120-NLR-NLR-V-48-SIVAGURU-Appellant-and-ALAGARATNAM-Respondent.pdf
KEUNEMAN A.CJTSivaguru v. Alagaratnam.
369
1947Present; Keuneman A.C.J. and Jayetileke J.
SIVAGURU, Appellant, and ALAGARATNAM, Respondent.
S.C. 117—D. C. (Inty.) Batticaloa, 3,401.
Trust—Religious trust—Application under section 102 of Trusts Ordinance—Certificate of Government Agent—Sufficiency of certificate—Particularsrequired.
Plaintiffs brought this action under section 102 of the Trusts Ordinance.Wi*h their plaint they filed a certificate from ths Government Agentin the following terms “ I certify that Mr. A and others presented apetition on January 24, 1945, praying for the appointment of a Com-mission to inquire into the accounts and management of the Mamanga-pillaiyar Temple. The Commissioners duly appointed by me havereported that an inquiry has been held into these matters which formthe subject-matter of the plaint and that the assistance of the Courtmay be obtained to implement the scheme adopted by the members of thecongregation ”.
Held, that the certificate was not a sufficient compliance with section102 (3) (a) and (b) of the Trusts Ordinance and that the action could nottherefore be entertained.
PPEAL from a judgment of the District Judge of Batticaloa.
H. V. Perera, K.C. (with him G. Thomas), for the first defendant,appellant.
G. S. David, for the plaintiffs, respondents.
July 4, 1947. Keuneman A.C.J.—
In this case five persons interested in the temple in question broughtan action under section 102 of the Trusts Ordinance praying inter aliathat the defendants who were the trustees be held unfit to hold office.With their plaint they filed the certificate of the Government Agentmarked P 1 and the only question in issue is whether that certificate P 1sufficiently complies with section 102 (3)(a) and (b) of the Trusts
Ordinance. The certificate is as follows:—“I certify that Mr. A.Alagaretnam and others presented a petition on January 24, 1945,praying for the appointment of a Commission to inquire into the accountsand the management of the Mamangapillaiyar Temple. The Com-missioners duly appointed by me have reported that an inquiry has beenheld into these matters which form the subject-matter of the plaint andthat the assistance of the Court may be obtained to implement the schemeadopted by the members.of the congregation ”.
Now, under section 102 (3), the Government Agent’s certificate mustcontain the statement “ that an inquiry has been held in pursuance ofthe said petition and that the Commissioner or Commissioners or amajority of them has reported (a) that the subject-matter of the plaintis one that calls for the consideration of the Court and (b) either thatit has not proved possible to bring about an amicable settlement of thequestions involved or that the assistance of the Court is required for the
370
Habebtt Moliamedu. v. Lebbe Marikar
purpose of giving effect to any amicable settlement which has beenarrived at. The document P 1 certainly does not show that Com-missioners have held categorically that “ the subject-matter of the plaintis one that calls for the consideration of the Court I think it isadvisable that all Commissioners should make specific reference to thatfact as required by section 102 (3) (a). But even if we can assume for thepurposes of the argument that such an allegation is to be implied in P 1,it is not possible for us to hold that there has been a compliance withsection 102 (3) (b) for the simple reason that it is impossible for us to sayfrom P 1 whether there has or has not been an amicable settlement of thequestions involved. There should have been a statement that thereeither was or was not an amicable settlement. The words in P 1 “ theassistance of the Court may be obtained to implement the schemeadopted by the members of the congregation ” do not necessarily conveythe idea that there was an amicable settlement between the plaintiffsin this case and other parties possibly interested in the temple or withthe trustees in the case. We do not know what the scheme adopted was,whether it related to tne subject-matter of the plaint or not and we donow know who were “ the members of the congregation
I think in the circumstances we shall have to answer issue 1 of thepreliminary issues against the plaintiffs and hold that the certificateproduced is not a sufficient compliance with section 102 (3) (a) and (b).It follows from this that the action could not have been entertainedby the District Judge and we now allow this appeal and dismiss theplaintiffs’ action with costs. The appellant will also have the costs ofappeal.
We reserve to the present plaintiffs the right to bring a fresh actionon the same cause of action if they can satisfy the Court with regard tothe requirements of section 102 of the Trusts Ordinance.
Appeal allowed.