1913 Present: Wood Renton A.C.J. and Ennis J.

APPUSINNO v. BALASURIYA.

169-D. C. Matara, 4,393.

Action by trustee of a Buddhist temple-Expiration of time for which plaintiff was elected trustee-Provisional appointment of same person as trustee for purposes of this case-Appointment irregular-Continuation of action after plaintiff ceases to be trustee- Prescription-Cause of action-Trust.

The plaintiff sued the defendant as trustee of a Buddhist temple for the recovery of a sum of money, but before judgment he ceased to be trustee on the expiration of the term for which he was elected, but he was appointed provisional trustee for the purpose of this action.

Held, that the Buddhist Temporalities Ordinance gave no power to appoint a provisional trustee when the office became vacant by expiration of time, and that the plaintiff had no status to continue the action the moment he ceased to be trustee.

The principle that a case must be decided as at the time of the institution of the suit cannot be applied to this case.

THE facts are fully set out in the judgment of the District Judge (G. W. Woodhouse, Esq.): -

This is an action by the trustee of the Jayamaha temple at Matara to recover a sum of Rs. 550 as " sanghika " property. The money is said to have been left by Dammananda Terunnanse, chief incumbent of the temple in question, and it was decided by all persons concerned that the money should be devoted to the maintenance and improvement of the temple. And, for this purpose, it was handed to Don Mathes Balasuriya, who was at that time the chief dayaka of the temple. At that time there was no trustee, as the Buddhist Temporalities Ordinance had not yet come into operation. When Don Mathes Balasuriya was appointed trustee under the Ordinance, which was proclaimed on November 15, 1889, by virtue of section 20 of the Ordinance, this money vested in him as such trustee.

Don Mathes, however, did not use the money, and at his death the money remained in the box. The executors of Don Mathes's will, who were not themselves appointed trustees for this purpose, handed the box containing this money to Don Mathes's sole legatee, his wife.

Before Don Mathes died a dispute appears to have arisen about the chief incumbency of the Jayamaha temple, and this Court decided in favour of Aggasara against Somananda, the fifth defendant, but the fifth defendant was permitted to continue in residence in the temple. Don Mathes had asked who should have the custody of the money, but the Court did not reply.* Clearly the trustee was bound to retain the money until he handed it to his successor.

It is alleged by the defendants, and admitted by the fifth defendant, that fifth defendant was given the money by Don Mathes's wife. There Balasuriya can be no question that she had no right to give it to fifth defendant, neither had the fifth defendant any right to spend it in building a library or any other thing. The right to dispose of the money rests with the trustee. It appears that the fifth defendant pulled down some rooms and erected a substantial building in their site. By what authority he did it, or whether that was necessary for the improvement of the temple, does not appear. So far as I can see, he appears to have done all this for his own convenience and comfort. Besides, money appears to have been collected from the congregation for the purpose, and there is no account or reliable evidence to show that the buildings were not built entirely out of money so collected. I am not in a position, to hold that the Rs. 550 which fifth defendant wrongfully obtained from Don Mathes's widow was employed in the improvement of the temple. In my opinion Punchibaba Hamine's estate must make good the money which is subject of this case; and on the principle known as " following the trust fund," the money is recoverable from every person who derived benefit from her estate.

It must b