Kumarasamy Kurrukal V. Karthigesa Kurrukal

Present: Bertram C.J. and Porter J.

KUMARASAMY KURRUKAL v. KARTHIGESA KURRUKAL

213?D. C. Jaffna, 15,446.

Hindu temple?Public charitable trust?Temple built with money collected front the public and contributions of the Brahmins who collected the subscription?Are subscriptions gifts to the Brahmins ??Trusts Ordinance, 1917, ss. 102 and 106?Instrument of trust.

In 1878 a Saivite reformer started a movement for building a temple on the site of an ancient temple, and after his death three members of a Brahmin family (K and his sons S and T) in 1880 collected subscriptions with the assistance of several leading Saivites and rebuilt the temple. The Brahmins also contributed largely (20 per cent.) for this purpose. In 1896 the temple was dedicated for religious worship with the usual ceremonies. In 1898 a deed of management was formally executed which provided for the management (or trusteeship) and its succession, for the appointment and succession of the officiating priests, for the control of the temple ceremonies, the custody of its treasures, and the appropriation of its public subscriptions. Under this deed the right of management was reserved to the founders S and T during their joint lives, and to the surviving founder on the death of either of them, and after them to plaintiff, eldest son of T, and so on. The right to officiate as priests was to belong to the three sons of T? plaintiff and the two defendants.

T executed in 1920 a formal transfer of his interest in all the temple property by way of donation to the plaintiff.

Plaintiff sued T for a declaration of title as owner of the temple and for ejectment. T pleaded that the temple was a public charitable trust. After the death of T, the two defendants were substituted defendants. They also prayed for a declaration that they were entitled to officiate as priests under the deed of 1898.

Held, that the temple was a public charitable trust, and that. the defendants were entitled to a declaration as prayed for.

" There is certainly one formal defect in the situation. It is true that there was a formal dedication, or, as the learned Judge prefers" to call it, consecration, of the temple, but no instrument of trust was executed appropriating the property for the purpose of the trust. No Court of Equity, however, would allow the great principles it administers to be defeated by a formal defect of this character, and our own Ordinance expressly provides for the point," see section 107.

" It seems to me nothing less than fantastic to argue that this temple was mainly the private property of Karthigesa and his sons unencumbered by anything in the nature of a public religious trust, and that the various subscriptions. ... are to be

considered as nothing more than gifts to pious Brahmins to be expended in accordance with their uncontrolled discretion.

"According to our law as declared and defined by the Trusts '?Ordinance, the dominium of the property remains vested in the legal owners, but is so vested on behalf of the beneficiaries, and the beneficiaries consist of that section of the public for whose benefit the trust was founded."

"Subject to any arrangement made by the founder, the right of the management of the foundation vests in the founder himself and his heirs, but the founder himself is entitled to make express, provision for its future management. ... No doubt such an arrangement for the management of the temple would in ordinary cases be made in an instrument declaring its devotion to religious uses, but there is obviously no reason why it should not be made in a separate instrument after the public consecration of the temple."

THE-facts are set out in the judgment.

Elliot, K.C. (with him Balasingham and S. Rajamtnam), for defendants, appellants.

H. J. C. Pereira, K.C. (with him Samarawickreme and H. V. Perera), for plaintiff, respondent.

December 21, 1923. Bertram C.J.?

This i

Click Here to Read the rest of this document