069-NLR-NLR-V-65-UDUWE-WIMALA-RANSI-and-another-Appellants-and-C.-J.-C.-MATHEW-and-2-others-Re.pdf
T. S. FERNANDO, J.—Uduwe Wimala Ransi v. Mathew
351
1962Present: T. S. Fernando, J., and Tambi&h, J,
UDUWE 'WIMALA RANSI and another, Appellants, and C. J. C.MATHEW and 2 others, Respondents
S. C. 161 of 1959—D. C. Colombo, 7855jL
Buddhist ecclesiastical law—Dharmasalawa of a temple—Premises not sanghikaproperty—Unlawful possession of it by m nits—Liability of the monks tobe ejected therefrom by trustees of temple.
Public Trustee Ordinance (Gap. 88)—Section 41—Custodian trustee—Vesting of titlein him—Vesting order necessary.
Two Buddhist monks were in unlawful possession of the dharmasalawaor preaching-hall of a Buddhist temple. The building was not sanghilca propertyand was not the dwelling-house of the two monks, who were said to be pupilsof the first incumbent of the temple.
Held, that the trustees of the temple could maintain an action to be declaredentitled to the dharmasalawa and for the ejectment of the monks from thebuilding.
When the Publio Trustee is appointed to be custodian trustee of anytrust, in terms of section 41 of the Publio Trustee Ordinance, he is not vestedwith title to the trust property until a vesting order is exeouted. Until thenthe title remains in the trustees other than the custodian trustee.
A. PPEAL from a judgment of the District Court, Colombo.
E. B. Wikrctmanayake, Q.G., with A. L. Jayasuriya and M. L. deSilva, for the 1st and 2nd defendants-appellants.
W. Jayewardene, Q.C., with Walter Wimalachandra and L. C.Seneviratne, for the plaintiffs-respondents.
Cur. adv. vult.
February 21, 1962. T. S. Fernando, J.—
In this action filed by the plaintiffs-respondents as trustees of a Buddhisttemple, the plaintiffs complaining that the 1st and 2nd defendants-appellants and three other defendants have taken unlawful possessionof the dharmasalawa or preaching-hall of the said temple and haveunlawfully assumed the control and management of the said dharma-salawa in violation of their (the plaintiffs’) rights prayed that (i) thecourt do declare them entitled to the said dharmasalawa, (ii) the defen-dants be ejected therefrom, and (iii) they be awarded damages untilrestored to possession.
The District Court, on March 13, 1959, after a very lengthy trial,entered judgment in favour of the plaintiffs (a) declaring them entitledto the management and control of the building called dharmasalawastanding on the land described in Schedule B to the amended plaint,and marked “ A ” in plan PI annexed thereto, subject to the trustsand conditions contained in deed No. 3631 of April 4, 1919, (b) granting
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T. S. FERNANDO, J.—OdtmM Wimaia Sami v, Mathew
them an injunction, restraining the defendanis"from acting in violationof the plaintiffs’ rights of control and management of the said building,(c) directing the defendants to restore the plaintiffs to the possession ofthe said building and (d) far ejectment of the 3rd, 4th and 5thdefendants from the said building.
The 3rd, 4th and 5th defendants preferred no appeal against thejudgment of the District Court. The only appeal preferred to thisCourt was that of the 1st and 2nd defendants who are Buddhist monks,said to be pupils of the first incumbent of the temple referred to above.Learned counsel who appeared for the appellants felt himself unable topress the appeal seriously, having regard (a) to the evidence, both oraland documentary, led at the trial and (6) to the findings of the learnedtrial judge. The appeal of the 1st and 2nd defendants must be dismissedwith costs, and we accordingly so order.
There remains for consideration certain cross-objections to the decreetaken by the plaintiffs-respondents. Shortly put, they relate to therefusal of the learned District Judge (1) to order the ejectment also of the1st and 2nd defendants from the building in question and (2) to granta declaration that the plaintiffs-respondents are entitled to the saidbuilding as prayed for in the amended plaint and not merely to itsmanagement and control as decreed, by the learned District Judge.Having regard to the finding of the trial judge that the premises inquestion had not at any time become sanghika property, a finding whichwe hold is correct, the question of misconduct in the sense of contu-macious conduct on the part of the 1st and 2nd defendants is in ouropinion irrelevant. Nor is it relevant to consider whether the 1st and2nd defendants as Buddhist monks have a right of residence in the temple,because the question that arose in the case was whether they were liableto be ejected not from the dwelling-house of the monks but from thedharmasalawa or the preaching-hall. There was ample evidence beforethe trial judge that these two defendants together with the otherthree defendants who are laymen had prevented the lawful trusteesfrom utilising the dharmasalawa for the lawful purposes to which it hadto be put by the trustees. So long as the 1st and 2nd defendants arepreventing the trustees from lawful management and control of thebuilding they become liable to ejectment from that building, and thecircumstance that they are Buddhist monks is, in my opinion, irrelevantto an answering of issue 24. That issue has to be answered in favourof the plaintiffs rendering all the defendants liable to be ejected from thebuilding in question.
The other question as to the right of the plaintiffs to obtain a decla-ration of title in their favour depends upon the interpretation to beplaced on section 41 of the Public Trustee Ordinance (Cap. 88). ByIndenture No. 4357 of 21st October 1932 (Document 1D6) the PublicTrustee was in terms of section 41 (1) of the said Ordinance appointedthe custodian trustee of the trust under which the plaintiffs themselvesclaim the declaration of title in the present case. The plaintiffs howeverclaim that no vesting order as contemplated in section 41 (2) of the said
Nambuwasan v. Deonis Appu et a,l.
353
Ordinance has in fact been made vesting title in the Public Trustee,and Mr. Jayewardene, on their behalf, submitted that the title to theproperty is still in them. Mr. Wikramanayake submitted that indentureNo. 4357 operates as a transfer of title to the Public Trustee renderingthe execution of a vesting order unnecesssary. The indenture itself—purports to appoint the Public Trustee as the custodian trustee of theproperty in question “ to the end and intent that the said property maybe vested in and held by the Public Trustee as such custodian trusteeunder and subject to the conditions, restrictions and stipulations laiddown in the said deed No. 3631. ” We find ourselves unable to agreewith the learned District Judge that indenture 1D6 is sufficient to vesttitle to this property in the Public Trustee without the execution ofa vesting order. In the result the plaintiffs are still vested with title tothe property enabling them to be declared entitled to the propertyand not merely to its management and control.
While dismissing the appeal with costs, we therefore direct that thedecree be amended declaring the plaintiffs entitled to the building calleddharmasalawa standing on the land in Schedule B to the amended plaintand marked “ A ” in plan PI annexed thereto subject to the trusts andconditions contained in deed No. 3631 of April 4, 1919 and declaringalso that all the defendants be ejected from the said building.
Tambiah, J.—I agree.
Appeal dismissed.
Decree amended.