CHELLIAH et al , Appellants, and SAIVA PARIPALAM, Respondent

146-NLR-NLR-V-47-CHELLIAH-et-al-Appellants-and-SAIVA-PARIPALAM-Respondent.pdf


Chetliah v. Saiva ParipaXam.
419
1946Present: Keuneman S.P.J. and JayetUeke J.
CH KTXIAH et ad., appellants, and SAIVA PARIPALAM, Respondent.249—D. C. Jaffna, 16,614.
Evidence—Certified copy of a private document kept at a Kachcheri—Hearsay.The question at issue was whether certain lands were subject to acharitable trust in favour of a certain madam. The main evidence onwhich the trial Judge relied was a document-described as a certifiedcopy of a “ register ” kept at the Jaffa a Kachcheri wherein the landsin question were mentioned as belonging to the madam. It was not,however, established that the “ register ” was made under any statutoryduty on the part of the Government Agent; it appeared to bo a purelyprivate document based on reports “ submitted by the Udayar andVidhanes of the village in question to the Maniagar.”
Held, that the document shouldhave been rejected as hearsay evidence .
420
K EUNEMAN S.P.J.—Chelliah v. Saiva Paripulam.
PPEAL from a judgment of the District Judge of Jaffna.
G. Crosette Thambyah (with him V. K. Kandasamy and G. Sanmuga-nayagam), for the first and second defendants, appellants.
N. Nadarajah, K.C.respondent.
(with him C. RengancUhan), for the plaintiff,
Cur. adv. vult.
September 25, 1946. Keuneman S.P.J.—
The plaintiff, a corporation incorporated under Ordinance 17 of 1931(Cap. 240), sued the defendants to obtain judgment declaring that theproperties mentioned in the schedule to the plaint were subject to thecharitable trust known as the Chidambaram Ambalavanar&wamy Punni-anachy Tharmam and that the plaintiff as the lawful trustees of thesaid trust was entitled to possess the said properties.
Plaintiff obtained judgment as prayed for, and the first and seconddefendants appeal.
There were several matters which the plaintiff had to establish inorder to succeed in this action :—
Was there a charitable trust as described in the plaint ?
Were the three lands described in the schedule to the plaint subject
to the said trust ?
Was the plaintiff the duly appointed trustee in respect of these
three lands ? 1
(1)The plaintiff’s case was that one Punnianacham founded atChidambaram in India and in Jaffna the trust described in the plaintwhich was also known as the Punnianachy Mada Tharmam. It wasalleged that this trust was created for the establishment and maintenanceof a madam or place of rest for pilgrims who go to worship at the famousshrine of Ambalavanarswamy Temple in Chidambaram, South India,and for the purpose of making contributions to the temple for variouspoojahs and other ceremonies of the temple. Under the terms of thistrust a madam was in fact built at Chidambaram but this now appearsto be in ruins.
In this appeal I do not think there has been any real controversy asregards the existence of the trust as alleged. It is in evidence that theplaintiff has been in possession of certain lands and has administeredthose lands for the purpose of this trust. The plaintiff has also obtaineda vesting order as trustee for these lands—not those in the schedule to theplaint. In my opinion the plaintiff has made out a sufficient case in thisrespect, and the District Judge has so held.
It is strongly urged for the appellants that the plaintiff has failedto prove that the three lands described in the plaint are subject to thistrust. It has been established in evidence that the first land Kuranthanand the second land Arachchivayal originally belonged to KamanathanMudaliyar. The thombus of 1822 (P 9 and P 10) strongly support that
KEUNEMAN 8.P.J.—Chelliah v. Saiva Paripalam.
421
contention. There is no proof that Punnianacham was even a des-cendant of Ramanathan Mudaliyar, nor is it shown how Punnianachamobtained any title to the said lands. In fact we know nothing of Punni-anacham and she appears to be a legendary figure. There is no evidencethat Punnianacham dedicated these two lands for the purpose described.It is no doubt also true that the appellants have failed to prove thatthey are the descendants of Ramanathan Mudaliyar. The DistrictJudge has in fact rejected the pedigrees filed by all the parties to thisaction. But the burden rested on the plaintiff, and he has failed to provideevidence to prove this point. As the case now stands there is nothingto show that the legal title to these lands has been transferred away fromthe descendants of Ramanathan Mudaliyar, or that this title ever residedin Punnianacham or in any person who made the dedication in trust.
As regards the third land in the schedule to the plaint, Thalymanodai,the thombu P 11 of 1822 shows that the title stood in the name of “Sith-amparar Ambalavanar Pandaram ”. The appellants contended thatthis was a human being, but the plaintiff alleged that this was the godAmbalavanar Swamy whose shrine at Chidambaram was well known.I think on this point the District Judge was right in holding that thetitle was in the name of the god. But this does not overcome the diffi-culties of the plaintiff. There is no doubt evidence of a trust in favour ofthe god but there is no proof here that the trust was for the specialpurposes alleged by the plaintiff. I think the ordinary natural presumptionwould be that the trust was for the benefit of the temple of the god Ambala-vanar Swamy of Chidambaram, and not for the establishment of themadam or for the other special purposes detailed by the plaintiff. Thethombu P 11 does not disclose the identity of the trustees in whom thelegal title to this land was vested.
The point was of importance because at the trial, though not in theanswer, the appellants maintained that not only the third land but alsothe first two lands in the plaint were held by them in trust for the templeof the god at Chidambaram.
The document P 22 of 1914 was produced to establish the fact that
K.Arumugam, an uncle of the appellants, after declaring that all threelands were held by him as trustee for the Ambalavanar Swamy Templeat Chidambaram, purported to appoint the appellants as co-trusteeswith him to look after and manage the trust properties. There can belittle doubt that Arumugam and the appellants have been in possessionof these lands for a considerable time, although the District Judge hasheld, I think rightly, that the appellants have failed to prove that theyare the descendants of Ramanathan Mudaliyar who was the proprietoraccording to thombus P 9 and P 10 of the first two lands.
In arriving at a decision as to whether the three lands in the scheduleto the plaint were subject to the trust as alleged by the plaintiff, the factsmust be examined.
It is clear that the oral evidence led by both sides must be eliminated,for the District Judge has himself said—“ I think the oral evidencein this case is not very helpful for arriving at a verdict in this case ”,and has rejected the pedigrees pleaded both by the plaintiff and by theappellants.
422
KJEIXNEMAN S.P. J.—CheUiah v. Sttiwt Paripalam.
After discussing the evidence provided by the thombus, the DistrictJudge went on to examine the documents in the case. The first docu-ment he mentioned was P 12, the Paddy Commutation Register, inrespect of the first land in the plaint. The name of the proprietor wasgiven as “ Nadarayar Ambalavanar ”. The District Judge rightlyholds that this is the god. There is no doubt that this provides evidencethat this land was held on trust for the god, but it leaves unansweredthe question whether the trust was in favour of the temple of the godor in favour of the madam and other matters specified by the plaintiff.
Another document is P 13, the Paddy Commutation Register for1884r-1890 in respect of the first lwo lands in the plaint. Under nameof proprietor is entered “ Sitthamparathalam Ambalavanaswamy TempleLand ” and A. Sithamparapillai of Copay is said to be the manager.As the document now reads there is attached a promise to pay the landtax by K. Ramalingam of Vannarponnai. The District Judge is notcorrect in stating that this K. Ramalingam is shown in the documentas “ the person in whose management the two lands were.” Further,in the register itself there is a correction. The original promisor wasput down as Ponnambalam Karthigesar, an ancestor of the appellants,but this name has been scored off and the name of K. Ramalingaminserted.
There is no evidence to show by whom or under what circumstancesthis correction was made. There is some evidence in the case that
K.Ramalingam acted as a trustee in respect of the trust as regardsother lands, not those mentioned in the plaint. But even acceptingthe amendment as genuine—and this is doubtful—there is nothingin the document P 13 to prove that KL. Ramalingam was a trustee inrespect cf the lands mentioned in the plaint.
Document P 14 tells against the pedigree of the appellants but doesnot carry the case of the plaintiff any further. The same commentmay be made as regards P 15. Documents P 16 and P 17 relate to aland not mentioned in the plaint, of which the manager was the
K.Ramalingam previously mentioned.
Documents P 28 and P 35 relate to an action in which K. Ramalingamwas sued on a bond and admitted the claim as trustee of the madamin question. The plaintiff in that case proceeded to seize the first twolands mentioned in this plaint in virtue of his decree but there is nothingto show what followed on this seizure and there is no evidence thatthese lands were sold in execution. These documents are thereforeinconclusive on the question we have to decide.
The main document on which the District Judge relied was P 36,which is described as a certified copy from “ a register of gifted landsbelonging to the Chidambaram Ambalavanarswamy kept at the JaffnaKachcheri. ” This was apparently prepared on February 20, 1906.The first two lands in the plaint are mentioned in the “ register ”, andunder the column “ Belonging to which madam ” was entered “ ThePunnianachcham madam ”. Under the column “ Name of person whois possessing now ” was entered the name of K~ Arumugam, the uncleof the appellants.
KETJ NEMAN S.P.J.— ChelUah v. Saiva Parvpalarn.
423
It has not been established or even suggested that the “ register ”(P 36) was made under any statutory duty on the part of the Govern-ment Agent. It appears to be a purely private document. It had noteven been shown for what purpose this document was made or on whoseauthority. We do not know what enquiries were made in this connectionor from whom. All that the document indicates is that it was based onreports “ submitted by the Udayar and Vidhanes of the village in ques-tion to the Maniagar.” What knowledge these persons had or couldhave had with regard to the title to these lands or the nature of thetrust affecting them has not been shown. The learned District Judgehas come to the conclusion that “ the document P 36 clearly showsthat K. Ammugam recognised that at least lands Nos. 1 and 2 in theschedule to the plaint belonged to the Punnianachchimadam.”
It is clear that the District Judge is wrong in this finding. Nothingin the document shows that EL. Arumugam recognised the equitabletitle alleged by the plaintiff. In fact we do not even know whetherany enquiries were made from K. Arumugam in this connection. Inmy opinion the document P 36 should have been rejected as hearsayevidence. No section of the Evidence Ordinance makes this documentadmissible. Even if it was admissible I do not think any weight can heattached to this evidence.
Another document mentioned by the District Judge is deed P 21of 1913 whereby Pararajasingham, the owner of the land on which thePillayar Temple stood on the west of the first land in the plaint, conveyedthat land to the Pilayar Temple. In the deed the eastern boundaryof the land conveyed is described as property belonging to the Punni-anacham Mada Tharmam, i.e., the madam in question in this case.I do not think this document is of any value, more especially as theoral evidence of Pararajasingham has not been accepted by the DistrictJudge.
One other document may be mentioned, P 5, which consists of proceed-ings brought by the plaintiff in 1938 against 16 persons : (It is to benoted that the appellants were not among those 16 persons) to obtaina vesting order under section 112 of the Trust Ordinance in respect ofcertain named lands. These lands however did not include the threelands mentioned in the plaint. A vesting order was in fact obtained bythe plaintiff in respect of the named lands “ and other properties belong-ing to the said Tharmam ”, i.e., the madam in question. It was arguedthat the vesting order included all lands even though they were neithernamed nor described. I have considerable doubts whether lands whichwere completely unidentifiable in the proceedings could be said to havebeen vested in the plaintiff, and I have further doubts whether the vestingorder hound parties who were not parties to the proceedings in whichthe vesting order was obtained.
Put it is not necessary in this appeal to decide these points becausethe vesting order in fact throws no light upon the question whetherthe three lands mentioned in the plaint were subject to the trust allegedby the plaintiff.
In the circumstances it is not necessary to decide the furtherquestion whether the plaintiff has proved that he is the duly appointed
424
SOERTSZ A.C.J.—The King v. Fonaeka..
'trustee in respect of these three lands. All I need say is that a numberof difficult and controversial points have been argued in this connection.It is also clear that the plaintiff has never been in possession of thesethree lands as de facto trustee.
In the result I set aside the judgment of the District Judge and dismissthe plaintiff’s action as against the first and second defendants, who willhave costs in both courts.
Jayetzlekb J.—I agree.
Appeal allowed.