007-NLR-NLR-V-52-HUNTER-Government-Agent-W.P.-Appellant-and-SRI-CHANDRASEKERA-Respondent.pdf
1950Present : Jayetileke C.J. and Dias S.P.J.HUNTER (Government Agent, W.P.), Appellant, andSRI CHANDRASEKERA, Respondent
S. C. 36—ID. G. (Inty.) Colombo, 66/Trust
TrustVesting order—Correct procedure to be followed in making application—
Civil Procedure Code (Cap. 86), s. 595—Trusts Ordinance (Cap. 72), s. 112 (1).
Where a person asks for a vesting order under section 112 of the TrustsOrdinance, without asking for any further remedy on a cause of action, theprocedure must be by way of summary procedure and not by way of regularaction..
Muttukumaru v. Vaithy (1937) 18 C. L. Bee. dissented from. Tambiah v. Kasi-pillai (1941) 42 N.B.B. 558 and A mb (Slav anar v. Somasundera Kurukkal (1946)48 N. It. R- 61 distinguished.
A.PPEAL from a judgment of the District Court, Colombo.
One M. James Fernando Sri Chandrasekera, by his will dated 1909,created a trust known as “ The Sri Chandrasekera Fund ”. He appointed“ The Government Agent, Western Province ” and “ The ColonialSecretary ” to be the trustees of the fund and provided that in the eventof these two officers or either of them declining or being in any wiseunwilling or unable to act as trustees, it was to be lawful for his widowand two others named in the will to appoint in writing “ a member of theExecutive Council ” of Ceylon, or, failing them, any other fit and properperson”. The Government Agent, Western Province, and the ColonialSecretary were the trustees of the fund. Owing to the changes in the•Constitution the office of Colonial Secretary was abolished. The widow,-thereafter, acting under the power of appointment, purported to appoint;a trustee in place of the Colonial Secretary. The Government Agent,Western Province (the other trustee), thereupon, moved under section112 of the Trusts Ordinance for a vesting order in favour of the PermanentSecretary to the Minister of Home Affairs and Rural Development,.alleging that this officer was the psoper successor to the Colonial Secretaryand that there was an uncertainty as to the person in whom the title ofthe said trust vested. On a preliminary objection taken by the Widowthe District Judge dismissed the application of the Government Agent,holding that the application should have been by regular action and notby way of summary procedure.
V. Perera, K.G., with E. B. Wikramanayahe, K.C., and L.G. Weera–mantry, for the petitioner-appellant.
No appearance for respondent.
Cur. adv. vult.
August 31, 1950. Dias S.P.J.—
In his will of 1909 one M. James Fernando Sri Chandrasekera createda trust known as “ The Sri Chandrasekera Fund ”. He appointedThe Government Agent, Western Province, and The Colonial Secretary•to be the trustees of the fund, and provided that in the event of thesetwo officials or either of them declining, or being in any wise unwilling■or unable to act as trustees, it was to be lawfid for his widow and two•others named in the will to appoint in writing “ a member of theExecutive Council ” of Ceylon, or failing them “ any other fit and properperson’ ’.
It is obvious, having regard to the date of the will, that the creator ofthe trust wanted his trustees to be high officers of the Colonial Govern-ment of that time. If those two officials or either of them could not act,-their place was to be taken by a member of the Executive Council-—aAaugust body consisting mainly of officials. It was only if such ah.appointment could not be made that an ordinary mortal was to beappointed.
Hie petitioner-appellant is the Government Agent, Western Province,one of the trustees. He moved the District Court of Colombo in summary■procedure under s. 112 of the Trusts Ordinance, which reads :
“ S.112 (1). In any of the following cases, namely—
where it is uncertain in whom the title to any trust property isvested,
(irrelevant)
the Court may make an'order (in this Qrdinance called “ a vestingorder ”) vesting the property in any such person in any such manneror to any sueh extent as the Court may direct.”
The appellant says that owing to changes in. the constitution of Ceylonthe office of Colonial Secretary was abolished and replaced by that of•Chief Secretary, and that this latter office has also been abolished, and,some of the functions of the Chief Secretary have now devolved ‘on the■Permanent Secretary to the Ministry of Home Affairs and Hural Develop-ment. The appellant says that this Permanent Secretary is the .proper-successor to the Chief Secretary as Trustee of the said Fund. > The.widow of the creator of the- Trust (the respondent), however, has purport-ed to appoint a trustee as successor ta> the Chief Secretary in pursuanceof an alleged power of appointment given to her by the last will. Theappellant says that in the circumstances he has been advised that thewidow is not entitled to appoint a successor to’the Chief Secretary. Hesubmits that, therefore, it being uncertain in whom the title to the saidtrust is vested, it has become necessary .to apply under s. .112 -of theTrusts Ordinance for a vesting order.
The respondent appeared and objected. The . District Judge dealtwith a preliminary matter and dismissed the appellant’s applicationon the ground that he should have filed a regular action, and that havingmoved in summary procedure his application failed'.
At the hearing of this appeal, the respondent did not enter anappearance.■
In my opinion the finding of the learned District -Judge is wrong-andcannot be supported.■> ''■ ■
’ S., 112 does not indicate what procedure should be followed whenmaking an application under that section. In Muttucum.aru v. Vaithy 1
Moseley J, said:“ It is, however, contended thatif he is pot
entitled to an order under s. 102 (of the Trusts Ordinance), he may applyto the Court for a vesting order under s. 112 (1) (i). Such an order may-be made when it is Uncertain in. whom the title to any trust propertyis vested. The plaintiff has not alleged any such uncertainty, nor hasit been shown that any exists. His claim in this respect must, therefore,fail. Nov is it, clear that the Gourt, except in a proceeding under s. 101 ors. 102 can make a vesting order under s. 112 itself. If it' is the intention ofthe Ordinance to confer such a' power upon the Court, it is strange thatit does not indicate the procedure to be adopted for the purposeWiththe greatest respect, I am unable to agree with the dictum that a Court’cannot make a vesting order under s. 112 except in a proceeding underss. 101 or 102.
In Ta-mbiah v. Kasipillai 2 the plaintiff claiming that he was thelawful hereditary trustee of a Hindu temple brought an action in regula.rproeedure (a) for a declaration that he was the lawful trustee and managerfor the protection of the temple and its temporalities; for an accountingand for the ejectment of the defendant; and for damages. (b) Asancillary relief he prayed for a vesting order under s. 112 in regard tothe temple and its temporalities on the ground that- it was not possibleto ascertain the successors in title of the various properties whichconstituted the temporalities- of the trust; and it was uncertain in whom.
1 (1937) IS C.L. Rec. 5 ; 12 C.L.W. 9.* (1941) 42 N. L. R. 558.
the legal title thereto was vested, (c) He also prayed for an injunction'.It appeared that in an earlier proceeding the plaintiff had proceeded bywav of summary procedure and his application was dismissed. Theplaintiff appealed against that order in 40 N.L.R. 298 but his appealfailed on a preliminary point, and the point of law which now arisescould not, therefore, be argued. In- 42 N.L.R. 558 this Court held thatthe plaintiff could sue rei vindicatio for the trust property without havingrecourse to s. 102 of the Trusts Ordinance. It was further laid down thata claim to a vesting order .under s.all2 may be asserted in connection withthe rei vindicatio action. Keuneman J. said:" S. 112 applies to all
cases of trusts and not only to religious trusts I have not been able
to find, nor has counsel been able tfo show me, any section which laysdown -a procedure relating to a vesting order- in connection with theordinary trust as distinct from a religious trust. I do not think, where» power has been expressly given in the Ordinance, we can deny to theparties requiring the exercise of that power some appropriate procedure*In this case in earlier proceedings, it was held that a mere applicationto Court was not the proper procedure, but that a regular action wasneeded. As there was no appeal from that order, for the purposes ofthis case, that particular point may be regarded as settled. I hold thatthe claim to a vesting order may be asserted in an action, and that thepresent action is in order so far as it relates to the claim for a vestingorder.” There are certain point's which strike, the eye in regard to thisease. In the first place, Keuneman J. did not express agreement withthe finding by the District Judge in the earlier proceeding that an applica-tion for vesting order should be made by regular action. All he says isthat there having been no appeal taken against that order, he is content<c for the purposes of the case ” he was dealing with to assume thatpoint to be settled. In the second place, this case is an authority forthe proposition that where a person having a cause of action files anaction in regular procedure, it is open to him to tack on to that action an,application for relief under s. 112 of the Trusts Ordinance. This case istherefore not an authority for the proposition that when a person seeksrelief under s. 112 for one of the two reasons specified in that Section,without asking for any other relief, he must do ’ so in a regular action'.
Finally we have Amblavdnar v. Somasundera Kurahkal 1. Plaintiffas the hereditary trustee of a madam filed a regular action against' thedefendants for ejectment and damages. He also added a prayer for avesting order under s. 112. Canekeratne J. said: “ No special procedurehas teen prescribed for obtaining a vesting order; but s. 116 (1) makesthe enactments and rules relating to civil procedure for the' time beingapplicable to, all actions and other proceedings under the TrustsOr (finance. The District Court (Supreme Court ?) can also direct * theprocedure to be followed' in certain cases• (sub-seCtion 2). Applicationfor obtaining relief may be* made, according to the Civil Procedure Code',’in one of two ways—either by regular ■procedure or by summary 'procedure'.
The former is the normal mode the latter is the exceptional' modes
No complaint can be made against the constitution of this action if theappropriate procedure was to file a regular action; if the correct1 {1946) 48 N. L. R. 61.■ i
mode of proceeding was by petition the fact that the plaintiff has madehis application in the form of a suit may be regarded as a merely formaldefect which has done nobody any harm, as the Court had jurisdictionto give relief- The decision in Tambiah v. Kasipillai 1 shows thatthe claim to a vesting order can be asserted by action”.
Amblavanar v. Somasundera Kurukkal2 does not decide the point,which now arises. In both the earlier cases, the plaintiff had filed anaction in regular procedure on a cause of action against a defendant, andhe was permitted in both cases to tack on an application for a vestingorder to the other relief he claimed. In the present case the GovernmentAgent is not suing the respondent on a cause of action. All he has soughtto do is to draw the attention – of the proper Court to a certain state o£facts, and has' invited- that Courf( to make a proper order. In these procee-dings no contest has arisen between rival claimants to the trusteeship.
would refer to the provisions of s. 595 of the Civil Procedure Code-which, although it does not affect the present case, is interesting as itdeals with an analogous matter. S. 595 provides that “ Applications tothe District Court for the exercise of its jurisdiction for the appointmentor removal of a trustee, and not asking any further remedy or relief, maybe made by petition in the way of summary procedure hereinbeforeprescribed.”
In my opinion, where a person asks for a vesting order under s. 112of the Trusts Ordinance, without asking for any further remedy, theprocedure musti be by way of summary procedure and not by way ofregular action. .By proceeding by way of regular action the petitioner-for a vesting order- under s. 112 would lose the vital and fundamentalbenefits of s. 112 (2). The class of cases for which s. 112 was designed arethose in which the Court should act summarily and speedily, and not bymeans of a protracted regular action. S. 595 gives an indication of what-the proper procedure in a ease like this should be. If in regard to theappointment and removal of a trustee summary procedure is necessary,it would appear to be equally necessary when it becomes the duty of the-Court to vest a person with the status of trustee. The relief indicatedin s. 112 (5) appears to be more appropriate to summary- procedure than, toregular procedure. Proceedings under s. 112 approach closely to theprocedure under the Entail and Settlement Ordinance (Chap. 54).
The resultant position which emerges from these considerations isthat where a person, without making any other claim against a personon a cause of action, merely asks for one of the two kinds of reliefmentioned in s. 112, he should apply by way of summary procedure.
therefore set aside the order appealed against, and direct that theDistrict Judge should proceed with the inquiry. As the respondentdid not appear at the hearing there will be no costs of appeal, but therespondent must pay to the petitioner the costs of the proceedings in
the District Court.
Jayetixjeke C. J.—I agree.r
(1941) 42 AT. L. R. 558.
a (1946) 48 N. L. R. 61.
Order set aside-