time of the Trust coming into existence, there could have been no transfer of the Trust properties to the first defendant as such transfer did not extend to the entire interest of the transferor in the property. It is submitted that the Trust, and particularly the manner in which shebaits have been chosen thereunder, would violate the rule against perpetuity recognized by Section 14 of the Transfer of Property Act. Section 6 (h) of the Transfer of Property Act is placed by the plaintiffs to suggest that no transfer could be made for an unlawful object or consideration within the meaning of Section 23 of the Contract Act. Section 23 of the Contract Act is relied upon to urge that if the consideration or object of an agreement is of such nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, such consideration would be unlawful. The entire thrust of the argument is that the settlor did not vest the entirety of the property transferred, in the first defendant as shebait and as such there would be no Trust at all. It is best that Section 13 be seen in its entirety: “13. The entire thrust of the argument is that the settlor did not vest the entirety of the property transferred, in the first defendant as shebait and as such there would be no Trust at all. It is best that Section 13 be seen in its entirety: “13. Transfer for benefit of unborn person: - Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.” The plaintiffs cite a judgment reported at AIR 1951 SC 293 (Angurbala vs. Debabrata) and place a portion of paragraph 15 thereof to show that shebaitship is a property in Hindu Law: “Thus, there is nothing in any of the provisions of the Act from which an inference should be drawn that the expression ‘property’ as used in S. 3(1) has a limited or restricted interpretation & is not applicable to shebaitship which is recognized as property in Hindu Law.” Another old case reported at AIR 1948 Bombay 188 is placed to show that upon the court finding that an interest is created for the benefit of a person not in existence at the time of the transfer, such transfer would only take effect if it extends to the whole of the remaining interest of the transferor in the property. Paragraph 26 of the report is cited: - “26. The result is that the trusts in favour of unborn persons extend to the whole of the property and provide for the absolute disposal of that property, and in my judgment their failure by virtue of there never being any qualified object to take, which will is ascertainable within the limits prescribed by S.14, does not render these trusts incapable of taking effect. Accordingly this appeal must be allowed, and there must be a declaration in the terms of the question No.1 of the originating summons, that is to say, a declaration that the interests created in favour of the unborn persons mentioned in Cl.3 of the indenture of settlement, dated June 28 1938, are valid and effectual; but this declaration is to be without prejudice to any question which may hereafter arise with regard to the exercise of the power.” The object of the plaintiff’s endeavor is too obvious to miss. They seek a declaration in the form of an opinion that is to be expressed that would help them to cling on to a part of the Grey Street property. They seek a declaration in the form of an opinion that is to be expressed that would help them to cling on to a part of the Grey Street property. In the words of the settlor, the office of the Shebait was to pass on in the following manner: - “And this Indenture further witnesses that in pursuance of the said desire and in consideration of the premises the settlor doth hereby nominate and appoint on his death his wife the said Sreemutty Saraswati Debi as the Sole Trustee and Shebait during the term of her natural life and on her death his daughter the said Sreemutty Shushila Sundari Debi shall be the sold Trustee and Shebait during the term of her natural life and on the death of the Sreemutty Shushila Sundari Debi the said Bhabani Charan Chattopadhya grandson of the said settlor shall be the sole trustee and shebait during the term of his natural life and on the death of the said Bhabani Charan Chattopadhya his eldest male descendants in the male line shall be the shebaits and trustees in succession each for and during his natural life and if the said Bhabani Charan Chattopadhya should die without leaving any male issue but leaving female issue of issue or issues the eldest of such female issues shall become the trustee and shebait and thereafter the said trusteeship and shebaitship shall be succeeded by the eldest male descendant of the said female issue And it is declared that if any of the Trustees and Shebaits next in succession should die during the life time of the then existing trustee and shebait the next trustee and shebait in the above order will come and act as trustee and shebait And it is further declared that the trustee and shebait for the time being shall be entitled to adopt a son should be or she have no make issue and that such adopted son shall succeed to the shebaitship and trusteeship after the death of the said previous trustee and shebait as his or her natural son and heir …” The principal issue turns on the meaning of the expression “and on the death of the Bhabani Charan Chattopadhya his eldest male descendants in the male line shall be shebait and trustees in succession each for and during his natural life”. Bhabani was the settlor’s grandson through daughter Shushila. Bhabani was the settlor’s grandson through daughter Shushila. The plaintiff has also relied on the last Will of the settlor executed some 12 years after the Trust was created and of which probate has been granted by this court. Parts of the Will throw some light on the matter. The settlor recorded on the matter in his Will as follows: “By a Deed of Settlement dated the 3rd day of April 1928 I have appointed myself as the trustee and shebait to carry on the trusts and perform the sheba or worship of the Thakur Sri Sri Rajeswar Jew Sri Sri Baneshwar Jew and Sri Sri Lukhmi Mata and on my death I appointed my wife Smt. Saraswati Debi (since deceased) the sole trustee and shebait for and after her death I appointed my daughter Sm. Sushila Sundari Devi as trustee and shebait and on her death I appointed my grandson Bhabani Charan Chattopadhya the only son of my said daughter as trustee and shebait … and on the death of the said Bhabani Charan Chattopadhya his eldest male descendants in the male line to be the shebaits and trustees in succession for and during his natural life… “My said Grand son Bhabani Charan Chattopadhya has at present four sons namely Pratul Chandra Chattopadhya of the age of 11 years. Atul Chandra Chattopadhya of the age of 9 years, Nakul Chandra Chattopadhya of the age of 5 years and Bikul Chandra Chattopadhya of the age of 3 years. In the usual course of events in terms of the said Deed of Settlement the said Pratul Chandra Chattopadhya should be the shebait as eldest son of Bhabani Chandra Chattopadhya and as such shebait he is provided with certain benefits under the said Deed of Settlement. I am therefore now desirous of making some provision for the other three sons of the said Bhabani Charan Chattopadhya…” The fist defendant was not a beneficiary under the Will, his brothers Atul, Nakul and Bikul were. Atul and Nakul are the plaintiffs. It is not in dispute that following the grant of probate, Atul, Nakul and Bikul obtained the benefits due to them under the Will and the official trustee made over money as was payable under the Will to these three brothers of the first defendant. Bhabani lived up to the year 1979, according to the first defendant. It is not in dispute that following the grant of probate, Atul, Nakul and Bikul obtained the benefits due to them under the Will and the official trustee made over money as was payable under the Will to these three brothers of the first defendant. Bhabani lived up to the year 1979, according to the first defendant. It appears that his sons, or at least three of them, stayed with him during his life time at the property owned by the deities. The plaintiffs raised the questions that they now urge, or substantially similar questions, in 1980 in similar proceedings which were dismissed in the year 2006 on a question of the form in which the queries were presented, but with leave to file afresh with the observation that limitation would not come in the way if the plaintiffs filed anew. It is, thus, that the questions first raised in 1980 fall to be answered now. The plaintiffs’ principal argument cannot be doubted. Shebaitship is, indeed, property recognized at law. But there is nothing incomplete about the passing of the office of shebait, and the incidence of shebaitship, that can be gauged from the deed of 1928. The settlor transferred his immovable properties and some money by the deed. Such transfer was in favour of deities. The settler also chose who would be the trustees to succeed him. The first four trustees, if the ones after the settlor survived the previous one, were identified and were persons in existence at the time the Trust was made. After Bhabani, the next shebait was to be his eldest male descendant and thereafter the eldest male descendants in the male line. It is not in dispute that Pratul is the eldest son, and thus the eldest male descendant, of Bhabani. After Pratul, subject to the other conditions in the Will, the office is to devolve on Pratul’s eldest son who would be Pratul’s eldest male descendant in the male line. Upon Pratul becoming shebait, Atul, Nakul and Bikul have no look-in as they are not male descendants of Pratul. But the object of the present exercise is not to identify the next shebait or to trace how the office is to move from one shebait to the next. Upon Pratul becoming shebait, Atul, Nakul and Bikul have no look-in as they are not male descendants of Pratul. But the object of the present exercise is not to identify the next shebait or to trace how the office is to move from one shebait to the next. The question that the plaintiffs have brought is whether in view of Section 13 of the Transfer of Property Act, there was no identifiable trustee after the death of Bhabani for Pratul to claim the office of shebait. The transfer by the deed of 1928 is not a transfer unto the shebait but the shebait merely holds the property as trustee for the deities who are regarded as perpetual minors. There is no transfer at all in favour of any shebait. For, the shebait cannot deal with the properties settled as his own, he does so only for the benefit of the deities. The two must clearly be identified and distinguished: the office of shebait and the transfer under the deed of 1928. There was no transfer under the deed in favour of a person not in existence at the time of the transfer, for the provision of Section 13 of the Transfer of Property Act to be applicable. The transfer was complete, and in favour of the deities, upon the Trust coming into existence. The immovable property has not been given to the shebait, he has been required to reside at the premises presumably for him to oversee the sheba of the beneficiaries under the Trust. It is this obligation that the plaintiffs mistake for a right. The obligation (or the right, as the plaintiffs understand it) is an incidence of the office of the shebait and passes on to the next shebait as the earlier shebait moves on. If there was any doubt, the settlor cleared the air in the Will he executed some 12 years after the Trust was born. It is plain to see that the settler acknowledged that, in the usual course, Pratul was to succeed Bhabani as shebait. It may also be said that the settlor recognized that a benefit had been conferred on the shebait for his discharging his duties as such. Thus, the settler did not provide for Pratul in his Will but left parts of his estate to Pratul’s younger siblings. It may also be said that the settlor recognized that a benefit had been conferred on the shebait for his discharging his duties as such. Thus, the settler did not provide for Pratul in his Will but left parts of his estate to Pratul’s younger siblings. The plaintiffs have not pressed any ground to suggest that Pratul is disqualified to discharge the duties of the shebait under the deed. The plaintiffs have only sought answers to questions (c) and (f). As a corollary, question (g) has been mentioned, but the only in passing. By the deed of 1928 the immovable property and the money were settled absolutely in favour of the deities and there was no residual right that anyone else could claim. The shebaits were sufficiently identified and the shebaits as trustees have merely the right to administer the Trust for the benefit of the deities and enjoy the right of residence at the immovable property in course of their office as shebait. Question (c) is answered against the plaintiffs. Pratul was to be the shebait after Bhabani and the other heirs of Bhabani have no right to any part of the Trust properties or, upon Pratul assuming office as shebait, to shebaitship. The answer to question (f) is also answered against the plaintiffs. Upon the Trust being created and the properties vested in the Trust being no longer available with the settlor, the settlor could not have bequeathed any part of the Trust properties under his Will. That the settlor did not intend to touch the Trust properties is evident from the Will. The residual legatee under the Will was not entitled to any part of the Trust properties in his individual capacity and it was a matter of co-incidence that the residual legatee was also later to be a shebait. The questions brought to court by the plaintiffs had obvious answers. It appears that in posing such questions and making the matter sub-judice, the plaintiffs sought to obtain some undeserving benefit. The plaintiffs will pay costs assessed at 500 GMs to the first defendant apart from, possibly, being liable to the Trust.