KEUNEMAN J.—Tambiah v. Kasipillai.
1941Present: Moseley S.P.J. and Keuneman J.
TAMBIAH v. KASIPILLAI.26—D. C. Jaffna, 13,897.
Hindu temple—Declaration of title as trustee and manager of temporalities
Right to bring action and ask for vesting order—Prescription—Trusts
Ordinance (Cap. 72), ss. 102 and 112 and 111 (1) (c).
Where the plaintiff claiming to be the lawful hereditary trustee andmanager of a Hindu temple and its temporalities asked for a declarationthat he is the lawful trustee and manager thereof and also for a vestingorder under section 112 of the Trusts Ordinance on the ground that itwas uncertain in whom the legal title to the various properties comprisingthe temporalities vested,—
Held, that the plaintiff was entitled to bring an action rei vindicatio inrespect of the trust property without having resort to section 102 of theTrusts Ordinance.
Held, further, that plaintiff’s claim fell within section 111 (1) (c) of theTrusts Ordinance and that it could not be barred by any provisions of the
Held, also, that a claim to a vesting order under section 112 of the TrustsOrdinance may be asserted in connection with the present action and thatno question of prescription could arise in connection with such an order.
PPEAL from a judgment of the District Judge of Jaffna.
H. V. Perera, K.C. (with him N. Nadar a] ah and C. J. Ranatunge), forplaintiff, appellant.
N. E. Weerasooria, K.C. (with him H. W. Thambiah and S. Kandesamy),for defendant, respondent.
Cur. adv. vult.
October 2, 1941. Keuneman J.—
This action was in respect of the temple known as SanthirasekeraVairavanathar Sivan Kovil. The plaintiff alleged that the originalfounder was Poolagasingha Mudaliyar, who in the year 1830 erectedfurther buildings and enlarged the temple fabric. The plaintiff furtherset out a pedigree, whereby he claimed that, he was an heir of the saidfounder, and stated that he was the lawful hereditary trustee and managerof the temple and its temporalities. He stated that a cause of action hadarisen for a declaration that he was the lawful trustee and manager, forprotection of the temple and its temporalities, for an accounting from thedefendant for the ejectment of the defendant, and for damages. Asancillary relief, the plaintiff claimed for himself a vesting order in regardto the temple and its temporalities, on the ground that it was not possibleto ascertain the successors in title of the various properties which consti-tuted the temporalities of the trust, and it was uncertain in whom thelegal title thereto was vested. The plaintiff also claimed an injunction.The prayer of the plaint contained claims to relief in respect of thevarious matters I have mentioned.
KEUNEMAN J.—Tambidh v. Kasipillai.559
At the trial certain preliminary issues were framed. The mostimportant of which are as follows : —
Is the cause of action prescribed ?
Is an action available to plaintiff except under the provisions of
section 102 of the Trusts Ordinance ?
Can the plaintiff maintain this action without obtaining a vesting
I do not mention the other issues, which principally related to pleas ofres judicata and estoppel. These have been correctly answered by thelearned District Judge, and no comment is necessary.
As regards issue (1) the District Judge held that the plaintiff’s actionwas in substance a claim to an office or a status-, and that the furtherreliefs claimed were subservient to the claim for declaration of trusteeship,and that the fact that these reliefs were claimed did not convert theaction to one to be quieted in possession of immovable property. Theperiod of prescription was three years, and as plaintiff’s title to the officehad been disputed for more than three years, the District Judge held thatthe claim was prescribed. He further held that section 111 of the TrustsOrdinance had no application to the present case.
In support of this contention, Counsel for the respondent argued thatin the present case, the defendant himself acknowledged the existence ofthe religious trust, and merely disputed the claim of the plaintiff to bedeclared trustee, setting up his own claim to the trusteeship as againstthis. I do not think that this fact alters the nature of the action, whichis in substance a claim by a person alleging that he holds the legal titleto property, as against one, who it is alleged, has neither a legal norequitable title to the same. I do not think that the fact that the plaintiffclaims a declaration that he is the trustee, converts this action into onefor an office or status. It is common in a rei vindicatio action for theplaintiff to add a prayer ‘.hat he be declared the owner, but in substancethe claim is in vindication of the property.
On a careful examination of the plaint, I agree with the contention ofthe appellant’s Counsel, that two distinct elements are revealed. Onerelates to the temple and the temple premises, the other relates to thetemporalities. As regards the temple and the temple premises, theplaintiff alleged that the title to these, resided in the original founder,who by his dedication of these to the temple, became a trustee. Theplaintiff alleged that the legal title deoended to him. The burden ofproof rested on the plaintiff to establish these facts, but if he did establishthem, I do not think that any plea of prescription could avail againsthim.
I think the language of the Trusts Ordinance is clear. Section 111 (1) (c)says that “ in the case of any claim in the interests of any charitable trust,for the recovery of any property comprised in the trust, or for the assertionof title to such property, the claim shall not be held to be barfed orprejudiced by any provision of the Prescription Ordinance
There can be no question that the present action is “ in the interests ofa charitable trust ”, and it must certainly be regarded as one for “ therecovery of property comprised in the trust ” or “ for the assertion oftitle to such property ”, or as containing both these elements.
KEUNEMAN J.—Tambiah v. Kasipillai.
I hold in this, connection that the plea of prescription is not availableto the defendant in respect of any property the legal title of which isproved to have resided in the alleged original founder, and to havesubsequently descended to the plaintiff.
As regards the temporalities, the plaintiff has claimed a vesting order,on the ground that there is a doubt as to the person in whom the legaltitle is vested. This will apply to all those temporalities, for which theoriginal founder had no legal title. I do not think this claim can bebased on any declaration that the plaintiff is a trustee of those tempora-lities. In fact the very claim for a vesting order negatives this. Thematter will have to be decided upon evidence placed before the Court, andI think the Court will have a discretion either to grant or to refuse avesting order. At the same time, if the plaintiff succeeds in proving thathe is the trustee of the temple and the temple premises that will be oneelement which the District Judge may take into account.
Can a claim to a vesting order be prescribed ? It should be borne inmind that such a claim is not based on the assertion that the claimant isa trustee in that respect. Under section 112 (2) of the Trusts Ordinancea vesting order will have the same effect “ as if the trustee or other personin whom the trust property was vested had executed a transfer to theeffect intended by the order ”. The claim for a vesting order is not thena claim to an office or status. The order only has the effect of transferringthe legal title from any one in whom it may reside, to the person namedin the order. I do not think that any question of prescription or limitationarises in connection with the claim to a vesting order, but delay may be anelement to be considered, in connection with the granting of the vestingorder.
As regards issue 2, it was argued for the respondent that section 112 ofthe Trusts Ordinance, while it gives the Court the power to make avesting order, does not provide any procedure for the purpose. It wasfurther contended that, as section 102 provides a procedure for obtaininga vesting order in connection with a religious trust (vide section 102 (1) (b)),it was necessary that the procedure there laid down should be followed.Now it is true that section 102 gives the right to any five persons interestedin the religious trust, provided the conditions of sub-section (3) have beencomplied with, to institute an action to obtain a decree “ vesting anyproperty in the trustees ”. But this appears to presume that the trusteeshave already been ascertained, and I think it does not apply to the case“ where it is uncertain in whom the title to any trust property is vested ”(section 112 (1) (a) ). Further, section 112 applies to all clases of trusts,and not only to religious trusts. It is contained in a Chapter headed,“ Miscellaneous I have not been able to find, nor has Counsel beenable to show me, any section, which lays down a procedure relating tovesting orders in connection with the ordinary trust as distinct from areligious trust. I do not think, where a power has been expressly givenin the Ordinance, we can deny to the parties requiring the exercise ofthat power some appropriate procedure. In this case, in earlier proceed-ings, it was held that a mere, application to Court was not the properprocedure, but that a regular action was needed. As there was no appealfrom that order, for the purposes of this case, that particular point may
Saravanamuttu v. de Silva.
be regarded as settled. I hold that the claim to a vesting order may beasserted by an action, and that the present action is in order, so far as itrelates to the claim for a vesting order.
This touches mainly the temporalities. The claim to the temple andthe temple premises is based on the allegation that the plaintiff is thetrustee, and the defendant a trespasser. I think it is clear that a personwho is able to prove that he is the trustee, is entitled to bring an actionrei vindicatio or for declaration of title in respect of the trust propertyagainst a trespasser: He is not required to resort to section 102, and infact that section has no application to an action of that nature.
Counsel for the respondent referred us to the case of Sangto v. ParasRam. But that case has no application to the facts of the present case.In Muthu Kumaru v. Vaithy *, Moseley J. refers to the point I havediscussed but refrains from deciding it.
As regards issue 5, the short answer is that a person who can establishthe fact that he is trustee, can sue for the recovery of trust property froma trespasser, and it is not a necessary requisite that he should have clothedhimself with a vesting order before action was brought. Further a personwho brings an action to obtain a vesting order, obviously cannot alreadyhave obtained that order before action.
For the reasons I have given, I am of opinion that issues (1), (2) and (5)must be decided in favour of the plaintiff. The appeal is allowed and theorder dismissing the plaintiff’s action is set aside, and the case is remittedto the District Court for due proceedings on such further issues as theDistrict Judge may frame. The appellant is entitled to th6 costs of theappeal, and of the trial dates, on which the present proceedings weretaken. All other costs are in the discretion of the District Judge.
Moseley S.P.J.—I agree.
TAMBIAH v. KASIPILLAI