V. Chitambaresh, J.

1. Can the number of Trustees exceed five in number in a temple at a given point of time under The Madras Hindu Religious and Charitable Endowments Act, 1951 (the 'Act' for short) applicable to the erstwhile Malabar area? I heard Mr. R. Lakshmi Narayanan, Advocate on behalf of the Malabar Devaswom Board, Mr. M. Sasindran, Advocate on behalf of the Non-Hereditary Trustees and Mr. A.P. Chandrasekharan, Senior Advocate on behalf of the Hereditary Trustees. There is a modified Scheme framed by the Deputy Commissioner of the Hindu Religious and Charitable (Administration) Department in respect of the temple in question under S. 58 of the Act. The Scheme empowers the appropriate authority to appoint Non-Hereditary Trustees not exceeding five which is within the permissible limit of five Trustees stipulated under S. 39(2) of the Act. The fact remains that there are only three Hereditary Trustees at present representing the three families to whom the temple belonged and two Trustees can possibly be appointed further.

2. Section 42 of the Act states that the power to appoint Trustees under S. 39 shall be exercisable notwithstanding that the Scheme, if any, settled f