Balasundaram v. Raman
Present: Wimalaratne, J., and Rajaratnam, J.
R. BALASUNDARAM and 7 others, Appellants, and
K.L. RAMAN, Respondent
S. C. 359/69 (Inty.)-D. C. Chilaw, 10/Trust
Charitable trust—Two rival claimants to trusteeship thereof—Allegationby one of them that it is uncertain in whom the titleto the trust property is vested—Institution of proceedings by himby way of summary procedure• praying for a Vesting Order—Validity—Trusts Ordinance (Cap. 87), ss. 35, 76, 101, 102,112, 116—Civil Procedure Code, ss. 217, 387.
It is open to a person who claims to be the trustee of a charitabletrust, and where it is uncertain in whom the title to the trustproperty is vested, to obtain a vesting order under Section 112 ofthe Trusts Ordinance prior to the institution of a regular actionfor a declaration that he is sole trustee as against a rival claimant.Such a vesting order may be obtained by instituting proceedingsby way of summary procedure under Chapter XXIV of the CivilProcedure Code.
Appeal from an order of the District Court, Chilaw.
Thiagalingam, with C. Ranganathan and K. Kanag-Isvaran,for the 1st, 2nd and 4th to 7th respondents-appellants.
No appearance for the 3rd and 8th respondents-appellants.
II. W. Jayewardene, with N. Nadarajasunderam, L. C.Seneviratne arid Miss Ivy Marasinghe, for the petitioner-respondent.
Cur. adv. vult.
WIMALARATNE, J.—Balasundararzi v. Raman
June 28, 1972. Wimalaratne, J.—
The Petitioner claiming to be the sole trustee of the BadrakaliKovil in Munnessaram, instituted these proceedings by Way ofsummary procedure in the District Court of Chilaw, prayingfor a Vesting Order under Section 112 of the Trusts Ordinance(Chap. 87) on the ground that it was uncertain in whom thetitle to the trust property was vested. He complained that sinceAugust 1962 the eight respondents were wrongfully assertingthat they were entitled to officiate as trustees.
The respondents denied the petitioner’s claim to the trustee-ship. They also denied that the present application was one underSection 112, and challenged the right of the petitioner to haveand maintain these proceedings by way of summary procedure.
Two preliminary questions arose for determination by thelearned District Judge—namely, whether the application wasin fact one under Section 112, and if so whether the procedurewas correct. He answered both questions in favour of thepetitioner and the respondents have appealed.
Learned Counsel for the respondents-appellants have analysedthe several averments in the petition in order to demonstratethat it is not in fact an application under Section 112. Paragraph
avers that from about 1830 one Narayanan possessed the templeand functioned as trustee or kapurala and manager. Paragraphs
to 16 trace the devolution of trusteeship from Narayanan, andparagraph 17 asserts the petitioner’s right as the eldest maledescendant of Narayanan to be sole hereditary trustee accordingto long established custom and usage. Paragraphs 18 and 19deal with the wrongful acts of the respondents. Uncertainty oftitle to the trust property is pleaded in paragraph 20 in thefollowing words : — “ that thus it has become uncertain in whomthe title to the temple and temporalities belonging thereto isvested. ” The complaint of the appellants is that the petitiondoes not say how this so called uncertainty of title has arisen.The reply of learned Counsel for the petitioner is that one mustread the petition in its entirety to ascertain what it means.Uncertainty of title can be gathered, he contends, not only fromthe various averments in the petition, but also from the factthat Narayanan has left several heirs, whose names havetranspired in the pleadings.
The use of the word “ thus ” in paragraph 20 is unfortunate.It has the effect of conveying the meaning that b-y reason ofthe previous averments in the petition title was uncertain. Areading of the entire petition however leaves no room for doubtthat there was uncertainty as to the persons in whom title tothe trust property was vested, and Section 112 applied.
WlMAJL-AItATNE, J.—Balasundaram v. Hainan
Was the petitioner entitled to institute these proceedings byway of summary procedure ? Section 112 of the Trusts Ordinancereads thus : —
“ 112 (1). In any of the following cases namely: —
where it is uncertain in whom the title to any trust
property is vested ; or
the Court may make an order (in this Ordinance calleda “ Vesting Order ”) vesting the property in any suchperson in any such manner or to any such extent asthe Court may direct. ”
In the absence of rules regulating procedure made under Section116(2), “ all actions and other proceedings under this Ordinance ”are governed by the Civil Procedure Code—Section 116(1).Certain provisions of the Ordinance, such as Sections 101, 102provide for the. “ institution of an action ”, meaning thereby aregular action. Certain other provisions such as Sections 35, 76provide for proceedings “ by way of petition, without institutinga suit ”. But Section 112 is silent regarding procedure. Theabsence of an indication regarding the procedure to be adoptedled Moseley, J. to take the view, in Muthucumaru v. Vaithy (1937) 12 C.L;W. 9, that the Court cannot, except in proceedingsunder Section 101 or 102, make a vesting order under Section 112.But in Hunter v. Sri Chandrasekera 2 (1950) 52 N.L.R. 54, Dias, J.took the view that where a person asks for a vesting order underSection 112 without asking for any further remedy, the proceduremust be by way of summary procedure and not by way ofriegular action.
Two other cases relied upon by the appellants may be referredto. In Thambiah v. Kasvpillai 8 (1941) 42 N.L.R. 558, the actionwas in substance a claim by a person alleging that he held thelegal -title to the property, as against one who, he alleged, hadneither a legal nor an equitable title to the same. In the same-action he asked for a vesting order under Section 112 on the. ground that it was uncertain in whom the title to the variousproperties comprising the temporalities was vested. It was heldthat he could, in a regular action, also ask for relief underSection 112: This case is, however,. not an authority for theproposition that when a person seeks relief under Section 112for one of the two reasons specified in that Section without askingfor any other relief, he must do so in a regular action. Similarlyin. Anibalavanar v.1 Somasundera Kurukkal * (1946) 48 N.L.R. 61,
(1937) 12 O. L. W. 9.(1950)62 N. L. S.J4:
(1941) 42 N. L. B. 558.C1946) 48 N. L. B. 61:
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.