Masson v. Mathes.
1938Present: Moseley, Keuneman, and de Kretser JJ.
MASSON v. MATHES.
139—D. C. Negombo, 9,998.
Roman Catholic Church-Property bequeathed to St. Peter’s Church-appoint-ment of trustees—Right of Archbishop to sue without vesting order—Trusts Ordinance, s. 112.
The church of St. Peter at Negombo was built on private land and.the owners of the land in April, 1864, transferred the land and thebuildings thereon to the Archbishop of Goa, the Primate of the Eastand his successors in office, of the Portuguese Mission of the RomanCatholic Church.
After the Portuguese Mission had withdrawn from Ceylon by arrange-ment in favour of the present Mission, the Arachbishop of Colombo hasbeen in effective control of St. Peter’s church and has received its incomeand generally administered its affairs.
In 1900 C. P. by last will devised a share of. a certain land to St. Peter’schurch and provided that two persons named as executors and J. P.and their successors should be in charge of the land, spend for its im-provement and upkeep, and give all the remaining income to the church.
It was established that the' persons named in the will regularly gavethe income to the Archbishop of Colombo.
In this action the Archbishop as plaintiff claimed that as such he wasvested with the care and charge and control of the church and prayedfor an accounting from the defendant, who was in possession as asuccessor.~~
Held, that the Archbishop of'Colombo was entitled to maintain theaction as manager of the property and de facto trustee.
HE land, on which was built the church of St. Peter at Negombo,was gifted in 1864 by the owners to the Archbishop of Goa and
his successors, who were the spiritual chiefs of the Portuguese Mission inCeylon. This mission was under the patronage of the King of Portugal.In pursuance of an instrument, which was not notarially executed,between the Pope, the King of Portugal and other ecclesiastical personagesconcerned, the Portuguese Mission handed over the keys and left the
Masson v. Mathes.
Island. On the invitation of some of the members of the church, theArchbishop of Colombo appointed a Parish priest to that church andsince 1888 he has been in effective control of St. Peter’s and has receivedits income.
In 1900 by last will Clara Pinto devised a share of a land to the churchof St. Peter, and provided that Juan Fernando, Anthony Mathes, andJuan Pinto and their heirs should be in charge of the land, spend for itsimprovement and upkeep, and give all the remaining income to thechurch. For a considerable time the income was handed over to theArchbishop. In 1930, John Fernando who was managing the land wassued by the Archbishop for an accounting. The former contested therights of the latter, but as judgment went against John Fernando, hehanded over – the land to the defendant. The present action for anaccounting was filed by the Archbishop against the defendant who deniedthe rights of the plaintiff. The learned District Judge held against thedefendant.
H. V. Perera, K.C. (with him E. B. Wikramanayake), for defendant,appellant.—The question in this appeal is whether the plaintiff canmaintain this action. The grantees of the will of Clara Pinto are liableto account to the church of St. Peter at Negombo. The Archbishop ofColombo is “ vested in charge, care and control of the church ”. If he isthe trustee he can maintain this action. The land on which the churchwas built had been gifted to the Archbishop of Goa and his successors.In pursuance of an agreement it was vested in the Archbishop of Colomboby an instrument which is not notarial and therefore invalid under section2 of the Prevention of Frauds Ordinance, No. 7 of 1840. Hence theArchbishop of Colombo is not the trustee and cannot maintain this action.
If there is no trustee, one must be appointed. A vesting order couldbe obtained from the District Judge.’ Under the law of Ceylon onlythe Archbishop of Goa can sue. Further, the plaint does not disclosehow the title was vested in the Archbishop of Colombo.
[Keuneman J.—Is not the Archbish'op of Colombo the de factotrustee?]
Yes, but a de facto trustee cannot maintain this action. The trans-ference of the temporal powers of the Church is discussed in The MannarChurch Case The spiritual rights of the Archbishop of- Goa are extinct,but not the rights as trustee. A person cannot prescribe to a trusteeship,nor can charitable trust property be prescribed. In the eyes of the law,there is always a trustee.
The defect in title could not be cured by obtaining a vesting orderafter the institution of the case, as held in Thamotherampillai v. Rama-lingam et al' The Ordinance for the Incorporation of the RomanCatholic Archbishop and Bishops in Ceylon, No. 19 of 1906, was passedto counteract the decision in Van Reeth v. de Silva', which held that asthe Archbishop was not a corporation sole, the property of an Archbishopon his death did not pass to his successor in office.
Even if the person in possession had given the income to the Archbishop,
it Would not constitute a trusteeship.
> (1890) 1 8. C. B. 107.• (193S) 34 N. L. B. 359.
* (1903) 3 N. L. B. 97.
DE KBETSER J.—Matson «. Mathes.
A. L. J. Croos; Da Brera (with him .Kingsley Herat and S. N. B.Wijeyekoon), for substituted plaintiff, respondent.—The plaintiff is notclaiming title to the land. It is merely a claim for a legacy. The personwho is the head of St. Peter’s church is entitled to receive it and it isimmaterial whether he is the owner or not. The Archbishop not onlyexercises spiritual dominion, but also temporal power. Siijce 1890 theArchbishop was in possession. The land on which the church has beenbuilt was given to the Archbishop of Goa and the trust is in favour of allthe Catholics in the Island. The Goanese Mission had abandoned thetrust and the land was given to the successor in office and the benefi-ciaries concurred.
The state recognizes the Church—See 11 Halsbury (1st ed., p. 356).It was so held in Godinho v. Mrs. Koning It was held in Attorney-Generalv. Calvert ‘ that the intention of the testator should be carried into effectas far as possible.
The property belongs to the Church and can be wrested back from animpious possesso'r by the steward of the Church according to VoetVI.1.29—Cassie Chitty’s Translation p. 49. A broad meaning must, begiven to the steward or like person. See The Baptist Missionary SocietyCorporation v. Jayawardene *. A trustee can retire-from office accordingto 28 Halsbury (1st ed., p. 111). It was held in Changarajnllai v. Chelliah*,that a manager of a Hindu temple could maintain a possessory action.It was decided in Mascoreen v. Genys * that the Christian Church couldmaintain a possessory action. The rights of a de facto trustee arediscussed in Sivapragasam v. Swaminatha Ayar ‘; Sidharta' Unanse v.Udayara Abdul Azeez v. Abdul Rahiman*. Effect has been given tothis view by sections 106, 107, 113 of the Trusts Ordinance, No. 9 of 1917.Counsel cited Von Savigny’s Right of Possession, p. 10.
A vesting order under section 112 of the Trusts Ordinance is notnecessary in this case.
H. V. Perera, K.C., in reply—The Prescription Ordinance applies toimmovable property. The fundamental requirement is that the plaintiffmust have title to maintain the action. The Archbishop cannot be thetrustee unless he has the legal title. If he is a trustee de son tort he hasno legal rights. According to Changarapillai v. Chelliah (supra) a personin charge of the church can bring a possessory action or a vindicatoryaction as against a trespasser. In that case the manager of the temple'was merely trying to regain possession.
The action rei vindicatio is defined in Voet VI.1.2—Cassie Chitty’sTranslation, p. 10.
Cur. adv. vult.
December 23, 1938. de Kretser J.—
In the early part of the last century there seems to have existed inCeylon a branch of the Roman Catholic Church known as the PortugueseMission, which was under the patronage of the King of Portugal and theadministrative head of which in Ceylon was the Archbishop of Goa.
» (1846) 1843-1865, Ram. Rep. 132.5(1862) 1860-62, Ram. Rep. 195.
(185?) 23 Beacon 248.•(1905) 2 Bol. Rep. 49.
(1918) 20 N. L. R. 859, at 364. 365.7(1919) 6 C. W. R. 29.
(1908) 6 N. L. R. 270.*(1911) 14 N. L. R. 317.
DE KRETSER J.—Masson v. Mathes.585
During this period the church of St. Peter at Negombo was built onprivate land, and the owners of the land, transferred “ the said portionof garden and the chapel and all the buildings standing thereon” onD 12 of April 22, 1864, to the Archbishop of Goa, “the Primate of theEast and his successors in office, and the Vicars Capitular, Metropolitanand Primatial Diocesan ”, upon trust and sfibject to the condition thatcertain burials should be allowed and that he should “permit and sufferthe said chapel to be used, occupied and enjoyed as for the publicreligious worship of God by Roman Catholics in this Island under theright of the Royal patronage ”.
The present branch of the church had meanwhile begun its work inCeylon, and at a later date by arrangement between the Pope, the Kingof Portugal, and the different ecclesiastical personages concerned, thePortuguese Mission withdrew from Ceylon in favour of the present missionand the priest in charge of St. Peter’s, having received instructions,handed over the keys and all the temporalities in the presence of the prin-cipal members of the Church to “the chief lay officer of the Church,Mihidukulasuriya Domingo Tissera Mooppo”, on January 26, 1887—(D 4).
In February, 1888, a number of the members of the congregation“ who were (had been) under the spiritual administration of theArchbishop of Goa ” addressed a letter (D 8) inviting the Archbishop ofColombo to admit them to His Lordship’s spiritual administration.The letter contained this passage : —“ As we the parishoners weretransferred to the Archdiocese of Colombo in accordance with the decreegranted by His Holiness the Pope Leo XIII. of Rome, the SupremeShepherd of the Holy Church, we while esteeming the said decree dorespectfully declare that we remain as long as we live as obedientCatholics to His Holiness the Pope of Rome, the Vicar of Christ, and inthe name of His Holiness to Your Grace the Archbishop of Colomboand to all heads appointed by His Holiness to the Archdiocese of Colombohereafter ”.f
The Archbishop of Colobibo accepted the invitation by his letterda'ed June 6, 1888, in which he recited that by a Concordat concludedbetween the Holy See and the Crown of Portugal on June 23, 1886,the right of patronage heretofore exercised by the King of Portugal wasby mutual consent declared extinct in Ceylon, leaving it to His Holinessthe Pope to take such measures as in His wisdom he might consider justfor the good of the faithful. He went on to say that,, the Pope hadelevated Colombo to the Archiepiscopal dignity, and that the TitularArchbishop of Cesarea had, by a decree issued on January 2, 1887,“ declared the provisional extraordinary jurisdiction of the Archbishopof Goa to be extinct in Ceylon and ordered the Goa clergy in virtue ofobedience due to the Holy See to submit to the jurisdiction of theArchbishop of Colombo and the Bishop of Jaffna respectively, an orderto which they submitted with the sanction of the Archbishop of Goa”.The Archbishop of Goa had on March 21, 1887, declared that “ he had nomore any jurisdiction in Ceylon”. The Archbishop of Colombo, afterreciting all these facts, appointed the Very Revv Fr. Dominic Pulicani,
O.M.I., second Vicar-General and Fiscal Procurator, to visit St. Peter'sand administer the Sacraments. Rev. Fr. Griaux as Parish Priest,40/ 4’1
DE KRETSER J.—Masson v. Mathes.
and the Very Rev. Fr. Pulicani seem to have taken possession of thechurch, and thereupon Domingo Tissera, to whom it will be rememberedthe keys bad been handed over, brought an action against them and twoothers named Manuel Costa and Juan Fernando.
The case went up, on appeal and the Supreme Court, consisting ofBurnside C.J. and Clarence J., decreed that the plaintiff’s action shouldbe dismissed. A copy of their judgment has been filed, and it shows thatthe action had been a possessory action and that it had been dismissedbecause Domingo Tissera was. only a caretaker. This decree was in 1889.
The evidence makes it quite clear that from 1888' the Archbishop ofColombo had been in effective control of St. Peter’s and had received itsincome and generally administered its affairs through the priest of anadjoining church and, for a period, with the assistance of a Committee ofchurch members.
In 1900 by last will Clara Pinto devised a share of the land calledMadampellawatte to the “ Church of St. Peter’s ” and provided that JuanFernando, Anthony Mathes, executors, and Juan Pinto should be incharge of the land, spend for its improvement and upkeep, and give allthe remaining income “ to the said Church
The will provided for their successors and, rather inconsistently,ordained that if no heir or descendant remained the said portion of theland was to “ devolve ” on the church.
The Inconsistency, is, in my opinion, more apparent than real but it isunnecessary to consider that question.
It will be noted that this will was drawn in 1900, i.e., eleven years afterthe judgment of the Supreme Court and thirteen years after theArchbishop of Goa had relinquished jurisdiction and the priest had givenover the church and the Archbishop of Colombo had been invited to takecharge and had taken charge.
It can hardly be that Clara Pinto was unaware of these facts and thatshe could have intended her bequest to go to any other than those whowere managing the existing church.
It is contended, however, that all she intended, and must be taken tohave intended, was to make a bequest to the church, to religion, so tospeak, irrespective of who managed the particular church and, therefore,the person entitled to receive the bequest must be ascertained inde-pendently of her intention. In the construction of a last will theintention of the testator is of paramount importance and must be giveneffect to, if it can be ascertained with reasonable certainty, and one is notthrown back on artificial modes of construction, unless the testator’sintention is obscure.
The evidence establishes that the persons named in the last will andreferred to as managers in its last clause regularly gave the income to theArchbishop of Colombo. One of them, Juan Fernando, was probablyone of the defendants in' the case against the representatives of theexisting Mission. Another of the defendants is said to have been thepresent defendant’s grandfather. * Juan Fernando died in 1910. Hegave the income to the Archbishop during his life, and at his deatha sum of Rs. 7,000 having accumulated in his hands, his widow paid themoney to the Archbishop through the witness John Fernando, who took
DE KRETSER J.—Masson v. Matkes.
charge of the land and paid the income to the Archbishop for nearly 20years and handed it over to his brother-in-law, the defendant. JohnFernando was sued in 1930 for an accounting and the action was broughtby the Archbishop. Ho denied the Archbishop’s right but judgmentwent against him and he then handed over the land to his brother-in-law,the defendant. He says he requested the defendant to pay the incometo the Archbishop but in fact the defendant did not and the presentaction was the result.
In this action the plaintiff is the Archbishop of Colombo and in para-graph 6 of the plaint he claimed that as such he was “ vested with thecare and charge and control of the said church”. He prayed for anaccounting. The defendant stated that he was. in possession sinceSeptember 3, 1931, denied that the plaintiff was vested with the care,charge and control of St. Peter’s, and also made other general denials.He denied that plaintiff could sue him for an accounting even if theplaintiff had the charge and control of the church, and gave certainfigures to prove that no balance was left in his hands from the income.
The learned District Judge held in favour of the plaintiff and thedefendant appeals. The one point urged on his behalf in' different wayswas that the bequest to the church was a bequest to the trustee of thechurch and according to D 12 the trustee was the Archbishop of Goa.There was the risk, it was alleged, of the Archbishop re-establishing his’Mission in Ceylon and bringing the defendant to account, and even if thatwas unlikely still no one but he could sue the defendant until a competentCourt had appointed a trustee and by a vesting order had vested theproperty in that trustee. Meanwhile, presumably, the defendant wouldtake the produce and would not mind doing so since that income wouldcover his expenses and, presumably, the church would suffer no loss sincethe expenditure amounted at least to the income.
In my opinion this case can be decided quite irrespective of thequestion as to whether the trust, created by D 12 extended to the lengthto which Counsel contended it did, but it is due to Counsel to examine hisskillful argument on this point.
To begin with, before 1864 title to the land on which the church stoodwas in private persons. Had that state of things continued it. couldhardly be contended that Clara Pinto intended that the. income from herland should go to those private persons. The fabric of the church wouldaccede to the soil in the absence of agreement but a right of superficiesmight be acquired by prescriptive user, and by 1900 the fabric of thechurch as well as the institution known as the’ church would not belongto the owners of the land, and clearly Clara Pinto’s bequest could not beclaimed by them but the person in authority or managing the church.The existence of D 12 does not make a difference. The trust was withregard to the land and the fabric—even though the fabric may have beenmentioned in order to avoid any question arising as to the legal title.
The trust, therefore, affected the fabric and did not extend to theinstitution known as the church. It is said that among -Roman Catholicsit is impossible to separate secular from religious' authority, and thatmay be so, but they may be separated from a legal point of view. Themore convincing answer, however, to the claim in favour of the Archbishop
DE KJIETSER J.—Masson v. Mathes.
of Goa is the well-established fact that he renounced his trust with theconsent and acquiescence of all persons concerned in the trust. It cannotbe said any longer that he is the trustee even of the property dealt with.in D 12. It is unnecessary to consider the argument that the trust wasin respect of his Archbishopric of Ceylon and his successor in office wasthe Archbishop of Colombo, or the argument that the trust has endedbecause its object as stated in D 12 can no longer be fulfilled. Whoti.-u can bring an action ? Commonsense, principles adopted by thisCourt and found in the Roman-Dutch law, the express provision to befound in section 107 of the Trusts Ordinance, and the intention of thetestatrix—all point to the person in actual control of the temporalitiesof the Church.
In my opinion this case ought to be decided on Clara Pinto’s intention.and, in my opinion, her intention was that the income should be handedover t<p the person exercising authority over and managing the church ofSt. Peter, and that was the Archbishop of Colombo, and for over a thirdoi a century that was how all persons interested in the church regardedthe matter. I do not think, this eminently sensible and packed view ofthe matter taken by practical persons should be rejected unless we areobliged to do so by some rule of law.
lu Godinho v. Mrs. Koning1 this Court held that a deed “ad pios usus”was valid and that the plaintiff as the Roman Catholic Missionary atBatticaloa and manager of the church and property thereof couldmaintain an action on the deed. The judgment citing Viner’s Abridge-ment says, “ it seems that in ancient times a grant ‘ deo et Ecclesiae’ wasgood, or if a man gives ‘ lands per dedi et concessi eccelesiae de D' thisgoes to the person and his successors and this construction now prevailsin. wills, where the intention only of the devisor is regarded . .
Thus a devise ‘ Ecclesiae sancti Andreae de E ’ would be a good donationby will to the corporation of the person of the said church and hissuccessors, for such description was sufficient in a will to express theperson of the church and his successors
The judgment goes on to say that in Dutch law the distinction incors*ru:n5 bf tween deeds and wills was not recognized and the intentionwas preferred.
It is rather difficult to understand this decision in every part of it butclearly it held that a bequest to a church was not invalid (it is not arguedin this case that it is), and it emphasized that intention was the mainthing to be considered and that the manager of a church could maintainan action on such a deed. The decision may seem to regard the churchas a corporation but all it, does say is that that was the law in ancienttimes and it uses this statement to justify the holding that such a deedis not invalid. The chief point of. interest to us at present is that themanager of the church was allowed to maintain an action on such a deed.
The case is more fully reported in Morgan’s Digest, p. 472. Promthis report it appears that certain property was seized under writ as theproperty of the defendant and that plaintiff claimed it as “the presidingRoman Catholic Missionary in Batticaloa and Manager of the Churchand property thergof”. It. also appears that the conveyance was “ untothe Church of Saint de Croos ”.
'Ram. Rev. ISO.
jjE KRETSER J.—Masson v. Mathes.
In Sillani v. Corea1 this Court held that the plaintiff, who was theRoman Ca.hoiic pie-admimsiraior 01 the Southern Vicariate of Ceylonliad the right to make appointments, as the evidence established thatsuch appointments had been made by the chief local dignitary of theRoman Catholic Church for the time being, and it said that this right wassupported not only by the law of prescription but by the principle thatwhen the Court has to direct what shall be the arrangement of a religiousinsiiiution, it will, in the absence of express proof of the founder’sintentions look to see what has been the usage of the congregation andminister and others officially interested in the subject; and the Court willpresume that such usage has been in conformity with the original design.They held, also on the oral evidence, that proprietary right in the tempora-lities was in the officiating priest and not in the congregation’s trusteesas contended by the defendants.
This was a case from the District Court of Negombo and was decidedin 1866, i.e., before the present Mission took over the work in that district.
Fernando and others v. The Right Rev. Father Bonjean, Bishop of Medeaand Vicar Apostcdic of Jaffnaa was an action brought regarding thewell-known Madhu Church in the Mannar District by certain personsagainst the Bishop and Vicar Apostolic, the Missionary Apostolic of thedistrict and another person reported to be dead. The plaintiffs alleged,that the church had been built by their ancestors and that they had had.prescriptive possession of the land and income, offerings, and furnitureof the church, and prayed for ejectment of the defendants. The defend-ants pleaded that by law and usage the title to the church and the soleright to administer its affairs were vested in the Bishop and that thecharge of the church and its income belonged to the officiating priestthe second defendant, appointed by the first defendant. The trial Courtheld for the defendants but ordered that trustees should be appointedto hold the church subject to^the right of the officiating priest to use it.
Both parties appealed and this Court delivered its judgment throughMorgan C.J., the other Judges being Stewart and Cayley JJ. It heldthat the plaintiffs had failed to prove their claim; that the evidenceas to the building of the existing church was conflicting but it appearedto have been built by a gentleman called Muyce with the assistance of .neighbouring villagers and was occasionally visited by the Goanesepriests under the authority of the Archbishop of Goa; it refers to aConcordat between the Pope and the King of Portugal followed by apastoral letter from the Archbishop of Goa, filed in the case previouslycited by me, viz., the one in the District Court of Negombo, and statesu We do not think it very material to ascertain by whom and out of whatfunds the church was rebuilt in 1854, because in the absence of anyevidence to the contrary, we think it must be presumed that it was theintention of all- parties concerned that the new church should be heldand managed upon the same footing as the old one and should be subjectto the same ecclesiastical rules and discipline …. Upon theissue as to whose the legal title as to the fabric and the ground on which itstands, and which forms the actual precincts of the church is, we. do notthink that either side has made out a case entitling it to judgment . .
. . After all this question as to the .bare fabric of the church and the1 (1868) Ram. Rep. SOI.« (187S-76) Ram. Hep. 168.
DE KRETSER J.—Masson v. Mathes.
ground attached to it does not appear to us of much practical importance.For in whomsoever they are vested, the premises can only be held andpossessed for religious purposes, to be carried on in accordance with thedoctrine, discipline and usages of the Roman Catholic Church in thisIsland . . . We must be guided by the principle laid downby this Court in the case (No. 1,421 D. C. Negombo above referred to)that, when the Court has to direct what shall be the management of areligious institution, at will, in the absence of express propf of thefounder’s intentions look to what has been the usage of the congregationand the ministers and others officially interested in the subject ….It is true the Roman Catholic Church is not established here but treatingit as a religious society resting upon a consensual basis, the Court isbound (as pointed out by the Judicial Committee of the Privy Councilin the case of Brown v. the Curate and Church-Wardens oj Montreal1,to regard its laws and rules in determining the right of any aggrievedperson if these rights relate to a matter of a mixed spiritual and temporalcharacter The Court held that the usage has always been for thechief spiritual dignitary of the diocese or vicariate to appoint the prieststo the mission and to churches belonging to it, and the concordat wasconsidered to have settled the question who were the chief local dignitariesof the Roman Catholic Church here now. The right of appointment wastherefore held to be in the first defendant.
The first defendant himself had pleaded that whilst he had the legalright to the income, &c., the income was actually received by the priests,and had desired a declaration accordingly.- This Court decreed that thepriest for the time being in charge was entitled to receive the offeringsand personally to manage and administer the affairs of the church,subject to the control of the Vicar Apostolic of the Vicariate and to theobservance of the usages and discipline of the Roman Catholic Churchin the Island.
I have dealt with this case at some length not only because it dealswith many points which are of interest in the present case but alsobecause it seems to be the latest decision on closely analogous pointsand has regard to Roman Catholic Churches in particular.
The question which arose in Melezan v. Savery* and Van Reeth v. deSilva’ was quite different. Those cases decided that title vested in aRoman Catholic Bishop did not pass to his successor in office and as aresult Ordinance No. 19 of 1906 was passed.
Mr. Croos Da Brera, himself a Roman Catholic, stated without contra-diction, and as far as I know quite rightly, that a Roman Catholic desiringto transfer property for religious uses would transfer it to the Bishop(or Archbishop in the case of the diocese of Colombo). This seems toaccord with the evidence in this case, and the Ordinance above referred toseems to confirm this view for it makes no provision for any other case.
We next pass to another aspect of the matter. In Changarapillai v.Chelliah' Bonser C.J. drew attention to the Roman-Dutch law whichprovided that “ in the caseofproperty belonging to churchesand
religious bodies ….personscalled economiandotherlike
4i L. J. P. C. Cases, p. I.38N. L.R. 91.
IS. C. R/107.*6A’. L.R. 270.
DE KRETSER J.—Masson v. Mathes.
officers could recover property by actions rei vindicatio ”, and he thoughtthat a fortiori they could recover it by the lesser remedy of a possessoryaction. It seems to me that a fortiori they could recover somethingless than the property, viz., the income from it. He thought that certaincases had been decided upon too narrow grounds and explained anotheras having been brought by too subordinate an officer. He thought thateach case must depend upon its own facts and concluded by saying“ In the present case it seems to me that if the plaintiff, who is called themanager of the temple, has control of the fabric of the temple and of theproperty belonging to it, he has such possession as would enable himor even entitle him to maintain an action; even though he makes nopretence of claiming the beneficial interest of the temple or its property,but is only the trustees for the congregation who worship there ”.The similarity of reasoning between this case and the cases reported inRamanathan’s Reports will at once strike one, and also that the Arch-bishop is in a stronger position than the manager in the case.
Mr. Perera sought to meet this case by arguing that in Roman-Dutchlaw a church was .res sacra and as such public property, and thereforesome provision had to be made for the protection of its property, whereasin Ceylon all property of a religious body belongs to some one. Heargued that as in modern law it is possible to appoint trustees, thereforethe previous law on the subject should not prevail. The fact thattrustees may be appointed does not mean that trustees and trustees onlymay exercise rights in matters concerning the temporal affairs of anecclesiastical body. He further argued that the passage from Voetreferred to actions rei vindicatio and to recovery of corporeal property,movable or immovable, and not choses-in-action. It seems to me thatthis argument is more ingenious than sound. The Roman-Dutch lawdid not unduly favour technicality. It aimed at doing substantialjustice, and no doubt had the present problem being presented it wouldhave dealt with it on the same lines as earlier decisions of this Courthave done. It had a habit, like its basis the Roman law, of accommo-dating itself to the facts of each case.
The accident that the observation occurs in a title dealing with actionsrei vindicatio does not obscure the principle on which it went and whichBonser C.J. had no difficulty in extending to possessory actions. Besides,the Roman-Dutch law regarded personal actions as movables (Voet, 1.8.30,and Nathan 436).
It seems to be too narrow a view to take to interpret the legacy as abequest of a chose-in-action. The Roman-Dutch law would consider theChurch’s right to be based on a quasi-contract. It would be extra-ordinary if the manager of the property belonging to a religious bodycould maintain an action for the recovery of property but once he leasedrt he could not sue for rent as his right was based on contract. In the.present case it is fairly arguable that the property vested in the churchwith the management in the persons designated, upon failure of whoirieven this right would pass to the church. But, even assuming theposition taken up by Mr. Perera that the property vested in the personsdesignated upon trust for the church, what was the right of the church?The position would be that once the fruits had been sold and the expensesdeducted the beneficial interest In the money that was left belonged
Chelliah v. Sinnatamby.
to the church. That money was corporeal property and the fact thatIn order to ascertain the exact amount an accounting was necessarydoes not affect the right. Had the parties been agreed that it was,say Rs. 5,000, the action would be to recover Rs. 5,000. I do not seewhy the right of the, manager of property of a religious body to recover itsproperty or income should be restricted in the manner suggested.
There is still another way of looking at the matter, and that is that theArchbishop had exercised control over the property of the church andwas in receipt of this income for many years and it is really for thedefendant to prove a superior title to the property of the church, and it isat least doubtful that the Archbishop of Goa has 'any rights or will everexercise any.
Lastly, I shall deal with a position which seems to be peculiar to ourlaw. I refer to -the recognition by the Trusts Ordinance in sections 106and 107 of the de facto trustee. The enactment of these sections wasprobably due to an extraordinary situation which existed, particularlywith regard to Hindu temples, and which gave rise to many difficulties.If one applies the provisions of section 107, as one is entitled to do,there can be no doubt that, though there may be no formal constitutionof a trust in the Archbishop of Colombo, all the circumstances of the caseprove that such a trust does in fact exist, and on Mr. Perera’s one andonly contention the Archbishop is entitled to maintain this action.
From whatever angle, therefore, the case is approached the right ofthe plaintiff seems to be clear and there is no impediment to the intentionof the testatrix being given effect to, however convenient it may beto the defendant that a contrary conclusion should be reached.
The appeal is dismissed with costs. The decree entered will stand.Of course the costs of any further inquiry into the accounts will be dealtwith by the District Judge.
Moseley J.—I agree.
Ketjneman J.—I agree.Appeal dismissed.
MASSON v. MATHES