036-NLR-NLR-V-12-AHAMADO-et-al.-v.-LEBBE-MARICAR-et-al.pdf
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1809.May 19.
Present: Mr. Justice Wendt and Mr. Justice Middleton.
AH AM ADO et al. v. LEBBE MABICAR et al.
D. C., Gatte, 206.
Trustees, application for appointment of—-Written consent of the Attorney-
General—Civil Procedure Code, s. 639.
The written consent of the Attorney-General required bysection 639 of the Civil Procedure Code is a sine qua non for themaintenance of any action for the removal or appointment of anytrustee in respect of a public charitable trust.
Wendt J.—Ordinance No, 7 of 1871 was intended to deal withprivate, and not public, trusts.
r I ''HIS was a proceeding to obtain the appointment by the Court-J- of trustees of a certain public charitable trust created by thelast will of one Uduma Lebbe Marcar Cassim Bawa. The factsare fully stated in the following petition of the applicants :—
“ 1. That the petitioners and 1st, 2nd, and 3rd respondents areMoors, and the 4th respondent Sinhalese, and they reside—the 1stpetitioner at Kaluwella, the 2nd at Talapitiya, and the 1st and 3rdrespondents at Dangedera, the 2nd and 4th at China Garden, allthe said places being within the jurisdiction of this Court.
“2. That Hadjie Marcar Kuppa Tamby, late of Talapitiya,died about July 9, 1874, after executing a last will and testamentdated July 6, 1874.
“3. That the said last will was proved in testamentary caseNo. 2,485 of this Court, and probate issued to the executor 'mentioned therein, Uduma Lebbe Marcar Cassim Bawa.
“ 4. That one of the dispositions in the said will is as follows:—
“ ‘ I will desire that the land called Kekkiribokkewatta at ChinaGarden, which I exempt from the legacies aforesaid, shall be devotedentirely and exclusively to almsgiving, that is to say, that thesaid property shall remain in wakouf, and for that purpose I desirethat from the date of my death iny aforesaid brother shall havethe right to lease the said land, expending the proceeds in charityaccording to the Muhammadan- religion, giving to my aforesaidsisters jointly to exercise the same rights for the purpose aforesaid.’
“ 5. That Uduma Lebbe Marcar Cassim Bawa during his lifetimeobserved the above directions, expending the moneys derived fromthe said premises in charity.
“ 6. That Uduma Lebbe Marcar Cassim Bawa died about June3, 1898, leaving a last will and testament, which has been proved
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in testamentary case No. 3,249 of this Court, and probate issuedto the 1st respondent, the executor mentioned therein.
“ 7. That the persons referred to as sisters in the above last willwere Tanga Umma, wife of Packir Cassim Tamby Saibu, and DeekaUmma, wife of Packir Bawa Packir Kutty.
“8. That Tanga Umma died intestate about nine years ago.,leaving property of less value than Bs. 1,000 and as sole heir herson, myself. That Deeka Umma died intestate about ten years ago,leaving property of less value than Rs. 1.000 and as sole heir her son,the 2nd petitioner.
‘ ‘ 9. That the petitioners are the only persons now living interest-ed in the carrying out of the above trust, and the petitioners are theonly heirs now living of the said Hadjie Marcar Kuppa Tamby.
“10. That the 1st respondent had leased out the above premisesto the 2nd respondent up to April 12, 1908, and the 1st respondentappropriated to himself the rents derived from the said premises.That the petitioners have since April 12, 1908, leased the saidpremises to the 2nd respondent, but the 3rd respondent disputes theright of the petitioners to lease the premises in question, claiming thesame on a purchase from the 1st respondent. The 4th respondentis mortgagee of the 3rd respondent.
“11. That the said premises are bounded on the north by a lotof Kekkiribokkewatta, on the east by the high road, on the southby the high road, and on the -west by Ropewala, and are of thevalue of Rs. 1,000.
“ 12. That, the said last will of Hadjie Marcar Kuppa Tambycontains no provision for the appointment of a new trustee ortrustees, and it has become necessary to appoint a new trustee ortrustees for the purpose of carrying out the said trust.
‘ ‘ 13. That the petitioners are fit and proper persons to beappointed such trustees for the purpose of carrying out the saidtrust.
“ Wherefore the petitioners pray—
1 ‘ (a) That they be appointed trustees as provided in sub-section
of section 4 of the Ordinance No. 7 of 1871.
“ (6) For a notice of their application on the respondents.
“ (c) For costs in this behalf incurred.”
The District Judge (W. E. Thorpe, Esq.) having granted theprayer of the petitioners, the respondents appealed.
H. A. Jayewardene ( C. deJongyrith him), for the appellants.
Bawa, for the respondents (petitioners).
Cur. adv. milt.
1909.
May 19.
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1909.
May 19.
May 19, 1909. Wendt J.—
The object of this proceeding is to obtain the appointment bythe Court of trustees of a certain trust created by the last will-dated 1874 of one Uduma Lebbe Marcar Cassim Bawa, the originaltrustees being dead. The will declared that the property dealt with“ shall be devoted entirely and exclusively to almsgiving, that isto say, that the said property shall remain in walcouf (wakf), and forthat purpose I desire that from the date of my death my brothershall have the right to lease the said land, expending the proceeds
in charity according to the Muhammadan religion” This
purports to create what is clearly a public charitable trust. Section639 of the Code of Civil Procedure, in making provision for suchtrusts, empowers the Attorney-General, acting ex officio, or twoor more .persons interested in the trust, and having obtained theconsent in writing of the Attorney-General to institute an action toobtain a decree removing any trustee, and, if necessary, appointingnew trustees. In my opinion, the consent in writing is a sine qua,non: The section is not merely permissive, but defines the onlyremedy made available to the persons aggrieved. The presentpetitioners, therefore, not having obtained the Attorney-General’sconsent had no right to sue. They profess to proceed under the 'Ordinance No. 7 of 1871. I am disposed to think that that Ordi-nance was intended to deal with private, and not public, trusts. Inthe case of the latter special provision is made by the later Ordinanceenacting the Civil Procedure Code, and that provision must prevail,even if the two Ordinances are in conflict with each other, whichI think they are not.
I think the appeal should be allowed, and the petition dismissedwith costs in both Courts.
Middleton J.—
I agree that the will in question here creates a trust for publiccharitable purposes, and I think I must hold that under the EnglishLaw of Executors the executor of the original trustee must bedeemed to be the present trustee and executor of the trust. Thisperson is, I understand, the 1st respondent-appellant. If this beso, the office is not vacant; and the argument of the learned counselfor the respondent that these are proceedings for the appointment ofa new trustee on the assumption that the office is vacant mustfail.
The proper manner of proceeding is I think, therefore, undersection 639 of the Civil Procedure Code, which I think is intendedto be applied to exactly such cases as this. I agree, therefore, thatthe appeal must be allowed, and the petition dismissed with costsin both Courts.
Appeal (Mowed.