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Present : Wood Renton J.YATAWARA v. PABILIS SINGHO et al.
27—C. R. Kandy, 6,496.
Buddhist Temporalities Ordinance, No. 8 of 1905, s. 34—Appointment ofprovisional trustee—Appointment good only for a reasonable time.
The appointment of a provisional trustee is en appointment goodfor such period only as may be reasonably necessary before a new.trustee can be elected.
HE facts appear in the judgment.
Ji. A. Jayewardene, for appellant.
J. TV. de Silva (with him Canekeratne), for respondents.
Cur. adv. vvlt‘.
February 28, 1912. Wood Renton J.—
The plaintiff-appellant, alleging himself to be the BasnaikeNilame and trustee of the Maha Dewale, Kandy, sued the'defendants-respondents, who are admittedly nilakaraya tenants ofcertain lands belonging to the temple, for the recovery of a sum ofRs. 151.73, the value of services which he alleged' they were bound'to perform, and in the performance of which they had made default.The defendants-respondents filed answer denying, inter alia, theappellant’s title to sue. When the case came on for trial theircounsel took the preliminary objection—a basis for which had beenlaid by the answer—that the appellant had no status in Court.The appellant’s counsel contended that this issue did not arise outof the pleadings, but the Commissioner of Requests over-ruled thisobjection, and I think rightly. The learned Commissioner ofRequests then-called upon the appellant to prove his title to sue.The appellant’s counsel stated that he was not prepared to presentsuch proof at the moment. The Commissioner thereupon questioned'the appellant himself, and the appellant admitted that he had notbeen elected at any meeting convened for the purpose; but had onlybeen provisionally appointed by the District Committee as far back'as July or August, 1910. “No successor to Mr. Ratwatte ” (the •former permanent trustee, – who had been dismissed by the Com-mittee in July, 1910) “ had,” said'the appellant, “ since been elected,xas he had a case then pending against the District Committeeattacking their status and claiming damages for wrongful dismissal.”The appellant added that he had been temporarily appointed'and .put in possession of the dewale under a writ of the Court ot.'Bequests, Kandy.
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On these admissions the learned Commissioner of Bequests hadto determine whether or not the appellant had then a good titleto sue, and the view that be took of this question may be shortlystated thus. Section 34 of “ The Buddhist Temporalities Ordinance,1905,” provides—I will take only the relevant clause—that, in thecase of the dismissal of any trus„tee, another trustee shall be “ forth-with ” elected in his stead in the manner provided by section 17.That is the substantive enactment of which section 34 condsts.There follows, however, a proviso that in the case—here, again, T amnot quoting the very words of the section—of the dismissal of anytrustee, it shall be competent for the District Committee to makeprovisional arrangements for the performance of the duties of theoffice pending ‘‘ the election ” of a successor, and that any personwho may be provisionally appointed to act as trustee shall have allthe powers and be liable for all the duties of a trustee elected underthe Ordinance. The Commissioner of Bequests held in substancethat the powers of a provisional trustee exist only pending theelection of a new trustee ” forthwith that the delay on the part ofthe District Committee, to elect a new trustee in the present case had'been unreasonable; and that, therefore, the appellant had no titleto sue. No authority has been cited to me that bears, on theinterpretation of the proviso to section 34 in regard to the point asto which I have now to construe it, and I am not aware of any suchauthority. But I think that the view taken by the Commissioner ofBequests is right. It was clearly open to the defendants-respond-ents to dispute, as they did dispute, the appellant’s title to sue.It was open to the appellant to make, as he did make, at the trialadmissions which placed the Court in possession, so far as he wasconcerned, of all the material facts in regard to his status. Withthe respondents’ denial of the appellant’s title before it, and theappellant’s own admissions, the Court was bound in the present caseto consider and decide the question of his locus standi. The inter-pretation put by the learned Commissioner of Bequests on section34 is, I think, right. The appointment of a provisional trustee isan appointment good for such period only as may be reasonablynecessary before a new trustee can be elected. The word ‘‘ election ”in the proviso to section 34 throws us back on the substantive partof that enactment, which makes it clear that the election contemplatedis. an election “ forthwith.” The Commissioner of Bequests wasentitled, and bound on the pleadings, to decide the question whetherthere had been, an election “ forthwith ” in the present case. Theappellant himself supplied the Court with materials which show thatthat • question must be answered, as against him, in the negative,and that being so, it appears to me that he had no power to bringthe present action.
The appeal is dismissed with costs.
YATAWARA v. PABILIS SINGHO et al