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SATHASIVAM v. VYTIANATHAN CHETTY
NLR25V93
Present : De
Sampayo A.C.J. and Schneider J
SATHASIVAM v. VYTIANATHAN CHETTY.
451-D.C. Colombo, 2,002.
Charitable trust-Hindu
temple-Action to remove trustees-Who are persons interested ?-Is proof of
specific acts of misconduct necessary ?-Duly appointed trustees appointing other
persons, agents and attorneys to manage temple-Abandonment of trust.
In an action for the removal of trustees (in respect of a charitable trust),
it is not necessary to prove specific acts of misconduct on the part of the
trustees ; it would be sufficient if they are shown to have neglected their
duties as trustees, and the Court is satisfied that they are persons who, under
the circumstances, are unfit to continue to act in that capacity.
Where trustees appointed by Court appointed by deed other persons as the
attorneys and agents to manage and transact all matters relating to or
concerning the execution of a charitable trust, &c, the Court held that it
amounted to an abandonment of the trust.
THE
facts are set out in the judgment.
Elliott, K. C. (with him Hayley and Nadarajah), for appellant.
H. J. C. Pereira, K. C. (with him Keuneman and Rajaratnam), for the respondents.
May 29, 1923. DE SAMPAYO A.C.J.-
This is an action for the removal of the defendants from the office of
trustees of the Hindu temple, known as Selva Winayaga Moortie, situated at
Captain's Garden, Colombo, and for the appointment of new trustees in their
stead. The action is brought in pursuance of the provisions of section 102 (1)
of the Trusts Ordinance, 1917, which enables any five persons interested in any
place of worship or . in the performance of the worship or service thereof to
institute an action such as this. Sub-section 2 defines the expression " person
interested," so as to include a person who is connected with the trust by family
or hereditary interests, or who for a period of not less than twelve months has
been in the habit of attending at the performance of the worship or services of
the place. The original founder of the temple was one Joewen Poodappen. The
first and
second plaintiffs were married to
two direct descendants of Joewen Poodappen, and the third, fourth, and fifth
plaintiffs are themselves direct descendants of that man. It has also been
proved that the plaintiffs have been worshippers at this temple for much over
the - required number of years. In these circumstances, I think, the District
Judge has rightly decided that the plaintiffs are " persons interested" within
the meaning of the Ordinance, and are qualified to institute this action.
The main question is whether sufficient reasons have been shown for removing the
defendants and appointing new trustees. I think that for the purposes of the
Ordinance it is not necessary to prove specific acts of misconduct on the part
of the trustees, but that it would be sufficient if they are shown to have
neglected their duties as trustees, and the Court is satisfied that they are
persons who, under the circumstances, are unfit to continue to act in that
capacity. In my opinion both specific acts and grossly negligent conduct have
been proved in this case.
In 1913 the first defendant and one Muttiah Pulle, together with three others,
were appointed as trustees of whom the first defendant is the sole survivor. In
December, 1918, the first defendant purported by deed to appoint the other
defendants to act jointly with him as trustees. With regard to the first
defendant the evidence has shown, many acts amounting to misconduct, but I need
not specify them here, because it was conceded at the argument that much could
not be urged against the judgment of the District Judge so far as he was
concerned. The appeal was however pressed as regards the second, third, fourth,
and fifth defendants. It will be observed that these defendants were not
appointed by Court after considering their qualifications, but that they wer
