087-NLR-NLR-V-16-KANDAPPU-v.-SEGUNATHA.pdf
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Present: Pereira J. and Ennis J.
KANDAPPU SEGUNATHA.
1§1—D. G. Batticaloa, 3,666.“Madam”—Action to remove trustee for breach of trust—Action byresidents of the village where “madam” is situated—Interest ofresidents to maintain action under s. 639 of the Civil ProcedureCode.
The residents of a village where a “ madam ” is situated have asufficient interest in the “ madam ” to enable them to maintain anaction (with the sanction of the Attorney-General), under section639 of the Civil Procedure Code, for removing a trustee for breaohof trust and for the appointment of another.
rj*1HE facts are set out in the judgment.
Grenier, K.C. (with him Joseph), for the appellants.—There is noevidence to show that the defendant had committed a breach oftrust. The order removing the defendant from his office as trusteeis wrong. The persons who claim the lots in dispute are not before
lU3p
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1913.
Kandappu v,Segunatha
the Court. The District Judge should not have adjudicated as tothe ownership of these lots without making the claimants parties.Counsel cited MuttiahpiUai v. Sanmugam Ghetty et al.1
e
H. A. Jayewardene (with him Balaaingham), for the respondent.—The defendant is unfit to be trustee, as he has shown an anxiety toprove that the lots in dispute belong to others and not to the“ madam ” An action has to be brought against the claimants forthese lots, and the present trustee cannot possibly be the plaintiffin that case.
[Pereira J.—What interest have you to maintain this action?]
The plaintiffs are the descendants of the founder of the “ madam.Moreover, they are residents of the village, and are as such interestedin a public charitable trust as this.
Counsel cited D. C. Jaffna, 3,686.®
Cur. adv. vult,
July 16, 1913. Pereira J.—
In this case the plaintiffs, claiming to be persons interested in acertain trust created for public charitable purposes, that is to say, atrust of which the subject is a “ madam " or halting place or rest-house devoted to the use of the public, sue the defendant, who isadmittedly the trustee, with the consent of the Attorney-Generalobtained under section 639 of the Civil Procedure Code, complainingof a breach by the defendant of his trust. The defendant complainsin his answer that the action is false and vexatious, and has beeninstituted against him “ out of personal animosity.” The plaintiffs’interest in the alleged trust otherwise than as members of thegeneral publie is of the vaguest possible description, and I shouldlike to observe that, in the case of these alleged public trusts, thereis always the suspicion that the plaintiffs, if private individuals,are actuated, in instituting legal proceedings, by motives of self-interest no less perhaps than the defendant in claiming to continueas trustee; and that therefore it is, in my opinion, always desirablethat the Attorney-General himself should institute inquiries andinitiate proceedings in his own name under the section cited ratherthan allow private individuals to do so, unless, of course, theirclaim is, doubtlessly, honest and bona fide. In the present case thefirst plaintiff, when he entered the witness box on the day of trial,had managed to give himself the appearance of a Sivite. As notedby the District Judge, he had ash on his forehead and looked likea Sivite; and he commenced giving evidence under affirmation.In the course of the cross-examination, however, it appeared that,he was a Christian, and he was promptly made to take his oathbefore continuing his evidence. Although a Christian, one of hisgrievances was that the defendant had omitted to perform the* * puja ’ ’ ceremonies in connection with the * ‘madam, ’ ’ and that he had1 {1910) U N. L. R. 15.2 S. c: G. Min., July 8, 1905.
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failed to perform these ceremonies lor five or six years. Be thatas it may, the plaintiffs aver in the plaint that they bring this actionas “ descendants of former trustees ” and residents of the village»Ondaatjimadam. As evidence of the former, there is only the barestatement of the first plaintiff, and it is clear that a mere claim,even though it be well founded, of being descendants of formertrustees is insufficient to give the plaintiffs a status in this case;buii xt has been argued that they have a right to bring this actionas residents of Ondaatjimadam; in other words, as members of thegeneral public who, as such, have an interest in this public charitabletrust. Following the principles laid down in the Indian authoritiesavailable (see TKackersey Denrag v. Herbhumr Nursery 1 andChintaman v. Dondo Oonesh Dev 3), I am inclined to think that theplaintiffs, as residents of the village where the “ madam ” issituated, have a sufficient interest in the “ madam *’ to enable themto maintain an action like this. In the latter case cited, in spiteof the fact that section 539 of the Indian Code of Civil Procedure,which corresponded to section 639 of our Code, required, as it thenstood, the qualification of a ” direct interest/* and not merely an4‘ interest ” in the person suing, it was held that the worshippersand devotees living in the village in which a temple was situatedwere entitled to file a suit complaining of a breach of trust.
The next question that need be considered in the case is whetherthe defendant has committed a breach of his trust. In this con*nection issue No. 5 sets forth the acts and omissions relied on bythe plaintiffs as constituting a breach of trust. They are: (1) Thatthe defendant failed to maintain the ” madam *’ in good order andcondition; (2) that the defendant failed to carry out the object ofthe charity; and (3) that the defendant appropriated to himselfproperty belonging to the charity. Of the first there is not a tittleof evidence; on the contrary, there is overwhelming evidence ledby the defendant that shows that the defendant maintained the“ madam ** in excellent order and condition. The charge of failureto carry out the object of the charity is much too vague. The plain-tiffs have not, to my mind, proved that the defendant failed to carryout the trust in any particular respect. As regards misappropriationof trust property also, there is no definite or reliable evidence.What has been shown is that certain allotments of land said to beproperty belonging to the " madam ” are in the possession of thirdparties, who claim them by right of prescriptive possession. Thedefendant’s reply to this is that these lots do not really belong tothe ” madam,” but that only an extent of 2£ acres of land belongs toit, and that the income of this extent of land has been spent for the *purposes of the “ madam.” The District Judge has, however, heldthat the allotments of land referred to above as being in possessionof third parties are really and truly the property of the ” madam,”i1. L. B. S Bern. 432.* I. L. R. 16 Bom. 612.
1918.
Kandappu e.Segunatha
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1918.
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Kandappu 9.Segunatha
and there is certainly reason to think that an earnest ©Sort mightwell be made to retrieve these lots. From the defendant’s attitudein this case, however, it is clear that he is the.least qualified personto make such an effort. In this view I think it will be to the interest^
of those intended to be benefited by the charity that the defendantshould cease to be trustee. At the same time I do not think thatthe second plaintiff has shown himself to be the right man to beappointed trustee. I think we should make an order in this caseon the lines of the order made by this Court in a similar case before,namely, case No. 3,686 of the District Court of Jaffna.1 Followingthe order in that case, I would set aside the judgment appealedfrom, and direct the District Judge to place the “ madam ” withall property belonging and appertaining to it, not necessarilyspecifying the same in his order, under the management of theGovernment Agent of the Province, if that officer is willingto undertake the trust, or under the management of such otherpublic officer or other person as may be willing and, in the opinibpof the District Judge, fit to undertake the trust, with power to applythe income of the lands to the management and upkeep of theproperty; the surplus, if any, to be held by him as a fund to abidethe further orders of the District Court. I would let each partybear his own costs in both Courts.
Ennis J.—I entirely agree.
Varied.
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i 8. 0. C. Min,, July 8,1906.