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The defendant relies on a Single Bench judgment of this Court rendered at the trial of a suit reported at AIR 1974 Cal 292 (Bholanath Shaw v. Badrinath Shaw) where the action failed for want of jurisdiction. The suit was instituted with leave under clause 12 of the Letters Patent for administration of the trust estate. The trust owned immovable properties all situate outside the original jurisdiction of this Court. One of the reliefs claimed was for removal of one of the defendants from the office of the sole trustee and shebait and for appointment of the plaintiff in her place. The trust deed provided that upon the death of the settlor who was the first sole trustee, his widow would be the sole trustee for life and also the sole shebait of the deity. After the widow's death the four sons of the settlor were to be the joint trustees of the trust estate and, simultaneously, shebaits of the deity. The settlor as sole trustee conveyed two immovable properties of the trust estate absolutely to the deity. A son of the settlor brought the action complaining of the settlor's widow indulging in wrongful acts. The contesting defendants denied the title of the deity in the two immovable properties and challenged the validity of the transfer made by the original sole trustee in favour of the deity. It was in such context that the court held at paragraph 13 of the report as follows:

"13. The prayers for removal of Dhaneswari including the removal of the contesting defendants from their offices and for the appointment of the plaintiff in their place, in my opinion, are not ancillary reliefs as was contended before me. Further, their legal position cannot be equated with the legal position of an executor. It is true that under Sec. 211 of the Indian Succession Act, 1925, the estate of a deceased person is vested in his executor but the expression "as such" used in that section is, in my opinion, leads to an irresistible conclusion that such vesting is only for the purpose of representation of the estate of the deceased person. But, no such qualification can be attached to the office of a trustee or a shebait because they are not the legal representative of the settlor."

The judgment drew strength from the decision reported at (1875-76) ILR 1 Cal 249 (The Delhi and London Bank v. Wordie). The discussion in the judgment in Bholanath Shaw was in the context of the trustees simultaneously being shebaits and must be read in such light. As some of the authorities cited by the plaintiffs would reveal, there is considerable difference between the office of trustee and shebaitship. The judgment distinguished the dictum in the judgment reported at AIR 1960 Cal 691 (Hem Chandra Dev v. Dhirendra Chandra Das) where the plaintiff sought a decree for the administration of the estate of a deceased person. The Division Bench had held that such a suit was not a suit for determination of a right to or interest in immovable property.

"... Shebaitship in its true legal conception involves two ideas: The ministrant of the duty and its manager, it is not a bare office but an office together with certain rights attached to it. A shebait's position towards the debutter property is not similar to that in England of a trustee towards the trust property, it is only that certain duties have to be performed by him which are analogous to those of trustees. ..." (From pages 810-811) The plaintiffs say that the office of trusteeship is not a property at all. They say that in the case of a shebait the office is blended with the property; a shebait can gift his office but a trustee cannot alienate of his office or deal with it. The plaintiffs submit that it is in such circumstances that shebaitship is regarded as an immovable property but the office of the trustee is not seen to be the same. The plaintiffs place a judgment reported at (1978) 3 SCC 236 (Ram Rattan v. Bajrang Lal) where the hereditary office of shebait as well as the right to worship by turn were regarded as immovable properties within the meaning of Section 3(26) of the General Clauses Act. The Supreme Court relied on a Bombay judgment to hold that the hereditary office of shebait which would be enjoyed by the person by turn would be immovable property and the document of transfer was liable to be registered. In the judgment reported at 3 IC 435 (Suppian Thevan v. M. Krishna Row) the issue was as to whether the appointment of a trustee was required to be under a registered document. The Madras High Court concurred with the view of the subordinate Judge that the properties of a trust estate vest in the trustees by operation of law, but the document appointing a trustee does not, by itself, create any such right.