S. Ramachandra Iyer, C.J.
1. The appellant filed an appplication under the provisions of Section 57(b) of the Madras Hindu Religious and Charitable Endowments Act, 1951, for a declaration that he was a hereditary trustee of Sri Gurunathawsami Temple, having been elected as a trustee by the Koilkudigals as per usage prevailing. The Deputy Commissioner held that he did not acquire any hereditary right to the office by virtue of the election and rejected the petition. On an appeal to the Commissioner, that order was set aside. The aggrieved persons later filed a suit under Section 62(3) of the Act for setting aside the order of the Commissioner. In that, they were successful. The judgment of the learned Subordinate Judge in that case had been affirmed by Ramakrishnan, J. Hence this appeal.
2. The case for the appellant is that the temple was originally founded and its properties endowed by one Sivagurnatha Pillai, who appears to have died more than 100 years ago. It is said that he managed this temple in his lifetime and that he did not prescribe any line of devolution for the trustees to follow him. The consequence, according to the appellant, was that his descendants who are now known as Koilkudigals become joint hereditary trustees. Further, according to him, from the year 1841, the temple and its properties were managed by certain specified persons from among the descendants of Sivagurnatha Pillai. There appears to have been disputes between the Koilkudigals themselves in regard to the management, but it is unnecessary to refer to them. It is said that, in 1926, the appellant was elected by the general body of Koilkudigals as a trustee. On this basis, he claimed that he had acquired a hereditary right to the office of the trustee. We are, however, unable to see how that can follow. If the Koilkudigals are deemed to be the hereditary trustees, the mere fact that they comprised a large body of individuals cannot take away that right from them. All of them would be joint trustees. The office will thus be a joint one, the co-trustees forming as it were one collective trustee. But if they, for the purpose of convenient management, elected one from amongst themselves as a trustee, it must have been only to facilitate the management of the temple and its properties. Such election by itself cannot confer any exclusive right of trusteeship much less a hereditary right to trusteeship. Indeed, it would really be the other way about. The appellant, by virtue of his election, can hold office only under the rights created by such election, and that cannot be regarded as in any way creating a hereditary right. The office of trustee, as we said, was a joint one and it would not be open for the general body to alienate the office in such a way as to create a hereditary right in one amongst themselves. There may be cases, as pointed out in Ramanathan Chetty v. Murugappa Chetty I.L.R. 27 Mad. 192 : 13 M.L.J. 341 where one set of trustees might acquire by adverse possession the hereditary right against another ; but that is not the case here. What the appellant wants now is a declaration that he is the sole exclusive hereditary trustee of the institution. That claim is not justified by his own case in the petition, and later, by his written statement in the suit. We are, therefore, in complete agreement with Ramakrishnan, J., that the appellant had not made out that he is the sole hereditary trustee of the temple. In this view, it must be held that the appeal has been rightly dismissed.
3. Mr. K.E. Rajagopalachari, appearing for the appellant, sought to raise a new point that the suit which was filed by the respondents to set aside the order of the Commissioner was incompetent, as the Commissioner had not been impleaded as a party. The objection to the nonjoinder of the Commissioner was not taken in the written statement ; nor did it form anyone of the issues in the case. It does not even appear that the point was taken before Ramakrishnan, J. We have therefore declined to permit the point to be raised here for the first time in the appeal. The appeal fails and is dismissed with costs.