LETCHI RAMAN BALASUNDERAM and OTHERS, Respondents-Appellants and KALIMUTTU LET

038-NLR-NLR-V-79-1-LETCHI-RAMAN-BALASUNDERAM-and-OTHERS-Respondents-Appellants-and-KALIMUTTU-LET.pdf


Bataaunderam v. Raman
,361
1977 Present: Pathirana, J., Batwatte, J. and Wanasundera. J.
LETCHI RAMAN BALASUNDERAM and OTHERS,Respondents-Appellants
and .
KALIMUTTU LETCHI RAMAN and OTHERS—RespondentsS.C. 24/76 (F), S. C. 88/76, S. C. 89/76—D.C. Chilaw 10/T
Trusts Ordinance (Cap. 87), sections 106, 107, 112—Hindu temple—Uncertainty as regards title to temple and temporalities—Modeof devolution of title—Proof—Vesting order.
Judgment—Requirement of definite findings on points in issue—Reasons—Scrutiny by Appellate Court.
Held : (1) That the title to the trust property which was thesubject matter of this action, namely, the Hindu temple calledBadrakali Kovil and its temporalities situated at Munneswaramwas on the evidence before court uncertain. It is only in such asituation that an order vesting the property in a trustee undersection 112(1) of the Trusts Ordinance can be made.
(2) That the trusteeship in respect of this kovil devolved asset out by the petitioner, namely, that by usage and custom theeldest male descendant succeeds as the trustee, kapurala or themanager.
(3) That accordingly, the petitioner was entitled as the solehereditary trustee, kapurala or manager to be vested with theproperty in question under section 112(1) of the Trusts Ordinance.
Held further: That, however, the other male descendants of theprevious trustee had also by usage and custom performed functionsas priests or poosaris at the kovil in connection with the poojas,ceremonies and rituals and the petitioner would be bound to respectthose rights and allow them to officiate as priests or poosaris inthe temple and enjoy the perquisites and emoluments whichthey may be entitled to subject however to the petitioner’s power,control and directions.
Per Pathirana, J. : “ A judgment of a court must be a judicialpronouncement in which at least the trial judge should deal withall the points in issue in the case and pronounce definite findingson the issues. Even though the judgment may not on a reading onthe face of it disclose that the trial judge has considered and subjec-ted to examination and critical analysis the evidence of witnesses,but has chosen to act only on the documentary evidence, anAppellate Court can still uphold such a judgment if it is satisfiedthat the reasons, however brief, and conclusions reached havebeen on the hypothesis that there had been a rational examinationand analysis in his mind of relevant evidence andthe rejection of what is irrelevant. Adopting this test I am satisfiedthat although the judgment in the present case does not disclosea recital even of the main points of the evidence of the witnesses,an analysis of the evidence, an adjudication on the belief and thedisbelief of the witnesses, nevertheless implicit in the logicalconclusions reached by the trial judge, the reasons and answers hehas given to the main points in issue and his findings generally is
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that this can only be on the hypothesis that he has done so aftera rational examination and analysis of the main points of the rele-vant evidence in the case although he has chosen not to giveexpression to them explicitly in his judgment, which he might havedone.”
Cases referred to :
Balasunderam v. Raman, 76 N.L.R. 259 and 289.
Kumaraswamy Kurukkal v. Karthigesu Kurukkal, 26 N.L.R. 33.
2 Times of Ceylon L. R. 120.
Ambalavanar v. Kathiravelu, 27 N.L.R. 15.
Kandappa Chettiar v. Janakiammah, 62 N.L.R. 447.
Ramanathan v. Kurukkal, 15 N.LJl. 216.
Ramalakshmi Ammal v. Sivanatha Peremal, 14 Moore’s IndianAppeals 570.
Muthucumaru v. Vaithy, 12 C.L.W. 9 ; 18 C.L. Rec. 5Dabare v. Martelis Appu, 5 N.L.R. 210.
Ranasinghe v. Dhammananda, 37 N.L.R. 19.
Velupillai Arumugam v. Saravanamuttu Ponnasamy, 27 N.L.R. 173.Thamotherampillai v. Sellapah, 34 N.L.R. 300.
A. PPEAL from an order of the District Court, Chilaw.
C. Thiagalingam, Q.C., for the 1st, 2nd, 4th, 5th and 6 th respon-dent-appellants with Sri Pathmanathan and K. Kanag Iswaran inS. C. 24/76.
C. Thiagalingam, Q.C., for the 1st, 2nd, 4th, 5th and 6th respon-dents-respondents in S. C. 88 and 89/76.
C. Ranganathan, Q.C., with S. Mahenthiran and S. A. Paratha-lingam, for the 7th respondent-respondent in S. C. 88/76 and89/76.
K. Kanag Iswaran, for the 3rd and 8 th respondent-appellantsin S.C. 89/76.
K. Kanag Iswaran, for 3rd and 8th respondents-respondentsin S.C. 24 and 88/76.
H. W. Jayewardene, Q.C., with A. C. Gooneratne, Q.C.,S. Nadarajasunderam, J. C. Ratwatte and Miss S. Fernando, forthe petitioner-respondent in all the appeals.
Cur. adv. vult.
November 29, 1977. Pathirana, J.
The appeals are from the order of the District Court of Chilawgranting an application under section 112 of the Trusts Ordi-nance vesting the Hindu temple called Badrakali Kovil and itstemporalities, situated at Munneswararn in Kalimuttu Lechi-raman (who is hereafter referred to as the “ petitioner ”) on theground that it was uncertain in whom the title to the trustproperty was vested.
FATHER AN A, J.—Balantnderam v. Raman36 t
The petitioner, Kalimuttu Lechiraman, claiming to to solehereditary trustee, kapurala or manager of the said BaarakaliKovil filed this application by way of summary procedure on28.6.69 praying for a vesting order under section 112 of the TrustsOrdinance. He traced the original trusteeship of this temple toabout the year 1830 when one Narayanan officiated as trustee.He claimed that according to the custom and usage from timeimmemorial pertaining to the said temple the eldest maledescendant succeeded to the office of trustee, kapurala ormanager of the said temple. At one stage his grandfatherLechiraman functioned in this office. Lechiraman had 9 children,the eldest being Kalimuttu, the petitioner’s father, and the 1st,2nd, 4th, 5th, 6th, 7th and 8th respondents. The 3rd respondent isthe widow of another son Sabaratnam who died on 10.10.65.Kalimuttu predeceased his father in 1958 and Lechiraman diedin 1962. The petitioner as eldest male descendant claimed thathe succeeded as sole hereditary trustee, kapurala or manager ofthis temple and its temporalities.
The petitioner says that he was a minor at the time of Lechira-man’s death. He alleged that the original 1-8 respondents whowere his father’s brothers and sisters wrongfully and unlawfullyasserted that they were entitled to be the trustees, kapuralasor managers of the temple and its temporalities since the deathof Lechiraman in 1962. He averred that title to the said templeand its temporalities was uncertain and claimed a vesting orderof the trust property in him as the sole hereditary trustee,kapurala or manager. He stated that he was a minor at the timeof Lechiraman’s death and he made this application when hebecame a major in 1969.
The respondents in their affidavits denied the claim of thepetitioner. They contested the right of the petitioner to obtaina vesting order under section 112 of the Trusts Ordinance onthe facts alleged in his petition and affidavit and further pleadedthat the petitioner has no right to proceed by way of summaryprocedure to obtain the relief he sought. The respondents tookthe pedigree a step beyond Narayanan and averred that oneRatnasinghe Giri Iyer and his adopted son Narayanan were thejoint trustees, kapuralas or managers of the said temple andits temporalities from 1819. They denied that the eldest maledescendant functioned as sole trustee, kapurala or manager.They averred that on the death of Ratnasinghe Giri Iyer,Narayanan Kapurala and his male issues namely, Sinnetambyand Appukutti became joint holders of the said office. Thereafterin accordance with usage and custom on the death of Narayananand Sinnetamby the survivor Appukutti along with Sinnetamby’sson Kalimuttu became joint trustees and after them their male
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issues “as and when they were born” became joint trustees,kapuralas arid managers of the said kovil.
The pedigree R18 sets out the devolution of trusteeship endingup with the trusteeship ^devolving on the children of Lechiraman,namely, Kalimuttu and 1st, 4th, 5th, 6th, 7th respondents andSabaratnam (since deceased) to a l/7th share each as jointtrustees. The 2nd respondent and 8th respondent being femalesdid not succeed as trustees. Kalimuttu having died in 1958 hisl/7th share devolved on his sons, the petitioner and his twobrothers. Sabaratnam died in 1965 and his l/7th share devolvedon his male heirs. The 4th respondent died in 1976 and his l/7thshare devolved on his male heirs. They averred that accordingto the custom and usage pertaining to the Hindu temples inthis country and in particular to this temple this was the modeof devolution of the office of trusteeship.
When the inquiry commenced on 10.8.69 preliminary objectionswere raised by the respondents firstly that on the mattersaverred in the petition and affidavit of the petitioner section112 of the Trusts Ordinance could not be availed of by him asthe averments therein did not disclose that there was uncertaintyin the title to the trust property. Secondly, they objected to theright of the petitioner to proceed by way of summary procedure.The learned District Judge on 5.9.69 overruled the objection.
The respondents appealed to this Court on 28.2.72. In thejudgment reported in Balasunderam v. Raman, 76 N.L.R. 259,this Court held that a reading of the entire petition left no roomto doubt that there was uncertainty as to the person in whomtitle to the property was vested and therefore section 112 ofthe Trusts Ordinance would apply. It also held that where aperson who asked for a vesting order under section 112 withoutasking for any further relief the appropriate procedure is by wayof summary procedure under Chapter XXIV of the Civil Proce-dure Code. The respondent thereafter appealed to the Court ofAppeal and the judgment of the Court of Appeal is reported inBalasunderam v. Raman, 76 N.L.R. 289. The Court of Appealheld that on the affidavits filed in the District Court by thepetitioner and the respondents there can be little doubt thatthere was uncertainty as to the title to the trust property. Thepetitioner was prima facie entitled to initiate proceedings for anorder under section 112 of the Trusts Ordinance. It also took theview that the appropriate remedy was by way of summaryprocedure.
At the outset of the argument in this case we were remindedof two distinct and different modes associated with the devolu-tion of trust property, one in regard to title and the other in
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regard to the office of trusteeship. The principles regulatingthe devolution in the two cases are set out in the judgments ofBertram, C.J. in Kumaraswamy Kurukkal v. KarthigesuKurukkal, (1923) 26 N.L.R. 33, and Ambalavanar v. Kathiravelu,(1924) 27 N.L.R. 15. These may be summarized as follows.
When a person who owns a land dedicates it for the purposeof religious worship or transfers it to a temple, the eifect of hisdoing so is to constitute himself a trustee for a charitable trustfor the purpose of the religious worship to be carried out at thetemple. Our Courts have refused to recognise a Hindu templeas a juristic person though in India it is so regarded. Kurukkalv. Karthigesu, (1923) 2 Times of Ceylon L.R. 120 at 122.
In dealing with any property alleged to be subject to acharitable trust, there need not be an instrument of trust withinthe meaning of the definition in section 3 of the Trusts Ordi-nance. Section 107 of the Trusts Ordinance states that in sucha case the Court shall not be debarred from exercising any ofits powers by the absence of evidence of the formal instrumentof trust, if it shall be of the opinion from all the circumstancesof the case that the trust in fact exists, or ought to be deemedto exist.
The legal title or dominium remains with the dedicator or theauthor of the trust and on his death passes to his heirs subjectto the obligations of the trust, the heirs being constructivetrustees. It is held on behalf of the beneficiaries who consistof that section of the public which constituted its congregationfor whose benefit the trust was founded. The legal ownershipor dominium does not ordinarily devolve with the office oftrustee. This could take place in that manner in certain definedcases as set out in section 113(1) and (2) which have norelevance in this case. Upon the death of the trustee in whomlegal title is vested to the property the legal ownership doesnot pass to the new trustee. In the absence of any formalinstrument it will pass to the trustee’s heirs who will hold itsubject to the trust.
The difficulties that would arise in cases where a trustee doesnot in his life time provide for the devolution of the truth pro-perty by a formal instrument is referred to in the followingpassage by Bertram, C.J., in Kumaraswamy Kurukkal v. Karthi-gesa Kurukkal, 26 N.L.R. at 39 : —
“ It will thus be seen that in a trust of this sort confusionis always likely to arise on the deat/n of a trustee, unless heprovides for the devolution of the trust property either bywill or by an instrument executed during his life time. If he
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PATALlRANA, J.—Balaaunderam v. Raman
does not do’so, the legal ownership passes to his heirs. Theheirs, it is true, hold it subject to the trust, and can be madeto transfer the legal ownership to the new trustee, but itmust always be very troublesome to induce them to do so.”
In the absence of any formal instrument the only way ofvesting it in a succeeding trustee is to obtain a vesting orderunder section 112.
Subject to any arrangement made by the founder the right ofmanagement of the foundation vests in the founder himself andafter him in his heirs. But the founder is entitled to makeexpress provisions for its future management. This he need notdo contemporaneously with the foundation. It can be done in asubsequent different instrument. In the absence of any formalinstrument providing for the devolution of the trusteeship or anyspecial customary rule pertaining to the temple in question, thetrusteeship devolves on the heirs of the founder. The two diffe-rent modes of devolution are also referred to by Sansoni, J. inKandappa Chettiar v. Janakiammal, 62 N.L.R. 447.
In regard to the devolution of a trusteeship of a Hindu templeand its temporalities the fundamental rule to be kept in mind isthat if there is an instrument of trust by the founder providingfor the devolution of trusteeship the devolution will take place inaccordance with the terms and conditions contained in theinstrument of trust. In the absence of such a deed or anystatutory provision the Court will have regard to the custom andusage of the temple in question. As Grenier, J. observed in thecase of Ramanathan v. Kurukkal, 15 N.L.R. 216 at 218, on thequestion of custom and usage in regard to the ownership, devolu-tion and management of Hindu temples and temporalities inthis country,
“ There is the Hindu customary law, which is capable ofproof in the way in which customs and usage to othermatters can be proved. Whether these customs and usageshave been imported from India, or have grown up amongstthe Hindus of this country and possess the sanctity of age,their existence cannot be overlooked ; they are potent factorswhich have governed, and still govern, the ownership, devo-lution, and management of Hindu temples and the adminis-tration of their temporalities. ”
It must be noted therefore that it is the custom and usage ofthe temple in question that must be considered and not thegeneral customs of the locality. This principle has received legis-lative recognition in section 106 of the Trusts Ordinance whichlays down inter alia that in determining any question relating to
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the constitution or existence of any such trust, the devolutionof the trusteeship and the administration of the trust the Courtshould have regard to,
the instrument of the trust (if any) :
the religious law and custom of the community con-
cerned ;
the local customs or practice with reference to the parti-
cular trust concerned. Customs may provide the reli-gious usage by which the trusteeship should devolve.
More precisely in Ambalavanar v. Kathiravelu, 27 N.L.R. 15 at22, Bertram, C.J., observed that “in all such foundations thecustom or course of action observed in the family must be takeninto account. ” In Ramalakshmi Ammal v. Sivanatha Perumal,14 Moore’s Indian Appeals 570 at 585, which is cited in Mayne’sHindu Law and Usage, 8th Edition, page 58, the Privy Councillaid down the requirements for long established usage which canreceive the recognition of the Courts and acquire legal force :—
“ Their Lordships are fully sensible of the importance andjustice of giving effect to long established usages existing inparticular districts and families in India, but it is of theessence of special usages, modifying the ordinary law ofsuccession, that they should be ancient and invariable; andit is further essential that they should be established to be soby clear and unambiguous evidence. It is only by means ofsuch evidence that the Courts can be assured of their exis-tence, and that they possess the conditions of antiquity andcertainty on which alone their legal title to recognitiondepends. ”
It must also be kept in mind that apart from the office oftrusteeship in a temple there are various other office holders whoperform certain rights and ceremonies in the temple and claimsuch rights by hereditary succession.
The Court of Appeal had made a pointed reference to the factthat the respondents in their pedigree had set out only the devo-lution of the trusteeship but not the devolution of title and thepetitioner also did not say that the title was in Narayanan. Thiswas perhaps one of the reasons that influenced its decision thatthere was prima facie uncertainty of title to the trust property.,
In view of these observations and in order to meet the peti-tioner’s case that the title to the trust property was un-certain and therefore to put the question of uncertainty in issue,the 1st, 4th, 5th, 6th and 7th respondents on 18.12.73 filed asupplementary affidavit in which they averred that by virtue of
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“ document of transfer ” dated 27th September, 1819, the decreeentered in D.C. Chilaw case No. 13846 in 1853 and by longprescriptive possession, legal title to the trust property was inNarayanan Kapurala, the adopted son of Ratnasinghe Giri Iyer.They relied on the same pedigree that they set out in the earlieraffidavit regarding the devolution of the trusteeship for thepurpose of the devolution of the title to the trust property,excluding the females who were not considered title-holders orentitled to officiate as trustees of the said temple. They claimedthat on the basis that all the male children of Lechiraman wereentitled to 1/7 share each of the trusteeship as joint trustees,kapuralas or managers. Kalimuttu being dead his 1/7 sharedevolved on the petitioner and his two brothers. Sabaratnam,the 4th respondent having died in November, 1976 his l/7thshare devolved on his three sons. They claimed that the propertyshould be vested in these persons on this basis in the event ofthere being uncertainty as to the title to the trust property.
On 24.6.74 issues were framed. Counsel for the petitionersuggested issues whether the petitioner was the sole hereditarytrustee, kapurala or manager in accordance with the devolutionas set out in his petition or whether the trusteeship devolved inthe manner set out in the affidavits of the respondents. If thedevolution was as claimed by the petitioner whether he wasentitled to be the sole hereditary trustee, kapurala or managerof the said temple and if so whether he was entitled to thevesting order in his favour under section 112.
Counsellor the respondents objected to these issues on theground that the Court hud* no jurisdiction to determine any ofthese issues as the proceedings were confined only to vesting oftitle to the trust property of which title was uncertain. Thelearned District Judge overruled this objection and accepted theissues. After obtaining leave to appeal the respondents appealedto this Court. This Court by its judgment dated 28.2.75 took theview that the Court had to decide who was the competent personto be vested with the trust property under section 112 as theperson who claimed to be vested with the property must do soon some basis or capacity as sole heir, or as one of the trustees oras a fit and proper person.
The Inquiry finally commenced in the District Court on 30.6.75on which date the respondents also raised issues, on the basisthat legal title was not uncertain in that it devolved on thesuccess'orS-in-title of Narayanan Kapurala and secondly that allthe male descendants of Narayanan Kapurala succeeded to theofilce of joint trustees, kapuralas or managers.
PATELLRANA, J.—Balasunderam v. Raman
36$
There were three questions therefore in issue before theDistrict Court. Firstly, whether the title to the trust propertywas uncertain. Secondly, whether the trusteeship devolvedstated by the petitioner or as claimed by the respondents andthirdly. If the title to the property was uncertain in whose favourthe vesting order should be made. I agree with the observationsmade by Moseley, J. in Muttucumaru v. Vaithy, 12 C.L.W. 9, thatif the petitioner fails to prove that the title to the property isuncertain the petitioner’s claim must fail and the other issues donot arise for decision.
The learned District Judge by his judgment dated 4.2.1976held that the title to the trust property was uncertain that thepetitioner was the sole, lawful hereditary trustee, kapurala ormanager of the said temple and its temporalities in accordancewith the devolution set out by him. He therefore made a vestingorder under section 112 of the Trusts Ordinance in regard tothe trust property in the petitioner.
I have, at this stage, to refer to the answer of the learnedDistrict Judge to issue 8 which was raised by the respondents,namely,
(8) Did the male heirs of the original founder and theirmale issues succeed to the office of manager andtrustee and the right to officiate at the temple withthe exclusion of the females ?
A. No. But selectively by the system of primogeniture tothe office of trustee and manager and generally anddirectly to the priesthood of the temple.
The relevance of this issue and the answer to it will be ofsignificance in assessing the oral testimony of the witnessescalled both by the petitioner and the respondents who spokeeither of certain persons coming in the pedigree of the respon-dents performing poo j as or assisting in the performing of poo jasat the Badrakali Kovil. The relevance of this issue and itssignificance must be kept in mind for the reason that apart fromthe office of trusteeship of the temple there are various otherofficeholders who perform various rights and ceremonies in thetemple and claim such rights by hereditary succession.
The repondents have appealed against the vesting order. WhileT shall continue to refer to the petitioner as the “ uetitioner **.i’-'c* aoDellants will be referred to as the “respondents”.
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PATHIRANA, J.—Balasunderam v. Raman
I shall deal "with the first question whether the petitioner has< satisfied the Court that the title to the trust property is uncertain.
' Section 112 (1) of he Trusts Ordinance in so far as it is relevant
to this case reads as follows :
“ 112 (1). Where it is uncertain in whom the title to anytrust property is vested the Court may make an order (inthis Ordinance called a “ vesting order ”) vesting the pro-perty in any such person in any such manner or to any suchextent as the Court may direct. ”
The respondents relied on the documents Rl, R2, R3, R4 andR5 to refute the petitioner’s contention that the title to the trustproperty is uncertain. Rl is a true copy of the translation of theagreement dated 27.9.1819 filed of record in the District Court caseNo. 13,846 instituted on the 15th of January, 1849. Before I dealwith the legal effect of this document I must point out that thisdocument is very informative as it throws light on who thefounder of Badrakali Kovil was and it takes the pedigree of therespondents yet another step higher. According to Rl, Mayasinghe
Giri Iyer, the father of Ratnas nghe Giri Iyer had purchased awaste land in the village of Munneswaram and constructed onit the temple Badrakali Kovil. A portion of this land wasconverted into a garden for the performance of ceremonies inconnection with the temple. He had also purchased another landand converted it into a paddy field, the income of which wasused for the temple. This would show that Mayasinghe Giri Iyer,a Brahmin was the original legal owner of the property andconsidered himself a trustee for a charitable trust for the pur-pose of religious worship to be carried out at the temple. On
, his death therefore the legal title and office of trusteeship vestedon his son Ratnasinghe Giri Iyer. Ratnasinghe Giri Iyer althougha Brahmin adopted a son called Narayanan, a non-Brahmin, who; belonged to the Chetty caste. Ratnasinghe Giri Iyer’s wife wasThevani. He had a daughter Valli Amma. Valli Amma’s daughterwas Kali Amma. Ratnasinghe Giri Iyer ran into financial diffi-culty in managing the affairs of the temple. He had borrowedfrom three persons 191 Rix Dollars. By Rl of 27th September,1819 Ratnasinghe G'ri Iyer referred to this debt he owed to thesethree persons and for the purpose of paying and satisfying thisamount he divided the “ garden and the village and all the highand low ground into 3 portions”. A l/3rd share he retained forhimself and his wife Thevani. The other l/3rd share he gave tohis grand daughter Kali Amma and the balance l/3rd share to.his adopted son Narayanan. They were to possess the shares andpay the said debt in equal proportions. Valli Amma andNarayanan were to perform the ceremonies due to the deity of
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the temple. It was further covenanted by the said agreementthat any of them who failed to perform the ceremonies due to thedeity will not be entitled to any share from the lands. On the15th of January, 1849, Kali Amma ,the grand daughter of Ratna-singhe Giri Iyer, one of the grantees in Rl, instituted an actionin the District Court of Chilaw in Case No. 13,846, againstNarayanan Kapurala, the adopted son of Ratnasinghe Giri Iyer.
According to the plaint, R2, the plaintiff alleged that, shedemanded from the defendant the possession of the paddy field,the adjoining garden and a garden attached to the paddy field.She alleged that these properties were lawfully owned by Maya-singhe Giri Iyer and after his death by his son Ratnasinghe GiriIyer. She referred to the agreement Rl whereby the partiesagreed to perform ceremonies due to the said temple and out:of the revenue to pay the debt referred to in the agreement. Shealleged that the defendant had neglected the temple but enjoyed ■the produce of the temple lands. She asked that the defendant,should hand over possession to the plaintiff and also to pay hera certain amount out of the profits from the said lands. Thedefendant filed answer R3 on the 28th of November 1850, stating'that the property in question was a property of the BadrakaliTemple and that the defendant was placed in charge of the saidpremises about 20 years ago (that will be about 1830) as theKapuwa of the said temple and that he had accordingly been in :possession of the said paddy field and garden without interrup–’tion or dispute, and ho thereby pleaded that he be given thebenefit of “ the second clause of Ordinance Number Eight of Onethousand eight hundred and thirty four ” for the benefit of the*said temple. He denied that Mayasinghe Giri Iyer or Ratnasinghe-Giri Iyar were the original owners of the property. He prayed*that the plaintiff’s action be dismissed with costs.
• On the 5th September, 1851, the plaintiff filed replication andreasserted that Mayasinghe Giri Iyer was the owner of the saidtemple and after his death Ratnasinghe Giri Iyer was the ownerthereof and performed the services of the temple as kapuwa forseveral years. The following judgment was delivered by theDistrict Court on the 9th of April, 1853 :
“ The Judge and the assessors are not satisfied with theevidence adduced by the plaintiff in support of her claim tothe field and the garden in question. They are of opinion thatboth the field and the garden are temple property and assuch the kapuwa who officiates in the temple for the timebeing should enjoy their produce.
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PATHIRANA, J.—Balasunderam v. Raman
It is further decreed that the plaintiff’s case be dismissedwith costs. ”
The kapuwa referred to is Narayanan. An appeal was takenagainst this decree to the Supreme Court and ttie Supreme Courtdelivered the following judgment dated 9th April 1853 (R5).
The proceedings in this case having been read it isconsidered and adjudged that the decree of the District Courtof Chilaw of the 20th August, 1852, be altered into “ Thatthe defendant be absolved from the instance with costs. Theevidence is of too contradictory and unsatisfactory a natureto entitle the plaintiff to recover. ”
Counsel for both parties presented arguments as to what wasthe legal effect of the Supreme Court judgment (R5) when itstated that the decree of the District Court of Chilaw was alteredinto “ that the defendant be absolved from the instance withcosts. ” I would only say that the controversy is academic. Thedefendant Narayanan had pleaded the benefit of Clause 2 of thePrescription Ordinance of 1834. The precursor to the PrescriptionOrdinance of 1834 was a Regulation No. 13 of 1822. In thisRegulation the only provision with regard to immovable propertystated “ it is further enacted thatproof of the undisturb-
ed possession of land or immovable property by a titled adverseto that of the claimant or the plaintiff in the action, for 10 yearsbefore the bringing of the action, shall entitle the defendant toa sentence in his favour with costs. ” This provision only enableda decree to be given to a defendant in possession. It made noprovision to give a decree to a plaintiff to such possession.Ordinance No. 8 of 1834 repealed regulation 13 of 1822 but itre-enacted the provisions regarding the rights already held by adefendant in respect of his possession which I have quotedearlier and added:
and in like manner, when any plaintiff shall bring*
his action for the purpose of his being quieted in his posses-sion ‘ of land or other immovable property to preventencroachment ’ or usurpation thereof, or to recover damagefor such encroachment or usurpation, or to establish hisclaim in any other manner ‘ to such land or other property,proof of such undisturbed and ’ uninterrupted possessionshall entitle such plaintiff to a decree * in his favour withcosts. ’ ”
Browne, A. J. in Dabare v. Martelis Appu, 5 N.L.R. 210 at 219,explains the meaning of the term “ the defendant be absolvedfrom the instance ”. He referred to the relevant statute whichstated that “ shall entitle the defendant to a sentence in his
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favour with costs ” and said “ by which I understand to be meantthe usual decree for a defendant, viz., that the defendant beabsolved from the instance ”, which is the equivalent of theEnglish judgment that “ the plaintiff take nothing by his writand the defendants go without day
Read in the light of the judgment of the District Court (R4),that the field and the garden are temple property and as suchthe kapurala who officiated in the temple for the time beingshould enjoy their produce, the judgment of the Supreme Courtcould only mean that the defendant Narayanan kapurala hadacquired prescriptive title for the temple in his capacity as kapu-rala, that is as trustee, kapurala or manager. It cannot be cons-trued to mean that he acquired title to himself adverse to thetemple and all others.
The respondent’s contention was firstly that R1 transferred legaltitle to Narayanan kapurala and the judgments of the DistrictCourt (R4) and the Supreme Court (R5) vested legal title inNarayanan. Legal title from Narayanan to his successors-in-titleis therefore claimed in accordance with the pedigree set out bythe respondents in their affidavits. The title was therefore certainand the petitioner’s application must fail.
On behalf of the petitioner, however, it was submitted that R1is no conveyance of title. It only granted Narayanan the rightto possess a l/3rd share subject to the obligation to perform ser-vices to the temple and to pay the debt owed by the grantor forexpenses incurred in connection with the temple. It was thereforesubmitted that Narayanan kapurala having entered these pro-perties in his capacity as trustee, kapurala or manager could notdivest himself of that character and acquire prescriptive titlethereto. The legal title was originally in Mayasinghe Giri Iyer andon his death it passed to his son Ratnasinghe Giri Iyer. Ratna-singhe Giri Iyer left a widow. He had a daughter Valli Ammawho in turn had a daughter Kali Amma. After the death ofNarayanan kapurala the legal title to the property is uncertain.In any event, Narayanan kapurala being an adopted son, theRoman Dutrfi law being applicable, he could not have succeededto the rights of Ratnasinghe Giri Iyer to any of these properties.In the result the title from that point was uncertain. This is thefinding of the learned District Judge.
The learned District Judge has held that what was adjudicatedin the District Court of Chilaw Case No. 13846 was not a questionof title but the right to remain in possession. The last knownlegal owner of these properties was Ratnasinghe Giri Iyer, aBrahmin, when Narayanan had only de facto possession of the
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temple and its temporalities. He rejected the contention of therespondents that Narayanan had acquired full title and that itthereafter devolved “ directly or indirectly on all the male pro-geny of Narayanan He was of the view that title beyond acertain point was uncertain by which he meant title from thepoint when Ratnasinghe Giri Iyer died leaving a widow and agrand daughter. The title beyond that is unknown and thereforeuncertain. The respondents’ case was that Narayanan had acquir-ed prescriptive title to the property. On behalf of the respondentsbefore us, reliance was placed on the case of Ranasinghe v. Dham-mananda, 37 N.L.R. 19, where it was held that where the incum-bent of a vihare, of which trustees have not been appointed, pos-sessed lands not expressly gifted or dedicated to the vihara, hewas in the position of a de facto trustee of the vihara and assuch he could acquire title by prescription for the benefit of thevihara. On the strength of this judgment it was argued thatNarayanan kapurala had acquired prescriptive title to the trustproperty. I must say that far from supporting the contentionurged by the respondents this decision is against them. In thiscase, the lands had come to the vihara not on some original giftby pious users or on an admitted dedication, but at a knowntime and on a document that made no mention of the dedication.
It was argued that an incumbent possessing such propertiesprescribes for himself and not for the vihara. The argument pro-ceeded thus. Title by prescription can only be acquired by apersona and a temple is not a persona actual or fictitious. So ifan incumbent acquires he acquires for himself. After such anincumbent dies the possession of the lands passes to his naturalheirs and not to his pupils. The evidence in the case as acceptedby the District Judge revealed that the incumbent throughouthis incumbency used these lands for the use and benefit of thevihara and that he had at no time claimed to possess them ad-versely to the vihara or to his own use and benefit. In regard tothe claim that the incumbent had acquired prescriptive title forhimself Macdonell, C.J. said at page 24 :
* Authority then is against the argument raised to us onappeal and reason no less. How do certain lands come to bein possession of an incumbent ? Because he is the incumbentof the vihare claiming them. If he were not its incumbenthe would never come to the possession of those lands at all.No doubt if he took all the profits of the land to himself forhis private benefit, if he openly refused to allow the otherinmates of vihare to participate and manifested by words orconduct or both that be claimed these lands as his own privateproperty, and if he was allowed to persist in this course of
PATH IRANA, J.—Balasunderam v. Raman
375
successful assertion for ten years, then at the end of thattime the lands might have become his as his private property.If however, as here, he uses the lands as and for temple pur-poses, then his possession enures to the benefit of the vihareand he is prescribing, if a prescriptive title is needed, for thevihare. ”
Applying the principles of this decision to the facts in this caseNarayanan kapurala entered these premises only as trustee andpossessed them in that capacity for the benefit of the BadrakaliKovil. If he acquired prescriptive title he did this for the Kovil,but a kovil is not a personality known to the law and is incapableof being vested with legal title to the property unlike in India.Legal title remains with the legal owners.
In my view, the respondents are attributing to Narayanan kapu-rala an independent legal title to the trust property which hehimself never claimed in his life time. In the answer R3, he filedin the District Court Case No. 13846 on 28.11.1850 Narayanankapurala stated at page 85 :
“ But the defendant on fact says that the said paddy fieldand garden as the plaintiff hath in her viva voce examinationin this case admitted are of the property of the temple ofPatrakali situated at Munesparam and that the defendant wasplaced in charge of the said premises about twenty yearsago as Cappowa of the said temple and that he has accordinglybeen in possession of the said paddy field and garden fromthence up to the present time without any interruption ordispute and the defendant hath accordingly plead the secondclause of the Ordinance number eight of One thousand eighthundred and thirty four for the benefit of the said temple
That case came up before a distinguished judge, Mr. Simon CasiChetty. In answer to questions elicited by him from the witnesseswho gave evidence for Kali Amma, the plaintiff, the granddaughter of Ratnasinghe Giri Iyer, at least two of the witnessescalled on behalf of the plaintiff stated that the garden and fieldwere temple property and they were not private property. Thekapurala or the officiating priest of the temple was allowed toenjoy their produce. The defendant was the kapuwa of the temple.
Ratnasinghe Giri Iyer and thereafter Narayanan and his suc-cessors-in-title as set out in the pedigree of the respondents, R18,ending with the petitioner and his brothers, and the respondentsalways acknowledged that the properties were the propertiesbelonging to the Badrakali Kovil. There is no evidence that anyof them manifested by word or by conduct that they claimedthese lands as their own and private lands.
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PATHXRANA, J.—Balaaunderam v. Raman
•
I, therefore reject the contention urged by the Counsel for therespondents firstly, that R1 conveyed legal title or dominium toNarayanan ; secondly, that the decree of the District Court ofChilaw (R4) and the judgment of the Supreme Court (R5) inany way vested legal title in Narayanan and thirdly, that Nara-yanan acquired prescriptive title to the said properties. In theresult I hold that title beyond Ratnasinghe Giri Iyer is uncertain,in the sense that there is an element of doubt how the titledevolved thereafter. The devolution of title beyond this point isequally uncertain. The legal rights in regard to the females inthe family are uncertain and vague. They are supposed to haverenounced their rights or are alleged to be excluded by custom.There is no clear evidence of this. The submission that the partiesor this family have prescribed to this property is also untenable.As I have stated earlier, the persons vested with legal title heldthe property in trust for the temple and one trustee possessing theproperty for the temple cannot prescribe against another trusteealso holding the property for the temple. Further, the issue ofprescription cannot be decided without due inquiry and with-out notice to all persons having an interest in the property. Itwould also appear that there has been some uncertainty in thelaw as to ownership of property by Hindu temples and founda-tions until the matter was settled in a series of classic judgmentsby Chief Justice Anton Bertram in the mid-twenties. This un-certainty appears to be reflected in the devolution of title to thetemple and is appurtenances.
I therefore, agree with the conclusion of the learned DistrictJudge that title to the property is uncertain within the meaningof section 112 of the Trusts Ordinance. It is precisely for such asituation like this, where title to trust property is uncertain thatthe legislature advisedly by section 112 of the Trusts Ordinancehas provided the machinery to vest the trust property in asuitable person for the protection of the temple and itotemporalities.
I shall next examine which of the two modes of succession tothe office of trustee, kapurala or manager of the Kovil is estab-lished by usage or custom. This kovil is situated not in theJaffna district but in Chilaw. The contention urged by Counselappearing for the respondents in that the term “ kapurala ” mustbe given its local connotation, namely, “ priest ” or “ poosari ”and that it should not be given a significance it did not possessand should not therefore be equated to the office of trustee ormanager of the kovil. I am, however, satisfied that even thepetitioner and the respondents and the witnesses who gaveevidence in this case have understood the term “ kaourala **of the kovil to mean the trustee or manager in contradiction to
PATHXRAHA, J.—Balaeunderam v. Raman
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the word “ poosari ”, which in its ordinary connotation meansnothing other than the priest of the temple who officiates orassists at the poojas or ceremonies at the kovil. In fact, Sirimane
J.in the Court of Appeal judgment in the case of Balasunderamv. Raman, 76 N.LJR. 289 at 290, has referred to this questionthus :
“ In view of certain submissions made at the argumentregarding devolution of trusteeship to Hindu temples inthe Jaffna district, it is useful, as Counsel for the petitionerpointed out, to remember that this temple is situated inChilaw, and the trustee referred to even by the respondentsby the term “ kapurala ” as well. However, it was concededthat trusteeship to Hindu temples in any part of Ceylon wasnot governed by any hard and fast rule, and depended oncustom and usage appertaining to each particular temple. ”
It is common ground that there is no formal instrument pro-viding for the devolution of the trusteeship. We have thereforeto find out what is custom or usage of this kovil in regard to thedevolution of trusteeship, and in this case more particularly whatthe custom or usage of the family which for generations at leastfrom 1830 performed the sacradotal duties of this Kovil. Thequestion is therefore whether the mode of succession is thatwhich is put forward by the petitioner that the office was heldby the eldest male descendant of each succeeding trustee (as itwas compendiously put by a system of primogeniture) or whe-ther on death of Narayanan Kapurala the male issues along withtheir male issues “ as and when they were born became jointtrustees, kapuralas or managers of the kovil There appears nocontroversy that females are excluded from the devolution inrespect of the trusteeship.
Mr. Ranganathan who appeared for some of the respondentssubmitted that there was no general custom as far as Hindutemples in this country are concerned that the eldest male des-cendant succeeds to the office of trustee. Bertram, C. J. in thecase of Velupillai Arumogam v. Saravanamuttu Ponnasamv, 27
N.L.R. 173 at 174, however, refers to the system of the eldestmale descendant succeeding to the office of trustee :
“ But as in most cases it is not convenient that they shouldall be managers, a system has grown up under which oneperson, generally the eldest male descendant of the lastperson who has acted in the office, with the consent of theother members of the family, acts as manager and trustee.This person, again with the presumed consent of the otherheirs, often appoints some descendant of his own to succeedhim in the managership, and in some cases to be associated
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PATHIRANA, J.-—Balaminderam v. Raman
with him in the managership until his death, I think thatthere can t*e no question that this is the religious law andcustom with regard to such temples in the peninsula ofJaffna, and that the temple now under consideration was atemple of this character. ”
Dalton, J. in Thamotherampillai v. Sellappah, 34 N.L.R. 300at 302, also refers to the system of the eldest male descendantsucceeding to the office of trustee : —
“ So far from the descendants of the founder ever actingas a body for any purpose, a system appears to have sprungup of the right of succession to the management passingto the eldest male descendant of the last person who hasacted in the office on the fiction that all the other heirs haveconsented to the appoinment. ”
Although this temple is not situated in the Jaffna peninsula,this is a Hindu temple owned and managed by Hindus andadministered in no way different from a Hindu temple in thepeninsula. The religious law and custom relating to Hindutemples already recognised by our law appears prima -facie to beapplicable to this temple and this is amply corroborated by theevidence that has been placed before us.
Inveterate and invariable observance of a particular mode ofdevolution in course of time hardens into a usage and acquireslegal title to recognition. The learned District Judge in answeringthe issues has referred to the office of trustee and manager of thistemple in contradistinction to the office of priesthood of thetemple (the priests being referred to as poosaris). The conten-tion of the respondents is that all those poosaris, that is, all thosewho performed the poojas in the temple and who belong to thefamily of Narayanan kapurala were trustees and managers accor-ding to custom and usage. The evidence is that on attaining theage of 15 all males in the family were qualified to perform poojasat the kovil. On behalf of the respondents it was therefore urgedthat this was not a kovil where one finds persons separatelyfunctioning as trustees while other persons separately functionas priests who perform poojas. The priests are the trustees andthe trustees are the priests. This is not a kovil where the trusteesemploy priests. One of the essential functions of the trustees orkapuralas is that of performing poojas. On behalf of thepetitioner, however, it was submitted that the kapurala or trusteewhile he too may perform poojas is a person who has generalcontrol and administers the affairs of the kovil, and allocatesthe work, duties and income. The others who perform or assistin performing poojas are called priests or poosaris. They haveno authority or right to administer the affairs of the kovil.
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In order to appreciate the arguments urged in this connectionand for the proper evaluation of the evidence in the case, anaccount of the poojas or ceremonies performed at this kovil andthe persons who officiate at these poojas and ceremonies is rele-vant and useful.
This kovil is dedicated to the Goddess Kali one of the deitiesin the Hindu Pantheon. She is a consort and shakthi (manifes-tations of creative energy) of Shiva. She has both a benign anda fierce aspect. Badrakali, as she is called “ the blessed dark one, ”is said to have developed a taste for blood when she was calledupon to kill the Demon Raktavija who produced 1000 more likehimself each time a drop of blood fell on Earth. In order tovanquish him she pierced him with a spear and holding himhigh drank his blood before it reached the ground. Goats aresacrificed to her daily at her temples. This accounts for the sacri-fice of goats and fowls which takes place at this kovil too atMunneswaram, the sacrificial ceremony being called “ velvi
Originaly only one pooja was held in this kovil on Tuesdaysand Fridays. After 1958 two poojas were held daily. The mainpoojas which were the daily ministrations to the Goddess wereheld whether there are worshippers or not. Arichchanam ” is onthe other hand the invoking of her blessings in regard to anoffering made by an individual worshipper to the deity. Anypriest who is present in the temple may perform “ Arichchanam ”.
Annually there are two festivals, viz., the August festival andthe “ Navarathri ” festival in November. The August festivalpartly coincides with the latter part of the more famous “ SivanKovil festival ” at Munneswaram.
Large crowds come from all parts of the island for the festivalsand the daily offerings include the sacrifice of fowls and goats.Due to the large number of worshippers that visit the kovilduring the festivals poosaris from Udappuwa, a neighbouringvillage are engaged to perform poojas at this kovil during thisperiod. At the end of the festivals .also there is the ritual called" velvi ” where goats and fowls by the hundreds are sacrificedto appease the deity. The carcasses of the slaughtered goats andfowls are so many that they are auctioned at times. The Augustfestival is held for ten successive days while the Novemberfestival was also held for ten successive days.
Considering the thousands of devotees who come to this kovilboth during the festival seasons and the non-festival days thisis therefore a temple that needs to mobilise the help and assis-tance of a.s many poosaris or priests as possible. The fact that apriest performs poojas or assists in the performance of poojasmay not necessarily therefore be the criteria for determining
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whether he is the trustee, kapurala or manager of the koviLPerformance of poojas is therefore not the same thing as exer-cising the office of kapurala, manager or trustee of the temple.This distinction has been referred to by the learned DistrictJudge in his judgment.
•
I shall first deal with the petitioner’s case that the successionto the office of the trusteeship has always been on the basis thatthe eldest male descendant succeeded as the sole hereditarytrustee. It is common ground that the original trustee wasMayasinghe Giri Iyer and on his death his son Ratnasinghe GiriIyer became the sole trustee. It is also not disputed that at leastafter 1830 Narayan kapurala functioned as the sole kapurala ortrustee of this kovil. It is common ground that Narayanan kapu-rala had two sons Sinnetamby the eider and Appukutty theyounger. On the death of Narayanan kapurala the petitioner’scase is that Sinnetamby succeeded as the sole kapurala or trustee.Sinnetamby kapurala died in 1885 and his only son Kalimuttu,whom I shall refer to hereafter as Kalimuttu (1) succeeded asthe sole hereditary trustee. Kalimuttu (1) was only threeyears old when his father Sinnetamby died. As he was an infant,during his minority and until he was able to function as kapuralaor trustee his father’s brother Appukutti who had in the meantime married his father’s widow, officiated as kapurala and look-ed after and administered the affairs of the kovil on his behalf.Appukutti died in 1922. In support of his contention that Kali-muttu (1) was the sole kapurala or trustee of this kovil thedocument (PI), a deed of transfer has been produced. This deedis dated 31.10.1940. Kalimuttu kapurala referring to himself asthe kapurala and chief trustee of this kovil has sold a propertybelonging to the temple to Reverand Medankara, a Buddhistpriest who occupies the Buddhist temple immediately adjoiningthe kovil. Rev. Medankara is a witness in this case for the peti-tioner. He is the chief incumbent of the Buddhist temple whichis situated adjoining the kovil.
The petitioner has also prouced a deed of lease (P2) dated13th October, 1941, by which Kalimuttu (1) had leased to thesame Rev. Medankara a land belonging to the kovil for 10 years.He has described himself as the trustee of this kovil. His sonLechiraman has signed as a witness to both deeds.
Kalimuttu (1) had two sons, the elder of whom was Lechi-raman alias Muttiah and the younger Sinnetmby alias Rasiah.He had a daughter Visalachchi who has to be kept out of theclaim for the office. Kalimuttu (l)’s second son Sinnetamby diedin 1938 at the age of 27. Kalimuttu (1) died in 1942. He wassucceeded by bis only surviving son Lechiraman alias Muttiah
PATHIRANA, J .—Balasunderam v. Ham-in
381
who officiated as the sole trustee or kapurala. The petitioner hasproduced the deed of lease (P3) dated 31.10.1955 by which Lechi-raman kapurala describing himself as the trustee of the kovilhas leased to Rev. Medankara and another priest a propertybelonging to the temple for 99 years. Lechiraman had 9 childrenof whom the eldest was Kalimuttu (whom I shall refer to 3SKalimuttu (2) hereafter). The other children were Balasun-deram, the 1st respondent, Sivamani the 2nd respondent, Saba-ratnam, Sinnetamby the 4th respondent, Jeganalhan the 5th res-Pasupathanthan the 6th respondent, Pathmanathan the 7threspondent and Yogamangalam the 8th respondent. Sabaratnamhad died in 1965 and his widow Maheswari is the 3rd respondent.In 1957, Lechiraman who was old and incapable of looking afterand managing and controlling the affairs of the kovil by a nota-rially executed deed of gift dated 8th June, 1957 granted, con-veyed, assigned and transferred as a gift to his eldest sonKalimuttu (2) “ and his heirs ” etc., the kovil and its tempora-lities absolutely for ever. In this document (P6) the donor Lechi-raman states that " by virtue of a system of primogeniture ” heas the elder son of his late father Kalimuttu had succeeded tothe right, title and interests of the land and premises and thecontrolling power of the kovil and its appurtenances. The peti-tioner’s contention is that P6 which has been executed longbefore any dispute to this temple had arisen, contains the state-ment by Lechiraman who admittedly functioned as the solehereditary kapurala or trustee of this temple, that the mode ofdevolution to the kapuralaship or trusteeship of this temple wasby the system of primogeniture, that is, where the eldest malesucceeds. The deed is strongly relied upon by the petitioner toprove his case that according to usage and custom, the eldestmale descendant succeeded to the office in question. Kalimuttu (2)however died in 1958 during the life time of his father Lechira-mon. Kalimuttu (2) had five children the eldest of whom was thepetitioner also called Lechiraman. He had two daughters, Para-meshwari and Lechchemi and two other sons, Sivapathasun-deram and Krishnamoorthy. Lechiraman, the father of Kali-muttu (2) and grandfather of the petitioner died in 1962. Thepetitioner who was born in 1947 was therefore 11 years old whenhis father Kalimuttu (2) died in 1958 and was 15 years old whenhis grandfather died in 1962. It is the petitioner’s case that duringhis minority his uncles, that is his father’s brothers, i.e., Bala-sunderam the 1st respondent, Sabaratnam, Sinnetamby the 4threspondent, Jeganathan the 5th respondent, Pasupathinathan the6th respondent and Pathmanthan the 7th respondent, lookedafter the affairs of the temple on his behalf. When he becamea major he demanded his right as the sole hereditary trustee orkapurala of the said kovil from his uncles, who, however, disput-
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ed his rights. This necessitated the petitioner instituting the• present proceedings. I might say that the petitioner’s brothersy.Sivapathasunderam and Krishnamoorthy are not disputing thepetitioner’s claim to be the sole hereditary trustee or kapuralaof this temple..
The respondents denied the petitioner’s claim. They rely firstlyon certain documentary evidence which according to them would■demolish or destroy the petitioner’s claim. According to themon the death of Narayanan kapurala his two sons Sinnetambyand Appukutti functioned as joint trustees or kapuralas. WhenSinnetamby died in 1885 his son Kalimuttu (1) along with Appu-kutti functioned as joint trustees. Thereafter Kalimuttu (1) andhis two sons Lechiraman and Sinnetamby functioned as jointtrustees. When Lechiraman died in 1963 his sons and the child-ren of Kalimuttu (2) namely, the petitioner and 'his brothers. succeeded as joint trustees on the basis that each son of Lechi-raman was entitled to a l/7th share of the trusteeship.
The respondents have produced documents RIO, R6 and R7 notonly to establish their case that all males and then male issuesfrom Narayanan downwards were joint trustees, managers orkapuralas but also to demolish the petitioner’s case that theeldest male child succeeded to the offices. RIO is a deed dated1.10.1914 by which Narayanan kapurala’s son Appukutti andSinnetamby kapurala’s son Kalimutta (1) had leased a landcalled Kopitotiam for a period of 50 years to one SinnetambyChettiar. In this deed Appukutti is referred to as Appukuttikapurala. The lessors are referred to as Managers of KaliammalKovil. The deed states that the land Kopitottam belonged to thetemple “ and was managed and possessed by us ”. R6 purportsto be a certified copy of the original which was not produced ofan agreement dated 2.6.1931 which was entered into betweenthree persons who described themselves as Kalimuttu kapurala,Kalimuttu Lechiraman and Kalimuttu Sinnetamby trustees andkapuralas of Kaliammal Kovil and a person called Rajaratnam,the other party to the agreement. It related to the purchase ofgoats and fowls slaughtered and sacrificed at the Kovil. D7 isan agreement dated 16.9.1931 between three persons who des-cribed themselves as Kalimuttu kapurala, Kalimuttu Lechiramanand Kalimuttu Sinnetamby, trustees of the Badrakaii Kovil andone H. Victor de Zoysa of Mutwal, Colombo. This too relates tothe delivery of fowls and goats sacrificed at the Kovil in liqui-dation of a debt of Rs. 250 owed to de Zoysa.
It was sought by the respondents to establish by RIO that thetwo sons of Narayanan kapurala, Sinnetamby and Appukuttiwere joint trustees and on the death of Sinnetamby in 1885 his
PATHIRANA, J.—Baiaaunderam t>. Raman383
brother Appukutti became the joint trustee with Sinnetamby’sson Kalimuttu (1). L kewise, by R6 and R7 it .was sought toestablish that after the death of Appukutti in 1922 without anymale heirs his brother’s son Kalimuttu (1) along with his child-ren Lechiraman and Sinnetamby were joint trustees. The intentded purpose of the documents was to demolish the petitioner’sclaim that there was an uniform, invariable and definite usage orcustom that the eldest male succeeds to the office.
Before I deal with the legal effect of these documents in regardto the petitioner’s claim I have to decide on the admissibility ofR6 and R7 which purport to be certified copies of the originalsof the agreements. Before us Mr. Jayewardene for the petitioner,who also appeared for the petitioner in the original Courtobjected to the admissibility of these documents R6 and R7 in theabsence of the originals. The learned District Judge has in hisjudgment not given a definite ruling on the admissibility of thecert fied copies R6 and R7 but has merely stated that the use ofthe words trustee and kapurala in R6, R7, R8 and RIO per secannot establish “ the fractional system of devolution contendedfor by the respondents ”. I can only construe this to mean thateven if these documents were admissible in evidence, they failto establish the purpose for which they were sought to be madeuse of.
It is therefore necessary for me to consider the admissibilityof these documents in view of the objection taken to them byMr. Jayewardene. The first reference to R6 and R7 was in thesupplementary affidavit to which they were annexed, filed bythe 1st, 4th, 6th and 7th respondents on 18.12.1973 after the deci-sion of the Court of Appeal on 11.6.1973. The originals of R6 andR7 were not produced. The purpose of R6 and R7 was to estab-lish that Kalimuttu (2) and his sons Lechiraman and Sinne-tamby functioned as joint trustees and managers. Annexed tothis affidavit was also another affidavit R8 purporting to bemade by the only liv'ng witness to R6, a person called Thambn-wila Lekamalage Wijedasa. This affidavit is dated 17.12.1973 andstates that the deponent who was 65 years old on the date heaffirmed to the affidavit remember the execution of R6 by Kali-muttu and his sons Lechiraman and Sinnetamby with one Raja-ratnam for the sale of fowls and goats sacrificed at ttfie kovil.He affirmed in the affidavit that at the time of the execution ofthe agreement the three persons were looking after and managingthe Kovil and its affairs as kapuralas of the said kovil. R6 andR7 were certified copies prepared by Mr. Randeny, one of theAttorneys who appeared for the respondent in the District Courtand purports to be certified by him on 17.12.1973.
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PATHIRANA, J.—Balaaunderam v. Raman
On 3.6.1974 Counsel for the respondents in the District Courtin reply to the bpening of the petitioner’s case, read the affidavitand the documents including R6 and R7 annexed to the affidavitunder section 384 of the Civil Procedure Code. At this stage.Counsel for the petitioner, pointed out that these documents R6and R7 filed with the affidavit being certified copies may be readsubject to proof as their originals were not produecd. Despitethis objection even at this stage the originals of R6 and R7 werenot produced although according to Mr. Thajudeen, one of theAttorneys for the respondents who gave evidence at the inquirystated that these documents were only found missing in May1975. On 3.6.1974 therefore these documents would have beenwith the respondents or their counsel, otherwise the Courtwould have been informed that the originals were miss:ng. Asto why the originals of R6 and R7 were not produced at thisstage is a big question for which no answer was forthcomingat that time or even now. On the same occasion Counsel for thepetitioner objected to a certified copy of the deed No. 9033 of1.12.1914, i.e. RIO being produced. The Court ruled that althoughthe document RIO was presumed to be over ten years old, thepresumption of genuiness did not apply to it as it was onlya certified copy. He ruled that it was inadmissible. At this stage,Counsel for the respondent moved to summon the Registrar ofLands to produce the original of that document, but this appli-cation was disallowed by Court. What strikes me is why Counselfor the respondents did not show the same enthusiasm, whichhe displayed in regard to that deed, in regard to the originals ofR6 and R7. R6 and R7 certainly on the evidence in this case,were in the custody of the respondents or their Counsel. Eventhe photostat copies of the originals of these documents whichwere available to them, having obtained them on 5.12.73 werenot produced on this occasion. No satisfactory explanation was oris forthcoming for this omission. I find from the proceedingsthat the Court adjourned on this day, namely on 3.6.1974, at3.30 p.m. Before the Court adjourned the last recorded statementrefers to an objection taken by Mr. Jayewardene who also ap-peared for the petitioner in the original Court to the admissi-bility of R6 and R7 who said that they must be duly proved. Thenext date of inquiry was 24.6.74. On this date, Counsel for thedefendant made further submission and produced two more deathcertificates R14 and R15. The originals of R6 and R7 were notproduced on this occasion nor were the photostat copies of theoriginals of these documents produced.
On 24.6.74 Counsel for the petitioner framed the issues and onan objection taken an appeal was lodged to this Court. Thejudgment dismissing the appeal of the respondents was delivered
P ATHIR AN A, J.—Balaaunderam v. Raman
385
by this Court on 28.2.1975. Proceedings next commenced in theDistrict Court on 30.6.75. Between 24.6.74 and May. 1975 (the dateon which the originals of documents R6 and R7 were foundmissing) the originals of R6 and R7 were not listed by therespondents.
•
The petitioner gave evidence on 3.7.75. R6 and R7 (as certifiedcopies) were not put to the petitioner by the respondents incross-examination although documents R1—R5 and RIO were putto him. On 3.7.75 petitioner’s case was closed. On 16.7.75 the 1strespondent commenced to give evidence. When he made referenceto the certified copies R6 and R7 and produced R6 (b) whichpurported to be a photostat copy of the original of R7, and R6
which purported to be a photostat copy of the counterpartdocument of the original of R6 which was marked as R6 (a),objection was taken to the production of these documents butthey were admitted subject to proof. The 1st respondent pro-ceeded to identify the signatures in R6. He said that he identifiedthe signatures of his grandfather Lechiraman and his father Kali-muttu, but he was unable to identify the signature of Sinnetamby.Kalimuttu (1) died in 1942. The 1st respondent when he gaveevidence in 1975 said he was 43 years old so that he would havebeen born in 1932. When his grandfather Kalimuttu died in 1942he would have been 10 years old. I doubt very much that hewould have been so acquainted with his grandfather’s signaturefor the purpose of identifying his signature, when he was only10 years old, when his grandfather died in 1942. R6 was witnessedby the person called Wijedasa. His affidavit R8 has been annexedto the supplementary affidavit filed by some of the respondentson 18.12.73. This Wijedasa was cited as a witness by the res-pondents but was not called by them as a witness to prove R6.The petitioners have produced marked P16 the birth certificateof the person called Wijedasa, whose ge-name is “ ThambawilaLekamalage ” the same as the ge-name of Wijedasa who affirmedto the affidavit R8, which states that his date of birth was3.9.1918. Petitioner therefore argued that if this is the same Wije-dasa then in 1931 when he was a witness to R6 he would havebeen only 13 years old. I admit that there is nothing to establishthe identity of Wijedasa in P16 that he was the same personreferred to in the affidavit R8 although they bear the identicalnames and ge-names. However, the fact remains that Wijedasawho was a witness available and cited was not called to giveevidence to prove R6. This is another matter that in my mindcasts a great deal of suspicion regarding the authenticity of R6.
R7 too was objected to. The 1st respondent only identified thesignature of his father Lechiraman. He said he was unable toidentify the other signatures as they were smudged but he said
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that at the time he had the original with him he was able toidentify the other signature as that of Kalimuttu Kapurala. InR7 Victor de Zoysa, the other party to the agreement has notsigned the agreement. The 1st respondent also admitted that nosuch agreements like R6 and R7 are entered into at present. Thekovil is over 150 years old and these are the only two documentsthat have been produced. These documents were supposed to bein their father’s almirah. ^At the inquiry Mr. Thajudeen, one ofthe Attorneys for the respondents gave evidence. He said thatthe 1st respondent handed to him a number of documents amongwhich were R6, the counterpart of the original and the originalsof R6 and R7. His Counsel advised him to take photostat copiesof these documents. He therefore asked the 1st respondent toobtain the photostat copies and bring back the originals to him.He, thereafter had the originals of R6 and R7 with him. Hehanded the originals of R6 and R7 to the other Attorney Mr. Ran-deny who appeared in the case to prepare certified copies. Theseare the certified copies, R6 and R7, prepared by Mr. Randeny. R6and R7 were later filed with the supplementary affidavit on18.12.1973. He had the originals of R6 and R7 with him and hediscovered them missing in May 1975. He informed his clientabout it. Mr. Randeny, Attorney-at-law has given evidence andstated how he obtained certified copies R6 and R7 from theiroriginals. The evidence does not reveal that any complaints havebeen made to the Police about these missing documents. It seemsstrange that the only two documents of which photostat copieshave been obtained were found missing. These are the only twodocuments that are missing among the documents of the respon-dents in this case. The 1st respondent also has given evidenceand stated that the originals of R6 and R7 were in his father’salmirah. He had given them to Mr. Thajudeen and got them backfor the purpose of obtaining photostat copies of the originals andthereafter handed over the originals to Mr. Thajudeen. I
I also find that in the first list of documents filed on 5.3.1974 by1st, 2nd, 4th, 5th and 6th respondents while deed RIO of 1.2.14is listed, the originals of R6 and R7 which would have beenavailable with them, were not listed. Nor were the photostatcopies of the originals of R6 and R7 which according to the 1strespondent were obtained on 5.12.1973, listed. However, I findthat in the subsequent list of documents filed by the respondentson 18.6.75 the photostat copies of the alleged originals of R6 andR7 were listed. This is another circumstance that adds to the sus-picion regarding the genuiness of R.6 and R7.
The contents of the documents R6 and R7 are of a decisivenature and would destroy completely the petitioner’s claim thatthere were no joint trustees or kapuralas but only a sole heredi-
PATHIRANA, J.—Balaaunderam v. Raman
387
tary trustee. In a case of this nature, therefore the authenticityof the documents must be examined and scrutinized by Courtwith the greatest caution and if there is any doubt or suspicionas to its authenticity in the absence of the original or a satisfac-tory explanation as to how they came .to be missing, it would beunsafe to act on such documents. As I pointed out even whenthe originals of these documents were available with the res-pondents when objection was taken to the admissibility of certi-fied copies, no attempt was made to produce the originals. Theleast I can say without being critical of anybody is that it wouldbe unsafe to act on R6 and R7 in a case like the present onewhere the contents of such documents are of a decisive nature inthe case. I, therefore, refuse to consider and act on R6 and R7.
I shall now consider RIO. According to the respondents by thisdeed which has been executed in 1944 long before the deeds reliedupon by the petitioner, namely, PI, P2 and P3 the lessors des-cribing themselves as Appukutti Kapur ala, son of NarayananKapurala and Kalimuttu Kapurala, son of Sinnetamby Kapurala,managers of Kaliammal Kovil had leased for 50 years the landcalled “ Kopitottam ” to Sinnetamby Chettiar. The respondentscontend that this document supports the respondents’ case thatthe trusteeship or kapuralaship of this kovil was held by the maleissues and their male issues as and when they were born as jointtrustees or kapuralas. The petitioner, however, has explained thecircumstances under which Appukutti came to function as kapu-rala of this kovil. The question is whether in the light of theexplanation put forward by the petitioner, the contention urgedby the respondents can prevail.
Narayanan Kapurala had two sons, Sinnetamby and Appukutti.It is possible to fix approximately the date of birth of these twosons. According to the Marriage Certificate of Sinnetamby kapu-rala, P10, on the date of marriage (2.3.1877) he has given hisage as 45. He may therefore have been born in 1832. Appukutti’sfirst marriage was on 29.1.1877. According to his first marriagecertificate (Pll) he has given his age as 25. When he marriedthe second time on 18.7.1892—according to his second marriagecertificate (P91 he has given his age as 40. So if one takes P9 andPll into consideration Appukutti would have been born in 1852.He was therefore born 20 years after his elder brother Sinne-tamby who was born in 1832. Narayanan kapurala must havedied shortly after 1853 as we find that the decree of the SupremeCourt in D.C. Chilaw 13846 in which Narayanan kapurala wasthe defendant is dated 9.4.1853. So that when Appukutti was bornin 1852 Sinnathamby, his elder brother, who would have beenabout 20 years old would have been functioning as trustee orkapurala. However, it was Appukutti who first married one Maria
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Fernando on 29.1.1877 at the age of 25. If as the respondentscontend that Appukutti at this time functioned as trustee orkapurala of this kovil, on an important occasion like his marriageone would have expected him to refer to himself as Appukuttikapurala. The marriage certificate merely refers to him as“Narayanan AppukuttiSinnetamby, the elder brother, how-ever, married shortly afterwards on 2.3.1877 (vide marriagecertificate P10) to Achchipulle. The marriage certificate, P10,refers to Sinnetamby as Sinnetamby kapurala, clearly indicat-ing therefore that Sinnetamby was officiating as kapurala in 1877.Sinnetamby kapurala died on 11.10.1885 (vide death certificateP8). He left his only son Kalimuttu (1) who was born on2.7.1882 (vide birth certificate P7). The name of the father isgiven as Sinnetamby kapurala. When Sinnetamby kapuraladied in 1885 his son Kalimuttu (1) was only 3 years of age. Thepetitioner’s case is that during the minority of Kalimuttu (1)his uncle Appukutti looked after the affairs of the kovil and offi-ciated as kapurala for and on his behalf. On 18.7.1892 Appukuttimarried Sinnetamby’s widow Achchipulle who was the motherof Kalimuttu (1). (Vide marrige certificate P9). In this marriagecertificate Appukutti calls himself Appukutti kapurala. Duringthe minority of Kalimuttu (1) his stepfather and uncle Appu-kutti looked after the kovil till he came of age.
The petitioner’s contention is borne out by the documentaryevidence that during the life time of Sinnetamby his brotherAppukutti never functioned as kapurala or trustee and neverdescribed himself as such. It was only after Sinnetamby diedand after he married his brother’s widow that he called himself“ kapurala ”. Appukutti died on 21.7.1922 (vide death certificateR9). Although the death certificate says that he died whenhe was 94 years old tKat would be incorrect. He would havebeen approximtely 70 years at that time. Kalimuttu (1) wouldhave been 42 years old and would have been functioning askapurala or trustee of the kovil. The informant in the deathcertificate is Kalimuttu (1). In the death certificate R9 ofAppukutti he is not referred to as “ Appukutti kapurala ” butsimply as “ Appukutti ”. This would again show that after Kali-muttu came of age and took on the duties as kapurala, Appukutticeased to function as kapurala of the kovil. Appukutti diedleaving only a daughter and no male issues. The daughterMuthulechchemi therefore has to claim to the trusteeship.The respondents did not dispute that Kalimutu (1) offi-ciated as kapurala or trustee of this kovil. They onlydispute the fact that he did so as the sole hereditarytrustee. No doubt when RIO was executed by Appukutti andKalimuttu (1) the latter was 32 years old and according to the
PATHIRANA, J.—Bolagunderam v. Raman
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petitioner was functioning as the sole trustee or kapurala. Thequestion arises why in 1914 Appukutti is referred to in RIOas the “manager” of the kovil along with Kalimuttu (1). RIOis a lease for 50 years in favour of one Sinnetamby Chettiar.It may well be that the parties thought that the legal owner-ship or domnium of the property had devolved on Kalimuttu
and Appukutti and therefore in the absence of an instru-ment of trust the safer course would have been to join Appukuttialso as a lessor. Appukutti himself was during the minorityof Kalimuttu (1) functioning as kapurala. He would have beenwell known therefore as Appukutti kapurala. It is well knownthat the members of the Chetty community carefully scrutinizethe title of property they purchase. Sinnetamby Chettiar thelessee as an added precaution in order to ensure that title tothe property would not be in dispute, may have insisted onAppukutti also joining as a lessor in RIO. Considering thetotality of the evidence and in particular the circumstances inwhich Appukutti functioned as kapurala, I do not think RIOcan be given the construction and effect sought to be placedon it by the respondents. The appointment by P6 by Lechi-raman of his son Kalimuttu (2) to look after and manage thekovil and the reference to the system of primogeniture in P6 inmy view gives further support to the petitioner’s contentionthat Kalimuttu (1) functioned as the sole hereditary trustee.
This brings me to a consideration of P6, the deed by whichLechiraman grants and assigns the right to manage and controlthe kovil and its temporalities to his elder son Kalimuttu (2)and the reference in P6 to the system of devolution of trustee-ship as the system of primogeniture. P6 was listed by thepetitioner on 27.12.73. The 1st respondent when he gaveevidence on 16.7.75, said in examination-in-chief that his uncletoid him on the same day the deed was executed, that is, 8.6.57about the execution of the deed and when his father came homeat about 9 p.m. he questioned his father as to why he executedthis deed. In the course of the examination-in-chief nothingwas suggested that this deed was executed either under undueinfluence or when his father was under the influence of liquor.Cross-examination commenced on the same day and it wascontinued on 18.7.71. In answer to a question put in cross-examination as to why his father executed this deed P6 in favourof his eldest son Kalimuttu (2) the 1st respondent stated thatthe father was taken and given liquor and under threat he wasmade to execute the deed. However, no complaint was made toany person in authority nor did he get his father to cancel thedeed and execute another deed. He further stated in cross-exami-nation that his father was harassed and persuaded by Kalimuttu
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to execute the deed in his favour. He did not howeverobtain a copy of the deed to find out what it was at that time.It was after the action was filed that he obtained a copy of itand prior to that he had not seen it.
The attesting witnes? to this deed Davith Singho had beencalled earlier by the petitioner on 2.7.75 in order to prove theexecution of the deed and to give evidence. No questions wereput to this witness to suggest that Lechiraman executed thedeed while under the influence of liquor or under undueinfluence. In my view the allegation that P6 was executedunder undue pressure or while Lechiraman was after liquorwas belatedly put forward for the first time at the inquiry inthe District Court. I am, therefore, of the view that there isno evidence to establish that P6 was executed under the influenceof liquor or any undue pressure.
P6 was granted by Lechiraman the father of the respondentsin regard to the managership. Lechiraman who gave it wasalso at that time, admittedly the sole manager in charge ofthe temple. Counsel for the petitioner stressed these aspectsand relied on the statements relating to primogeniture both asan admission against the appellants and also as constituting anact of appointment. The appellants objected strongly to the useof P6 as an appointment on the basis that this document wasintroduced at a later stage in the course of the trial and wasnot reflected in the respondents’ pleadings. We are of the viewthat it is unnecessary to go into this matter in view of our find-ing upon the relevant material that the rule of primogeniturewould apply to the succession to this temple.
The reason that probably prompted Lechiraman to executeP6 was that he was at that time old and ill. He had ninechildren. There was always the likelihood of squabbles andacrimony over the succession after his death. He wanted toensure that the succession took place according to the recognizedusage and custom, viz., by the system of primogeniture andthereby put the succession out of any controversy. Subsequentevents have, however, belied those sanguine expectations.
At the time P6 was executed in 1957 therefore it would appearfrom the evidence that Lechiraman was living with all hischildren in one house and there is nothing to indicate that therelations between the father and his children were anything butcordial. The evidence in the case rather points to the otherchildren having acquiesced in this appointment by Lechiramanof his son Kalimuttu to succeed him in accordance with the ruleof primogeniture. That the 1st respondent Balasunderam hadno interests in the management of the kovil after 1957 is borne
PATHIRANA, J.—Balaeunderam v. Raman
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out by the fact that in 1958 he married a daughter of a P.W.D.contractor in Kandy. Although he says that after he marriedhe continued his residence at Munneswaram, he has admittedthat he transferred his rice ration book to Kandy in 1959 andright throughout his rice ration book and that of his wife werein Kandy till 1969. The householders’ list for the year 1962(P14) does not contain his name or that of his wife as occupantsof the house at Munneswaram. He also admitted that he wagassisting his father-in-law in his work as contractor. From 1965to 1970 he admitted that he did building contracts for the villagecommittee.
If the contention of the 1st respondent is *rue that he has beenfunctioning as joint trustee with his other brothers and thesons of Kalimuttu (2) who on the death of their father wereminors, one would have expected him as the eldest of the surviv-ing sons of Lechiraman in order to function as one of thetrustees of the kovil to have lived at Munneswaram. His depar-ture to Kandy, the transfer of his rice ration book and thefact that he was more keen on doing building contracts clearlyestablish that he had acquiesced in the appointment by Lechi-raman that Kalimuttu (2) should succeed him and thereafterthe eldest male child of Kalimuttu on the basis of primogeniture.The 1st respondent also submitted that his other brothers, 5th,6th and 7th respondents were gainfully occupied in various occu-pations like dairy farming, running a boutique, tapping sweettoddy and culdvating vegetables and tobacco. Sabaratnam theother brother was dead. It seems very probably therefore thatwhen Lechiraman died in 1962 Kalimuttu (2) having pre-deceased him in 1958, the petitioner being only a boy of about11 years, the 1st respondent and his brothers have looked afterthe temple but when the petitioner came of age and demandedhis rights they refused to give him back the kovil because theyfound the income from the kovil was very lucrative. In cross-examination the 1st respondent admitted that after 1962 houseshad been built by the members of the family of Lechiramanroughly worth between Rs. 70.000 to Rs. 75,000. Three landsworth between 15 to 20 thousand rupees have been purchasedby the members of the Lechiraman family. He himself hadbought a second-hand car for Rs. 5,000 and his brother alsobought another car. I, therefore, agree with the finding of thelearned District Judge that the document P6 is consistent withthe petitioner’s case that the trusteeship or kapuralaship of thiskovil devolved on the eldest male child to the exclusion of theothers.
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The respondents' position is that all the male children function-ed as joint trustees or kapuralas. This again is not the positiontaken up by Sabaratnam, the deceased brother of the 1st respon-dent. In December 1962 Sabaratnam the brother of the 1st respon-dent filed answer in a case in which he was sued for ejectment byone Mrs. Kadiravelu from a madam on a land given to be lookedafter by Sabaratnam who w<as the 1st defendant in the case. On12th December, 1962 Sabaratnam filed answer. By this date hisfather Lechiraman had died on 10.08.62. The petitioner’s fatheralso died in 1958. This wlas the time during which the petitioner’suncles were looking after the temple according to him on hisbehalf. In this answer Sabaratnam has taken up the positionthat the land belongs to the Munneswaram Badrakali Kovil ofwhich he was the kapurala and as kapurala he possessed it onbehalf of the kovil. Here it would appear that Sabaratnam isclaiming as the sole trustee. This claim is certainly in conflictwith the claim of the 1st respondent that the brothers werejoint trustees.
The preponderance of evidence is therefore in favour of theconclusion that by custom and usage the succession to the officeof trustee or kapurala of this kovil is as claimed by the peti-tioner, namely, the eldest male descendant succeeding to theoffice.
There remains for consideration the oral testimony led in thiscase by both parties. The learned District Judge has not dealtwith or analysed the voluminous oral testimony led in this case.This has been subject to much criticism by Counsel who appearedfor the respondents before us, and I shall deal with this mattermore fully at the appropriate stage. I can also understand thereluctance of the learned District Judge to examine the oralevidence in this case as the evidence of most of the witnesseswas to the effect that the persons whom the respondents claimedto have been joint trustees or kapuralas had either officiated aspriests, or poosaris at the kovil or assisted in the poojas, ceremo-nies and rituals, etc., at the kovil. This evidence, however, is notdirectly relevant to the question in issue in this case, namely,as to who the trustee, kapurala or manager of this kovil was,that is the person who was responsible for the administration ofthe kovil and the collection and disbursement of the income andthe mode of devolution of the trusteeship. As I pointed outconsidering the thousands of worshippers who come to this kovilfrom all parts of the island and at all times, the trustee or kapu-rala himself cannot alone perform all the sacerdotal duties
PATHIRANA, J.—BcUaaunderam v. Raman
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connected with this kovil. He must have the assistance of otherpriests or poosaris and it would be natural for him to utilizethe services of his own kith and kin for this purpose. In fact,the evidence is that during the festival §eascn poosaris from theneighbouring village of Udappuwa also officiated as priests atthis kovil. The evidence of these witnesses would hardly serveany decisive purpose. As I remarked earlier the learned DistrictJudge has himself drawn a distinction between the person whoofficiates as the kapuralia or trustee and those who perform thefunctions of priests or poosaris at this kovil.
Except for one witness Rev. Medankara, none of the otherwitnesses called by both parties has had any direct dealings ortransactions with this kovil. Rev. Medankara is the Chief incum-bent of Pushparamaviharaya, a temple which adjoins the kovil.He was 70 years old at the time he gave evidence and knewabout the affairs of the kovil from the time of Kalimuttu (1).He had obtained on lease two lands belonging to the kovil onPI of 1940 and P2 of 1941 from Kalimuttu (1) kapurala. Thewitness to these two deeds was his son Lechiraman. Rev. Medan-kara has given evidence of a positive nature and he has saidthat kalimuttu (1) officiated as kapurala and thereafter his sonLechiraman officiated as kapurala. He had taken a lease of aland belonging to the kovil from Lechiraman on P3 of 1955 towhich the witness was Kalimuttu (2). He said that they wereall living in the same house at that time. He said that Lechiramankapurala towards the latter part, of his life was ill and duringthis time his eldest son Kalimuttu (2) functioned as kapuralabut when he predeceased his father Lechiraman again officiatedas kapurala. He said that the others like Sinnethamby assistedKalimuttu and Lechiraman in the performance of poojas. Hespoke of Kalimuttu (1) kapurala and Lechiraman looking afterthe properties and taking the income. He also said that the otherchildren of Kalimuttu (1) also assisted at the performance ofthe poojas in the kovil. He said that when Lechiraman died thepetitioner was a boy of 14 years and during his minority the 1strespondent carried out the work at the temple. Nothing has beenurged by the respondents as to why the evidence of this witnessshould be rejected.
The cross-examination of this witness was directed merely toelicit that others also participated in the ceremonies and poojasat the kovil. Rev. Medankara’s evidence is in accord with thedocumentary evidence in the case. I
I will now deal with the criticism that had been urged byCounsel appearing for the respondents before us that thelearned District Judge in his judgment hiad failed to analyse the
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oral and documentary evidence in this case, or draw any in-ference from such evidence. Not one of the witnesses’ evidencehas been considered, belief or disbelief of witnesses has not beenadjudicated upon. I must admit that considering the volume oforal and documentary evidence led in the case and the longdrawn out submissions of Counsel, the judgment is skeletal andit is certainly not one in respect of which the stricture ofprolixity can ever be levelled. While the criticism may super-fically appear to be justifiable, I however find that the learnedDistrict Judge has dealt with all the points in issue and pronounc-ed definite findings on them. Reasons, though in brief, have alsobeen given for his findings On an examination of the judgementit would appear that the learned District Judge has preferred toact on the documentary evidence in this case. The judgment re-veals an absence of any consideration, examination and scrunityof the oral testimony in the case. This may perhaps be becausealmost all witnesses spoke of the members of the family per-forming poo j as at the kovil while the main issue in the case wasas to who as trustee or kapurala administered the affairs of thekovil.
I find that in dealing with the question whether there wasuncertainty of title to the trust property the learned DistrictJudge has rightly considered documents (Rl), that is the agree-ment of 1819, R2, R3, R4 and P5, the proceedings and judgmentsin the District Court of Chilaw Case No. 13846. He has rejectedthe case of the respondents that Narayanan had acquired pres-criptive title to the property and held that the last known ownerwas Ratnasinghe Giri Iyer, a Brahmin, beyond which title wasuncertain. Quite properly he gets to the next question as to howin regard to this kovil, which is a charitable trust, the trustee-ship has devolved during the last 100 years. He then traces thepattern of devolution from the time of the founder to Narayananwho functioned as the sole trustee and thereafter till 10.8.1962when the last trustee Lechiraman died. He then considers thepedigree from Narayanan to his present day descendants which isnot disputed but is accepted by all the parties. He gives the reasonwhy Appukutti functioned as “ temporary trustee ”. This wasbecause of the minority of Kalimuttu (1) who was 3 years oldwhen his father Sinnethamby died and who could not officiateas kapurala till he was 15 years old. He goes on to hold that whenKalimuttu (2) died the respondents were merely the “ functioningpriests ” at the kovil. He concludes thus :
“ This examination of the pedigree reveals a pattern ofdevolution mere consistent with the petitioner’s claim thanthe respondents. It is a vertical descent from father to eldestson, or, if the son be yet a minor and the father should not
PATHIRANA, J.—Balaaunderam v. Raman
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survive the period of minority—then the vertical devolutionis delayed by a horizontal movement creating a temporary“ trusteeship ” until the defect of minority is cured, and devo-lution takes place again on this system of primogeniture. Tosay as do the respondents that trusteeship accrues to all themale issues of a surviving trustee seems wrong for one doesnot equate the priestly function with the functions of atrustee. This is the one and only pattern deducible from theevidence regarding the devolution of trusteeship from father(the senior) to the son. The existence, nurture and trainingof a priesthood required for the furtherance of the purposesof the trust is a completely different matter irrelevant to thematter under examination ”.
This shows that he has rejected as irrelevant the mass ofevidence that was led regarding the performance of priestlyfunctions at the kovil for the purpose of determining who thetrustee or kapurala of the kovil was or how the devolution tookplace. He has rejected the contention of the respondents that P6was executed by Lechiraman on 18.6.1957 while under theinfluence of liquor. He has referred to R6, R7 and RIO and con-cluded that these documents “ cannot per se establish the frac-tional system of devolution contended for by the respondentsFinally he has held that the “ succession was by a system ofprimogeniture to the office of trustee, or manager and generallyand directly to the priesthood of the temple. ”
A judgment of a court must be a judicial pronouncement inwhich at least the trial judge should deal with all the points inissue in the case and pronounce definite findings on the issues.Even though the judgment may not on a reading on the face ofit disclose that the trial judge has considered and subjected toexamination and critical analysis the evidence of witnesses, buthas chosen to act only on the documentary evidence, an AppellateCourt can still uphold such a judgment if it is satisfied that thereasons, however brief, and conclusions reached have been on thehypothesis that there had been a rational examination andanalysis in his mind of relevant evidenceand
the rejection of what is irrelevant. Adopting this test I amsatisfied that although the judgment in the present case doesnot disclose a recital even of the main points of the evidence ofthe witnesses, an analysis of the evidence, an adjudication on thebelief and the disbelief of the witnesses, nevertheless implicitin the logical conclusions reached by the trial Judge, the reasonsand answers he has given to the main points in issue and hisfindings generally is that this can only be on the hypothesis thathe has done so after a rational examination and analysis of the
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main points* of the relevant evidence in the case although hehas chosen not to give expression to them explicitly in his judg-ment, which he might have done.
For these reasons I agree with the learned District Judge thatthe devolution of the trusteeship in respect of this kovil is as setout by the petitioner, namely, that by usage and custom theeldest male descendant succeeds as the trustee, kapurala ormanager and that the petitioner as the sole hereditary trustee,kapurala or manager is entitled to be vested with the propertiesin question under section 112 (1) of the Trusts Ordinance.
Before I conclude I must say that I cannot ignore the findingof the learned District Judge that the other male descendantsof Lechiraman had also by usage and custom performed functionsas priests or poosaris at the kovil in connection with the poojas,ceremonies and rituals. They may therefore be entitled on thataccount to certain perquisites, emoluments, etc., by usage andcustom. Section 112 (1) of the Trusts Ordinance empowersthe Court to make a vesting order vesting the property “ in anysuch manner in any such person or to any such extent as theCourt may direct ”. While affirming the vesting order made bythe learned District Judge, I would hold that this would be with-out prejudice to the rights of the male descendants of Lechiramanwho by custom and usage have been performing or assisting inthe performance of poojas, ceremonies or rituals at this kovil,and to the emoluments and perquisites, etc., that they may byusage and customs be entitled to arising out of the performanceof these functions. The petitioner is therefore bound to respectthese rights and allow these persons to officiate as priests orpoosaris in the temple and enjoy the perquisites and emolu-ments, etc., which they may be entitled to by usage and customsubject, however, to his powers, control and directions as trusts,kapurala and manager of the temple.
The appeals are dismissed with costs.
Ratwatte, J.—I agree.
Wanastjndeka, J.—I agree.
Appeals dismissed.