1. This second appeal has been filed by the plaintiff in 0. S. No. 50 of 1975 in the Court of the Subordinate Judge of Nagaanattinam. The suit was for declaration that the Waintiff was the hereditary trustee of Sri Meenakshisundareswataswami temple, Vadavur village and for recovery of possession of the temple and its properties. It was not in dispute that the temple is a public temple coming within the jurisdiction of the Hindu Religious and Charitable Endowments department. The ancestors of the plaintiff and the defendant's husband originally founded the temple. The office of trusteeship was last held by one V. R. Subramania Iver the elder brother of the plaintiff and husband of the defendant. The said Subramania Iver died in or about 1964. On his death, his wife, the defendant assumed management of the Properties. At that time the plaintiff was engaged in business in Delhi and other Places of northern India. As the Plaintiff had come back to the village he wanted the defendant to hand over Possession of the temple and its Properties to him. Since his request was not complied with. He came forward with the present suit. In the written statement, the defendant contended that the plaintiff was riot the hereditary trustee of the temple and that, after the death of her husband she was entitled to be the trustee. She claimed that the plaintiff had no cause of action to Institute the suit. The trial Court decreed the suit upholding the claim of the plaintiff. The defendant appealed and the learned District Judge. Nagapattinam held that the plaintiff had not satisfactorily proved that he was entitled to succeed to the trusteeship rights, subsequent to the death of his brother. As the next person in order of succession. In Ex. B-1, dated 31-12-1973, which is a certified copy of the order passed by the Commissioner. H.R and C. E. Department, the Commissioner bas come to the conclusion that the defendant was. entitled to continue to exercise her right to trusteeship as the hereditary trustee. The plaintiff has now come forward with the present appeal.
2. Mr. Chandramouli learned council for the appellant, contended that this is a case in which the trusteeship was hereditary and that the hereditary principle should be applied from the time of the original founder. N so applied according to him the widow of the last trustee that is the defendant would not be an heir to the founder. as she could only be the heir to her husband and not of his other ancestors and. hence the plaintiff alone was entitled to be the trustee, For the respondent, the submission was that in a case in which there was no document governing the rights of trusteeship and the defendant alone was the heir , of the last trustee. Both Parties relied on various decisions.
3. There is one aspect on which the Parties appear to be really not in contest, and that is in regarding the trusteeship as a species of her able vronertv The learned counsel for the appellant contends that he was 'the trustee and traces his right to trusteeship as the descendant of the original trustee Seshavvier. The respondent traces her rights. to her husband. V. R. Santanam who was the last trustee. That the trusteeship is heritable specie of property appears to be thus common ground. though it was not clearly and sDecif1callv so admitted. No other basis can be found for the respective contentions. How the trustee shod should devolve is alone in controversy.
4. The legal position may be, examined even on the basis that there is some Controversy on this Point. The trustee in the context of this case is. only a dharmakartha. The position of the dharmakartha was contrasted by the Privy Council with that of a shebait or head of a mutt in the following lineage:-
'This (dharmakartha) is in truth the legal equivalent lo trustee. The position of dharmakartha is not that of a shebait of a religious institution. or the head of a mutt. These functionaries have a ' much higher right with larger Powers of disposal and administral ion, and they have a personal interest of beneficial character' (See Srinivasacharmr v, Evalarma Mudaliar. (1922) TLR 45 Mad 565 : AIR 1922 PC 325
A dharmakartha was described to be literally no more than the manager of learned coquina charity and his rights are never in a higher legal category than that of a mere trustee.
5. If this Principle of distinction is kept in mind. it would be easy to follow the later cases and appreciate some apparent inconsistency in them. In Ganesh Chunder Dhar v. Lal Bhery Dhar . a Point that arose for decision was whether a testator could prescribe the rule of primogeniture for succession to shebaitshiv. Such a rule of succession had been found to offend the rule of Hindu Law in Juttendramohan Tagore v. Gnanadramohum Taeore 1372 1 Ind. Apt. 47. It was held that the same principle governed the rule of succession to shebaitship, and, so, the testamentary provision was held to be bad. That case arose under the Dayabhaea law.
6. Where the founder of Hindu private religious trust had made no provision to the succession of trusteeship beyond this son. it was held in Bhabatrini Debi v. Ashalata Debi. by the Privacy Council that the she bai!i on the son's death devolved upon the son's heir and not upon the nearest surviving heir of the founder.
7. But. in a Full Bench decision of this Court in Manaithunaitha v. Sundaralingam, : (1970)2MLJ156 , the principle of Tagore's case, (1872) 1 Ind. App. Supp. 47 was held to be inapplicable to a bare office of trusteeship like that of a trustee of a temple or charity. It was Derhaos in this background. that the Supreme Court described the Proprietary element in shebaiti riLaht as anomalous the anomaly having been accepted by Hindu Law from an early date: per B. K Mukheriee J. in Smt. Anqurbala Mullick v. Dababrata Mullick, : 2SCR1125 . That was a case of a shebaiti right and it was held that the succession would be averred by Hindu Law (Hindu Women's Right to Property Act. 1937, as amended in 1938). The Supreme Court applied the same principle in Chockalinea Sethuravar v. Arumanavakam. : 1SCR874 . in the case of trusteeship of a charity. That was incidentally an appeal from a decision of this Court. The same Principle was applied by a Bench of this Court in Parameswaran Pillai, 1978 2 MLJ 19.
8. The law is thus clear. and I may add that no other rule of succession can be applied to a case of this kind. There are two ways of devolution of the office of dharmakartha or trustee- As laid down by this Court in Manaithunainatha Desikar's case. : (1970)2MLJ156 . it is Possible for a donor to Prescribe any mode of devolution of' trustee shin. untrammeled by any other restrictions as regards the nature of the estate. But when he does not do so. the devolution is governed by ordinary rules of Hindu law statutory or otherwise. The right of succession to trusteeship cannot hang in the air. It has to be governed either by the arrangement made by the founder or by the general law.
9. The case of Sambandamurthi v. State of Madras, : 2SCR424 is a case of application of usage in the matter of appointment of a trustee. The application of usage is in effect the application of the law. But, on the point as to whether the office of a hereditary trustee was property. as observed in that case. some doubt has been cast over this decision in Kakinada Annadana Samajani v. Commr. of Hindu Religious and Charitable Endowments, Hyderabad, : 2SCR878 . The question in that case was whether a statute enabling appointment of a Board of trustees by the Government or its officers in the case of a charitable institution managed by a hereditary trustee offends Article 19 or 31 of the Constitution. It was held that it will not offend the said Article. as such hereditary trusteeship was not 'Property.' The Problem whether the trusteeship is within the scope of the guarantee as regards property enshrined in the Constitution is beside the point here. Whether it is property in the constitutional sense or not, the Personal law can provide for its succession and that is all what we are concerned with here. The decisions in Chockalinga Sethuravar v. Arumanayakam, : 1SCR874 and Pararneswaram Pillai v. Sivathanu Pillai; (1978) 2 MLJ 19, he arrive mode of devolution Prescribed by the founder. The succession is thus to the last holder of the office. The widow and not a brother would be his heir clearly support the view taken by Court below. There is no proof of
10. The appeal is accordingly dismissed. No costs.
11. Appeal dismissed.