Sathasivam Et Al., V. Vaithianathan

Present : Bertram C. J. and De Sampayo J.

SATHASIVAM et al. v. VAITHIANATHAN et al.

151-D.C. Colombo, 2,002.

Appointment of receiver-Action in respect of a charitable trust-Trusts Ordinance, No. 9 of 1917, s. 102-Civil Procedure Code, s. 671.

An action brought in respect of a religious charitable trust under section 102 of the Trusts Ordinance, No. 9 of 1917, is subject to the general provisions of the Civil Procedure Code, and it is competent to the Court to appoint a receiver in respect of the trust property under section 671 of the Civil Procedure Code.

THE facts-appear from the judgment.

A. St. V. Jayawardene, K.C. (with him Keuneman and Spencer Rajaratnam), for appellants.-Section 102 of the Trusts Ordinance is not exhaustive as regards the remedies available in respect of trust properties. All actions under the Ordinance are governed by the

1982. rules relating to civil procedure, section 116, Ordinance No. 9 of 1917, and section 671, Civil Procedure Code, gives the remedy to have a receiver appointed to safeguard the trust property pendente lite. than Appellants, as members of the congregation, are entitled to have a receiver appointed. They need not necessarily have a right to the immediate possession of the property in question. It was held in Ganesh Tambekar v. Lakhminan Govindram[1] that persons interested in the maintenance of a religious trust are entitled to have a receiver appointed to protect the trust property. This was affirmed by the Privy Council (24 I. L. R. Bom. 50). The affidavit of the appellants discloses a prima facie case, which is not at all rebutted by the affidavit of the respondents. So a second chance should not be given to them to traverse the facts, but an order appointing a receiver could be immediately made. The selection of the person may be left to the District Judge.

Arulanandan (with him Retnam), for defendants, respondents.- The defendants, respondents, are in a position to disprove all the material allegations in the plaintiffs' affidavit and have not done so, as they relied on a matter of law. If the case goes back to the District Court, the defendants ought to be given an opportunity of disproving the allegations. In the absence of our affidavit, it is impossible for the Supreme Court to decide the question of the necessity for appointing a receiver. The trial is fixed a few days hence, and it may be that it will be quite unnecessary to decide the question of appointing a receiver.

Jayawardene, in reply.

January 20, 1922. BERTRAM C. J.-

This is an appeal against an order of the District Judge of Colombo refusing to appoint a receiver in an action brought in relation to a religious charitable trust under section 102 of the Trusts Ordinance, No. 9 of 1917. The learned Judge, though an affidavit alleging extensive facts was put before him, decided the application on grounds of law. The first ground was that section 102 of the Trusts Ordinance does not provide for the appointment of receivers; and the second was, or at any rate it seems to have been, that chapter L. of the Civil Procedure Code has no application to the present case, because the plaintiffs have not a right to the immediate possession of the particular property in respect of which  the application was made, or a vested interest in it sufficient to entitle them to have it protected. The learned Judge bases the latter ground upon a previous decision of this Court (Seyadoris v. Hendrick[2])

It seems to me that the grounds on which the learned Judge bases his judgment are mistaken. It does not matter that nothing

Foot Notes:

1 (1888) 12 I. L. R. Bom. 247.
2 1S. C. R. 358 and 2 C. L. R. 167.

is said .about an appointment of a receiver in section 102 of tine 1988. Trusts Ordinance. Any action instituted under that section is subject to the general provisions of the Civil Procedure Code (see section 116 of the Ordinance itself)

Click Here to Read the rest of this document