Dr. T. B. COORAY (Archbishop of Colombo), Appellant, and M. P. V. MATHES, Respo

090-NLR-NLR-V-73-Dr.-T.-B.-COORAY-Archbishop-of-Colombo-Appellant-and-M.-P.-V.-MATHES-Respo.pdf


186
Cooray «>. itathcs
Present: Siva Supramaniara, J., and Tennekoon, J.Dr. T. B. COORAY (Archbishop of Colombo), Appellant, andM. P. V. MATHES, Respondent. C, 739164(F)—D. C. Negombo, 719/Spl.
Trusts-—Charitable trust—Devise of immovable property -to a Church—Incapacity ofthe Church itself, not being a juristic person, to be vested with title to the property— .Disclaimer of trust—Stage at which a trust can be disclaimed—Co-trustees—Effect of a disclaimer by one of them—Effect of settlement of an action by a•eo-lrustee—Claim for vesting order—Considerations applicable—Necessaryparties—Prescription—Inapplicability to a charitable trust—Trusts Ordinance[Cap. 87), ss. JO, 76 (2) (a), 111 (1) (c), 112 (1) {>)—Civil Procedure Coda,s. 473.-V'
A testarix devised a land by her Will the initial terms of which doclarodthat the land “ shall go over and belong to the Apostle St. Poter’s Church atFirst Division, Hunupitiya The Will went on, however, to provide that theland was to be “in charge of" throe named executors and that the Churchwas entitled to rocoive only the profits from the executors and their heirs ; -the enlargement of the more right of the Church to receive the proCta to aright to the land itself was to take place only on the failure of heirs duddescendants to the three exocutors.
The petitioner-appellant, the Archbishop of Colombo, instituted tho presentaction (a* lor a declaration that he was the trustee of the trust created by the- Will, and (6) for a vesting order in his favour under section 112 of the Trusts
– Cooray v. Mathea
487
Ordinance on tho' ground that ** it is uncertain in whom the legal title to thesaid property is now vested **. He also allegod that there was a disclaimer oftho trust by one'of tho trustees on behalf of all the trustees. Tho respondent,'who was an hotr of one of tho executors, counterclaimd that ho was tho lawfultrustoo or for a vesting ordor in his favour.
Held, (i) that, evon assuming that thore was a direct and immediate bequestof tho land to St. Peter's Church, the bequest could not oporate to vest theproperty in tho Church, because the Church was not a juristic porson. Neitherthe Church as such nor tho de facto trustee of that Church was vested with titleto the property,
that tho Will not only created a charitable trust for tho benefit of thecongregation of tho Church, but also designated tho three executors as thepersons in whom the legal estato was to be vested immediately after tho deathof tho testatrix for the purposo of carrying out tho trust.
that undor the law relating to trusts a person can disclaim a trust onlyat the stage whon he has tho option of accepting or disclaiming : he cannot doso after accepting or entering upon tho office. This is also implicit in section10 of the Trusts Ordinance.
that where there are co-trustees, a disclaimer of the trust by one of themvests tho trust property in tho other trustees—section 10 (5) of the TrustsOrdinance.
that when a co-trustee intends to sottlo an action so as to bind all theother co-trustces, soction 473 of the Civil Procedure Code requires that all ofthorn should be made parties to the action.
that long possession by the appollant of the land belonging to thecharitable trust 'could not give prescriptive title to him as against the legaltrustees—section 111 (1) (c) of tho Trusts Ordinance.
that the appellant’s claim to a vesting order must fail for the reasonthat it was not uncertain in whom tho title to the trust property vested'
that even if this was a case in which it could be said that it wasuncertain in whom title to the proporty vested, tho claim of the heirs of theexecutors must bo preferred to thoso of tho appollant. In such a case, theprinciple enacted in section 76 (2) (a) of tho Trusts Ordinance in relation totho appointment of new trustees would bo applicable in considering anapplication for a vesting order under soction 112 (1) (i).
that the respondent's claim to bo solo trustee or to a vesting ordercould not bo uphold in an action in which tho other heirs and descendants ofthe three original trustees were not mado parties.
.A.PPEAL from a judgment of the District Court, Negombo.
II. IP. Jayeuardene, Q.C., with Mark Fernando and B. Eliyatamby, forthe petitioner-appellant.
C. Iianganalhan, Q.C., with Annesley Perera, for the respondent.
Cur. adv. vult
488
TEN^fEKOON, J.—Cooray v. Maihcs
July 22, 19GS. Texnekoox, J.—
The Petitioner-Appellant Dr. Thomas Benjamin Cooray, Archbishop ofColombo, petitioned the District Court of Negombo.prajring that (a) he beappointed trustee of the trust created by the Last Will of one ClaraPinto ; this part of the prayer was subsequently amended by substitutionof the word '-declared’' in place of the word “appointed ”, (b) for avesting order, and (c) for permission to sell the trust property for thebenefit of the trust. The proceedings in the District Court were confinedto (a) and (6) of the prayer, inquiry in relation to (c) being deferred untila final determination on (a) and (b) of the prayer.
The Will which had been executed on 18.1.-1900 was admitted toprobate in 1902. It contained a devise of an undivided one-sixth shareof Madampella Watta in terms which are reproduced later in thisjudgment. At the time of the execution of the Will a partition actionrelating to the land in question was pending in-the District Court ofNegombo (D.C. 1713). The testatrix died before final decree wasentered and by the time probate was granted to her Will the undivided1/6 share had been converted into a divided lot depicted as lot 6 in PlanNo. 6/126 made by A. E. Vanroyan in extent A. 48 R. O P. 10.
‘ The devise was in the following terms :—
“ I hereby ordain that all the movable and immovable propertieswherever situate belonging to me and which shall come over to mehereafter and which I acquired and which I may acquire by my ownexertions shall go over after my death in the following manner :—
Firstly :
Secondly: The one-sixth (1/6) share belonging to me by right ofmarriage from the land called MadanipcUavafcta situate at Madampella .shall go over and belong to the Apostle St. Peter’s' Church at FirstDivision Hunupitiya aforesaid in the following manner, to wit:—Thisportion of land shall be in charge of the two executors hereunder men-tioned and the said Mihindukulasuriya Juwan Pinto Muhuppu and theyshall spend out of the income derivable therefrom for the improvementsof the same and for other necessary works for improvement connectedtherewith and shall give over all the remaining income to the saidChurch and if one or more of the said three persons die the survivor orsurvivors shall give over to the said Church the income of the said. portion of land in the said manner and after death of the said threepersons the heirs of the said three persons’ or of two of them or of oneof them shall take charge of the said portion of land and shall give overthe income as aforesaid to the Church arid shall go on improving thesaid portion of land and if there be nq heir or descendant to them thesaid portion of land shall devolve on the said Church and shall be heldand possessed for ever by the said Church; but the same shall not be.alienated in any manner.
TEXXEKOOX, J.—Cooray v. Ufa the*
489
I do hereby appoint the said Mihindukulasuriya Patabendige JmvanFernando and Mihindukulasuriya Patabendige Anthony Matties as•executors or managers for the due fulfilment of the matters of this LastWill and Testament.”
There is no evidcnccusto who possessed the land in question in the yearsfollowing the death of the testatrix, but there is certainly nothing tosuggest that it was possessed by the Church or by the Archbishop ofColombo or anyone else on its behalf. However in or about 1937 thethen Archbishop of Colombo sued one Laurie Matties in D.C. NegomboCase No. 999S alleging ttiat the latter had been in possession of the landfor about 9 years and praying for an accounting. Upon an objectiontaken to the light of the Archbishop of Colombo to sue upon the rightspurported to have been devised in the Will to the “ Church of St. Peter ”the Supreme Court held that the Archbishop as de facto trustee of theChurch of St. Peter could maintain the action. See Masson v. Mathes l.Kretser J. (with whom Moseley and Kcuneman JJ. agreed) said in the•course of his judgment:—
“ It seems to be too narrow a view to take to interpret the legacj' as a
bequest of a chose-in-actiori In the present case it is
fairly arguable that the property vested in the church with the manage-ment in the person designated, upon failure of whom even this right•would pass to the church. But, even assuming the position taken upby Mr. Perera (counsel for Laurie Mathes) that the property vested inthe persons designated upon trust for the church, what was the right ofthe church ? The position would be that once the fruits had been soldand the expenses deducted the beneficial interest in the money thatwas left belonged to the church. That money was corporeal propertyand the fact that in order to ascertain the exact amount an accountingwas necessary does not affect the right.”
The District Court in pursuance of the Supreme Court’s decision•directed Laurie Mathes to account for the profits derived from the landand writ was subsequently issued for the recovery of a sum of Rs. 10S4/47from.the defendant Laurie Mathes. Thereafter in or about May 1941 asettlement was arrived at, which was recorded in the following terms :—
" 1. The plaintiff agrees to waive the amount due by the defendantin respect of writ issued in the above ease under the followingconditions:—
The defendant undertakes to handover to the plaintiff or hisa^ent the Procurator General of the Archdiocese of Colombo the fullmanagement, control and absolute possession without any disturbanceor interruption from any one, of the land called Madam jxdlcwattawhich was so far looked after by the defendant for himself, ar.d for and•on behalf of the other trustees. The defendant further undertakes for.himself and on behalf of the other tiustces not to interfere in any way •
• JO .V. L. It. 302.
490
– TEXXEKOOy, J.—Cooray v. Mathes-
with the plaintiff or his agent the said Procurator General or hissuccessor or successors in office as regards the control and managementof the estate. ”
From the date of this settlement the Archbishop of Colombo has beenin possession of the land. In or about 1963 the Archbishop madearrangements for the sale of the properly in blocks, apparently withouthaving obtained any authority to do so from court. The respondentVictor Mathes who is a son of Anthony Mathes (named in the Will asone of the Executors) claiming to be lawful trustee of the said landtook strong objection to the proposed sale. Thereupon the Archbishopinstituted the present action in the District Court of Ncgombo for adeclaration that he is the trustee and for a vesting order under section112 of the Trusts Ordinance on the ground that " it is uncertain inwhom the legal title to the said property is now vested The appellantalso alleged in support of his claim that the respondent Victor Mathesis about 60 years and has shown no interest in the trust until heprotested against the proposed sale and that he had never undertakenthe trust and had therefore by his conduct disclaimed the office oftrustee in respect of the land in question. The respondentcounterclaimed (a) a declaration that lie, Victor Mathes, was thelawful trustee or for a vesting order in his favour.
At the inquiry it was conceded by counsel for the appellant that apartfrom the respondent Victor Mathes who is a son of Anthony Mathes“ there are other descendants who are heirs of the trustees (sic.) "and thefollowing issues were framed, the first being suggested by counsel for thepetitioner and the second by counsel for the respondent:
Is the petitioner entitled to a vesting order as prayed for ?
Is the respondent entitled to (a) a declaration as prayed for inpara, (c) of the objections, (6) a vesting order?
The learned District Judge after enquiry dismissed the application ofthe petitioner-appellant and allowed the respondent’s application for avesting order.
The claim for a vesting order by the petitioner-appellant rests upon .the averment that it is uncertain in whom title to the property is vested.
It is to be noted that neither the petitioner-appellant nor any of hiapredecessors in the office of de facto trustees of St. Peter’s Church at anytime claimed that legal title to Madampclle Watta was vested in him.
In fact such a claim cannot, it seems to me, be sustained. Even if it iaassumed (and as will appear hereafter there is little justification for such,assumption) that there was a direct and immediate bequest of the land.
to St. Peter’s Church, Negombo ”, the bequest cannot operate to vestthe property in the Church because the Church is not a juristic person;see the cases of A mbalavanar v. Kalhiravdu1 and' Buddkarakkita Thero V.TVijeivardena2. The bequest itself must no doubt bo construed as a.
» 27 N. L. R. 15 at 20.._(1SG0) 62 .V. L. It. 49 at SI (P. C.)
TEXXEKOOX, J.—Cooray v. Alathes
491
gift for the purposes of the named institution ; it is a valid charitabletrust for the bcncf.t of that section of the public who worship at St.Peter’s Church and constitute its congregation. Our courts have consis-tently refused to hold in eases where a charitable trust is created by agift of land to an unincorporated religious foundation, that the de factotrustee of that foundation is automatically vested with legal titleto the property and becomes the trustee. See the two eases mentionedabove and Hijcuardene Nila me v. Naina Pulle l. On the contraryin Ambnlavanar v. Kalhiravelu this court held that where by a deedinltr lives a person ho isowncrof property purports to transfer it to atemple, the e-fleet tf his doing so is to constitute himself a trustee for thepurpose of religious worship to be carried on at the temple ; the documentis in fact a declaration of trust and the dominium remains with thededicator and passes on his death to his heirs subject to the trust.
In the present case there is no deed inter vires tut a Will in which thetrust is declared. It is not possible to regard the testatrix as havingconstituted herself the trustee because the Will takes effect only afterher death. Has she then designated the persons who arc to be vestedwith title to the property subject to the trust ? For reasons staledearlier neither the Church as such nor the de.faclo trustee of that Churchis vested with such title, lias the testatrix designated the trustees inwhom legal title is to vest upon her death ? Indeed under the terms ofthe Will quoted earlier there is no bequest even to the Church as such totake place immediately after the death of the testatrix. The purportedgift of the land to the Church is postponed during a period in which threenamed persons (hereinafter for convenience of reference referred to asthe three executors) and their heirs shall be “ in charge of ” the land w itlithe right to receive the income thereof, to carry out improvements withthe income and to give over to the Church any balance remaining intheir hands. The expressions “ go over after my death in the followingmanner ” and “ go over and belong to the Apostle St. Peter’s Church inthe following manner ” occurring in the Will arc merely anticipatory andsummary statements of what is about to be stated in fuller terms in thew ords that follow. It seems to me that the words—
“ and if there be no heir or descendant to them the said portion ofland shall devolve on the said Church and shall be held and possessed forever by the said Church ”
arc a clear indication that the purported bequest to the “ Church ” nssuch was to take place not immediately upon the death of the testatrixbut upon the fulfilment of the condition " if there be no heir or descend-ant to them The enlargement of the mere right of the Church toreceive the profits to a right to the land itself is to take place only on thefailure of heirs and descendants of the three executors. In this viewof the matter there is much to be said for the view- pressed upon us by
i / /> ir t* f«r
. 402
TENNEKOON, J.— Cooray v. Sfalhra
counsel for the respondent that there is a bequest in the Will in the firstinstance to the three executors subject to the trust mentioned. Theobligations to collect the income, apply it for improvements to the landand to pay over the remainder to the Church, a re obligations clearly andunmistakably placed upon those three persons ; in these circumstancesit would be illogical to construe the terms of the Will as creating a trustand reposing a confidence in the three executors and at the same time tohold that legal ownership of the property was not intended to be vested inthem for the purpose of carrying out those obligations. Further theprovision for devolution on the Church occurring when there arc noheirs or descendants of the three executors is indicative of an intention onthe part of the testatrix to bequeath the property in the first instance tothe three executors subject to the trust. The reference to “ heirs ordescendants ” of these three persons is a strong indication of the testa-‘ trix having-in contemplation the passing of the title to the property fromthem to their heirs; this view is further strengthened by the presence of aprovision for the property “ to devolve on the Church ” only upon thefailure of that line of succession.
For the reasons stated above I am of the opinion that the Will not onlycreated a charitable trust for the benefit of the congregation of the Churchof St. Peter’s, Negombo, but also designated the three executors as thepersons in whom the legal estate is to be vested immediately after herdeath for the purpose of carrying out the trust. The functions of thesetrustees extend to the management of the property, the collection of theincome .and the improvement of the property coupled with the duty ofpaying over any balance to the Church. In terms of the Will the dis-cretion as to the ways in whish su;h promts are to be spent for the benefitof the Church is not left to the trustees. That discretion is to be exercisedby the de facto trustee of the Church of St. Peter’s, i.e., the Archbishop ofColombo. The right of the Archbishop of Colombo to receive such nionej'Sfrom the trustees for the purpose of applying it to the benefit of theChurch was recognised in Masson v. Mathes (supra).
It is then urged by the appellant that even if the Will is construed osconstituting the three executors and their heirs as trustees in the firstinstance, the settlement entered into in 1948 between the then Archbishopof Colombo and Laxirie Mathes in D. C. Negombo 999S, has had theeffect of a disclaimer by all the trustees and that the office of trusteewas thereby rendered vacant. Under the law relating to trusts a personcan disclaim a trust only at the stage when he has the option ofaccepting or disclaiming; he cannot do so after accepting and enteringupon the office. “ A trustee who has accepted cannot afterwards dis-claim it ” Snell—Principles of Equity, 25th Edn., p. 139. This is alsoimplicit in section 10 of the Trusts Ordinance. Further there is’ nothing
TEXKEKOON, J.—Cooray r. ^lathes
493
to show that Laurie Mat lies was the only trustee at the date of the settle-ment. The very words of the settlement suggest there were others. Noris there any material'to justify the contention that he was acting for allthe trustees. Even a valid disclaimer by Laurie Mathes could onlyhave had the effect of vesting the property in the other trustees ; seesection 10 (5) of the Trusts Ordinance. Further it seems to me that if thosettlement was intended to bind all the trustees, it was necessary to havemade them all parties to the action in which the settlement was enteredinto. Section 473 of the Civil Procedure Code enacts that " when thereare several trustees, they shall all be made parties to an action by oragainst one or more of them ”. That course not having been adoptedthe settlement of 1941 can have no effect on the legal position under thoWill. It is only an arrangement regarding the management of thoproperty which is not binding on all the trustees. Nor can thepetitioner-appcllant’s possession of the property from 1941 onwardsdefeat a claim by the legal trustees—See section 111 (I) (c) of theTrusts Ordinance.
Tho petitioner-appellant's claim to be declared trustee must for thoreasons set out earlier fail. His claim to a vesting order must also fail forthe reason that it cannot be said that it is uncertain in whom the title tothe trust property is vested. Even if I am wrong in thinking that theWill clearl}" vested tho property in the three named persons and theirheirs, it seems to me that there is a clear indication in tho Will that thoproperty should at all times be managed by these three persons and theirheirs until such time as there is " no heir or descendant to them ”. Thocourt should, in these circumstances, have regard to the wishes of theauthor of the trust as expressed in or to be inferred from the instrument oftrust. This principle is enacted in section 76 (2) (a) in relation to thoappointment of new trustees and I think it would be equally applicable inconsidering application for a vesting order under section 112(l)(i) of theTrusts Ordinance. Thus even if this is a case in which it can be saidthat it is uncertain in whom title to tho property vests, the claims of thoheirs of the executors of the Will and of Juwan Pinto Muhuppu mustbe preferred to those of the Archbishop of Colombo. It is perfectlynatural that the testatrix wished to have tho trust administered bypersons intimately connected to her and her family so that there wouldbe a recognition both in this world and elsewhere as to the source fromwhich the charity proceeds.
Accordingly on any view of the terms of tho Will tho potjtioncr-appcliant’s claim to a vesting order must fail.
It remains to consider the correctness of the learned District Judge’sdecision to the effect that the respondent is entitled to a vesting ordr-r.The respondent himself in filing object ions prayed both for a declarationthat he is trustee and for a vesting order. Both parties have accepted thofact that there arc besides the respondent himself other heirs and descend-ants of the two executors and of Juwan Pinto Munoppu. It seems to mothat tho respondent cannot succeed in a claim to bo sole trustco in an'
,
The Superintendent, Gon obeli a Estate, Passcira
action in which the other heirs and descendants arc not made parties;equally a claim for a vesting order in favour of the respondent alonoshould not be considered favourably in an action in which no opportunityis afforded to the other heirs and descendants of the three original trusteesto have their say. The question whether tho respondent should bodeclared solo trustee or should have a vesting order in his favour alone canonly be considered in a properly constituted action in which the otherheirs and descendants of the original trustees (who in law would bo thotrustees now), arc made parties.
For these reasons I would set aside tiro learned District Judge’s findingthat the respondent is entitled to a declaration that he is the trustee andto a vesting order. Subject to this variation in the order of the learnedDistrict Judge tho appeal is dismissed. Thcro will be no order forcosts.
Siva Suprama^iam, J.—I agree. –
Appeal mainly distnissed.