1929    Present: Fisher C.J. and Drieberg J.

MARKANDAN v. A1YAR.

447-D. C. Jaffna, 22,114.

Hindu temple-Appointment of manager-Power to delegate officer- Trusts Ordinance, 1917, s. 49.

Where a person is appointed manager of a Hindu temple by a writing " with power to appoint, if necessary, one or more persons under him as manager, " and where it is provided, that " on his failure to manage the temple or in case he withdraws himself from the management, " the right to appoint a new trustee is expressly (reserved.

Held, that the manager was not entitled to delegate all his powers both discretionary and ministerial to another.

THIS was an action brought by one Markandan by his attorney Sangarapillai Kanapathimuttu against the first defendant, who is the priest of a Sivan temple at Changani in Jaffna, and the second defendant, who assisted the first defendant in the performance of his duties. The plaintiff asked for the. removal of the first defendant from the office of priest and the ejectment of the second defendant.

It was contended by the defence that the action was not maintainable as Markandan in purporting to exercise the power conferred by the deed under which he himself was appointed had gone far beyond the authority vested in him under the document; that the document' was not one under which he could delegate his office within the meaning of section 49 of the Trusts Ordinance of 1917.

The learned District Judge gave judgment for the plaintiff.

H. V. Perera (with Rajakarier), for defendants, appellant - This is a purely ecclesiastical matter. The Court has no jurisdiction. The plaintiff does not say that he has dismissed the defendants. But he asks the Court to dismiss the defendants. The Court has no power to do this. The plaintiff could have dismissed the defendants and asked the Court's assistance to eject them. He has not done that.

The caption of the plaint shows that Markandan is residing within the jurisdiction of the District Court of Jaffna. Therefore he cannot appear by an attorney (section 25 (b) Civil Procedure Code).

The instrument P1, by which Markandan appointed his attorney, shows that he has withdrawn himself from the trusteeship and appointed his attorney Kanapathimuttu instead of him. This he cannot do. A trustee cannot delegate all his powers. Delegation is only allowed within well recognized limits.

N. E. Weerasooria (with Subramaniam), for plaintiff, respondent.- 1929. The caption is a mistake. .There is definite evidence in the case that Markandan was away from Jaffna.

Markandan has not withdrawn himself from the trusteeship. He has only appointed an attorney to look after the temple. The real plaintiff is Markandan'. The attorney is under his control. There is evidence to that effect in the case. There is evidence that the action was instituted at the instance of Markandan. The instrument of trust appointing Markandan gives him the power to appoint somebody to look after the temple under his control.

It is not necessary to apply English law principles if there is some customary law of the Hindus of Jaffna which is applicable. The ultimate authority rests with the congregation. In the instrument of trust appointing Markandan the trustee, they have definitely reserved to themselves the power to appoint another trustee in case they are dissatisfied with his management or when Markandan withdraws himself from the trusteeship. The congregation has not disapproved of the conduct of Markandan in appointing an attorney. They have not thought that Markandan has withdrawn himself from the trusteeship. If they thought so. they would have appointed another trustee. Section 49 of Ordinance No. 9 of 1917 empowers a trustee to delegate if the instrument so provides.

August 1. 1929. FISHER C.J.-

This action, was brought by K. V Markandan of Changuvely by his attorney Sangarapillai Kanapathimuttu of Vaddukoddai, as plaintiff, again