Muttiahpillai V. Sanmugam Chetty

Present: Hutchinson C.J. and Wood Renton J.   Oct.19,1910

MUTTIAHPILLAI v. SANMUGAM CHETTY et al.

180, D. C, Jaffna, 6,619.

" Madam "-Action by trustee under section 247 claiming lands belonging to "madam"-Sanction of Attorney-General not necessary-Ordinance No. 7 of 1871 applies to public trusts as well-Civil Procedure Code, s. 639.

Action can be taken under section 639 of the Civil Procedure Code only when a trustee has committed a breach of trust, or when the direction of the Court is deemed necessary for the administration of the trust.

Ordinance No. 7 of 1871 does not apply to private trusts only, but to public trusts as well.

A person appointed by Court, under section 4 of Ordinance No. 7 of 1871. trustee of a " madam " may bring an action under section 247, Civil Procedure Code, with respect to a property which he claims as belonging to the " madam," without the sanction of the Attorney-General.

THE facts are fully set out in the judgments.

Walter Pereira, K.C., Acting Attorney-General (with him Bala-singham), for the plaintiff, appellant.

H. A. Jayewardene (with him Wadsworth), for the defendants, respondents.

Cur. adv. vult.

October 19, 1910. Hutchinson C.J.-

This is an action under section 247 of the Civil Procedure Code. The plaintiff sues as trustee and manager of a " madam " at Karativu, and claims that certain land, which was seized by the first defendant under a writ of execution against the second defendant, be decreed to be the property of the " madam ", and not liable to be seized and sold for the debt of the second defendant.

It was admitted that the plaintiff is trustee of lots 6, 8, 11, 12, and 13 shown on the plan filed in the case, and that he was so appointed by a decree of the Supreme Court. The land now in question is lot 7. The following preliminary issues were settled and tried first: -

Was the plaintiff appointed trustee only of lots 6, 8, 11, 12, and 13, or of the " madam " and all its properties ?

Can the plaintiff as trustee of the " madam " bring an action for declaration of title of the " madam " property ?

The District Judge dismissed the action, holding that the-plaintiff is not trustee of any property except lots 6, 8, 11, 12, and 13, and that he cannot sue for land which is not included in the trust property, and that the action should have been taken according to the procedure laid down in section 639 of the Code; for he said, " in effect the plaintiff, claiming lot 7 as trust property complains that the second defendant has committed a breach of the trust created over this land ". The plaintiff appeals.

I cannot assent to the reason given by the learned Judge. Action can only be taken under section 639 when a breach of trust is alleged, or when the direction of the Court is deemed necessary for the administration of the trust. But a breach of trust can only be committed by a trustee; and the defendants are not trustees (at least the plaintiff does not allege it, and the defendants deny it); nor is it alleged that the direction of the Court is necessary for the administration of the trust. That was doubtless the reason why the Attorney-General, on application being made to him for his consent under section 639 to enable this action to be brought, refused it, saying that the action was not one for the institution of which he could properly grant sanction under section 639 (p. 3). If the plaintiff is the trustee of the " madam " property, and if this land is part of the " madam " property, he can maintain this action. But the learned Judge held that the only property which is vested in the trustee is lots 6, 8, 11, 12, and 13, and if that is so, the result will be that, if lot 7 is proved to be part of the " madam " property (that is, subject to the trust), there is no person who can claim it on behalf of the trust from a person who is wrongfully in possession of it.

In 1905 an action was brought under section 639,

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