Present : Bertram c. J. and Garvin A. J.

MARALIYA v. GUNASEKERA

et al.

120--D. C. Ratnapura, 3,528.

Buddhist Temporalities Ordinance, 1889-Action by trustee on contracts made by his predecessor--Trustee personally liable on contracts--Trusts Ordinance, 1917, s. 77--Vesting of chose in action on new trustee.

Under the Buddhist Temporalities Ordinance a trustee for the time being can sue on contracts made by his predecessor

A trustee is not free from personal liability. But if he incurs a liability in the bona fide execution of his trust, he has a right of indemnity against the trust property.

A trustee is not entitled to an order that the property belonging to the trust should first be discussed before he is made personally liable.

THE facts appear from the judgment.

Amaresekera (with him E. G. P. Jayatileke), for appellants.

A. St. V. Jayawardene, K. C. (with him D. B. Jayatileke), for respondents.

December 21, 1921. BERTRAM C. J. --

This is an action on a mortgage bond. The plaintiff is the trustee of a Buddhist  temple, and the defendants who are  the officers  of the Saddaramodaya Society themselves appear to be trustees The property which they have mortgaged is property belonging to the society which they represent, and it is vested in them as trustees for the society.. They have put the temple trustee to the necessity of proceeding at  law, not because  they dispute the bond, but because of their sense of the uncertainty of their legal position if they paid the money to him.

The question to be determined is whether the present trustee, who is not a party to the bond, can sue upon it, or whether it is necessary that his predecessor, who executed the bond, should be joined as a party.

Speaking generally, no one can sue on an instrument to which he is not a party, except by virtue either of representation (as in the case of an executor or administrator), or assignment (as in the ordinary case of cessio ), or by virtue of some statutory provision (as in the case of an assignee in insolvency).

In the case of trustees, it has always been necessary that on the appointment of a new trustee the trust property should be formally assigned to him. All books of precedents of conveyancing contain forms for such assignments. This was so, and in England is still so, even when the trustee nominated by the instrument of trust is the person for the time being holding a particular office. Where only one of several trustees had vacated his office, the assignment of certain classes of property had to be made to an intermediary, who subsequently re-assigned to the trustees in a body, on the ground that a person could not assign such property to himself. The necessity for this procedure was obviated by the Law of Property Amendment Act, 1859, and the principle of that amendment appeared in section 2 of our own Property and Trustees Ordinance, 1871, and survives in section 115 of the present Trusts Ordinance, 1917. The difficulties created by this principle of law were in England modified by various acts of legislation. Thus, by the Trustee Appointment Act, 1850, provision was made for vesting property held by trustees for religious or educational purposes in the new trustees on their appointment without a special conveyance (compare now our section 113 (2)), and by various other provisions now embodied in the Trustee Act, 1893, provision was made in certain cases by vesting orders or otherwise under which trust property passed to new trustees in the same manner as if the retiring trustee had executed a regular transfer. Similar provisions may now be found in our own Trusts Ordinance, 1917 (see sections 77, 112, and 113). Our own provisions indeed go further than the law of England in this respect (see in particular section 113 (1) and section 77).

Now, the matter in respect of which the present plaintiff sues is known in English law as a chose in ac