Present: Schneider and Dalton JJ.

KALIMUTTU et al. v. MUTTUSAMY.

 402-D.C.Chilaw, 7,306.

    Trusts Ordinance-Powers of Court to vary or modify trusts-Failure to prove a breach of trust-Public purposes-Ordinance No. 9 of 1917, s. 100.

The powers vested in the Court under section 100 of the Trusts Ordinance to modify or vary charitable trusts can only be exercised in order to carry into effect the intentions of the founders of such trusts so far as such intentions are not inconsistent with any existing law.

It is not the duty of a Court to direct charitable property to be employed in such manner as it thinks will be most beneficial for public purposes.

The principle laid down in Attorney-General v. Boucherett1[1 25 Beaten 116.] followed.

THIS was an action brought by eight persons as plaintiffs against the defendant who is the incumbent of the Munnessaram temple. They purported to bring the action under the provisions of section 102 of the Trusts Ordinance 1917, and prayed amongst other things for an order directing defendant to account for all moneys received from 1912 to the date of the action, and for the settlement of a scheme for the management of the temporalities of the temple, alleging that defendant was as a trustee accountable to the congregation and that he had failed to carry out the trust.

The defendant took up the position in the lower Court that he was the incumbent, and that he was not answerable to any earthly authority.

The learned Judge after hearing the evidence came to the conclusion that the temporalities of the temple -constituted a charitable trust, and made an order adverse to the defendant in terms of the prayer of the plaintiffs.

The defendant appealed.

Hayley (with Tissaverasinghe and S. Rajaratnam), for defendant, appellant.

The plaintiffs purport to bring the present action under section 102 of Ordinance No. 9 of 1917. That section requires that five persons " interested " should make the application to Court. The evidence in the case does not disclose that even five out of the

eight persons are persons " interested" within the meaning of the The best that the evidence discloses is that four of the plaintiffs are interested, and hence the action must fail.

Furthermore, the procedure laid down by the Ordinance has not been followed. Sub-section (3) of section 102 requires that before institution of action there should be an inquiry by the Assistant Government Agent. No such inquiry has been held, nor has a plaint been submitted as required by the Ordinance, but only a petition.

With regard to the merits of the case the whole course of dealings on the part of the defendant and his predecessors show that they have interested themselves in this temple, and brought it to its present state. It must, however, be conceded that the defendant is a trustee. Before the plaintiffs can get the relief they pray for they must prove that there has been a breach of trust on the part of the trustee. No proof of any breach of trust has been forthcoming ; on the contrary it is abundantly clear that much of the moneys has been spent on the temple itself. The mere fact that leases contrary to the deed have been granted do not constitute such a breach as entitles the appointment of a new trustee, as it has not been shown that it resulted in any loss to the trust.

Defendant has met debts incurred by his predecessors for renovation of the building.

None of the charges made against the defendant has been substantiated, and the defendant is entitled to have the action against him dismissed.

Balasingham (with Arulanandan and Weerasinghe), for the respondents.

As regards, the interest of the plaintiffs, it can be satisfactorily established. The mere fact that the temple is a Hindu temple does not take those of the plaintiffs who are Buddhists out of the category of persons interested. [Schneider J.-We do not wish to hear you on that ques