038-NLR-NLR-V-07-DANIEL-v.-SARANELIS-APPU.pdf
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DANIEL ». SARANELIS APPU.D. C. Galle, 5,749.
Partition suit by trustee of Buddhist vihare—Ordinance No. 3 of 1889, s. 30-
Ordinance No. 10 of 1863.
The Ordinance No. 10 of 1863 was not intended to. be limited topersons who have an absolute ownership in the property, but includesalso one who has an undivided share vested in him as trustee.
The power which section 30 of the Buddhist Temporalities Ordi-nance gives to trustees is wide enough to include a right to bring apartition suit, when he finds it inexpedient to hold together withco-owners the land vested in hint.
A
CTION for partition. The plaintiff claimed to be the trusteeof the Ruanwella Vihare in Kataluwa, and tjie land ^sought
to be partitioned was the land on which the vihare stood. Healleged that as such trustee he was entitled *to an undivided two-fifths share of the land.*
The claim for partition was resisted by the eighth defendant andone Silva, an added party, on the ground'that the District Com-mittee had no right to* appoint .the plaintiff as a trustee of the
1903.May 2.
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1903. vihare under the provisions -of the Ordinance No. 3 of 1869,May 29. inasmuch as the land had been dedicated as sanghika property,and the donors, who were private persons, had appointed certainpersons. as trustees- of the temporality by deeds of endowment.They also raised defences on the merits.
At the trial it was agreed to have the following issues triedfirst: —
Had the Provincial Committee authority to appoint the
plaintiff as trustee?
Can plaintiff as trustee institute an action for the parti-
tion of the land?
The District Judge gave the following judgment: —
‘ ‘ I hold that the Provincial- Committee had power to appointplaintiff trustee of Bangwella Alutvihare, and that if this land isan. endowment of that vihare it is vested in plaintiff.
“ Proviso 3 of Ordinance No. 3 of 1889 does not exclude thisland from the operation of Ordinance No. 3 of 1889. Prior to thepassing of the Buddhist Temporalities Ordinance the endowmentof a vihare passed to the pupil who succeeded to the incumbency.
“ Now they are vested in a trustee (3 N. L. B. 383.)
“ Plaintiff cannot institute an action such as this, which is for apartition of the land. A partition is not requisite for carryinginto effect the objects of the Buddhist Temporalities Ordinance(section 30 of Ordinance No! 3 of 1889). The vihare’s interest inthis land, besides, does not admit of partition. It might be soldunder the provisions of the Entail and Settlement Ordinance,1876. It does not follow, because it might be so sold, therefore itmight be partitioned (see judgment of Bonser, C.J., in Koch’sSupreme Court Decisions, 1899, p. 55).
“ In view of my verdict on the second issue I dismiss this actionwith costs. ”
The plaintiff appealed.
The case was argued before Layard, C.J., and Wendt. J., on the29th May, 1903.
Van Langenherg and Batuwantudawa, for appellant.
H. Jayawardene, for respondent.
*
29th May, 1903. Layard, C.J.—
In this case I do not see my way to affirming the order of theDistrict Court. The plaintiff claims a,s trustee of the Minuwan-goda temple to be entitled t6 the possession as trustee of thattemple of an undivided two-fifths share of the land sought to bepartitioned in this suit. It is argued, however, for the respondent
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that as trustee of this temple he is not in a position to bring a 1903.partition suit under Ordinance No. 10 of 1863. It is contended M°ythat section 30 of the Buddhist Temporalities Ordinance, No. 3 Lavabd.C.J.of 1889, does not authorize the trustee, to do more than recoverany property vested in him as trustee, or to sue to be placed inpossession thereof, or to recover rents accruing from tenants inoccupation of such property or to recover damages in the event oftrespass on temple property vested in him as trustee. It appearsto me that the respondent’s counsel has' not given a sufficientlywide interpretation to the words of section 30 “ and for any otherpurpose requisite for carrying into effect the objects of thisOrdinance ”. He admits that the words would cover an action fordamages and an action for rent; but he says that they do notextend to the bringing of a partition suit, as a partition suit isexpressly excluded from section 30 of Ordinance No. 3 of 1889.
I think the power which that section gives to trustees to sue for" any other purpose requisite for carrying into effect the objectsof the Ordinance " is so wide that it would include the right of thetrustee, when he finds that it is inexpedient to hold the landvested in him together with his other co-owners, to bring a parti-tion suit under Ordinance No. 10 of 1863; and certainly I can findno words expressly excluding the bringing of a partition suit inthat section.
Now, it is further suggested that a trustee is not an ownersuch as is contemplated by the Partition Ordinance, No. 10 of1863. It appears to me that Ordinance No. 10 of 1863 was notintended to be limited to persons who have an absolute ownershipin the property, but that it also includes one who has an undividedshare vested in him as" trustee. The English Courts have alloweda partition suit to be brought by freehold tenants in possession,whether they, are entitled in fee simple, or in fee tail or for life,and there have been cases in which they have allowed a partitionaction where an estate was vested in a person for a term of yearsonly. The trustee under the Buddhist Temporalities Ordinanceappears to me to be the ownen of the temple property subject tothe terms of the trust on which the property is vested in him, anclI see no reason why he should not be, allowed to bring an actionfor partition under Ordinance No. 10 of 1863. No .authority has*been cited to us in which it has been held that si/ch a trusteecannot bring a partition suit under that Ordinance. This Courthas recognized the rights of executors and administrators as partiesto a partition suit under Ordinance, No. 10 of 1863, and havingallowed trustees to be parties in such suits I see no reason- whya trustee created by statute should be excluded from the right of
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IMS. bringing a partition suit, unless there is. anything in the statuteM'ay29.limits the power of the trustee and prohibits him from
Layabd.C.T. bringing such an action.
This case must be remitted to the District Court to be proceededwith under the Partition Ordinance. I desire, for the informa-tion of the District Judge, to say that in remitting this case to theDistrict Court I have not considered in any way the question whetherthe plaintiff has title as trustee to any undivided share of theland which he seeks to have partitioned. The Court will have tosatisfy itself that title fs vested in the trustee before it decrees apartition. The appellant is entitled to his costs of the contentionin -the Court below and in appeal.
Wendt, J.—I agree.