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Before dealing with these contentions, it will be appropriate to have a clear idea of the concept, the legal character and incidents of Shebaitship. Property dedicated to an idol vests in it in an ideal sense only; ex- necessitas, the possession and management has to be entrusted to some human agent. Such an agent of the idol is known as Shebait in Northern India. The legal character of a Shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property. As regards the administration of the debutter, his position is analogous to that of a Trustee, yet, he is not precisely in the position of a Trustee in the English sense, because under Hindu Law, property absolutely dedicated to an idol, vests in the idol, and not in the Shebait. Although the debutter never vests in the Shebait, yet, peculiarly enough, almost in every case, the Shebait has a right to a part of the usufruct, the mode of enjoyment, and the amount of the usufruct depending again on usage and custom, if not devised by the founder.

The upshot of the above discussion is that in spite of the interposition of the Trust for management of the endowed property, the Shebaitship remained undisposed of and, as such, the defendant and other descendants of Durga Chand Requitte became co-shebaits of the deity by the operation of the ordinary rules of Hindu Law.

In arriving at the conclusion that in spite of the interposition of the Trust, the founder by his Will left the Shebaitship undisposed of, and as such, the defendant also, under Hindu Law, became one of the Shebaits, we are fortified by the inference arising out of the facts admitted by no less a witness than Plaintiff No. 3, Satish Chandra Dass, himself, who alone deposed for the plaintiffs. Though he claimed that there were no Shebaits of the deities and the trustees were managing the Shebaits. he categorically admitted the following facts:

The first two courts were, therefore, right in holding that the Shebaiti rights remained with the heirs of the founder.

Assuming for the sake of argument, that the 'trustees' were also vested with the rights and obligations of a Shebait, then also, the evidence on the record shows that those trustees who were not descendants of the founder, Durga Choron Requitte, never acted as such. They went out of the picture long ago and must be presumed to have renounced their Shebaiti rights in favour of their co-shebaits who were descendants of the founder. It is in evidence that in 1934, a dispute arose among the descendants of the founder with regard to the accommodation in their residential occupation. Thereupon, the trustees agreed with the descendants of the founder by means of the Agreement (Ex. E) to refer the dispute to the sole arbitration of Shri Shringerwar Shrimani. The arbitrator, inter alia, held that the heirs of late Durga Choron Requitte and his descendants alone had the rights to act as Shebaits. There is documentary evidence on the record to show that this award (Ex. G) given by the arbitrator was accepted by the 'trustees'. The present plaintiffs-appellants, by their letter dated June 18, 1950 (Ex. A/7), asserted their right on the basis of this award and described the defendant- respondent as a shebait of the deity. The letters (Ex. A-8 and A-10) also point to the same conclusion.

Thus, even if it is assumed that originally, the trustees were regarded as having been constituted as Shebaits, then also, those among them who were not family members or descendants of the founder, renounced and relinquished their shebaiti rights, if any, in favour of the descendants of the founder. Such a relinquishment made in favour of the co-shebaits, will be valid.

From whatever angle the matter may be looked at, the conclusion is inescapable that Shebaitship of the family deity remained solely with the descendants of the founder; and the defendant-respondent, who is admittedly a grandson of the founder, had been regarded as one of the Shebaits, and as such, entitled to reside in the disputed rooms. All the Shebaits were therefore, necessary parties; but all of them have not been impleaded. The Trustees by themselves, have no right to maintain the suit in respect of the debutter property, the legal title to which vests in the idol, and not in the Trustees. The right to sue on behalf of the deity vests in the Shebaits. All the Shebaits of the deity not having been made parties, the suit was not properly constituted, and was liable to be dismissed on this score alone.