079-NLR-NLR-V-69-A.-VELUPILLAI-and-12-others-Appellants-and-S.-THURAIAPPAH-Respondent.pdf
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VelupUlai v. Thuraiappah
1966 Present: T. S. Fernando, J., and Sri Skanda Rajah, J.
A. YELUPILLAI and 12 others, Appellants, and S. THURAIAPPAH,
Respondent
S. G. 49611964—C. D. Jaffna 52/TB
Evidence—Hindu temple—Evidence as to its origin—Entries in a public record madein performance of a duly enjoined by law—Admissibility—Evidence Ordinance,ss. 35, 74, 90—Trusts Ordinance, ss. 99, 102.
The defendant claimed to be the hereditary trustee of a certain Hindu templein Jaffna. In order to establish a relevant fact that the temple was foundedin the year 1860 by one Kathiresar, he produced, from the records of the JaffnaKacheheri, document D1A which contained a list of temples compiled in 1884by the Maniagar on an order received by him from his superior officer, theGovernment Agent and principal administrative officer of the Province. Thetrial Judge, observing that the administrator’s official duty was not confinedto his statutory duties but embraced all duties placed or imposed on himfrom time to time by the Government, admitted the document.
Held, that document D1A was admissible under section 35 of the EvidenceOrdinance.
ApPEAL from a judgment of the District Court, Jaffna.
H. W. Jayewardene, Q.C., with S. Sharvananda, for the plain tiffs-appellants.
H. V. Perera, Q.G., with P. SomatiUekam and P. Thuraiappah, for thedefendant-respondent.
Cur. adv. vuU.
T. S. FERNANDO, J.—VelupiUai v. Thuraiappah
393
December 13, 1966. T. S. Fernando, J.—
The plaintiffs-appellants instituted this action in terms of section 102of the Trusts Ordinance (Cap. 87) seeking from the District Court (1) adeclaration that a certain Hindu Temple called the Mahamariammantemple and its temporalities constitute a charitable trust within themeaning of section 99 of the said Ordinance, (2) a vesting order vestingthe said temple and its temporalities in a board of trustees, (3) an orderappointing a board of trustees, (4) an order settling a scheme for themanagement of the said trust, (5) an order removing the defendant-respondent on the ground of mismanagement, etc., from the position oftrustee or manager which he was alleged to have assumed and (6) anorder calling upon the said defendant to account to court for the moniesand movables received by him.
The defendant, while not denying that the said temple and itstemporalities constitute a charitable trust as alleged, contended that hewas the hereditary trustee thereof, denied the mismanagement etc.alleged against him, as also the claim of the plaintiffs to any of the reliefsprayed for by them.
After a fairly lengthy -trial, the District Judge delivered judgmentdecreeing the said temple, its assets, land and other properties to be acharitable trust as alleged, and vesting the immovable properties in thedefendant as trustee of the said temple by virtue of his hereditary rightas male descendant in the line of the original founder. The learnedjudge, however, went on to decree that the defendant shall maintaincertain books of account, that these accounts be audited and the auditedaccounts be published for the information of the congregation.
The plaintiffs, having therefore substantially failed in the action theyinstituted, preferred this appeal to this Court. Two main points wereraised before us on their behalf. The first related to the admissibilityof certain documents which the defendant relied on to establish hisclaim to be hereditary trustee, while the second was confined to thequestion of fact as to whether mismanagement was established.
The plaintiffs claimed that this temple was founded about 120 yearsbefore the trial, i.e. about the year 1844, by one Vairamuttu, the great-grandfather of the 1st plaintiff. The case for the defendant was thatthe temple was founded not by the said Vairamuttu, but by his sonKathiresar, in the year 1860.
In support of his case, the defendant was permitted by the trial judgeto produce the evidence of certain documents D1A to D4A of-the year1884 which are part of the records of the Jaffna Kachcheri. The firstpoint raised by the appellants was that the order permitting productionof these documents was illegal. The documents were in fact producedin court by a clerk of the Kachcheri, and there is little doubt that thepresumption under section 90 of the Evidence Ordinance was availablein respect of them. The dispute before us, as indeed at the trial, was
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T. S. FERNANDO, J.—Vehipillai v. Thuraiappah
•whether the contents of these documents (particularly those of theimportant document D1A) came within the class of entries declared bysection 35 of the Evidence Ordinance to be relevant facts. That sectioncontemplates entries in public records made by two classes of persons,(1) public servants in the discharge of their official duty and (2) anyother person in performance of a duty especially enjoined by the law ofthe country. The plaintiffs relied heavily on a hitherto unreportedjudgment of this Court—(document P9)—delivered on 25th September1946 by Keuneman J. and Jayetileke J. in a case1 where a somewhatsimilar question had arisen. According to that judgment, the maindocument relied on at the trial there had been one described as a certifiedcopy P36 from “ a register of gifted lands belonging to the ChidambaramAmbalavanaswamy kept at the Jaffna Kachcheri ”. Two of the landsbelonging to the temple, had been included in that “register”, and underthe column “Belonging to which madam ” was entered “The Punniana-chcham madam Under the column “ Name of person who is possessingnow” was entered the name of one K. Arumugam, the uncle of theappellants in that case. In respect of this, Keuneman J, stated :—
“It has not been established or even suggested that the ‘register’P36 was made under any statutory duty on the part of the GovernmentAgent. It appears to be a purely private document. It had not evenbeen shown for what purpose this document was made or on whoseauthority. We do not know what inquiries were made in this connectionor from whom. All that the document indicates is that it was basedon reports ‘ submitted by the Udayar and Vidhanes of the villagein question to the Maniagar ’. What knowledge these persons had orcould have had with regard to the title to these lands or the nature of the
trust affecting them has not been shown
In my opinion the document P36 should have been rejected as hearsayevidence. No section of the Evidence Ordinance makes this documentadmissible. Even if it was admissible I do not think any weightcan be attached to this evidence.”
There is no express reference in this judgment to section 35 of theEvidence Ordinance. Even if the reference to the lack of “ any statutoryduty on the part of the Government Agent ” can be considered suggestiveof the inference that the learned judge had section 35 in mind, it ispertinent to remember, as the trial judge in the instant case has doneand as I have earlier noted, that that section contemplates entries bytwo classes of persons. Persons acting in performance of a duty especiallyeninined on them by the law (statute law or otherwise) of the countryconstitute one class. It is not contended on behalf of the defendantthat the entries relied on by him in support of his claim were made by aperson or persons of this class. What is claimed is that the entry orentries have been made by a public servant or public servants in thedischarge of their official duty. Whether any particular function of apublic servant is part of his official duty is not always a question of law.
(1946) S. C. 249ID. C. (F) Jaffna No. 16614.
T. S. FERNANDO, J.—Velupillai v. Thuraiappah396
Often it is a question of fact to be determined on evidence by a judgebefore -whom the question arises. According to the evidence at thetrial the relevant entry in document D1A made in 1884 appears in ColumnIII of what is described as “a list of temples etc. in the Island Divisionfor 1884”. That column, according to the evidence, was meant forentering up the year in which a temple was founded, the manager of thetemple and the nature of the building. In that column appear the words :
“In 1860, By Vyramuttu KaderasarManager, Kadarasar ThamberStone building”.
The document D4A, the genuineness of which could not have been doubted,indicates that list D1A was compiled on an order received by the Maniagarfrom his superior officer, the Government Agent and principal adminis-trative officer of the Province. There is much point in the learnedtrial Judge’s observation that the administrator’s official duty is notconfined to his statutory duties but embraces all duties placed or imposedon him from time to time by the Government, as indeed in his otherobservation that it is idle to imagine that the Government Agent had thislist compiled for private purposes or pleasure. On the evidence in thecase, I think the "trial judge was right in admitting the documents inquestion. The first point relied on by the appellants fails.
Reference was made to two cases, Bamanather v. Ponniah 1 and Muru-gasu v. Aruliah 2 which contain statements that temple registers are notpublic documents within the meaning of section 74 of the EvidenceOrdinance, hut the question whether entries therein can fall withinsection 35 of the same Ordinance does not appear to have arisen or beenconsidered. Apart from that, it is right to add that in the instant case,the undisturbed management of this temple has been in the hands of thedefendant and his predecessors in title, a fact w’hich tells heavilyagainst the plaintiffs.
In regard to the second point, viz. that of mismanagement, the learnedtrial judge who has had much experience of this class of case has examinedthe relevant evidence at some length and has even inspected the templein order to form an assessment of the truthfulness of the defendant’sevidence in regard to expenditure incurred by him on buildings andtheir maintenance. The question is solely one of fact, and, in the cir-cumstances, I see no reason to differ from his conclusions on this point.Moreover, he has decreed a scheme of management and for keepingof accounts which has the merit of ensuring some degree of participationby the congregation in a wise handling of the trust property.
I would therefore dismiss the appeal with costs.
Sbi Skanda Rajah, J.—I agree.
Appeal dismissed.
1 (1916) 2 C. W. B. 333.
2 (1913) 17 N. L. B. 91.