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Present: Bertram C.J. and De Sampayo J.
APPUHAMY v. TINANHAMI.
121.—D. C. Kurunegala, 5,489.Action brought by trustee of a temple—Expiry of term of office beforejudgment—Paymenttotrustee—Indebitisolutio—BuddhistTempo-
ralities Ordinance—Election of trustee—Is formal act of appoint-ment necessary?
Plaintiff brought thisaction as trustee of a Buddhist temple.
Before judgment his term of office had expired, but he continued,nevertheless, to act as de facto trustee. When the property of thedefendant was seized in execution, he paid a sum of – money to getit released.
The defendant claimed the moneyback ontheground that
plaintiff was not entitled to receive it at the time. At the date ofthe application plaintiff was re-elected as trustee, but he had notreceived his formal appointment.
Held, that defendant was not entitled to recover the money paid.A formal – appointment is not necessary to constitute the personelected a trustee.
facts are set out in the judgment.
A. St. V- Jayawardene, for appellant.—In terms of section 17 ofOrdinance No. 8 of 1905 the plaintiff ceased to be trustee alter theof three years from the date of his appointment, so that when
( 340 )
1848. judgment was entered the plaintiff was not trustee. He had, there-fore, no right to execute the judgment. Any money recoveredtanhami thereunder was so recovered by a person who had no status.
(Appusinno v. Balasuriya.1)
The plaintiff has failed to prove his re-appointment as trustee.The letter he produces is signed by the Secretary, and there is noprovision in law by which the Secretary may be delegated with thefunctions of the President, who alone can sign the document, tomake it prima facie proof of appointment as trustee.
Appellant may have to pay this money over again.
[De Sampayo J.—No court will compel a person to pay twiceover.]
Counsel referred to Mohamadu v. Ibrahim.2
O. Koch, for respondent, not called upon.
February 26, 1919. Bertram C.J.—
This was an action instituted by the plaintiff at a time when hewas trustee of a Buddhist temple. Before judgment his trusteeship,in accordance with the terms of the Buddhist Temporalities Ordi-nance, had expired. He, nevertheless, continued to act as de factotrustee, and purported to recover. judgment in the capacity oftrustee of the temple. The property of the defendant was seizedunder the judgment, and in order to release that property, be paidthe amount of the execution debt into Court. He has since dis-covered that both at the date of the judgment and at the date ofthe execution the plaintiff was not in fact de jure trustee. As amatter of fact, the plaintiff is now de jure trustee once more. Anelection has been held, though no formal act of appointment hasbeen given to the plaintiff; an act of appointment is not neces-sary to constitute him a trustee. It is sufficient if he has beenduly eleoted, and there seems no doubt that he has been dulyelected, and he is, therefore, trustee once more.
What the defendant seeks in the matter now brought before usis this. He wishes to recover part of the money which he paid inexecution of the judgment, on the ground that this payment wasa case of indebiti solutio. I do not think that that contention canbe sustained. Judgment had been recovered by the plaintiff in acertain capacity against the defendant; that judgment constitutes,In effect, a declaration ithat the defendant was indebted to theplaintiff in the capacity in which the plaintiff sued. It was, ineffect, a declaration that at the date of the judgment the plaintiffpossessed that capacity, and in that capacity was entitled to themoney adjudged. The sum, therefore, was due, unless and untilthe judgment was set aside, and in satisfying the judgment I do notthink that the defendant could have been said to have paid a sumnot due. The defendant in this Court expresses the apprehension
* (1895) 2 N. L. R. 36.
1 (1913) 16 N. L. R. 385.
that he might conceivably be compelled to pay this sum over again.Mr. Jayawardene, however, has brought to our notice a case whichis fatal to his own contention, namely, the case of Mohamado v.Ibrahim 1. It is there said that no authority is needed to establishthe principle that the law will not compel a person to pay a sumof money a second time which he has paid already under thesanction of a court of competent jurisdiction, but a person seekingto benefit by this principle must have done all that was incumbenton him to resist the payment.
In this case the defendant not having had notice of the fact thatthe plaintiff had ceased to be de jure trustee was 'under no obligationto resist payment of the judgment which was in process of beingenforced against him. I do not think that he had any reasonableground to be apprehensive on the point.
I may say that I have considered the case of Appueinno v. Bala-suriya 2 cited to us in the course of the argument. I do not thinkthat that case has any application here, because in the presentcase no new trustee has displaced the person who instituted thesuit. What happened in the present case was that there was aninterregnum,, during which the plaintiff continued to act de facto astrustee. I would, therefore, dismiss the appeal, with costs.
De Sampayo J.—I agree.
APPUHAMY v. TINANHAMI