079-NLR-NLR-V-71-T.-R.-CHARLIS-APPU-KAPURALA-and-another-Appellants-and-A.-MANIS-APPU-Respond.pdf
Charlia Appu Kapuraki v. Mania Appu
SCO
Present: Manicavasagar, J., and Samerawickrame, J.
T. R. CHARLIS APPU KAPURALA and another, Appellantsand A. MANTS APPU, Respondent
S. C. 274164—D. C. BaduUa, 2163jM
Buddhist ecclesiastical law—Trustee of a temple—Suit against him in his personalcapacity—Substitution of party in case of his death pending action—CivilProcedure Code, a. 404—Buddhist Temporalities Ordinance, a. 18.
Plaintiff sued the 1st defendant and the Basnayake Nilame of the Katara-gama Devale (2nd defendant) for damages for wrongfully preventing him fromexercising his right to officiate as Maha Kapurata of the Ruhunu Maha Katara-gama Devale during the month of Esala, 1961. The action was framed againstthe 2nd defendant personally and not in his official capacity as BasnayakeNilame. Pending the action the 2nd defendant died and the added defendant,who was successor to the deceased in the office of Basnayake Nilame, wassubstituted in his place.
SAMERAWICKRAME, J.—Charlie Appu Kapurala v. Mania Appu 351
Held, that the substitution of the added defendant in place of the deceased2nd defendant was bad because the action as originally framed was againstthe 2nd defendant personally and not In his official capacity as BasnayakeNilaroo.
-AiPPEAL from a judgment of the District Court, Badulla.
♦
H. W. Jayewardene, Q.C., with C. R. OunarcUne, A. ti. E. Molamureand L. C. Sencviratne, for the 1st defendant-appellant and substituteddefendant-appellant.
C. D. 8. Siriwardena, with B. Bodinagoda and Miss 8. Lenaduwa, for theplaintiff-respondent.
Cur. adv. vult.
February 21, 1967. Samebawickrame, J.—
The plaintiff-respondent instituted this action against the 1st defendant-appellant and one W. A. Ratwatte. In his plaint dated 28th June, 1961,he averred that he was the present holder of the hereditary office of MahaKapurala of the Ruhunu Maha Kataragama Devale, Kataragama, andthat as Maha Kapurala he was entitled to the possession of the “ etuikattala ” or “ devale ” and to appoint Mas Kapuralas for a period of amonth to officiate at the said Devale. He also stated that as MahaKapurala, he was entitled to officiate during the month of Esala commen-cing on the 13th day of July, 1961 and ending on the 12th August, 1961.He alleged that he had appointed the 1st Defendant to officiate at theDevale but that on the expiry of his term, the 1st Defendant had failedto hand over possession of the Devale and to surrender the key to him.He alleged that the 1st Defendant had bo acted on the instructions ofthe 2nd Defendant and that the two defendants were acting in collusionin order to prevent him from exercising his right to function during thefestival month of Esala. He prayed for a declaration that as MahaKapurala he was entitled to the possession of the said Devale at all timesand to supervise functions of the “ etui kattala ” and the right to carryout the daily ritual of the Devale from the 13th July, 1961, until the12th August, 1961 and to collect the “ arichchinam ” offerings duringthe said period, and also for damages in a sum of Rs. 60/- per day for theloss of “ arichchinam ” offerings from the 13th July, 1961 until he wasrestored to possession. The defendants filed answer denying that theplaintiff held hereditary office of Maha Kapurala or that he was entitledto the possession of the Devale or to appoint Mas Kapuralas.
During the course of the trial, W. A. Ratwatte died and the plaintiffasked for and obtained substitution in the first instance of a legalrepresentative in his place, but later he. made an application to .Courtstating that the earlier order of substitution should be vacated mid thatthe present 2nd Defendant, who is the successor to W. A. Ratwatte in
352 SAMERAWICKRAME, J.—Charlie Appu Kapurala v. Manie Appu
the office of Basnayake Nilame of the Kataragam Devale should besubstituted in his place on the footing that there had been a devolutionof interest within the meaning of Section 404 of the Civil Procedure Code.Though the 1st Defendant and the substituted 2nd Defendant resistedhis application, the Court made order substituting S. L. Ratwatte,Basnayake Nilame of the Ruhunu Maha Kataragam Devale in place ofthe original 2nd Defendant.
After trial, the learned District Judge held that tho plaintiff was notthe holder of the hereditary office of Maha Kapurala nor entitled topossession of the Devale nor to a right to appoint Mas Kapuralas, buthe held that there was such an office as Maha Kapurala which the plaintiff-respondent held and that as Maha Kapurala he was entitled to officiateat the Dovale during the month ofEsala and II. He further held thatthe claim for damages was premature in that the plaint had been filedon the 28th June, 1961 and the plaintiff’s right to officiate did not ariseuntil the 13th July.
In appeal, Mr. H. W. Jayewardene, Q.C., appearing for the defendants-appellanfcs submitted —
that the action was premature and that no cause of action hadaccrued in favour of the plaintiff-respondent at the date of itsinstitution :
that the substitution of the present holder of Basnayake Nilameof the Ruhunu Maha Kataragam Devale in place of the original2nd defendant was bad as the claim in the action was one for whichthe original 2nd Defendant was personally liable :
that the relief granted by the District Judge was not relief soughtfor by the plaintiff-respondent in his plaint and should not havebeen ordered.
Mr. Jayewardene further raised a plea of res judicata and submittedthat the decision in a connected case, S. C. 202/61 (F) D.C. Badulla 13686,was conclusive between the parties on the matters in issue in this action.Final judgment in that action had been delivered by this Court on the8th Octobor, 1966 after the petition of appeal in the instant case hadbeen filed. In support of his plea, Mr. Jayewardene produced andmarked the following documents :—
XI—Petition of appeal in S.C. 202/61 (F).D.C. Badulla 13686.
X2—Statement of cross-objections of added defendant.
X3—Statement of cross-objections of Plaintiff-respondent.
X4—2nd statement of cross-objections of plaintiff-respondent.
X5—S.C. Minutes of 29.6.65
X6—Judgments of the Supreme Court.
8AMERAWICKRAME, J.—Charlie Appu Kapurala v. Mania Appu 353*
The plaint and the issues in that case had been produced and markeddaring the course of the trial.
It would bo convenient to deal first with the point that the substitutionof the added defendant was bad because the action as originally framedwas against the late W. A. Ratwatte personally and not in his capacity'as Basnayake Nilame. Mr. Jayowardene submitted that the liability of atrustee in respect of a contract or tort is personal and the questionwhether he is entitled to indemnity from trust funds must be decidedby a Court in other proceedings than that in which the action was brought.The plaint in this case contains a claim for damages in respect of wrongfulacts alleged to have been committed by the defendants in collusion andthe declaration .prayed for is in respect of the right of the plaintiff whichhad been denied and/or derogated from by the said acts of the defendants.Mr. C. D. S. Siriwardena, who appeared for the plaintiff-respondent,stated that there might be some force in Mr. Jayewardene’s contentionif the matter concerned an ordinary trustee. Ho pointed, however, toSection 18 of the Buddhist Temporalities Ordinance and submittedthat the effect of that section waB to render a trustee of a Buddhist templeor devale a quasi corporation sole, and that therefore, upon the deathof a trustee the proper person to be substituted was his successor inoffice.
To consider this contention, it is necessary to find whether this actionwas framed against Mr. Ratwatte as a trustee or against him personally.In the caption of the plaint, the 2nd Defendant is stated to be “ WilfredA. Ratwatte of Samarakoon Walauwa, Badulla, and Basnayake Nilameof the Ruhunu Maha Kataragama Devale ”. Nowhere in the plaint isit stated that he is being sued in his . capacity as Basnayake Nilame.The fact that he is Basnayake Nilame is set out in paragraph 4 of theplaint. When one considers the terms of paragraph 4, it would appearthat that fact is set cut in order to show that as Basnayake Nilame hewas in charge of the affairs of the Devale other than those pertaining tothe “ etui kattala ” or “ devale ” proper. Paragraph 4 reads as follows : —“ The second defendant is the Basnayake Nilame in charge of the temporalaffairs of the Dewala and is the Head, of the Pita Kattala or the officersserving outside the Dewala and as such has nothing to do with religiousrites in the Dewala or the Etui Kattala It appears to me also thatthe reference to his being Basnayake Nilame in the caption to the plaintis merely descriptive. ' Accordingly, the plaint, on the face of it, appearsto have been framed against Mr./Ratwatte personally.
Having regard to the claim for damages made in the plaint againstthe defendants, it would appear to me that it could not have been theintention of the plaintiff to sue Mr. Ratwatte in his official capacity soas to make funds of the Devale liable in respect of his claim. It appears. that the claim made in the actirn is one in respect of which Mr. Ratwattewas liable personally. In fact it may. well be that Mr. Ratwatte couldhave been sued in his official capacity as Basnayake Nilame only29 – PP 006137 (98/08)c
354SAMERAWICKRAME, J.—Charlie Appu Kapurala v. Mania Appu
in an action in which title to the property of the Devale was involvedAnd he was called upon to be a party to the action as the legal holder ofthat title. Certainly, he could not have been sued in his official capacityin respect of wrongful acts alleged to have been done by him.
But even if this was an action that had been framed against Mr. Ratwatteas trustee, I do not think that Mr. Siriwardena’s contention that Section18 of the Buddhist Temporalities Ordinance has the effect of making atrustee of a Buddhist temple or devale a quasi corporation sole is correct.This matter has been considered in the case of Hayley v. Nugawela l. Atpage 167, L. M. D. de Silva A.J., in considering Section 30 of the BuddhistTemporalities Ordinance No. 8 of 1905, which is the same as Section 18of the present Ordinance, stated, “ The question was considered whetherthis section and the Ordinance as a whole made the trustees acorporation with power to contract as such. If it does, then theproperty of the corporation and not the property of the personsconstituting it would be liable in-execution when trustees enter intoa transaction in a corporate capacity. In the first place, it is to benoted there is no express provision such as is to be found in the SocietiesOrdinance, 1891 (Section 9 (1), the Co-operative Societies Ordinance, 1921(Section 17), the Nuwara Eliya Board of Improvement (Amendment)Ordinance, 1924 (Section 4) and a number of other Ordinances makingthe trustees a corporation. Such provision is not absolutely essentialso long as the intention to create a corporation is evident from theOrdinance (8 Halsbury p. 320). Is such an intention evident ? Section17 of the Ordinance provides for the election of “ one or three trustees ”for every temple. If trustees so appointed are a corporation, then theyare a corporation aggregate and ‘ can as a general rule only act or expressits will by deed under its common seal ’ (8 Halsbury p. 309), but theOrdinance does not provide for such action. No seal is provided. Thenon-existence of a seal in the case of a body alleged to be a corporation,though not conclusive is cogent evidence against incorporation (8 Halsburyp. 309). Then again, if the trustees are to be regarded as a corporationthe only properties possessed by it would be the temporalities. Theview that the trustee is a corporation would therefore take away fromthe temporalities the protection ordinarily afforded by law to trustproperty, namely, that the right of a creditor of a trustee against trustproperty is no higher than that of the trustee. The corporation could incura debt and the temporalities could be made liable without the inter-position of an inquiry by Court as to whether or not the debt was properlyincurred on behalf of the trust estate. I do not think the legislaturecan be presumed to have taken away this protection from the Buddhisttemporalities when, as it appears from the Ordinance, it has not done soby express provision ”.
This judgment is in point and I think it should be followed.Mr. Siriwardena cited the case of Knight and Searle v. Dove and others,*in which it was held that a Trustee Savings Bank could be sued in its
* (1964) 2 A. B. R. 307.
1 (1933) 35 N. L. R. 157.
S AMERAWTCKRAME, J.—Charlie Appu Kapurala v. Mania Appu 356
-own name for damages for wrongful conversion of the proceeds of certaincheques though the Bank was neither made a corporation by the Statutewhich created it nor made liable to be sued in its own name. Thatdecision appears to have gone on the basis of the circumstances relatingto the business carried on by the Trustee Savings Bank and is entirelydifferent on the facts to the matter before us.
It is significant that in Hayley v. Nugawela, the defendant was suedas trustee and decree was entered againBt him as trustee, yet it was heldthat he was personally liable as the action was on a contract. I, therefore,hold that the action originally instituted by the plaintiff was one uponwhich W. A. Ratwatte could have been made personally liable only andthat the added defendant, who is the holder of office of Basnayake Nilame,should not have been substituted in his place and should not have beencalled upon -to answer for the wrongful acts alleged to have beencommitted by the said W. A. Ratwatte. I think that the appeal of theadded defendant-appellant must be allowed and the action against himdismissed.
On the findings made by the learned District Judge, I am also of theview that in any event no cause of action had arisen in favour of theplaintiff at the time he came into Court. The only wrongful acts allegedby him against the defendants are that the 1st defendant failed to giveup to the plaintiff the key of the devale and to surrender to him possessionof the “ Etui Kattala ” or “ devale ” at the conclusion of his month ofoffice and that he was continuing in wrongful possession of the devaleand that these acts were done by him in collusion with the 2nd defendant.The learned Judge has held that the plaintiff was not entitled to possessionof the ** Etui Kattala *” or “ Devale ” nor to have the key of the “ EtuiKattala ” or “ devale ” handed to him. The plaintiff was only entitledto possession of the devale at the commencement of the month of Esalaon the 13th July, 1961. As the action was filed on the 28th June, 1961,it cannot be said that the defendants had in any way infringed uponthe rights of the plaintiff at the date that he instituted action.Accordingly, no cause of action had arisen in favour of the plaintiffat that date and his action was premature.-
In view of the findings arrived at, it is unnecessary to consider theother points raised by counsel for the defendants-appellants. It isalso unnecessary to consider the cross-objections filed by the plaintiff-respondent in which he sought to have the order made by the learnedJudge varied by declaration that he held -the hereditary office ofMftKa. Kapurala and that as holder of office, he had a right to nominatehis successor and further the office of Maha Kapurala is hereditaryin his family.
358
Diaaanaydke v. Fernando
I would allow the appeal and set aside the judgment of the learnedDistrict Judge and direct that plaintiff’s action be dismissed. Thedefendants-appellants will be entitled to costs of appeal, and costsin the original Court. The cross-objections of the plaintiff-respondentare dismissed, but without costs.
Manic a vas agar , J.—I agree.
Appeal allowed.