102-NLR-NLR-V-75-L.-R.-BALASUNDERAM-and-5-others-Applicants-and-K.-L.-RAMAN-and-2-others-Respo.pdf
Balasunderam v. Raman
557
[In the Cotjbt of Appeal of Sbi Lanka. (Ceylon)]
1972Present: Fernando, P., Samerawickrame, J., andSiva Supramaniam, J.R. BALASUNDERAM and 5 others, Applicants, and K. L. RAMANand 2 others, Respondents
CL A. Application No. 39 of 1972
S.C. 359/69 (Inty.)—D. C. Ckilaw, 110/Tr.
Court of Appeal—Application for leave to appeal—Trusts Ordinance (Cap. 87)—Section 112—Vesting order thereunder—Procedure for obtaining it—Question ofgeneral or public importance—Court of Appeal Act, s. 8 (1) (d).
The proper procedure for obtaining a vesting order under section 112 of the TrustsOrdinance is to a large extent uncertain and in a state of doubt.
Vesting orders are most often sought in the interests of public charitable trustswhich are formed for the benefit of the public ora section of it. The proper procedurefor obtaining an order to safeguard the title to properties included in such trustsshould not be left in doubt and is therefore a question of general or publioimportance within the meaning of section 8(1) (d) of the Court of Appeal Act, No. 44of 1971.
Application for leave to appeal from a judgment of the SupremeCourt.
C. Thiagalingam, with K. Kanag-Iswaran, for the applicants.
E. W. Jayewardene, with Miss I. Marasinghe, for the respondents.
Cur. adv. vuti.
42-Volume LXXV
558
SAMERAWICKRAME, J.—Balasunderam v. Raman
November 16, 1972. Samebawickbame, J.—
The 1st respondent claiming to be the sole hereditary trustee, manageror kapurala instituted proceedings by way of summary procedure in theDistrict Court of Chilaw asking for a vesting order vesting in him theHindu Temple known as the Badrakali Kovil and its temporalities.He alleged that the applicants and two others were falsely, wrongfullyand unlawfully asserting that they were entitled to be trustees. TheDistrict Judge took up for consideration as a preliminary matter thequestion whether the procedure of making an application by way ofsummary procedure without filing a regular action was available tothe 1st respondent. He held that the procedure adopted by the 1strespondent was correct and on appeal the Supreme Court has affirmedhis order.
It was submitted on behalf of the applicants that there was uncertaintyabout the proper procedure for obtaining a vesting order under Section 112of the Trusts Ordinance ; that vesting orders had quite often to beobtained under the provisions of the Section particularly in the case ofreligious trusts relating to Hindu Temples where the devolution of theoffice of trustee was different to the devolution of title to propertycomprised in the trust, and that, therefore, the proper procedure forobtaining a vesting order under the Section was a matter of generalor public importance.
Learned Counsel for the 1st respondent urged that the case of Hunter{Government Agent, W. P.) v. Sri Chandra-sekera1, which he asserted hadsettled the law on the point, justified the making of an application byway of summary procedure. In the judgment in that case Dias S.P.J.expressed the opinion that where a person asks for a vesting orderunder Section 112 of the Trusts Ordinance without asking for any fartherremedy the procedure must be by way of summary procedure and not byway of regular action but he also stressed that in those proceedings nocontest had arisen between rival claimants to the trusteeship. In thepresent case the 1st respondent asks for a vesting order and asks for nofurther remedy but there is on the face of his petition a contest or disputein regard to the trusteeship.
All the decisions relating to the making of a vesting order underSection 112 point out that there is no statutory provision laying down theprocedure to be followed in seeking relief under the section. Vestingorders have been asked for and granted in the course of regular actionsand in Hunter v. Sri Chandrasekara (supra) on an application by wayof summary procedure. While the decisions consider whether in thecircumstances of each case the procedure adopted was justified there is notfound in them any clear principle or principles by which a party desiringto obtain a vesting order may guide himself as regards the procedure
(I960) 52 N. L. R. 54.
Thilagaratnam v. Motor Trawler “ Mcegamuwa "
659
which he should adopt. It would appear, therefore, that the properprocedure to be adopted in a case in which a vesting order under Section112 is to be sought is to a large extent uncertain and in a sta(e of doubt.
Vesting orders under Section 112 may be obtained in the case of anytrust. The provision is therefore of wide application. It is howeverin the interests of public charitable trusts that vesting orders are mostoften sought. As public charitable trusts are formed for the benefitof the public or a section of it, the procedure for obtaining an order toprotect and safeguard title to properties included in such trusts shouldnot be left in doubt. In the circumstances it is our view that thedetermination of the proper procedure for obtaining a vesting order is amatter of general or public importance.
The point about the procedure was raised in the Supreme Court by way-of an interlocutory appeal before the merits of the matters in disputehad been gone into and the appeal has resulted in delay. Having regardto the state of our lists there is not likely to be much further delay beforethe appeal, if it is admitted, is decided by this Court. Having regardto the facts and circumstances the possible delay of a few months durationdoes not weigh strongly against the grant of leave to appeal.
We would therefore, allow leave to appeal, with costs payableby the 1st respondent.
Application allowed.