053-NLR-NLR-V-76-L.-R.-BALASUNDARAM-and-5-others-Appellants-and-K.L.-RAMAN-and-2-others-Respo.pdf
SIRIMANE, JBctiasundaram v. Raman
289
[In the Court of Appeal of Sri Lanka]
1973 Present: Sirimane, J., Samerawickrame, J., andSiva Supramaniam, J.
R. BALASUNDARAM and 5 others, Appellants, and K. L.RAMAN and 2 others, Respondents
Court of Appeal, No. 23 of 1972
S. C. 359 (Inty.)—D. C. Chilaw, 10/Tr.
Trusts Ordinance—Sections 112, 116 (1)—Hindu temple—Uncertaintyin whom the title to the temple and its temporalities is vested—Claim for vesting order—Procedure that should be followed—Whether there should be a regular action or whether relief canbe claimed by summary procedure—Civil Procedure Code, s. 5.
The petitioner, claiming to be the sole hereditary trustee, kapuralaor manager of a Hindu temple in Chilaw, filed a petition and affi-davit in the District Court praying for a vesting order undersection 112 of the Trusts Ordinance. He stated that there wasuncertainty as to the person in whom the title to the temple andits temporalities vested. He averred inter alia that in the year1830 his ancestor, one N, functioned as trustee, kapurala or managerof the temple, but did not say that title was in N. Nor did he askfor ejectment of the alleged trespassers. On the affidavits filedin the District Court by the petitioner and the respondents therewas little doubt that there was uncertainty as to the title of thetrust property.
Reid, that the petitioner was prima facie entitled to initiateproceedings for a vesting order under Section 112 of the TrustsOrdinance. When a vesting order is prayed for, summary proceedingsare more appropriate, for such proceedings end in an order andnot in a decree as in a regular action. An application under Section112 is not an action under section 5 of the Civil Procedure Code.
^^PPEAL from a judgment of the Supreme Court reported in(1972) 76 N. L. R. 259.
C. Thiagalingam, with K. Kanag-Iswaran, for the appellants.
H. W. Jayewardene, with Miss I. Marasinghe and J. C.Ratwatte, for the respondents.
Cur. adv. vult.
June 11, 1973. Sirimane, J.—
One Kalimuthu Letchi Raman (whom I shall refer to as the“ petitioner ”) claiming to be the sole hereditary trustee, kapuralaor manager of the Hindu temple called Badrakali Kovil filed apetition and affidavit in the District Court of Chfigw praying for
LXXVI—13i*—a 015*1—asoe.no mo
290
SIRIMANE, J.—Balaaundaram v. Raman
a vesting order under section 112 of the Trusts OrdinanceChapter 87. He named as respondents eight persons six of whomare the appellants in this appeal, and to whom I shall refer asthe “ respondents ”. He stated that there was uncertainty inwhom the title to the aforesaid temple and its temporalitiesvested. The relevant part of Section 112 reads as follows:
“ In any of the following cases, namely:
Where it is uncertain in whom the title to any trustproperty is vested : the Court may make an order(in this Ordinance called a “ vesting order ”) vestingthe property in any such person in any such manneror to any such extent as the court may direct.”
The petitioner averred in his petition inter alia that since 1830one Narayanan functioned as trustee, kapurala or manager ofthe temple, and that according to custom and usage from timeimmemorial appertaining to this temple the respective eldestsons functioned as trustee or kapurala or manager of the templeand its temporalities. He did not say that title was in Narayanan.
In view of certain submissions made at the argument regardingdevolution of trusteeship to Hindu Temples in the Jaffna District,it is useful, as Counsel for the petitioner pointed out, to rememberthat this temple is situated in Chilaw, and the trustees referredto even by the respondents by the term “ kapurala ” as well.However, it was conceded that trusteeship to Hindu temples inany part of Ceylon was not governed by any hard and fast rule,and depended on custom and usage appertaining to eachparticular temple.
Now, according to the petitioner from about the year 1830 opeNarayanan functioned as trustee, kapurala or manager of thetemple and its temporalities, and following the law of primo-geniture as averred by him, at one stage his grandfather LetchiRaman functioned in this office. But as this man was old andsickly, his eldest son Kalimuthu performed the duties of trusteeor kapurala. Letchi Raman had nine children in all, the eldestKalimuttu being the petitioner’s father. The other eight arethe respondents to his petition. Kalimuthu pre-deceased his
father. He died ip 1958 and Letchi Raman in 1962. “ever
since the death of the said Letchi Rafijgm ”—avers the petitioner,the respondents have “ falsely, wrongfully and unlawfullyasserted that they are entitled to be trustees, kapuralas ormanagers of the temple and temporalities belonging thereto.”The petitioner was a minor at the time of Letchi Raman’s deathsind became a major in 1969 in which year he filed this petitionand affidavit in the District Court of Chilaw.
SIRIMANE, J.—Balaaundaram v. Raman
201
The respondents take the pedigree a step beyond Narayananand state that one Ratnasinghe Giri Ayer and his adopted sonNarayanan were the trustees or kapuralas of the temple. Putshortly, in their affidavit filed in the District Court of Chilaw theydeny that the eldest male child functioned as trustee or kapurala,and that the male issue as and when bom became joint trusteesand kapuralas. The pedigree sets out the devolution of trustee-. ship, but not the devolution of title to the property comprisingthe trust. They further stated that according to customs andusages relating to Hindu temples in Ceylon if such customs areapplicable to this shrine a l/7th share devolved on Kalimuthu’smale descendants and 1/7 each oh the 1st, 3rd, 4th, 5th, 6th and7th respondents; the other two respondents to the originalpetition being females. Thereafter they referred to somesettlement that was arrived at which the petitioner has failedto honour.
In our opinion on the affidavits filed in the District Court bythe petitioner and the respondents there can be little doubt thatthere is uncertainty as to the title to the trust property, and thepetitioner was prima facie entitled to initiate proceedings foran order under Section 112 of the Trusts Ordinance referred toabove.
Section 112 however is silent in regard to the procedure thatshould be followed—whether there should be a regular action orwhether relief can be claimed summarily.
The preliminary objection that on the facts alleged and setout by the petitioner, Section 112 did not apply, was rejectedby the Supreme Court. It appears to us that it was right in-doing so.
There is no definite decision on this point in the authoritiescited and Judges have expressed different views. For example inMuthukuma.ru v. Vaithy1 (12 C.L.W. 9) Moseley J. said that it isnot clear, that except in proceedings under Sections 101 and 102of the Trusts Ordinance (which deal with actions for carryinginto effect trusts for public charity, and suits by personsinterested in religious trusts) that a Court could grant a vestingorder. The respondents also relied on the case of Thambiah v.Kasipillai2 42 N.L.R. 558 (1941) where Keuneman J. said withreference to a similar objection to summary procedure “ theshort answer is that a person who can establish the fact that heis the trustee can sue for the recovery of trust property from atrespasser and it is not a necessary requisite that he should haveclothed himself with a vesting order before action was brought.Further a person who brings an action to obtain a vesting order,obviously cannot already have obtained that order before the
(1937) 12 OJj.W. 9.* (1941) 42 N.LJt. 688.
292
SIRXMAJSTE, J.—Balasundaram v. Raman
action.” But earlier in 1932 in Thamotherampillai v. Ramalin-gam,1 34 N.L.R. 359 the plaintiff as joint manager of a Hindutemple asked for a declaration that the first defendant was notentitled to a right of way over the Courtyard of the temple. Thedefendant pleaded that the plaintiff was not entitled to maintainthe action without first obtaining a vesting order under section112 of the Trusts Ordinance. The District Judge gave the plaintiffan opportunity to obtain such an order before continuing withthe action. Garvin J. held that the plaintiff was not entitled tocure the defect of his title by obtaining a vesting order after theinstitution of the action. Said he, “With the learned DistrictJudge’s conclusion that the action was not maintainable by theplaintiff I entirely agree, but I cannot, however, agree that theeffect of obtaining after trial a vesting order would be to entitlethe plaintiff to the relief he claimed, provided, of course, thatin other respects he showed his right to such relief. It is a wellestablished principle of law that the rights of parties must bedetermined as at the date of action. Clearly, at the date of thisaction..the plaintiff had.no.right to maintain it.” Keuneman J.did not refer t© this ease irt his judgment in the 42 N.L.R.cases In Hmvter v. Sri CTiemdrasekera- * 52 W.L.R. 54 (1950) DiasSiRJL. tobk; the view that where a person asks for a vesting orderunder* seetion 112 of the Trusts Ordinance without asking forany further remedy on a cause of action the procedure must beby way of summary procedure and not by way of regular action.The instant case is very similar, for no ejectment of the alleged,trespassers is prayed for. In Kandappa Chettiar v. JanakiAmmah* 62 N.L.R. 447 (1960) Sansoni J. disagreed withKeuneman J. and pointed out that he had not dealt with thelegal principle to which Garvin J. referred, and did not giveany reasons for the conclusion he reached in that case. SansoniJ. with whom Sinnetamby J. agreed said at page 450 “ In myview it would be unsatisfactory to leave the matter in thatsituation and I would hold that where a plaintiff claims to beentitled as trustee to a land and seeks to eject a trespasser, hewill not be entitled to rely on a vesting order unless he hasobtained such vesting order prior to the filing of the action. Ifthe legal estate was not in him at the commencement of theaction, no vesting order obtained subsequently will cure theinitial want of title. ” We are in respectful agreement with theviews expressed by Garvin J. and Sansoni J. We also agree withthe submissions of the Counsel for th6 petitioner that where avesting order is prayed for, summary proceedings are moreappropriate, for such proceedings end in an order and not in adecree as in a regular action. Counsel for the respondents pointedout that he would be at a disadvantage if summary procedure 1
1 (1932)14 N.LM. 369.* {1950) 52 NJLR. 64.* {I960) 62N.LM. 447.
Pvnchi Banda v. The State
293
is adopted for example he would lose his right to obtain informa-tion by interrogatories and the burden of proof would bedifferent when procedure is summary. But surely no Court willlightly grant a vesting order except after a full inquiry at whichthe petitioner proves that he is entitled to one as claimed inhis petition.
Counsel for the appellants drew our attention to Section 116(1)of the Trusts Ordinance and submitted that Section 5 of theCivil Procedure Code would be applicable to determine theprocedure to be adopted in applications under Section 112. Wehave considered this argument but are of the view that anapplication under Section 112 is not an action under Section 5of the Civil Procedure Code.
We notice that an objection had been taken to reading inevidence an affidavit dated 25.7.1969 filed by the 5th and 6tbrespondents, and that objection upheld by the learned DistrictJudge. In order that there may be a full and complete inquiryin this matter, we would give a direction to the learned DistrictJudge to permit the declarations in that affidavit relating to thedevolution of title or trusteeship to be led in evidence.
We would affirm the judgment of the Supreme Court and alsoagree with its observation that summary procedure is intendedto bring quick relief in matters of this nature and that theDistrict Judge should give priority to the hearing of the case.Subject to the direction in regard to the admissibility of theaffidavit referred to above, we would dismiss this appeal withcosts.
Appeal dismissed.