Thamotherampillai v. Sellapah.
Present: MacdonelL C.J. and Dalton J.
THAMOTHERAMPILLAI v. SELLAPAH et. al.
59—D. C. Jaffna, 23,628.
Hindu temple—Application to settle a scheme of management—Hereditarymanager—Association of other trustees—Trusts Ordinance, No. 9 of1917, s. 106.
A District Court has power, in settling a scheme for the managementof a trust under section 102 of the Trust Ordinance, to dir feet that othertrustees be associated with the hereditary manager in the managementof a Hindu temple.
DALTON J.—Thamotherampillai v. Sellapah.301
A PPEAL from a judgment of the District Judge of Jaffna.
H. V. Perera (with him Nadarajah), for defendants-appeUants.
N. E. Weerasoofia (with him Choksy), for plaintiffs-respondents.
August 5, 1932. Dalton J.—
The plaintiffs brought this action under section 102 of the TrustsOrdinance, 1917, after obtaining leave as required by sub-section (3), for adeclaration that the Pilliyar temple as described in the plaint be declared apublic charitable trust, and that a scheme of management be settled bythe Court, proper trustees being appointed by the Court to manage andconduct all the affairs of the temple and its temporalities.
Defendants pleaded that the temple was founded by their ancestors andthat it was private family property. There .was an alternative pleathat in the event of the Court holding the temple to be a public charitabletrust, plaintiffs were not entitled in law to have the defendants removedfrom the managership, the right of managership being in their family, orto have trustees appointed by the Court.
It was subsequently conceded that the temple was a public charitabletrust, the only point remaining for consideration being whether the trialJudge was entitled to frame a scheme of management, appointing aboard of five trustees to manage the affairs of the temple, on which thefirst defendant and his successors are to have a hereditary seat.
It has been urged on behalf of the plaintiffs (respondents)' that it hasnot been satisfactorily shown that the defendants’ family had anyhereditary rights in the temple, but it is clear from the judgment of thelower Court that the learned Judge was satisfied that the managershipof the affairs of the temple had been divided between the priest and thefirst defendant’s ancestors. He further recognizes the rights of the familyby giving it an “ hereditary seat ” on the board of trustees. With thisconclusion as to the rights Of defendants’ family in the temple I am notprepared to disagree.
It seems quite, clear from the evidence that all the trouble that hasarisen at this temple is due to the conduct and actions of the seconddefendant. The first defendant’s father was manager during his lifetime,and the second defendant, his nephew, was his executor. There is nodoubt that first defendant succeeded his father as manager, but he is 15years younger than the second defendant, and he has made it quite plainhe took no interest in the affairs of the temple. On the other hand, hiscousin, the second defendant, was very anxious to be manager himself,as he admits in his evidence. He actually included the temple and itslands in the inventory of the estate of the first defendant’s father, andthen to strengthen his position obtained a power of attorney from the firstdefendant as manager, to manage the temple on his behalf. This andother evidence effectively answer the second defendant’s contention thathe had rights as manager himself as being a member of the founder’sfamily.
The learned Judge had therefore these circumstances to deal with in theaction, a temple admitted to be a public charitable trust; a hereditarymanager (the first defendant) who took no part and wished to take no.
DALTON J.—Thamotherampillai v. Sellapah.
part in the affairs of the temple ; a hereditary priest who had a hereditaryright to perform some of the functions of management; an attorney• (second defendant) of the hereditary manager whose plain object was,if he could, to step into the shoes of the hereditary manager and who, had,in the words of the learned Judge, for 20 years or 30 years made the lifeof the hereditary priest miserable ; and constant friction between thesecond defendant and the priest, as a result of which this case was broughtby plaintiffs as worshippers at the temple for the purpose of ending theunhappy state of affairs.
It has been strenuously urged on behalf of the appellants that the Courthas no power under the Trusts Ordinance to replace an hereditary manager,or even to appoint or associate any trustee, manager, or other person withhim in the management of a temple, the right of management of which ishereditary. Under the provisions of section 106 of the Ordinance, insettling any scheme for the management of any trust under section 102 itis provided that the Court shall have regard to the religious law and customof the community concerned. It is not necessary for the purposes of thiscase to decide what exactly the words “ shall have regard to ” mean, forin this particular case it has not been shown, in my opinion, that thelearned Judge, in his order associating others with the hereditary manager,has done anything contrary to Hindoo religious law or custom. Forthat law as it obtains in Jaffna, we have been referred by counsel forappellant to the judgment of Bertram C.J. in Velupillai Arumugam v.Saravanamuttu Ponnaswamy.1 Taking the law on the question of thedevolution of the management of temples such as this as laid down in thatcase, the management appears to be vested in the first defendant for life,and there seems to be no provision for his removal by the family. At anyrate, no such power is mentioned in the cases cited in the argument. Sofar from the descendants of the founder ever acting as a body for anypurpose, a system appears to have sprung up of the right of succession tothe management passing to the eldest male descendant of the last personwho has acted in the office on the fiction that all the other heirs haveconsented to the appointment. It would seem that in some cases themanager can appoint some descendent of his own to be associated withhim in the management until his death. No attempt has been made toshow that this case before us in one of such cases mentioned by Bertram
J. in his judgment, possibly because the first defendant does not wish to•have anything to do with the management. In any event seconddefendant is not a descendant of his and so could not be associatedwith him.
In this state of the appropriate religious law or custom, where ahereditary manager shows his desire to be disassociated from the manage-ment entirely, it seems to me that powers given by section 102 for theCourt to step in, in the interests of the worshippers, to frame a schemefor the management of the temple, may most properly be used in the caseof a public charitable trust. The fact that first defendant has given apower of attorney to the second defendant, a person as these proceedingsshow quite unfitted for the position, was merely to save himself anyworry or trouble, an attempt to put the responsibility for management on
i 27 N. L. R. 173.
DALTON J.—Thamotherampillai v. Sellapah.303
other shoulders, which, as the learned trial Judge pointed out to him, hecould not do. It has suggested itself to me whether the scheme might-not be restricted in time to the lifetime of the first defendant, but onconsideration, especially also in regard to what was done by the seconddefendant and the worshippers in 1922, I do not think it should be sorestricted. I can find, in the authorities cited to us, nothing derogatoryof religious law or custom applicable in the Court in such circumstancesdirecting that others be associated with the hereditary manager in themanagement of the temple, as the learned Judge has ordered. Thesecond defendant had himself consented to such action being taken as longago as 1922, not by descendents of the founder but by the worshippersat the temple. The evidence shows that in 1922 handbills were issuedcalling a meeting of the worshippers for the purpose of appointingfive trustees of the temple, that second defendant attended the meetingsand was elected one of the five trustees. That he approved is quite clearfrom his signature to the documents. Within a month, however, troublearose again, and he then issued a notice in the following form.: —
I do hereby inform the public that I was the manager of the Vinayagatemple at Nochiampathy, Koddaikadu, Valighamam West. I transferred myrights to certain persons of the same place on the condition that they woulddonate Rs. 5,000 to the above themple. Since they have not fulfilled the aboveconditions, I do hereby bring to the notice of the public that I revoke therights of management I had transferred to them and that from this day I take,over the management of the said temple to myself and others have no rightswhatsoever in the management of the above temple.
Araly West, April 11, 1922.A. Kanapathipillai,
Whatever the ending of this attempt to put the management of thetemple on a better basis, it has not been suggested that the action takenin 1922 was in any way contrary to religious law or custom.
For these reasons I am unable to agree with appellants’ counsel thatthe Court has exceeded its powers. It is true that both defendants areappellants, but there is nothing before us to show that first defendant has-receded from the position he took up in the lower Court, and one mayreasonably conclude that the moving spirit in the appeal, as in the defencein the lower Court, is the second defendant.
The suggestion that difficulties may arise in respect of the election oftn&tees, as provided by the learned Judge in his order, is not one thatcommends itself to me: It is possible, of course, that second defendantmight unwisely again seek to interfere, but he has had ample warningagainst dong so, and one can only hope he will have due regard to thiswarning. In other communities provision is made for election ofcommittees and trustees in similar circumstances, and this is not the firstoccasion on which this procedure has been adopted in the NorthernProvince. I do not think we should anticipate any trouble.
I would dismiss this appeal with costs. .
Macdonell C.J.—I agree.
THAMOTHERAMPILLAI v. SELLAPAH et al