071-NLR-NLR-V-53-DORAISWAI-KURUKKAL.-Appellant-and-THAMBIPILLAI-et-al.-Respondents.pdf
TVTAS J.—Doraisirami Kurukkal r. Thambipillai
1949Present : Dias J. and Windham J.DORAISWAMI KUBUKKAL, Appellant, and THAMBIPILLAI et al.,
Bespondents
S. C. 28 Inty. and 139—D. C. Jaffna, 16,608 M.
Hindu temple—Charitable trust—No deed creating the trust—Founder and heirsunknown—Appointment of trustee in such circumstances—Trusts Ordinance(Cap. 72), ss. 99 (c), 107.
The 1st substituted defendant and hiB ancestors for nearly one hundredyears were officiating as the dc facto managers and trustees of a Hindu templewhich was proved to be a charitable trust within the meaning of section 99 (c)of the Trusts Ordinaire–. There was, however, no deed creating this charitabletrust and the founder and his heirs were unknown and could not be traced.
Held, that, in the circumstances, section 107 of the Trusts Ordinance wasapplicable and the 1st substituted defendant should he held and declaredto be the de jure trustee of the temple.
A PPEAL from a judgment of the District Court, Jaffna.
S. J. V. Ghelvanayakam, K.G., with A. Vythialingarn, for the 1stsubstituted defendant appellant.
H. IV. Tambiah, with S. R. Canaganayagam and C. Shanrnuganayagam,for the plaintiffs respondents.
A7. Kumarasingham, with C. Vanniasingham and S. Sharvananda, forthe 2nd substituted defendant respondent.
S. Thangarajah, for the 3rd defendant respondent.
A. C. Nadarajah, for the 10th respondent.
Cut. adv. viu*.
November 8, 1949. Dias J.—
This is a dispute regarding the ownership and management of a- Hindutemple known as the Naviddapuram Kandaswamy Temple in Tellipallai,Jaffna.
The deceased 1st defendant who is now represented by his son the 1stsubstituted defendant claimed the temple and its appurtenances as theirabsolute private property. This is denied by the plaintiffs who aresome of the worshippers at this temple. They assert that the templeis a “ charitable trust ” within the meaning of s. 99 (c) of the TrustsOrdinance (Chapter 72). They have filed this action under s. 102 of theTrusts Ordinance alleging mismanagement and misappropriation oftemple property. They prayed that the 1st defendant should be' removedfrom office as manager, and asked the Court to formulate a scheme forthe better control and management of the trust.
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DIAS J.—Doraiswami Kurukkal o. Thambipillai
The 1st defendant having died during the pendency of the action,"his two sons the 1st and 2nd substituted defendants were added in hisplace. The 2nd substituted defendant disclaimed all interest in thetemple. The plaintiffs did not amend their plaint asking for any reliefagainst the 1st substituted defendant. In fact, no charges have beenmade against him personally, except that he is the son of his father. The3rd and 4th defendants and the 10th respondent (who is the nephew ofthe deceased 1st defendant) claim to be officiating priests in this temple.They merely ask that in any order which the Court may make in this case,their status and rights should be preserved. The main contest, therefore,is between the plaintiffs and the 1st substituted defendant who is now incontrol of and managing this temple.
The learned District Judge has considered the various questionsraised. His findings may thus be summarised: (1) The temple is apublic charitable trust. The District Judge holds that the evidenceon the point is overwhelming and to a great extent admitted. He holdsthat the 1st substituted defendant is, and his ancestors were, hereditarytrustees and managers of the temple, but not its proprietors. (2) The1st defendant and after him his son the 1st substituted defendant cannotbe regarded as being the proprietors of the temple and its temporalities.He holds that in the face of the various donations made by the faithfulto the deity, they cannot claim to be proprietors of the endowmentsof the temple, and nowhere has any distinction been made between thekovilkadavi itself and the endowments to the temple. They were alltreated alike. (3) Various acts of mismanagement have been alleged againstthe 1st defendant. As he is now dead and has in a sense been removedfrom office by divine intervention, the District Judge did not feel calledupon to adjudicate on the charges made against a dead person. (4) Withregard to the 1st substituted defendant the Judge finds that, as no specificcharges have been made in the pleadings against him, it is not relevantin this proceeding to go into the question as to whether he has beenperforming his duties satisfactorily. The Judge holds that if any chargesare to be made against him, these should form the subject of a separateaction—particularly as the 1st substituted defendant is now before theCourt only in a representative character. (5) With regard to the account-ing, the District Judge holds that this would now be useless becausethree years have already elapsed since the death of the 1st defendant. Itwas argued in appeal that under s. 105 of the Trusts Ordinance theCourt may order the present trustees to file accounts for a period notexceeding three years from, the date of the order. I think the Court wasright in refusing to order the 1st substituted defendant to render anaccount, because no such relief had been claimed against him in theplaint, and also because that was not the case he had to meet. (6) TheDistrict Judge formulated a scheme of management.
Having carefully considered all the arguments addressed to us, I amof the view that the judgment of the District Judge is right, and mustnot be disturbed.
As found by the learned District Judge, the evidence proving that thistemple is a public charitable trust is overwhelming. It is stated(see for example P 10 and P 28) that in the 9th century an Indian princess
DIAS J.—Doraiswami Ktirukkal v. Thambipillai
325
of the Ghola Dynasty came to Ceylon seeking a cure for the loss of herbeauty. She bathed in a sacred stream when “ her equine facewas restored to human form. Although she was then abducted by a kingof Lanka, she made a thank offering for her cine by building a templeat Maviddapuram, and imported Brahmin priests from India to performthe ceremonials therein about the year 800 a.d. The 1st substituteddefendant claims that he and his ancestors are descendants of thosepriests. In the 17th century the Portuguese destroyed this temple.In the early 19th century, however, some unknovm persons built thepresent temple. It was not asserted until 1875, nor is there any proofbeyond that belated assertion, that it was an ancestor of the 1st-substituted defendant who rebuilt or founded the present temple.
Turning from legend to fact, there cannot be any doubt that theancestors of the 1st substituted defendant officiated as managers of thistemple. The first document in the chain of proof is the letter of appoint-ment 1D1 of 1825. This is not adeed of transfer orconveyance.It
merely states that Sabapathi AiyarNo.1 and his wifeParupathiamma
appointed Sokanadar to be the manager of this temple. Sokanadarby deed Dll of 1847 delegated his powers of management under 1D1 tohis son Sabapathi Aiyer No. 2, whowasalso constitutedthe attorneyof
Sokanadar for the management oftheaffairs of thetemple. Dllis-
not a deed of conveyance, nor did Sokanadar execute it as owner. By1D12 of 1859 Swaminathar the brother of Sabapathi Ayer No. 2 renouncedwhatever rights he had in this temple in favour of his brother. There-after on November 7, 1875, Sabapathi Aiyer No. 2 took part in theexecution of the deed P2, which is an important document in this case.No less than thirty-four members of the public, including SabapathiAiyar No. 2, declared that, in view of the fact that Sabapathi Aiyer No. 2who was at that time managing and looking after the KandaswamyTemple was in bad health, they the “ selected representatives " of theresidents of the village had assembled, and unanimously agreed “ to nomi-nate and appoint, during the minority of the grandson of SabapathiAiyer No. 2, the son-in-law of Sabapathi Aiyer No. 2 and the father ofthe minor, to be the manager, of the temple subject to the supervisionof the executants of the deed. This manager was to carry out the priestlyoffice and the poojas, and he was to be subject to the executants of thedeed ”. Now, that was a clear admission by Sabapathi Aiyer No. 2,that he was not the owner or proprietor of this temple, but only the managerthereof. If he considered the temple and its appurtenances werehis private property; he would not have allowed members of thepublic to intervene in its management. The deed P2 was notariallyattested, and there is nothing to show that at the time of its executionSabapathi Aiyer was labouring under any other infirmity except that hewas sickly. The deceased 1st defendant and his son the 1st substituteddefendant both derive their rights through Sabapathi Aiyer No. 2. Infact, the deceased 1st defendant was the minor referred to in P2. Thelanguage used in P2, when 'read with the earlier documents 1D1,1D11, and 1D12, lends strong support to the view that 1st defendantand the 1st substituted defendants are nothing more than hereditarymanagers of this temple.
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After executing P2, however, it is obvious that Sabapathi Aiyer No. 2began to repent that he had executed that deed. It is clear that he madeup his mind secretly to repudiate P2 and claim title to this temple asowner. Within twenty days of the execution of P2, namely, on November27, 1875, Sabapathi Aiyer No. 2, without going to a notary, went beforethe Commissioner of Requests and executed the deed 1D14 under theprovisions of Ordinance No. 17 of 1852 (Chapter 58). There was noneed for bim to have gone before a Judge, probably in chambers, toexecute 1D14 unless he was actuated by the desire to keep this transactionsecret. It is also noteworthy that he gave no notice of what he intendeddoing to the thirty-four other executants of deed P2. In fact, 1D14 pos-sesses all the badges of fraud. In 1D14 Sabapathi Aiyer No. 2 assertsthat be executed P2 under “ misapprehensions and misrepresentations ”,and while “ he was not in a fit state to comprehend and understandthe true meaning and purpprt of the deed, and that he had been persuadedto sign it ”. He then proceeded to revoke P2 and declare, that the templewas his “ free and absolute property as heretofore, to wit, beforethe 7th day of November ”, It is a question whether a bilateraldeed like P2 could be lawfully revoked by the unilateral act of one ofthe parties—see .Tayawardene v. Jayawardene ’. Having got P2 outof the way, Sabapathi Aiyer No. 2 on December 27, 1875, executed tin-deed 1D8 which he described as “ the deed of transfer of my temple pro-prietorship ”. This deed contains several misstatements. He saysthat his ancestor Sabapathi Aiyer and his wife Parmvathiamma hadduring the Dutch times founded, established, and made popular (jpita-padip-padithi = made public) the Kandaswamy Temple, and possessed thesame, as their own absolute property. There is not a scintilla of evi-dence to support that latter assertion. IDS further estates that in their oldage they by deed 1D1 did assign and convey the temple to Sokanathuiwho possessed it as his absolute property. This is another misstatementbecause there is no evidence to support it. The deed 1D1 is not a deedof conveyance at all. Sabapathi Aiyer No. 2, then, says that about1850 the temple devolved on him and that he had possessed the same“ in the same manner as his ancestors ” for twenty-five years. Hethen proceeded to assign, convey and deliver the temple and its appur-tenances to his daughter (mother of'the deceased 1st defendant) providingthat his son-in-law was to manage the temple until his grandson (the 1stdefendant) attained majority. This was an ingenious deed, becauseit did not alter the arrangements made by deed P2. I am clearly of theview that 1D8 conveyed no legal title to the 1st defendant. It is to beobserved that no title by prescription can be claimed in this case. Thisis conceded by both sides.
The statement in 1D8 that this temple had been made “ popular ”is significant. We have been told by learned counsel that the word doesnot mean “ advertised ” . but ‘‘ made public ”. This is in accordancewith the evidence which shows that, for a great many years, this templehad become, renowned as a place of public worship, and for the mainten-ance of which the faithful made munfficent donations in land and money—see P9, P10, Pll. If the contention of the 1st substituted defendant
1 40 N. A. R. at p. 473.
DIAS J.—Doraiswami Kurukkal v. Thambipillai
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is right, all these gifts are his private property to use as he pleases. Inmy opinion, the District Judge came to a perfectly correct conclusion.The claim of the deceased 1st defendant and 1st substituted defendantto be declared the absolute owner of this temple is fantastic—althoughit may have been made in good faith.
All the evidence proves clearly that this temple is a “ charitabletrust ” within the meaning of s. 99 (c) of the Trusts Ordinance. Theplaintiffs who are persons who for a period of not less than twelve monthshad been in the habit of worshipping in this temple (see s. 102 (2) ) havethe right as persons “ interested in this temple ” to institute this actionunder s. 102 (1)—see Sathasivam v. Tythianathan Chettiar 1, Kalimuttu v.Muttusamy 2, Abdul Coder v. Ahamadu Lebbe McCrilcar s.
I agree with the District Judge that the 1st defendant being deadthere was no necessity to investigate the charges made against a dead man.Had the plaintiffs desired to make charges against the 1st substituteddefendant, they should have amended their pleadings, and given the1st substituted defendant an opportunity of meeting such charges.For the same reasons, in the absence of a specific prayer that the 1stsubstituted defendant should be called upon to account for his steward-ship, the District Judge was under no obligation to consider the matter.
I am not impressed by the argument that 'the 1st substituted defendantshould be removed from his managership. So far as I can see there isnothing against him.
I am inclined to agree with counsel for the plaintiffs and the 2ndsubstituted defendant that, although this temple is a charitable trust,in strict law the 1st substituted defendant and his ancestors are notde jure trustees, but only de facto managers and trustees. The case lawshows that where the owner of property executes a deed in favour of aHindu temple, but does not appoint a trustee, the dominium of theproperty remains vested in the-legal owners, but is so vested as trusteeson behalf of the beneficiaries who are that section of the public for whosebenefit the trust was founded—Kumarasamy Kurukkal v. KathigesuKurukkal *. In the same way if the legal owner of land builds or foundsa Hindu temple for public worship on his land, then, unless the foundermakes arrangements for the appointment of trustees, the right of manage- ■ment of the foundation vested in the founder himself and his heirs (ibidem).In such a case he must be considered the trustee. In this case, however,there is no deed creating this charitable trust. After the Portuguesedestroyed the original temple, somebody built the new temple, butnobody can say who the founderwas.In strict law it .is thatfounder
and his heirs who would be thetrusteesof thetemple. Thosepersons
are unknown and cannot be traced. -There is no evidence, as I havealready pointed out, to establish that it was an ancestor of the 1stsubstituted defendant who founded the new temple. All the factsand circumstances negative such a view. But as was pointed out byBertram C.J. in Kumarasamy Kurukkal v. ' Karthigesu Kurukkal*
“ No Court of equity would allow the great principles it administersto be defeated by a formal defect of this character, and our own Ordinance
1 (1923) 25 N. L. R. at p. 94.* (1935)37 N. L. R. at p. 262.
* (1925) 27 JV. L. R. at p. 193.* (1923)26 N. L. R. at p. 36.'
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DIAS J.—Doraiawami Kurukkal ». Thambipillai
expressly porvided for the point. It declares by s. 107 that ‘ In dealingwith any property allege.d to be subject to a charitable trust, the Courtshould not be debarred from exercising any of its powers by the absenceof evidence of the formal constitution of the trust, if it shall be of opinionfrom all the circumstances of the case that a trust in fact exists, or oughtto be deemed to exist ’ ”. In my opinion s. 107 of the Trusts Ordinanceapplies to the facts of this case. I am satisfied that a charitable trustexists. Owing to a formal defect, there is an absence of evidence as tothe formal constitution of the trust, because .there is no known trustee.It is unnecessary to consider the long arguments which were addressed tous as to whether or not a trust can exist without a trustee. The1st substituted defendant and his ancestors for nearly one hundred yearshave been officiating as the de facto managers and trustees of this .temple.In such circumstances any Court of equity would hold that, in the inter-ests of the temple and all concerned, the 1st substituted defendantshould be held and declared to be the de jure trustee of this temple,and I so declare him to be.
The 2nd defendant (now represented by the 10th respondent), the3rd and 4th defendants are the hereditary priests of this temple withthe right to perform poojas and to receive the customary perquisitesof that office. Their rights are not in dispute in this case.
I would therefore affirm the decree and the vesting order entered bythe learned District Judge, with the following variations: —
The 1st substituted defendant is declared the hereditary trustee
and the high priest of this temple, and in any scheme of manage-ment which may be formulated his rights and status must bemade clear.
The 2nd defendant (now represented by the 10th respondent),
the 3rd and 4th defendants are declared to be the hereditarypriests of this temple with the right to perform poojas and toreceive the customary perquisites of that office, and in anyscheme of management which may be formulated the rights ofthese priests must be made clear.
In accordance with the learned District Judge’s directions it will nowbe the duty of the Court to approve of the scheme for the future manage-ment of this temple and its temporalities. It is very desirable that sucha scheme should not be too elaborate but should be as simple as possible.
The 1st substituted defendant has failed to establish his claim thatthis temple is his private property. The plaintiffs and the 2nd substi-tuted defendant have failed in their contention that the 1st substituteddefendant should be removed from office. With regard to costs, thefairest order, therefore, is to direct that each and every party must beartheir own costs of this appeal. The order for costs made in the lowerCourt must stand affirmed.
Windham J.—I agree.
Decree varied.