SANSONI, J.—Kandappa Chetliar v. Janakiammah
1960Present :Sansoni, J., and Sinnetamby, J.
V. C. KANDAPPA CHETTTAR et al., Appellants, and N. JANAKI-AMMAH et al., Respondents
S. C. 109—D. C. Jaffna TP 8
Charitable trust—J^ropen ty dedicated for its use—Vesting of title to the property—Trusts
Ordinance, ss. 75, 76, 77, 112, 113.
The owner of certain immovable property created a charitable trust (a madam)and dedicated that property for the purpose of the trusts She nominated astrustees to manage the trust property herself and, after her lifetime, one P whowas the trustee of a Hindu temple (and after his lifetime his successors in.office as trustees of the temple).
Held, that in the absence of a notarial transfer in favour of P, the legal titleto the immovable property remained in the author of the trust, and on her deathpassed to her heirs, subject to the obligations of the trust, the heirs then becom-ing constructive trustees.
Held further, that where a plaintiff claims to be entitled as trustee to a landand seeks to eject a trespasser, he will not be entitled to rely on a vesting ordermade in terms of section 112 of the Trusts Ordinance unless he has obtainedsuch vesting order prior to the filing of the action. If the legal estate was not-in him at the commencement of the action, no vesting order obtained subse-quently will cure the initial want of title.
IXPPEAL from a judgment of the District Court, Jaffna.
Thiagalingam, Q.C., with V. Arvlambalam, for Plaintiffs-Appellants,.
C. Ranganalhan, with V. K. Palasunt her am and K. Devarajan, forDefendants-Respondents.
Cur. adv. wit.
April 4, 1960. Sa^soih, J.—
The plaintiffs have sued the defendants claiming that they should beejected from a certain land in Vannarponnai, and asking to be quieted inpossession themselves.
It is common ground that one Ponnukannu was the former owner ofthat land, and that she executed the deed PI in 1905 whereby she foundeda madam named the Sri Math Sunderamoorthy Nayanar Guru PoojaMadam and dedicated the land in dispute for the purpose. She nomi-nated as trustees and managers herself, the child or children to be bornto her, and her mother ; and after their lifetime three persons namedPonnusamy Chettiar, one of the trustees of the Vaitheesparan Temple atVannarponnai (and after his lifetime his successors in office as trusteesand managers for his share of the Vaitheesparan Temple), Thambu Kaila-sapillai, the trustee of the Saivapirakasa Vidiyasalai (and after his life-time his successors in office as managers of the said Vidiyasalai), andM. Ix. EM. Kalaiyappapillai (and after his lifetime his successors as
SANKONT, J.—K.andappa CheUiar v. JanaJeiammah
administrators and managers of his boutique). She further provided in thedeed that she and her children and her mother should reside in a buildingon the land ; also that the trustees should conduct and carry on theGuru Pooja of Sunderamoorthy JTayanar annually, and after the deathof herself and her children and her mother a Maheswara Pooja to each ofthem annually.
By a subsequent deed P2 of 1931, Ponnukannu reciting that M. L. RM.ELalaiyappapillai had died and the boutique of M. L. RM. Kalaiyappa-pillai had been closed, and that Thambu Kailasapillai had become oldand was not willing to carry on the charity, appointed herself, and afterher death her mother, and after her mother’s death Ponnusamy Chettiar(and after his lifetime his successors in office as trustees of the Vaithees-paran Temple), as the trustees to manage the trust properties and to con-duct the Poo j as.
The plaintiffs came into Court claiming to be the successors in officeas trustees of the Vaitheesparan Temple of Ponnusamy Chettiar, andcomplaining that the defendants were in unlawful occupation of theland in dispute since 1953. In their answer, the defendants pleadedthat the deed Pi did not create a valid charitable trust, and that no rightsvested in Ponnusamy Chettiar. They also pleaded that the plaintiffshad no right to the land in dispute, and could not maintain this action inthe absence of a vesting order vesting the land in them. In an amendedplaint the plaintiffs pleaded that the legal title to the land in disputebecame vested in Vythilingam Chettiar their father, and that they, ashis children and devisees under his last will, were the lawful trustees ofthe land in dispute. They claimed a declaration that they were thelawful trustees and asked for a vesting order in terms of section 112 of theTrusts Ordinance vesting the land in them, and that the defendants beejected. By their amended answer the defendants pleaded that theplaintiffs were not vested with the title to the land in dispute ; they alsopleaded that the amended plaint should be rejected as it altered thecharacter of the action.
When the case came to trial, the defendants’ counsel among otherissues, suggested :
Are the 1st to 3rd plaintiffs entitled to the said land and to posses-
sion thereof as trustees ?
If not, is this action maintainable
Can the plaintiffs maintain this action in any event in the absence
of a vesting order 1
The learned District Judge held that if PI created a valid charitabletrust, the plaintiffs have succeeded to the trusteeship, but he held that novalid charitable trust was created. He accordingly dismissed the plain-tiffs’ action. The plaintiffs have appealed and before us it was arguedthat PI created a valid charitable trust. Counsel for the defendants-respondents contested this submission, but in the view I take of therights of the plaintiffs I do not find it necessary to decide th'.s issue. Let
SANSONT, J.—IZandappa Chettiar v. Janakianimah
it be assumed, for the purpose of argument, that there was a valid charitabletrust created by the deed Pi and that Ponnukannu became a trustee forthe purpose of the trust. The first matter that falls to be decided iswhether the trust property is vested in the plaintiffs who claim that theyhave a right to bring this action as trustees, and ask for a declarationthat they are the lawful trustees of this trust. Now the title to theland remained in Ponnukannu subject to the trust, but it is quite clearthat Ponnusamy Chettiar did not become a trustee with ownership of theland either under PI or P2, because the land was not transferred by deedto him. There are several judgments of Bertram, C.J., which have setout the legal position under similar circumstances. ' As he pointed out,it is often supposed that by a mere dedication and by the appointment of atrustee by the author of the trust in terms similar to deed Pi, title notonly passes to the trustee but would also devolve from time to time on thevarious trustees successively appointed. The truth is that in this case,in the absence of a notarial transfer to Ponnusamy Chettiar, the trusteeappointed by the author of the trust, the legal title remained in Ponnu-kannu the owner of the land, and on her death passed to her heirs, subjectto the obligations of the trust, the heirs then becoming constructivetrustees.
It is thus clear that there is a fatal defect at the root of the phxintiffs’title, for if Ponnusamy Chettiar never became vested with the title to theproperty there was no title which could devolve on those who claim to behis successors as trustees. It was argued for the appellants at one stagethat section 113 of the Trusts Ordinance would apply to this case. Letit be conceded that the trustees of the Vaitheesparan Temple are personswho hold an office in an institution or body, and that the title to thetrust property will devolve from time to time upon the persons holdingsuch office without any conveyance or vesting order. How does thishelp the appellants if they have failed to establish that the title to thetrust property in dispute at any time devolved on Ponnusamy Chettiar ?In the absence of such proof, nothing devolved on his successors. As Ihave tried to show, the title which was in Ponnukannu never passed toPonnusamy Chettiar, for no deed of transfer was executed in his favourby her. Sections 75, 76 and 77 of the Ordinance also do not apply tothis case, because it is not even suggested that the plaintiffs or theirpredecessors were appointed trustees under either section 75 or undersection 76. The appellants’ counsel went so far as to argue that themere nomination of Ponnusamy Chettiar as trustee by deeds Pi and P2vested him with the legal title to the land, and that no notarial transferin his favour was necessary. It is impossible to accept this submissionwhich runs counter to all the accepted principles of the law relating to thevesting of trust property.
He then fell back on the claim in the amended plaint to a vestingorder in terms of section 112 of the Ordinance. I do not see how thiswill help him either, because the plaintiffs will in that event be relyingon a title acquired subsequent to the institution of the action. It is a
SA.N'SON'C, J.— K't'idappa. Chettiar v. Janakiamnuth
principle of law requiring no citation of authority that a plaintiff cannotrely on a title which he did not have at the commencement of the action.Garvin, J. applied this principle in Thamotherampillai v. RamcUingaml, acase which is indistinguishable on this point from the present case. Hesaid there : “ There is nothing in the Trusts Ordinance, or in any otherprovision of any law that I am aware of, which states that a person maybring such an action in respect of temple property and at some subsequentdate clothe himself with title to the property by obtaining a vesting order,and notwithstanding defects of title at the time of the institution of theaction is entitled to escape from the consequences of bringing an actionat a time when he had not the right to do so. ” Unfortunately thisjudgment was not referred to in the later case of Tambiah v. Kasipillai 2,where a similar objection was raised to the maintainability of the actionby a plaintiff who claimed to be the lawful hereditary trustee and managerof a temple. In that case a vesting order was claimed in the originalplaint in respect of certain temporalities on the ground that there was adoubt as to the person in whom the legal title to them was vested.Keuneman, J. with reference to a similar objection said : “ The shortanswer is that a person who can establish the fact that he is trustee,can sue for the recovery of trust property from a trespasser, and it is not anecessary requisite that he should have clothed himself with a vestingorder before action was brought. Further, a person who brings an actionto obtain a vesting order, obviously cannot already have obtained thatorder before action. ” The learned Judge has not dealt with the legalprinciple to which Garvin, J. referred nor does he give any reason for his .conclusion. The very matter which is in dispute in this case and was indispute before Garvin, J. was whether a person claiming to be a trusteecan sue in respect of trust property before he has obtained a vesting orderin his favour. With great respect, X disagree with the opinion of KLeune-man, J. on this point and I prefer to follow the reasoning of Garvin, J.Wc were also referred to the judgment of Canekeratne, J. in Ambalavanarv. Som, asunder a Kurukkal z, where the learned Judge appears to havetaken a view similar to that of Kmncman, J. He has not considered thelegal objection that a person who has no title at the commencement of theaction cannot rely on a title acquired subsequently. The judgment istherefore of no assistance. The matter has also been considered recently byH. N. G. Fernando, J. in Rajammal v. Balasubramaniyam Kurultai4, and thelearned Judge has expressed the opinion that the judgment of Garvin, J.should be followed although he thought that the two later judgmentswere distinguishable. In my view, it would be unsatisfactory to leavethe matter in that situation and I would hold that where a plaintiff claimsto be entitled as trustee to a land and seeks to eject a trespasser, he willnot be entitled to rely on a vesting order unless he has obtained suchvesting order prior to the filing of the action. If the legal estate was notin him at the commencement of the action, no vesting order obtainedsubsequently will cure the initial want of title.
1 (1032) 34 iV. L. R. 359.
(1941) 42 N. L. R. 558.
(1946) 48 N. L. R. 61.(1957) 61 N. L. R. 343.
H. IT. G. FERNANDO, J.—A.riyaralnam v. S. I. Police
In this case, therefore, the claim to a vesting order, which the plaintiffmade in the amended plaint, should have been disallowed and in any eventthe Court should under such circumstances refuse to make an ordervesting the property in the plaintiffs since it would serve no purpose in theaction. In the result, issues 14, 15 and 16 should have been answeredagainst the plaintiffs and their action should have been dismissed on thisground. I would dismiss the appeal with costs.
Sennetamby, J.—I agree.
V. C. KANDAPPA CHETTIAE, et al.. Appellants, and N. JANAKI-AMMAH et al.. Respond