DULLEWA et al., Appellants , and SOMAWATHIE UPASIKA et al., Respondents

058-NLR-NLR-V-45-DULLEWA-et-al.-Appellants-and-SOMAWATHIE-UPASIKA-et-al.-Respondents.pdf


DtMeioa and Somawathie Upastka
217
19?4Present: Howard C.J. and Wijeyewardene J.
DULLEWA et al!, Appellants, and SOMAWATHIE UPASIKA
et al., Respondents.
1—D. C. (Tnty.), Kandy, 582.
Action under section 101 of the Trusts Ordinance—Alleged breach of charitabletrust—Denial of i'ust by defendants—Right of plaintiffsto institute
action.
An action may be instituted under section 101 of the Trusts Ordinanceeven where the defendants denytheexistenceof the alleged trust.
Where plaintiffs bring an action under that ' section for an allegedbreach of a charitable trust they must allege and prove—(1) the existenceof a charitable trust, (2) the breachof suchtrust by the defendants.
Where the cause of action is the necessity for the direction of Court for,, the administration of a trust the plaintiffs must allege and prove —(1) theexistence of a charitable trust, (2) the necessity for the direction of Court.
A
PPEAL from an order oftheDistrictJudge of Kandy.The
facts appear from the argument.
M. T. de S. Amerasekere, K.C. (with him E. B. Wikremanayake), for theplaintiffs, appellants.—This is an action instituted under section 101 ofthe Trusts Ordinance (Cap. 72). The first defendant denies that theproperty which is referred to in the plaint is subject to any charitabletrust and claims it for herself.Thethird and fourth defendantsalso
deny the existence of any trust and claim for themselves certain sharesof the property. The learned District Judge has dismissed the actionon the preliminary ground that an action under section 101 of the. TrustsOrdinance oannot be maitained in view of the denial of the existence ofa trust by the defendants. He has purported to follow Jamal-ttddin,v. Mujtaba Husain et al.1 and Khursaidi Begum v. Secretary of State forIndia-. In each of those two eases the action was solely for a declarationof trust. In the present case, however, various other reliefs which areprovided for under section 101 of the Trusts Ordinance are sought for.Deo Saran Bharthi et al. v. Deoki Bharthi et al.3 where Jamal-uddin u.Mujtaba Husain et al. (supra) is considered supports the view that thepresent action is maintainable although the trust is denied by the defence.See also Eralappa Mudaliar o. Balakrishniah*; Anjaneya Sastri v.Kothandapani Chettiars; (Syed Shah) Muhammad Kazim v. (Syed) AbiSaghir8; Abdul Majid v. Akhtar Nabi7; Loke Nath Multerjee et al. v.Abani Nath Mukerjee et al.8; Said Mahar Husein v. Haji AlimahomedJ alaludin9.
N.E Weerasooria, K.C- (H. V. Perera, K.C.. with him S. P.Wijewtckreme), for the third and fourth defendants, respondents.—A.suit under the special provisions of section 101 of the Trusts Ordinance
1 I. L. R. (1903) 25 AU. 631.
8 A. I. S. (1926) Patna 321 at 326.8 A. I. R. (1924) Patna 657.
* A. I. R. (1927) Mad. 710.
5 A. I. R. (1936) Mad. 449.8 A. I. R. (1932) Patna 33.
A. I. R. (1935) Cal. 805.
A. I. R. (1941) Cal. 68.
8 A. I. R. (1934) Bombay 257.
218
WIJ35 YE WARI3ENE J.—DuUewa and Somawathie Vpasika.
cannot be maintained in law when the existence of the trust is denied,by the defendants. Section 101 has a special application under specialcircumstances and provides for a case dealing with purely the internaladministration of an admitted trust. The position is fully discussed inBudree Das Muhin v. Ghooni Lai Johurry et al.1. The first part of thejudgment in Eralappa Mudaliar v. Balakrishniah {supra) is at variancewith the concluding portion. In each of these cases cited on behalf of theappellant a trust was at some stage or other admitted and the disputewas only as to internal administration. See also Swaminathapillai v.Kanagamuttu2.
[Wijeybwardene J. pointed to section 107 of the Trusts Ordinanceand to the absence of a similar enactment in India.]
Section 107 lays down only a rule of evidence in view of the earliersection 5, and does not affect the view taken in the Indian cases. Nordoes section 106 make any difference, because that section refers-specifically to section 102 and has no application to a proceeding undersection 101.
Stamping in a case under section 112 of the Trusts Ordinance is on anad valorem basis whereas in a proceeding under section 101 it is on adifferent basis. See section ‘27 (3] of Ordinance 47 of 1941, and Thambiahn. Kasipillai.
G. P. J. Kunikulasuriya for the first defendant, respondent.
tt. W. Jayewardene for the second defendant, respondent.
M. T. de S. Amerasekere, K.G., in reply.—Stamps of the proper valuehave been affixed in this case.
It cannot be said that in all the Indian cases which have been cited the-trusts were admitted.
Cur. adv. vult.
May 2, 1944. Wijeyewardene J.—
The plaintiffs-appellants filed this action under section 101 of the-Trusts Ordinance with the written consent of the Attorney-Grenera] andprayed for an order—
declaring the property mentioned in the plaint to be comprised
in a charitable trust;
appointing trustees .and giving “ directions to the succession to the
trusteeship
setting a scheme for the management of the trust;
vesting the property in such person or persons as the Court may
direct and
granting such other relief as the nature of the case may require.
In view of the questions that have been discussed on this appeal, it is-desirable to give a summary of the pleadings. The plaintiffs-appellants-alleged-—
that they were persons having an interest in the trust;
that Ama-ris Fernando, William Dunuwille and some others formed
themselves into a society about 1905 – “ with the object of
founding, establishing and maintaining in the Town of Kandy’ 1, L. R. {1006} 33 Cal. 789 at 804.2 (1930) 7 Tvmes 134.
WUBYEWABDENB J.—Dullctoa and Somawathie Upasika.
219
a Nunnery for Buddhist women and a school for Buddhist girlsand established a fund for that purpose with contributionsmade by the public and the members of the society;
that the property mentioned in the plaint was bought in 1907
out of the moneys belonging to the above fund, in the name ofMagiris Fernando and William Dunuwille;
that the nunnery and a school were established in 1907 and “ Sister
Sudharmachari was installed as chief mm and preceptor
that William Dunuwille who held the property from about 1907
“ as the sole surviving and continuing trustee ” died some timeago and the executors of his last will executed a deed by whichthey “ appointed and instituted the second defendant Society(registered under the Societies Ordinance) the trustees of all theproperty ” and conveyed the property to the second defendant;and
that disputes had arisen “ as to the management and administration
of the trust …. and as to whether the said propertyis comprised in a charitable trust and as to theperson or persons in whom the title to the said property isvested. ”
The first defendant filed an answer pleading with regard to certainmaterial averments in the plaint that she was unaware of them andputting the plaintiffs to the proof of those averments. While admitting■the purchase of the property in the name of Magiris Fernando andWilliam Dunuwille, she denied that the subject-matter of the actionconstituted a charitable trust ” and said that the property “ wasdedicated to Sister Sudharmachari …. to enable her toestablish a nunnery, vihare …. and a school for Buddhist girlsunder the superintendence, direction and control of herself ”. Shestated, further, that Sister Sudharmachari died in 1902, having appointedher as her successor. She prayed that the action be dismissed or ‘‘in thealternative, on the Court holding that the Institution comprises a charita-ble trust, that, her position as the head of the Institution, Manageress andSuperintendent thereof be confirmed.”
The second defendant-Society filed an answer, supporting the plaintiffs.
The third and fourth defendants, who were added as parties at theirrequest, claim to be the heirs of Magiris Fernando, and state that thethird defendant had “ the control and management of the Institutionswhich were carried on by Sister Sudharmachari and after her deathby the first defendant and the Manager of the Buc-ihist Girls’ School ”.
Several issues were framed at the trial but the Court proceeded to trythree issues as preliminary issues under section 147 of the Civil ProcedureCode. These issues were—
Issue 23.—-In view of thei averment in paragraph 13 of the plaint
that disputes have arisen as to whether the said land or premises is
comprised in a charitable trust, is this action maintainable under
section 101 of the Trusts Ordinance?
220
WLT EYE WARDENE J.—Dullewa and Somawathie Upasika.
Issue 24.—In view of the averment in paragraph 13 of the plaintthat disputes have arisen as to the person or persons in whom the titleto the property is vested, is this action maintainable as one undersection 101 of the Trusts Ordinance?
Issue 33.—Is this action maintainable in view of the denial of thedefendants, other than the second defendant, of the existence of acharitable trust?
The District Judge answered these issues against the plaintiff s-appellants. His reasons may be stated briefly as follows: —
(i.) the plaintiffs have not stated in definite terms that a charitabletrust existed or indicated clearly the trustees- and beneficiaries of the-trust but appear to ask the Court to discover a trust in order that theCourt may be enabled to declare that the property mentioned in theplaint is subject to the trust so discovered;
(ii.) that the Court cannot exercise jurisdiction under section 101as the contesting defendants deny the existence of the trust.
As regards the first reason, it may be conceded that the avermentsin the plaint could have been and, perhaps, should have been madeclearer. I think, however, that the plaint shows with sufficient clearnessthe purposes of the trust alleged by the plaintiff, and the trustees andbeneficiaries of the trust.
As regards the second reason given by him, the District Judge reliedon two Indian decisions and Swaminathapillai v. Kanagamuttu1.After a detailed examination of section 101, the learned District Judgelays down the proposition that “ the denial of the existence of a trustby the defendants deprives the plaintiffs of their right to institutean action under that section. Immediately afterwards, he appears toqualify that statement by introducing an exception, as he proceeds tosay, “ This is not a case where the defendants capriciously or withoutany bona fides dispute the existence of the trust with the ostensible objectof frustrating the plaintiffs’ attempt to obtain relief by virtue of thissection, for in such a case it may be argued with a certain degree ofplausibility that such a denial on the part of the defendants should not beviewed with favour by the Court. In this case, however, the dispute is areal one, for the plaintiffs themselves aver that disputes as to whether theland is comprised in a charitable trust—the emphasis being laid on thewords, ‘ a charitable trust ’—had arisen before the institution of the-action ”. Now, no evidence whatever has been led in this case and,therefore, the abence of bad faith or caprice on the part of the contestingdefendants has to be inferred, according to the observations of theDistrict Judge, solely from the averment in the plaint that disputesarose before the institution of the action whether the land was comprisedin a charitable trust. I am unable to draw such an inference from thataverment. Generally speaking, parties come to Court in any action to-settle through the intervention of the Court the disputes that have arisenbetween them before the action. The existence of a dispute is the causeof the plaintiff instituting an action, but I fail to see how the existenceof a dispute could show that the defendant is not acting capriciously orin bad faith. The fact that the dispute in the present case is with regard
(1930) 7 T. L. R. 134.
221
WXJEYE WABDENE J.—DUllevoa and Somawathie Upastka.
to the question whether the land is comprised in a charitable trust is-undoubtedly of the most vital importance, if section 101 is not applicableto disputed trusts. But the existence of such a dispute is not an indexto the good faith of the contesting defendants in denying the trust intheir answer. Both the denial in the answer and the dispute before the-action could be due to the defendants acting capriciously and in bad faith.There are, of course, no express words in section 101 to justify theformulation of such an exception. Nor is that exception deducible bynecessary implication from the words of that section. I am not impressedat all by this exception of “ bad faith and caprice ” which the learnedJudge has -advanced in a tentative manner as a means of escape fromthe somewhat startling results which would necessarily follow from hisinterpretation of section 101. The correctness of that interpretationhas to be determined without reference to this exception. If thatinterpretation is correct, it means that the jurisdiction of the Court will beousted by the mere-denial of the existence of a trust in the answer of the*defendant, though the denial may be false in fact and could be provedto be false. Such an interpretation would make section 101 worse than*useless, as a defendant would have merely to file an answer denying thetrust to get the plaintiffs’ action dismissed with costs and compel theplaintiff to bring what may be called a regular action. Under suchcircumstances it is difficult to believe that any plaintiff would run the-risk of bringing an action under section 101. But, of course, effect mustbe given to the interpretation of the District Judge if that interpretationis correct, though it may result in the practical deletion of that section;from the Trusts Ordinance.
Section 101 of the Trusts Ordinance contemplates the institution of anaction “ in case of any alleged breach of any express or constructivecharitable trust or whenever the direction of the Court is deemednecessary for the administration of any such trust ”. By virtue of itsposition in the sentence, the word “ alleged ” may perhaps direct one’sattention to an “ alleged breach ” more than to an “ alleged trust ”, but Tfail to see any reason why the word ” alleged ” should be made to qualifyonly the word “ breach ” and not the whole phrase “ breach of anyexpress or constructive charitable trust ”. The cause of action is analleged breach of trust and ” cause of action means the whole cause of’action, i.e., all the facts which together constitute the plaintiffs’ right tomaintain the action ” (See Dicey's Parties to an Action Chapter 11,Section A). Thus* where the plaintiffs bring an action under this sectionfor an alleged breach of a charitable trust, they must allege and prove-,in the absence of an admission by the defendants, (1) the existence of acharitable trust and (2) the breach of such trust by the defendants.Similarly if the cause of the action is the necessity for the direction ofCourt for the administration of a trust, the plaintiffs must allege andprove, (1) the existence of a charitable trust and (2) the necessity for the■direction of Court. There is nothing in the language of- the section tojustify one in saying that the trust referred to in that section must be a-trust admitted by the defendants. The jurisdiction of the Court to tryan action in respect of a disputed trust appears to me to be placed beyondany doubt by section 107. Both sections 101 and 107 are included ins
222
WUEYEWABDENE J.—Dullewa and Somawathie Upasika.
'Chapter X. of the Trusts Ordinance dealing with charitable trusts andsection 107 enacts-—
“ In dealing with any property alleged to be tHe subject of a charitabletrust, the Court shall not be debarred from exercising any of its powersby the absence of evidence of the formal constitution of the trust, if itshall be of opinion from all the circumstances that a trust in fact exists,or ought to be deemed to exist.”
That section contemplates disputed trusts clearly, as it refers toproperty “ alleged ” and not admitted to be subject to a charitabletrust and then proceeds to state how, in certain cases, the 'Court mayinfer the existence of the trust from “ all the circumstances of the case
The plaintiffs, appellants have asked, inter alia, for a declaration thatthe property is comprised in a charitable trust, and, as section 101 doesnot provide in express terms for such a declaration, it is argued that theplain tiffs action falls outside the section. In spite of several Indiandecisions to the contrary, I do not think it would be difficult to havesuch a declaration in view of clause (c) of the section which provides foran order “ declaring what proportion of the trust property or of theinterest therein shall be allocated to any particular object of the trustUnder that clause the Court may declare that a certain proportion of the"trust property should be set apart for the nunnery and the residue of theproperty for the school. By doing so, the Court, in fact, will declarethat the various properties are comprised in the trust. Even if the Court•cannot make such a declaration as asked for by the plaintiffs, that doesnot debar the Court from giving the other relief under section 101 andfrom considering the various matters necessary for giving such reliefs:(See Eralappa Mudaliar v. Balakrishniahl). As was laid down in AnjaneyaSastii v. Kothandapani Chettiar2, “ once the Court is moved, the scopeof the inquiry must be determined in the light of what is germane to thevarious matters indicated in section 92 (of the Indian Code of CivilProcedure) and not by reference to the right of the plaintiffs to particularreliefs
It was urged by the Counsel for the contesting defendants that, ifsection 101 was not so constructed as to take away from the jurisdiction ofthe Court cases of disputed trusts, an opportunity would be afforded topersons who wanted to establish title .to valuable property to achievetheir object by bringing an action under section 101 and stamping the■ proceedings as in the Its. 5,000 class instead of bringing a regular actionfor vindication of title and paying ad valorem duty. If this argument is•sound, it will, no doubt, afford a means of testing the correctness of theinterpretation. But the argument is clearly fallacious. Persons who sue-under section 101 will either get no order in their favour or an order onthe footing that the property is comprised in a charitable trust. Such an-order will not assist them in asseting subsequently that the property istheir private property. In fact, an order of that nature will be a serious,if not an insurmountable, obstacle in their way in making such an assertionsuccessfully.
1 A. I. R. (1927) Madras 710.
A. I. R. (1936) Madras 449.
WIJKYEWAHDEXK J.—Dullewa and Somawathie U-pasilca.
223
Before proceeding to consider some of the Indian decisions, it is-necessary to make a brief reference to some of the provisions in our lawin relation to the provisions of the Indian Code of Civil Procedure withregard to trusts. Section 101 of the Trusts Ordinance replaced section689 of the Civil Procedure Code, 1889. As pointed out by the DistrictJudge, section 101 omits the reference to a vesting order that appearedin section 639 of the Code. That omission is probahly due to the factthat section 112 provides for such vesting orders. The section correspond-ing to section 639 of our Code was section 539 of the Indian Code of CivilProcedure, 1882. That section was replaced later by section 92 of theIndian Code of 1908. In reply to a question put to them, Counsel forthe contesting defendants stated they were unable to find in the IndianCode of Civil Procedure or any other Indian enactment, a provision,analogous to section 107 of the Trusts Ordinance.
The two Indian decisions on which the District Judge relied in supportof his view that section 101 did not apply to disputed trusts are Jamal-Uddin v. Mujtaba Husain1 and Khursaidi Begum, v. Secretary of State forIndia2. Jamal-Uddin v. Mujtaba Husain (supra) was an action institutedby a plaintiff to have it declared that certain property was endowed for amosque and other charitable purposes. The defendants denied theendowment and claimed to be the owners of the property. The defencetook the plea that the action was not maintainable as it had been institutedby one person and no written consent had been obtained from the LegalRemembrancer as required by section 539 of the Indian Code. Inrejecting this plea, the judges said:
“ Section 539 appeals to us to have no application to the facts ofthis case. That section presupposes the existence of a trust ….If the plaintiff in this case …. had applied to the LegalRemembrancer …. for liberty to institute a suit, it wouldhave __ been the duty of the person so applying to have satisfied theLegal Remembrancer that there was an express or constructive trustexisting, and if he failed to satisfy the Legal Remembrancer of thisfact, then we take it that it would have been his duty to refuse toentertain the application. Here the suit is not brought for any of the
purposes enunciated in section 539,—It is a suit instituted
simply and solely for the purposes of having a declaration of the Courtthat certain property is Waqf. It is in no way a suit for the Administra-tion of the Waqf property, or for the removal of the trustees of thatproperty or for any of the other purposes to which we have referred ”.
Though there are passages in the judgment which taken by themselvessupport the view that a Court has no jurisdiction under section 539 toentertain an action where the defence denies a trust, yet the passage-eited above seems to suggest that the written consent of the LegalRemembrancer serves to furnish such prima facie proof of the existenceof the trust as is sufficient for the Court to enter upon an adjudication ofthe disputes between the parties. Again, in considering decisions ofIndian Courts prior to the Indian Code of 1908, we have to bear in mindthe possibility that those decisions may have been influenced by the view
1 (1903) I. L. R. 25 Allahabad 631.2 A. I. R. (1926) Patna 321.
224
WIJEYE WAHDENE J.—Dullewa and Somawathie Upasiha.
then held by some of the judges that section 539 was not mandatory'hut permissive and enabling. That position is clearly brought out in thefollowing passage in the judgment of Woodroffe J. in Budree Das Mukimsy. Chooni Dal Johurry1.'
“ In the latter view (i.e., if the section did not take away pre-existingrights or remedies) the first thing to be ascertained is whether the suitcomes within the scope of the section. If it does not, then no questionas to its mandatory character arises. If, however, the suit is oneupon a cause of action and for relief mentioned in that section, then it isto be determined, whether that particular suit would have lain priorto the enactment of the section. If it would have so lain,, it will lienow. This is a question of substantive law, and if that law affirmsthe right of suit, the latter may be instituted in the ordinary jurisdictionand as so instituted will be governed by the ordinary procedure. If itwould not have lain, then it is obvious that the suit must be institutedaccording to the provisions of this section. ”
Khursaidi Begum v. Secretary of State for India (supra) was an actioninstituted by the plaintiffs on their own behalf and on behalf of the Shiah•community to have it declared that a certain escheated property wassubject to atrust in favour of the Shiahcommunity.The plaintiff’s
pleaded that“ they had no objection totheright of thegovernment to
hold possession of the estate " but that the government was bound toapply the income for the religious purposes enjoined by the Shiah law.The plaintiffs did not obtain the written consent referred to in section 92.The defence took the plea that the plaintiffs should have obtained such-■•consent. The Court held that section 92 did not apply, as the suit was to•establish theexistence of the trust itselfandthe whole question involved
was whethersuch a trust existed or not.Ina later case(A. I. R. 1936
Madras 449, at 460) Stoddart J. expressed the view that, in KhursaidiBegum v. Secretary of State for India (supra) the judges had placed toonarrow a construction on section 92. Moreover, the Patna High Courtitself took a contrary view in (Syed Shah) Muhammad Kazim v. (Syed)Abi Saghirz. In the course of his judgment, Mohamed Noor J. said{at page 52)—
“ It is contended that as there is a prayer for the declaration of thedisputed properties to be a trust, section 92, Civil Procedure Codedoes not apply. It is argued that the section only applies when thetrust is admitted and not when the very existence of the trust is indispute. There is no force in this contention.
Moreover, the case we have to consider is not on all fours with Jamal-TJddin v. Mujtaba Husain (supra) and Khursaidi Begum v. Secretary ofState for India (supra), as in this case one of the reliefs asked for falls-clearly under clause (e) of section 101 (1).
The High Courts of Bombay, Calcutta and Madras have taken the viewthat under section 92 of the Indian Code, a Court has jurisdiction to•entertain an action even where the trust is denied by the defence.
(1906) 1. L. R. 33 Calcutta 789.
A. I. R. (1932) Patna 33.
WTJEYEWAKDENE J.—Dullewa and Somawathie Upasika.
225
In Jafarkhan v. Daudshah1 (followed in Said Maher Husein v. HajiAlimohomed Jalaludtn2, Batchelor J. and Rao J. allowed an appealagainst an order of the,original Court dismissing an action under section92 and said:
*' The learned judge relying upon Jamal-Uddin v. Mujtaba Hussain(supra) thought that this suit could not be referred to s. 92 of the CivilProcedure Code, because the trust alleged by the plaintiffs was notadmitted by the defendants. In our opinion, however, that is noreason for taking the suit outside the scope of s. 92. Jamal-Uddin’scase, as we understand it, is not an authority for more than it decides,and all that it decides is that a suit asking for a mere declaration thatcertain property is trust property does not lie under the old s. 539.It will be seen that the proposition is incontestible if reference bemade to the sub-clauses of s. 539 which prescribe the particular purposesfor which such a suit may be brought under that section, which purposesdo not include the purpose of obtaining a mere declaration; but inthis present suitthere are prayerswhich bringthe casewithin the
ambit of s. 539.We think thatnodifficulty iscaused bythe use of
the words '* anyalleged breachofany trust ”occurringin s. 539,
for we do not read those wordsasequivalent to any alleged breach
of any admitted trust ”.
In Abdul Majid v. Akhtar Nabi3, Hitter J., said at p. 806—
“ In support of the appeal it has been contended on behalf of theappellants that in a suit under section 92 it is competent for the Courtto decide the question as to whether the trust in respect of which thesuit is brought is a public charitable trust or not, so as to attractthe application of section 92, Civil Procedure Code and that a separatesuit for the declaration that the property is a trust property is notnecessary. This position has not been disputed on the other side, andauthorities were shewn that in a suit such as this an issue may beraised as to whether the trust was a trust contemplated by section 92,Civil Procedure Code.
In Anjaneya Sastri v. Kothandapani Ghettiar4 Stoddart J. said thatpersons suing under section 92 " have to establish at their cause of action(1) that there is a trust express or constructive created for public purposesof a charitable or religious nature and (2) that it has been broken ”.Varadachariar J. suggests in the course of his judgment that the reasonfor the proposition, that persons claiming a title adverse to a trust shouldnot be made parties to a suit for the execution of a trust, is to be foundin the division of jurisdiction between the Common Law Courts and theCourt of Chancery and the distinction between Common Law actionsand Proceedings in Equity. He then proceeds to state—
“ An action raising a question of title must be filed in the CommonLaw Courts and the Court of Chancery would not undertake to decidesuch a question. This principle coloured the legislation in England■ as well as the decisions relating to charities.
In the Charitable Trusts Act of 1853 there was an express provisionexcluding proceedings in which any person shall claim any property
1 (1911) 13 Bombay Law Reporter 49.3 A. 1. R. (1935) Calcutta 805.
* A. I. R. (1934) Bombay 257.* A. I. R. (1936) Madras 449.
F —J.N. A 93349 (11/49)
226
WIJEYEWARDBNE J.—Dullewa and Somawathie Upasika.
or seek relief adversely to any charity. Section 92, Civil ProcedureCode, has no doubt been modelled on the practice of the ChanceryCourts, but as that division of jurisdiction is not "part of the law of thiscountry, limitations arising out of that conflict of jurisdictions have nodirect application here
There remains for consideration the following passage m the judgmentin Swaminathapillai v. Kanagamutiv.1 cited by the District Judge: —
“ It would seem rather that the section (section 102) is concerned withmatters of internal administration, and it may well be that the provisionsof the section may be put into operation for the purpose of getting trusteesappointed who would then be in a position to institute proceedings torecover property of the temple This case of Swaminathapillai v.Kanagamuttu is a difficult case to understand. The appellants filed thisaction under section 102 asking for an order appointing them as trusteesof a Hindu Temple and vesting certain property in them as such trusteesand “ for certain other relief. ” The report does not indicate the natureof this “ other relief. ” The defendant raised no objection to the appoint-ment of trustees but claimed the property as her own personal property.Only three issues were framed at the trial and these dealt solely with thetitle to the property. The parties were not at issue as to the maintain-ability of the action. The District Judge held in favour of the defendanton all the three issues and dismissed the action. When the case cameup in appeal, there was no appearance for the defendant. The AppellateCourt stated in a short judgment: —
that the District Judge had acted prematurely in dismissing the
action as there were “ further questions involved in such anaction which remained undecided;
that it was premature for this Court to express an opinion on the
District Judge’s findings as to title;
that it was not possible for the Appellate Court to decide whether
the defendant had any interest in opposing the plaintiff’sclaim other than on the question of title;and then sent the case back “ to be further dealt with under the provisionsof section 102
If the passage cited above shows that the Appellate Court was ofopinion that an action under section 102 could not be maintained whenthere was a dispute as to the property alleged to be comprised in acharitable trust, it is not clear why the appeal was allowed as the order•dismissing the action could have been sustained on the ground of wantof jurisdiction.
It is sufficient for the purposes of the present case to observe that theopinion referred to is in the nature of an obiter dictum with regard to thescope of section 102 while the section we have to consider in the presentcase is section 101.
For the reasons given by me I hold that the issues 23, 24, and 33 shouldbe answered in favour of the appellants.
I allow the appeal and send the ease back to the District Court fortrial on the other issues the 1st, 3rd and 4th defendants, respondents,
1(1930) 7 Times Law Reports 134.
SOERTSZ J.—Fernando and Perera.
227
will pay the plaintiffs, appellants, and the 2nd defendant, respondent,the costs of the proceedings on September 20, 1948, and the costs of thisappeal.
In order to prevent any future difficulty in assessing evidence thatmay be led in the District Court, I wish to point out that the 1st defendantwho is described as an “ TJpasikawa ” has stated in her answer that shehas “ ordained a large number of Buddhist Nuns If the term “ Nun ”,is used to mean a “ Bhikkuni ”, I find it difficult, as at present advisedto understand how an “ Upasikawa ” could ordain “ BikkhunisI
think it would save a great deal of confusion if in leading evidence theterms as known to the Buddhist Ecclesiastical Law are used, and, wherenecessary, English translations of those terms are given.
Howard C.J.—I agree.
Appeal allowed.
Case sent back.