RAMESH AND ANOTHER v. CHETTIAR

047-SLLR-SLLR-2004-V-1-RAMESH-AND-ANOTHER-v.-CHETTIAR.pdf


CA
Ramesh and another v Chettiar (Wimalachandra J.)
355
RAMESH AND ANOTHERvCHETTIARCOURT OF APPEALAMARATUNGA, J. ANDWIMALACHANDRA, J.
A.L.A. 349/02
C. MATALE 2/002. MISC.
OCTOBER 3, 31/2003JULY 20, ANDSEPTEMBER 2, 2004
Trusts Ordinance, sections 101 (1), 102, 104(1) (a)-(h), 102(1) and 102(2) -Lucus standi – Action filed against trustee – Failure to comply with the provi-sions of section 102(3) – Is it fatal – Is it a condition precedent?
The plaintiff-petitioners instituted action against the defendant who was atrustee of a Kovil Trust. The District Court refused the application for an inter-im injunction. The plaintiff-petitioners sought leave to appeal against the saidorder.
The defendant-respondent contended that the plaintiffs have no status and/orlocus standi to institute action as they have not complied with sections 102(1)and 102(3).
Held:
Section 101 applies to all types of charitable trusts and section 102 toreligious trusts. The plaintiff's action is with regard to a religious trustand accordingly section 102 applies.
356
Sri Lanka Law Reports
[2004] 1 Sri L.R
It appears that the plaintiffs have not submitted the plaint, to theGovernment Agent before filing it, to obtain a certificate from theGovernment Agent – Section 102(3).
The plaintiffs have no legal right or status to institute this action as theyhave failed to comply with section 102(3). It is a condition precedent toobtain the approval of the Government Agent concerned to file action interms of section 102(3).
APPLICATION for leave to appeal from an order of the District Court of
Matale.
Cases referred to:
Kurukkai v Kurukkal (1982) – 2 Sri LR 562 at 567
Siththiravelu v Ramalingam and others – 61 CLW 31
Murugesh v Sellaiah – 57 NLR 463
A.R. Surendran for plaintiff-petitioners.
S. Mandaleswaran for defendant-respondent.
Cur.adv.vult
October, 29 2004WIMALACHANDRA, J.
This is an application for leave to appeal from the order of theDistrict Judge of Matale dated 20.08.2002. When the matter wastaken up for inquiry into the question of granting leave to appeal,the defendant-respondent (hereinafter referred to as the defendant)raised a preliminary question of law, in that, whether the plaintiffs-petitioners have the right to file action in terms of section 102(1)and/or 101(2) of the Trusts Ordinance, against the defendant, whois one of the lawful trustees of the temple. The facts as set out inthe petition are briefly as follows:
The plaintiff-petitioners (hereinafter referred to as the plaintiffs)instituted an action in the District Court of Matale against the defen-dant who was a trustee of the Sri Kathiresan Kovil Trust. The saidSri Kathiresan Kovil Trust was created by deed No. 1889 dated24.12.1964. This Trust specifically provides that the NattukottaiNagarathars of Matale is the only sect of Tamils from whom atrustee can be appointed to the said Kovil Trust. The plaintiff’s posi-tion is that the defendant does not belong to the Nattukottai
01
10
OARamesh and another v Chettiar (Wimalachandra J.)357
Nagarathars sect as his mother was not from the NattukottaiNagarathars sect. In this action the plaintiffs sought the removal ofthe trustee (defendant) on the following grounds:
the defendant has no legal status to act as the trustee ofthe said Trust.
the defendant was wrongfully and unlawfully alienatingmovable and-immovable properties belonging to the saidTrust.
the defendant was illegally misappropriating moneysbelonging to the said Trust and he failed to keep anyrecord of the transactions he carried out in respect of theTrust.
The plaintiffs also sought an interim injunction restraining thedefendant from entering the office of the said Kovil and disposingthe properties, both movable and immovable, belonging to the saidTrust in terms of prayer (5) of the plaint.
When the matter was supported on 25.6.2002, the learnedDistrict Judge issued an enjoining order and notice of interiminjunction. Thereafter the defendant filed a statement of objections,objecting to the grant of the interim injunction. Thereafter the Courtfixed the matter for inquiry and after the inquiry, the learned Judgeby his order dated 20.8.2002,' refused the plaintiff’s application foran interim injunction. It is against this order the present applicationfor leave to appeal has been made by the plaintiffs.
When the matter was taken up before this Court for inquiry relat-ing to the question of granting leave to appeal, the defendant raiseda preliminary question of law that the plaintiffs have no statusand/or locus standi to institute this action against the defendant interms of the provisions of sections 101(1) and 102(3) of the TrustsOrdinance.
The learned Counsel for the defendant submitted that since theplaintiffs have not complied with the provisions of sections 102(1)and 102(3), they are not entitled to institute this action in the DistrictCourt.
It is apparent that the plaintiffs have not complied with therequirements of section 102(3), in that the two plaintiffs have notobtained the necessary report from the commissioner.
20
30
40
50
358
Sri Lanka Law Reports
[2004] 1 Sri L.R
It is the position of the plaintiffs that the Court is not barred bysections 101 and 102 of the Trusts Ordinance and that the provi-sions of these sections would not preclude the plaintiffs from main-taining their action for the reason that the action is based on theground that the defendant is not entitled to hold the office of trusteeas he has not been properly appointed. Moreover, the plaintiffsallege that they have filed the action with a serious complaint ofmisappropriation and wrongful and illegal alienation of funds andproperties belonging to the said Kovil Trust.
I cannot agree with the aforesaid submissions made by thelearned counsel for the plaintiffs in his written submissions, as theaforesaid allegation made by the plaintiffs will have to be proved atthe trial. At this stage the Court cannot act on mere allegations. Inany event the question of law before Court is, whether the Courthas the power to entertain the plaintiffs’ action when it is apparentthat the plaintiffs have failed to comply with the provisions of sec-tion 102(3) of the Trusts Ordinance.
It appears that section 101 of the Trusts Ordinance applies to alltypes of charitable trusts and section 102 to religious trusts. Thesesections provide the manner of bringing an action by the beneficia-ries where there is a breach of trust, or for the dismissal of thetrustee or demanding accounts etc. in a charitable trust (sec. 101)or in a religious trust (sec. 102). Admittedly, the plaintiffs’ action iswith regard to a religious trust, and accordingly section 102 applies.
Dr. L.J.M. Cooray in his book “The Reception in Ceylon of theEnglish Trust” at page .172 has made the following observation.
“An action under 102 must according to sub section 3, bepreceded by a petition presented to a specified adminis-trative officer, who must appoint a commission to inquireinto the subject matter of a person’s complaints, andreport that they call for the consideration of the court.”
In the case of Kurukkal v Kurukkal 0), Samarakoon, C.J. hasmade the following observations with regard to sections 101(1) and102 of the Trusts Ordinance.
“Section 101(1) deals with all kinds of charitable trustsand empowers persons having an interest in the Trust to
60
70
80
90
CA
Ramesh and another v Chettiar (Wimalachandra J.)
359
institute an action in Court with the prior permission of theAttorney-General. Section 102 deals with religious Trustsand empowers two persons interested in the Trust toinstitute an action in Court provided they first obtain thenecessary certificate from the Government Agent interms of sec. 101 (3). But for these provisions the two cat-egories of persons mentioned in these sections would nothave the legal status and right to institute such actions.Furthermore they have no right or power to instituteactions as and when they please. They must first obtainthe approval of the Government Officers mentioned.”
In the case of Siththiravelu v Ramalingam and others(2) it washeld that in an action instituted under section 102 of the TrustsOrdinance, where the certificate given by the Government Agent isnot in terms of section 102(3), the court has no power to entertainthe action. A decree, granted in an action which the Court has nopower to entertain, is a nullity and is not a valid decree.
Section 102(3) of the Trusts Ordinance reads as follows:
“No action shall be entertained under this section unlessthe plaintiffs shall have previously presented a petition tothe Government Agent of the Administrative District inwhich such place or establishment is situate praying forthe appointment of a commissioner or commissioners toinquire into the subject-matter of the plaint, and unlessthe Government Agent shall have certified that an inquiryhas been held in pursuance of the said petition, and thatthe commissioner or commissioners (or a majority ofthem) has reported-
that the subject-matter of the plaint is one that calls forthe consideration of the court; and
either that it has not proved possible to bring about anamicable settlement of the question involved, or that theassistance of the Court is required for the purpose of giv-ing effect to any amicable settlement that has beenarrived at".
100
110
120
360
Sri Lanka Law Reports
[2004] 1 Sri L.R
In the instant case, the plaintiffs have not submitted the plaint,which was filed in Court, to the Government Agent before filing it,to obtain a certificate from the Government Agent.
It is apparent that the plaintiffs have not complied with therequirement of section 102(3) of the Trusts Ordinance.130
The learned counsel for the plaintiffs relied on the case ofMurugesu v Sellaiah <3). In my view the decision in that case is nothelpful to the plaintiffs in the instant case. The learned counsel alsosubmitted that sections 62 and 63 are applicable to charitable trustsand he relied on the illustration (B) to section 63 to prove his groundthat one of the several beneficiaries can bring an action under sec-tion 62(a) of the Trusts Ordinance.
I regret that I cannot agree with the aforesaid submissions of thelearned Counsel for the plaintiffs. In the aforesaid case ofMurugesu v Sellaiah {supra) H.N.G. Fernando, A.J. (as then he uowas) at page 467 held, worshipers of a temple are entitled to availthemselves of the remedies provided for beneficiaries in Chapter Xof the Trusts Ordinance.
Chapter X of the Trusts Ordinance deals with charitable trusts.Section 102 of Chapter X deals with actions by persons interestedin religious trusts.
Furthermore, in the case of Murugesu v Sellaiah (supra) theaction was instituted by the two plaintiffs in respect of a share in thetemple land and not in respect of the management of the temple orfor the removal of any trustee of the trust or in respect of the mat- 150ters set out in sections 102(1 )(a) ti 0) of the Trusts Ordinance. Thetwo plaintiffs in the case of Murugesu v Sellaiah (supra) had notfiled the action as the beneficiaries of the temple concerned. Thisis borne out by what H.N.G. Fernando A. J. (as then he was) saidat page 465;
“The two plaintiffs in this case, who claim to be the sonsof one Vyramuttu Velupillai, sought a declaration of title toa half-share of a certain land situated at Polikandy”
In that case the question was whether Kandavanam purchasedthe property for himself, as alleged by the plaintiffs, or in trust for a 160religious charity, as alleged by the defendants.
CA
Ramesh and another v Chettiar (Wimalachandra J.)
361
In the instant case, it is to be observed that the substantivereliefs claimed by the plaintiffs attract section 102 (1)(a) to (h) of theTrusts Ordinance. Admittedly the said Sri Kathiresan Kovjl Trust isa religious trust and the plaintiff’s claim that they are worshipers ofthe Sri Kathiresan Kovil at Matale. The plaintiffs have filed thisaction against the defendants inter-alia for a declaration that thedefendant is not the lawful trustee of the said Kovil and for theremoval of the defendant from the office of the trustee.
In the circumstances the plaintiffs’ action comes under chapter 170X of the Trusts Ordinance. The plaintiffs have no legal right or sta-tus to institute this action as they have failed to comply with the pro-visions of section 102(3) of the Trusts Ordinance. It is a conditionprecedent to obtain the approval of the Government Agent con-cerned to file action in terms of section 102(3). The question of thevalidity of the appointment of the defendant as trustee is a matterto be decided at a later stage. In these circumstances the plaintiffshave no locus standi or status to institute this action against thedefendant.
For these reasons the preliminary objection raised by the defen- isodant is upheld and the application for leave to appeal is refused.
The respondent is entitled to recover the costs of this inquiry fromthe plaintiffs.
AMARATUNGA, J.I agree
Application refused.