Alfred Henry Lioned Leach, C.J.
1. This is an appeal from a decree of the District Judge of Kistna amending a scheme framed by the Hindu Religious Endowments Board under Section 57 of the Madras Hindu Religious Endowments Act. The scheme was framed in respect of the Sri Bhimeswaraswami temple at Gudivada. It is now admitted to be a non-excepted temple and that the family of Thummalapalli Venkata-krishnayya possessed a hereditary right to the trusteeship. On the 18th June, 1926, the Board framed a scheme under which it vested the management of the temple in a board of three trustees, one of them to be a member of this family. On the 5th November, 1942, the Board modified the scheme. Clause 5 of the modified scheme provided that the Board should appoint one of the trustees as the managing trustee for such period as it might deem fit with power to remove him from the office of managing trustee for good and sufficient cause and that the Board might entrust him with such powers as it might deem fit from time to time in the interest of the administration. The hereditary trustee objected to this provision and filed a suit in the District Court for its cancellation.
2. The learned District Judge held that Clause 5 of the modified scheme was ultra vires the Board. He considered that the Board had no power to appoint one of the other two trustees as the managing trustee. In accordance with his finding he amended the scheme by providing that there should be three trustees:
One of them being the hereditary and managing trustee from Thummalapalli Venkatakrish-nayya's family in which it is vested.
3. He directed that the hereditary trustee should always be the managing trustee subject to certain safeguards. The Board have appealed on the ground that the Judge erred in holding that it had exceeded its power in inserting Clause 5 in the modified scheme. The contention is well founded. In Krishnamacharlu v. Ranga-charlu : AIR1943Mad136 this Court held that under Section 63 of the Madras Hindu Religious Endowments Act the Board had power to appoint any trustee; whether hereditary or non-hereditary, to be the managing trustee for a period. Section 63 expressly empowers the Board to define the powers and duties of the trustee or trustees and it was by virtue of this provision that the Court held that the Board had power to appoint any one of the trustees to be the managing trustee for a period. Section 63 refers to excepted temples. Section 57 under which this scheme was framed only refers to non-excepted temples, but the section confers on the Board the same powers in this respect as are conferred on the Board by Section 63. Therefore the decision in Krishnamacharlu v. Rangachdrlu : AIR1943Mad136 has direct application here. It follows that the District Judge erred in holding that the Board had no power to appoint a non-hereditary trustee as the managing trustee.
4. There is no reason, provided that the hereditary trustee is a fit and proper person, why he should not be appointed to the office; and in a case like the present one preference should be given to him. In these circumstances learned Counsel have intimated to the Court that they will probably be able to agree to amendments in the scheme framed by the District Judge so as to satisfy all the parties. We allow the case to stand adjourned until the 5th November, 1945, with a view to a settlement.
5. This appeal coming on for orders by adjournment this day, the 6th day of November, 1945, the Court delivered the following
6. The Parties have agreed upon the terms of the scheme. The scheme agreed upon will be substituted for the scheme settled by the District Judge, whose decree will be amended accordingly.
7. The costs of the parties will come out of the estate.