088-NLR-NLR-V-61-RAJAMMAL-et-al-Appellants-and-S.-BALASUBRAMANIYAM-KURUKAL-Respondent.pdf
Raj animal v. Balasubramaniyam Kurukal
343
1957 Present; H. N. G. Fernando, J.f and T. S. Fernando, J.RAJAMMAL etal., Appellants, and S. BALASIJBRAMANIYAMKURUKAL, RespondentS. C. (Inly.) 142—D. G. Ghilaw, 13579
Religious trust—Actio rei vindieatio instituted by trustee—Vesting order—Right ojplaintiff to claim »> by amending plaint—-Right to claim vesting order in respectoj part only oj Ike trust property—Trusts Ordinance, ss. 102,112 (J).
Where a plaintiff claiming to be the trustee and manager of a Hindu, templeand its temporalities institutes an action for declaration of title to certainproperty on the basis that it belongs to the temple, he cannot, in anticipationof his failure to establish his title to the temple and its temporalities, seek byan amendment of the plaint a vesting order under section 112 (1) (i) of theTrusts Ordinance so as to cure the defects in his action as instituted.
3 4A
TT N. G. 3TERN.AJNT>0, J.—Rajammal v. Satoaubramaniyam Kttrukcil
Where it is uncertain in whom the title to the property alleged to he subjectto a trust is vested, a vesting order under section 112 of the Trusts Ordinancewill not ordinarily be made in respect of only a part or portion of such property.
Plaintiff instituted action for declaration of title to a house and for theejectment of the defendants therefrom. He alleged in the plaint that the housewas the property of a temple and that he was the trustee and manager of thetemple and its temporalities. Subsequently he sought to amend the plaintalleging that the temple and its temporalities constituted a charitable trustand that there was uncertainty as to the person in whom the trust propertywas vested, and claiming, in addition to the original relief, a vesting orderunder section 112 of the Trusts Ordinance vesting the house in dispute in him.
Held, that the plaintiff was not entitled to amend his plaint claiming a vestingorder in terms of section 112 of the Trusts Ordinance.
Appeal from an order of the District Court, Chilaw.
S. V. Per era, Q.O. 'with G. Ranganathan, for the defendants-appellants..
S. J. V. Ckelvanayaham, Q.C., with G. Ghellappah, for the plaintiff-respondent.
Cur. adv. vult.
January 22, 1957. H. N. G. Feekanbo, J.—
The plaintiff, who is the respondeat to this appeal, filed an action inMay 1951 for a declaration that a house alleged to be occupied by theappellants is the property of the Munnasaram Temple and for the eject-ment of the appellants from the house. The plaintiff based his right toinstitute the action upon his allegations in the plaint that he was theTrustee and Manager of the Temple and its Temporalities, that he hadpermitted the defendants in or about August 1946 to reside in the house,and that such permission had been revoked by notice in September 1950.After an amendment of the plaint which is not material for present pur-poses, the defendants filed answer in which they denied the first two ofthese allegations and thus also denied the right of the plaintiff to maintainthe action; they did not however deny that the house in question was theproperty of the Temple, but claimed a right to reside there upon groundswhich again are not at this stage material. Issues were framed inApril 1954, the more important of which are those designed to test theplaintiff's claim that he is the lawful Manager and Trustee of the Templeand its Temporalities. Two dates of trial were thereafter fixed, but notrial was held on those issues.
In October 1954, another application was made to amend the plaint,by the incorporation of provisions inter alia alleging that the Temple andits Temporalities constitute a charitable trust and that there is uncer-tainty as to the person in whom the trust property is vested, and claiming,in addition to the original relief, a vesting order vesting the house indispute in the plaintiff. The present appeal is against the order of theDistrict Judge allowing that amendment.
H. IN'. G. FERNANDO, J.—Itajommal v. Bolasubrarnaniyarn iTttruJectl346
It is clear that the plaintiff seeks by his amendment to invokethe jurisdiction conferred on the Court by section 112 of the TrustsOrdinance:—
“ 112 (1) In any of the folio-wing cases, namely—
(i) where it is uncertain in whom the title to any trust property isvested; or
(ii) where a trustee or any other person in whom the title to trustproperty is vested has been required in writing to transferthe property by or on behalf of a person entitled to require suchtransfer, and has wilfully refused or neglected to transfer theproperty for twenty eight days after the date of requirement,the Court may make an order (in this Ordinance called a * vestingorder*) vesting the property in any such person in any suchmanner or to any such extent as the Court may direct.
(2) A vesting order under any provision of this Ordinance shallhave the same effect as if the trustee or other person in whom thetrust property was vested had executed a transfer to the effect intendedby the order.”
The principal objections which have been urged before us againstthe correctness of the order appealed against are :—
that the plaintiff cannot through an amendment of his plaint seek
a vesting order in order to establish his right to eject the defen-dants, and may only establish that right by proving the titleas Trustee which he had originally claimed ;
that section 112 is not available, particularly when invoked by
way of an amendment, in order to secure a vesting order inrespect of a part or portion only of the trust property, if thereis in fact uncertainty as to the person in whom the whole ofthe trust property, i.e. the Temple and its Temporalities, isvested.
In the case of Tncwnotherampillai v. Hamalingam1, the manager of aHindu temple had instituted an action for a declaration that the 1stdefendant was not entitled to a right of way over the courtyard of thetemple. The defendant pleaded as a matter of law that the plaintiffcould not maintain his aetion as the temple and its properties were notvested in him. One of the issues raised was whether the plaintiff couldmaintain the action without obtaining a vesting order under section112 of the Trusts Ordinance. After trial the District judge made orderupholding the contention that the action was not maintainable, presu-mably on the basis that the plaintiff had not proved bis title to thetrust property; the Judge decided, however, to give the plaintiff anopportunity to obtain a vesting order under the Trusts Ordinanceand allowed the plaintiff time Until a specified date to take steps undersection 112. In an appeal against this latter order of the Judge, this
1 {1932) 34 N. L. R. 359.
846 H. N. 6. 3PERNANDO, J.—Sajafivmal v. Bala&ubramaniyam Kurukal
. K
Court held that the order was bad and dismissed the action. The follow-ing observations of Garvin, J. are pertinent to the question we now have$q decide. ‘‘ It is a Well established principle of law that the rights ofparties must be determined as at the date of the action. Clearly, at thedate of this action the plaintiff had no right to maintain it. There isnothing in the Trusts Ordinance or in any other provision of any law thatI am aware of which states that a person may bring such an action inrespect of temple property and at some subsequent date clothe himselfwith title to the property by obtaining a vesting order and notwithstandingdefects of title at the time of the institution of the action is entitled toescape from the consequences of bringing an action at a time when hehad not the right to do so.” In effect that case decided that wherea plaintiff had instituted an action in reliance on his title as trustee totemple property, it would not be open to him in that action to claim histitle as trustee upon the strength of a vesting order obtained in otherproceedings, but subsequently to the time of his institution of the action.The only difference in the present case is that the plaintiff seeks to obtaina vesting order, not in other proceedings, but in the action already insti-tuted by him. Having regard to the terms of Garvin, J.’s judgment,he would not, I think, have regarded the distinction as a subst antialone.
In the subsequent case Tambiah v. Kasvpillai 1 the plaintiff claimed inhis plaint that he was the lawful hereditary trustee and manager of atemple and its temporalities and he sued for a declaration as such and forthe ejectment of the defendant. In addition (as stated in the judgmentof ELeuneman, J.) “ As ancillary relief, the plaintiff claimed for himselfa vesting order in regard to the temple and its temporalities, on theground that it was not possible to ascertain the successors in title of thevarious properties which constituted the temporalities of the trust, andit was uncertain in whom the legal title thereto was vested.” For presentpurposes, only one of the preliminary issues raised in that case is ofrelevance, namely, “ (3) can the plaintiff maintain this action withoutobtaining a vesting order ?On examination of the plaint, Kjeuneman, J.
decided that two distinct elements were revealed, one relating to thetemple and temple premises, the other relating to the temporalities. Asregards the temple and the temple premises, the plaintiff had allegedthat the title, as trustee, of the original founder had descended -to him. It would seem therefore that the claim for a vesting order,although made in respect both of the temple and of the temporalities,was made principally in order that the plaintiff may clothe himself witha right which he could in law assert in respect of the temporalities. Onthe facts, then, the position was that this Court ultimately held that aperson who could establish his title to temple property could in the sameaction obtain a vesting order .in respect both of the property and of thetemporalities, as well as an order for the ejectment of the defendant.The decision in the subsequent case of Arnbalavanar v, SomasunderaKuruhkal2 was not substantially different. It was there held that aperson who could prove that he was the hereditary trustee of a madam,
1 (1942) 42 N. L. B. 558.
a (1946) 48 N. M. B. 61.
H. N. G. FER5TANUO, J.—Hajammal v. Balasrtbramaniyam'-Kurukal
347
could in one action obtain a declaration of title as such, together -with avesting order in respect both of the madam and the other lands -whichwere temporalities of the madam, as well as an order for ejectment.
In the two cases to which I have just referred no reference was madein the judgments to the earlier decision of Garvin, J. But in any eventit seems to us that the earlier decision can be clearly distinguished fromthe subsequent ones. Garvin, J. was not concerned with a case wherethe plaintiff could establish his title to temple property and sought torely on that title as part of the evidence upon which to base a claimfor a vesting order in respect of the temporalities. He was concernedrather with the case where a plaintiff having first averred a claim of titleto a temple as trustee, was to be allowed to rely for the success of hisaction upon a vesting order subsequently obtained. The facts of thepresent case are even further removed from those reported in the forty"second and forty eighth volumes of the New Law Reports ; here the plain-tiff seeks, in anticipation of his failure to establish a title both to the-temple and to the temporalities, to claim by an amendment a vestingorder which might cure the defects in his action as instituted.
Counsel for the respondent has argued upon the authority of Tambiahv. KasipiUai and AmbcUavanar v. Somasundera Kurukkal that if it wasproper for the plaintiff in those cases to combine his claim of title withthe claim for a vesting order, then the present plaintiff should be entitledto place himself in the same position by means of the present amendmentto his plaint. One reason why this argument has to be rejected is thateven if the original plaint in the present action had combined the claimfor declaration of title with the claim for a vesting order, the plaintwould still have lacked an important characteristic of the plaints filed inthe cases on which counsel relies, namely, the characteristic that in thelater mentioned plaints the plaintiffs averred and expected to be able to-establish legal title to the temple premises, and claimed that having doneso they were entitled in the same action to obtain a vesting order inrespect of the temporalities on the ground of uncertainty referred to insection 112. The other ground upon which I think the argument must-be rejected will appear in my discussion of the second objection to the*order now appealed from.
In the plaint now under consideration, even if amended in the mannerspecified in the amendment, the plaintiff’s claim is only for a declarationthat the house in dispute, is the property of the temple and for a vestingorder in respect of that house. There is no claim that the plaintiff is thetrustee of the temple itself or for a vesting order in respect of the templeand all its temporalities, I do not think that-section 112 of the TrustsOrdinance is applicable to a case where a plaintiff seeks a vesting orderin respect only of some isolated property which is alleged to be subjectto a trust without at the same time seeking to secure a vesting of all thetrust property the title to which is uncertain. It is at least undesirablethat a general power such as that conferred by section 112 should beinvoked by a person who does not take upon himself the burden ofestablishing his right to be vested with title as trustee to all the property-in respect of which the alleged uncertainty exists.
348
Ahraham Silva v. Chandratoimala
Section 102 of the Ordinance provides a salutary procedure wherebypersons interested in a religious trust can after fulfilling certain conditionsdesigned to give notice of their application, seek from the Court ordersvesting trust property in trustees, and other orders for the regulationof the trust. While therefore section 112 has been held to be applicablein the cases referred to in 42 and 48 3ST.L.E,., I do not think the facts ofthe present case would justify the exercise of the discretion which theCourt has under section 112 to make a vesting order. If it were opento a plaintiff in litigation against an individual over some minor matterto obtain a vesting order in respect of a part or portion of property allegedto be subject to a religious trust, there would be a real possiblity thatdifferent properties subject to the same trust would become vested indifferent persons—an absurdity which would not arise in eases similar tothe two upon which the respondent relies because there a vesting order tactsclaimed for all the trust properties. For these reasons the appellant’ssecond objection must also succeed.
We would therefore set aside the order of 25th May 1955 by which theDistrict Judge accepted the proposed amendment of the plaint, and remitthe case to the District Court for trial on the former pleadings and on theissues arising thereon. The plaintiff will pay to the defendants the costsof this appeal and of the proceedings consequent upon the application foramendment.
T. S. Feknjlndo, J.—I agree.
Order set aside .