031-NLR-NLR-V-27-VELUPILLAI-ARUMOGAM-et-al.-v.-SARAVANAMUTTU-PONNASAMY.pdf
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Present: Bertram C.J. and Garvin J.
VELUPILLAI ARUMOGAM et at. v. SARAVANAMUTTUPONNASAMY.
74—D. C. Jaffna, 14,577.
Hindu Temple—Action by members of congregation—Removed of hereditarymanager—Hindu law and custom—Trusts Ordinance, No* 9 of 1917»section 102.
Where the members of the congregation of a Hindu temple suedthe hereditary manager of the temple for a declaration that theyare entitled to the management of the temple, for the removal ofthe hereditary manager, and for the settlement of a scheme forthe management of the temple and its temporalities.
Held, that the claim for the removal of the hereditary managercould not be sustained. The object of section 102 of the TrustsOrdinance is not to alter the religious law and custom by whichHindu temples are governed, but to give effect to that law andoustom.
Held, further, that the plaintiffs were entitled to a declarationthat the temple and the lands, with which it was endowed, weresubject to a charitable trust within the meaning of the TrustsOrdinance, and also to an order settling a scheme for the manage-ment of the temple in accordance with existing religious law andcustom, .with the defendant as trustee.
CTION brought by a number of worshippers at a Hindu temple,in pursuance of a certificate of the Government Agent issuedunder sub-section (4) of section 102 of the Trusts Ordinance, againstthe hereditary manager of the temple for a declaration that thecongregation of the temple should be entitled to manage the affairsof the temple and its temporalities, that the defendant be removedfrom his office, and that a scheme be settled by the Court for themanagement of the temple.
It was proved that one Saravanamuttu, a descendant of theoriginal founder and father of the present defendant was the un-disputed manager of the temple in 1860. In that year publicsubscriptions were raised to rebuild the temple, and Saravanamuttuacted as “ Conductor of Works.”
In 1890, it appeared, that a public meeting of the congregationwas convened, and a committee appointed for the purpose of
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1924.
VelupillaiJkrtimogam v.Saravana-muttuPonnaaami/
managing the temple and performing the daily poojas. Sara-vanamuttu having first purported to accept the managershipof the temple from the new cdmmittee, reacquired control of thetemple within a year, and dispensed with the assistance of thecommittee.
In 1907 he executed a deed reciting the previous history of thetemple, appointing his two sons, Ponnasamy, the present defendant,and Sivamsampoe to be managers of the temple along with him, andafter his death with remainder to their male descendants insuccession. The learned District Judge dismissed the plaintiffs’action and declared the defendant to be the rightful manager ofthe Temple, ordering him at the same time to keep a proper account•of the money coming to his hands.
Balasingham (with him Spencer Rajaratnam), for plaintiffs,appellants.
Antlanandan (with him James Joseph), for defendant, respondent.
November 17, 1924. Bertram' C.J.—
This is an action of a very interesting character. It is institutedby a number of worshippers at a Hindu temple in the JaffnaDistrict on behalf of themselves and other worshippers, against aperson who claims to be proprietor and hereditary manager of thetemple. It is brought under section 102 of “ The Trusts Ordinance,No. 9 of 1917,” in pursuance of a certificate of the GovernmentAgent under sub-section (4) of that section. The prayer of theplaintiffs is that “ the temple should be declared a charitable trust,and that the congregation of the worshippers of the said temple .should be entitled to manage the affairs of the temple and itstemporalities, that the defendant be declared not entitled to assertthe right to the management of the temple, and that if the Courtfinds he has any right, that he should be dismissed from his office,and that a scheme be settled by the Court for the management ofthe temple and its temporalities.” The claim is in fact a claim bythese worshippers to a scheme for the democratic management ofthis temple, and for the ousting of a person, who claims to bemanager of the temple by hereditary right, independently of anycontrol by its worshippers.
It was proved by the evidence beyond doubt that this temple isone of those foundations which have been established and endowedby pious donors in past generations for the worship of particulardeities. In such cases, in the absence of any directions by the
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founder, the temple and the lands dedicated in connection with itremain the property of the founder and his heirs, subject to areligious trust for the carrying on at the temple of the worship ofthe deity to whom it is dedicated. In such cases, if the founderhas given no directions for the appointment of trustees, or, as theyare generally called, managers, the devolution of the trusteeship andthe management of the temple remains in the heirs of the founders.But as in most cases it is not convenient that they should all bemanagers, a system has grown up under which one person, generallythe eldest male descendant of the last person who has acted in theoffice, with the consent of the other members of'the family, actsas manager and trustee. This person, again with the presumedconsent of the other heirs, often appoints some descendant of hisown to succeed him in the managership, and in some cases to beassociated with him in the managership until his death. I thinkthat there can be no question that this is the religious law andcustom with regard to such temples in the peninsula of Jaffna,and that the temple now under consideration was a temple ofthis character.
1024.
Bertram
C.J.
VelupillaiArumogam v.Saravana•rnttttuPonnasamy
From time to time it may become necessary to repair, enlarge, orrebuild such a temple. In such circumstances it is natural thatsubscriptions should be invited from the worshippers and othersympathizers. Such an occasion arose in the history of this templein the year 1860. Subscriptions were gathered in, and the templewas rebuilt. Saravanamuttu, a descendant of the original founder,and father of the present defendant, who was then the undisputedmanager of the temple joined with the subscribers and accepted orassumed the office of “ Conductor of Works.” In so doing, however,I do not think that it can be contended that he abrogated either forhimself or his family the hereditary rights to the management andcontrol of the temple, which they enjoyed under the religious customabove explained, nor do I think that the fact that the worshippers,some of whom are ancestors of the present plaintiffs, contributedto this enterprise gave them in law any right to claim to interferein the appointment of managers, or in the control of managerswhen appointed.
In 1890 an interesting development took place. A public meetingof the congregation was called, and an attempt was made to carrythrough something in the nature of a revolution. T am not satisfied(as the learned Judge appears to have been satisfied) that this wassimply the work of a faction. I see no reason to doubt that whattook place was in pursuance of the general desire of the congregation.The meeting purported to elect a committee for the purpose ofmanaging the temple and performing the daily and special poojas.A Chairman and a Secretary of this Committee were appointed, andrules were framed authorizing the committee to appoint, dismiss,
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Bbrtram
C.J.
VelupillaiArutnogam v.Saravana-
muttu
Ponnanamy
and suspend, and substitute managers, kurukkals, and other officers,and to make regulations to be carried out by these officers in thetemple, to arrange and pay their wages, to fine them on behalf of thetemple for their faults, and generally to possess all the powers andcarry out all the duties hitherto possessed and carried out by theautocratic hereditary manager. The committee functioned forsome time and purported to appoint a new manager. The existingmanager, Saravanamuttu, appears for the time being astutely tohave bowed to the storm. In one document of the time it is saidthat at this meeting he was present, and remarked “ the affairs ofthe temple should receive proper attention. This is satisfactory,satisfactory.” And “ I should not be included among thesignatories.” After watching the entire proceedings of thecongregation he left, repeating several times “ satisfactory,satisfactory, completely satisfactory, completely satisfactory.”Mr. Balasingham assured us that there is a certain religioussignificance about these words, and that Saravanamuttu would havebeen understood as formally blessing the proceedings. It is alsorecorded by the maniagar, who investigated the position at therequest of Saravanamuttu, that “ when I made inquiries in con-nection with the petition of Saravanamuttu Sinnetamby, I inspectedthis book and found those mentioned therein were reasonable andgood. The petitioner also praised the rules of the meeting andadmitted the facts remarked by him in the meeting.” Elaborate andcarefully framed documents were drawn up for the purpose ofconsecrating and establishing this revolution. But it only lastedfor a few months. It commenced in December., 1890, and in April,1891, it appears that Saravanamuttu having first purported toaccept the managership from the new committee, and, so it isalleged, having fraudulently destroyed the record of this acceptance,reacquired control of the temple, and dispensed with the assistanceof the committee which now disappered. In spite of occasionalfriction with members of the congregation Saravanamuttu appearsto have effected a complete restoration of the status quo ante. In1907 he executed a deed reciting the previous history of the temple,D 4, appointing his two sons, Ponna&amy, the present defendant, andSivasampoe to be managers of the temple along with him, and afterhis death with remainder to their male descendants in succession.There can be no doubt that in taking this course Saravanamuttu,who had managed the temple, subject to the short revolutionaryinterval, above described for 32 years, was, in so appointing his sons,acting in accordance with the local religious custom with respectto such foundations. Sivasampoe died, but before dying, purportedto transfer his own half share to his nephew, Murugesu, who is nowassociated with the plaintiffs. The defendant is, I think, right inimpugning this deed. Murugesu is not a male descendant ofSivasampoe, but the descendant of Sivasampoe’s sister, and I have
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no doubt that in limiting the succession to the male descendants ofhis sons, Saravanamuttu was acting in accordance with establishedcustom.
The present plaintiffs have now renewed the attempt to put themanagement of the temple on a democratic basis, and they invokethe Court for that purpose under what they understand to be theintention of the Trusts Ordinance. Such a prayer must receive thecareful and respectful consideration of the Court, but whatevermight be the feelings we might be disposed to entertain towards theprayer of the petitioners, the case is not one in which such a prayercould be granted.
The object of section 102 of the Trusts Ordinance is not to alterthe religious law and custom under which Hindu temples are carriedon, but to give effect to that law and custom. Mr. Balasinghamappealed to us to give effect to what are said to be the desires of thecongregation on the ground that unless this were done, the. templewould not enjoy the active support of the congregation. Subscrip-tions would not be contributed for necessary repairs, and theenlargement and development of this religious institution could notbe carried out so extensively and prosperously as would be the caseif the management were controlled by a representative committee.It is not however the duty of our Courts to take special measures tofoster and extend religious institutions of any community. Its dutyis to ascertain the legal rights of these institutions and the variouspersons connected with them and to give effect to those legal rights.The members of the congregation are no doubt entitled to requestthe Court to draw up a scheme for the regulation of the institution,but any scheme so drawn up must be in accordance with theexisting religious law and custom. The learned Judge has indeedin effect drawn up such a scheme, but I think that it would be wellthat this scheme should be made a little more definite in form andcharacter, and it should be embodied in the decree. Moreover,certain advisory observations of the learned Judge have been, nodoubt by an oversight, embodied in the decree, which might possiblycause subsequent disputes. I do not think that the learned Judgeintended that these words of advice should be embodied in thedecree.
The learned Judge has directed that regular accounts should bekept of all the monies coming into the hands of the manager fromdifferent sources, except moneys which are by customs paid direct tothe priest. In order to make this direction effective, I think it isnecessary that these accounts should be audited, and I certainlythink that the congregation have an interest in the auditing of theseaccounts. It is necessary therefore that the appointment ofauditors for this purpose should be provided for. I think that thelearned Judge should further consider this point. It may be
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Bertkim
C.J.
VelupiUai
Arumogamv.Saravan*mvttuPonnasamy
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B&rtram
C.J.
VelupiUaiArumogam v.Saravana*muUuPonnasamy
suggested that one auditor should be appointed by the manager,one by a meeting of the congregation presided over by the managerand composed of all persons who have regularly worshipped in thetemple during the preceding twelve months, summoned by themanager on not less than fifteen days’ notice in or about the monthof January in each year. A third auditor should be appointed bythese two auditors, or if they fail to agree, on application on thepart of either of them by the District Judge or some other appropriateauthority. I think it best that the learned Judge should consultthe parties on the question of the auditors generally, and make suchorder as he in his discretion may deem appropriate.
There is a further point which might also receive attention. Theproperties belonging to the temple do not appear to be numerous,but it would be well that they should be scheduled, including thosein charge of the priest, and a vesting order made with respect tothem under section 112 of the Trusts Ordinance.
The decree, therefore, should, in my opinion, be to the effectfollowing:—
It should be declared that the said temple and the landsand other property, with which it is endowed are subject to a“ Charitable Trust ” within the meaning of Trusts Ordinance, No. 9of 1917.
There should be a declaration that the properties, movable andimmovable, ascertained as above directed and enumerated in thedecree are properties comprised in the trust.
There should be an order that the said properties, in so far asthey are immovable property, shall be vested in the defendant astrustee of the said temple, in pursuance of section 112 of the TrustsOrdinance, and also that the vesting order shall be registered inpursuance of that section.
There should be included in the decree a scheme to the effectfollowing, that is to say—
(а)That the temple and all the properties with which it is
endowed are subject to a “ Charitable Trust ” for theworship of the deity, Pillaiyar, and the other deitiesto which it is dedicated, and for the maintenanceof the religious rites and practices connected there-with.
(б)That the management and trusteeship of the temple is vested
by hereditary right in the defendant, SaravanamuttuPonnasamy, as one of the heirs of, the original founders,Olakar Ambalawanar and Sithamparier Visuvar.
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(c) That the management and trusteeship of the said temple shalldevolve on such person among the heirs of the said foundersas the general body of tlje heirs of the said founder maythink most qualified to discharge the trusts of the temple,or in the absence of any selection by the heirs, upon theeldest male descendant of the said Saravanamuttu Ponna-samy, and so on from generation to generation, providedthat the said Saravanamuttu Ponnasamy or any personsubsequently holding the office of trustee of the saidtemple, before his death, may, with the consent of theheirs of the founders, associate with himself as trustee ofthe temple his eldest male descendant, or, with the approvalof the Court, any other male descendant. In any suchcase the deed of appointment shall vest jointly in the saidtrustee and the person so appointed in association with,him for the purpose of the trust, all the properties com-prised in the trust with benefit of survivorship.
That it shall be the duty of the trustee to prepare or causeto be prepared a book containing a list of all the properties,movable and immovable, comprised in the trust, with the namesof the persons in whose charge they are. The income and expensesof the said properties shall be therein separately entered. The saidbook shall be duly kept by the said Saravanamuttu Ponnasamy,and by his successors in office, or by a kanakapulle under bis ortheir directions. The said book shall be kept in the temple, andshall be accessible to the auditors appointed in the manner herein-after described.
Regular accounts shall be kept by the manager or by akanakapulle under his directions of all the moneys coming into hishands from different sources, except moneys which are by custompaid direct to the priest.
The moneys spent on the temple, both ordinary and extraordi-nary, shall be entered in a systematically kept account book.
The trustee shall at the end of each year publish an accountshowing all the things mentioned above for the information of thecongregation, and the said account shall be properly audited.
The said accounts shall be annually audited by three auditors,appointed inthe'manner following, or in such other manner as theDistrict Judge shall direct, that is to say (subject as aforesaid)—
One auditor appointed by the trustee. A second shall be electedat a meeting of the persons who have been regularworshippers at the temple during the preceding twelvemonths, summoned by the trustee by an' adequate publicnotice exhibited in the precincts of the temple, the saidmeeting is to be held in or about the month of January in
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C.J.
VelupiUaiArumogam v.Saravana-muttuPonnasamy
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Ponnwsamy
each year. A third auditor shall be appointed by thetwo auditors thus selected, or, if they fail to agree by theDistrict Judge, or by such other authority as may bedetermined by the decree to be entered up in the present
case.
With regard to costs, I think that there should be no order as tocosts in the Court below. It has been declared, contraryto the contention of the defendant, that the temple issubject to a “ Charitable Trust ” within the meaning ofthe Trusts Ordinance, and the interests of the congregationhave been recognized with regard to the keeping andpublication of the accounts. Moreover, it is a greatadvantage to the defendant and his family to have had thenature of the trust and the succession to the trusteeshipfully defined. With regard to the appeal, however, theconclusions of the learned Judge have been substantiallyupheld, and I think that the plaintiffs should pay thedefendant’s costs of the appeal.
Gabvxn J.—I agree.
Judgment varied.