038-NLR-NLR-V-70-S.-Y.-ISSADEEN-Appellant-and-M.-I.-M.-ATHEEK-and-others-Respondents.pdf
Isaadeen v. Atheek
159
1967Present: Sirimane, J., and Siva Supramaniam, J.S.Y. ISSADEEN, Appellant, and M. I. M. ATHEEKand others, Respondents
S. C. 87/65 (Inty.)—D. C. Matara, 7056
Muslim Mosques and Charitable Trusts or Wakf3 Act, No. 51 of 1956—Section39 (1) (2)—Inapplicability thereof to a proceeding in respect of an earlierdecree of Court resulting in a Muslim Charitable Trust—InterpretationOrdinance (Cap. 2), s. 6 (3) (c).
Where, after the Muslim Mosques and Charitable Trusts or Wakfs Act,No. 51 of 1956, came into force, an application is made to a Court to fill avacancy in the office of trustee in terms of a scheme of management drawnup and approved by that Court earlier under the repealed Muslim IntestateSuccession and Wakfs Act, No. 10 of 1931, in respect of a MuslimCharitable Trust, soction 6 (3) (c) of the Interpretation Ordinance renders itunnecessary to commence proceedings in a new action with a certificatefrom the Commissioner appointed under the new Act No. 51 of 1956. Sub-sections (I) and (2) of section 39 of the new Act were meant to apply to aproceeding relating to a Muslim Charitable Trust which has commenced whenthere has been no order or decree made by a Court earlier relatingto such a trust.
^A-PPEAL from an order of the District Court, Matara.
M.T. M. Sivardeen, for 1st respondent-appellant.
N.E. Weerasooria, Q.C., with N. E. Weerasooria (Junior), for petitioners-respondents and 2nd respondent-respondent.
Cur. adv. vult.
160
SIRIMANE, J.—Issadzen v. Atheek
June 11, 1967. Sirimane, J.—
A scheme for the management of a Muslim Charitable Trust hasbeen drawn up and approved by the Court in these proceedings in orabout March, 1933, under the Muslim Intestate Succession and WakfsAct, No. 10 of 1931, which has now been repealed.
This scheme has been amended, from time to time, and Counsel areagreed that the last of such amendments was in 1949.
The amended scheme appears in volume 4 of the record. By itsterms it appoints two trustees, one to represent the descendants of theson of the author of the trust and the other to represent the descendantsof his daughter. These two trustees were the 1st respondent and T. S. M.Ibrahim.
Ibrahim has died, and the present application was made to Courtby the petitioners (who are described by the learned District Judgeas “persons interested in the trust”) to fill the vacancy, by theappointment of the second defendant as co-trustee.
The learned District Judge allowed this application, and in this appealagainst that order it was urged that under the provisions of the newMuslim Mosques and Wakfs Act, No. 51 of 1956, it was incumbent onthe petitioners to commence proceedings in a new action with a certi-ficate from the Commissioner appointed under that Act. Our attentionwas drawn to section 39 (2) which provides that no action other thanone instituted by the Commissioner shall be entertained by the DistrictCourt unless the plaint is accompanied by a certificate under the handof the Commissioner that the action has been approved by the Board.Section 39 (1) enacts that, subject to the provisions of subsection 2, theCommissioner or any five persons interested in the trust may institutean action to obtain a decree for certain purposes, for example, for theappointment of trustees or the settlement of a scheme for the managementof a trust.
I am of the view that this section in the new Act was meant to applyto a proceeding relating to a Muslim Charitable Trust which has commencedwhen there has been no order or decree made by a Court earlier relatingto such a trust.
In this case, as pointed out by Counsel for the respondents to thisappeal, there is already a decree or order made on 8.10.49 approving acertain scheme.
Para. 11 of that scheme makes provision for the filling of vacanciesin the office of trustee when the need arises.
The present application by the petitioners is no more than anapplication to the Court to give effect to its decree adopting the schemeof 8.10.49.
The Highland Tea Go. of Ceylon Ltd. v. The National
Union of Workers
161
A somewhat similar application in these very proceedings had comeup in appeal before this Court on 3.2.1938 (S.C. 138). That, too, wasan application by certain petitioners for the appointment of two trusteesaccording to the scheme that was in force at that time. Objection hadbeen taken to that application on the ground that leave of Court, asrequired by section 16 (1) of the repealed Ordinance, No. 10 of 1931,had not been obtained before such application was made. The DistrictJudge overruled the objection. In appeal, Poyser, J. said : “ Thepetition of the 23rd July, 1936, can, in my opinion, be regarded as anapplication to the District Court by interested parties to give effect tothe order of the 18th of March, 1933, by filling vacancies among theTrustees which have occurred. ”
I think the learned District Judge was right in taking the view thatthe present application was one in a proceeding which was pendingand that the provisions of section 6 (3) (c) of the InterpretationOrdinance, Chapter 3, wo’ild apply.
The appeal is dismissed with costs.
Siva Supramaniam, J.—I agree.
Appeal dismissed.