058-NLR-NLR-V-63-MORONTUDUWE-SRI-GNANESWARA-DHAMMANANDA-NAYAKE-THERA-Petitioner-and-BADDEGAMA-P.pdf
278 WEERASOORIYA, J.—M orontuduxoe Sri Onaneswara Dhammanandct
Nayake Thera v. Baddegama Piyaratna Nayake Thera
Present: Weerasooriya, J., and Sansoni, J.
MORONTUDUWE SRI GNANESWARA DHAMMANANDANAYAKE THERA, Petitioner, and BADDEGAMA PIYA-RATNA NAYAKE THERA et al., Respondents
S. C. 83, 124 and 133—Applications under Rule 26 of the Rules inthe Schedule to the Appeals (Privy Council) Ordinance in respect of
26 D. C. Colombo, 2882JL
Privy Council—Action instituted by a trustee to vindicate his legal title to certainpremises—Decree entered in favour oj trustee—Death of trustee pending appealto Privy Council—Bight of trustee's tn ccessot to be substituted as party— Abate-ment of action—Appeals (Privy Cox net'/) Ordinance (Cap. 8-5), Schedule, Rule 26—Civil Procedure Code. se. 392, 395. 404— Trusts Ordinance (Cap. 72), ss. 13,113 (1)—Appellate Procedure (Privy Council) Order, 1921, Ruler 13 18.
The plaintiff, as the duly appointed principal of a Buddhist educationalinstitution (a 1 irivena), sought a declaration by Come that he, as trustee, wasentitled to the premises and for an order ejecting the 1st defendant therefrom.Decree was entered in his favour by the District Court and, on appeal, by theSupreme Court. Aftei the 1st defendant outained final leave to appeal to thePrivy Council the plaintiff died.
Held that the plaintiff's successor was entitled to a certificate under Rule 26of the Schedule to the Appeals (Privy Council) Ordinance that he wan the properperson to be substituted orenter6d or the record in place of the deceased plaintiff.In such a case it could not be contended that the action abated with the deathof the plaintiff.
Applications under Rule 26 of the Schedule to the Appeals (PrivyCouncil) Ordinance.
W. Jayewardene, Q.C., with N. R. M. DaluwaUe, for the petitionerin Applications Nos. 83 and 124.
B. Wikramanayake, Q.C., with C. D. S. Siriwardene, for thepetitioner in Application No. 133.
H. W. Jayevxirdene, Q.C., with N. R. M.1st respondent in Application No. 133.
DaluuxUte, for theCur. adv. wit.
August 6, 1960. Weerasooriya, J.—
These three connected applications relate to an appeal which the 1stdefendant in Case No. 2882 of the District Court of Colombo intends toprefer to Her Majesty in Council from the judgment1 of this Courtaffirming the judgment and decree of the District Court in favour of the
1 (1958) 59 N. L. R. 412.
WEERABOORIYA, J.—Morontuduwe Sri Qnaneswara Dhammananda
Nay alee Ttera v. Baddegama Piyaratna Nayake Thera
279
plaintiff. In that notion the plaintiff, as the duly appointed principalof a Buddhist educational institution known as the Vidyodaya Pirivena,sought a declaration that he is the trustee of a charitable trust createdby deed No. 1259, dated the 9th March, 1876, for establishing and main-taining in the premises described in the schedule to the plaint a pirivenafor the purpose of teaching Buddhism, that he holds the premises and isentitled to them as such trustee and for an order ejecting the 1st defen-dant therefrom. Under deed No. 1259 power was given to an unincor-porated body of persons by the name of the Vidyadhara Sabha to appointa principal of the Vidyodaya Pirivena whenever a vacancy in the officeoccurred. Tho persons who at the time of the institution of the actionformed the Vidyadhara Sabha were also made parties defendants but norelief was claimed against them.
The 1st defendant in his answer asserted that the premises described inthe schedule to the plaint formed a temple of which he is the lawfulincumbent or viharadipathi, and to which the Vidyodaya Pirivena isappurtenant, that the appointment of a principal of the pirivena requiredhis approval and that the purported appointment of the plaintiff asprincipal (presumably without his approval) was unlawful.
After the 1st defendant obtained final leave under tho provisions ofThe Appeals (Privy Council) Ordinance (Cap. 85) to appeal to Her Majestyin Council, the plaintiff-respondent died (on the 15th February, 1960).Thereupon the 1st defendant filed Application No. 83 for a certificateunder Buie 26 of the rules in the schedule to that Ordinance as towho, in the opinion of this Court, is the proper person to be substitutedin place of the deceased plaintiff. He subsequently filed ApplicationNo. 124 for an order staying the further printing of the record (for thecompletion of which time had been granted till the 21st May, 1960) pendingthe decision of the question of the substitution of a person in place of thedeceased plaintiff, stating as the reason for the application that with thedeath of the plaintiff the action had abated.
The petitioner in Application No. 133 claims that he was appointedprincipal of the Vidyodaya Pirivena in succession to the plaintiff by theVidyadhara Sabha at a meeting held on the 4th March, 1960, and as suchhe applies for a certificate under Rule 26 that he is the proper person tobe substituted or entered on the record in place of the plaintiff. It will beconvenient to consider this application first.
In opposing this application Mr. Jayewardene who appeared for the1st defendant submitted that (as stated in Application No. 124) the actionabated with the death of the plaintiff. For this submission he relied onsections 392 and 395 of Chapter XXV of the Civil Procedure Code entitled“ OF THE CONTINUATION OF ACTIONS AFTER ALTERATIONOF A PARTY’S STATUS ” and on the decision of a Divisional Bench ofthis Court in Deerananda Thero v. Ratnasara Thero l. The plaintiff in
1 (1958) 60 N. L. R. 7.
280 WJEEJRASOORIYA, J.—•Moroatuduwe Sri Qnaneawara Dharnmananda
Nayake Thera v. Baddegama Piyaratna Nayake Thera
that case, as the incumbent of a Buddhist temple, sued the defendantalleging that the latter was unlawfully disputing his right to theincumbency, was disobedient and disrespectful to him and obstructinghim in the lawful exercise of his rights as incumbent. He prayed that hebe declared the incumbent and that the defendant and his agents be ejectedfrom the temple. The defendant, who filed answer claiming to be the law-ful incumbent of the temple, died after the trial commenced but before itwas concluded. At the instance of the plaintiff another monk who wasresiding in the temple was substituted by the District Judge on the basisthat any rights which the deceased may have had to the incumbencydevolved after the deceased’s death on the party substituted. The trial thenproceeded and judgment was given declaring the plaintiff to be the incum-bent and ordering the ejectment of the substituted defendant from thetemple. On appeal by the substituted defendant the Divisional Benchheld that the cause of action did not survive on the death of the originaldefendant and that the action had, therefore, abated. This decisionappears to have proceeded on the basis that as the action was one fordeclaration of a status the maxim actio personalis moritur cum personaapplied to the case.
I do not think, however, that it is possible to take a similar view inregard to D. C. Colombo Case No. 2882. The averments and the prayerin the plaint in that case (the issues on which the trial proceeded are notbefore me) make it clear that tbe action was one in which the plaintiff,as trustee, sought to vindicate his legal title to the premises in suit. Ifthe averments are true the trustee was bound under section 13 ofthe Trusts Ordinance (Cap. 72) to maintain the action. There can be noquestion that on the death of a sole trustee who has filed such an actionthe right to sue on the cause of action would survive to his successor inthe office of trustee. By virtue of Section 113 (1) of the Trusts Ordinancethe title to the trust property would in such a case devolve on the successorwithout the need for any conveyance or vesting order. The continuationof a pending action in these circumstances appears to be specially providedfor in section 404 in Chapter XXV of the Civil Procedure Code.This section is substantially the same as Rule 22, order 10 of the IndianCivil Procedue Code. It was held in Thirumalai Pillai v. ArunachellaPadayachi 1 that where a trustee dies or retires and another is elected in hisplace the devolution of the trust estate on the new trustee is a devolutionof an interest within the meaning of rule 10. See also the local case ofSabapathipillai v. Vaithialingam2.
In my opinion, if the petitioner in Application No. 133 is the dulyappointed principal of the VidyodayaPirivena he would, under section 404of the Civil Procedure Code, be the proper person to continue the actionhad it been pending. It was held in Kidasekere Appuhamy v. Malluzoa 3that the words “ pending the action ” in section 404 mean during the
1 {1926) A. I. JR. Madras 540.
s {1926) 23 N. L. R. 246.
* {1938) 40 N. L. R. 107.
WEERASOORIYA, J.— Morontuduiee Sri Gnanemoara Dhammananda
Nayake Thera v. Baddegama Piyaratna Nayake Thera
281
progress of the action and before final decree. But although the provi-sions of that section may not be available to the petitioner for the pur-poses of getting himself substituted as a party in D. C. Colombo CaseNo. 2882, inasmuch as the decree in that case has already been entered,what we are concerned with now is whether the petitioner is the properperson to be substituted or entered on the record in place of the deceasedplaintiff under Rule 26 of the rules in the schedule to The Appeals (PrivyCouncil) Ordinance. The reason for this rule is stated by Bentwich asfollows in The Practice of the Privy Council in Judicial Matters : 1
The Privy Council must have proper parties before it or its decreeswill not be binding. Where, therefore, it becomes known before thelodging of the petition at the Council Office that either a party appellantor respondent has died since the date of the order finally giving leaveto appeal to the Sovereign in Council, an Order of Revivor must beobtained before the petition of appeal can be lodged. Under theJudicial Committee Rules it is for the Court below to determine who arethe right parties ”.
No attempt has been made by the 1st defendant to contradict thestatement in the affidavit of the petitioner that he is the duly appointedprincipal of the Vidyodaya Pirivena. Although Mr. Jayewardenesuggested that the matter be referred under Rule 13 of the rules in theAppellate Procedure (Privy Council) Order, 1921, to the District Court ofColombo for inquiry and report as to who, if any, is the proper person tobe substituted in place of the deceased plaintiff, I do not think that in thecircumstances it is necessary to do so. In my opinion, the petitioner isentitled to a certificate under Rule 26 of the rules in the schedule to TheAppeals (Privy Council) Ordinance that he is the proper person to be sub-stituted or entered on the record in place of the deceased plaintiff, andI therefore order that such a certificate issue in his favour. The 1stdefendant will pay the petitioner the costs of this application.
In view of the above order there appears to be no need to make anyorder in the other two applications (Nos. S3 and 124). I leave it open,however, to the 1st defendant, if he is so advised, to make an applicationbased on proper material under Rule 18 of the rules in the Appellate Pro-cedure (Privy Council) Order, 1921, for such extension of time as may benecessary for the prints of the record to be delivered to the Registrar.
Sansoni, J.—I agree.
Application No. 133 aUoived.No order in applications Nos. 83 and 124.
1 9th Edition 195.