156Sri Lanka Law Reports 2 Sri L.R
CANAGARATNAM AND OTHERSv
KARTHIKEYA KURUKKAL AND ANOTHERSUPREME COURT.
DISSANAYAKE, J. ANDRAJA FERNANDO, J.
S.C. APPEAL NO. 32/2003S.C. SPECIAL L.A. No. 260/2001
A. NO. 947/97
C. CHI LAW 135/TRUST
DECEMBER 3RD. 2004MARCH 18th, 2005JULY 26TH, 2006JULY 27th, 2006 ANDSEPTEMBER 13TH, 2006
Trust Ordinance – Section 42(2) – Intervention in the proceedings after the sale ofthe property – the position of intervenient respondents.
The 2nd petitioner acting as Attorney for the 1st petitioner applied to the DistrictCourt in terms of Section 42(2) of the Trust ordinance seeking Court permission tosell the land described in the petition. The learned District Judge allowed theapplication. Subsequently, in terms of the order the property was sold and theproceeds were utilized/invested for the benefit of the temple.
The intervenient-respondents sought to intervene in the proceedings where theDistrict Judge had already made order for the sale of the property in terms ofSection 42(2) of the Trust Ordinance and all transfer deeds were duly executed. TheDistrict Judge dismissed the application of the intervenient-respondents on theground that the Court is functus after its order dated 20.11.1996, allowing thepetitioner’s application under Section 42(2) of the Trust Ordinance. The intervenient-respondents then sought to revise the order of the District Judge in the Court ofAppeal. The Court of Appeal on 12.11.2001 set aside the order of the District Judgeand directed the District Judge to hold a full inquiry into the objections of the addedintervenient-respondent-respondents. Against this order the appellants appealed tothe Supreme Court.
Canagaratnam and others v Karthikeya Kurukkal and another ^ 57
( Nihal Jayasinghe, J.)
The application made by the intervenient-petitioners to add them as partiesis misconceived in law, for the reason that section 42(2) has not envisagedciting of parties as respondents and secondly, in any event when the orderfor sale was made the proceedings are at an end and the District Judge isfunctus.
An application for a declaration that deeds executed in 1940, deedsexecuted in 1967, and the deed executed in 1977 be declared invalidcannot be considered in an application for intervention.
The intervenient had no sustainable right to claim trusteeship even in aproperly constituted vindicatory action."
Per Nihal Jayasinghe, J-
"An application under Section 42(2) of the Trust Ordinance ought not to beconfused with the representative action in terms of Section 16 or Section 18 ofthe Civil Procedure Code."
Karthigesu Ambalavanar v Subramaniam – 27 NLR 16.
Kalimuttu etalv Muttusamy 27 NLR 193
APPEAL from the judgment of the Court of Appeal.
K Kanag-fswaran, P.C. with R. Balasubramaniam and Nigel Bartholameusz forappellants.
Ms. U.H.K. Amunugama for respondents.
May 11, 2007
NIHAL JAYASINGHE, J.The 2nd petitioner acting as attorney for the 1 st petitioner applied tothe District Court of Chilaw in terms of Section 42(2) of the TrustOrdinance in Case No. D.C. Chilaw 135/Trust seeking permission ofCourt to sell the land set out in the schedule to the petition in allotmentsor as an entire unit and the learned District Judge allowed theapplication by order dated 20.11.1996. Subsequently, in terms of theorder of the learned District Judge the property was sold and transferredand the proceeds thereof utitized/invested for the benefit of the temple.However, the 1st to 6th intervenient respondent-petitioners-respondents (hereinafter referred to as intervenient respondents) bypetition dated 20.02.1997 sought to intervene in the proceedings wherethe District Judge of Chilaw has already made order for the sale of theproperty in terms of Section 42(2) and all transfer deeds duly executed.The intervenient respondent sought inter alia.
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to be added as parties in the proceedings Court has alreadymade order,
a declaration that the intervenient respondents are trustees,
to set aside the vesting order made in case No.9/Trust of20.06.1958,
a declaration that the deeds Nos. 1289 and 1295 executed in1940, No. 4158 executed in 1967 and No. 4699 executed in 1970as invalid,
c) and an interim injunction restraining the petitioners fromfunctioning as trustees selling or leasing lands including the landsset out in the schedule to the original petition and interfering withthe intervenients from functioning as trustees.
The appellants contend that the reliefs claimed by the intervenientrespondents could only be sought in a separate properly constitutedaction and not in the D.C. Chilaw No. 135/Trust. The appellants alsocontend that the learned District Judge fell into error when heentertained the application of the intervenient respondents and issuingand enjoining order ex-parte restraining the petitioners from
"selling, leasing, mortgaging or in any other way alienating orencumbering the lands of the temple trust includingthe land described in the schedule to the petitionof the petitioner" and also issuing notice of interim injunction.
when the learned District Judge by his order dated 20.11.1996 hadalready allowed the application to sell the land. Consequent to the saidorder the transfer deeds in respect of the property been executed andtitle passed. The appellants questioned the validity of the order made bythe District Judge on the basis that such order was wholly untenable inlaw in that the application of the appellants under Section 42(2) of theTrust Ordinance stood concluded and also for the reason that theintervenient respondents have not been added as parties and weremerely seeking to be added. The appellants also contend that theapplication before the District Court was an application under Section42(2) of the Trust Ordinance and that it was not an action betweencontesting parties which inquired adjudication on competing claims.However, when the matter came up before the District Court of Chilawagain on 18.03.1997 the learned District Judge refused the extension ofthe enjoining order and also refused the application to add the
SQ Canagaratnam and others v Karthikeya Kurukkal and another 1 gg
( NihalJayasinghe, J.)
intervenient respondents as parties. No appeal was preferred againstthis order. However, the appellants complain that the District Judgehaving refused the extension of the enjoining order and also havingrefused the application of the inten/enient respondents to be added asparties and instead of dismissing the application of the intervenientsordered parties to file written submissions. On 07.05.1997 theintervenient respondents renewed the application to be added asparties without disclosing to Court the fact that their application to beadded as parties have been refused on 18.03.1997, the Court alsomade order restraining the 1st petitioner from disposing the land inquestion. On 24.09.1997 a further petition was presented by theintervenient respondents to set aside the deeds of transfer alreadyexecuted. Transferees however were not made parties to theapplication. On 22.10.1997 the learned District Judge dismissed bothapplications of the intervenient respondents dated 27.02.1997 and
on the basis that the Court is without jurisdiction after itsorder of 20.11.1996 allowing the petitioner's application under 42(2) ofthe Trust Ordinance. The intervenient respondents then sought to revisethe order of the District Judge in the Court of Appeal. The Court ofAppeal on 12.11.2001 set aside the order of the learned District Judgeand directed that the District Judge hold a full inquiry into the objectionsof the added intervenient respondent-respondents. The petitioners(appellants) contend that the application in D.C. Chilaw 135/Trust wasin terms of Section 42(2) of the Trust Ordinance for the sale of trustproperty and that those proceedings were concluded and transferdeeds executed. That purported petitions of the intervenientrespondents were misconceived from the inception.
The respondents submit that an application dated 27.02.1997 wasfiled in the District Court of Chilaw for the purpose of having the ordermade under Section 42(2) to sell the trust property dated 20.11.1996 setaside. Subsequently, a further petition dated 24.09.1997 was also filedto set aside the deeds transfer. The learned District Judge allowed theapplication of the intervenient respondents and added them in terms ofSection 18 of the Civil Procedure Code. The learned District Judgehowever by his order dated 22.10.1997 dismissed the application of thepetitioner on the ground that it was not made in accordance with theprovisions of Section 102(3) of the Trust Ordinance. The intervenientrespondents sought to attack the sale of the land on the basis that therewere no respondents to the said application for the sale of the land. That
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tiie appellants failed to make any of the beneficiaries parties to theapplication. That the appellant could have made an application underSection 18 of the Civil Procedure Code and added certain number ofdevotees and or worshippers as respondents to this application. Suchan exercise would have yielded the opportunity to ascertain whether thepurported sale is in the best interest in the temple. That no evidencewas led to establish the suitability of the purported sale. Application forsale was made by the holder of the power of attorney and not by thetrustees. That there was in short collusion in the sale of property. That itwas in these circumstances that the respondents made an applicationon 05.03.1997 to intervene in the proceedings.
Mr. Seneviratne, President's Counsel submitted that the interventionby the intervenients were inspired by their need to protest the trustproperty of the temple and no other consideration. I have not theslightest doubt that their intentions were honourable. Mr. Kanag-Iswaran, President's Counsel in the course of his submissions did notseek to assail the integrity of the intervenients. But urged that theintervenients ought to comply with the procedure set out in the TrustOrdinance. Petitioners came to the District Court of Chilaw for an orderunder Section 42(2) of the Trust Ordinance for the sale of property setout in the schedule to the petition in case No. D.C. Chilaw 135/Trust. Hesubmitted that an application under Section 42(2) of the TrustOrdinance is one that was made for the sale of trust property and theCourt having considered the propriety of the application would make anappropriate order. The application under Section 42(2) ought not to beconfused with the representative action in terms of Section 16 orSection 18 of the Civil Procedure Code. He submitted that an actionwhich concerns breach of a Hindu Charitable Trust must be by way ofa regular action in terms of Section 102 of the Trust Ordinance by fivepersons interested in the trust and after having first presented thepetition to the Government Agent of the administrative district andobtained a certificate that inquiry has been held. He submitted that anymisfeasance or breach of trust not governed by Section 102 of the TrustOrdinance, the proper procedure is which is laid down in Section 101 ofthe Trust Ordinance is by way of a regular action after not less than twopersons having an interest in the trust and having obtained the writtenconsent of the Attorney-General. The learned President's Counselreferred Court to the Laws and Customs of Tamils of Jaffna by H.W.Thambiah page, 14 and 15. Thus:
qq Canagaratnam and others v Karthikeya Kurukka! and another -|61
( NihalJayasinghe, J.)
"The scope of Section 101 of the Trust Ordinance is explained byBertram C.J. in Karthigesu Ambalavanarv SubramaniamPr Hesays "Section 101 deals with public charitable trusts generally. Themachinery of that section is set in action either by the Attorney-General or two persons having an interest in the trust acting by hisauthority. Section 102 deals with a special class of charitabletrusts, namely, those relating to place of religious worship orreligious establishments or places of religious resorts. Themachinery of this section may be set in motion by any five
worshippersTo prevent the section being used for the
purposes of faction, it is declared that a certificate of theGovernment Agent of the nature specified in sub-section 3 shall benecessary before such action is instituted."
I cannot but accept this submission of the appellant that theapplication of the intervenient respondents is clearly out side the realmof the Trust Ordinance and misconceived in law. The intervenientpetitioners in their applications to Court sought number of reliefs. Asregards the application to be added as parties such application ismisconceived in law, firstly for the reason that Section 42(2) has notenvisaged citing of parties as respondents and secondly in any eventwhen the order for sale was made the proceedings are at an end andthe District Judge functus.
The intervenient petitioners also sought a declaration that they bedeclared trustees and also to set aside the vesting order made in caseNo. 9/Trust on 20.06.1988. The position of the intervenient respondentsthat the intervenient respondents' ancestors were trustees and as suchthey be declared lawful hereditary trustees of the temple, ismisconceived and that the claim to trusteeship of the ancestors of theintervenient respondents have been rejected in the case of Kalimuttu etal v Muttusamyl2) However the petitioners rights have been clearly setout in documents P3 and P3A; the intervenient respondents in thisinstance had no sustainable right to claim trusteeship to the temple,even in a properly constituted vindicatory action. As stated by H.W.Thambiah in The Laws and Customs of the Tamils of Jaffna'page 13.
"When a person claims to be a trustee against another, the properaction to establish his right is an ordinary action for a declarationthat he is a trustee. He cannot in such a case bring an action under
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Section 101 and 102 of the Trust Ordinance, because the objectof these sections is not to determine the conflicting rights of privateindividuals but to devise the method for fully carrying out thepurpose of the trust'.
As regards the application for a declaration that the Deeds Nos.1289 and 1295 executed in 1940 and Deeds Nos. 4158 executed in1967 and 4699 of 1977 declared invalid, cannot be considered in anapplication for intervention. I have considered the submissions ofCounsel carefully. I am of the view that the Court of Appeal was in errorwhen it sought to direct the District Court to hold a full inquiry into theobjections of the intervenient-respondents-petitioners.
The judgment of the Court of Appeal is set aside and the appeal isaccordingly allowed. I make no order for costs.
DISSANAYAKE, J.-I agree.
RAJA FERNANDO, J. -I agree
Judgment of the Court of Appeal set aside.
CANAGARATNAM AND OTHERS v. KARTHIKEYA KURUKKAL AND ANOTHER