MOHAMMED et al. v. ABDUL HADEEN

107-NLR-NLR-V-30-MOHAMMED-et-al.-v.-ABDUL-HADEEN.pdf


( 378 )
1929
Present: Dalton and Drieberg JJ.
MOHAMMED et al. v. ABDUL HADEEN.
319—D. C. Qalle, 24,691.
Charitable trust—Action for declaration of title to trust property—Ordi -nance No. 9 of 1917, s. Ill (1) (c).
A claim for declaration of title to property of a charitable trustcannot be barred by prescription.
A
PPEAL from a judgment of the District Judge of Galle. Thefacts appear from the judgment of Dalton J.
Keuneman, for defendant, appellant.
F. de Silva, for plaintiffs, respondent.
January 16, 1929. Dalton J.—
The plaintiffs instituted this aotion as trustees under a deedexecuted by one Pooachi Umma in favour of her husband DeenMohamed Abdul Karim. They asked for a declaration of title tothe premises at 146, Fishmarket street, Galle, and were successfulin the lower Court.
( 379 )
In his answer defendant resisted their claim alleging that he hadbeen in possession of the premises as owner and had obtained a goodprescriptive title thereto. When the issues, came to be framed hesomewhat altered his position and was allowed to raise furtherdefences, without however any amendment of his answer, which,so far as is necessary for this appeal, are dealt with below.
He appeals against the decision of the trial Judge on severalgrounds. The finding that the plaintiffs were trustees under thedeed was not seriously contested in argument, and it is a finding,in my opinion, which cannot be upset, having regard to the terms ofthe trust deed. It was urged, however, that they, could'not succeedin their action as they had not obtained the consent in writing ofthe Attorney-General. It seems clear to me, however, that thisaction is not one which falls within the purview of section 101 ofthe Trusts Ordinance relied upon by Mr. Keuneman. In thatevent no consent is required.
It was thenurged that the action is prescribed under the provi-sions of section 1.1 of the Prescription Ordinance r 1871.. AbdulKarim died in 1914, and it is admitted that since that date upto the institution of this action in 1927 defendant had been inpossession of the trust property, and hasjipparently been adminis-tering the trust. There is some doubt as to when the fifth plaintiffcame of age, but even if the trial Judge’s finding that she was only23 years of age at the time of his judgment in September, 1928, benot supported by evidence on the record, it seems to me an answeris supplied to this ground of appeal in the provisions of section 111of the Trusts Ordinance. Sub-section (1) (c) of that section providesthat in the case of any claim in the interests of any charitable trustfor the assertion of title to the trust property, the claim shall not beheld to be barred or prejudiced by any provision of the PrescriptionOrdinance, 1871. It is admitted that this is a charitable trust andit is a claim for declaration of title to the trust property. Counselhas not satisfied me that, at any rate in the circumstances here,the claim by the plaintiffs as trustees is not in the interests of thetrusts. It is true that in one sense the action is in the interest ofthe trustees, although it imposes burdens on them, but I am unableto see how it fs not also in the interests of the trust. It is certainlynot in the interests of the trusts that a persons who is not a trusteeat all should be allowed to come in and administer the propertyand trust funds. The action is. therefore not prescribed by any •provision of the Prescription Ordinance, 1871.
It was lastly urged that defendant had acquired title to. theproperty subject to the terms of the trust by ten years .possession.Section 3 of the Prescription Ordinance sets the term of prescriptionfor land or immovable property at ten years. But that possessionmust be free of any acknowledgment whence a right existing in
1929
Dalton J.
Mohammedv. AbdulHadeen
( 380 )
1929
ALTON J.
.Mohammed,v. AbdulHadeen
another person than the possessor can be inferred. This possiblyexplains why in his answer defendant claimed possession “ vtdominue.” If he admits, as he now does, that the property is trustproperty and he held it as such, has section 3, having regard to itsexpress terms on the matter of possession, any application ? Thatquestion it is not necessary to answer here, for even if it has, it seemsto me that section 111 (c) of the Trusts Ordinance provides thatthe claim shall not be barred by its provisions. The provisions ofthis section would appear to go beyond the provisions of Englishlaw.
Lastly, no case arises.here for making use of the machineryprovided by section 106 of the Trusts Ordinance in the case ofreligious trusts, whereby any arrangement de facto in force may beapproved of and continued.
The judgment of the lower Court must, therefore, be upheld andthe appeal be dismissed with costs.
Drieberg J.—
I agree with the judgment of my brother Dalton.
The appellant cannot claim to have acquired by prescription theright to administer the trusts created by the deed No. 4,692, P 1.
The law regarding prescription in the case of charitable trusts isfully set out in the judgment of the House of Lords in the case ofThe Attorney-General v. Magdalen College.1 It will be seen how wideis the freedom from limitation of actions which claims arising outof charitable trusts in Ceylon enjoy as compared with similar trustsin England.
If the respondents’ claim is one in the interests of the trust forthe recovery of the trust property or for the assertion of title to it,the action cannot be barred by any of the provisions of OrdinanceNo. 22 of 1871—Section 111 (c) of the Trusts Ordinance, No. 9of 1917.
This is an express trust with a clear provision for succession tothe first trustee. The respondents are his rightful successors andare entitled to administer the trust. A claim that the trust propertyshould be in the possession of the rightful trustees and administeredby them and not by a trespasser must ordinarily be regarded as. one made in the interests of the trust.
Though the appellant claims to have had adverse possession forten years prior to this action, which was brought on June 28, 1927,the respondents cannot be said to have adandoned their claim.
Appeal dismissed*
» IS Bern-. 223 ; 6 H. L. Vases 189.