JUDGMENT. — The appeal is directed against Original Suit No. III of 1973 on the file of the Subordinate Judge of Chingleput, which is a suit to set aside the order of the Commissioner for Hindu Religious and Charitable Endowments, Madras dated 16th December, 1972 passed in A.P. No. 130 of 1972 and for a declaration that the plaintiffs are the hereditary trustees of the suit temple. The following geneological tree would be useful to appreciate the claims of the plaintiff. Roya Raddiar had two sons, Narayanan and Krishnan. Narayanan’s son is Munuswami Reddiar, the second plaintiff. Krishnan’s sons Doraiswami Reddiar is 3rd plaintiff and Murthy Reddiar is the 4th plaintiff.

2. There was another Vengu Pillai, who had four sons, Anguswamy, Kannaiah, Chinna-swami and Dorai Pillai the 9th plaintiff. Chinnaswami’s sons are Ramachandra Pillai, Venkataramanujam Pillai and Chandra-sekaran Pillai, Plaintiffs 6 to 8 respectively. Doraiswami Pillai is the 5th plaintiff. There two families claimed among themselves the hereditary trusteeship of the two temples Sri. Mariamman and Sri Pidari Ponniamman, of Padi Village, Saidapet Taluk. The plaintiffs filed an application under section 63 (b) of the Tamil Nadu Hindu Religious and Charitable Endowments Act (hereinafter referred to as the Act) pressing their claim to the office of the hereditary trusteeship and that was dismissed. Thereupon an appeal was preferred to the Commissioner under section 69 (1) of the Act. The Commissioner, by his order dated 16th December, 1972, dismissed the appeal. Thus, the necessity for the suit.

3. The Commissioner, Hindu Religious and Charitable Endowments Department, in his written statement contended that no portion of the plaint allegation is admitted and he puts the plaintiffs to strict proof of their case that they are hereditary trustees of the suit temples. It was also claimed that they were never in possession and enjoyment of the suit temple. They being periathanakarars, they are the trustees of the temple, but that would not mean that they are hereditary trustees.

The following issues were framed:

1. Whether the plaintiffs are the hereditary trustees of the suit temples?

2. Whether the order of the Commissioner Hindu Religious and Charitable Endowments concerned, is liable to be set aside ?

3. To what relief are the plaintiffs entitled?

4. On issue No. 1, the learned Subordinate Judge, Chingleput, came to the conclusion that the plaintiffs happened to be trustees and were exercising rights as such, because, they happened to be periathanakarars of the village, but that does not mean that their office could be characterised as hereditary within the meaning of section 6, clause (ii) of the Act. On issue No. 2, the learned Subordinate Judge held that the order of the Commissioner is not liable to be set aside, with the result, he dismissed the suit. Plaintiffs have come up to this Court by way of this appeal.

5. Mr. M. Srinivasan, learned counsel for the appellants urges that in this case, there is: no gainsaying that the two families of the plaintiffs alone have been exercising the rights as trustees right from 1865 and no other person had at any point of time caused any hindrance to the right nor that that was ever questioned. Having, regard to the long usage of exercising the trusteeship it must be held that the plaintiffs have established their right as hereditary trustees. The finding of the learned Subordinate Judge that merely because none of the documents: filed described the predecessors of the plaintiff as periathanakarar or adheenakarthar, their rights could not be characterised as hereditary trustees, is not correct. In support of his submission, the learned counsel cited an unreported decision in O.S.A. No. 79 of 1951, of a Division Bench of this Court (1954) M.W.N. 141 (S.N.), wherein it was held that when the evidence showed that for a period of at least 70 years, there had been three trustees in the temple, one trustee from each of three families, th

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