The widow of the last trustee was entitled to continue as the trustee of a hereditary temple trust, as she was the heir of the last trustee and there was no proof of any mode of devolution prescribed by the founder.

JUDGEMENT :- This second appeal has been filed by the plaintiff in O.S. No. 50 of 1975 in the Court of the Subordinate Judge of Nagapattinam. The suit was for declaration that the plaintiff was the hereditary trustee of Sri Meenakshisundareswaraswami temple, Vadavur village, and for recovery of possession of the temple and its properties. It was not in dispute that the temple is a public temple coming within the jurisdiction of the Hindu Religious and Charitable Endowments department. The temple was originally founded by the ancestors of the plaintiff and the defendant's husband. The office of trusteeship was last held by one V.R. Subramania Iyer, the elder brother of the plaintiff and husband of the defendant. The said Subramania Iyer died in or about 1964. On his death, his wife, the defendant, assumed management of the properties. At that time, the plaintiff was engaged in business in Delhi and other places of northern India. As the plaintiff had come back to the village, he wanted the defendant to hand over possession of the temple and its properties to him. Since his request was not complied with, he came forward with the present suit. In the written statement, the defendant contended that the plaintiff was not the hereditary trustee of the temple, and that, after the death of her husband, she was entitled to be the trustee. She claimed that the plaintiff had no cause of action to institute the suit. The trial Court decreed the suit upholding the claim of the plaintiff. The defendant appealed and the learned District Judge, Nagapattinam, held that the plaintiff had not satisfactorily proved that he was entitled to succeed to the trusteeship right, subsequent to the death of his brother, as the next person in order of succession. In Ex. B-1, dated 31-12-1973, which is a certified copy of the order passed by the Commissioner. H.R. and C.E. Department, the Commissioner has come to the conclusion that the defendant was entitled to continue to exercise her right to trusteeship as the hereditary trustee. The plaintiff has now come forward with the present appeal.

2. Mr. Chandramouli, learned counsel for the appellant, contended that this is a case in which the trusteeship was hereditary and that the hereditary principle should be applied from the time of the original founder. If so applied, according to him, the widow of the last trustee, that is, the defendant, would not be an heir to the founder, as she could only be the, heir to her husband and not of his other ancestors and, hence, the plaintiff alone was entitled to be the trustee. For the respondent, the submission was that in a case in which there was no document governing the rights of trusteeship and the defendant alone was the heir of the last trustee. Both parties relied on various decisions.

3. There is one aspect on which the parties appear to be really not in contest, and that is in regarding the trusteeship as a species of heritable property. The learned counsel for the appellant contends that he was the trustee and traces his right to trusteeship as the descendant of the original trustee Seshappier. The respondent traces her rights, to her husband, V.R. Santanam who was the last trustee. That the trusteeship is a heritable specie of property appears to be thus common ground, though it was not clearly and specifically so admitted. No other basis can be found for the respective contentions. How the trusteeship should devolve is alone in controversy.

4. The legal position may be examined even on the basis that there is some controversy on this point. The trustee in the context of this case is only a dharmakartha. The position of the dharmakartha was contrasted by the Privy Council with that of a shebait or head of a mutt in the following language:-

"This (dharmakartha) is in truth the legal equivalent to trustee. The position of dharmakartha is not that of a shebait of a religious institution, or the head of a mutt. These functionaries have a much higher righ