(1) The petitioners who are two in number are hereditary trustees of sri sadashiva and sri ramaligeswaraswami temples situate in kunchavaram village, tenali taluk, guntur district. They were served by the deputy commissioner, hindu religious and charitable endowments, masulipatnam, with a notice dated 15th july, 1955, purporting to be issued under section 45 (2) of the madras hindu religious and charitable endowments act (xix of 1951) , hereinafter referred to as the act, by which they were called upon to submit their explanations to certain charges framed against them. Pending enquiry, by an order dated 5th october, 1955, they wer placed under temporary suspension and one pillutla sitharama sastry was appointed to discharge the functions of the trustees of the temples until further orders and he was asked to take charge of the properties belonging to them. The petitioners appeared before the deputy commissioner, hindu religious and charitable endowments, who is the respondent to this petition on several dates to which the enquiry stood adjourned. The enquiry was still pending however before the deputy commisioner when on 24th february, 1956, they filed the present petition under article 226 of the constitution seeking the issue of a writ of prohibitionor any other appropriate writ or order or direction restraining the respondent from proceeding with the enquiry. They challenge the jurisdiction of the respondent to conduct the enquiry on the following grounds : - firstly it is submitted that the office of hereditary trusteeship is by itself property within the meaning of article 19 (1) (f) of the constitution as ruled in narayanan nambudripad v. The state of madras, (1953) 2 m. Lj. 699. And that the provisions of sections 45 and 46 of the act in so far as they apply to hereditary trustees are repugnant to that provision. It is also alternatively contended that even if hereditary trusteeship is not an office, a trustee has a right to hold property within the meaning of that sub - clause of the article and is protected by it. Secondly, it is argued that there is an unjustifiable discrimination between trustees of temple property and trustee of mutts. While section 52 of the act enacts that the commissioner or any two or more persons having interest and having obtained the consent in writing of the commissioner may institute a suit in a civil court to obtain a decree for removing the trustee of a math or a specific endowment attached to a math, under section 45 the commissioner is empowered to suspend, remove or dismiss any hereditary trustee of a temple and a trustee so suspended, removed or dismissed is debarred from seeking redress in a court of law by the exclusion of the jurisdiction of a court "except under and in conformity with the provisions of the act. " this it is said is viola tive of the equality rule embodied in article 14 of the constitution.

(2) The second of these contentions is easily disposed of. In the first place, as pointed out by the learned government pleader, this ground of objection is not mentioned in the affidavit filed in support of the petition. It is therefore not open to the petitioner to raise an argument of this character for the first time at the stage of the hearing of the petition. Moreover, it is well - recognised that the position of a trustee of a math is in one important particular different from the position of a trustee of a temple. A trustee of a temple has no beneficial interest in the property belonging to the temple and of which he is the trustee. In srinwasachariar v. Evalappa mudaliar, (1922) 43 m. Lj. 536 :i. L. R. 45 mad. 565 at 581 (p. C.). The privy council, speaking of a dharmakartha of a temple, observed as follows : -.

"this is in truth the legal equivalent to trustee. The position of dharmakartha is not that of a shebait of a religious institution, or of the head of a mutt. These functionaries have a much higher right with larger power of disposal and administration, and they have a personal interest of a beneficial character. In the very learned judgments delivered in vidyapurna thirtha swami v. Vidyanidhi thirtha swami, (1904) 14 m. Lj. 105 : i. L. R. 27 mad. 435 the distinction between those functionaries is explained. But a dharmakartha is literally and no more than the manager of a charity, and his rights, apart it may be in certain circumstances from the question of personal support, are never in a higher legal category than that of a mere trustee."

(3) In the recent case of the commissioner of h. R. E. ,madras v. Sirur mutt, (1954) scj 335 : (1954) 1 m. Lj. 596 at 604 (s. C). Their lordships of the supreme court, noticing this difference made the following observations :

"as regards the property rights of a matadhipathi, it may not be possible to say in view of the pronouncements of the judicial committee, which have been accepted as good law in this country ever since 1931, that a matadhipati holds the math property as a life - tenant or that his position is similar to that of a hindu widow in respect of her husband's estate or of an english bishop holding a benefice. He is certainly not a trustee in the strict sense. He may be, as the privy council says, a manager or custodian of the institution who has to discharge the duties of a trustee and is answerable as such ; but he is not a mere manager and it would not be right to describe mahantship as a mere office. A superior of a math has not only duties to dischrge in connection with the endowment but he has a personal interest of a beneficial character which is sanctioned by custom asnd is much larger than that of a shebait in the debutter property. It was held by a full bench of the calcutta high court (vide manohar v. Bhupendra, (1932) i. L. R. 60 cal. 452 (f. B.). That shebaitship itself is property, and this decision was approved of by the judicial committee in ganesh v. Lal behary, (1936) l. R. 63 la. 448 : 71 m. Lj. 740. And again in bhabatami v. Ashalata. , (1943) 2 m. Lj. 70 : l. R. 70 la. 57 : i. L. R. (1943) 2 cal. 137 (p. C.). The effect of the first two decisions, as the privy council pointed out in the 1 ast case, was to emphasise the proprietary element in the shebaiti right and to show that though in some respects an anomaly, it was an anomaly to be accepted as having been admitted into hindu law from an early date. This view was adopted in its entitety by this court in angurbala v. Debabrata, ( 1951) s. C. J. 394 : 1951 s. C. R. 1125. And what was said in that case in respect to shebaiti right could, with equal propriety, be applied to the office of a mahant. Thus in the conception of mahantship, as in shebaitship, both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. 4. The personal or beneficial interest of the mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties ; and these and other rights of a similar character invest the office of the mahant with the character of proprietary right which, though anomalous to some extent, is still a genuine legal right."

(4) Then they proceeded to make an observation which is particularly relevant to both the points now sought to be made for the petitioners. They observe :

"there is no reason why the word " property " as used in article 19 (1) (1) (f) of the constitution, should not be given a liberal and wide connotation and should not be extended to those well - recognised types of interest which have the insignia or characteristics of proprietary right. As said above, the ingredients of both office and property, of duties and personal interest are blended together in the rights of a mahant and the mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. To take away this beneficial interest and leave him merely to the discharge of his duties would be to destroy his character as a mahant altogether. It is true that the beneficial interest which he enjoys is appurtenant to his duties and as he is in charge of a public institution, reasonable restrictions can always be placed upon his rights in the interest of the public. But the restrictions would cease to be reasonable if they are calculated to make him unfit to discharge the duties which he is called upon to discharge. A mahant's duty is not simply to manage the temporalities of a math. "

(5) I shall deal with the relevancy of these passages to the first point later. So far as the and point is concerned, it may be noted that a clear line of distinction between the office of a mere trustee, such as dharmakartha is, and that of a mahant or a shebait is brought out in these passages. A temple trustee, it may be said, has only duties while the trustee of a math has both duties and rights. The second excerpt makes it also clear that although he enjoys a beneficial interest in the properties belonging to the institution being a trustee in charge of a public institution, a matathipathi can be subjected to restrictions placed upon his rights in the public interest.

(6) It is thus clear first, that the legislature would be right in dealing with persons falling in each of these categories on a different footing and secondly that what may well be considered to be unreasonable restrictions in the case of a matathipathi may well be considered resonable in the case of a mere trustee. I observed in a recent judgment in w. P. No. 765 of 1955 as follows : -

"in my opinion, the standards of reasonableness in regard to restrictions must vary with the nature of the property held and the nature of the right by which it is held and that in cases where a person holds property for the benefit, so to say, of the public, (that is, as a trustee) , interference with it in the public interest may be held justifiable and therefore reasonable, on grounds which may not be considered reasonable where interference is sought with property in which the person holding it has a beneficial interest. In other words, what may be unreasonable interference when such interference concerns purely private property may be reasonable when it relates to property which in one sense belongs to the public."

(7) I therefore think that the legislature cannot be charged with discrimination in dealing differently with a hereditary trustee of a temple and the trustee of a mutt. On this reasoning also, apart from the fact that it is not open to the petitioner to raise this point, the petitioner's second contention must fail. I shall now turn to the first submission. It is true that in narayanan nambudripad v. The state of madras, (1953) 2 m. L. J. 699. Venkatarama ayyar, j. , (with the concurrence of the learned chief justice) held as a judge of the madras high court that "trusteeship, where hereditary, is in the nature of property". He also pointed out that the word "hold" in article 19 (1) (f) of the constitution is wider in its significance than the word "enjoy" and trustees who are in management of religious endowments can be said to hold 'office', - an obvious misprint, it seems to me, for the word 'property' - though they may have no beneficial interest to enjoy. In that case, the learned judges, were dealing with two contentions : firstly that the whole act was void as it vested the administration of religious endowments in a mere department of state and secondly that the provisions of certain schemes framed under the act inasmuch as they deprived hereditary trustees of substantive rights were repugnant to article 19 (1) (f) of the constitution. They held that the impugned act was not void on any ground and that the schemes framed under the act would be valid "except in so far as they operated to abridge the rights of the hereditary trustees in a manner obnoxious to article 19 (1) (f). " they directed that the various petitions under article 226 of the constitution with which they were dealing should be posted for further hearing on the merits in order to examine how far the several schemes required to be suitably modified in order that they may not be obnoxious to article 19 (1) (f). Sections 45 and 46 of the act, the validity of which is now in question before me were not dealt with by the learned judges separately. Nor they were dealt with by the supreme court in the decision cited above because their lordships were there concerned with a mutt and not a temple. But it is argued that the decision of the supreme court in ramanuj das v. State of orissa, (1954) s. C. J. 329 : (1954) 1 m. L. J. 591 (s. C.). Supports the contention of the petitioner on this point. In that case, the supreme court were dealing with the orissa hindu religious endowments act (iv of 1939) , which was very much on the same lines as the madras hindu religious endowments act, 1927, subsequently replaced by the madras act xix of 1951. Even there they did not deal with any provision similar to those of sections 45 and 46 of the act, now in question. However, in dealing with sectioas 38 and 39 of the orissa hindu religious endowments act of 1939 relating to the framing of a scheme, they made the following observations upon' which considerable reliance has been placed by the learned counsel for the petitioner :

"a scheme can certainly be settled to ensure due administration of the endowed property but the objection seems to be that the act provides for the framing of a scheme not by a civil court or under its supervision but by the commissioner, who is a mere administrative or executive officer. There is also no provision for appeal against his order to the court. Under section 58 of the madras act, although the scheme is to be framed by the deputy commissioner, an appeal lies against his order to the commissioner in the first place. A party aggrieved by the order of the cr mmissioner again has a right of suit in the ordinary civil court, with a further right of appeal to the high court. We think that the settling of a scheme in regard to a religious institution by an executive officer without the intervention of any judicial tribunal amounts to an unreasonable restriction upon the right of property of the superior of the religious institution which is blended with ,. His office. Sections 38 and 39 of the act must, therefore, be held to be invalid"

(8) In these observations, it is contended, the supreme court has laid down a test which should be applied to all cases of interference with religious institutions, viz, that mere executive officers should not be allowed to interfere with religious institutions without resort being permitted to aggrieved persons to courts of law and that a statutory provision authorising such an interference must be struck down as an unreasonable restriction upon the rights of property. I do not, however, read this judgment in the way in which the learned counsel for the petitioner would read it. In that case the observation that the particular provisions in the act amounted to an unreasonable restriction upon the right of property of the superior of the religious institution which is blended with his office shows clearly that their lordships were dealing with a mahant and his right of property in the endowments belonging to the institution. I may add that the decision in narayanan nambudripad v. The state of madras, (1953) 2 m. L. J. 699. Has not considered the difference noticed by the privy council in srlnlvasachariar v. Evalappa mudaliar, (1922) 43 m. L. J. 536 : i. L. R. 45 mad. 565 (p. C.). It would be a question whether in view of that decision, the view that hereditary trusteeship by itself without any right of enjoyment in any property could be held to be 'property' within the meaning of article 19 (1) (f) of the constitution. One may also venture to doubt whether if the word 'hold' is wide enough to include holding without the power of enjoyment. Every trustee who holds property - whether he is a hereditary trustees or not - should then be held to be equally protected. I ventured to express these doubts in my earlier decision already referred to. But even proceeding on the footing that the observations of the learned judges in that case are correct, i am prepared to hold that the power vested in the deputy commissioner and the commissioner under sections 45 and 46 of the impugned act is a reasonable restriction within the meaning of article 19 (5) of the constitution. For these reasons, the writ petition fails and is dismissed with costs. Advocate's fee rs. 100. Writ petition dismissed.