045-NLR-NLR-V-31-ABEYSEKERE-v.-MARALIYA.pdf
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Present : Fisher C.J. and Drieberg J.
ABEYSEKERE v. MARALIYA.193—D. C. Ratnapura 4,949.
Buddhist Temporalities—Disbursements by trustee—Sanction of DistrictCommittee—Prescription.
Disbursements made by a trustee appointed under the BuddhistTemporalities Ordinance for purposes mentioned in section 20 ofthe Ordinance are not irregular merely because they have notreceived the sanction of the District Committee.
Where an action is brought by a trustee against his predecessorto make good a deficiency of money which should have been bandedto him when he assumed the office,—
Held, that the cause of action arose on the date when he assumedoffice and that it was prescribed in two years.
T
HIS was an action instituted by the trustee of the KiriellaNedun Vihare to recover a sum of Rs. 3,121.83 from the
defendant, who was the predecessor of the plaintiff in the said officeof trustee. It was alleged that the accounts of the vihare had beenexamined and audited and that the auditor had surcharged severalitems of expenditure incurred by the defendant during his period ofoffice,, which amounted to the sum .claimed. The learned 'DistrictJudge held that the expenditure required the sanction of the DistrictCommittee and gave judgment for the plaintiff for the sum ofRs. 1,371.83.
H. F. Perera (with WijeijewarJena), for defendant, appellant.
Navaratnam, for plaintiff, respondent.
October 22, 1929. Fisher C.J.—
In this case the plaintiff, ‘‘ the duly appointed trustee of theKiriella Nedun Vihare under the provisions of Ordinance No. 8 of1905 for the years 1928 to 1930 ” (paragraph 1 of plaint), sued thedefendant, who “ was the duly appointed trustee of the KiriellaNedun Vihare for the years 1920 to 1927 and officiated as trusteeduring the said period ” (paragraph 2 of plaint), “ to recover the aggre-gate sum of Rs. 3,121.83 with interest thereon from date of actiontill payment in full at 9 per centum per annum for the benefit ofthe Kiriella Nedun Vihare ” (paragraph 6 of plaint). The plaint(paragraph 3) alleges that “ in pursuance of a commission issued by
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the Court under the provisions of Ordinance No. 8 of 1905 . . . -the accounts of the said Kiriella Nedun Vihare for the first andsecond halves of 1926 and the second half of 1925 ” were examinedand audited. In the auditor’s report which is annexed to the plaintthe auditor surcharged several items of expenditure and the actionwas brought to recover the total amount of these items. There isno allegation of fraud- in the plaint, and we must therefore considerthe case on the basis that the payments were in fact made. Thepayments in question were as follows: —
A sum of Rs. 1,700 alleged to have been paid to the incumbent
of the vihare for the purchase of goods for the pansala.
A sum of Rs. 176.83 alleged to have been paid to one M. S.
Arnolis, chitra gura, for extra work done and not includedin the deed of agreement.
A sum of Rs. 250 alleged to have been spent on pansalawatta.
A sum of Rs. 300 alleged to have been paid to the incumbent
to proceed to Anuradhapura-on pilgrimage.
A sum of Rs. 224 alleged to have been paid to one D. H.
Karunaratne as compensation for loss sustained by himon his purchase of plumbago belonging to the Vihare fromthe said defendant.
(/) A sum of Rs. 221 alleged to have been spent on repairs to thepreaching hall.
(g) A further sum of Rs. 250 alleged to have been paid to theincumbent to go on a pilgrimage.
In giving judgment the learned Judge said:" The priiicipal
objection to the expenditure in the case of all the items except (c),Rs. 250 for clearing the temple land, is that it has not been authorizedby the District. Committee; item (c) has since been passed by theauditor and may be struck out of the case. The District Committeeappointed under the Buddhist Temporalities Ordinance of 1905consists of a president and two members. There is nothing in theOrdinance requiring the sanction of the Committee for expenditureby the trustee. But section 12 (c) says ‘ The Committee shall makerules for prescribing the form in which all accounts, statements, andreturns incidental to their business and that of the trustee shall bekept. ’ Rule 21 framed under section 12 of the Ordinance andpublished in Government Gazette of September 1.1, 1914, says thattrustees shall keep a cash book in the form D annexed to the rulesin which shall be entered all money, &c., coming into their handsand all expenses incurred bv them. Rule 22 says that trustees shallkeep a voucher book in the form E annexed and one of such vouchersshall be filled up for every payment made by them. In the speci-mens of both these forms D and E occur the words ' date of sanction
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and No. of authority given by the District Committee. ’ It maytherefore be inferred that the sanction of the Committee is neces-sary,” In the result judgment was given for Rs. 1,371-83.
In my opinion, except as regards item (e), the only test to beapplied in considering whether these payments were properly orimproperly made is whether or not they were authorized by section20 of the Buddhist Temporalities Ordinance, No. 8 of 1905. Thatsection vests in a trustee all the property belonging to the temple andall the offerings made for the use. of the temple, other than thosewhich are offered for the exclusive use of any individual priest, andempowers him to appropriate “ the issues, rents, profits, or offeringsfor the purposes enumerated in the section, and any paymentsmade for any of those purposes cannot be regarded as improper ormade ultra vires merely because the sanction and approval of theDistrict Committee was not obtained. That the section empowersn trustee to make such payments is emphasized by section 21 (J>)which imposes the duty on trustees of keeping accounts “ of thedisbursements made by them ** for the purposes defined in section 20.The learned Judge has drawn the inference that the sanction of theDistrict Committee is a condition precedent to the payments beinglawfully made from the fact that in two of the forms appended tothe rules made by the District Committee under section 12 of theOrdinance there occur the words “ date of sanction and No. ofauthority given by the District Committee.** However desirableit may be for trustees to make only such payments as the DistrictCommittee approve of, the mere occurrence of these words in theseforms cannot in my opinion fetter or derogate from the expresspowers of expenditure which are vested in trustees under section 20.In considering these payments, therefore, on that basis they wereall of them, except three, namely, items (d), (a), and (g), paymentswhich in my opinion the trustees were authorized by section 20 tomake. The learned Judge has deducted Rs. 200 from item (a),but that sum represents expenses which were incidental to thepurchase of numerous necessary articles for the temple and includedcost of carriage and I think, that in the absence of any evidence thatthe sum charged is unreasonable, it should be taken to have beenduly made. Item (a) was a refund of the purchase money forplumbago got from the temple. The refund was made on the groundof some defect in quality. It is not therefore in my opinion apayment out of the *' issues, rents, profits, or offerings ” within themeaning of section 20 ; it was merely an adjustment of liabilityunder a contract which it was within the power of the trustee tomake as the person in whom the property of the temple was vested.
I do not think the defendant can be called upon to refund thispayment. With regard to the other items, the two items which, inany opinion, do not come within the provisions of section 20, even
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giving it the most generous and comprehensive construction, areitems, (d) and (g). As to these two items I think, subject to thequestion of prescription, they are sums which the plaintiff is entitledto call upon the defendant to refund:
With regard to prescription, this action does not, in my opinion,come within the exceptions mentioned in section 111 (1) of theTrusts Ordinance, No. 9 of 1917, but is one to which sub-section (2)of that section is applicable and must be regarded as an action for“ loss, injury, or damage '* within the meaning of section 10 of thePrescription Ordinance, No. 22 of 1871. The period of prescriptionin that section is two years, and the question is whether this actionwas begun within two years from the time when the cause of actionarose. The payment (d) was made on June 20, 1926, and the pay-ment (<?).was made on July 25, 1925, and the action was brought onNovember 7, 1928. It is clear from the plaint that the action isbrought by the plaintiff under section 30 of the Ordinance, althoughstrictly speaking the caption should have been in accordance withthat section. The action is in effect one to make good a deficiencyof money which should have been handed over to the plaintiff by hispredecessor when he assumed the office of trustee. In my opinionthe period of prescription runs, at the earliest, from the day whenthe trustee assumed office, and that being so the action was broughtwell within the period of two years. Under these circumstancesI think that the decree of the learned Judge should be varied andthat a decree should be entered for the plaintiff for Rs. 550.
As regards costs, I think the proper order under the circumstanceswill be that the plaintiff should have the costs in the District Courton the basis of his having originally brought the action for Rs. 550,and there will be no order for costs of this appeal.
Drieberg J.—I agree.
Decree varied.