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 customs and usages in particular religious institutions for the purpose of finding out whether the Shebait can retain any portion of the income of the Debutter property for his own personal use.'
In this connection, the following cases may also be seen Jagannath Deb Roy v. Byomkesh Roy, (AIR 1973 Cal 397); Kailash Chand v. Bhupal Nath (AIR 1973 All 238) and Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar (AIR 1922 PC 123).
6. It has not been disputed that the deed of dedication does not contain any provision for payment to the hereditary trustee. Nor has usage or custom been alleged and proved. In my view, the provision in the scheme for funds towards the personal expenses of the hereditary trustee is misconceived in law. Reliance by the Commissioner on Sections 28 (6) and 35 (4) of the Act is equally untenable These provisions contemplate and provide for payment of maintenance in the situations stated therein, namely, on account of suspension, dismissal or removal of the hereditary trustee under Section 28 (6) and in the case of disqualification under Section 35 (4) of the Act. Such is not the case here. Where the hereditary trustee has no right to receive a part of the usufructs or offerings, there being no such provision in the deed of dedication, or usage or custom sanctioning such right, it would be a moot question whether payment of maintenance would be permissible under Section 28 (6) or Section 35 (4) of the Act.
7. As I hold 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. I, therefore, set aside the decisions of the Deputy Commissioner and the Commissioner and direct deletion of Clause 22 from the scheme.
8. In the result, the objection of the appellant to Clause 22 is sustained and the appeal is allowed. In the circumstances, there would be no order as to costs.