S. MURUGESOE et al , Appellants, and V. CHELLIAH et al , Respondent

116-NLR-NLR-V-57-S.-MURUGESOE-et-al-Appellants-and-V.-CHELLIAH-et-al-Respondent.pdf

3954 Present: Gunasekara, J., and H. N. G. Fernando, A.J.S. MURUGESOE et al., Appellants, and V. CHELLIAH- e/ of., Respondents
,5. C. 534—D. C. Point Pedro, 3,035
Chor liable trust—Construction of deed—Purchase of properly for a Hindu temple—
Legal position of the purchase Co-trustees—Survival of trust on death of a
co-trustee—Trusts Ordinance (Cap. 72), as. 5, C, 7S, S4, 107.
Where a transfer of immovable property contained a recital that the consi-deration was paid by the transferee “ for ” a specified Hindu temple—
Held, that the trajisferce must be taken to have purchased the property with'funds provided by, or held by him for, the religious charity represented by thotemple. The transferee, therefore, held the property as trustee, and, on hisdeath, the land devolved on his heirs subject to the same trust.
Held further, that section 78 of the Trusts Ordinance is applicable to charitabletrusts. On the death, therefore, of a co-trustee, the trust property passes to the-pt-her.co-trustees and not to tho heirs of the deceased trustee…
Fersaoto, A. J.—Tho words “ for the Temple ” were not merely precatorybut were sufficient to create a trust-.
J^^-PPEAL from a judgment of the District Court, Point Pedro.
If. V. Perera, Q.C., with II. Wanigatunga. for the 1st defendantappellant.
H. IV. Tambtah, with II. L. de Silva, for the 2nd defendant appellant.
N. E. Weera-sooria, Q.C., with E. R. S. R. Coomaraswamy, for theplaintiffs-respondent.■
Cur. adv. vidf.
September 14. 1954. Gunasekara, J.—
Tiiis is an appeal by the 1st and 2nd defendants in an action before theDistrict Court of Point Pedro from a decree declaring the two plaintiffsentitled to a l/16th share each of a piece of land, 3 roods 14*5 perches inextent, which had been conveyed by the Crown to one Vyramuttu Kanda-vanamon the Sth October, 1910. The question that arises on the appealis whether Kandavanam purchased it for himself, as alleged by the plain–tiffs, or in trust for a religious charity, as alleged by the defendants.
; Kandavanam died in 1914. The district judge holds that thereupon ai share of this property devolved on Kandavanam’s widow and the other.half on his two brothers (the 3rd defendant and one Velupillai) and twosisters. Velupillai died in 1920, and the learned judge holds that the£th share which Velupillai had inherited devolved on his sons, the twoplaintiffs. (An issue as to their legitimacy was decided, in their favour.and this finding was not canvassed in appeal.) The case for the 1st and
2nd defendants is that upon Kandavanam’s death the property passed!to his brothers subject to the trust alleged by these defendants, and uponVelupillai’s death the 3rd defendant beqarne the sole trustee and by two-deeds executed on the 26th August, 1940, conveyed a portion of the pro-perty to the 1st defendant and the rest to the 2nd defendant subject to the=same trust… .
The crown grant of 1910 recites that the consideration for the grant is a-sum ofKs. 27 “paid by Vyramuttu Kandavanam of Polikandy for Poli-kandy Kandasamy Temple ”, and the appellants rely on this recital toshow that Kandavanam bought the property in trust for the temple.The learned district judge takes the view that it is insufficient to indicateeither the beneficiaries or the purpose of the trust.
The learned judge points out that “ it is not possible to declare lands arethe property of the temple as we do not recognise the personality of reli-gious foundations But the personification of the temple in the state-ment that the price paid for the land was paid on behalf of the templedoes not purport to treat it as a juristic person : the figure of speech is-employed merely as a means of indicating the religious charity repre-sented by the temple. As Mr. Perera pointed out .in-the course of hisargument, it is one that the legislature itself has found it convenient to visefor a similar purpose : see the Buddhist Temporalities Ordinance (Cap.222) which speaks, for instance, of property belonging to a temple (sections.4, 26, 28, 29, 30, 32), tenants of a temple (section 14), property-appropriated to the use of a temple (section 20), offerings made for the useof a temple (ibid.), contracts made “in favour of any temple or of anyperson on its behalf” (section 22), ” persons who owe any money to anrtemple or to any person on its behalf ” (ibid.), moneys received by a trus-tee “ for or on behalf of a temple ” (section 25). In each of these ex-pressionsthe temple is personified without the attribution to it of a juristicpersonality, but with the implication of the existence of a trust .for thebenefit of those persons for whose benefit the place of worship has been.'established. When the property in question was conveyed to Kanda-vanam for a consideration that he purported to pay on behalf of thePolikandy Kandasamy Temple, he must be taken to have purchased it.with funds provided by, or held by him for, the religious charity repre-sented by the temple. Therefore the beneficiaries of the trust att-ac-hing-to the ownership of the property are the persons for whose benefit thetemple was founded and the purpose is that for which it was founded.
It was contended by Mr. Weerasooria that there is no evidence that thePolikandy Kandasamy Temple is a charitable trust. Learned counselfor the appellants drew our attention to some evidence, to the effect thatthe temple had a manager and that “ high festivals ” were celebratedthere, as evidence which showed that- the temple was (or represented) acharitable trust. This evidence may well have been regarded as being tooslender for the purpose if the parties had been at issue on the point. But-the proceedings at the trial appear to indicate that it was assumed that the-Polikandy Kandasamy Temple (which was apparently a well-known.,institution) represented a charitable trust. The answers of the 1st and2nd defendants averred that they held the land in question “ for and on.
behalf of the Polikandj- Kandasainy Temple, which is a charitable trust ”;but, while issues were framed as to whether it was “ the absolute property■of Vyramuttu Kandavanam or the property of-the Polikandy Kanda-samy Temple ”, and as to whether the plaintiffs could maintain the actionif it was held that the land “ belongs to the Kandasamy temple ”, therewas no issue as to whether the temple represented a charitable trust.It appears also to have been assumed in the argument of counsel for theplaintiffs at the trial that the temple represents a charitable trust. I•do not think that the question whether it does can be canvassed at this-stage..
The land in question, having been held by Kandavanam subject to atrust, devolved on his heirs subject to the same trust. It is immaterialwhether his heirs were his two brothers only or his brothers and sisters, for,in any event, by reason of the provisions of section 78 of the Trusts Ordi-nance (Cap. 72), upon the death of Velupillai the trust property passed tohis co-trustee or co-trustees and not to the plaintiffs.- There appears tobe no substance in a contention that was advanced on behalf of the plain- ’-tiffs at the trial that section 78 does not apply to charitable trusts.
I agree with my brother, whoso iudgment I have had the advantage of■reading, as to the order that should be made..
IH. AT. G. Fjkrxando, A.J.—
The two plaintiffs in this case, who claim to be the sons of one Vyra-muttu Velupillai, sought a declaration of title to a half-share of a certainland situated at Polikandy, basing their action upon the following-■averments :—•
(a) the land in question was conveyed by a Crown Grant (PI of 1910)to one Vyramuttu Kandavanam ;
Kandavanam died intestate in 1914, leaving a widow, but nochildren, so that upon his death a half-share of the land becameher property, and the remaining half-share devolved on Kanda-vanam’s two brothers, namely the plaintiff’s father Velupillaiand the 3rd defendant Kathiritamby ;
'(c) the latter half-share was included in the inventory filed for .thepurposes of the administration of Kandavanam’s estate andwas subsequently conveyed (P3 of 1915) by the Administrator(3rd defendant) jointly to himself and Velupillai ;
{</) on Velupillai’s death intestate his share devolved on his two sons(the plaintiffs), to the exclusion of his daughters who had beenseparately dowered. (It- will be seen.that even on this footing. the two plaintiffs are jointly entitled only to a £ share which was. all that devolved on their father Velupillai).. ..
The learned District Judge has found the plaintiffs to be entitled each"to a l/16th share, presumably upon the basis that they have notestablished their claim to exclude the right of their sisters to shares inVelupillai’s property.
-The only question -which has been raised at the argument in appealis one of law, namely whether the land conveyed to Kahdavanam by P-1was held by him subject to a trust. Tliis contention was put forward on.behalf of the 1st and 2nd defendants, but was rejected by the learnedJudge….
• The consideration for the Crown Grant PI (as stated therein) was-twenty-seven rupees “ paid by Vyramuttu Kandavanam of Polikandyfor Polikandy Kandasamy Temple ”, but-, apart from this recital,there was no evidence of the constitution of a trust or of the terms or-conditions of the alleged trust. The only other relevant evidence as toKandavanam’s intention was.that of one Chelliahpillai (now deceased)who had given evidence in earlier proceedings in this action which weresubsequent^' set aside on appeal to this Court. He had been the Managei-.of the Polikandy Kandasamy Temple and stated that Kandavanam hadpurchased the land “ to develop it so as to make use of the income fordefraying the expenses for reading of puranas at the Temple This-object was apparently not carried out during Kandavanam’s lifetime andfor a considerable period thereafter for the reason that the land was not-planted and produced no income until quite recently..
It is relevant at. this stage to refer to the title which the 1st and 2nddefendants have claimed. Their case is that the transfer P3 of 1915 byKathiritamby to himself and Velupillai of a half-share of the land wasinvalid in so far as it purported to convey the share free of the trust-and that, upon Kandavanam’s death in 1914 the land vested in his heirs,,i.e., his four brothers and sisters, subjet to the trust upon which it had.been previously held by Kandavanam, and that in 1940, Kathiritambywas the sole- surviving trustee. In that year, Kathiritamby executedtransfers of the land (in divided portions) to the 1st and 2nd defendantsrespectively, stating that he was unable to develop the land and renderit productive and expressing his confidence that it would be developedby the transferees. The latter have both given evidence to the effectthat they are possessing the land, not on their own account, but on behalfof the Temple, and the learned Judge has accepted their evidence that thecoconut plantations now on the land were made by them. The 3rddefendant filed one answer fully acknowledging the existence of the trust,but subsequently filed answer admitting the plaintiff’s averments while-yct asking for a dismissal of their action : he took no further part in thecase.
The question whether a trust was created by PI has to be determinedby reference to S. 5& 6 of the Trusts Ordinance read together with S. 107.The document in this case being a Crown Grant in favour of Kanda vanamand not an instrument executed by Kandavanam docs not stric tly fulfilthe requirements of S. 5, but tliis defect can be remedied under the provi-sions of S. 107 which render evidence of the formal constitution of thetrust unnecessary in a case where property is alleged to be the subject of acharitable trust. The recital in PI that consideration was paid ” for thePolikandy Kandasamy Temple ” was obviously one inserted into theCrown Grant at the direction or request of Kandavanam himself,-and if"their inclusion can be held to constitute a declaration of a charitable trustthere would be every reason to have recourse to the provisions of S. 107-
S. 6 of the Trusts Ordinance is no more than a statutory reproduction ofthe principles, of English Law as to the requisites necessary-for the crea-tion of a'trust: indeed the language is much the same as that employedin the English text books, (Underhill, Law of Trustsand Trustees, 9thEdition, p. 17).
– – Postponing for the present a consideration of the question whether PIindicates with reasonable certainty an intention on Kandavanam’s partto create a trust, but assuming that there was such an intention, the otherrequirements of S. 6 are undoubtedly satisfied. If the intention wasto create a trust in favour of the Temple, there has been a sufficient indi-cation of the purpose, i.e., that the property was to be applied for the bene-fit of the Temple. Underhill (at pp. 22 & 23) refers to numerous Englishcases where it has been held that directions to a legatee to apply theproperty for “ religious purposes ”, “ charitable purposes ”, or “ religiousand charitable purposes ” constitute a sufficient indication of the purposeof the trust-. The fact that no particular ceremonies, festivals or heads ofexpenditure are indicated in PI is not material and the purpose must beconstrued to cover all purposes properly connected -with the Temple.
There is also a sufficient indication of the beneficiaries, since it is clearthat any trust for the benefit of a temple is in realitjr for the benefit ofthe worshippers in that temple who will, if necessary, be entitled to availthemselves of the remedies provided for beneficiaries in Chapter 10 ofthe Trusts Ordinance. As for the last requirement in S. 6, it is unnecessaryto cite authority for the proposition that the person in whose nameproperty is bought may himself be trustee.
There remains then the question of Kandavanam’s intention to createthe trust. It is necessary first to distinguish an intention to create atrust from mere expressions of desire or hope and precatory words. Themore modern view upon language of the latter description is stated byUnderhill (p. 27) as follows :—“ If a gift in terms absolute is accompaniedby a desire, wish, recommendation, hope, or expression of confidence thatthe donee will use it in a certain way, no trust to that effect will "attach toit, unless, on the will as a whole, the court comes to the conclusion thata trust was intended ”. For instance where a gift of property containedthe words “ and it is my desire that she allows to A. G. an annuity of £25during her life ”, it was held that the property vas not subject to a trust,fie Diggels1; and again Where a testatrix gave legacies to two niecesadding " I wish them to bequeath the same equally between the familiesof O and P ”, it was held that there was no trust hi favour of the families.
Me Hamilton-. In the case of ArumugamPillaiv. Velupillai Periyalamby 3the deed in question transferred a land " by way of donation ” and onaccount of “ natural affection ” for the donee, who was entitled by itsterms to “ take the rents and profits of the land ”. There was a "conditionalso that the donee should perform a certain “ poojah ” as also a certainfestival in the Temple standing on the land, but Wijeyewardene J.- was.Un-able ,tq. find, any evidence as to whether or not the performance of thestated 'ceremonies would involve expenditure,’ nor. was the donee .en-joined to utilise any part’ of the income for the purpose of those ceremonies.
1>(1S3S) 3o ' Ch. Div. 253.- ' -1 (1S95) 2 Ch. Div. 370.
—.- -’ *(1045) 40 N; L R. 241.
• He held that the-conditions were insufficient to create a trust, being pre-sumably more in-dhe nature of a pious desire bn the part of the donors^than an expression of an intention to impose an obligation annexed toownership.;
Upon a consideration of the full implication of the recital in Pi, it• cannot I think be said that the language constitutes a mere expressionof desire. The words such as “for the Polikandy Kandasamy Temple ”would rarely if ever be inserted in a Crown Grant except with some specificobject, and they are in my opinion capable only of one of two construc-tions, either that the money was money actually belonging to the Templein tire sense that it formed part of the Temple funds, or that it- was mone3fthat Ka'ndavanam decided to gift to the Temple. Accordingly the moneyat'the moment of its delivery to the Government as consideration for thegrant was actually Temple money or money held in trust by Kandavanamfor the benefit of tire Temple. In the one case then, the transfer by aCrown Grant to Kandavanam was for a consideration paid or provided onbehalf of the Temple, and Kandavanam would irr terms of S. 84 of theTrusts Ordinance have held the property for the benefit of the Temple ;in the latter case Kandavanam's declaration that he was paying his money“ for the Temple ’.*• was a sufficient indication of his intention to create'atrust over' the money in his hands and over the property into which themoney was converted. It has to be borne in mind in construing PI that“ a much greater latitude of expression is allowed in gifts to charity thanin gifts to individuals, and that a gift to charity will never fail for un-certainty ” (Leivin on Trusts, loth Edition p. 425).■
The learned District Judge appears to have experienced some diffi-culty in the face of decisions of this Court to the effect that a Temple isnot a juristic person and is therefore incapable of holding property. Butany difficulty arising thereby is complete^ resolved by the Law of Trusts.In the case of Karthigasu Ambalavaner v. Subramaniar Kathiravelu ,Bertram C.J. said “ When a person who is the owner of property purportsto transfer it to aTemple, the effect of his so doing is to constitute himselfa trustee of the Temple. The document of dedication is in fact a decla-ration of trust and the dominium remains with the dedicator and passeson his death to his heirs subject- to the trust ”. Por the reasons statedabove, I am of opinion that Kandavanam held the land purchased on PIsubject to a trust for the benefit of the worshippers at the PolikandyKandasamy Temple. Since no provision was made either by PI or byany subsequent instrument, executed by Kandavanam for the devolutionof the trusteeship, the property would devolve on Kandavanam’s heirswho would continue to hold it subject to the same trust. On the evidencein this case, these heirs were either Kandavanam’s two brothers (Velu-pillai and Kathiritamby), or those brothers together with their two sisters.But in any event, by 1940 Kathiritambi' was by virtue of S. 7S of theTrusts Ordinance the sole surviving trustee. In the absence of expressprovision in that behalf, Velupillai’s heirs had no right to the property,whether’ aS trustees or otherwise, and accordingly- the plaintiffs hadtherefore no right now to maintain this action.
Iii this connection Mr. Weerasooria argued that S. 78 has no appli-cation In the case of a charitable trust, because matters relating to charit-able trusts fall, he said, to bo decided solely by the provisions of Chapter10 of the Trusts Ordinance, and cannot be determined by reference to:thoso provisions of the Ordinance applicable to trusts simplicitcr. I.see no substance in this argument. Its consequence if upheld would bethat all matters relating to powers, duties and disabilities of trustees,successions to t rusteeships, ext inction of trusts, rights of beneficiaries, etc.,which are in cases of ordinary trusts dealt with by sections 11-98 of the•Ordinance, can in the case of charitable trusts be determined only by meansof special recourse to a District Court. The correct view, I think, is thatall the provisions of the Ordinance other than Chapter 10, apply generallyin relation to all trusts, and that Chapter 10 merely contains special.additional provisions applicable to charitable trusts only.
Mr. Weerasooria also contended that the provisions of S. 107 are notavailable in this case on the ground that in the absence of evidence thatthe Temple in question was open to worship by the public, a trust in its •favour is not a charitable trust within the meaning of S. 99 of the Ordinance.The only evidence on record is that “ the high festival is celebrated inMay or June ”, and “ the * Kanthasiddy festival * in November ”, and inaddition there is an office of Manager of this Temple. These two items ofevidence permit of the inference that the Temple is open for worship, atleast by a section of the Hindu public in that area. Moreover, therewas no evidence to the effect that the Temple is situated on land whichbelonged to Kandavanam or his heirs, and Counsel for the respondents atthe trial made no suggestion that the Temple was not one open to publicworship. I think therefore that'the allegation by the defendants that thetrust in question was a charitable trust is sound, and that accordinglyresort may properly be had to the provisions of S. 107 to hold that a trust•exists despite the absence of evidence of its formal constitution.
The appeal must be allowed and the plaintiff’s action dismissed. Theplaintiffs must pay the costs in the original Court to the three defendants,and the costs of appeal to the 1st and 2nd defendants.
Appeal allowed.
-O'