APPUSINNO v. BALASURIYA

102-NLR-NLR-V-16-APPUSINNO-v.-BALASURIYA.pdf


( 386 )
Present: Wood Renton A.C.J. and Ennis J.APPUSINNO v. BALASURIYA.
169—D. C. Matara, 4,393.
Action by trustee of a Buddhist temple—Expiration of time for whichplaintiff was elected trustee—Provisional appointment of sameperson as trustee for purposes of this case—Appointment irregu-lar—Continuation of action after plaintiff ceases to be trustee—Prescription—Cause of action—Trust.
The plaintifE sued the defendant as trustee of a Buddhist templefor the recovery of a sum of money, but before judgment he ceasedto be trustee on the expiration of the term for ■which he was elected,but he was appointed provisional trustee for the purpose of thisaction.
Held, that the Buddhist Temporalities Ordinance gave no powerto appoint a provisional trustee when the office became vaoant byexpiration of time, and that the plaintiff had no status to continuethe action the moment he ceased to be trustee.
The principle, that a case must be decided as at the time of theinstitution of the suit cannot be applied to this case.
T
HE facts are fully set out in the judgment of the District Judge(G. W. Woodhouse, Esq.):—
This is an action by the trustee of the Jayamaha temple at Matarato recover a sum of Rs. 550 as “sanghika” property. The money is saidto have been left by Dammananda Terunnanse, chief incumbent ofthe temple in question, and it was decided by all persons concernedthat the money should be devoted to the maintenance and improvementof the temple. And, for this purpose, it was handed to Don MathesBalasuriya, who was at that time the chief dayaka of the temple. Atthat time there was no trustee, as the Buddhist Temporalities Ordinancehad not yet come into operation. When Don Mathes Balasuriya wasappointed trustee under the Ordinance, which was proclaimed onNovember 15, 1889, by virtue of section 20 of the Ordinance, this moneyvested in him as such trustee.
Don Mathes, however, did not use the money, and at his death themoney remained in the box. The executors of Don Mathes’s will, whowere not themselves appointed trustees for this purpose, handed thebox containing this money to Don Mathes’s sole legatee, his wife.
Before Don Mathes died a dispute appears to have arisen about thechief incumbency of the Jayamaha temple, and this Court decided infavour of Aggasara against Somananda, the fifth defendant, but thefifth defendant was permitted to continue in residence in the temple.Don Mathes had asked who should have the custody of the money, butthe Court did not reply.4 Clearly the trustee was bound to retain themoney until he handed it to his successor.
1913.
30J. N. 35177(1/34)
VOL. XVI.**
. 1913.
Appusinno vBelasuriya
( 386 )
It is alleged by the defendants, and admitted by the fifth defendant,that fifth defendant was given the money by Don Mathes’s wife. Therecan be no question that $he had no right to give it to fifth defendant,
neither had the fifth defendant any right to spend it in building alibrary or any other thing. The right to dispose of the money restswith the trustee. It appears that the fifth defendant pulled down somerooms and erected a substantial building in their site. By whatauthority he did it, or whether that was necessary for the improvementof the temple, does not appear. So far as I can see, he appears to havedone all this for his own convenience and comfort. Besides, moneyappears to have been collected from the congregation for the purpose,and there is no account or reliable evidence to show that the buildingswere not built entirely out of money so collected. I am not in a positionto hold that the Rs. 560 which fifth defendant wrongfully obtainedfrom Don Mathes’s widow was employed in the improvement of thetemple. In my opinion Punchibaba Hamine’s estate must make goodthe money which is subject of this case; and on the principle known as“ following the trust fund,” the money is recoverable from every personwho derived benefit from her estate.
It must be- held that when Punchibaba Hamine chose to take themoney out of the box and use it as she did, she “ mixed up the trustfund with her own money.” That being the case, we must apply therule laid down by Jessel M.R. in the case In re HaUett’s Estate,1and hold that all disbursements so far out of the estate has beenof her own property, and the trustee of the temple has the first claimon any balance that remains of the estate of the deceased PunchibabaHamine, and if that does not suffice, the trustee can follow the trust fundinto the hands of the legatees and even the creditors of the deceased.
The fifth defendant has questioned the right of the plaintiff to main-tain this action on two.grounds : (1) He has not been duly appointed;(2) he is no longer in office.
As to the first contention, we have it in evidence that plaintiff was dulyelected at a meeting of the District Committee by a majority of themembers. The meeting appears to have been convened in the mannerprovided by law. The fact that the notice was signed by only onemember does not matter, seeing that the meeting was called at theinstance of the committee. I hold that the plaintiff is the duly electedtrustee of the Jayamaha temple.
(a) As to whether he is at the present moment functius officio,although he-was elected for a fixed period, which terminated on December31, 1912, after he instituted this case, I find he has since been re-elected,and for all purposes he is still trustee of the temple.
The question of prescription presents some difficulty. Was the breachof trust fraudulent ? If so, prescription does not run. The evidence showsthat the widow, Punchibaba Hamine, favoured fifth defendant againstAggasara, who was the chief incumbent. The act of the widow savoursof fraud, and one might hold that on that ground the claim is not pre-scribed. But even in the absence of fraud no prescription begins torun until a cause of action has arisen; so long as the money remainedwith Mathes, there was no reason to suppose he did not mean to applyit to the purpose it was intended for. Even in the hands of Punchibaba
113 Ch. D. 696.
1913.
( 887 )
Hamine it remained as a trust fund, and she and fifth^defendant were
Aware that it was such a fund. The cause of action really arose when .Punchibaba Hamine failed to hand over the money to the trustee whenjMatwiya*
he demanded it. Clearly, therefore, the claim has not become prescribed.
Let a decree be entered—
As against the executors of the will of the deceased Punchibaba
Hamine, mtfring her estate liable for the payment of thissum of Bs. 650 and costs.
If the balance to the credit of the estate be insufficient, the
fumnrmt or so much of it as has not been satisfied to berecovered from the first, third, fifth, sixth, and seventhdefendants with costs.
The action as against the second defendant and'these defendantspersonally is dismissed, because they did not personally benefit underPunchibaba Hamine’s will, but they shall have no costs.
A. St. V. Jayeurardene, for the first defendant, appellant.
W. Jayewardene, for the plaintiff, respondent.
Cur. adv. vult.
July 8, 1913. Ennis J.—
In this case three points of law only were argued on the appeal: —
Whether the plaintiff was entitled to maintain the action ?
Whether the first defendant should have been substituted?
That the case is prescribed.
The present plaintiff was trustee of the Jayamaha temple at thetime he was substituted for the original plaintiff, who previously heldthe office of trustee. Before the case was concluded the presentplaintiff ceased to be the trustee of the temple on the expiration ofthe term for which he was elected. A few days before judgment,however, he was appointed a provisional trustee for the purpose ofthe action.' In the case of Weerakoon v, Appuhamy 1 it was heldthat the Buddhist Temporalities Ordinance, No. 8 of 1905, gave nopower to appoint a provisional trustee when the office became vacantby course of time, and that there was a power to appoint a provisionaltrustee on the happening only of the events' specified in section 34.
On the authority of that case the provisional appointment of theplaintiff was void.
It was urged that the action should be dismissed, as the plaintiff. could not maintain it. In my opinion, however, as the plaintiff wasable to maintain the action at the time he entered the suit, theproceedings to the time he ceased to be trustee are good, andthe action should not be dismissed altogether. The principle thata case must be decided as at the time of the institution of the 6uitseems to me to have no bearing on this point. The action was byan individual as trustee, and the moment he ceased to have thatstatus, he could not continue the action to bring it to determination.
i (1911) 14 N. L. R. 444.
( 388 )
On the second point-, I am ol opinion that the first defendantwas rightly substituted. He was one of the executors of DonMathes Balasuriya, in whose keeping as trustee the sum nowclaimed was at the time of his death. V passed into the handsof his executors, and from the answer of the first defendant it isclear that he was aware at that time it was trust money, and hewould be responsible if he paid it over to the wrong parties, as hedid in this case.
The third point is more difficult. It was urged on the authorityof Varliano Brothers v. The Bunk of England,l and a statement byLord MacNaghten in the Privy Council -judgment in Corea v. Appu-hamy,2 that the entire law of prescription in Ceylon is now.containedin Ordinance No. 22 of 1871, which superseded Ordinance No. 8 of1884, which was enacted “ to assimilate, amend, and consolidatethe law of prescription of Ceylon.*' Section 11 of Ordinance No. 22of 1871 states that “ no action shall be maintainable in respect ofany cause of action not hereinbefore expressly provided for, orexpressly exempted from the operation of the Ordinance, unless thesame shall have been commenced within three years from the timewhen such cause of action shall have accrued.'* The Ordinancemakes no express mention of prescription against trustees, or eventhat fraud would take a case out of the operation of the Ordinance.In the present case, however, I do not think I need consider thispoint, as I am unable to see that the question of prescription canarise. The first defendant was aware of a trust when he took themoney found among the effects of the testator, and this being so, nocause of action would accrue until demand for payment had beenmade and refused. I have looked at the evidence and cannot findthat this was done.
In my opinion the temple authorities are- much to blame for nottaking any steps for many years after the death of Don Mathes torecover the money, and for leaving the office of trustee vacant forlong periods. I am unable to agree with the District Judge thatthe action of Mathes's widow, Punchibaba Hamine, in paying themoney to the particular person she favoured as incumbent of thetemple, savoured of fraud. There is no evidence that either theexecutors of Mathes or his widow knew whether the trust was infavour of the temple or of the incumbent. The person the widowthought was the .true incumbent claimed the money and she paid him.I can see no reason to doubt the bona fides of the executors or of thewidow in dealing with the money. In fact, it.appears that Matheshimself had doubts as to whom it should be paid, and in some otherproceedings asked for the direction of the Court as to its disposal,but no order was made. In the circumstances, I think it fair thatthe defendants £hould not be called upon to pay the costs of the
plaintiff in the action,i (1891) 16 A. C. 144,146.
2 (1911) 15 N. L. R. 57.
( 389 )
I would set aside the decree of the lower Court and send the casehack far the substitution of a trustee in the place of the presentplaintiff, and for further proceedings, with the condition that thedefendants should not be called upon to pay the costs to date of theplaintiff in the action. I would allow the appellant the costs of theappeal.
Wood Renton A.C.J.—
I have had the advantage of reading the judgment of my brotherEnnis, and I agree to the order which he proposes.
I would only express the hope that the parties to this wretchedlitigation, which has been going on since 1908, may have sufficient,common sense and good feeling to settle it among themselves withoutthe necessity for any further proceedings in a Court of law.
1918.
Emus J.
Appusinno v,Balasurtya