Rustomjee Et Al V. Khan Et Al.,

1914. Present : Pereira J. and De Sampayo A.J.

RUSTOMJEE et al. v. KHAN et al.

79-D. C. Colombo, 595.

Ordinance No, 7 of 1871-Does it apply to public trusts?-Civil Procedure Code, s. 639-Does it supersede the Ordinance (No. 7 of 1871)?-Non-Christian may swear.

Semble, per PEREIRA J.-Ordinance No. 7 of 1871 applied not only to private but to public trusts as well. In any case section 639 of the Civil Procedure Code was not intended to supersede the Ordinance so far as public charitable trusts were concerned.

Under the Oaths Ordinance, 1895, it is open to a non-Christian who believed in God to swear rather than affirm.

THE facts are set out in the judgment of the Acting District Judge (T. F. Garvin, Esq.):-

This is a proceeding under the provisions of Ordinance No. 7 of 1871 for the appointment of fresh trustees to have control over the Parsee burial ground, in place of the first respondent, P. D. Khan; the petitioners, J. Rustomjee and J. K. Hormusjee, farther pray that they be appointed trustees.

Under deed 1.179 dated April 10. 1847, Byramjee Suparjee and Cowrasjee Eduljee acquired the premises involved in this case in trust for the members of the Parsee community upon the trust and for the purposes to be determined by the committee of superintendence.

Upon the death of Suparjee, and at. the request of Cowrasjee Eduljee, who desired to relinquish his trust, it was resolved at a meeting of the Parsee community that Coverjee Byramjee Guzder, Nowrajie Pallonjie Kapadia. and Pestinjee Dinshaw Khan, the first respondent, should be trustees in bin place.

In accordance with this resolution Cowrasjee Eduljee, by deed 5,333 dated November 26, 1885. transferred the premises to the three persons above named subject to similar trusts.

Coverjee Byramjee Guzder and Nowrajie Pallonjie Kapadia are now dead, and the sole trustee is P. D. Khan, the first respondent.

The grounds upon which the intervention of this Court is sought are-

(a) That the first respondent tendered his resignation, which was accepted by the Parsee community; that at two meetings held thereafter the first and second petitioners were elected as trustees, and that the first respondent refused to transfer the trust property to them.

(b) That the first respondent has failed to render an account of his trusteeship, has expended trust moneys without the authority of the committee of superintendence or of the Parsee community, and has failed to attend to and preserve the burial ground at Kotahena. and has otherwise failed and neglected to perform his duties as trustee.

(c) That the first respondent is advanced in years, has left the Colony, and is new residing at Bombay.

Mr. Jayawardene, on behalf of the respondent, took the preliminary objection that those allegations do not bring the application within the contemplation of section 4 of Ordinance No. 7 of 1871, and that the petitioners are accordingly not entitled to the relief claimed.

Section 4 of Ordinance No. 7 of 1871 sets out the cases in which the intervention of this Court may be sought, and unless the petition can be brought within one or other of the four sub-sections to that section it must fail.

The petitioners contend that their petition falls within sub-sections (1), (2), and (3) of section 4.

It is contended for the respondents that sub-section (1) does not apply, because the trust deed does contain adequate provision for the appointment of a new trustee. This contention is based upon the fact that the habendam clause of deed 5,333 runs as follows:-"To have and to hold unto the said P.D. Khan, C. B. Guzder, and P. Kapadia and the survivor or survivors of them and his heirs, executors, administrators, and assigns."

P. D. Khan being the surviving trustee, it is argued, is entitled to appoint trustees in his place.

It is quite clear that this deed docs not in express terms give the trustees, or any of them a power to appoint t

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