078-NLR-NLR-V-58-RATGAMA-PANNASEKERA-NAYAKA-THERO-Appellant-and-H.-A.-CALDERA-et-al.-Respond.pdf
1956Present : K. D. de Silva, J., and Sansoni, J.
RATGAJIA PAXXASEKERA XAYAKA THERO,Appellant, and H. A. CALDERA ct af., Respondents
C. 360—D. C. Colombo, 44S;Z
■Charitable trust—Tien cjiciartj's right to rents and 2>rofits—Enforcement—TrustsOrdinance, ss. -j7, G->.
Tlio 2nd and 3rd defendants, who were appointed as trustees to administer acharitable trust “ for the solo use and for tlic purposes of defraying expensesfor the support ” of a Viliare, gave an informal lease of a portion of the trustproperty to the 1st defendant. It was possibIc to contend that the lease wasnn improvident- one or that it amounted to a breach of trust. The plaintiff,who was the Viharadhipalhi of the temple, instituted the present action for adeclaration that tlio lease was null and void and to obtain an injunctionrestraining the 1st defendant from acting under the lease. Ho also claimeddamages.
Held, that the action was maintainable tinder section 0 7, read with section03, of the Trusts Ordinance.
A .EIPPEAL from a judgment of the District Court, Colombo.
II. IP Jaycicardtnr. Q.C.. with R. dc Zoy-sa anti 31. 16. S. Jayasekcra’for the plaintiff appellant-.
II. TI~anitjalunrja, with E. A. D. Atukorale, for the 1st, 2nd and 4thdefendants respondents.'
Cur. adv. vult.
.Tul' 1950.3v. D. de Silva, J.—
One Don Magris de Silva Tillekoratne by his Last Will Xo. 954 dated17.I2.1S55 (PI) created a Charitable Trust in the following terms :—
" I gi’-'e and bequeath all the produce, rent and issues and income of .the garden, situate at Borella on the high road within the gravets of
Colombo, bounded on tlie North by the road leading to Slave Island’on the South by a road, on the Hast by a road leading to Maragaha-watta alias Ivanatta and on the West by the Cinnamon Garden forthe sole use and for tho purpose of defraying expenses for the supportof the Buddhist Temples called Dadalle Walukarama Vihare situateat Datlalla and Ambagahapitiya Pansala both situate in Galle Districtand for tho purpose of defraying expenses to keep a lamp light burningfrom 6 p.m to 6 a.m. during two nights in every month in the ICelaniyatemple which shovdd continue during the continuance of the saidTemple …. ”
This Last Will was admitted to probate. In D. C. Colombo Case No. 353(Special) the 2nd and 3rd defendants were appointed trustees toadminister this Charitable Trust. Tho plaintiff is the Viharadhipathiof Walukarama Vihare. The 2nd defendant is the Viharadhipathi andthe 4th defendant is the trustee of Ambagahapitiya Pansala. The 2ndand 3rd defendants by informal agreement dated 10.10.1933 marked Apurported to lease to the 1st defendant an extent of 3 roods and 10 perchesof the land which is the subject matter of the trust at an annual rentalof Es. 25 for the purpose of putting tip a school building. This informallease also provided that the 1st defendant was also to pay to the lessorsa sum of Rs. 10 for each coconut tree he may have to cut down to enablehim to put up the building. It further provided that the lessee and hisheirs were entitled to the school as long as it was conducted by them.But in the event of the lessee dying without heirs the school and thebuildings were to become the property of the temple. The plaintiffinstituted this action for a declaration that the said lease was null andvoid and to obtain an injunction restraining the 1st defendant from fellingthe trees or putting up buildings on the land. The plaintiff also claimeddamages. The 1st, 2nd and 4th defendants hied answer denying, interalia, the right of the plaintiff to maintain this action. Of the severalissues framed at the trial tho learned District Judge, on the motion of theCounsel of the 1st, 2nd and 4th defendants, proceeded to try issues 7 andS as jjrcliminary issues. These two issues are the following :—
Issue Xo. 7. Is the plaintiff entitled to have and maintain this actionagainst the 1st defendant ?
Issue Xo. «9. Does tho plaint disclose a cause of action against all orany of the defendants ?
The learned District Judge hold that the plaintiff was entitled only to thoproduce, rents and income from tho garden and had nothing whatever todo with the landed property and that the persons who were’ liable to givet-hc plaintiff his rents and income were the trustees. Accordingly hoanswered both issues against the plaintiff and dismissed his action withcosts. The order made by the learned District Judge in m3- view isclear!v wrong. A perusal ot the informal lease PI shows that its termsarc rather detrimental to the interests of the beneficiaries one of whomadmittedly is the plaintiff. The land in question is situate in a residentialpart of the Citj'. It Mas stated by Mr. Jaya warden© lrom the Bar thatthe property is a very valuable one. I have no reason to doubt that itis so. The felling of the coconut t rees would naturally reduce the incomeand might diminish the value of the land. Already forty coconut treeshave been cut down. The extent of the land leased is .‘1 roods and 10perches but the annual rental payable is only JR-s. 20. Section 07 of theTrusts Ordinance (Cap. 72) states :—
*•' The beneficiary has, subject to the provisions of the instrument oftrust, a right to the rents and profits of the trust property. ”
The rents and profits contemplated by this section must mean reasonablerents and profits and not a ludicrous rent. According to section 63 ofthe Trusts Ordinance the beneficiary has a right to compel a trustee toperform his duty and restrain him from committing any contemplatedor probable breach of trust. It may well be contended that a lease suchas the one in question amounts to a breach of trust or that it is an impro-vident lease. .These are questions of fact which have to he decided onevidence. If they are answered in favour of the plaintiff ho would hoentitled to maintain the action. I would therefore allow the appeal andset aside the order made by the learned District Judge The case wouldnow proceed to trial on all the issues already framed. The 1st, 2nd and3rd defendants will pay the costs of this appeal to the plaintiff.
Saxsoxt, J.—I agree.
Appeal nlloirr.il.