WJ_MALAitATiNE, J.— Lialasundaram v. Raman
what was decided was that in. a regular action by the hereditarytrustee against a trespasser for recovery of possession of thetrust property and damages consequent on the trespass, hecould also avail himself of the provisions of Section 112 andobtain a vesting order.
A vesting order is one that could more appropriately beincorporated in a final order made at the conclusion of summaryproceedings, under Section 387 of the Civil Procedure Code,which reads thus :— “The Court, after the evidence has beenduly taken, and the petitioner and the respondent have been
heardshall pronounce its final order in the matter of
the petition ” A regular action, on the other hand, ends
always in a decree. A decree may command the person againstwhom it operates to do certain acts or it may enjoin that personto abstain from specific conduct or it may declare a right orstatus—Section 217. It is difficult to see how a vesting ordercould be incorporated in a decree entered at the end of a regularaction. I am therefore of the view that when a person asks fora vesting order under Section 112, without asking for any furtherrelief, the appropriate procedure is by way of summary procedureunder Chap. XXIV of the Civil Procedure Code.
It has been argued by the appellants that the petitioner’sremedy is a regular action for a declaration that he is the soletrustee. The opinion of Keuneman, J in 42 N.L.R. at p. 561 isrelied upon for the proposition that “ a person who can establishthe fact that he is a trustee, can sue for the recovery of trustproperty from a trespasser, and it is not a necessary requisitethat he should have clothed himself with a vesting order beforeaction was brought.” In the earlier case of Thamotherawrypillcdv. Ramalingam1 (1932) 34 N.L.R. 359, Garvin, J. had taken theview that a person claiming to be a trustee could not sue inrespect of trust property before obtaining a vesting order, onthe principle that a plaintiff cannot rely on a title which he didnot have at the commencement of the action. Sansoni, J. took thesame view in Kandappa Chettiar v. Janakiammah2 62 N.L.R. 447.In that case the plaintiffs claiming to be the successors in officeto one P.C. instituted a regular action to be declared the trusteesof a Hindu temple. P.C. became trustee by virtue of a trust deedPI of 1905 executed by one Ponnukannu, the owner of the land.The. defendants pleaded that PI did not create a valid charitabletrust, that plaintiffs had no right to the land in dispute andtherefore could' not maintain the action in the absence of avesting order vesting the land in them. It was held that titleto the land was in the heirs of Ponnukannu, subject to the
1 (1932) 22 N. L. R; 239.
(I960) 62 N. L.R. 447.
Winter v. Ceylon Estate Staffs' Union
obligations of the trust ; that P.C. had never become vested withthe title to the land and that plaintiffs as successors in office ofP.C. had no title. It was also held that as the legal title was notin the plaintiffs at the commencement of the action, no vestingorder obtained subsequently, as a result of an amendment tothe plaint, cured the initial want of title. Sansoni, J. disagreedwith the opinion of Keuneman, J. as he had not given any reasonfor his conclusions, "and as he had not dealt with the principleapplied by Garvin, J. I am in respectful agreement with thisview of Sansoni, J. I therefore take the view that it is open toa person who claims to be the trustee of a Charitable trust, andwhere it is uncertain in whom the title to the trust property isvested, to obtain a vesting order under Section 112 of the TrustsOrdinance prior to the institution of a regular action for a dec-laration that he is sole trustee as against a rival claimant. Sucha vesting order may be obtained by instituting proceedings byway of summary procedure under Chap. XXIV of the CivilProcedure Code.
I dismiss the respondents’ appeal with costs. Summaryprocedure is intended to bring quick relief, if the petitioner isentitled to the same. But in this case, as a result of the inter-locutory appeal, nearly three years have elapsed after thelearned District Judge made his order in favour of the petitioner.The District Judge should therefore give priority to this caseand fix it for early hearing.
Rajaratnam, J.—I agree.
Appeal dismissed.