Sri Lanka Law Reports
(IW2) 2 S.L.R.
SUPREME COURTSAMARAKOON, C.J.. WANASUNDERA. J., AND SOZA, J.
S.C.74/81; C.A. (LA) 16/81; C.A (APPEAL No. 23/78). D C. MALLAKAMNo. 3968.
JULY 8, 1982.
Trust — Scheme of Management of Kovit – Regulation by Court – Sections W!and 102 of Trusts Ordinance – Sections 217, S34 of Civil Procedure Code.
Kiiritkkal r. Kurukkal (Sumartikixm, C.J )
Action No. 3968 D.C. Jaffna was instituted for settling disputes between twoparties .for the management rights of Kolankalady Vcerakathy Pillayar Kovll atMaviddapuram. On 10.3.55 the District Judge approved a scheme of managementwhich was filed by'the partner. But this order was not a formal decree.
Somewhere in 1977 disputes regarding management arose again and the appellantfiled two petitions in the District Court. The District Judge' dismissed the. firstapplication on the ground that a separate action .should have been filed for thereliefs claimed'there but allowed the second on the grounds that it only soughtto enforce rights under a scheme of management as these could be effectedunder Section 344 of Civil Procedure Code.
On Appeal to the Court of Appeal the appeal was allowed -dismissing • theapplication. The Court of Appeal granted leave to appeal to trie Supreme'Court.The ground was whether the second'application of 25.2.78 could be maintainedunder Section 101(2) or Section 102 of the Trusts'Ordinance or-whether a freshaction should have been instituted.
Under Section 101(2) of Trusts Ordinance a trustee was entitled to sue either
by regular action or by way of summary procedure or petition and affidavitor .by petition only or by affidavit only.; -.;w'/w
The Court had power under Section 101 to make any order that it maydeem equitable for the regulation of the succession of trustees by(. ^hanging-the mode Of succession.
That even though there was no formal decree in Case No. 3968 DC.jaffna.. ^hat was passed was an order in terms of Section'217 of the Civil-.Procedure
Code and for the execution of such order any. of the provisionMof ChapterXXII was available.
.Case referred to:
(1) KarthigesuAmbalavanarv. Subramaniam Kjathiravetu i 1924) 27 NLR15. 2/.
• -APPEAL from judgment of the Court of Appeal
K. Thevarajah with S Navar'atnam for respondent-appellant.
V.' Arlilambalam with S.A. Parathalingam for appellant-respondent.
.July 26; 1982'.
This dispute relates to the management of Kollankaladdy VeerakathyPillayar Kovil at Maviddapuram which is a charitable Trust. Thehistory of this matter is- briefly as follows: On the ,30th. October,1947, one Ambalavanar Thesigar Ponniah Thesigar instituted actionNo. 3968 in the District Court of Jaffna for a declaration that he isthe hereditary manager. Trustee and Chief Priest of. the Tempje, andthat, he is entitled tp the offerings made,during the High-Festivals.
Sri Lanka Law Reports
(1982) 2 S.L.R
He prayed that he be “placed in possession of the income and office’’of the Temple. The 1st to 6th defendants (the 1st defendant beingthe respondent-appellant in this appeal hereinafter referred to as theappellant) filed answer stating that their father Vaithilingam, whowas a brother of the plaintiff, owned a 1/2 share of the.pooja rights.They therefore claimed these 1/2 shares and damages for being keptout of the benefit of the offerings. After trial the District Judge heldthat the plaintiff was entitled to a 1/2 share of the managementrights and to a half share of the pooja rights and the defendantswete entitled to the other half share of the management and poojarights that Vythilingam would have been entitled to. He also awardeddamages to the defendants. In answer to issue 9, raised at the.trial,te stated that a scheme of management was necessary for the temple.He added “as regards the scheme of management let this case becalled in Court as early as possible, but after the appealable periodis over, and if, there is no appeal, let. the parties move Court tohave a proper scheme of management regarding the temple drawnup and approved by Court to be adhered to by the parties”. Noformal decree has been entered of record. The plaintiff filed anappleal which was dismissed by ,the Supreme Court. A scheme ofmanagement was thereafter filed and it was approved by Court on10th March, 1955. The plaintiff'died in 1959 leaving a son AmbalavanarThesiger and 2 daughters. Ambalavanar Thesiger died on 2.12.1976leaving no issue. Until his death the scheme of management appearsto have been followed without dispute. But for his death he wouldhave entered into the management of the temple commencing 14;4.1977'.Shortly after his death disputes seem to have arisen regarding rightsof management. On 2.8.1977 the appellant-respondent (hereinafterreferred to as respondent) obtained an injunction from the HighCourt valid for a period of 6 months to enable him to vindicate hisrights in an action. The appellant moved the Supreme Court inrevision but when the application came up for hearing on 2.2.78 noorder was made as the period of 6 months had elapsed.
Thereafter the appellant has filed two petitions in the same case.The first petition was filed on 17.2.78 together within..affidavit. Hiecaption stated that it was an application under the provisions ofsection 101(2) of the Trust Ordinance .(Cap.87). In it he claimed tobe the sole Trustee and Manager of the temple after the death ofAmbalavaner Thesiger..Accordingly he prayed for an amendment ofthe scheme of management, for an injunction, and for damages: The'respondent filed objections to this application on 10.4.78. The second
•VC'KnrukkaI r. Kiirukkul fSantarukoon. C.J.)565
petition was filed together with an affidavit on 2.5.78 claiming thathe was entitled ..to the pooja rights from 14.4.78 in terms of clauses5 and 6 of the scheme of management. Objections were filed by therespondent on.. 25.5.78. Both applications,rwqre taken up for hearingtogether by the District Judge of Mallakam. He dismissed the firstapplication as he was of the view that a separate action should'havebeen filed for the reliefs claimed therein. He allowed, the secondapplication cy the ground that it only sought to enforce the rightsensured by the scheme of management which could, hc^fectetj interms of the provisions of section 344 pf ,the Civil Prpcedure Code.Accordingly he ordered , that the appellant be placed in possessionof the temple so that, he may enjoy the rights of management andpooja for 1 year from the date of,his order. He also restrained therespondent from disturbing, these,, eights. The respondent appealed, tothe Court of Appeal, and the Court of Appeal allowed the appealand dismissed the appellant's application.
The Court of. Appeal has granted leave to appeal on the followingquestions of law:
“1. Whether upon the facts set out in the judgment of thiscourt dated 6.3,1981 the decree entered in case No.3968of the District Court of Mallakam can be construed toembody the scheme of management approved by theDistrict Court on 19.3.1955.
2. Whether the 2nd application dated 2.5.1978 made by therespondent (Vaithilingam Kumarasamy Kurukkal) in theDistrict Court Case can in law be maintained under Sec.101(2) or Sec. 102 of the Trusts Ordinance Chapter 87,Vol.IIl, L.E.C.) or whether the respondent should haveinstituted a fresh action for a proper adjudication of thematters involved in that application.”
The first point of law refers to a decree entered in the case. Thereis no such decree in the record. The provisions of Sec. 344 of theCivil Procedure Code do not therefore apply. Counsel for the appellantstated that he is not making any submissions on this point of lawand therefore this Court is not required to answer the question.
The second. question raises the query as to whether the secondapplication of 2.5.78 can “in law be maintained under Sec. 101(2)or Sec. 102 of the Trust Ordinance Chapter 87”, or whether a freshaction should have been instituted. The .Court ,of Appeal was ofopinion that this action No. 3968 was not one filed .under Sec. 1.02
Sri Lanka Law Reports
(1982) 2 S L R.
of the. Trust Ordinance, me Court of Appeal was right in itsconclusion. ■ It is neither one under Sec. 102 nor one under Sec.101(1) of the Trust Ordinance. It is a regular action filed in termsof the Civil Procedure Code to obtain a declaration of status asTrustee and for consequential remedies. But in that same action ascheme of management has been approved and imposed upon this-temple. That was in pursuance of an answer to issue 9 which hasbeen affirmed by the Supreme Court. That scheme was followeduntjl these disputes started. We. do not need to, and indeed ••wecannot, now question thej propriety of that schenie or even researchinto its legal validity. I might however state that if I was disposedto delve into it I would most probably come to the conclusion thatit was legally and validly imposed for reasons that will presentlymanifest themselves. I however do not need to decide this questionand I proceed on the basis that the scheme of management existsin law and its legal validity cannot now be questioned for the purposeof this decision.
This application purports to be one made under the provisions ofSec. 101(2)' of the Trust Ordinance which reads as follows:
“101(2) Nothing contained in this or the next succeeding sectionshall be, deemed to preclude the trustee or author of anycharitable trust from applying to the court by action or otherwisefor suclj,: direction or relief as he may be entitled to obtainunder the„ general provisions of this Ordinance, or for thepurpose of invoking the assistance of the court for the bettersecuring of the objects of the trust, or for regulating itsadministration or t:iw succession to the trusteeship', and uponany such application the court may make such order as it maydeem equitable.’’
Hie ingredients of this subsection are as follows:
The application may be made by.thie Trustee or Author
of the Trust…..
The application may be by means of action or otherwise(the emphasis is mine).
The object of such application is –
to obtain such direction or relief as he may be entitled
to obtain under the general provisions of this Ordinance,or■' ’’
for the purpose of invoking the assistance of theCourt for better securing the object of the Trust, or
KurukkaI r. KurukkaI (Simuirakonn, C.l.t
for regulating its administration or the succession tothe Trusteeship.
Upon any such application the Court is empowered to makesuch Order as it may deem equitable (the emphasis is mine).
Sec. 101(1) deals with all kinds of charitable trusts and empowerspersons having an interest in the Trust to institute an action in Courtwith the prior permission of the Attorney-General. Section 102 dealswith religious Trusts and empowers two persons interested ig theTrust to institute an action in Court provided they first obtain thenecessary certificate from the Government Agent in terms of Sec.102(3). But for these provisions the two categories of persons mentionedin these sections would not have the legal status and right to institutesuch actions. Furthermore they have no right or power to instituteactions as and when they please. They must first obtain the approvalof the Government Officers mentioned. The action referred to inSec. 101(2) has no such fetters because the Trustee has a legal rightand status to bring an action. Fetters that arc binding under Sec.101(1) and Sec.102 do not bind a Trustee for the simple reason thathis is a legal right arising from his status as Trustee of a CharitableTrust. His legal personality is recognised in law. This is an actionavailable “tp any Trustee”, per Bertram, C.J. Karthigasu Ambalavanarvs. Subramaniar Kathiravelu (1).
The next matter to be considered is the form of the action. Thisaction was originated by petition and affidavit. The section permitsa Trustee to apply to a Court "by action or otherwise". There aretherefore many options open to a Trustee. He can bring an "action’-'.Thus he can institute an action adopting either “regular" procedure.or “summary” procedure. (Sec.7 Civil Procedure Code). If he adoptsthe former he must file plaint and conform to the provisions ofChapters HI to VII of the Civil Procedure Code and summons willissue under Chapter VIII. If he adopts the latter course, he must-file a petition and affidavit and conform to the same provisions, butthe order that would be made would be either an order nisi in termsof Sec.377(a) Civil Procedure Code or an interlocutory order in termsof Sec.377(b) Civil Procedure Code. These are procedures availableto an ordinary litigant. But the Trustee referred to in Sec. 101 (2) isin a more advantageous position. He has the liberty of adoptingother modes known to the law. He can thus institute proceedingsby petition or by affidavit alone or by petition and affidavit withoutresorting to summary procedure or by mere application. These would
Sri l.anka Imw Reports
(M82) 2 S L R.
all be covered by the word “otherwise” in the subsection an'd still be anaction within the meaning of Sec. of the Civil Procedure Code. TheAppellant, has. resorted to a petition and affidavit and has not askedfor any order .in terms of Sec.377 Civil Procedure Code in the firstinstance. The Court has issued notice and the Respondent has filedobjections. In view of the. special privilege granted to Trustees bythis section I hold that the action has been properly constituted andheard to a conclusion by the District Judge.
Th#e last matter to be considered is whether the dispute is onethat is contemplated by the provisions of this section. I have mentionedearlier that one of the ingredients of this section is the right to ask
for “such direction or relief for the purpose of regulatingthe
succession to the Trusteeship”. The District Judge was called on inthis action to decide a dispute between two claimants to a Trusteeshipwhere one of them asked inter alia for an order altering the successionset out in the scheme of management. The Court was thereby askedto regulate the succession by changing the mode of succession. Thisthe Court could do under subsection 101(2).
In the course of the argument Counsel for the Respondent contendedthat the Appellant should have instituted a separate action' for thereliefs claimed and that he had no right to intervene in this action(No.3968) as this was not a Trust Action. In the alternative hestated, that if the Appellant had the right to intervene in this actionhe should first ha've substituted parties for the deceased parties. As1 have already stated this action Which commenced as a privatedispute ended as a Trust Case with the Court entering of record ascheme of management, and if any alteration- or change is to bemade to such scheme, it' must be in the case in which that schemewas made and exists. As for substituting parties I need only say thatthis scheme of management was for the temple and its managementand not for particular parties. It endures until the temple exists, ifnot revoked earlier. Trustees who take office in the future do so interms of such scheme arid therefore they have every right to ask forfurther orders in the same case in respect of the same scheme. Itis not correct to'look at this case in the light of a dispute betweenprivate parties. It concerns a temple and its temporalities which isa Charitable Trust. The District Court is the guardian of . and incontrol of all Charitable Trusts and for exercising its functions, thesection gives the Court the power to make any order it deemsequitable. It ' can make any order that is fair and just in thecircumstances. The power is set out in the widest possible manner.
SCKurukkal r. 'Kiiriikkul'iSumuriiktum. ('J.)569
The object of this section is to'ensure speedy action and thereby toensure the proper administration of a ChaptajMe Trust. It was alsocontended that no decree capable of execution can be entered insuch a case. It is correct that a formal decree known to the CivilProcedure Code is not entered of record but this is an “order" withinthe meaning of Scc.217 of the Civil Procedure Code and such ofthe provisipns of Chapter XII of that C ode as tire applicable to suchOrders can be utilised. For the above reasons I would set aside theorder of the Court of Appeal. There is however another matta.r tobe considered. The Appellant has been kept out of his rights thesemany years and an equitable order is required in recompense. TheDistrict Judge is therefore directed to cause the Appellant.tb .beplaced in possession of the temple and the pooja rights. The Appellantwill then be entitled to continue as such Managing Trustee for aperiod of 3 years from the date he is so placed in possession. Theperiod of 1 year granted to Trustees in rotation under the schemeof management will commence after the expiration of the said periodof 3 years.
The Appellant will be entitled to costs of appeal in this Court andthe Court of Appeal and also to the. costs of proceedings in theDistrict Court.
WANASUNDERA, J. – I agree.
SOZA, J. – I agree.
KURUKKAL v. KURUKKAL