Sadasivam, J. - Appellants filed an application under section 57 (b) of the Madras Hindu Religious and Charitable Endowments Act XIX of 1951, hereinafter referred to as the Act, before the Deputy Commissioner claiming to be the hereditary trustees of Sri Balasubramaniaswamy Temple, Narayananaicken St., Komaleswaranpet, Madras-2. The learned Deputy Commissioner has held by his order Exhibit B-10 that the office of the trustee of the suit temple is not hereditary and that the appellants are not hereditary trustees. The appellants unsuccessfully appealed to the Commissioner for Hindu Religious and Charitable Endowments, Madras, as seen from the order Exhibit B-14. But in dismissing the appeal, the Commissioner made an observation that the Area Committee will select trustees from the members of the Somavamsam Bhuja Kshatriya Kulam. The appellants filed this Suit O.S. No. 411 of 1960, on the file of the City Civil Court, Madras for setting aside or cancelling the order of the Commissioner and to recognise their claim to the hereditary trusteeship of the suit temple, to declare that they and other members of the Somavamsam Bhuja Kshatriya Kulam or caste as a religious denomination exclusively own and conduct the affairs of the temple through their representatives and for an injunction restraining the Commissioner for Hindu Religious and Charitable Endowments, Madras, from enforcing the provisions of the Madras Act XXII of 1959 inclusive of the provisions relating to the appointment of trustees so as to interfere with the rights of the said religious denomination and for costs.

2. The learned III Assistant Judge, City Civil Court, Madras, negatived the claim of the appellants that they are the hereditary trustees of the suit temple. He, however, found that the suit temple was a denominational one, having been established by the people of Somavamsam Bhuja Kshatriya Kulam who hailed from Nepal and settled down in Chinta-dripet and Triplicane, Madras, and founded the suit temple solely for their benefit, but refused to grant a declaration to that effect, as no notice was given under section 80, Civil Procedure Code. In the result, he dismissed the suit with costs and the plaintiffs have preferred this appeal.

3. We have already referred to the fact that the appellants filed an application before the Deputy Commissioner for Hindu Religious and Charitable Endowments only under section 57 (b) of the Act, and not under section 57 (a) of the Act as to whether the suit temple is a religious institution within the meaning of section 6 (15) of the Act. No notice under section 80, Civil Procedure Code, is required in respect of a statutory suit to set aside or cancel the order of the Commissioner under the provisions of the Act. Even assuming that such a statutory suit could be combined with a suit in which the applicability of the Act to the suit temple is challenged, the requirements of the valid institution of the later suit should be complied with. Relying on the decision in Govinda Menon v. Union of India1, this Court has in Santhana Gopala Chettiar v. Seethararna Chettiar2and in the subsequent unreported decision in M.S. Rathnavelu Mudaliar and others v. Commissioner, H.R. &38; C. E., Madras3, held that the Commissioner of the Madras Hindu Religious and Charitable Endowments, while functioning under the provisions of Act XXII of 1959, functions only as a public officer or Government servant, and as such the provisions contained in section 80, Civil Procedure Code, will apply to him. In view of these decisions Sri K.E. Raja-gopalachari, the learned Advocate for the appellants, did not question the correctness of the decision of the trial Court that notice under section 80, Civil Procedure Code, is necessary and he confined his arguments in this appeal solely to the question whether the appellants are the hereditary trustees of the suit temple.

4. A hereditary trustee of a religious institution as defined in section 6 (9) of the Act includes th

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