Fernando Et Al. V. Fernando Et Al.,

1916. Present: Shaw J. and De Sampayo J.

FERNANDO et al. v. FERNANDO et al.

113-D, C. Kalutara, 6,141.

Buddhist Temporalities Ordinance, s. 17-Action by trustee before giving security as trustee-Non-joinder of all trustees.

Plaintiffs, who were two out of three trustees of a temple, sued the defendants for damages, for wrongfully drawing toddy from trees belonging to the temple. At the date of the institution of the action plaintiffs had not given security as trustees.

Held, that they had status to bring the action.

It in not conditional to the appointment of a trustee that he should give security although, probably, a trustee who fails to give security, when such has been determined on by the Committee, may be removed from office under the provision of the Ordinance.

THE facts are set out in the judgment of Shaw J.

M, W. H. de Silva, for plaintiffs, appellants.-The plaintiffs were duly appointed trustees at the time they brought the action. Security is in the discretion of the District Committee, and not necessary for the validity of the appointment. If we were to read section 17 in the sense of security being imperative, we shall have to go the length of holding that a duly appointed person does not become a trustee if he refuses remuneration.

Fernando v. Fernando1[C. W. r. 209.] was decided on other grounds, and security was referred to incidentally as showing that there had been no valid appointment. Even if it be held that security is imperative, it is merely a defeat in status, and has been cured before date of trial (Silva v. Weerasuriya [(1906) 10 N. L. R. 73.]). With regard to the non-joinder of third trustee, section 2 is conclusive.

Gunatilleke, for respondents.-Fernando v. Fernando1 decided with reference to the present plaintiffs themselves that security was

imperative. The President's evidence shows that security was  asked for and not given. It is essential that security should be given for the protection of temple property.

Cur. adv. vult.

April 11, 1918. SHAW J.-

The plaintiffs-appellants, as trustees of the Buddhist temple at Magalkanda, sued the defendants for Rs. 469.90 damages, for wrongfully drawing toddy from sixty-seven trees alleged to be the property, of the temple.

The District Judge has dismissed the action, without going into the merits, on the ground that on the date when the action was instituted the plaintiffs had got given security as trustees, and had therefore no status to bring the action. He appears also to have thought that the non-joinder of the third trustee as party to the action was a fatal defect.

I think the Judge is wrong upon both points.

The plaintiffs produced and put in evidence certificates, dated November 15, 1914, signed by the President and two members of the District Committee, certifying their appointment as trustees. It was, however, admitted that at the date of the institution of the action they had not given security as trustees. The President himself gave evidence showing that the plaintiffs were duly elected trustees. In cross-examination he stated: " Trustees are bound to give security. Until they have given security their appointment is not valid. " This I take to be an expression of the President's view of the law. It was suggested in the course of the hearing of the appeal that the President may have meant that, in respect of this particular temple, there was a condition to the appointment becoming operative that security must be given. I do not think the evidence can bear such a construction, and there is no evidence that any security was determined on by the Committee, or that the plaintiffs were ever asked or refused to provide it; the certificates of appointment, moreover, make no mention of any such condition. Subsequent to the institution of the action, and prior to the day of trial, security was given, but how it came to be given, and how the amount wa

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