021-NLR-NLR-V-25-SATHASIVAM-v.-VYTIANATHAN-CHETTY.pdf
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Present: De Sampayo A.C.J. and Schneider J.SATHASIVAM v. VYTIANATHAN CHETTY.
451—D. C. Colombo, 2,002.
Charitable tiust—Hindu temple—Action to remove trustees—Who arepersons interested ?—Is proof of specific acts of misconduct neces-sary ?—Duly appointed trustees appointing other persons, agents,and attorneys to manage temple—Abandonment of trust.
In an action for the removal of trustees (in respect of a chari-table trust), it is not necessary to prove specific acts of miscon-duct on the part of the trustees ; it would be sufficient if they areshown to have neglected their duties as trustees, and the Courtis satisfied that they are persons who, under the circumstances,are unfit to continue to act in that capacity.
Where trustees appointed by Court appointed by deed otherpersons as the attorneys and agents to manage and transact allmatters relating to or concerning the execution of a charitabletrust, &c., the Court held that it amounted to an abandonment ofthe trust.
T^HE facts are set out in the judgment.
Elliott, K.C. (with him Hayley and Nadarajah), for appellant.
H. J. C. Pereira, K.C. (with him Keuneman and Rajaralnam),for the respondents.
May 29,1923. De Sampayo A.C.J.—
This is an action for the removal of the defendants from the officeof trustees of the Hindu temple, known as Selva Winayaga Moortie,situated at Captain’s Garden, Colombo, and for the appointmentof new trustees in their stead. The action is brought in pursuanceof the provisions of section 102 (1) of the Trusts Ordinance, 1917,which enables any five persons interested in any place of worship or.in the performance of the worship or service thereof to institute anaction such as this. Sub-section 2 defines the expression “ personinterested,” so as to include a person 'who is connected with thetrust by family or hereditary interests, or who for a period of notless than twelve months has been in the habit of attending at theperformance of the worship or services of the place. The originalfounder of the temple was one Joewen Poodappen. The first and
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1923.
De SampayoA,e.j.
Sathasivamt». Vytia-nathanCketty
second plaintiffs were married to t*wo direct descendants of Joewen
Poodappen, and the third, fourth, and fifth plaintiffs are themselves
direct descendants of that man. It has also been proved that theplaintiffs have been worshippers at this temple for much over therequired number of years. In these circumstances, I think, theDistrict Judge has rightly decided that the plaintiffs are “ personsinterested” within the meaning of the Ordinance, and are qualifiedto institute this action.
The main question is whether sufficient reasons have been shownfor removing the defendants and appointing new trustees. I thinkthat for the purposes of the Ordinance it is not necessary to provespecific acts of misconduct on the part of the trustees, but that itwould be sufficient if they are shown to have neglected their dutiesas trustees, and the Court is satisfied that they are persons who,under the circumstances, are unfit to continue to act in that capacity.In my opinion both specific acts and grossly negligent conduct havebeen proved in this case.
In 1913 the first defendant and one Muttiah Pulle, together withthree others, were appointed as, trustees of whom the first defendantis the sole survivor. In December, 1918, the first defendant pur-ported by deed to appoint the other defendants to act jointly withhim as trustees. With regard to the first defendant the evidencehas shown many acts amounting to misconduct, but I need notspecify them here, because it was conceded at the argument thatmuch could not be urged against the judgment of the DistrictJudge so far as he was concerned. The appeal was however pressedas regards the second, third, fourth, and fifth defendants. It willbe observed that these defendants were not appointed by Courtafter considering their qualifications,but that they were the creaturesof the first defendant, and must practically stand or fall with him.But apart from that consideration the proceedings disclose manythings which directly affect them. The general excuse on theirbehalf is that there was considerable litigation over this temple,and that the trustees were obstructed in the performance of theirduties by two men named Ramayah and Sabaratnam, who claimedto be trustees, and by the officiating priest of the temple. Rama-yah and Sabaratnam were not mere interlopers. The affairs of thetemple were in such a bad condition on account of the trustees*negligence and misconduct, that a great meeting of the congregationand others interested presided over by the late Mr. C. Namasiwa-yam, J.P., was held, and those two men were appointed trustees.It is not to be wondered at that thereafter the priest recognizedthem as trustees, and not the defendants. There is no doubt,however,, that there was much litigation over the temple. ByAugust, 1921, all the troubles were over, but the evidence showsthat even thereafter the temple arid the trust property exceptthat some trifling repairs, such as whitewashing were effected, were
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mismanaged. The District Judge also visited the place on March 20,1922, has noted these facts in his judgment. Moreover, the chiefduty of the trustees was to apply the income to the maintenanceof the religious services, but nothing ‘was done in this respect from1918 to August, 1921. It is said that the priest locked the side doorwhich is the main door of the temple and went away to Jaffna.But it appears that there is another entrance through the adjoiningSivan Kovil, and that people could come and did come by thatentrance to worship at the temple. I do not see that there wasany great difficulty to provide for religious services it thedefendants wished to do so.
The defendants made two attempts to introduce strangers astrustees or managers of the temple. Once they applied to Courtthat as they themselves had no money, two Natucotta Chetties,whom they named, be given charge of the temple and its property.The Court refused that application. Next, in April, 1920, theygave a deed to certain Tinnevelly Chetties, whereby in considerationof these Chetties having paid the Municipal taxes due on the pre-mises and amounting to Rs. 5,500, the defendants appointed theChetties as their attorneys and agents to manage and transact allmatters relating to or concerning the execution of the trusts of thetemple, to recover all rents and income of the property of thetemple, and to take and receive all offerings to the said temple,and generally to do and perform all such acts and things as shalladvance the objects of the said trust or shall be deemed necessaryor expedient on the defendant’s part to be done in or about theexecution of the said trust. It was further agreed that if the powersthereby conferred be revoked by an act or order of the Court, theproperty and money held by the Chetties should remain theirproperty and not that of the temple. This agreement with theTinnevelly Chetties amounts to an abandonment of the trust andsurrender of the property of the temple by the defendants to theTinnevelly Chetties and to my mind constitutes a clear breach oftrust.
The property of the temple consists of a large number of smalltenements, which, according to the bill collector, yield an income ofRs. 200 or more a month. As a matter of fact the account booksshow that for the three years 1919-21, which covers the periodof the disputes with Ramayah and Sabaratnam and the priest, theincome of the temple amounted to very nearly Rs. 9,000, and yetthe expenditure is shown to have exceeded the income. Thisresult can be easily understood when we learn that it was theKanakapulle who spent moneys according to his pleasure. TheKanakapulle admits that no repairs were effected from 1918 tothe end of 1921, and yet the accounts in this case put downRs. 1,518* 16 as having been spent on repairs during that period andRs. 879*62 for “ temple expenses.” The other items of expenditure
1928.
De SampayoA.C.J.
SathaMvamv. Vytia•nathanOhetty
1923.
Db Sampayo
A.C.J.
Sc^hasivaifi
v, Vytia.naihan
Chetty
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are Rs. 2,644*35 for salaries, Rs. 6,074*79 for legal expenses, andRs. 1,227*01 for sundry expenses. It is difficult to call theseaccounts to be true in any sense. Moreover, the account booksmix up the expenditure on this temple and the expenditure on atemple at Gintupitiya street, of which it is said the defendants arealso trustees, and it is impossible to disentangle the one from theother.
It appears to me that the defendants, including the second tofifth defendants, were either dishonest or grossly incompetent,and that in the interest of the temple there should be a change oftrustees. I think, therefore, that the judgment appealed from isquite justified and should be affirmed, with costs.
Schneider J.—-1 agree.
Appeal dismissed.