Rajamannar, C.J.-This is an appeal against the Judgment of Subba Rao, J., in W.P. No. 840 of 1951 which was filed under Article 226 of the Constitution for the issue of a writ of certiorari or other appropriate order to quash the order of the Commissioner, Madras Hindu Religious and Charitable Endowments, dated 19th October, 1951, appointing one C. Subramaniam Chetty as a Trustee of Sri Parthasarathi Swami Devasthanam, Triplicane, in the vacancy caused by the expiry of the term of the trustee, Sri V. Ranganadham Chetty. The petitioners are two Thengalai worshippers interested in the said temple.

Sri Parthasarathi Swami Temple is a famous and ancient Vaishnavite temple in Triplicane in Madras City. The administration of the temple has been in accordance with a scheme framed by this Court in C.S. No. 527 of 1924. The scheme inter alia provides that the management and affairs of the temple shall be’ carried on by a body of dharmakarthas under the supervision and control of a Board of Supervision. The dharmarkarthas shall be three in number, of whom one shall be a Brahmin, one an Arya Vysia (Komatti) and one a Non-brahmin not Arya Vysia. The dharmakartha shall hold office for a period of five years from the date of his appointment. The retiring dharmakartha is however re-eligible for office provided he is at the time of his re-appointment eligible for such office under the other provisions of the scheme. The dharmakarthas shall be elected by persons whose names are included on the date of the election in the list of voters maintained at the temple. The qualifications necessary for a person to be registered in the list of voters are that he should be (a) a Vaishnavite of the Thengalai sect; (b) of the male sex; (c) of the age of 21 years or upwards; (d) resident of Triplicane within specified boundaries for at least six months immediately preceding the publication of the year’s preliminary electoral roll and (e) able to sign his name. The qualifications for being appointed as dharmakartha are also mentioned in the scheme as well as the disqualifications. Elaborate rules for the conduct of the elections are laid down in the scheme.

The Madras Hindu Religious and Charitable Endowments Act (XIX of 1951) came into force on 1st October, 1951. The period of office of one of the dharmakarthas, namely, Rao Bahadur V. Ranganadham Chetty, expired by eflux of time on 12th October, 1951. Under the scheme the vacancy had to be filled up by election. But the Commissioner of the Hindu Religious and Charitable Endowments passed on 19th October, 1951, the following order:

“In exercise of powers vested in him under sections 39 (1) and 42 of the Madras Hindu Religious and Charitable Endowments Act, 1951, the Commissioner is pleased to appoint Sri C. Subramaniam Chetty as a Trustee of the above Devasthanam in the vacancy caused by the expiry of the term of Trustee of Sri V. Ranganadham Chetty.”

It is this order that the petitioners sought to set aside on several grounds of which the following were pressed before Subba Rao, J., who heard the petition, namely,

(1) The Commissioner has no power to appoint a trustee under section 42 in a case where the appointment of a member is regulated under a scheme by way of election.

(2) Section 42 has no application as the trustees of the temple are hereditary trustees.

(3) The order appointing the second respondent as trustee affected the petitioners’ fundamental right to vote, which is property within the meaning of Article 19 (1) (f) of the Constitution of India.

The learned Judge rejected grounds 1 and 3 but upheld the second objection and held that sections 39 and 42 had no application as the trustees of the temple were hereditary trustees. He quashed the order of the Commissioner and directed him to hold an election to fill up the vacancy in accordance with the provisions of the scheme. The appeal against that order is by the Commissioner of Hindu Religious and Charitable Endowments, Madras.

The learned Advocate-Gener

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