037-NLR-NLR-V-18-RUSTOMJEE-et-al.-v.-KHAN-et-al.pdf
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1014.Present: Pereira -T. and De Sampayo A.J.
BUSTOMJEE et at. v. KHAN et ah79—D. C. Colombo, 595.
Ordinance No. 7of1871—Does itapplytopublic.trusts ?—Civil
Procedure Code, s'.639—Does it supersede the Ordinance (No. 7 of
1871) ?-Noti-Christian way swear.
Semble, perPerkika *T.—OrdinanceNo.7of1871applied not
only to privatebutto public trustsaswell.Inanycase section
639 of the Civil Procedure Code was not intended to supersede theOrdinance so far a* public charitable trusts were concerned.
TJndcr the Oaths Ordinance, 1890, it is open to a non-Christianwho believed in 'God to swear rather than affirm.
T
HE facts are set out in the judgment of the Acting DistrictJudge (T. F. Garvin, Esq.): —
This is a proceeding tinder the provisions of Ordinance No. 7 of 1871for the appointment of fresb trustees to have control over the Parsecburial ground in place of tbe first respondent, 1*. D. Khan; the petitioners,J.Bustomjce and «T. K.Hormusjee, further pray thattheybe appointed
trustees.
Under deed 1.171) dated April 10,1847. Byratnjee Suparjee and
Uowrasjee Eduljee acquired the premise* involved in. this case in trustfor the r members of the Parsec community upon the trust and for thepurposes to .be determined by the committee of superintendence.
Upon the death of Suparjee, and at the request of Cowrasjee Eduljee,who desired to relinquish his trust, it was resolved at a meeting of theParsee community that CoverjeeByramjecGuzder, NowrajicPallonjie
Kapadia. and Pestinjce Pinshaw Khan, the first respondent, should betrustees in his place.
In accordance with this resolution Cowrasjce Eduijcc, by deed 5,333dated November 26, 1885. transferred the premises to tbc three' personsabove named subject to similar trusts.
Coverjee Byramjec Grader andXowrajie Pallonjie Kapadiaare now
dead, and tbc sole trustee is P. D. Khan, the first respondent.
The. grounds upon which theinterventionof this Courtis sought
are—
(u) That the firstrespondent tendered his resignation, which was
accepted by the Parsec community;that at two meetings
held thereafter the first and second petitioners were electedas trustees, .and that the first respondent refused to transferthe trust property to them.j
(b) That the first respondenthas failedto render anaccount of
his trusteeship, has expended trust moneys without theauthorityofthe committee ofsuperintendence or ofthe
Parsee community, and has failed to attend to and preservethe burial ground at Kotahena, and has otherwise failed andneglected to perform his duties as trustee.^
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(c) That thefirst respondent is advanced in years,basleftthe
Colony, and is new residing at Bombay.
Mr. Jayawardene. on behalf of the respondent * took the preliminaryobjection that those allegations do not bring the application within thocontemplation ofsection 4 of Ordinance No.7 of. 1871,andthatthe
petitioners are accordingly not entitled to the relief claimed.
1914.
Rustomjtc v,Khan
Section 4 of Ordinance No. 7 of 1871 sets out the cases in which theintervention of this Court may be sought, and unless the petition can!«■ brought within one or other of the four sub-sections to that sectionit most fail.
The petitioners contend' that tbeir petition falls within sub-sections(1), (2), and (8) of section 4.
Il is contended for the respondents that sub-sectiou (l) does not apply,because the trust deed does contain adequate provision for the appoint-meatof anewtrustee. This contention isbasedupon the factthat
the habendum clause of deed 5,833 runs as follows:—"To have andto hold unto the said- P. IX Khan, C. B. Cfuzder, and P. Kapadia andthe survivor or survivors of them aud bis heirs, executors, administra-tors, and assigns.'4
V. IX Khan being the surviving trustee, it is argued, is entitled toappoint trustees in. his place.
It is quite dear ibat this deed docs not in express terms give thetrustees,or anyofvheiua power toappoint trusteesin their place.The
Court is invited to infer such a power from the fact that the word" assigns " appears in the habendum clause.
There is ample authority in English law for the proposition that4 themere existence of the word ** assigns, ” as in this case, does not give a trusteea right to relieve himselffrom theburdenof thetmst by assignment
intervivos.Theca«»■ ’ ofTitletj o.Wolstenholmc 1isin point.The
clauserelied ouin thi*ease Isexactlysimilarinlanguage.Eveu
assuming that P. IX Khan had the right to assign by devise or bequestt<> take effect after his death, he clearly has no authority to make anassignment inter tu’eo*.
P. D. Khan having, us alleged, resigned his trust and' left * the Island,there is no adequate provision iu the deed for the appointment of newtrustees.I^amthereforeof opouionthat section -I(l» applie? tothe
facts of this case.
Moreover, it seems to me quite clear that the allegations in the petitionif true,bringthecasewell withinthe provisions of section 4(3). In
paragraph 6of thepetitionit isstated that thefirst respondent,who
U the solesurviving trustee,*' isnow advanced inyears,and hasleft
the Colony,and isresidinginBombay, and hasbecomeincapable of
acting assuch trustee." Thisallegation brings thepetitionwell
within the case '* where (he remaining trustee or trustees may beresident out' of the Colony "—.section 4 (3).
In view of the conclusions ai which I have arrived, it is unnecessaryto consider whether the allegations in the petitiou touchiug misconductamount to misconduct vvithiu the meaning of section 4 (2)'.
I have still to eunider the general objection to the procedure adoptedin thiscase,ouihcground thatbeing a publiccharitable trustthe
1 tim) 7 Br. 42).
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Att&temjse v.Khan
only remedy open to the petitioner is a proceeding under the provisionsof section, of theCivil Procedure Code. The Parseecommunity,
numerically speaking* is quite an * insignificant portion of the generalcommunity. The object of the mist is to provide a burial ground fortheir use, but there is nothing in the deed which create* an unqualifiedright in each member of the Parsec community to burial in tho«egrounds.’ The trusts and uses an* to be determined and regulated bythe committee of management. 1 am unable to say that such a tru«tis a public charitable trust within the contemplation of section of theCode.
I accordingly answer issue Xo. 1 in the affirmative, a ml direct that thecase be set down to be mentioned on June ii;2 next for the pnrpose offixing a date for the 'trial of the remaining issues.
Elliott and A. St. V. Jaijewardene, for the first respondent,,appellant.
Bawat K. C., for the petitioners, respondents.
Cur. adv. vult.
September 8, 1914. Pereira J.—
The petition presented to the District Court by the first and secondrespondents to this appeal does not mention the provision of thejaw under which it was presented, but presumably it was a petitionunder section 4 of Ordinance No. 7 of 1871 for the nominationof a “trustee to have control of the trust property described in thepetition.'*
At the very outset of the argument in appeal it was contended' that .the trust referred to was a trust created for a public charitablepurpose, and .that the only action that it was open .to the petitionersto take was action under section 639 of the Civil Procedure Code,one of the reasons urged being that Ordinance No. 7 of 1871 appliedto private and not to public trusts. As at present advised, I am notprepared to give .the Ordinance such a limited operation. No reasonfor doing so appears in the Ordinance itself. It was also argued that,in any case, so far ns regards a public charitable trust, section 639of the Code must be deemed to have superseded the Ordinance.I am not inclined .to think so. The scope of .the Ordinance is nomore than merely to appoint a trustee, t leaving him to assert hisrights ns such in competent courts of justice, and the necessity forproceeding under the Ordinance arises in the event, inter alia of thedeath of a trustee, or his incapability to act, or his having left theIsland, or of his being desirous of being relieved from the trust,whereas the proceeding under section 630 of the Civil ProcedureCode is a regular action, in which execution might issue, and it isnecessitated by a breach of the trust or the. direction of the Courtbeing required for the administration of the trust, and it has noconcern with the eventualities mentioned above. In view of theorder on this appeal, however, I shall not give a final decision on
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tbofe* q sfcions. hut $eave tb^m- open for further consideration ifneo «sai)
S le procedure adopted by the pai*ties on the petitioner's appli-cation was summary procedure under chapter XXIr. of theCode. That, I think. v/«> in order 1 >y reason of the provisions ofsection 3%, .
On .the petition tiled tfri District Judge made an interlocutoryorder in .terms of sub-set(b) of section 377 of the Civil ProcedureCode. The respondent filed two affidavits in terms of section 384.One of thetb affidavits the District Judge rejected, because thedeponent, a Pnrsce gentleman, and presumably . a Zoroostrian,preferred to swear instead of affirming. Whatever other reasonsthere may he for rejecting .this affidavit* the reason given by theDistrict Judge appeal’s to me to be untenable. He says:“ The
word 4 sworn ? would seem only to be appropriate to the case of anoa.th by a Christian. " I do not agree with him here. While the oldOrdinance, No. 3 of 1842, made it compulsory on witnesses whowere non-Christians to make affirmations, the new Ordinance (theOaths Ordinance. 1805) mad© it optional with .them to do so. – Theprimary provision of the new Ordinance is that all witnesses shallmake, oaths. It then enacts that a witness who. being a non-Christian, is a Buddhist, Hindu, or Muhammadan, or of some otherreligion according to which oaths are not of binding force, 44 may/*instead of making an oath, make an affirmation. To swear is nomore than .to assert, calling God to witness, or invoking His helpto the deponent in the matter in connection with which .the oath ietaken, and it is open to any person, be he Hindu. Muhammadanor Zoroastrism who believes in God to claim to be sworn (ratherthan to affirm) in such form and with such formalities as may beapproved by the Court. I need say no more on the District Judge'sorder on the affidavit, because be eventually framed issues, andfrom that fact it may be presumed that he thought that therespondent had placed sufficient material before him to justify theframing of issues. The first issue framed was:44 Does this appli-
cation come within the provisions of section 4 of Ordinance No. 7of 1871?" This issue appears to me to be somewhat out of order,because the issues to be framed under section 386 are issues of fact,and this issue is more an issue of law than of fact. However, this issuewas agreed to by all the parties, and the District Judge has notedthat he decides the issue on the footing that the averments in .thepetition and affidavits of the petitioner are true. He has answeredthe issue in the affirmative, and the petitioners' have appealed fromhis order, for fear, ijb is said, that unless they did so they mightbe held to be concluded by the decision on .the questions as to thetruth of the averments in the petition and affidavits of the peti-tioners- This is an erroneous notion altogether. In my opinionthe appeal is premature, and although the inclination of my mind is
1914.
Pkbkira J.
Rwtomjee
Khan
1914.
Pkrsiba J.
Jluatotnjee v.Khan
in favour of the order made by the District Judge. I think it wouldbe best not to give effect to that inclination, but let the whole casebe gone into before the points now raised are considered andfinally deoided.
I would dismiss the appeal with costs, and remit the case for ;tfinal decison alter adjudication on all the issues framed,
a
Dii Samiwo A.J—T. agree/
Appeal dismissed.