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Sept. 4, ionPresent: Lascelles C.J. and Middleton J.
WEERAKOON, v. APPUHAMY.
262— D. C. Badulla, 2,507.
Buddhist Temporalities Ordinance—Term of office of trustee terminatingby effluxion of time—Appointment of provisional trustee byCommittee—Irregular—Lease by such trustee void.
On the expiration of the term of office of a trustee under t-hoBuddhist Temporalities Ordinance by effluxion of time, the DistrictCommittee appointed a trustee to act provisionally.
Held, that the appointment was irregular.
A lease granted by a provisional trustee appointed under suchcircumstances is void.
A provisional appointment can only be made under the circum-stances mentioned in section 34 of the Ordinance.
rpHE facts appear from the judgment of Lascelles CJ.
Elliott, for appellant.
H. A. Jayewanlcne (with him J. W. de Silva), for respondent.
September 4,1911. Lascelles C.J.—
This is aii appeal from the judgment of the District Judge ofBadulla, in which he decided that the appointment of the fourth
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defendant as provisional trustee of a certain vihare was irregular, 4<1!>Itand declared that the lease granted by him of some of the property ye«mkoo>i v.of the temple was void. Several grounds for holding that the lease Aitpuhamnwas invalid were raised during the trial of the action, but it is really• necessary to consider only one of the grounds, for if the appointmentof the provisional trustee was bad, it follows that the lease grantedby him was also invalid. Now, the term of office of the formertrustee expired on February 2 or on January 31, it is immaterialwhich. Oh January 15 the Committee appointed the fourthdefendant to act provisionally as the trustee from the expiration ofthe term of the old trustee. It is contended, and it is held by thelearned District Judge, that this appointment was irregular. Inmy opinion there can be no doubt as to the correctness of thisruling. The appointment was not only irregular, but it involved anirregularity of a very serious character. The general scheme of theBuddhist Temporalities Ordinance of 1905 is"that the managementof the property of the temples shall be entrusted to the trustees, whoare elected by the laymen who are qualified to vote at such election.
Any irregularity which deprives the Buddhist laymen of the rightof electing the trustees who have the management of the propertyof their temples is obviously an irregularity of a serious character,which runs counter to the general scheme of the Ordinance. Itwas attempted to justify the appointment of the fourth defendantas a provisional trustee under section 34 of the Ordinance. But itis obvious that the section has no application to the facts of thepresent case. It does not enable a trustee in all cases to be appointedto act provisionally on the expiration of the term of office of hispredecessor. It only enacts that in certain particular cases, namely,refusal to accept office, death, incapacity, disqualification, resigna-.tion, suspension, dismissal, bankruptcy, insolvency, or departurefrom the Island, the District Committee may make provisionalarrangements for the performance of the duties of the office pendingthe election of a successor. This is altogether a different thing fromappointing an acting trustee at the end of the term of the formertrustee. The effect of such an appointment is to substitute anominated trustee for an elected trustee. If, then; the appointmentof the fourth defendant as a provisional trustee is void, it followsthat the lease granted by him in that capacity is also void, whetheiit was or was not granted for adequate consideration;
With regard to the point as to misjoinder, Tcannot see that thereis any misjoinder of parties in the case. I think that the fifthdefendant, the grantee under the lease which is impugned, was anecessary party to the action, and that if he had not been originallyjoined as a party, it would have been the duty of the Court to causehim to be added.
In my opinion the judgment of the District Judge is correct, andthe appeal should be dismissed with costs,
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6jept^4^iyu Middleton J.-*-
W'rtritknoH r. | agree. The only doubt I had in the course of the argument wasppv ><mn from wording’1 of section 34, where the words 44 or shall cease tobe qualified as required by this Ordinance ” are used. I at firstthought that these words might possibly be intended to convey thecase of a trustee whose office had expired by effluxion of time afterthree years. I think, however, that these words clearly are governedby the terms of section 8 of the Ordinance, in which the qualificationsof candidates for election are set out. Even, however, if that sectioncould have been construed as l was at first inclined to construe it,the provisional appointment of the fourth defendant here wouldcertainly not be in accordance with its terms, for the wordsfollowing on the words I have spoken of show clearly that a newtrustee in such a case must be elected by the. voters undersection 17 of the Ordinance.
1 entirely agree that there was no misjoinder in making the fifthdefendant a party to this action, and echo the opinion of my Lordthat if he had not been joined, it would have been the duty of theCourt, under section 18 of the Civil Procedure Code, to add him asa party.
WEERAKOON v. APPUHAMY