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1982 Supreme(Ori) 123
High Court Of Orissa
R. C. Patnaik, J.
MAHADEV ACHARYA - Appellant
Versus
CH.GAGAN CH.DAS - Respondent
Misc. Appeal 122 Of 1980
Decided On : 09/22/1982
A.B.MISHRA, A.S.Naidu, B.B.PANDA, D.P.SARANGI, G.P.MOHAPATRA, P.N.MOHAPATRA, S.K.PATNAIK, S.Mishra, S.MOHANTY
A Shebait has no right to receive a part of the usufructs or offerings towards Seba in the absence of any provision in the deed of dedication or usage or custom.
Headnote:
ORISSA HINDU RELIGIOUS ENDOWMENTS ACT, 1951 - SECTION 28(6), 35(4), 42(6), 44 - SCHEME MODIFICATION - PERSONAL EXPENSES OF HEREDITARY TRUSTEE - NOT PERMISSIBLE IN ABSENCE OF PROVISION IN DEED OF DEDICATION OR USAGE OR CUSTOM.
Fact of the Case:
An appeal challenging the modification of the scheme in respect of the institution of Shri Nilamadhab Jew by the Deputy Commissioner, confirmed in appeal by the Commissioner of Endowments. The modification provided for funds towards the personal expenses of the hereditary trustee.
Finding of the Court:
The court held that in the absence of any provision in the deed of dedication or usage or custom conferring a right to receive a part of the usufructs or offerings towards Seba, the Deputy Commissioner erred in law in making provision in the scheme for funds for personal expenses of the hereditary trustee.
Issues: Whether the Deputy Commissioner erred in law in making provision in the scheme for funds for personal expenses of the hereditary trustee.
Ratio Decidendi: The court held that a Shebait has to act gratuitously and cannot charge the Debutter estate for any remuneration on account of the time and labour he spends over his affairs. The right to a part of the usufructs or offerings depends upon the usage or custom or provision contained in the deed of dedication. In the absence of any such provision, usage or custom, the Shebait has no right to take any portion of the income of the Debutter estate.
Final Decision: The court set aside the decisions of the Deputy Commissioner and the Commissioner and directed deletion of Clause 22 from the scheme.
R. C. PATNAIK, J.
( 1 ) THIS is an appeal under Section 44 of the Orissa Hindu Religious Endowments Act. 1951 (hereinafter referred to as the 'act'), challenging the modification of the scheme in respect of the institution of Shri Nilamadhab Jew by the Deputy Commissioner, confirmed in appeal by the Commissioner of Endowments.
( 2 ) THE institution of Shri Nila Madhab Jew is a public religious endowment. A scheme had been framed in respect of the institution in 1948. In the scheme so framed, two out of the hereditary trustees were to be represented on the Board. The scheme was modified in 1964 by the Commissioner of Endowments. A report was made by the Additional Assistant Commissioner in January, 1978 that the Board of Trustees consisting of five persons was not properly functioning and the Inspector of Endowments was continuing as the interim trustee. On the basis of the said report, the Deputy Commissioner further modified the scheme under Section 42 (6) of the Act. An appeal carried by the appellant to the Commissioner did not bear any fruit. Hence this appeal.
( 3 ) THE only point now urged by Mr. P. N. Mohapatra, the learned counsel for the appellant, in this appeal is that the Deputy Commissioner fell into an error in providing five per cent of the annual net income of the institution for personal expenses of the hereditary trustee (see Clause 22 of the Scheme ).
( 4 ) THE Commissioner was of the view that as the hereditary trustee suspended, removed or dismissed and the hereditary trustee disqualified might be allowed maintenance under Section 28 (6) and Section 35 (4) of the Act no illegality was committed by the Deputy commissioner in making provisions for funds in the scheme for the personal expenses of the hereditary trustee.
( 5 )
"so long as feelings of piety and benevolence have an abiding place in human heart, they must find expression in religious and charitable gifts: and 'law' which is a means to serve social ends, has got to provide for their regulation and control, in order that the object of the donor might be achieved. This is how religious and charitable trust came into existence in almost all systems of civilized law. . . . . . . . . "
This is how Justice B. K. Mukherjea prefaced his Tagore Law Lectures while publishing them as "hindu Law of Religious and Charitable Trusts. " A 'shebait' etymologically means a person who renders service to the deity for his spiritual benefit. He does not seek any quid pro quo. He expects no temporal benefits and the development of the law has centered on this concept He may, however, have a right to a part of the usufructs or offerings, the mode of enjoyment and the amount of usufructs depending upon the usage or custom or provision contained in the deed of dedication. So, Justice Mukherjea says:--
"like the trustee in English law, a Shebait has to act gratuitously and he cannot charge the Debutter estate for any remuneration on account of the time and labour he spends over his affairs. The position would certainly be different if there is a provision in the deed of dedication to that effect, or in the absence of any deed of endowment there is a usage sanctioning such remuneration to the Shebait. The law is well established that in the absence of any provision in the deed of dedication or any usage to that effect, a Shebait has no right to take any portion of the income of the Debutter estate nor even the surplus that remains after meeting the expenses of the deity, in this income would be included not merely the rents and profits of the Debutter property but the offerings which are made to the deity by its devotees As a matter of fact, however, such provisions usually occur in the deed of dedication and where no document exists "in almost every case he is given the right to a part of the usufruct, the mode of enjoyment and the amount of usufruct depending upon usage or custom. . . . . . . . . . . . " When there is no deed, obviously we have only to look to custom
