Present: Bertram C.J. and Porter J.KUMABASAMY XUBBUKAL v. KABTHIGESAKUBBUKAL213~-D. C. Jaffna, 15,446,
Hindu temple—Public charitable trust—Temple built tcith money collectedfrom the public and contributions of the Brahmins who collectedthe subscription—Are subscriptions gifts to the Brahmins 1—TrustsOrdinance, 1917, ss, 102 and 106—Instrument of trust.
In 1878 & Saivite reformer started a movement for building atemple on the site of an Ancient temple, and after his death threemembers of a Brahmin family (K and his sons S and T) in 1880collected subscriptions with the assistance of several leading Saivitesand rebuilt the temple. The Brahmins also contributed largely(20 per cent.) for this purpose. In 1896 the temple was dedicatedfor religious worship with the usual ceremonies. In 1898 a deedof managementwasformally executed whichprovidedfor the
management (or trusteeship) and its succession, for the appoint-ment and succession of the officiating priests, for the control ofthe temple ceremonies, the custody of its treasures, and the appro-priation of itspublicsubscriptions. Under thisdeed theright of
management was reserved to the founders S and T during -theirjoint lives, andto the surviving founder on thedeath ofeither of
them, and afterthemto plaintiff, eldest son of T, and soon. The
right to officiate as priestB was to belong to the three sons of T—plaintiff and the two defendants.
T executed in 1920 a formal transfer of his interest in all thetemple properly by way of donation to the plaintiff.
Plaintiff sued T for a declaration of title as owner of the templeand for ejectment. T pleaded that the temple was a publiccharitable trust. After the death of T, the two defendants weresubstituted defendants. They also prayed for a declaration thatthey were entitled to officiate as priests under the deed of 1898.
Held, that the temple was a public charitable trust, and thatthe defendants were entitled to a declaration as prayed for.
** There is certainly one formal defect in the situation. It istrue that there was a formal dedication, or, as the learned Judgeprefers to call it, consecration, of the temple, but no instrument-of truBt was executed appropriating the ..property for the purpose,of the trust. No Court of ’Equity, however, "would allow the greatprinciples it administers to be defeated by a- formal defect of thischaracter, and our own Ordinance expressly provides for thepoint," see-section 107.
“ It seems to me nothing less than fantastic to argue that thistemple was mainly the private property of Karthigesa and bissons unencumbered by anything in the nature of a public religioustrust, and that the various subscriptions …. are to be
( 34 )
considered as nothing more than gifts to pious Brahmins to beexpended in accordance with their uncontrolled discretion. ”
“ According to our law as declared and defined by the TrustsOrdinance, the jomtiiim of the property remains vested in thelegal owners, but is so vested on behalf of tho beneficiaries, andthe beneficiaries consist of that section of the publie for whosebenefit the trust was founded.”
“ Subject to any arrangement made by the founder, the right ofthe management of the foundation vests in the founder himselfand hisheirs,butthe founder himself is entitled to make express
provisionforitsfuturemanagement …. No doubt such
an arrangement for the management of the temple would inordinarycasesbe made inan instrument declaring its devotion to
religioususes,butthere isobviously no reason why it should not
be made in a separate instrument after the public consecration ofthe temple.”
rjlHE facts are set out in the judgment.
Elliot, K.C. (with him Balasingham and S. Bajaratnam), for defen-dants, appellants.
H. J. C. Pereira, K.C. (with him Bamarauoickreme and H. V.Perera), for plaintiff, respondent.
December 21, 1923. Bertram C.J.—
This is an actiou relating to the control and management of aSivan temple at Keerimalai, two miles north-west of Kankesanturai,Jaffna. It raises very important questions connected with thetitle and management of Hindu temples. The issues may best beappreciated by a consideration of the history of the foundation.The temple was built upon a spot long recognized as sacred. Itssite was the site of an ancient temple said to have been destroyedby the Portuguese, and there were local circumstances emphasizingits sanctify. In the year 1878, a certain Nalavar, a Saivite saintand reformer, started a crusade for the rebuilding of this ancienttemple and issued an appeal to the public. In the year 1880,three persons belonging to a Brahmin family, Karthigesa and histwo sons—Sabapathy and Thegaraja—took up this question andorganized a public subscription. Various leading Saivites interestedthemselves in the matter, and transfers were procured from variouspeople in whom the site was vested. In some cases these transferswere voluntary gifts. They were described as “ charity transfers, ”and recited that their object was to enable the donee to build “ aSivan temple on this land and the place next to this with his ownmoney and the money to be obtained by him from the people.An appeal for subscriptions was issued. It was in the most explicitterms an appeal on behalf of a public religious enterprise. “ Mayyou all Saivites, ” it declared, “ subscribe to your best ability to
( 36 )
conduct this act of charity.9' The religious feelings of those who1Mft.
might be supposed to be in sympathy. with the enterprise wereappealed to in the most eloquent language. Subscriptions were<XJ.
collected from all parts of the Colony, end even from places beyond Kwnara-its borders, and lists of the subscriptions were published. The*amy
persons responsible for the issue of these appeals and the issue ofthese subscription lists were the three persons above mentioned, Kurrukaland in one of the documents issued they declared that at therequest of several Saivite gentlemen “ my father, my elder brother,and myself started to build the temple at the locality selected byNavalar on an auspicious day . . . and are carrying on thebuilding work regularly.”
In 1889 Karthigesa, the senior of the three founders, died. Afurther appeal and subscription list was thereupon issued by histwo sons who gave an account of the expenditure. It appearedfrom this account that, among other objects; the suberiptions hadbeen used for the purchase of those portions of the temple site whichhad not been voluntarily given. Some 20 per cent, of the moneyraised appears to have been contributed by the founders themselves.
The documents issued in connection with this further appeal referto it with equal explicitness as a public religious charity. Inone Of the appendices to the document there is the followingappeal : —
“ Can we be careless of this good charity when the greatness ofthe temple, which contains the three beauties of ' Thalam/
‘ Moorthy,* and * Theertham,' is appreciated in ancientbooks ? Will not the number of the people who visit this* Holy Theertham 9 in a year amount to millions? If wemake these millions of people worship Nagulesar andNagulampikai after their bath in the 4 Theertham,' whowill be able to describe the results of it ?… .If
a charity of this nature lies incompleted, it can only beasserted to the defect of ourselves and our ancestors. Arefurther assurances required for us to get this 4 Thiruppani 'work completed without delay/'
In 1896 the temple was finished, and formally and publiclydedicated with the traditional ceremonies. Let us pause at thispoint to ask what was the result of all these proceedings. Canthere be the least question that the temple built as the result ofthese public subscriptions and donations and dedicated for religiousworship was a charitable trust within the meaning of Chapter Xof the Trusts Ordinance, No. 9 of 1917 ? Can it be disputed thatit was a trust for the benefit of a section of the public of the category(e) enumerated in section 99, namely, 4 for the advancement ofreligion or the maintenance of religious rites and practices " ? Canit be disputed that if the founders had not expended the money
( 36 )
MS. upon the temple, or had not formally dedicated it, a representativeBbbtram action could have been brought by persons acting on behalf of the •subscribers, with a view to having the trust executed ?
There is certainly one formal defect in the situation. It is trueKurrukalv. that there was a formal dedication, or, as the learned DistrictJudge prefers to call it, consecration, of the temple, but no instru-ment of trust was executed appropriating the property for thepurpose of the trust. No Court of Equity, however, would allowthe great principles it administers to be defeated by a formal defectof this character, and our own Ordinance expressly provides forthe* point. It declares by section 107 that 44 In dealing with anyproperty alleged to be subject to a charitable trust, the Courtshould not be debarred from exercising any of its powers by theabsence of evidence of the formal constitution of the trust, if itshall be' of opinion from all the circumstances of the case that atrust in fact exists, or ought to be deemed to exist/*
In view of all the circumstances I have recited, it seems to menothing less than fantastic to argue that this temple was mainlythe private property of Karthigesa and his sons unencumbered byanything in the nature of a public religious trust, and that thevarious subscriptions contributed as the result of these glowingappeals are to be considered as nothing more than. gifts to piousBrahmins to be expended in accordance with their uncontrolleddiscretion.
What then is the legal position up to this point ? According toHindu religious law, the position is perfectly clear. The templeis conceived as being the property of the deity to whom it is dedi-cated. Or, to put it in another way, the foundation, a$ in Bomanlaw, is personified, and the temple is conceived as belonging to thefoundation. We are no doubt authorized in these questions tohave regard to the religious law and custom of the communityconcerned (see Trusts Ordinance,* section 106 (ii)), but I take itthat in so ‘1 having regard * * we cannot subordinate to any such law orcustom our own express law. According to our own law as declaredand defined by the Trusts Ordinance, the dominium of the propertyremains vested in the legal owners, but is so vested on behalf ofthe beneficiaries, and the beneficiaries consist of that section of thepublic for whose benefit the trust was founded. Though there isa difference in form betwen our own conception and that of theHindu religious law, there is no difference" in substance.
I am totally at a loss to understand the contention that thistemple may be considered as something in the nature of whatMayne refers to as “ a private chapel in a gentleman’s park ”(Mayne’s Hindu Law and Custom, 5th ed.t 598) to which the publichave access, but which at any time may be closed at the will of theproprietor. Nor can I understand the view of the learned District
( 87 )
Judge that this temple is something between such a private chapeland an ordinary temple. A perusal oi the documents connectedwith its history seems to me to disclose, a public religious founda-tion of the most ordinary description.
Let us now resume to the history of the temple. It was completed Kurrukai tcand consecrated in 1896. The worship "proceeded in due course,but no formal arrangement had been made for the future manage-ment of the temple. This question was taken in hand and consulta-tions were held by those interested. The matter appears to havebeen gone into with the greatest care and intelligence, and in 1898a deed of management was formally executed.' This lengthydocument provided for the management (or trusteeship) and itssuccession, for the appointment and succession of the officiatingpriests, for the control of the temple ceremonies, the custody ofits treasures, and the appropriation of its public subscriptions.
What then Was the legal effect of this document ? Strictlyspeaking, it may not be 11 an instrument of trust ” within themeaning of the definition given in section 8 of the Trusts Ordinance.
It does not in form declare a trust, though it does so in substance,inasmuch as it recites the formal dedication (or consecration) ofthe temple to religious uses. There might be some fonnal difficulty,therefore, in treating it as an instrument of trust under section106 (i). This same section, however, authorizes the Court, forpurposes such as those with which this action is concerned, to haveregard not only to the " instrument of trust,” but also “ to thereligious law and custom of the community concerned.v
I pause at this point to note a defect of drafting in this section.
The governing words are “ In settling any scheme for the manage-ment of any trust under section 102 or in determining any questionrelating to (a) The constitution or existence of any such trust.. .. the Court shall have regard . . . 'The question
is, What is the meaning of “ such ” ? I take it to mean any trustof the nature of those dealt with section 102. This would excludeChristian religious trusts under section 102 (8), and trusts regulatedby the Buddhist Temporalities Ordinance under section 109. J donot think that the word “ such ** confines the application of theprovisions of the section to trusts which are actually the subjectof proceedings under section 102. If the word ” such ” were sointerpreted, the principles of law administered by the Court wouldvary according as it was dealing with a case under that sectionand a case outside it, and this could hardly have been theintention.
. 1 *
What then is the religious law with regard to the management offoundations of this kind ? It is perfectly clear that subject to anyarrangement made by the founder, the right of the management ofthe foundation vests in the founder himself and his heirs, but the26/7
( 38 )
founder himself is entitled to make express provision for its futuremanagement. See Gour’s Hindu Code, section 215:—
“ The founder is entitled to provide for the management of anyendowment created by him …. The founder Otan endowment naturally possesses the right to arrangefor its management. As such it is for him to set out ascheme of management, nominate trustees, give generaldirections as to the mode and manner in which he wishesto serve the object of his bounty. * *
The cases cited are mostly in a negative form, that is to say, theyassert the right of the heirs, subject to any arrangement which mayhave been made by the founder, but they all explicitly recite thefounder's powers. For an example of such an arrangement madeby the founder, see Jadu Nath Singh v. Sita Ranji.1 There can beno doubt that Dr.' Gour accurately states the law. No doubt suchan arrangement fpr the management of the temple would in ordinarycases. be made in an instrument declaring its devotion to religioususes, but there is obviously no reason why it should not be madein a separate instrument after the public consecration of the temple.To suggest that the right of the founder must be exercised contem-poraneously with the foundation and cannot. be exercised in asubsequent independent instrument would be a mere technicalfutility. It appears to me clear, therefore, that this deed ofmanagement, executed by the two surviving founders—Sabapathyand Thegaraja—governed the subsequent management of thereligious trust. There was no necessity for any acceptance on thepart of anybody else.
Under this deed the right of management was reserved to thetwo founders during their joint lives and to the surviving founderon the death of either of them. After the death of the founders,it was to go to Kumaraswamy, the eldest son of Thegaraja, andafter his death to his eldest male descendant. Various provisionswere made for the subsequent devolution of the managementship.The right to officiate as priests was provided for according to arotation. It was to belong to the three sons of the founder.Thegaraja, namely, Kumaraswamy, the present plaintiff, and thetwo present defendants who were to exercise these functions forperiods of ten days each at a time. For twenty-two years themanagement of the temple proceeded in accordance with this deed.It is recited and referred to in several subsequent documents—P 4<lated 1902 and D 9, D 10, D 11 dated respectively 1903, 1907,1911. These all refer to supplementary dedications in connection■with the temple.
What was the position of' the title to the temple under this deed ?The legal ownership, as I have above explained, was in Sabapathy
1 (1917) I. L. R. 39 AUa. 553.
( 39 )
and Thegaraja, the two sous of K'arthigesa. By reserving to ttt&themselves the management under this deed, they, in effect*appointed themselves as trustees of the properly. In Hindureligious law, the manager is the trustee. Although the property is Ruman«*conceived of as vested in the deity, the manager has all the powers ofa proprietor subject to a trust! and according to Hindu religious law RoriMgesa'the control of the property passes with the office (see Mayne, p. 601),
According to our own law, however, the legal ownership is actuallyvested in the trustee, but it does uot under ordinary circumstancesdevolve with the office. This only takes place in certain definedcases (see section 113 of the Trusts Ordinance and in particularsub-section (2)). In cases within that section, upon the executionof a prescribed memorandum of appointment, the trust propertypasses from trustee to trustee without the necessity of any convey-ance or vesting order. That sub-section, however, does notprovide for trusteeships which under the instrument of trustdevolve according to a family succession. Upon the death of atrustee holding office under such an agreement, the legal ownershipdoes not pass to the new trustee, but in the absence of any formalinstrument it would pass to the trustee’s heirs, and in the absenceof a transfer the only way of vesting it in a succeeding trustee isto obtain a vesting order under section 112. It will thus be seenthat in a trust of this' sort confusion is always iikelv to arise on< thedeath of a trustee, unless he provides for the devolution of thetrust property either by will or by an instrument executed duringhis lifetime. If he does not do so, the legal ownership passes tohis heirs. The heirs, it is true, hold .it subject to the trust and canbe made to transfer the legal ownership to the new trustee,, but itmust always be very troublesome to induce them tp do so.
It was, no doubt, in anticipation of such troubles as these, thatin 1917, the year of his death, Sabapathy, one of the two jointfounders, formally conveyed by deed of donation his interests inthe temple to his brother Thegaraja. Had he -not done this, hisshare in the legal ownership would have passed to his daughters.
Fortunately he executed this deed before his death, and the legalownership of his share accordingly passed to his brother Thegaraja.who now remained sole manager and trustee.
In 1920 Thegaraja proceeded to follow the example of hisbrother Sabapathy. He was advancing in years, and might, in thenatural course, die at an early date. His'successor in the trusteeshipaccording to the deed of management was to be* his eldest son,Kumaraswamy, the present plaintiff. Accordingly on September 9,
1920, be executed a formal transfer of liis interest in" all the templeproperty by way of donation to the plaintiff. As he explains inhis evidence given in the preliminary proceedings in this case, Iexecuted P 1 in favour of plaifitiff so as to prevent quarrels, asthere would be, if the property devolved on my children.
( 40 )
Neither in the deed o£ donation by Sabapathy to Thegaraja*nor in the similar deed by Thegaraja to his son, was any mentionmade of the trust, nor was any mention made of the devolution ofthe trusteeship. The notary pursued the simple and, in the circum-stances, the efficacious course of dealing only with the legal owner-f ship. It can easily be understood that he would prefer not to enterinto the unfamiliar atmosphere of the law of trusts. It was under-stood between – Thegaraja and his son that the former was to retaimthe actual management of the temple for the rest of his life. Thisthe son himself admitted in some Police Court proceedings withina few weeks of the transfer to himself. After a very short interval,however, the plaintiff repudiated this position, and on December.16, 1920, within three months of the deed in which the legal owner-ship had been conveyed to him by his father, he brought an actionagainst his father basing his case purely upon this bare legal owner-ship, demanding a declaration of title and the ejectment of hisfather from the premises. He professed to know nothing whateverof the deed of management under which the temple had beenconducted for the previous twenty-two years.
The defendant Thegaraja died in the course of the action, butafter he had given evidence in the proceedings for an interiminjunction, and the plaintiff's two brothers, who under the deed ofmanagement discharged the duties of officiating priest in rotationjointly with the plaintiff, were substituted as defendants. Theposition, therefore, is that the plaintiff claims the temple as hisabsolute property free from any trust, to manage and dispose ofin his own free discretion, and therefore demands possession of theproperty. The defendants claim that plaintiff holds the legalownership subject to the trust, and that they have a right to remainupon the property as officiating priests in pursuance of the deed of, management.
These are the facts, and notwithstanding the very careful .judgmentof the learned District Judge, I find it difficult to see hew the claimof the plaintiff can receive any very serious consideration. I cannotbelieve for a moment that he knew nothing about the deed ofmanagement, but even if he did not he is still bound by the trust.He is a mere donee and not a purchaser for value without notice.The devolution of the trusteeship is governed by the deed of manage-ment. The capacity in which he now holds the property on thedeath of his father is that of trustee, and the legal ownership isvested in him subject to the trust, and under that trust, as definedby the deed of management, he is bound to allow his brothers toofficiate as priests, and for that purpose to remain in the templepremises. It is urged that various dispositions of property havebeen made in connection with this temple which ignore the trustand treat the title as though it were one of ordinary ownership.It is also urged that many temples in the Jaffna District seem to
( 41 )
have been treated in documents and Fiscal's sales as though they 1928* .were private property, but all this only shows that the subject of Bertramreligious trusts is imperfectly understood in the notarial and legalprofessions.KwmZm-
The proceedings of the plaintiff seem to me unconscionable from^
start to finish. What he is entitled to is a declaration that he is Karthiout*owner and proprietor of the land and premises with the temple*
standing thereon, but subject to a religious trust under which thesaid temple was founded, and subject to the provisions of the deedof management executed in 1898 by two of the original fpunders.
Hie defendants are entitled, on their side, to a 'declaration thatthey are entitled to officiate in the said temple in pursuance of thesaid deed and to enjoy the emoluments prescribed by the said deed.
The appeal, in my opinion, should be allowed with costs, both inthis Court and in the Court below.
Porter J.—I agree.
KUMARASWAMY KURRUKAL v. KARTHIGESA KURRUKAL