048-NLR-NLR-V-66-N.S.S.-CHELLIAH-MUHANDIRAM-and-others-Appellants-and-K.-P.-V.-V.-ETHIRMANASIN.pdf
HERAT, J.—Chettiah Mukandiram v. JEthirmanasingham
209
1963Present: Herat, J., and Abeyesundere, J.N. S. S. CHELLIAH MUHANDTRAM and others, Appellants,and K. P. V. V. ETHIRMANASINGHAM, Respondent
S. C. 362160—D. G. Batticaloa, 1163/L
Evidence—Grains Tax Register—Relevancy of entries therein.
Entries in a Grains Tax Register are relevant and admissible evidence on
the question of title to a land.
Appeal from a judgment of the District Court, Batticaloa.
H. V. Perera, Q.G., with G. Ranganathan and Miss Suriya Wickrema-singhe, for Defendants-Appellants.
M. Tiruchelvam, Q.G., with J. N. David and D. E. V. Dissanayake,for Plaintiff-Respondent.
June 26, 1963. Herat, J.—
The plaintiff sues the defendants for declaration cf title to an extent ofland which is 22 acres, a land forming the subject matter of this action,which consists of paddy fields. The defendants, who are appellants inthe case, are Trustees of a Hindu Kovil in the Batticaloa District andclaim title to this land as trust property of the said Kovil.
The plaintiff-respondent alleges that the original owner was one Veema-pody Udayar from whose descendants he purports to trace title. Theplaintiff’s immediate source of title is a deed of gift, marked P5, from hiswife and brother-in-law. There is no grant of any sort produced in favourof the Udayar, but the plaintiff has produced his document P9a, ausufructuary mortgage bond of 1896 granted by the said Udayar to one-Kanapathipillai, and also a usufructuary mortgage bond PI of 1898granted by the same Udayar to the same Kanapathipillai. These twomortgage bonds relate to the land in dispute. The plaintiff-respondentasserts that the land has been in the possession of the usufructuary mort-gagees, on the usufructuary bonds or in the possession of the assigneesfrom those usufructuary mortgagees. The plaintiff-respondent alsoasserts that the possession of the usufructuary mortgagees or theirassignees enures to the benefit of the mortgagor the Udayar and hissuccessors in title including the plaintiff-respondent himself and therebypleads prescriptive possession and prescriptive title.
On the other hand the case for the defendants-appellants is that theUdayar referred to above was the Trustee at one time of the Kovil inquestion and that he possessed the land in dispute as Trustee of the saidKovil. Their case is that the said Udayar executed the usufructuarymortgage bonds P9a of 1896 and PI of 1898 in his capacity as Trustee
210
HERAT, J.—Chelliah Muhandiram v. Ethirmanasingham
of the Kovil in order to raise funds for the benefit of the Kovil and thattherefore the possession of the said Udayar through his usufructuarymortgagees and their assignees should benefit the charitable trust which isthe Kovil and enure to the benefit of the Trustees of that Kovil.
The important question to decide therefore is in what character did theUdayar possess or hold the said land? Did he hold it beneficially forhimself or as beneficial owner or did he hold it and possess it as Trusteefor a charitable trust, namely, the Kovil ?
In our view this question can be decided by considering the documentswhich have been produced in this case by both sides. Let us first considerthe usufructuary mortgage bond P9a of 1896. This bond contains therecital that the money borrowed on it has been raised “ For meeting theexpenses of effecting repairs to and renovating the Sithira VelauthaswamyTemple of Tirukovil.” The bond also describes the property as “ whichis registered in the Registration Book No. B 202 Batticaloa and which isbeing possessed by me.” When we turn to the second usufructuarymortgage PI of 1898 which, as I said earlier, is by the same Udayar infavour of the same mortgagee Kanapathipillai it is stated that the purposeof the bond is to pay off the earlier mortgage P9a and “ Further for thepurpose of expending for the Sithira Velauthaswamy Temple of Thiru-kovil.” The description of the land mortgaged is given as in P9a.
The defendants-appellants have produced an extract of the registrationbook relating to the Grains Tax Register which document is referred toin the usufructuary mortgage bonds as registration book bearing No. B 202of Batticaloa. This extract is marked Dl. Now this extract has acolumn requiring the description of the owner and according to theGrains Tax Ordinance it has to be kept in the English language with each•English word translated into the vernacular tongue most prevalent inthe particular district, in this case Tamil. In Dl under the column“Designated owner ” in English language we find the entry giving the nameof the Udayar in question followed by words “ Manager of and in the nameof the particular Kovil.” This is followed by an entry in Tamil which,according to the expert who gave evidence in the case on behalf of thedefendants-appellants, reads as follows “ For and on behalf of ThirukovilManager ” followed by the name of the Udayar in question.
It has been held by the late Mr. Justice A. St. V. Jayewardene in27 N. L.R. at page 212 that entries in a Grains Tax Register are relevantand admissible evidence on the question of title to a land.
We have also to consider two other documents, namely D2 and D3.D2 of 1930 is a secondary usufructuary mortgage bond of this land grantedby 1st defendant-appellant as Trustee of the Kovil in question in favourof the same mortgagee who was the mortgagee under PI and P9a, and D2recites as follows “ And whereas the said temple has no funds to meet thesaid expenses ”, meaning thereby that the money was raised for thepurposes of the Kovil in question. The other document is D3 of 1938
Aladin v. Sub-Inspector of Police, Ganemtdla
211
which is also an usufructuary mortgage by the 1st defendant-appellantin respect of an extent of eight acres out of the land in dispute and infavour of two persons named as Nagamuttu and Selliah. This containsthe recital that the land in dispute “ was in the possession of my uncleN. S. Veemapody Udayar as Manager and Trustee. ”
We think that these documents, all taken together, create strong-evidence from which one is entitled to draw an inference that the Udayar' held the property in question as Trustee of the said Kovil and not asbeneficiary. We rely particularly on the contents in the extractfrom the Grains Tax Register and the connected recitals in the twobonds P9a and PI in coming to this conclusion and we are of opinion,with respect, that the learned District Judge came to a wrong conclusionwhen he held that the Udayar was the beneficiary owner.
We therefore set aside the judgment of the learned District Judge anddismiss the plaintiff-respondent’s action. Defendants-appeJlants will beentitled to costs of the appeal in this Court as well as costs in the Courtof first instance.
Abeyesundeue, J.—I agree.
Appeal allowed.