081-NLR-NLR-V-55-SITHAMPARANATHER-MAILVAGANAM-et-al.-Appellants-and-KUMARASWAMY-KURUKKAL-RA.pdf
ROSE C.J.—MaUiaganam v. Ramanatha Aiyar
289
Present: Rose C.J., Nagalingam S.P.J. and K. D. de Silva J.
SITHAMP.RANATHER MAIL VAGAN AM et al., Appellants,and K JMARASWAMY KURUKKAL RAMANATHAAIYAR et al., Respondents
S. G. 58—D. C. Jaffna, 395T
Hindu temple—No evidence of express dedication—Charitable trust—Inference of itsexistence—Relevant factors—Trusts Ordinance (Cap. 72), s. 107.
Tn deciding, under section 107 of the Trusts Ordinance, whether or not atemple, even in the absence of an express dedication, should be deemed to be acharitable trust, such matters as the holding of public services at the temple,donations to the temple by members of the public throughout a long period oftime and improvements effected to it by them are matters which can properlybe taken into consideration.
^PPEAL from a judgment of the District Court, Jaffna. This casewas referred to- a Bench of three Judges owing to a difference of opinionbetween the two Judges before whom it had been previously listed.
S. J. V. Ghelvanayakam, Q.C., with G. Vanniasingham and C. Shanmu-ganayagam, for the plaintiffs appellants.
E. B. Wikramanayake, Q.G., with H. W. Tambiah and S. Sharvananda,for the defendants respondents.
Cur. adv. vutt.
[The following cases were cited at the argument :—KumajrasamyKurukkal v. Karthigesa Kurukkal (1923) 26 N. L. R. 33, Pujari LakshmanaGoundan v. Subramana Ayyar A. I. R. 1924 P. C. 44, A. I. R. 1920 Madras42, Narayanan Nambudripad v. Board of Commissioners for HinduReligious Endowments A. I. R. 1938 Mad. 209, Somasunderam v. Ran-■ gunather Mudaliyar (1930) 12 C. L. Rec. 78 at 81, Doraiswami Kurukkalv. Thambipillai (1949) 53 N. L. R. 323 at 328, Mandacheri Koman v.Thachangat Nair A. I. R. 1934 P. C. 230.]
October 12, 1953. Rose C.J.—
The plaintiffs – appellants pray for a declaration that a Hindu templeknown as the Innuvil Kandaswamy Kovil and its temporalities constituteda religious charitable trust- They also ask for certain ancillary reliefsunder Section 102 (1) of the Trusts Ordinance (Cap. 72J.
In the past there has been some contest between the parties as towhether the land on which the temple stands belonged to the successors-in-title of one Kulandayar Velayuthar, as alleged, by the plaintiffs. Thismatter appears to have been determined, fof all practical purposes, infavour 'of-the defendants in D. C. Jaffna case No. 8,813 decided in 1.914^
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ROSE C.J.—Mailvaganam v. Humanatha Aiyar
The matter to be decided in the present ease is whether the temple inquestion is a charitable trust. The learned District Judge in a long andanalytical judgment, while conceding that a number of improvementshad been effected and donations given by members of the jj ublic, consider-ed that these matters were insufficient to convince him that the templewas a charitable trust. In the course of his consideration? oi this matter,the learned Judge said :
“ To my mind, this erecting of a temple by a Brahmin priest anddedicating it for religious worship by the Hindus of the neighbourhood18 no more than like a barber erecting a saloon and equipping it in orderthat he may ply his trade by shaving the beards of the men in theneighbourhood. If in appreciation of the services of the barber andthe comforts enjoyed in the saloon men add to the equipment and thebuilding, one will not argue that thereby the saloon had been convertedinto a trust.”
It seems to me, with all respect to the learned District Judge, that hisanalogy is unhelpful, particularly in view of the fact that according tothe decided cases the question as to whether or not a particular templemay be deemed, in the absence of express dedication, to be a charitabletrust must depend upon the circumstances of the particular matter andthe inferences to be drawn from such factors as the holding of publicservices, general access to the public at all times, donations of land andmonies to the temple by the public and improvements effected to it bythem..
There is no doubt that the defendants and their predecessors have forthe last hundred years or so exclusively officiated at the temple and havehad in effect unfettered control of the organisation and arrangementsof the various services and festivals held there. This, howeveT, to mymind, is a neutral fact when considering whether or not the temple shouldbe held to be a charitable trust. The fact that a particular family ofa priestly caste should be entrusted with the conduct of the servicesand the business management of the temple does not,seem to me to benecessarily inconsistent with the fact of a charitable trust. It is signi-ficant, and does not seem to have been adequately appreciated by thelearned Judge, that the very first deed, in which specific mention is madeof the temple (P 15), states that a deed of charity donation «had beenexecuted and granted “ unto the Trustee Paraparipukaran of Kan da-swamy Temple Subramaniar Arumugam ”. Subramaniar Arumugamwas admittedly an ancestor of some of the present plaintiffs. It wouldthus seem to be that as long ago as 10th May, 1852—the date of thedeed—Subramaniar Arumugam was regarded by the donors as beingthe Trustee of the Kandaswamy Temple.«.
Besides deed P 15, there is a long series of deeds from 1852 to 1909,in all of which, Subramaniar Arumugam and the members of his familyhave been described as Trustees of the Temple by various donor§. P 3also of 1852!.P-16 of 1884, and P 5 of 1874 refer to Subramaniar Arumugamas trustee, while P 16'of 1885 and-P 7 of 1886 refer to his – son-in-law,Ramalingam Ambalavanar, in the same capacity, and deeds P 9:of -1906,
BOSE C.J.—Mailzaganam v. Ramanatha Aiyar
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P 10 and P11 both of 1907 and P 12 of 1909 describe Ambalavanar Cadira-tamby, son of Ramalingam Ambalavanar, as the trustee. • In fact eventhe ancestors of some of defendants, themselves, have been described astrustees and o' Heiating priests of the temple—see deeds D 43 and D 44of 1863, D45.o‘ 1865, D 46 of 1867, D 10 of 1858, and D13 of 1937. Inone deed, D9 ci 1870, Vyravanather Aiyer Suppiyer, one of the ancestorsof the defendants, is designated the owner of the temple, but the Tamilword, which has been translated as owner, is a word of neutral meaning—it may mean either an owner or a man who merely looks after and officiatesin the temple.
Although, therefore, by reason of the fact that the .ancestors of someof the plaintiffs in earlier deeds, and of some of the defendants in laterdeeds have been described as trustees or managers of the temple, leadingto the inference that rival claims were advanced to the trusteeship ofthe temple at a date long after the foundation of the temple, there isvery slight basis for the contention that the temple itself was the privateproperty of the defendants or their ancestors. If the temple was a privatetemple of the defendants’ ancestors, there would have been no need todescribe them as managers of the temple, a term which negatives theprivate character that is claimed for the temple by the defendants.
Furthermore, as early as 1879 and 1891, by deeds of appointment,functionaries, styled as trustees have been appointed to look after thetemporalities and the secular management of the temple, and in theoperative words of the deeds are to be found specific statements as regardsthe person or persons who built the temple, the land on which the templewas built and the functions performed by the trustees. By deed P 4of 1879 the first known individual designated as a trustee of the temple,namely, Subramaniar Arumugam, appoints his son-in-law RamalingamAmbalavanar as trustee in succession to him, as he is old and unableto conduct and carry on the various activities in relation to the temple,and he further constitutes his son-in-law the trustee in succession tohimself, of the properties held by him as trustee, to the intent and purposethat Ambalavanar too should manage and look after the affairs of thetemple, in the same manner as he had up to then done. In this deedof appointment, even as in the earliest deed, in which specific mentionof this temple is made, P 15, there is a statement that the land, on whichthe temple stands, is a land registered in the tombu in the name ofKulanthai Velayuthar {or Ku lanth ay an Velayuthan) and KanthanKanny, of whom the former is the great-grandfather of SubramaniyarArumugam. Besides, the deed of appointment P 4 specifically recordsthe fact that the father of Subramaniyar Arumugam started the “ sacredwork ” of building the temple and that while the work was yet in progresshe had died and that thereafter Subramaniyar Arumugam continuedthe task of completing the building by utilising his cfwn funds and byreceiving contributions from members of the public, and that thereafterhe had the consecration ceremonies performed. In 1891, by deed P 8,Ramalingam Ambalavanar appointed his son, Ambalavanar Cadjratamby,the trustee of the temple in succession to him. -■ It is not denied that thetemporalities of the temple, referred to in the various deeds producedby the plaintiff's, have always been in the possession and control of these
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BOSE O.J.—M.aiIvaganam v. Ramanatha A.iyar
trustees, clearly establishing that the deeds of appointment of trusteeshave been acted upon. On the other hand, the defendants have notbeen able to show any dealing with the temple as private property. Onewould have expected a temple, which, admittedly, is worth, a considerablesum of money, to have been administered on the death? of the variousproprietors, if the claim of the defendants be true ; but Cat is concededby the defendants that on no occasion when, if the temple wereprivate property, it would have been necessary to administer it had itbeen so administered. But an unconvincing excuse is put forwardthat the defendants and their ancestors did not do so, in order to evadepayment of the stamp and estate duty that would have been payableif the temple had been administered as private property. The conductof the defendants in' not administering the temple would have beenclearly proper and right if the temple were regarded by them too as acharitable trust.
One should not, I suggest, give serious weight to the considerationthat all these deeds two of which were executed as long ago as 1852were drawn up with a view to the subsequent litigation between theparties which did not come before the Courts until 1914’ and 1953respectively.'
In the light of this consideration, it is convenient now to considerthe subsequent history of the temple. It is in evidence, and does notappear to be in conflict, that over a considerable period of years thetemple has been in consistent use by the public of the neighbourhood.Public and private services and ceremonies have been held, in whichno doubt the services of the defendants and their predecessors havealways been availed of. Sums of money have been presented by membersof the public to the temple, walls have been built, the premises havebeen enlarged and towers (goparam) have been erected. Moreover,there was evidence, which is not adverted to by the learned DistrictJudge, and which was not challenged in cross-examination, that a certainmember of the public had presented a “ Vel ” car, used for the trans-portation of the images of deities, at a cost of Rs, lG,000 from moneyand materials collected from the public of the neighbourhood.
It is true that the mere fact that a temple is frequented by membersof the public and that services are held which are attended by ‘the publicis not of itself sufficient to indicate that the temple is a charitable trust;but when such consistent and uninterrupted public user is added to thefact that throughout a long period of time the public have been in thehabit of making contributions, both of money and kind, it seems to methat this militates strongly against the contention of the defendantsthat the temple and all the gifts received by it were and are their privateproperty.
I would add that Section 107 of the Trusts Ordinance expresslynegativesc the necessity for specific evidence of a ceremonial dedicationof a private temple to the public. It is sufficient if the Cotut considers“ from all the circumstances of the case that a trust in fact exists, orought to be deemed to exist ”.
ROSE C.J.—Mailvaganam v. Ramanatha A.iyar
293
Many authorities were cited to us by learned counsel in the case, butit seems to me that the principles to be applied can be derived from twoof them—. ^ujari Lakshmana Qoundan and another v. Subramania Ayyarand others1 and in Kumarasamy KuruTckal v. Karthigesa KuruJcTcal2,in which / >ir John Edge and. Bertram C. J., respectively, say in effectthat such matters as the holding of public services at a temple, donationsto a temple by members of the public and improvements effected to itby them are matters which can properly be taken into considerationin deciding whether or not a temple, even in the absence of an expressdedication, should be deemed to be a charitable trust.
Whether any particular case falls on one side of the line or the otheris, of course, a question of degree. As far as this particular case is con-cerned, I am of opinion that the plaintiffs have established that the circum-stances surrounding the temple are such as should properly have ledthe learned District Judge to conclude that a charitable trust in factexisted or should be deemed to exist.
That being so, the appellants are entitled to succeed.
At one stage of the argument the Junior Counsel for the respondentsadumbrated a submission that the learned District Judge had no juris-diction to entertain the action at all, because the procedure indicatedin Section 102 (3) of the Trusts Ordinance had not been followed. Thisobjection, however, which was of a highly technical nature and had notbeen taken in the lower Court, was not pursued in appeal, and I do not,therefore, regard it as necessary to take it into consideration.
For these reasons thie appeal is allowed, the judgment of the learnedDistrict Judge set aside, a declaration is granted to the plaintiffs thatthe Innuvil Kandaswamy Temple is a charitable trust and the matteris remitted to the learned District Judge to settle a scheme of managementand to make such orders, in regard to the ancillary reliefs claimed bythe plaintiffs, as may be deemed to be proper, and to enter a decree inconformity therewith. No relief, however, will be granted to the plain-tiffs on the basis that the defendants have been guilty of mismanagement.He will, however, no doubt, take nto account the fact that the^defendantsare admittedly the officiating priests of the Temple, and will, no doubt,also consider whether any special interests of the plaintiffs or any ofthem should be protected.
The respondents must pay the costs of this appeal and of the proceedingsin the Court below which have resulted in the present appeal. The costs,if any, of any subsequent proceedings in the District Court will be in thediscretion of the learned District Judge.
Nagalingam S.P.J.—I agree.
K. D. de Silva J.—X agree.
Appeal allowed.
1 AAJt. 1924 P.C. 44.* (1923) 26 N.L.R.p33.
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