These two petitions are filed by the petitioner, who is the hereditary trustee of the two temples for the issue of writ of mandamus directing the Commissioner, Hindu Religious and Charitable Endowments, Madras, to forbear from making any appointment of non-hereditary trustee for the two temples except in accordance with the provisions of section 47 (2) of the Hindu Religious Endowments Act, 1959.

In 1933 the Board of Commissioners for Hindu Religious Endowments filed the suit, O.S. No. 7 of 1933 in the Court of the District Judge of East Thanjavur, Nagapattinam, for modifying the schemes already framed in respect of the suit temples against the petitioner’s father and three others on the ground that they were mismanaging the temples. A decree was passed in that suit on 23rd April, 1935 framing a revised scheme. The scheme provided for the appointment of a Board of three trustees, one being the father of the petitioner as the hereditary trustee and two other trustees who were to be non-hereditary trustees. Subsequently the Hindu Religious and Charitable Endowments Act of 1951 was passed repealing the 1926 Act. But the new Act provided that all the schemes settled under the 1922 Act shall be deemed to have been settled under the corresponding provisions of the Act. Thus the scheme framed in the suit was deemed to have been settled under the 1951 Act. Subsequently the 1959 Act was passed and it also provided that the schemes that were deemed to have been settled under the Act of 1951 shall be deemed to have been settled under the corresponding provisions of the 1959 Act.

After the 1959 Act came into force on 9th September, 1960 the Commissioner, Hindu Religious and Charitable Endowments appointed one Radhakrishna Naidu as the trustee for a period of 5 years in pursuance of the scheme, read with section 47 of Act XXII of 1959. On 6th October, 1960 another non-hereditary trustee was appointed under the same provisions. On 29th June, 1965 the Assistant Commissioner issued a notice calling for applications for appointment as non-hereditary trustees for the two temples. This notification is challenged as being contrary to the provisions of section 47 (2) of the Act and therefore illegal.

According; to the scheme that was framed in the suit, O.S. No. 7 of 1933 it: was provided that there should be three trustees, one hereditary trustee and two non-hereditary trustees. Section 118 (2) (b) of the Act provides that if any provision contained in any scheme settled or deemed to have been settled under the Madras Hindu Religious Endowments Act, 1926, including a scheme settled under section 92 of the Code of Civil Procedure, and in force immediately before the 30th September, 1951 is repugnant to any provision contained in this Act or the rules made thereunder the latter provision shall prevail and the former provision shall to the extent of repugnancy be void. As a result of this provision if any clause or provision in the scheme framed in the suit is repugnant to the provisions of Act XXII of 1959 or the rules made thereunder those provisions shall be void. The provision which is stated to be repugnant to the scheme in the suit providing for appointment of a hereditary trustee and two non-hereditary trustees is section 47 (2) of the Act. Section 47 (2) provides that where in the case of any institution included in the list published under section 46 having a hereditary trustee or trustees, the Commissioner after notice to such trustee or trustees and after such inquiry as he deems adequate, considers for reasons to be recorded, that the affairs of the institution are not, and are not likely to be properly managed by the hereditary trustee or trustees, the Commissioner may, by order, appoint such number of non-hereditary trustees as he thinks necessary. According to this sub-section in an institution having a hereditary trustee if the Commissioner after notice to the trustees and after such enquiry as he deems adequate considers that th