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VAN EEETH v. DE SILVA.
D. C., GaUe, 5,636.
' Corporation sole—Creation by Holy See of Home of Archbishop in Ceylon—
Right of successor of such Archbishop to property coneeyed to his pre-decessor—Administration.
The creation and appointment by the Holy See- of Borne of an Arch-bishop inCeylondoes notconstitute hima corporationsole with
Therefore, on the death of an Archbishop so appointed, the propertiespurchased by him as Archbishop do not pass to his successor in office.'
To allow administration to be taken out to the estate of the deceasedArchbishopwouldnot remedythe defect inthe title of hissuccessor,
for then the property would vest in the administrator only.
HE plaintiff was the Boihan Catholic Bishop of GaUe. Healleged that an allotment of land called Digarolewatta, in
extent about 7 acres, belonged to one Adrian Mendis and NonaMendis in community; that Adrian Mendis died before 1839;that Nona Mendis and her children conveyed the land to ArnolisMendis by deed dated 1st January, 1839; that Arnolis Mendisre-conveyed the land to Nona Mendis by deed dated 3rd • -June,
1839; .that Nona Mendis gifted the land to Harmanis de Abrew bydeed dated16thSeptember,1858; thatin executionagainst
De Abrew the land was sold by the Fiscal and purchased by JosephFernando in1880;that Joseph Fernandoconveyed theland to
Gabriel Fernando by deed dated 29th December, 1888; that GabrielFernando gifted the eastern portion of this land, in extent1 acre and 25 perches, to Dr. Bonjean, Archbishop of Colombo, andhis successors in office for the puipose of building a church; thata church was so built shortly afterwards; that Dr. Bonjean diedin 1893 and was succeeded in office by Dr. Melizan; that in 1895the Southern Province of Ceylon, which formed part of theArchdiocese of Colombo, was separated and constituted. a distinctBishopric or Diocese called the Diocese of Galle, whereupon theplaintiff alleged, the said eastern portion of the land, with thechurch built – thereon, vested in the plaintiff; that Archbishop.
Melizan, for further assuring the same to the plaintiff, conveyed thesaid portion to the plaintiff by deed dated 22nd April, 1898; thatGabriel Fernando conveyed to the plaintiff and his successors inoffice the remaining portion of the land by deed dated 4th January,
1898; that the plaintiff thus became the owner of the entire landsave the planter’s interest in the fourth, plantation; that the firstdefendant, being owner of five-sixths part of the planter’s interest
4J. K. B 6920(4/81)
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1903.- in the fourth plantation, together with the other defendants,
Jttnt 22. dispossed to' plaintiff in March, 1898.
The plaintiff prayed for declaration of title and for damages.
The first and the second defendants disclaimed title to the landsave as to five-sixths of the planter’s interest in the fourth plantationbelonging to the first defendant. ' But the third defendant denied.the plaintiff’s title and claimed certain shares and interests in it,and the fourth defendant, denying dispossession of plaintiffs, setup title to a house on the land.
The District Judge, Mr. F. J. de Livera, after hearing evidenceon both sides, gave judgment for plaintiff as prayed.
The defendants appealed.
In appeal, the question of law was raise'd and argued whetherthe creation and appointment by the Holy See of Borne of anArchbishop in Ceylon constituted him a corporation sole withperpetual succession, as also the question of fact relating topossession.
The case came on for argument on the 19th May, 1903.
H. J. C. Pereira appeared for the first and second defendants,appellants.
Bawa (with him Prins), for third defendant, appellant.
D.ornhorst, K.C. (with him Sampayo, K.C.), for plaintiffs,respondents.
Cur. adv. vult.
22nd June, 1903. Layard, C.J.—
The plaintiff brought this action to vindicate a certain landmentioned in the plaint; he admits the claim of the firstdefendant to five-sixths of the planter’s share of the fourth planta-tion theron, but denies the right of all the defendants to anyother interest in this land. The first defendant and his wife, thesecbnd defendant, do not claim any interest in the land other thanthat conceded to the first defendant by the plaintiff himself, j,The third defendant claims title to the land and denies the-plaintiff’s right. The fourth defendant claims title only to a.house standing on the land.
The District Judge has given judgment for the plaintiff against!-all the defendants, with costs. . The land, it appears, was divided*Into two portions, and the plaintiff claims the entirety of the landunder two separate titles. With reference to the portion alleged,to have been last acquired by the plaintiff, the plaintiff has clearlyestablished his title thereto, and is entitled to vindicate that landagainst any one who is in unlawful possession of the same, unlesathe person in possession has obtained a title thereto by prescription.*;
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The portion of land alleged to have been first acquired by the 1908.-plnintiff is the eastern portion consisting of 1 acre and 25 perches. June 2t:The plaintiff’s title to the eastern portion is based on a conveyance latabd.CJ.by way of gift to the Most Bev. Christopher Ernest Bonjean, Bishopof Colombo. The gift was an absolute gift to Bishop Bonjean forthe purpose of a building a Boman Catholic Church thereon.
Bishop Bonjean died on or about 3rd August, 1893, andTheophilus Andrew Melizan was appointed Archbishop ofColombo by the Holy See of Borne. The plaintiff alleges that inthe year 1895 the Southern Province of this Island, which hadbeen included in the Archdiocese of Colombo, and in which thesaid land is situated, was separated and formed into a separateBishopric or Diocese called the Diocese of Galle, and plaintiff wasappointed by the Holy See of Borne as Bishop of the said Dioceseof Galle, and thereupon the said eastern portion of the said land,with the church built thereon, vested in the plaintiff. This is astartling proposition of law, and even plaintiff’s counsel is nptprepared to support it.
The plaintiff, however, further rests his title to the said easternportion by production of a conveyance from Archbishop Melizanin his favour dated the 22nd April, 1898. If any title vested inArchbishop Melizan on the death of Archbishop Bonjean, theplaintiff has undoubtedly disclosed a good title to the easternportion. It is contended by counsel for the third and fourthdefendants, appellants, that the Boman Catholic Archbishopric of>Colombo is not a body corporate with perpetual succession.
No authority has been cited to us by the respondent to showthat the creation and appointment by the Pope of Borne of anArchbishop creates a body corporate, and that otir law recognizessuch an appointment as creating a corporation sole. It is argued. that a Bishop of the Anglican Church in England is a corporationsole with perpetual succession, where, though the individualchanges and a successor is appointed from time to time, as needmay be, by the Sovereign, so far as concerns the property ofthe corporation the Bishop never ceases to be, and continuesfor ever without any breach. The two cases are not analogous.
I cannot find that the English Courts, or our Courts, have everrecognized the creation of a body corporate' by the authority of thePope of Borne, and no. such authority has been cited to us in thecourse of the argument of this case. If it had ever been recog&izedby local or English decisions that a Bishop, appointed by the Popeof Borne, was a body corporate with perpetual succession, therecould be no difficulty in counsel finding such decisions anddirecting our attention to them. Counsel has invited our
1903. attention to an old judgment of this Court where it was heldby a Court Of two Judges that the incumbent of a vihare was aT.»tu»n;r! .t oorporation sole, and argues that we are bound by that decision,and consequently must, hold in this case that a Eoman CatholicBishop is also a corporation sole. Assuming that we are boundby that decision, it is clearly not applicable to the present case,which does not deal with the rights of succession to the propertyof, an incumbent of a vihare. The question as to whether anincumbent of a vihare is a corporation sole was, however, con-sidered by a Full Court' many years after the delivery of thejudgment respondent’s counsel relies on, and it was held in thelatter judgment (Rattanapala Unnansc v. Kewitiagala Unnanseet al., 11 S. C. G. 27) that Hie incumbent of a vihare is not acorporation sole, but that he is personally owner of the propertyheld by him in the character of incumbent, subject. to a speciallaw that governs the rights of succession to such property.Respondent’s counsel suggests that the portion of the judgmentof the Full Court, dealing with the question as to. whether anincumbent of a vihare is a corporation sole or not, is merely obiterdicta. I have carefully perused that judgment, and it appears tome that it was a question that had to be decided in that case, be-cause- the parties were at issue as to .what was the rule of successionto property belonging to a vihare on the death of the incumbent.
If the incumbent was a body corporate with perpetual succes-sion, the property would, as a matter of course, pass to his successoras incumbent. In my opinion, on the death of ArchbishopBonjean the property did not pass to Archbishop Melizan.
l£ is argued for respondent. that the property was merely vestedin Archbishop Bonjean as a trustee. Admitting that to be correctit does not follow that Archbishop Melizan, having been appointedby the Pope of Rome to be Archbishop, of Colombo, becamelegally vested with all property held by Archbishop Bonjean intrust.
. The plaintiff, therefore, has not established his title to theeastern portion of land claimed by him, and is not entitled tovindicate it.,
It is suggested that we should remit the case to the DistrictCourt to allow adminis’tration to be taken out to the estate of 'Archbishop Bonjean. That would not remedy the defects inplaiihiff’s title, for the property would then merely vest in theadministrator of Archbishop Bonjean’s estate.
Respondent’s counsel further argued that plaintiff, if not < en-titled to vindicate the eastern portion of the land, is entitledto be restored to possession of it. Assuming that we are in a
( )iposiiion to convert this action into a possessory one, unfortunatelyima‘
for ite respondent the whole attention of the parties in the Court^ ‘
below appears to have been devoted to the question of title and •I<A»*a*>ljG.j.wrongful possession of the defendants since 1898, and the plaintiffhas not placed before the District Judge material to show thathe. was ever in actual possession of the land, and was oustedtherefrom by the defendants or any of them; so it is absoultelyimpossible for us in appeal to give plaintiff a judgment restoring^bim to possession of the eastern portion of theJand, as suggestedby his counsel.
With reference to the case against first and second; defendants,the plaintiff admits the rights of first defendant to five-sixthB of theplanters's share of the first plantation, and proves that the firstdefendant was allowed in 1896 by Archbishop Bonjean’s agentto possess the entire' land on the understanding that he wouldrender an account to the Archbishop. He was to take the produceunder that agreement and keep the land in proper order. It doesnot appear from the evidence that the first and second defendantsever ousted the planitiff from the land, or ever claimed anythingmore than the planter’s share, which is admittedly due to firstdefendant. The first defendant appears, according to plaintiff’switnesses, to have been willing at one time to take a leasefrom the plaintiff. I am unable to understand on what principleof law the Judge has given judgment ejecting the first defendantand his wife, the second defendant, from the land, to retainpossession of which the first defendant is clearly entitled by virtueof his admitted right to five-sixths of the planter’s share of thefourth plantation, or why they should be decreed liable to payplaintiff damages and costs of suit. Plaintiff’s evidence does notestablish any wrong done by these two defendants. Plaintiff’scounsel, however, points out that the-first defendant denied thathe ever was in possession of the land and contradicted the plain-tiff’s evidence as to his possession. If first defendant was believedby the District Judge never to have been in possession, thenplaintiff has not established any case against first and seconddefendants. I understand, however, he was disbelieved, so wemust, for the purposes of our judgment in appeal, rely on theplaintiff’s evidence, which was expressly believed by the Judge,and that evidence does not disclose material which would justifythe judgment the District. Judge has entered against the first and*
. second defendants, and plaintiff’s action against them must bedismissed.
I forgot to mention that the respondent’s counsel drew ourattention to the fact that first and second defendants joined in the
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same petition oi appeal as the third and fourth defendants. Thatfact would not justify us, in my opinion, in upholding thejudgment of the District Judge against first and second defendants,which was given before the petition of appeal was filed.
In my opinion the judgment of the District Judge must be setaside, and plaintiff’s action against the first and second defendantsmust be dismissed with costs, and judgment must be entered forplaintiff against the third and fourth defendants for only theportion of land conveyed to him by deed dated 7th September, 1899.The plaintiff’s action as to the eastern portion of the land conveyedto the late Archbishop Bon jean must be dismissed. The plaintiffand the third and fourth defendants will bear their own costs in.the District Court and in this Court.
Grenier, A.J.—I entirely agree, and have nothing to add.
VAN REETH v. DE SILVA