117-NLR-NLR-V-43-VELUPILLAI-et-al.-v.-SABAPATHIPILLAI.pdf
Velupillai v. Sabapathipillai.
483
1942
Present: Moseley S.P.J. and Jayetileke J.
VELUPILLAI et at. v. SABAPATHIPILLAI.
205—D. C.8,70Zj –
Public Charitable Trust—Scheme of Ma.nagem.ent—Election of Trustees—Holding of Meetings at other than appointed place—Validity of election—Trust Ordinance (Cap. 72). .
The Scheme of Management settled by Court for a- Public CharitableTrust provided that it should be under the control of a board of trustees^ and that ceytain trgftees should be ejected at gener^ meeting of the
484
JAYETILEKE J.—VelupiUai v. SabapathipUlai.
The members of the congregation, who were prevented from holdingthe meeting to elect the trustees in the Temple premises, held it outsidewith the permission of Court.
Held, that the election of the trustees was good so long as the holdingof the meetings outside the Temple premises did not or could not affectthe result of the election, quite apart from the order of the District Courtgranting permission to hold the meeting outside.
^^PPEAL from a judgment of the District Judge of Jaffna.
H. V. Perera, K.C. (with him N. Nadarajah, K.C., and H. W. Thambiahand V. K. Kandasamy), for second defendant, appellant.
N. E. Weerasooria, K.C. (with him T. K. Curtis), for first to fourthsubstituted plaintiffs and fifth plaintiff, respondent.
Cur. adv. vult.
September 10, 1942. Jayetileke J.-*-
In action No. 23,628 of the District Court of Jaffna it was decreed thatthe Nochikadu Pillaiyar Kovil and its temporalities be declared a publiccharitable trust within the meaning of the Trusts Ordinance (Cap. 72)and that their management should be under the control of a board oftrustees, on which the fifth plaintiff in the present action and his successorsshould have a hereditary seat and the other four should be appointedby Election by the congregation.
Thereafter, a scheme of management was framed by the Court whichprovided, inter alia, that the four trustees should be elected at a generalmeeting of the members of the congregation held at the temple premisesand that the trustees so elected should hold office for a period of threeyears.
On December 1, 1932, the first, second, third and fourth plaintiffswere elected trustees and on August 2, 1933, the Court made an ordervesting, all the immovable property belonging to the temple in them andthe fifth plaintiff.
The defendants prevented the plaintiffs from taking possession of thetemple and its temporalities and the plaintiffs thereupon instituted thisaction against them for ejectment and for the recovery of certain movablesand damages.
The first defendant did not file an answer but the second and thirddefendants filed a joint answer, in which they alleged, inter alia, that theplaintiffs could not continue the action as the term of office of the first,second, third and fourth plaintiffs had expired on December 1, 1935.
At the trial, the contesting defendants invited the Court to try thatquestion as a preliminary issue. The District Judge held that they couldcontinue the action but on appeal his order was reversed. In the conclu-ding part of his judgment, Maartensz J.1 said : —
“This order, however, does not, subject to the law with regard to
abatement of suits, preclude those persons who claim to have succeeded
the plaintiffs as trustees of the temple from applying to the Court for
leave to continue the suit against the defendants.”
1 40 L. B. 109.
JAYETILEKE J.—Velupillai v. Sabapathipillai.
485
Thereafter, the members of the congregation wanted to hold a meetingat the temple premises to elect new trustees but they were preventedfrom doing so by the second defendant. They thereupon moved theDistrict Court in action No. 23,628 for permission to hold the meetingoutside the temple premises at some place convenient to them.
The District Judge noticed the second defendant to show cause whyhe should not permit the members of the congregation to hold the generalmeeting at the temple premises. He appeared and objected on the ground•that the holding of the: meeting in the temple premises would be aninvasion of his rights in this action.
The District Judge thereupon discharged the notice and granted thepermission asked for. The meeting was held at-a temple about half amile away and four new trustees were elected. They were substitutedin place of the first, second, third and fourth plaintiffs.
Prior to the next date of trial, the third defendant died, but no one wassubstituted in her place as her claim was limited to a life interest.
At the trial, a large number of issues were framed, all of which wereanswered against the second defendant.
The District Judge entered judgment in plaintiffs’ favour and thesecond defendant has appealed.
The only point that was seriously pressed before us by Counsel for theappellant was that the election of the first, second, third and fourthsubstituted plaintiffs was void, as the general meeting at which they wereelected was not held at the temple premises. He contended that theorder of the District Judge granting permission to hold the generalmeeting outside the temple premises was a variation of the schemethat was framed and that it was made without jurisdiction.
He based his argument on the second point very largely upon thejudgment of the Full Bench in Veeraragavachariar v. Advocate General*,and upon the judgment of the Privy Council in Sevak Jeranchad Bhogilalv. Dakora Temple Committee
On the first point he laid great stress upon clause 4 of the scheme,which provided that the general meeting of the members of the congre-gation shall be held at the Nochikadu Pillaiyar Kovil and contended thatthe election ought to be held void as the conveners of the meeting hadviolated the provisions of that clause.
It must be noted that the scheme that was framed by the Court doesnot contain a clause that the election of trustees would be void if it isnot conducted in accordance with its provisions. If there had been sucha clause there would have been great force in the argument that wasaddressed to us. -,
Though the election took place more than three years ago no applicationhas so far been made by . any member of the congregation to have itdeclared void on the ground that the general meeting was not held at thetemple premises as required by the scheme.
1 (1927) A. 1. R. Madras, 1073.
2 (1925) A. I. R. Privy Coin., 155.
486JAYETILEKE J.—Velupillai v. Sabapathipittai.
At the trial, the second defendant failed to place any evidence beforethe Court that the holding of the general meeting outside the templepremises did or could affect the result of the election.
In these circumstances, it seems to me, quite apart from the order ofthe District Judge granting the members of the congregation permissionto hold the general meeting outside the temple premises, that the electionof the substituted plaintiffs as trustees was. good.
In the Islington Division Case an application was made by theunsuccessful candidate to have the election declared void on account ofbreaches of the law relating to-Parliamentary elections committed by thepresiding officers and their assistants at certain polling stations. It wasalleged that voters had been allowed tq vote after 8 p.m. cm the day of theelection in contravention of the Elections (Hours of Poll) Act, 1885(48 Vic. c. 10. s. I). The Court held that, in the absence of proof that theinfraction of the law in the supply of ballot papers did and could affectthe result of the election, it would not be justified in declaring the electionvoid.
In the joint judgment of Kennedy and Darling JJ., the followingpassage appears at page 125 : —
“ It appears to us to be convenient, at this point, to state our viewof the law in regard to this matter. Our opinion is that an electionought not to be held void -by reason of transgressions of the lawcommitted without any corrupt motive by the; returning officer orhis subordinates in the conduct of the election where the Court issatisfied that the election was, notwithstanding those transgressions,an election really and in substance conducted under the existingelectiqn law, and that the result of the election, i.e., the success of theone candidate over the other, was not, and could not have been,affected by those transgressions. If, on the other hand, the trans-gressions of the law by the officials being admitted, the Court sees thatthe effect of the transgressions was such that the election was notreally conducted under the existing election laws, or it is open toreasonable- doubt whether these transgressions may not have affectedthe result, and it is uncertain whether the candidate who has beenreturned has really been Selected by the majority of persons votingin accordance with the laws in force relating to elections, the Courtis then bound to declare the election void. It appears to us that thisis the view of the law which has generally- been recognized, and actedupon, by the tribunals which have dealt with election matters ….”
This case is a clear authority which covers the present case. I haveonly to add that it is unnecessary for me to deal with the other questionargued as to whether the Court acted without jurisdiction in grantingpermission to the members of the congregation to hold the meetingoutside the temple premises. The appeal is dismissed with costs.
Moseley S.P.J.—I agree.
Appeal dismissed. 1
1 5 O' Mallet/ and Hardens tin. Elect. Pet. 130.