008-NLR-NLR-V-31-MARKANDAN-v.-AIYAR.pdf
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1989.
Present: Fisher C.J. and Drieberg -J.
MARKANDAN v. A1YAR.44,7—D. C. Jaffna, 22,114.
Hindu temple—Appointment of manager—Power to delegate ojfi<r—Trusts Ordinance, 1917, s. 49.
Where a person is appointed manager of a Hindu' temple by awriting “ with power to appoint, if necessary, one or more personsunder him as manager, ” and where it is provided, that " on bisfailure to manage the temple or in case he withdraws himself fromthe management, ” the right to appoint a new trustee is expresslypreserved.
Held, that the manager was not entitled to delegate all hispowers both discretionary and ministerial to another.
T
HIS was an action brought by one Markandan by his attorneySangarapillai Kanapathimuttu against the first defendant,
who is the priest of a Sivan temple at Changani in .Taffna, and thesecond defendant, who assisted the first defendant in the performanceof his duties. The plaintiff asked for the removal of the firstdefendant from the office of • priest and the ejectment of thesecond defendant.
It was contended by the defence that the action was not maintain-able as Markandan in purporting to exercise the power conferredby the deed under which hehimselfwasappointed hadgone
far beyond the authority vested in him under the document; thatthe document' was not one under which he could delegate his' officewithin the meaning of section 49 of the Trusts Ordinance of 1.917.The learned District Judge gave judgment for the plaintiff.
H. V. Pcrera (with Rajaharier), for defendants, appellant.—This is a purely ecclesiasticalmatter.TheCourt has nojuris-
diction. The plaintiff does not say that he lias dismissed thedefendants. But he asks the Court to dismiss the defendants.The Court has no power todo this.Theplaintiff couldhave
dismissed the defendants and asked the Court's assistance to ejectthem. He has not done that.
The caption of the plaint shows that Markandan is residing withinthe jurisdiction of the District Court of Jaffna. Therefore he cannotappear by an attorney (section 25 (b) Civil Procedure Code).
The instrument PI, by which Markandan appointed his attorney,shows that he has withdrawnhimselffrom the trusteeship- and
appointed his attorney Kanapathimuttu instead of him. This hecannot do. A trustee cannot delegate all his powers. Delegationis only allowed within well recognized limits.
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y. E. Wcerasooria (with Subramuniam), for plaintiff, respondent.—The caption is a mistake. .There is definite evidence in the casethat Markandan was away from Jaffna.
Markandan has not withdrawn himself from the trusteeship.He has only appointed an attorney to look after the temple. Thereal plaintiff is Markandan. The attorney is under his control.There is evidence to that effect in the case. There is evidencethat the action was instituted at the instance of Markandan. Theinstrument of trust appointing Markandan gives him the power toappoint somebody to look after the temple under his control.
It is not necessary to apply English law principles if there issome customary law of the Hindus of Jaffna which is applicable.The ultimate authority rests with the congregation. In the instru-ment- of trust appointing Markandan the trustee, they havedefinitely reserved to themselves the power to appoint anothertrustee in case they are dissatisfied with his management or whenMarkandan withdraws himself from the trusteeship. The congrega-tion has not disapproved of the conduct of Markandan in appointingan attorney. They have not thought that Markandan has with-drawn himself from the trusteeship. If they thought so, they wouldhave appointed another trustee. Section 49 of Ordinance No. 9 of1017 empowers a trustee to delegate if the instrument so provides.
August 1. 1929. l-'iSHKii C.J.—
This action, was brought by lv. V* Markandan of Changuvelyby his attorney Sangarapillai Kanapathimuttu of Vaddukoddai, asplaintiff, against the first defendant,.-who is the priest of the Sivantemple, situated in the land called Thanuvodai at Changani in Jaffna,and the second defendant, also a priest, who assists the first defendantin the performance of his duties. Paragraph 3 of the plaint refers toa decree in a case No. 12,525 and purports to set out the effect thereof.Paragraph 4 states: " That the plaintiff being very busy on accountof his own business outside Jaffna appointed Sangarapillai Kana-pathimuttu of Vaddukoddai East as his attorney to manage theaffairs of the said temple as per power of attorney dated June 21,1926 …. ” Paragraph 5 of the plaint sets out specific acts
of the first defendant which the plaintiff alleges “ are derogatory tothe authority of the plaintiff as manager and which are detrimentalto the interests of the said temple.” Paragraphs 6 and 7 are asfollows: —
6. The second defendant who was not appointed as anofficiating priest in the temple commits trespass by entering thesaid temple and performs the poojas in spite of the manager’sprotest and thereby the manager is entitled to get an order ofCourt to eject the second defendant from the said temple.
1929.
Markandan
v.
Aiyar
( 40 )
1629.
Fishxr C.J.
Markandan
«♦
Aiyar
7. The first defendant is constantly acting in disobedienceof the authority and control of the plaintiff as lawful manager andhe has by his studied acts in violation of the plaintiff’s rights asmanager and of his duties as priest aud by arrogating to himself. the rights as manager rendered it impossible for the plaintiff toretain the services of the first defendant as a priest, even althoughthe plaintiff is willing to act towards the first defendant in spiritof compromise and it has therefore become necessary to seek theintervention of this Court to remove the first defendant from theoffice of priest in order that the affairs of the temple may he ■properly carried out.
The jurisdiction of the Court is invoked on the basis of the decreementioned in the 3rd paragraph of the plaint which was a consentdecree dated February 27, 1919, in an action in which the theumanager of the temple, Bamalingam Begunather, was the plaintiffand the first defendant, to the present action was the second defendantin that action. This decree ordered inter alia that the then seconddefendant “ be not dismissed without the intervention of a Courtof law.” The first defendant is the only party to the present actionwho was also a party to that action, in which a former manager ofthe temple was the plaintiff.
The plaintiff in this case has not purported to dismiss the firstdefendant from his office, though what he alleges against him wouldpresumably from his point of view have entitled him to do so, but hesues apparently on the footing that under the decree of February 27,1919, he is entitled to call upon the Civil Court to dismiss the firstdefendant. I do not think that view is correct. In my opinion thatdecree cannot in any way affeev the questions at issue between theparties in the case we are now considering. I think that where anecclesiastical authority has purported to exercise powers as such andcomes to a Civil Court to give effect to the legal position resulting fromsuch exercise the questions whether the powers exist and whetherthey have been duly exercised would be considered by the Court.This seems to me to be the effect of the opinions expressed in Pitch eTamby v. Cassini. ' But that is not the position in this case. In thiscase the attitude adopted by the plaintiff is this, that he has proveda state of things which justifies his coming to Court to ask for thedismissal of the first defendant. This Court therefore is asked to.dismiss an officiating priest, from office and, in my opinion, it has nojurisdiction to do so, and I think that on that ground the action is netmaintainable and should have been dismissed.
But there was a further question which was argued, before usgoing to the root of the matter. It was urged that the action cannotbe maintained by K. V. Markandan by his attorney SangarapillaiKanapathimuttu inasmuch as in purporting to exercise the power>18N. L.B.JU.
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conferred upon him by the deed under which he himself was appointed, 1929.
K.V. Markandan has gone far beyond the power and authority p18HKR c.J.
vested in him by that document. In the course of the argument
section 25 of the Civil Procedure Code was referred to. That section Markandan
Vf
enacts that “ The recognized agents of parties by whom such Aiyarappearances and application may be made or acts may be done are—
(b) Persons holding general powers of attorney from parties notresident within the local limits of the jurisdiction of theCourt within which limits the appearance or application ismade or act done, authorizing them to make such appear-ances and application, and do such acts on behalf of suchparties ….
According to the caption, K. Y. Markandan is resident within thelocal limits of the Court and it does hot appear therefore that thatsection is applicable. The real state of things appears to be that theaction was brought entirely independently of that provision and wasbrought on the footing that Kanapathimuttu under the. instrumentappointing him had full power to act as if he were a substitute in thefullest sense for Markandan. In order to deal with this question itis necessary in the first place to consider the extent of the powersconferred upon Markandan by the instrument which appointed himmanager of the temple. That document (P7) is dated March 3,
1921. It purports to be an appointment made by a large number ofpeople, of whom Bamalingam Regunather is one, of K. V. Markandanas manager, called trustee, of the said temple. The operative partof this document is as follows: —
‘ ‘ We do hereby appoint the. said Kasinather VaitilingamMarkandan as the manager, called' ‘ trustee,’ of the said templeand authorize him to manage the said temple and all its immovableand movable properties, to defray the necessary expenses for thesaid temple, to collect the income, to cause or cause to be done allthe affairs of the said temple, to cause to be done all festivals andjioojali ceremonies that should be done in the temple according tothe Hindu rites and ceremonies, to appoint Poojakar (officiatingpriests), servants, &c., or to discontinue them, to reappoint others, •to take charge of all the movable and immovable properties andthings belonging to the temple at present, and to keep in his chargeand custody, to accept the jewels, money, and other movable thingsthat may be given to the said temple as donation, to change thesaid things and get other necessary things, to collect money for thedaily and special poojahs and festivals to the said temple, torecover the money due to the said temple, to cause buildings to be •made to the said temple, to let and lease out -the properties, toappoint if necessary one or more persons under him as managersand again to discontinue them, to commence and carry on any
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1929. actions as plaintiff, defendant, and intervenient, to lay claim to the
said temple and its properties and things, to institute cases and to
Fishbb C.J. retajn necessary Proctor or Proctors and Advocates for the saidMarkandan purposes and to do or cause to be done all things necessary for thatAiyar purpose, and to keep accounts of income and expenditure of thesaid temple.
Wherefore the said Kasinather Vaioilingaiu Markandan shallor cause to be done the aforesaid things and affairs and conducthimself regularly as manager of the said temple.
Further, we declare by these presents that we or majority of usshall appoint another as manager in place of the said KasinatherVaitilingam Markandan, in the event of his failure to manage and •conduct the said temple regularly or in case he withdraws himselffrom the management of the the said temple or in the eventof his death. .
I, the said Kasinather Vaitilingam Markandan, do hereby under-take the management of the said temple as manager.”
It is clear from this document that Markandan was to be the actualand active manager of the property and that he was the sole personauthorized and entitled to act as such. The power to appoint anyoneto act on his behalf is confined to the words “ to appoint, if necessary,one or more'persons under him as managers and again to discontinuethem ” and it is provided that on his “ failure to manage the templeor in case he withdraws himself from the management of the saidtemple ” the right to appoint a new trustee is expressly reserved.The document is clearly therefore not one under which he can“ delegate his office ” within the meaning of section 49 of the TrustsOrdinance, 1917. The fact thaO the power to appoint a new trusteehas not been exercised cannot have any bearing on the question ofthe extent of his powers to appoint a manager. That being so thequestion of the validity of the document (Pi) by which Markandanpurported to exercise his power of appointment under the trust deedarises. The intention of that document was clearly shown by thesecond recital, which is as follows: —
And whereas it is happened to me to leave this place to someother places; and whereas it is necessary that I should appointinstead of me an attorney to manage and look after the affairs ofthe said temple; and whereas I have power and authority underand by virtue of the said deed to appoint another person as myattorney; and whereas certain Sangarapillai Kanapathimuttu ofVaddukoddai Fast, who is a fit and proper person and honest andtrustworthy, has consented to be appointed as such attorney tolook after and manage the affairs of the said temple ….
The words “ instead of me ” clearly indicate that the appointmentwas in fact intended to be in effect a substitution of Kanapathimuttufor K. V. Markandan as trustee' and manager of the temple, and the
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powers set up in the operative part of the document clearly emphasizethat view. The operative part runs as follows: —
The said Sangarapillai Kanapathimuttu is to look after thesaid temple and manage the said and all the immovable andmovable properties belonging thereto, to spend all the necessaryexpenses for the said temple, to take all the produce and income,to conduct or cause to be conducted all the affairs and business tobe done in the said temple, to perform all the poojah and festivalceremonies to be celebrated in the said temple, to appoint officiatingpriests and other workmen, or to dispense with them who are to beappointed so, or to reappoint them, to take in his charge all theimmovable and movable properties and furniture belonging to thesaid temple at present and keep them in his charge, to accept andtake charge all the jewels, moneys, and other movable properties tobe donated to the said temple, to exchange the said goods and topurchase other necessary goods, to collect moneys and goods for thedaily and special -poo-jabs, ceremonies, festivals, and buildings ofthe said temple, to recover and receive the said moneys due to thesaid temple, to Jjuild the building of the said temple, to lease outthe properties, to appoint one or many as trustees under him andagain to dispense with them, to appear as plaintiff, defendant, orintervenient if there be any cases in respect of the said temple andits properties and to conduct such cases, to claim on behalf of thesaid temple and its properties, to conduct cases, to appoint thenecessary Proctors or Advocates for the same. Further, to do allnecessary things for the same, and to keep an account of theincome and expenditure of the said temple.
I do hereby agree that the Slid Kanapathimuttu is to lookafter and manage the said temple and its affairs as I could do inmy proper person as I be personally present and that he should setmy signature for all the documents and proxies to be signed by me,and execute and grant unto him this deed of power of attorney.
I, the said Sangarapillai Kanapathimuttu, also do hereby acceptthis deed of power of attorney and set my signature thereto.
This is clearly not the appointment of a manager “ under him.”It is a delegation of the office and is not such an appointment asMarkandan was authorized and empowered to make by the instru-ment of trust. The point is involved in the fourth issue, which isas follows: —
1989.
Fishes C.J.
Markandan
v,
Aiyar
4. Has the plaintiff any right to delegate his power of manager-ship to an attorney ? '
It is unnecessary to consider the extent and scope of the powerconferred by P7 to appoint “ one or more persons under him asmanagers.” But it is quite clear that it does not. extend to theexercise of the powers which Markandan purported to exercise, and
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1929. the fourth issue should have been answered in the negative. TheFishbjTc.J. potion taken up by Kanapathimuttu was that which is indicated in
the 6th paragraph of the plaint. The attitude of the first defendant
Markandan throughout appears to have been that Kanapathimuttu being inAiyar effect a usurper he declined to recognize his authority.
In my opinion, the action, being an action by Kanapathimuttu asa person to whom Markandan had attempted to delegate his office,should have been dismissed as against both defendants. The appealtherefore is allowed and judgment will be entered dismissing theaction with costs in this Court and in the Court below to be paid byKanapathimuttu.
Dribberg J.—
I agree with the judgment of my Lord the Chief Justice.
It is clear that the document PI, though described as a power ofattorney, is not one. The respondent does not authorize Kanapafhi-muttu to act for and on his behalf but instead of him. It is acomplete and full surrender of all powers, both discretionary andministerial, to Kanapathimuttu. It is sufficient to point to theauthority given to him to exercise what is perhaps the greatestpower of a manager, one calling for the highest degree of discretionand involving the greatest responsibility, that of appointing anddismissing the officiating priest. This the respondent could notdelegate unless specially authorized by his appointment.
A trustee cannot delegate nis powers except within certain wellrecognized limits. In Speight v. Qaunt1 Lord Fitzgerald said, “ Iaccept it then as settled law that although a trustee cannot delegateto others the confidence reposed in himself, nevertheless he may inthe administration of the trust avail himself of the agency of thirdparties, such as bankers, brokers, and others.” Any delegationexcept within these limits and except in cases of necessity, such asabsence in another country, is absolutely void.
In this action Kanapathimuttu seeks to procure the dismissal ofthe priest for denying his claim to have control over the temple.The cause of action is plainly stated in his evidence to be the denialby the first appellant of his authority. He claims to manage thetemple by, as it were, a title independent of the previous manage-ment, for he disclaims any responsibility or liability to the appellantsfor transactions during the time the respondent was manager, andthis he could not do if he was acting for and on behalf of the respond-.ent. The trial Judge rightly summarizes Kanapathimuttu’s claimin these words:“ The attorney was trying to make his position as
manager a reality and gain real control in the affairs of the temple,as he a right to do.”—
1 (1883) 9 Appeal Cases 1, at p. 29.
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Tiut he had no light to exercise the powers of management in theway claimed by him.
The respondent was by P7 authorized to appoint one or morepersons under him as manager; it is clear that this only enabledhim to secure the assistance of a person who would work under himin his name and under his personal directions, for P7 provides thatif the respondent withdrew from the management the grantors of itshould appoint another manager in place of him. This provisiondid nothing more than allow the respondent to associate with himselfin the management, but subordinate to him, some other persou.This is a power which a trustee does not ordinarily have, for thesettlor of a trust places his confidence, in the trustee himself and notin another person, and by allowing the latter to have the joint controlof the property the trustee puts it out of his own power to deal withit promptly and effectually in case of necessity, Salway v. Salway.1
By Pi the respondent in effect declared his inability to managethe affairs of the temple as he had done until then and he appointedfianapathimuttu to do so “ instead of him,” the fact that hedescribed him as his attorney does not alter the real character ofthe transaction, which is a complete delegation of the trusts. Therespondent has in fact exercised a power which under the deed P7only its grantors had, namely, that of appointing a manager in hisplace if he “ failed to manage and conduct the temple regularlyor if he withdrew himself from the management of the temple.”
1929.
Driebkrg J.
Markandan
Aiyar
Viewing this action, therefore, as what it in reality is—namely,,one .by Kanapathimuttu to enforce his power of dismissal of thepriest, based on a cause of action which is the denial of his authorityto control and manage the temple-’-it must fail. Can the action,,then, succeed as one brought, as it is in form, by the respondent,K. V. Markandan?
The proxy in favour of. the Proctor for the respondent is signedby Kanapathimuttu as the attorney of K. V. Markandan; now thisappointment, and with it the plaint and all subsequent proceedings,are bad for the reason that the power of attorney—and it is sought-to use the document PI for this purpose, for there is no other—is.by a person residing within the local limits of the jurisdiction o,f the-District Court of Jaffna; Markandan’s residence is so stated in the-plaint and in PI.
Another reason is that this document PI does not authorize-Kanapathimuttu to appear and act on behalf of the respondent,but on the contrary authorizes Kanapathimuttu to himself appearas plaintiff, defendant, or intervenient, and to conduct cases inrespect of the temple and its properties. It follows, therefore, thatKanapathimuttu is not a recognized agent of K. V. Markandan as-described in section 25 (b) of the Civil Procedure Code.
1 (1831) 2 Russ and Myl. 215.
1920.
Driebekg J.
Itarkandan
v.
Aiyar
( 46 )
Our attention was drawn to these words of the penultimate clauseof PI:“ I do hereby agree that the said Kanapathimuttu is to look
a,fter and manage the said temple and its affairs as I could do in myproper person as I be personally present and that he should set mysignature for all the documents and proxies to be signed by me, andexecute and grant unto him this deed of power of attorney.”
In this clause; as in the rest of the deed, the words “ for and onmy behalf and in my name ” are noticeably absent, and the referenceto the signing of the documents and proxies does not necessarilyrefer to such actions as this. The temple owns land and there ismoney lent out in mortgage bonds; a lease—and Kanapathimuttuis empowered to lease—or the release of a mortgage bond, or anaction brought on one, where the title of the land 'to be leased is inMarkandan or the bond i's in his name, would have to be in thename of Markandan, unless the lands were by deed vested inKanapathimuttu or the bonds assigned to him by deed. Thisauthority to sign documents and proxies in Markandan’s name wasnecessary so far as the immovable property vested in Markandanwas concerned even though Kanapathimuttu was appointed tomanage the trust himself and not on behalf of Markandan, and itdoes not make PI a general power of attorney.
Nor is it possible to recognize this action as one by Markandanby permitting him to ratify the action of Kanapathimuttu by nowgranting a proper power of attorney in favour of Kanapathimuttu.Even if this be done the action cannot succeed. As I have pointedout, the. action of Kanapathimuttu in issuing the orders and directionsto the priest, disobedience to which is the cause of action, was notprofessedly or in fact done by him as Markandan’s agent, andratification of such action by Markandan is not possible. Ratifica-tion is possible only in the case of acts done by one who assumes toact as agent, but acts without authority or in excess of his authority.
Appeal allowed.