( 15 )
Present: Hutchinson CJ. and Wood Renton J.MUTTIAHPTLLAI v. SANMUGAM CHETTY et alJ80, D. C., Jaffna, 6,619.
“ Madam ”—Action by trustee under section 247 claiming lands belonging to“madam”—Sanctioti of Attorney-General not necessary—OrdinanceNo, 7 of 1871 applies to public trusts as well—Civil ProcedureCode, s, 639.
Action can be taken* under section 639 of the Civil ProcedureCode only when a trustee has committed a breach of trust,or when the direction of the Court is deemed necessary for theadministration of the trust.
Ordinance No. 7 of 1871 does not apply to private trusts only,but to public trusts an well.
A person appointed by Court, under section 4 of Ordinance No. 7of 1871. trustee of a “ madam ” may bring an action under section247, Civil Procedure Code, with respect to a property which heclaims as belonging to the “ madam.” without the sanction of theAttorney-General.
rJ'HE facts are fully set out in the judgments.
Walter Pereira, K.C., Acting Attorney-General (with him Bala-singham), for the plaintiff, appellant.
H. A. Jayewardene (with him Wadsworth), for the defendants,respondents.
Cur. adv. vult.
October 19,1910. Hutchinson CJ.—
This is an action under section 247 of the Civil Procedure Code.The plaintiff sues as trustee and manager of a “ madam ” atKarativu, and claims that certain land, which was seized by the firstdefendant under a writ of execution against the second defendant,be decreed to be the property of the “ madam ”, and not liable to beseized and sold for the debt of the second defendant.
It was admitted that the plaintiff is trustee of lots 6, 8, 11, 12, and13 shown on the plan filed in the case, and that he was so appointed,by a decree of the Supreme Court-. The land now in question is lot 7.The following preliminary issqes were settled and tried first:—
Was the plaintiff appointed trustee only of lots 6, 8, 11, 12, and13, or of the “ madam ” and all its properties ?
Can the plaintiff as trustee of the “ madam ” bring an action fordeclaration of title of the “ ma^am ” property ?
( 16 )
da. 19,1910 The District Judge dismissed the action, holding that the-plaintiffHutchinson is not trustee of any property except lots 6, 8, ll, 12, and 13,r**l* and that he cannot sue for land which is not included in theMnttiahpiUai trust property, and that the action should have been taken accord-7 Sp^0<nu i°S t0 the procedure laid down in section 639 of the Code ; for he'HUj said, “ in effect the plaintiff, claiming lot 7 as trust propertycomplains that the second defendant has committed a breach of thetrust created over this land ”. The plaintiff appeals.
I cannot assent to the reason given by the learned Judge. Actioncan only be taken under section 639 when a breach of trust is alleged,or when the direction of the Court is deemed necessary for theadministration of the trust. But a breach of trust can only becommitted by a trustee ; and the. defendants are not trustees (atleast the plaintiff does not allege it, and the defendants deny it) ; noris it alleged that the direction of the Court is necessary for theadministration of the trust, That was doubtless the reason whythe Attorney-General, on application being made to him for hisconsent under section 639 to enable this action to be brought,refused it, saying that the action was not one for the institution ofwhich he could properly grant sanction under section 639 (p. 3).If the plaintiff is the trustee of the “ madam ” property, anti if thisland is part of the “ madam ” property, he can maintain this action.But the learned Judge held that the only property which is vestedin the trustee is lots 6, 8, 11, 12, and 13, and if that is so, the resultwill be that, if lot 7 is proved to be part of the “ madam ” property(that is, subject to the trust), there is no person who can claimit on behalf of the trust from a person who is wrongfully inpossession of it.
In 1905 an action was brought under section 639, with the sanctionof the Attorney-General, by persons who claim to be interested inthis trust, against four persons (one of whom was the present' second defendant), who were alleged to be in charge of the trustproperty, and to have committed breaches of trust with regard to it.The defendants there alleged that three of them were descendants ofthe founder of the trust and as such were managers of the “madam”,but that some of the lands mentioned by the plaintiffs as part of thetrust property were not so, but were their private property, andamongst the lands which they so claimed was that which is thesubject of the present action. The District Court made a decree,which on appeal was set aside, and this Court ordered that theDistrict Judge should place the “madam” and lots 6, 8, 11, 12, and13 under the management of the Government Agent or such other..officer or person as might be willing and, in the opinion of the Judge,fit to undertake the trust, with power to apply the income of thelands as thereby directed. The 'defendants had admitted thatlots 6, 8, 11, 12 and 13 were the subject of a public charity, butthis Court in the course of its judgment said that the evidence was
( 17 )
insufficient to justify an order with regard to the rest of the land, and Oct. 19,1910that no adjudication need be made as to the ownership of the rest Hutchinsonof the land.c. J.
The order of this Court was dated July 11, 1905. And on May v. Sanmugam28, 1906, the District Court made its decree purporting to be*“ in Chettyterms of the decree of the Supreme Court dated July 11, 1905,”declaring that lots 6, 8, 11, 12, and 13, with the “madam” on lot 6,were the property of the public for public charitable purposes, andthat the present plaintiff be “ appointed trustee and manager, tohave sole control of the said * madam * and all its property, movableand immovable, in terms of section 4 of Ordinance No. 7 of 1871, withpower to apply the income, ” &c. The respondents contend thatthis last decree, so far as it appoints the plaintiff trustee of all the“ madam ” property, goes beyond that which the Supreme Court haddirected. But it purported to be made in terms of the SupremeCourt decree ; it was made in the presence of the second defendant,who was a party to that action ; and there was no appeal against it.
The present defendants are therefore bound by it, even if it waswrong. But I am not at all sure that it would not have beenupheld on appeal, notwithstanding the opinion expressed byWendt J., in Ahamado v. Lebbe Maricar,* that Ordinance No. 7 of1871 applies only to private trusts, an-opinion in which as atpresent advised, I should not concur.
The question remains whether the property claimed in this actionis the property of the “ madam ”. The decree dismissing the actionshould be set aside and the case go back for trial of the issues (1),(2),
(3), (4), and (6), which were proposed in the District Court, or anyother issues which that Court may think it right to try. The costsof this appeal should be costs in the cause.
Wood Renton J.—
This is an action, under section 247 of the Civil Procedure Codein which the plaintiff-appellant, as manager and trustee of Kanaka-sapapathipillai Madam, situated lat Karativu, in the District ofJaffna, claims that a certain land described in the plaint should bedeclared the property of the “ madam ” and released from seizure atthe instance of the first defendant-respondent in execution of a debtdue to him by the second, and that the first defendant-respondentshould be decreed to pay Rs. 50 damages in respect of the seizure.
The plaintiff-appellant had claimed this land in the executionproceedings. His claim was dismissed, and accordingly he broughtthis action under section 247 of the Code of Civil Procedure,with the objects already stated. The defendants-respondents intheir answers have denied the appellant’s locus standi under thefollowing circumstances. In case 3,686 of the District Court of1 (1909) 12 N. L. R. 128.
7J. N. A 93348 (11/49)
( 18 )
Oct. 19, mo
WoodRenton J. ,
Jaffna certain persons, alleging themselves to be interested »in theproperty of the Kanakasapapathipillai Madam, instituted an action, .with the sanction of the Attorney-General, under section 639 of theCode of Civil Procedure, for a declaration that the lands describedin the plaint were trust property, for the ejectment of the occupantsof those lands, and for the appointment of new trustees. The landhere in suit was one of the lands claimed in that action, and wasthere described as lot 7. The plaintiff obtained judgment in .theDistrict Court, but in appeal the decree of the District Court wasset aside, and the District Judge was ordered by the decree of theSupreme Court to place certain specified lots under the manage-ment of the Government Agent of the Province, or such otherpublic officer or other person as might be willing or, in the opinionof the Judge, fit to undertake the trust. “ No adjudication,” saidthe Supreme Court, “ need be made as to the ownership of the restof the land.” Lot No. 7 was not among the lots which weredirected by the judgment and by the decree of the Supreme Courtto be dealt with in the manner that I have just described. TheDistrict Judge, in pursuance of the judgment of the Supreme Court,appointed the present appellant trustee and manager, to have thesole control of the “ madam ” and all its property, both movableand immovable, in terms of section 4 of Ordinance No. 7 of 1871.In making this order the District Judge went further than he wasempowered to do by the terms of the decree of the Supreme Court,and the contention of the defendants-respondents in the presentcase is that the decree of the District Court did not vest lot No. 7in the “ madam,” or in the appellant as its trustee and manager, andthat consequently he is not entitled to bring any action in respectof that lot. The learned District Judge has given effect to thiscontention. He holds further that section 4 of Ordinance No. 7of 1871 cannot apply, inasmuch as lot 7 was not subject to anytrust within the meaning of that section, and he has accordinglydismissed the plaintiff’s action, holding that if any proceedingsare to be taken with respect to the lot in question, they must bebrought in conformity with the provisions of section 639 of theCivil Procedure Code.
I am unable to agree with the decision of the learned DistrictJudge on this point. Section 639 of the Civil Procedure Code hasno application, except to actions for alleged breaches of express orconstructive trusts created for charitable purposes, or when thedirection of the Court is deemed necessary for the administrationof any such trust. This is an action under section 247. Theappellant does not allege that there has been any breach of truston the part of the respondents. His contention is that the propertywhich has been seized by the first defendant-respondent as execution-creditor belongs to the “ madam,” and is therefore not liable to besold under the writ against the second defendant-respondent. No
( 19 )
breach of trust is alleged against any of the defendant’s respondents, 0ct-19<1910nor is any question as to the administration of the trust involved woodin the action. The simple question at issue is whether certain HuntonJ.property is liable to be sold in satisfaction of a judgment debt. MuuiahpMaiUnder these circumstances section 639 of the Civil Procedure Code v- Smmugamcan have no application. (See Othaman Hadjiar v. Madar Lebbe,ly
and Kmaratnam v. Simachchy-). We have therefore, to considerthe position of the appellant under Ordinance No. 7 of 1871. Bythe judgment of the Supreme Court in D. C., Jaffna, 3,686, thedefendants-respondents in that action were removed from themanagement of the “ madam ” and its property. The decree of theSupreme Court is, in fact, a direction to the District Court to appointa trustee of the “madam” itself,and to place certain specified lots,which had been proved in that action to be subject to the trust,under his control and management. By virtue of section 5 ofOrdinance No. 7 of 1871 the appointment of the appellant as trusteeof the “ madam ” vested in him all the property movable and immov-able, which might belong to the “madam.” I do not think that theSupreme Court should be held to have intended to decide that the“ madam ” had no other property besides the specified lots. TheSupreme Court expressly abstained from giving any adjudicationon that point, and although the District Judge, who. appointed theappellant trustee in conformity with the decision of the SupremeCourt, has gone a little beyond the terms of the judgment and thedecree on appeal, I do not think that he has really contradictedtheir spirit and intention. I would hold that, by virtue of theprovisions of section 5 of Ordinance No. 7 of 1871, the appointment,which was undoubtedly authorized by the Supreme Court, of atrustee of a “ madam ” itself carried with it the right to vindicate allthe property of the “ madam,” whether it had been specified in thedecree of the Supreme Court or not. I am unable to agree with thedictum of Wendt J. in the case of Ahamadu v. Lebbe Marikar,3 thatOrdinance No. 7 of 1871 was intended to deal with private and notwith public trusts.
would set aside the judgment of the District Court and send thecase back for the trial of all the issues other than that of the statusof the plaintiff-appellant. The costs of this appeal and all othercosts, I think, should be in the discretion of the learned DistrictJudge.
Case sent back. *
* (100S)3 A.C.R. 133.2 (1006) 5 Tam. 113.
3 (1909) 12 N. L. S. 126.
MUTTIAHPILLAI v. SANMUGAM CHETTY et al