THIYAGARAJAH AND OTHERS v. GOPALAKRISHNANATH AND OTHERS

019-SLLR-SLLR-2007-V-2-THIYAGARAJAH-AND-OTHERS-v.-GOPALAKRISHNANATH-AND-OTHERS.pdf


CA
Thiyagarajah and others v
Gopalakrishnanath and others
245
THIYAGARAJAH AND OTHERSvGOPALAKRISHNANATH AND OTHERSCOURT OF APPEALWIMALACHANDRA, J.
CALA 21/2005DC KAYTS 7/2004/TMARCH 8, 16, 2006
Trust Ordinance Sections 99,102 and 102(3) – Declaration that, theplaintiffs are lawfully elected trustees of Temple – Civil Procedure Code -Section 671 – Removal of trustees at the Annual General Meeting -Scheme of Management – Procedure to be followed in the removal oftrustees? – Opportunity to defend to be given? – Certificate of theGovernment Agent – 1$ it necessary?
The plaintiff-respondent filed action for a declaration confirming that theplaintiffs were lawfully elected trustee of the Sri Amman Temple at theAnnual General Meeting (AGM) and also a declaration confirming that thedefendants-petitioners were removed from all posts they held in the Boardof Trustees. The plaintiff further sought an order to appoint a receiver toadminister the temple and its temporalities.
The defendants-petitioners raised a preliminary objection that the DistrictCourt has no jurisdiction to have and maintain the action in view of Section102 (3) of the Trust Ordinance, and sought the dismissal of the action.
The plaintiff-respondent contended that in view of the scheme ofmanagement that was settled in an earlier case, the provisions of Section102 have no relevance and that the appointment and removal of trusteeshave to be conducted in the manner set out in the scheme of managementthat was settled in Court in the earlier case. The District Court held with theplaintiff-respondent.
Held:
The temple is managed and administered and all activities such asappointing and removal of trustees have to be conducted in termsof the articles in the scheme of management.
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In terms of Article 10(1) a of the Scheme of Management a specialgeneral meeting of the congregation will have to be convened, if allOr any of the Trustees are to be removed. The congregation shallthen proceed to refer the removal to a panel of independentarbitrators to conduct an inquiry into the charges leveled at them.
Per Wimalachandra, J.
’The plaint does not disclose that the plaintiff convened a special generalmeeting and the trustees concerned were given an opportunity to defendthemselves. Moreover there was no appointment of independentarbitrators to conduct the inquiry".
The mere passing of a resolution at the AGM to remove a trusteealone is not sufficient to remove them from the Board of Trustees.The removal of the defendants from the posts of Trustees at theAGM is illegal and contrary to the articles of the scheme ofmanagement.
Held further:
If the plaintiffs have any complaint against the defendants astrustees with regard to any matter such as mismanagement,negligence, breach of trust or removal of trustees, the properremedy is to seek the jurisdiction of the District Court in terms ofSection 102 of the Trust Ordinance, and further a certificate of theGovernment Agent is imperative under and in terms of Section102(3).
APPLICATION for leave to appeal from an order of the District Court ofKayts.
Cases referred to:
Kanagasabaiv Sivasambu CA 161/81 CAM 6.7.1981 at 8.
Nadarajah Arunasalam and two others v Rasanayagam and others CA
479/84 DC Jaffna TR/44.
Sivaguru v Atagaratnam 48 NLR 369.
Sitaravelu v Ramaiingam 61 CLW 31.
Arumaithura v Arudeseivanayagam 65 CLW III and 67 NCR 522.
Vetauthan v Velauthan 61 NLR 230.
Ramesh and another v Chettiar (2004) 1 Sri LR 355.
$. Sivarasa, PC with N.R. Sivendran and K. Prabakaran for defendant-petitioner.
K.Kanag-tswaran PC with M.A. Sumanthiran for plaintiff-respondent.
Cucadv.vuit.
CA
Thiyagarajah and others v
Gooalakrishnanath and others (Wimaiachandra. J.i
247
June 19, 2007WIMALACHANDRA, J.
This is an application filed by the defendant-petitioners forleave to appeal from the order of the District Judge of Kaytsdated 12.1.2005. Briefly, the facts relevant to this application areas follows:
The plaintiff-respondents (plaintiffs) filed this action in theDistrict Court of Kayts inter alia for a declaration confirming thatthe plaintiffs were lawfully elected as Trustees at the AnnualGeneral Meeting held on 30.5.2004 and also a declarationconfirming that the defendants, under rule 24(iv) of the schemeof management, were removed from all the posts they held inthe Board of Trustees and also from the post of Trustees at theAnnual General Meeting held on 30.5.2004. The plaintiffs alsosought an order from the Court that the defendants should handover the keys of the temple, money, movable properties and allthe documents and records to the plaintiffs and also an order toappoint a receiver under Section 671 of the Civil ProcedureCode to administer the temple and its temporalities. On9.6.2004 the plaintiffs supported the petition for the appointmentof a receiver and the Court issued notice on the defendants.After hearing the parties the learned Judge made an interimorder appointing the Chief Executive Officer and the Accountantto manage the temple until an order was made appointing areceiver. When the case was called on 21.7.2004 thedefendants raised a preliminary objection that the District Courthas no jurisdiction to have and maintain the action in view ofSection 102(3) of the Trusts Ordinance. It was the defendants'position that the reliefs prayed for in the plaint fell under Section102 of the Trusts Ordinance and as the plaintiffs had failed tocomply with Section 102(3) of the Trusts Ordinance the plaintiffscould not have and maintain the present action as presentlyconstituted. On this ground the defendants sought a dismissal ofthe plaintiffs’ action. The learned District Judge delivered theorder on 12.1.2005 overruling the preliminary objection. It isagainst this order the plaintiffs have filed this application.
It is common ground that the subject matter of this action, theHindu temple called and known as "Nainathivu Sri
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Nagapooshani Amman Temple11 is a religious trust within themeaning of Section 99 of the Trusts Ordinance. It is admittedthat a Scheme of Management dated 25.11.1985 had beenrecorded and decreed in case No. 10/Trust in the District Courtof Kayts and declared to be the Scheme of Management underwhich the said Sri Nagapooshani Amman Temple at Nainathivuwould be managed and its temporalities would be administered.It is admitted that the defendants were holding posts as trusteesof the aforesaid temple "Sri Nagapooshani Amman Kovil" at thetime the Annual General Meeting was held on 30.5.2004. Thusthe temple and its funds had been under the custody and careof the defendants.
It is the plaintiffs' position that on 30.5.2004, at the AnnualGeneral Meeting, the congregation decided under the Schemeof Management to remove all the trustees including thehereditary trustees as there were irregularities andmismanagement. Accordingly, they were removed and a newBoard of Trustees was elected. The plaintiffs also state that thedefendants failed to handover the books, keys of stores("Kalanchiyam") and all the other documents and records whichhad been in the custody of the defendants. The plaintiffs filedthis action for an order to remove the defendants who were incontrol and were in-charge of the administration of the templeand its temporalities (see-paragraph 15 of the plaint). It appearsthat the plaintiffs have instituted this action seeking theappointment of a receiver and a declaration that the plaintiffswere duly elected as trustees of the temple.
it seems to me that the main purpose of instituting this actionby the plaintiffs is to get the Court sanction for the removal ofthe defendants from the posts of trustees, and for a declarationfrom Court that the plaintiffs are the trustees of the temple andalso to have the properties of the temple vested with theplaintiffs.
The Counsel for the plaintiffs in his written submissions,submitted that in view of the Scheme of Management that wassettled in Court in D.C. Kayts case No.10/T on 25.11.1985, theprovisions of Section 102 have no relevance to the action filedby the plaintiffs. The Scheme of Management was entered in the
Thiyagarajah and others v
CAGopalakhshnanath and others (Wimalachandra, J.)249
aforesaid case with regard to the management andadministration of the Temple. The learned Counsel contendedfurther that the appointment and removal of trustees have to beconducted in the manner set out in the Scheme of Management.
According to the plaint, at the Annual General Meeting of theCongregation, new trustees were appointed in place of thetrustees (defendants) removed from office by the members ofthe Congregation. It is to be noted that the three main reliefsprayed for by the plaintiffs are as follows:
(i) a declaration that the defendants were removed from allthe posts held by them in the Board of Trustees and alsofrom the posts of Trustees, under rule 24(iv) of theScheme of Management.
(if) a declaration that the defendants were suspended withimmediate effect from all the posts held by them in theBoard of Trustees and also from the posts of Trusteesunder rule 8(4) of the Scheme of Management.
(iii)to make necessary orders under the powers granted interms of section 101(2) of the Trusts Ordinance.
It is common ground that the temple is managed andadministered and all activities such as appointing and removingtrustees in respect of the temple have to be conducted in termsof the Articles in the aforesaid Scheme of Management. For theremoval of the trustees (defendants) and the appointment ofnew trustees at the Annual General Meeting, the audit reportshould disclose that there had been serious irregularities due tonegligence, inefficiency, dishonesty or other cause on the part ofany or all Trustees, and if all the members of the Board ofTrustees were involved in the irregularities the congregationmay resolve for the removal of all the Trustees including thehereditary Trustees as provided for in Article 8(4) in case wherethey are elected to any office, from such office and shallproceed to elect a new Board of Trustees. The congregationmay also direct the new Board of Trustees to institute separatelegal proceedings to recover damages or other appropriateremedy from all or any of the Trustees. Provided however theprovisions of Article 10 are complied with in the event of a
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resolution to remove any or all of the Trustees, (emphasisadded).
Therefore, if all or any Trustee is to be removed, Article 10 ofthe Scheme of Management has to be complied with.
In terms of Article 10(1)(a) of the Scheme of Management aSpecial General Meeting of the Congregation shall have to beconvened. At such Special General Meeting every Trusteeconcerned shall be given an opportunity to defend himself.Thereafter a resolution could be passed to remove the Trustees.The Congregation shall then proceed to refer the removal to apanel of independent arbitrators to conduct an inquiry into thecharges leveled at them.
In the instant case the plaint does not disclose that theplaintiffs convened a special General Meeting and the Trusteesconcerned were given an opportunity to defend themselves.Moreover, there was no appointment of independent arbitratorsto conduct an inquiry.
In terms of Article 10(2) when the special General Meetingresolves –
to remove from office any or all the members of theBoard of Trustees and
to take necessary legal action –
the proviso to Article 10 of the Scheme of Management has tobe followed. It states thus:
When a resolution is passed to remove a Trustee fromTrusteeship the congregation shall proceed to refer it to a Panelof Independent Arbitrators to conduct an impartial inquiry intothe charges and if at the conclusion of such inquiry the Trusteeis found guilty, his removal from office shall stand confirmedand shall take effect immediately, if he is an elect Trustee. In thecase of a Hereditary Trustee being found guilty as aforesaid heshall be reported to the Appropriate Court of Law by the Boardof Trustees for appropriate action by the Court.
The Panel referred to above shall consist of –
CA
Thiyagarajah and others v
Gopalakrishnanath and others (Wimalachandra, J.)
251
!. The Head of the Department of Hindu Civilization of theJaffna University for the time being;
The Head Incumbent of the Nallai Adheenam for the timebeing and
Any Retired Judge or retired Magistrate who is a Hindunominated by the Congregation. Temple funds shall beutilized for the expenses incurred in implementing theprovisions of this Article."
In this case there was no such appointment of independentarbitrators and as such no finding by an independent arbitrator.
Thus it will be seen that the mere passing of a resolution atthe Annual General Meeting to remove a trustee or trusteesalone is not sufficient to remove them from the Board ofTrustees. In the circumstances the removal of the defendantsfrom the posts of Trustees at the Annual General Meeting heldon 30.5.2004 is illegal and contrary to the Articles of the saidScheme of Management.
I am inclined to agree with the submissions made by thelearned Counsel for the defendants that the passing of aresolution alone at an Annual General Meeting will not besufficient to remove any Trustee who is holding office, withoutcomplying with the Articles of the said Schemes ofManagement. Therefore the plaintiffs cannot claim that theywere the newly elected Trustees of the said temple. Accordingly,the plaintiffs cannot be considered as duly elected Trustees atthe Annual General Meeting held on 30.5.2004.
It is to be observed that the reliefs sought by the plaintiffs inparagraphs (b), (c), and (d) of the prayer to the plaint aregoverned by Section 102 of the Trusts Ordinance andconsequently a certificate of the Government Agent isimperative under and in terms of Section 102 of the TrustsOrdinance. Therefore, if the plaintiffs have any complaintagainst the defendants as Trustees of the said temple withregard to any matter such as mismanagement, negligence,breach of trust or removal of the trustees, the proper remedy isto seek the jurisdiction of the District Court in terms of Section102 of the Trusts Ordinance.
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The main submissions of the defendants centered around
Section 102 of the Trusts Ordinance. It is the contention of thedefendants that the plaintiffs have failed to comply with Section102 of the Trusts Ordinance. Section 102(1) states as follows:
"Subject to the conditions of sub-section(3) hereof, anyfive persons interested in any place of worship, or inany religious establishment or place of religious resort,or in the performance of the worship or of the servicethereof, or in the trusts, express or constructive,relating thereto, may, without joining as plaintiff any ofthe other persons interested, institute an action in thecourt within the local limits of whose civil jurisdictionany such place of establishment is situate, or if suchplace is situate outside Ceylon, and the action isinstituted with respect to immovable property situatewithin Ceylon, in the court having local jurisdiction, toobtain a decree –
settling a scheme for the management of the truststhereof;
vesting any property in the trustees;
enumerating the properties comprised in the trust,or declaring that any property is trust propertycomprised in the trust;
directing accounts and inquiries;
declaring what proportion of the trust property or ofany interest therein shaif be allocated to anyparticular object of the trust;
declaring any trustee, manager, or superintendentof such place or establishment, or member of anycommittee of management, guilty of anymisfeasance, breach of trust, or neglect of duty;
awarding damages and costs against any suchtrustee, manager, superintendent or member of acommittee in respect of any such misfeasance,breach of trust, or neglect of duty;
directing the removal of any trustee, manager,superintendent, or member of committee, and, if
CA
Thlyagarajah and others v
Gopalakrishnanath and others CWimalachandra. JJ
253
necessary, directing the appointment of any newtrustee, manager, superintendent, or member of a
committee;
directing the specific performance of any act by anytrustee, manager, superintendent or member of acommittee;
granting such further or other relief as the nature ofthe case may require.
According to section 102(1) of the Trusts Ordinance beforefiling an action the plaintiffs are required to comply with theprovisions of Section 102(3). It reads as follows:
"No action shall be entertained under this sectionunless the plaintiffs shall have previously presented apetition to the Government Agent of the AdministrativeDistrict in which such place or establishment is situatepraying for the appointment of a commissioner orcommissioners to inquire into the subject-matter of theplaint, and unless the Government Agent shall havecertified that an inquiry has been held in pursuance ofthe said petition, and that the commissioner orcommissioners (or a majority of them) hasreported –
that the subject-matter of the plaint is one that callsfor the consideration of the court; and
either that it has not proved possible to bring aboutan amicable settlement of the questions involved,or that the assistance of the court is required forthe purpose of giving effect to any amicablesettlement that has been arrived at.
The plaint filed by the plaintiffs does not disclose that theplaintiffs have complied with the provisions of Section 102(3).
In an unreported judgment delivered in the case ofKanagasabai v SivasambiA^ at 8 Justice Abdul Cader said:
“A certificate under Section 102(3) is preceded byseveral steps that the law requires. A suitor should
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/2007) 2 Sri L.R
present a petition to the Government Agentaccompanied by the proposed plaint. The GovernmentAgent is required to appoint a Commissioner to inquireinto the subject of the plaint. The Commissionershould hold an inquiry and report to the GovernmentAgent and thereafter the Government Agent shouldissue a certificate to the suitor. All these steps involvea good deal of publicity by and any parties who areinterested in the dispute relating to a public trust like aHindu temple would have had an opportunity of placingtheir respective points of view before theCommissioner and if necessary even to move toparticipate in the District Court proceedings.
I have come to the conclusion that the failure to file acertificate under Section 102 resulted in a patent lackof jurisdiction, which would disentitle the plaintiff tocontinue with that action."
In the case of Nadaraja Arunasalam and two others vRasanayagam and another (Unreported) Justice Ananda-
coomaraswamy, J. said:
"The last relief sought was a settlement of a Schemeof Management and this is governed by Section 102 ofthe Trust Ordinance and therefore a certificate of theGovernment Agent is imperative. (Vide Sivaguru v V.AfagaratnamW, Sitaravelu vRamalingami4),
Arumaithura v Arudeselvanayagami5), and Velauthan vVelautheni6).)"
In a recent judgment of the Court of Appeal reported inRamesh and another v Chettiar it was held that a plaintiffwho has filed action for a declaration that the defendant is notthe lawful trustee of a kovil and for the removal of the defendantfrom the office of the trustee has no legal right or status toinstitute the action as he had failed to comply with the provisionsof Section 102(3) of the Trusts Ordinance. It is a conditionprecedent to obtain the approval of the Government Agentconcerned to file action in terms of Section 102(3) of the TrustOrdinance.
CA
Thiyagarajah and others v
Gooalakrishnanath and others (Wimatachandra. J.)
255
Now I shall proceed to consider the applicability of Section102(1) of the Trusts Ordinance. The plaintiffs pleaded inter aliain paragraph 15 of the plaint that they seek an order from Courtto remove the defendants and their agents from the control andadministration of the said temple. This is a relief that relatesdirectly to Section 102(1)(h). Furthermore the reliefs prayed forin paragraphs (b) and (c) of the prayer to the plaint relate toSection I02(1)(h) as well. The prayer (d) relates to Section102(1)(j).
In the circumstances, the plaintiffs have not complied withthe provisions of Section 102(3) of the Trusts Ordinance, in thatthey have failed to file a certificate from the Government Agent,and it follows from this that the action could not have beenentertained by the learned District Judge.
For these reasons leave to appeal is granted and the order ofthe learned District Judge dated 12.1.2005 is set aside.Accordingly, the appeal is allowed and the plaintiffs' action is
dismissed with costs.Appeal allowed.
Plaintiff's action dismissed.