1913 Present: Pereira J. and Ennis J.

KANDAPPU v. SEGUNATHA.

181-D. C. Batticaloa, 3,666.

"Madam"-Action to remove trustee for breach of trust-Action by residents of the village where " madam" is situated-Interest of residents to maintain action under s. 639 of the Civil Procedure Code.

The residents of a village where a " madam " is situated have a sufficient interest in the " madam " to enable them to maintain an action (with the sanction of the Attorney-General), under section 639 of the Civil Procedure Code, for removing a trustee for breach of trust and for the appointment of another.

THE facts are set out in the judgment.

Grenier, K.C. (with him Joseph), for the appellants.-There is no evidence to show that the defendant had committed a breach of trust. The order removing the defendant from his office as trustee is wrong. The persons who claim the lots in dispute are not before

the Court. The District Judge should not have adjudicated as to  the ownership of these lots without making the claimants parties.

Counsel cited Muttiahpillai v. Sanmugam Chetty et al.1[(1910) 14 N. L. R. 15.]

H. A. Jayewardene (with him Balasingham), for the respondent.- The defendant is unfit to be trustee, as he has shown an anxiety to prove that the lots in dispute belong to others and not to the " madam " An action has to be brought against the claimants for these lots, and the present trustee cannot possibly be the plaintiff in that case.

[Pereira J.-What interest have you to maintain this action?] The plaintiffs are the descendants of the founder of the '' madam." Moreover, they are residents of the village, and are as such interested in a public charitable trust as this.

Counsel cited D. C. Jaffna, 3,686.2[S. C. C. Min., July 8, 1905.]

Cur. adv. vult.

July 16, 1913. PEREIRA J.-

In this case the plaintiffs, claiming to be persons interested in a certain trust created for public charitable purposes, that is to say, a trust of which the subject is a " madam " or halting place or rest- house devoted to the use of the public, sue the defendant, who is admittedly the trustee, with the consent of the Attorney-General obtained under section 639 of the Civil Procedure Code, complaining of a breach by the defendant of his trust. The defendant complains in his answer that the action is false and vexatious, and has been instituted against him " out of personal animosity." The plaintiffs' interest in the alleged trust otherwise than as members of the general public is of the vaguest possible description, and I should like to observe that, in the case of these alleged public trusts, there is always the suspicion that the plaintiffs, if private individuals, are actuated, in instituting legal proceedings, By motives of self- interest no less perhaps than the defendant in claiming to continue as trustee; and that therefore it is, in my opinion, always desirable that the Attorney-General himself should institute inquiries and initiate proceedings in his own name under the section cited rather than allow private individuals to do so, unless, of course, their claim is, doubtlessly, honest and bona fide. In the present case the first plaintiff, when he entered the witness box on the day of trial,. had managed to give himself the appearance of a Sivite. As noted by the District Judge, he had ash on his forehead and looked like a Sivite; and he commenced giving evidence under affirmation. In the course of the cross-examination, however, it appeared that he was a Christian, and he was promptly made to take his oath before continuing his evidence. Although a Christian, one of his grievances was that the defendant had omitted to perform the " puja '' ceremonies in connection with the "madam,'' and that he had
 

failed to perform these ceremonies for five or six years. Be that as it may, the plaintiffs aver in the plaint that they bring this action as " descendants of former trust