ANTHONY GASPAR et al., Appellants, and THE BISHOP OF JAFFNA, Respondent

049-NLR-NLR-V-52-ANTHONY-GASPAR-et-al.-Appellants-and-THE-BISHOP-OF-JAFFNA-Respondent.pdf

Present: Basnayake J. and Gratiaen J.ANTHONY GASPAB et al., Appellants, and THE BISHOPOE JAFFNA, Bespondent
S. C. 90—D. C. Jaffna, 3,312
Trust-—Right of a community of persons to be beneficiaries.
Just as a community of persons can hold property or acquire rights in pro-perty, so also a community of persons can be beneficiaries under a trust deed.
^^.PPEAL from a judgment of the District Court, Jaffna.
C. Thiagalingam, with V. Arulambalam, for the defendant appellant.
H-. W. Tambiah, with D. Vivekanandan, for the plaintiff respondent.
'=Cut. adv. vult.
October 7, 1949. Basnayake J.—
, The plaintiff, the Bishop of Jaffna, is an incorporated person by virtueof section 2 of the Eoman Catholic Archbishop and Bishops of CeylonIncorporation Ordinance. His case is that two persons by name SimeonEaphiel and Anthony Gaspar, the first defendant to this action, who werethe owners of a land called Thookumarakadu (hereinafter referred to asthe land) by virtue of deed No. 6804 of February 8, 1912 (hereinafterreferred to as Dl) transferred the land to him by deed No. 6138 of May16, 1918 (hereinafter referred to as PI) with absolute power to do whathe liked with it. He alleges that the defendants have unlawfully andwrongfully erected a shed* thereon and are claiming to be entitled to beIn possession of it.
1 (1925) A. I. R. Privy Council, 130.2 C.C.A. Minutes of September 13, 1949.
In this action he seeks to have the fifteen persons whom he has namedas defendants ejected therefrom and to recover damages in a sum ofIts. 300 with continuing damages at Its. 300 per mensem until he isrestored to possession.
The ease for the fourteen defendants who filed answer is that the landwas purchased by the fishermen of Anaicottai and Kokuvil West whowere also members of the congregation of the Church of the Lady ofRefuge situated at Anaicottai with their own money and that by D1it was transferred in trust to the first defendant and one Simeon Raphiel,who by PI transferred it subject to the same trust to the plaintiff whoholds the land in trust for the defendants and other fishermen of Anaicottaiand Kokuvil West. The defendants claim that, they and other fishermenof the above-mentioned villages who also form the congregation of thechurch at Anaicottai are the beneficial owners of the land and ask for adeclaration that the plaintiff holds the land and its appurtenances intrust for them and the other fishermen of those two villages.
According to Anthony Gaspar, one of the transferors on PI and theonly witness who can claim to know personally the history of the trans-actions relating to the land, about 35 elders of the community of fisher-men at Anaicottai and Kokuvil West contributed towards the purchaseof the land which is 5 lachams in extent-. It was acquired for the beachingof boats and the storing of fishing tackle, which up to that time used tobe done at a place called Navanturai. A shed was erected thereon by thfefishermen for housing their fishing tackle and as a place of rest and pr<htection from the weather. It was later enlarged by the parish 'priest,one Rev. Father Iyan, with funds provided by the fishing community),and a watcher appointed. He was paid in kind. The catch of eachfisherman was also sold on that land and a tithe paid to the church throughits collector. About the year 1946 the driver of the present parish -priest;Rev. Father Tarcisius, contracted a marriage in the village of Anaicottai.He invited one and all. As the union was disapproved by the entirefishing community of the village, the wedding was boycotted by thevillagers. Of the villagers the collector of tithes alone attended it. Inconsequence the defendants marked their disapproval of his conductby refusing to pay the tithes to him. They tendered thfe tithes to theBishop of Jaffna, who referred them to. the parish priest. They thentendered the titles to the parish priest, who insisted on then- paymentthrough the collector. Then they asked that another collector beappointed. This request was refused. They then paid the tithes intoa special account opened by them at the Bank of Ceylon. The parishpriest retaliated by excluding from the shed on thfe land those who didnot pay the tithes to the collector. Thereupon the defendants constructedanother shed for their fishing tackle on the same land. These actionsresulted in both the parish priest and the defendants seeking the aid ofthe Police, who refused to take action on the ground that the dispute wasof a civil nature. This action was thereupon commenced.
The following issues were determined at the trial: —
“ (1) Are the defendants entitled to be *in possession of the landreferred to in the plaint?– ■■
(2) If not, is the plaintiff entitled to eject the defendants from thesaid land?:
. .(3) Barrages.
(A) Js ,the- plaintiff the . absolute owner and proprietor of the landrdesefihed: in the schedule to the plant?
If not, is the plaintiff’s action maintainable?bc-.i (§)l-If! plaintiff holding the , lajnd .in question, subject to an . express,tpust. in favoqr of the defendants , and other • fishermen of Anaicottai•japd Kokuvil West and their descendants ?.
i CT t(7) If so,.is the plaintiff’s action maintainable?
j.,,. (8). Are the defendants and ■ other (Sshermen of the villages of Anai-pottai. and Kqkuvil West entitled to :the beneficial interest in the land;in • question ?••.
(9) If so, is plaintiff’s action maintainable ? ”
The learned District Judge has held that—
the defendants are not entitled to be in possession of the land,
the plaintiff is entitled to eject the defendants therefrom,
the plaintiff is the absolute owner, proprietor thereof,
the plaintiff does not hold it subject to an express trust in favour
: ■of the defendants and other. fishermen of Anaicottai and Kokuvil
AVest and their descendants, and
that the defendants and other fishermen' of the villages of Anaicottai
:■ an'd Kokuvil West are not entitled to the beneficial interest
. therein.
•The', defendants dissatisfied with the decision of the learned DistrictJudge have appealed to this Court.
■ The questions 'arising for decision on this appeal have in my opinionto be resolved by an examination of the documents D1 and PI. Theplaintiff has also produced marked P4 a translation of Dl. The differences•in the two translations are not material. The relevant portions of Dlread—- !'•• '
“ Know all men by these presents that I Murugesar Ponnampalam of•; Vannarponnai West Jaffna do hereby execute deed of transfer in favourof Simon Raphiel and Anthony Kaspar of Kokuvil West, to wit—
• Dand situated at Anaicottai in the parish of Manipay ValikamamWest Division of the Jaffna District, Northern Province called “ Thook-kumarakadu ” in extent 2 acres and 28 perches of this on the south< western side the extent of 5 1ms p/c is bounded on the east and north4 by the remaining portion of this land belonging to me, west by laneintended for leading cattle, and south by road; the whole within theseboundaries is hereby sold and transferred to the said persons at theprice of the said sum of rupees forty two and cents fifty (Rs. 42/50)..I have received this sum of rupees forty two and cents fifty from the saidtransferees in full who declared that the said amount has been entrustedto them by that section of the catholics of those catholics belonging to theChurch of Lady of Refuge Anaicottai who form the Catholic KaravaCommunity of Kokuvil TVest. This sum of money they stated wascollected among the said section of the catholics for the purpose of pur-chasing a land to be used by the said section of the catholics and theirdescendants as a place f&r keeping implements and selling fish. I havingreceived the said amount do hereby sell and transfer the said land to thesaid section of the Catholic Karava Community for the aforesaid’purpose.”
It is dear from the passage -italicized that the first defendant aridSimon Raphiel held the land on that deed as trustees- foir the group o?persons whom they represented, viz., “'that seetdon of the catholics-ofthose catholics belonging t-o the Church of Lady of Refuge Anaieottnaiwho form the Catholic Karava Community of Kokuvil West.”1
The declaration of the first defendant and Simeon Raphiel in deed Ifis as follows : —J '
“ We Simeon Raphiel and Anthony K as par both of Koku til West inJaffna do hereby declare.»::J
Whereas the Catholic people belonging to the Church of Lady ofRefuge at Anaicottai and the Karava Catholic people of Kokuvil Westbelonging to the said chinch have collected money and given us to go-in for a piece of land for use by them and their descendants as a Porfrand for selling fish and whereas we having out of the said money put-chased a pieee of land described below and whereas It- Is not proper forus to retain the land in our names bought out of publie : funds and asit is but just and reasonable to surrender all properties common to the?Catholic cause to the Catholic Mission.
Xow know all men by these presents that we Simeon -Raphiel and'Anthony Kaspar both of Kokuvil West do hereby convey transfer and)set over and assign to Dr. Henri Julain, O. M. I. Bishop at Jaffna ofthe Catholic Mission the following property.
Land belonging to us by right of purchase and possession of the saidKarava people as per transfer deed dated the 8th day of February 1912and attested by S. Sivaprakasapillai Notary under No. 6804.
For reasons above described we do hereby transfer unto the saidRt. Rev. Dr. Henri Julain and his successors in office and bis and theirassigns the said property with its appurtenances.
Therefore that the said Rt. Rev. Dr. Henri Julain Bishop and hiasuccessors his or their assigns may for ever have the absolute rightand power and title to sell, mortgage, to exchange for another tlu>whole or any portion of the said land and that he or they have theright to deal with this property in any way they like and utilise theproceeds or the land exchanged for whatever purposes he or theydesire.”v
PI indicates in no uncertain terms that the transferors were trustees for-the community of persons described therein. Although the transferorsgive the transferee absolute right and power to sell the lanrl anil to dealwith the property in any way he likes that power cannot be exercised inderogation of the trust created by the instrument under which the?transferors derive their title. As trustees they ha’d no power to alterthe terms on which they held the property. Even the plaintiff has up tothe date of the dispute which gave rise to this action acted on the footingthat he is the trustee for the community of persons indicated by PI and,Dl. There is no provision of the Trust Ordinance which invalidate the- trust created by Dl and there is no reason why it should not prevail. A,community of persons can hold property or acquire rights in propertyIn the same way a community of persons cab be beneficiaries under a?trust deed. It is not disputed that the defendants belong to the class of.persons for whose benefit the land has been provided. But it is claimed
that they have forfeited their right to its enjoyment by non-paymentof tithes. Although Rev. Father Tareisius says:“ The shed in question
is used only by those fishermen who pay tithes. The fishermen who refuseto pay tithes are not entitled to use it. ”, there is nothing in the instru-ments from which they derive their rights which makes the right to usethe land dependent on payment of tithes. Nor is there any preciseevidence to show that a fisherman who does not pay tithes ceases to bea Roman Catholic. Father Tareisius says:“It is the practice of the
Catholic fishing community to pay 1/ltt of their catch to the church. Ifthey do not pay they are not entitled to their rights.” The witness doesnot explain what he means by “ their rights ”. In the absence of a cleardefinition of those words I am not 'prepared to read them as includinga forfeiture of such rights as they are entitled to under the instrumentsin question.
. It is unnecessary for the purposes of this appeal to discuss the questionsof law relating to charitable trusts which learned counsel for therespondent raised.*
The appeal of the defendants is allowed and the plaintiff’s actionis dismissed with costs.
Application allowed.
C-RATiAEN J.—I agree.