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Present: Schneider and Dalton JJ.KALIMUTTU et ai. v. MUTTUSAMY.402—D. C. Ghilaw, 7,306.
Trusts Ordinance—Powers of Court to vary or modify trusts—Failure toprove a breach of trust—Public purposes—Ordinance No. 9 of1917, s. 100.
The powers vested in the Court under section 100 of the TrustsOrdinance to modify or vary charitable trusts can only be exercisedin order to carry into effect the intentions of the founders of suchtrusts so far as such intentions are not inconsistent with anyexisting law.
It is not the duty of a Court to direct charitable property to beemployed in such manner as it thinks will be most beneficial forpublic purposes.
The principle laid down in Attorney-General v. Boucherett1followed.
HIS was an action brought by eight persons as plaintiffsagainst the defendant who is the incumbent of the Munnes-
saram temple. They purported to bring the action under theprovisions of section 102 of the Trusts Ordinance 1917, and prayedamongst other things for an order directing defendant to account forall moneys received from 1912 to the date of the action, and for thesettlement of a scheme for the management of the temporalities ofthe temple, alleging that defendant was as a trustee accountable tothe congregation and that he had failed to carry out the trust.
The defendant took up the position in the lower Court that he wasthe incumbent, and that he was not answerable to any earthlyauthority.
The learned Judge after hearing the evidence came to theconclusion that the temporalities of the temple -constituted acharitable trust, and made an order adverse to the defendant interms of the prayer of the plaintiffs.
The defendant appealed.
Hayley (with Tissaverasinghe and S. Rajaratnam), for defendant,appellant.
The plaintiffs purport to bring the present action undersection 102 of Ordinance No. 9 of 1917. That section requires thatfive persons “ interested ” should make the application to Court.The evidence in the case does not disclose that even five out of the
1 25 Beaven 116.
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eight persons are persons “ interested” within the meaning of thesection. The best that the evidence discloses is that four of theplaintiffs are interested, and hence the action must fail.
Furthermore, the procedure laid down by the Ordinance has notbeen followed. Sub-section (3) of section 102 requires that beforeinstitution of action there should be an inquiry by the AssistantGovernment Agent. No such inquiry has been held, nor has aplaint been submitted as required by the Ordinance, but only apetition.
With regard to the merits of the case the whole course of dealingson the part of the defendant and his predecessors show that theyhave interested themselves in this temple, and brought it to itspresent state. It must, however, be conceded that the defendantis a trustee. Before the plaintiffs can get the relief they pray forthey must prove that there has been a breach of trust on the partof the trustee. No proof of any breach of trust has been forth-coming ; on the contrary it is abundantly clear that much of themoneys has been spent on the temple itself. The mere fact thatleases contrary to the deed have been granted do not constitutesuch a breach as entitles the appointment of a new trustee, as it hasnot been shown that it resulted in any loss to the trust.
Defendant has met debts incurred by his predecessors forrenovation of the building.
None of the charges made against the defendant bas beensubstantiated, and the defendant is entitled to have the actionagainst him dismissed.
Balasingham (with Arulanandan and W eerasinghe), for therespondents.
As regards, the interest of the plaintiffs, it can be satisfactorilyestablished.' The mere fact that the temple is a Hindu templedoes not take those of the plaintiffs who are Buddhists outof the category of persons interested. [Schneider J.—We do notwish to hear you on that question as we are satisfied that the actioncan be maintained as at present constituted.]
The defendant, although he took up the position that he wasaccountable to none but to God, would now seem to try to make outthat he is in the position of an English trustee. That is not so.His true position is that of the head of a “ Mutt,” and as such isaccountable to the congregation.
The position is well explained in 27 Madras 435 at pp. 439 and 442.
It is true the specific charges made against ..the defendant havenot been substantiated, yet a sufficient case has been made out ofhis mismanagement. Hence the order made by the District Judgewith regard to a new scheme ought to stand.
Couhsel also cited Ramanathan v. Kurukal.1
* 15 N. L. B. 2). 6.
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September 22,1925. Dalton J.—
This is an action by eight persons as plaintiffs, under the provisionsof section 102 of the Trusts Ordinance, 1917, asking for an order ofthe Court—
Directing the defendant to account for all properties belonging
to the Munnessaram temple since 1912 to the date ofthe action, and to bring into Court all moneys unaccountedfor and remaining in his hands ;
Restraining the defendant by injunction from receiving and
appropriating the “ undial ” offerings during the annualperahera festival, and any income derived from thetemporalities ;
Appointing a person to act as receiver pendente lite ;
Directing the appointment of a board of trustees ; and
Settling a scheme for the management of the temporalities of
the said temple and trust.
The defendant, it is sufficient to say at present, is the incumbentof the temple. As will appear later he claims to be more than that.The plaintiffs claim to be persons “ interested ” within the meaningof section 102 (2) of the Ordinance, in the temple, and also to be“ hereditary trustees of the temporalities, income, and offeringsbelonging to the said temple,” and charge the defendant with neglectand waste of the temporalities, pawning the jewellery and preciousstones belonging to the temple and substituting tinsel and paste,leading an immoral life in Colombo and neglecting his duties aspriest whereby the temple is brought into disrepute, and its servicesare neglected.
Evidence was led at length and the learned trial judge made anorder dated October 3, 1924, on the claim, the following of whichare the material parts :—
The Hindu temple of Siva at Munnessaram and the lands,
income, “ undial ” and other offerings and temporalitiesthereof are a charitable trust within the meaning of theTrusts Ordinance 1917.
A scheme to be settled and a board of trustees to be appointed
for the management of the trust, the scheme to besubmitted by plaintiffs and defendant for the fmaTapprovalof the Court.
The defendant is ordered to submit to the Court—
(а)A detailed account of all the income, “ undiaJ,” and
other offerings, and all emoluments received by himduring the last three years out of the said temple ;
(б)A statement of all the leases of temple properties
given by him, and an account of the various sums ofmoney received by him upon the said leases ; and
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(c) A full true and sufficient statement and inventory ofall the property, movable and immovable, belongingto the temple.
Until the final scheme is settled the defendant is restrainedfrom incurring any expenditure of an extraordinarynature on behalf of the temple, and from leasing any of theproperties belonging to the temple.
From this order defendant has appealed on the followinggrounds:—
The plaintiffs have failed to comply with the provisions of
section 102 (3) of the Ordinance in as much as it does notappear that the petition addressed by them to the Govern-ment Arpnt in 1920 upon which the latter issued hiscertificate was in respect of the subject matter of theplaint in this action;
The temple and its property does not constitute a charitable
trust within the meaning of section 102 ;
It has not been proved that any five of the plaintiffs are
“ interested ” parties within the provisions of section 102
The plaintiffs are not trustees, hereditary or otherwise, as
The temple in question is a Paravtham temple ;
Even if it be held that the temple constitutes a “ charitable
trust ” within the meaning of the Ordinance, and that thedefendant is a trustee thereof, the evidence does notestablish and the Court does not find any breach of trustor misconduct on his part beyond the fact that defendanthas granted a few imprudent leases.
The facts which are not in dispute show that the temple, held inveneration by Buddhists as well as Hindus, is one of considerableantiquity. The first authentic record appears to be a Royal grantof lands to the temple in the year 1448 by means of a sannas inscribedon its walls. This inscription appears to have been removed froman older building, and built into the present one. In 1596 thetemple is said to have been sacked and destroyed by the Portuguese,and after being rebuilt in the interval, to have been destroyed asecond time about the year 1600. Thereafter there is a record inthe Government Archives of a further Royal grant of lands on acopper plate in the year 1675. The temple, however, appears incourse of time to have fallen into disrepair, until it is stated thatin 1804 Brahmin priests ceased to officiate there. Evidence isproduced of official correspondence in that year dealing with thearea of the land given to the temple, and the amount of paddyto which the priests of the temple were entitled. Between 1804and 1873 the affairs of the temple seem to have suffered still greater
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neglect, during which the buildings naturally suffered. In thelatter year, however, an action was commenced in the DistrictCourt of Chilaw by eleven persons who claimed to be “ trustees of thesaid temple ” at Munnessaram to vindicate title to certain landsoccupied by the defendants in that action.
The defendants, who included the Police Headman and Vel-Vidane, claimed title by prescription to the lands in dispute. Byhis judgment dated May 13, 1875, the District Judge decreed asfollows:—
“ It is decreed that the plaintiffs be and they are hereby declaredproprietors, qua trustees of the Munnessaram temple, ofthe portions of land marked B, C, D, and E in the surveyplan filed in this case, that they be quieted in thepossession thereof, and that the defendants do pay allcosts of this suit.”
It was in the course of that case that Kumaraswamy Kurukal,an important person in thia case, first appeared on the scene. Upto that time he had no connection with the temple, but was calledby the plaintiffs to give expert evidence about the saunas. OneSinnetamby Kapurala is said to have been incumbent at the time,but it is admitted that the temple was in ruins and overgrown withjungle. Kumaraswamy Kurukal appears to have interestedhimself in it and became chief priest of it “ by virtue of a reply ofHis Excellency the Governor of this Island bearing No. 1,299 datedJuly 8, 1875,” as set out in a power of attorney granted by him in1878 (Exhibit D 3). What the Government had to do with the'temple, or what was the nature of the application to the Governordo not appear. The plaintiffs’ case is, however, that Kumaraswamywas chosen by the twelve persons mentioned in the case No. 20,181,Chilaw, who claimed to be trustees, to be incumbent in place ofSinnetamby Kapurala who was old, sickly, and incompetent.However that may be, it is admitted that he got the villagerstogether broke down the ruins, and rebuilt and restored the temple,spending a considerable sum of money on it, officiating himself atthe temple, or arranging for its services to be carried on.
As Kumaraswamy Kurukal lived in Colombo, in 1878 he appointedone Muttu Aiyar who, in the words of the power of attorney—
“ Has been hitherto appointed by me as such without a legalwriting or authority to manage the affairs of the saidtemple to be my true and lawful attorney for me andin my name as chief priest as aforesaid and to continueas officiating chief priest aforesaid, and to defend all suitsin respect of the said temple and premises, and to ask,demand, sue for, recover, and receive of and from allpersons whomsoever liable …. all sum or sums
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of money, debts, dues, rents, profits, and produce dueand payable hereafter to me as chief priest ….to build, construct, repair, and improve the said templeand premises, and to let lease and demise any landsbelonging thereto upon such terms as he shall thinkproper,” &c.
Kumaraswamy died in 1909, and so far as he is concerned it isclear from the documentary evidence in respect of his actions,between 1878 and 1909, he considered himself to be a trustee of thetemple, in whom the temple and its appurtenances were vested.No question arose during those years of the plaintiffs or any of thevillagers being trustees. In 1885 he raised money on mortgage (Dl)mortgaging the income of the temple. In 1886 Muttu Aiyar, hisattorney, took action in the District Court of Chilaw against theAttorney-General of the Colony to stay the sale of land alleged tobelong to the temple. In that action (D2) plaintiff describedhimself as trustee of the temple and of the lands, property, andtemporalities belonging and appertaining thereto. It is admittedby the plaintiffs that he also brought another aotion to vindicatetitle to temple lands. It is in fact also admitted that duringKumaraswamy’s lifetime no question arose between him and anyother person contesting his position, and the rights he claimed inrespect of the temple and its lands. Some trouble arose in 1900 be-tween Kumaraswamy and Muttu Aiyar, who was dismissed but he wastaken back in 1902 and 1903. Muttu Aiyar eventually died in 1912.
Meanwhile, in 1902 Kumaraswamy had executed an importantdocument. The defendant, Somaskanda Kurukal, is his grandson,and by deed D7 in that year Kumaraswamy appointed him to actjointly with him, and under bis directions during his lifetime, andafter his death to act as sole trustee and Manager of the temple andits properties. The deed recites that for twenty-five years Kumara-Bwamy had been trustee, manager, and director of the temple, andthat as he was getting old and infirm, and unable to attend to thetemple and its temporal affairs personally, he was “ desirous ofvesting the said temple and the properties belonging thereto in atrustee.” The appointment of the defendant is then made, and theproperty vested “ for ever in trust for and to the following use andpurposes and subject to the following conditions,” fully set out inthe deed.
In considering the plaintiffs’ claim it is most material to considerthe position and attitude taken up by Kumaraswamy, for theyadmit that they had no complaint against him of any kind. Heundoubtedly acted over a long period as sole trustee of the templeand its properties, without interference or question and no claim ofany other person other than Kumaraswamy, Muttu Aiyar, and thepresent defendant to be a trustee, has ever been put forward between1878 and the commencement of the present action.
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This action, commenced in August, 1923, is brought by theplaintiffs in two capacities, first, as hereditary trustees of the templeand its temporalities, and secondly, under the provisions of section102 of the Trusts Ordinance 1917, as persons interested in thistemple as a religious trust.
They set up that the temporalities of the temple and the" undial ” offerings have been from time immemorial “ under themanagement, control, and supervision-of eleven trustees by right ofhereditary succession and election by the surviving trustees as theoccasion arose,” that they are the next of kin of the “ previoustrustees,” and have acted as such since the, death of their“predecessors in title.” The “previous trustees” referred towould appear to be the plaintiffs in the action D. C., Chilaw,No. 20,181 of 1873, already mentioned. It is true that thoseplaintiffs were found to be “ proprietors qua trustees of the Murmes-saram temple,” but the only evidence available in that case is thatof the 1st plaintiff who says he was “ KapuraJ and trustee,” beingchosen as such by twelve other persons whom he also calls trustees.From his evidence they might be nothing but a board of electors,as he alone seems to have had full control and management of thetemple property. I do not think further that much can be inferredfrom the use of the word “ trustee ” in the action of 1873. Thequestion in issue was whether the lands claimed by the plaintiffswere temple lands or had been acquired by the defendants byprescription. The term “ trustees ” may have been loosely appliedto persons interested as worshippers, or villagers, in the temple and. its properties. Whatever these twelve people were, however, I amquite satisfied that the plaintiffs have failed to prove that they aretheir next of kin. James Perera, the 2nd plaintiff, merely sayshe is a son of Don David Perera, Vel-Vidane Aratchy, who died in1901. A person of that name appears as the 3rd plaintiff in the1873 suit. If he was the father of James Perera he sat by from1873 to 1901, allowing Kumaraswamy and Muttu Aiyar to raisemoney on mortgage, bring actions in respect of the temple property,and act generally as if Kumaraswamy was sole trustee, withoutobjection. Not one of the witnesses can produce documentaryevidence of any kind that either Kumaraswamy Kurukal, MuttuAiyar or defendant recognized them as trustees or co-trusteesafter 1875 ; there is evidence to show that they were worshippersat the temple and so interested in it, but nothing more.
The 3rd plaintiff says he is a son of Ranhamy Gabode Lekama,and brother of Nalliah Gabode Lekama. Ranhamy GabodeLekamaappears to be the nameof the 10th plaintiff in the 1873 suit.This 3rd plaintiff however says he did not become a trustee untilJuly, .1912, when ten other trustees elected him. His evidence isvague and indefinite. He knew nothing about the moneys with
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which the temple had been rebuilt, did not know of the appoint-ment of defendant by Kumaraswamy as his successor, and yetadmits that he had signed documents (P14 and P15) respectingmeetings at the temple and the hoisting of the flag by order of thedefendant. His real claim I think may be summed up in wordshe used “ the Devala belongs to us the villagers.”
The 7th plaintiff claims to have succeeded his uncle fifteen yearsago. He admits, however, that his father signed the bond D1 in1885 as a witness only. The evidence of the 8th plaintiff is no moredefinite as regards his claim to be a trustee. The 1st plaintiff stateshe is the son of Sinnetamby Kapurala, already mentioned, but hiscross-examination makes it clear that he was no trustee, but merelya worshipper at the temple, as he is described by the 3rd plaintiff.This description the 3rd plaintiff also applies to the 5th and 7 thplaintiffs and I have no doubt it adequately describes the amountof their interest in the temple and its property. The remainingplaintiffs have failed to substantiate their claim to be trustees orthe next of kin to alleged previous existing trustees. I am there-fore unable to agree that the learned trial judge is correct, when hesays there is no reason to disbelieve the plaintiffs when they saythat they succeeded their ancestors as trustees of the temple. Theevidence is, in my opinion, most vague, indefinite; and unsatisfactoryon a matter which the plaintiffs had properly to establish beforethey could maintain their claim as “ hereditary trustees.”
Where however they claim as parties interested in a religioustrust, it is a different matter. Mr. Hayley, I understood, admittedhe could not contest the finding of the trial judge, that the templeand its property and appurtenances did constitute a charitable trustwithin the meaning of the Trusts Ordinance. It seems to methat the evidence, documentary and otherwise, led for the defenceis conclusive on that point, although the defendant himself at onetime maintained a different attitude. The interest of at least five ofthe plaintiffs within the meaning of section 102 (2) of the TrustsOrdinance, to enable them to maintain this action, is also I thinksatisfactorily established. An objection was taken that no plainthad been submitted to the commissioners appointed under section102 (3) to hold the statutory inquiry which must precede the action,but it seems to me that the real subject matter of the action wasbefore the commissioners, and in view of the powers of amendmentgiven by section 102 (7) this objection was not pressed.
The result then to this point is that the plaintiffs have establishedtheir right to maintain this action, in respect of a religious trustof which defendant is sole trustee and of which they are some of thebeneficiaries. In their claim they allege he is guilty of breach oftrust, neglecting the temple, committing waste, pawning thejewellery and precious stones of the temple, leading an immoral life,neglecting his duties as priest and bringing the temple into disrepute.
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On these charges the learned trial judge comes to no conclusion.He says “ I do not think it is necessary for me to examine thesecharges in detail. If I think it will be in the interest of the templeto appoint trustees, instead of leaving it in the sole charge of thedefendant it is my duty to do so.” I regret I am unable to agreewith him, for I think these charges were of the essence of plaintiffs’case, and it is extremely unfortunate that the trial judge did notdeal with them. As we were informed he is no longer in the ChilawDistrict, it is impossible now to send the case back for a finding to bearrived at. The plaintiffs and the defendant were entitled to havea definite finding on these serious charges. If the plaintiffsestablished them, they would have been entitled to an order of theCourt settling the future management of the trust; if they failedI do not think this Court should interfere with the trust as it nowexists. The cases in which the Court interferes to alter or modifytrusts under the powers given in section 100 of the Ordinance arefairly well defined. In Attorney-General v. Boucherett (supra) citedin course of the argument the Master of the Rolls, dealing with thepowers of the Court in respect of charitable trusts says : “ It is notits duty to direct charity property to be employed in such manner asit thinks will be the most beneficial for public purposes, but to carryinto effect the intentions expressed by the founders, so far as thoseintentions are not inconsistent with any existing law. Theauthorities show this very distinctly, that the Court cannot vary ormodify existing charity trusts, so as to meet its own views withregard to what it may think most beneficial and for the generaladvantage of the public ; nothing but an act of Parliament can dothat.”
If the charges framed by the plaintiffs had been sustained in wholeor in part it could undoubtedly have been said that the intentionswith which this trust was founded were not being carried into effect,and the Court would have been justified in exercising its powers ofvarying the trust. It is true that the defendant has granted leasesof temple property for a period longer than is allowed by his deedof appointment, but the evidence of the witness Corea, which wasnot questioned in cross-examination, shows the rei.ts paid werefair and reasonable, and the lands were being cultivated in thesame way as other village lands. There is no evidence thatdefendant has committed waste in respect of the immovableproperty. It was urged, however, that he has pawned or disposedof temple jewellery. That is one of the matters which the learnedtrial judge does not deal with. A perusal of the evidence, havingregard also to the unsatisfactory nature of the evidence of some ofthe plaintiffs to which I have already referred, does not satisfy methat this one of the charges has been established beyond a reasonabledoubt. It is unfortunate that they have not been dealt with in theCourt below, and a definite finding in respect of them come to by the
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learned judge. Mr. Balasingham for the plaintiffs (respondents)has however taken the judgment as it stands, and does not ask thisCourt to come to any finding on the charges. Had he done soI should have been compelled to say the plaintiffs had failed tosubstantiate them in any material respect. The granting of theleases, although contrary to the deed, has not been shown to haveresulted in any loss to the trust or to have caused any failure in theintention for which the trust was founded. There is evidenceto show that jewellery of the temple was pawned in 1912, but itdoes not appear what was done with the proceeds. It is clear,however, on the other hand that the temple from early in Kumara-Bwamy’s days was in debt, sometimes in a large sum, on account ofthe building and other expenses incurred, which debts defendanthad to meet. In 1913 it is true that when asking (see P 23) forpolice protection for the temple during the annual festival, defendantsaid the temple jewellery was worth Rs. 8,000, whereas now he saysin his evidence it is worth only about Rs. 1,000. The terms of hispetition in 1913 appear to me to be somewhat exaggerated, and nodoubt defendant stated his case as strongly as possible to obtainwhat he was seeking. It is this matter of the jewellery which raisesany question in my mind as to whether or not the Court would bejustified in granting any part of the claim of the plaintiffs. On thewhole I am of opinion, as I have stated, that sufficient ground hasnot been shown for doing so. Books seem to have been properlykept (D 18) which the plaintiffs, or some of them, admit they neverasked for nor cared to examine. Lists of temple property, movableand immovable, were produced by the defendant from his books.The offerings, whether daily offerings or undial offerings, appear,from the evidence of the witness Sunderam Kurukal called by theplaintiffs, to have been properly dealt with at the time of whichhe speaks.
There is only one further matter that remains to be mentioned.During the trial the defendant certainly took up the position thathe was answerable to no one, no earthly authority, if I may put it so.He said “ I am only answerable to God in case I mismanage.”In arguing the appeal for the defendant, Mr. Hayley has been unableto justify or support that attitude. I have therefore thought itunnecessary, for the purposes of this case as it has gone, to dealwith the arguments arising out of the claim that the temple is thePavartham temple (although it might have been necessary to do so,had ground be shown for varying the trust), and that the position ofthe defendant was that of the head of a “ Mutt ” as found in SouthIndia. Mr. Balasingham cited authority for the proposition thatthe head of a “ Mutt ” is not a mere trustee but a corporation sole(Tirtha Swami v. Tirtha Swami.1) Defendant now admits he is atrustee within the meaning of the Trusts Ordinance, and I have1 27 Madras L. R. 435%
to deal with him on that basis. The plaintiffs have not succeededin their contention that he has been guilty of any breach of trustwhether he ocoupy the position of the head of a “ Mutt ” or not,such as would justify the Court in making or require the Court tomake a decree under any of the provisions of section 102 of theTrusts Ordinance.
The action of the plaintiffs should, therefore, in my opinion,have been dismissed, but in view of the fact that defendant deniedthe existence of a trust, without costs. 1 would, therefore, allowthis appeal with costs.
Schneider J.—I agree.