Judgement 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. 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 right with larger powers of disposal and administration, and they have a personal interest of beneficial character" (See Srinivasachariar v. Evalappa Mudaliar, (1922) ILR 45 Mad 565 at p. 581: (AIR 1922 PC 325 at p. 331). These functionaries have a much higher right with larger powers of disposal and administration, and they have a personal interest of beneficial character" (See Srinivasachariar v. Evalappa Mudaliar, (1922) ILR 45 Mad 565 at p. 581: (AIR 1922 PC 325 at p. 331). ) A dharmakartha was described to be literally no more than the manager of a charity and his rights are never in a higher legal category than that of a mere trustee. 5. If this principle of distinction is kept in mind, it would be easy to follow the later cases and appreciate some apparent inconsistency in them. In Ganesh Chunder Dhar v. Lal Bhery Dhar (1936) 63 Ind App 448: (AIR 1936 PC 318), a point that arose for decision was whether a testator could prescribe the rule of primogeniture for succession to shebaitship. Such a rule of succession had been found to offend the rule of Hindu Law in Juttendramohan Tagore v. Gnanadramohum Tagore (1872-1 Ind. App. Supp. 47). It was held that the same principle governed the rule of succession to shebaitship, and, so, the testamentary provision was held to be bad. That case arose under the Dayabhaga law. 6. Where the founder of Hindu private religious trust had made no provision to the succession of trusteeship beyond his son, it was held in Bhabatrini Debi v. Ashalata Debi, (1943) 70 Ind App 57: (AIR 1943 PC 89) by the Privy Council that the shebaiti on the son's death devolved upon the son's heirs and not upon the nearest surviving heir of the founder. 7. But, in a Full Bench decision of this Court in Manaithunaitha v. Sundaralingam, (1970) 2 Mad LJ 156: ( AIR 1971 Mad 1 ), the principle of Tagore's case, (1872) 1 Ind. App. Supp. 47 was held to be inapplicable to a bare office of trusteeship like that of a trustee of a temple or charity. It was perhaps in this background, that the Supreme Court described the proprietary element in shebaiti right as anomalous, the anomaly having been accepted by Hindu Law from an early date: per B.K. Mukherjee, J. in Smt. Angurbala Mullick v. Dababrata Mullick, AIR 1951 SC 293 at p. 296. That was a case of a shebaiti right and it was held that the succession would be governed by Hindu Law (Hindu Women's Right to Property Act, 1937, as amended in 1938). That was a case of a shebaiti right and it was held that the succession would be governed by Hindu Law (Hindu Women's Right to Property Act, 1937, as amended in 1938). The Supreme Court applied the same principle in Chockalinga Sethurayar v. Arumanayakam, 1969-1 SCR 874: ( AIR 1969 SC 569 ), in the case of trusteeship of a charity. That was incidentally an appeal from a decision of this Court. The same principle was applied by a Bench of this Court in Parameswaran Pillai v. Sivathanu Pillai, 1978-2 Mad LJ 19. 8. The law is thus clear, and I may add that no other rule of succession can be applied to a case of this kind. There are two ways of devolution of the office of dharmakartha or trustee. As laid down by this Court in Manaithunainatha Desikar's case, (1970) 2 Mad LJ 156 : ( AIR 1971 Mad 1 ) (FB), it is possible for a donor to prescribe any mode of devolution of trusteeship, untrammelled by any other restrictions as retards the nature of the estate. But when he does not do so, the devolution is governed by ordinary rules of Hindu law, statutory or otherwise. The right of succession to trusteeship cannot hang in the air. It has to be governed either by the arrangement made by the founder or by the general law. 9. The case of Sambandamurthi v. State of Madras, (1970) 2 SCR 424 : ( AIR 1971 SC 2363 ) is a case of application of usage in the matter of appointment of a trustee. The application of usage is in effect the application of the law. But, on the point as to whether the office of a hereditary trustee was property, as observed in that case, some doubt has been cast over this decision in Kakinada Annadana Samajam v. Commr. of Hindu Religious and Charitable Endowments, Hyderabad, AIR 1971 SC 891 . The question in that case was whether a statute enabling appointment of a Board of trustees by the Government or its officers in the case of a charitable institution managed by a hereditary trustee offends Article 19 or 31 of the Constitution. of Hindu Religious and Charitable Endowments, Hyderabad, AIR 1971 SC 891 . The question in that case was whether a statute enabling appointment of a Board of trustees by the Government or its officers in the case of a charitable institution managed by a hereditary trustee offends Article 19 or 31 of the Constitution. It was held that it will not offend the said Article, as such hereditary trusteeship was not 'property.' The problem whether the trusteeship is within the scope of the guarantee as regards property enshrined in the Constitution is beside the point here. Whether it is property in the constitutional sense or not, the personal law can provide for its succession and that is all what we are concerned with here. The decisions in Chockalinga Sethurayar v. Arumanayakam, (1969) 1 SCR 874 : ( AIR 1969 SC 569 ) and Parameswaram Pillai v. Sivathanu Pillai, (1978) 2 Mad LJ 19, clearly support the view taken by the Court below. There is no proof of any mode of devolution prescribed by the founder. The succession is thus to the last holder of the office. The widow and not a brother would be his heir. 10. The appeal is accordingly dismissed. No costs.