046-NLR-NLR-V-69-R.-M.-M.-SHERIFF-Appellant-and-S.B.-B.-BEEBI-and-others-Respondents.pdf
SRI SKANDA RAJAH, J.—Sheriff v. Beebi
215
Present: Sri Skanda Rajah, J., and Siva Supramaniam, J.R.M. M. SHERIFF, Appellant, and S. B. B. BEEBI and others,
Respondents
S. C. 69/65—D. C. Ratnapura, 4806/L
Civil Procedure Code—Section 404—Action instituted by trustee of a mosque—Deathof plaintiff pending action—Right of succeeding trustee to be substituted asplaintiff—Muslim Mosques and Charitable Wakfs Act, No. SI of 1956.
Where, pending an action filed by the trustee of a mosque, the trustee dies,the person who is subsequently appointed trustee under the Muslim Mosquesand Charitable Wakfs Act, No. 51 of 1950, is entitled to be substituted in placeof the deceased plaintiff under section 404 of the Civil Procedure Code.
.A.PPEAL from a judgment of the District Court, Ratnapura.
S.Sharvananda, for substituted Plaintiff-Appellant.
C. Seneviratne, for Defendant-Respondent.
November 7, 1966. Sri Skanda Rajah, J.—
This action was filed by the trustee of a mosque. While the trialwas proceeding, he died. Thereafter, the present appellant was appointedtrustee under the Muslim Mosques and Charitable Wakfs Act, No. 51of 1956.
» (1909) 12 N. L. R. 74.
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SRI SKA NBA RAJAH, J.—Sheriff v. Bccbi
On 25.6.64 order was made to substitute him in place of the deceasedand to amend the caption accordingly. But later when the trial wasproceeding, objection was raised to his substitution and the learnedJudge held that Section 404 of the Civil Procedure Code had no applicationand dismissed the action. Section 404 of the Civil Procedure Code runsthus:—
“ In other cases of assignment, creation or devolution of any interestpending the action, the action may, with the leave of the Court,given either with the consent of all parties or after service of noticein writing upon them, and hearing their objections, if any, be continuedby or against the person to whom such interest has come, either inaddition to or in substitution for the person from whom it has passed,as the case may require.”
In our view, the trust property would vest in the newly appointedtrustee, namely, the substituted Plaintiff-Appellant. It can be regardedas devolution of interest pending the action. Our attention has beendrawn to two cases one of which is Pagnananda Thera v. Swmangala *.There it was held that, where a plaintiff who sues for declaration thathe is the lawful Viharadhipathi of the Vihara, and entitled to possess thetemporalities thereof, dies during the pendency of the action, a personwho can establish that under the Buddhist Ecclesiastical Law, he wouldbe the successor-in-title to the incumbency upon the assumption thatthe plaintiff himself had been the incumbent is entitled to substitutionunder Section 404 of the Civil Procedure Code.
In the case of Morontuduwe Sri Gnaneswara Dkarmananda NayahcThera v. Baddegama Piyaratne Nayake Thera2, the following passagewhich appears at page 280 correctly sets down the law :—
“ There can be no question that on the death of a sole trustee who hasfiled such an action, the right to sue on the cause of action wouldsurvive to his successor in the office of trustee.”
In our view, this appeal should be allowed. The appeal is allowedwith costs and the case sent back for re-trial. The substituted Plaintiff-Appellant will also have costs of the trial.
Siva Supkamaniam, J.—I agree.
Appeal allowed.
1 (1965) 68 N. L. R. 367.
* (1960) 63 N. L. R. 278.