The main legal point established in the judgment is that the appointment of non-hereditary trustees must be based on proper enquiry and finding, and should only arise if the present manner of administration by the hereditary trustee is found to be insufficient.

Thottathil B. Radhakrishnan, J.

1. Petitioners in these writ petitions challenge decisions of the authorities under the Malabar Devaswom Board to appoint non-hereditary trustees for two temples which are among those administered in terms of a Scheme dated 2.8.1956, framed in O.A.59/56, by the Deputy Commissioner of Hindu Religious and Endowments (Administration) Department, Coimbatore, under Section 58(6) of the Madras Hindu Religious and Charitable Endowments Act, 1951, hereinafter referred to as 'the Act'. By that Scheme, which came into force from the date of that order, the administration of the affairs of the twelve (12) temples under the Thrikkaikat Math was ordered as vesting hereditarily in the Moopil Swamiyar of Thrikkaikat Math.

2. Different contentions on which these writ petitions are filed include the allegation that the action taken is in violation of the provisions of the Act and also bad as having been made after the code of conduct came into force as part of the Elections to the Kerala Legislative Assembly. It is also alleged that no transparent procedure is adopted.

3. The counter affidavit of the first respondent Commissioner, Malabar Devaswom Board states that the administration- of the Math and the temples are vested in the Madathipathy and that he created Ext.P1 document in violation of Section 29 of the Act and that transaction is null and void. According to the Commissioner, the trustee has no power to transfer the temple. It appears that it is, fundamentally, on this premise that the impugned action was proceeded with.

4. Hearing the learned counsel for the writ petitioners, the contesting private respondents and for the Board, we see that certain fundamental issues touching the governance of the temples over which Moopil Swamiyar of Thrikkaikat Math had authority as trustee, falls for consideration.

5. Going by the Scheme, administration of twelve (12) temples under the Thrikkaikat Math, including the two in relation to which these writ petitions are filed, stood vested hereditarily in the Moopil Swamiyar of Thrikkaikat Math, subject to provisions of that Scheme and the Act. The trustee was to appoint an Executive Officer with the approval of the Deputy Commissioner. The Executive Officer was to work under the supervision of the trustee. The immovable properties of the temples shall ordinarily be leased out by the trustee and lease deeds and renewal deeds shall be executed by the trustee in the name of, and on behalf of, the temple. The different provisions in the scheme is in conformity with the provisions of the Act. The power of the Commissioner to appoint non-hereditary trustees along with the hereditary trustees, in terms of the Act, is reiterated in the Scheme also.

6. With the passage of time, it appears that Sreerama Brahmananda Theerthapadar, the first among the hereditary trustees in the hierarchy became old and feeble. Going by Ext.P1 deed, the second in the hierarchy line, Sreevasudeva Brahmananda Theerthapadar, became the Pushpanjali Swamiyar of Sree Padmanabhaswami temple in Thiruvananthapuram. This situation led Sreekrishna Brahmananda Theertha becoming the hereditary trustee in charge of the affairs of the Thrikkaikat Math and the temples. He, with the passage of time, found it necessary to get support for the administration of the temples under Math, having regard to his different obligations and volume of work in the management of the temples, including giving directions for the administration of the temples apart from taking care of the Math and also the Yoga classes being conducted there. He, therefore, discussed the matter with the office bearers of Kerala Kshethra Samrakshana Samithy having its headquarters in Kozhikode. That Samithy, going by Ext.P1, agreed to take care of the administration of the temples which are enumerated in Ext.P1. Accordingly, that document was executed by Sreekrishna Brahmananda Theertha in favour of the Kerala Kshethra Samrakshana Samithy represented