Thamotherampillai V. Sellapah Et Al.,

1932 Present : Macdonell C.J. and Dalton J.

THAMOTHERAMPILLAI v. SELLAPAH et. al

59-D. C. Jaffna, 23,628.

Hindu temple-Application to settle a scheme of management-Hereditary manager-Association of other trustees-Trusts Ordinance, No. 9 of 1917, s. 106.

A District Court has power, in settling a scheme for the management of a trust under section 102 of the Trust Ordinance, to direct that other trustees be associated with the hereditary manager in the management of a Hindu temple.

APPEAL from a judgment of the District Judge of Jaffna.

H. V. Perera (with him Nadarajah), for defendants-appellants.

N. E. Weerasooria (with him Choksy), for plaintiffs-respondents.

August 5, 1932. DALTON J.-

The plaintiffs brought this action under section 102 of the Trusts Ordinance, 1917, after obtaining leave as required by sub-section (3), for a declaration that the Pilliyar temple as described in the plaint be declared a public charitable trust, and that a scheme of management be settled by the Court, proper trustees being appointed by the Court to manage and conduct all the affairs of the temple and its temporalities.

Defendants pleaded that the temple was founded by their ancestors and that it was private family property. There was an alternative plea that in the event of the Court holding the temple to be a public charitable trust, plaintiffs were not entitled in law to have the defendants removed from the managership, the right of managership being in their family, or to have trustees appointed by the Court.
It was subsequently conceded that the temple was a public charitable trust, the only point remaining for consideration being whether the trial Judge was entitled to frame a scheme of management, appointing a board of five trustees to manage the affairs of the temple, on which the first defendant and his successors are to have a hereditary seat.

It has been urged on behalf of the plaintiffs (respondents) that it has not been satisfactorily shown that the defendants' family had any hereditary rights in the temple, but it is clear from the judgment of the lower Court that the learned Judge was satisfied that the managership of the affairs of the temple had been divided between the priest and the first defendant's ancestors. He further recognizes the rights of the family by giving it an " hereditary seat" on the board of trustees. With this conclusion as to the rights Of defendants' family in the temple I am not prepared to disagree.

It seems quite, clear from the evidence that all the trouble that has arisen at this temple is due to the conduct and actions of the second defendant. The first defendant's father was manager during his lifetime, and the second defendant, his nephew, was his executor. There is no doubt that first defendant succeeded his father as manager, but he is 15 years younger than the second defendant, and he has made it quite plain he took no interest in the affairs of the temple. On the other hand, his cousin, the second defendant, was very anxious to be manager himself, as he admits in his evidence. He actually included the temple and its lands in the inventory of the estate of the first defendant's father, and then to strengthen his position obtained a power of attorney from the first defendant as manager, to manage the temple on his behalf. This and other evidence effectively answer the second defendant's contention that he had rights as manager himself as being a member of the founder's family.

The learned Judge had therefore these circumstances to deal with in the action, a temple admitted to be a public charitable trust; a hereditary manager (the first defendant) who took no part and wished to take no

part in the affairs of the temple ; a hereditary priest who had a hereditary right to perform some of the functions of management; an attorney (second defendant) of the hereditary manager whose plain object was, if

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