1938 Present: Moseley, Keuneman, and de Kretser JJ.

MASSON

v. MATHES.


139-D. C. Negombo, 9,998.

Roman Catholic Church-Property bequeathed to St. Peter's- Church-appointment of trustees-Right of Archbishop to sue without vesting order- Trusts Ordinance, s. 112.
 
The church of St. Peter at Negombo was built on private land and the owners of the land in April, 1864, transferred the land and the buildings thereon to the Archbishop of Goa, the Primate of the East and his successors in office, of the Portuguese Mission of the Roman Catholic Church.

After the Portuguese Mission had withdrawn from Ceylon by arrangement in favour of the present Mission, the Arachbishop of Colombo has been in effective control of St. Peter's church and has received its income and generally administered its affairs.

In 1900 C. P. by last will devised a share of a certain land to St. Peter's church and provided that two persons named as executors and J. P. and their successors should be in charge of the land, spend for its improvement and upkeep, and give all the remaining income to the church.

It was established that the persons named in the will regularly gave the income to the Archbishop of Colombo.

In this action the Archbishop as plaintiff claimed that as such he was vested with the care and charge and control of the church and prayed for an accounting from the defendant, who was in possession as a successor.

Held, that the Archbishop of Colombo was entitled to maintain the action as manager of the property and de facto trustee.

THE land, on which was built the church of St. Peter at Negombo, A was gifted in 1864 by the owners to the Archbishop of Goa and his successors, who were the spiritual chiefs of the Portuguese Mission in Ceylon. This mission was under the patronage of the King of Portugal. In pursuance of an instrument, which was not notarially executed, between the Pope, the King of Portugal and other ecclesiastical personages concerned, the Portuguese Mission handed over the keys and left the

Island. On the invitation of some of the members of the church, the Archbishop of Colombo appointed a Parish priest to that church and since 1888 he has been in effective control of St. Peter's and has received its income.
 
In 1900 by last will Clara Pinto devised a share of a land to the church of St. Peter, and provided that Juan Fernando, Anthony Mathes, and Juan Pinto and their heirs should be in charge of the land, spend for its improvement and upkeep, and give all the remaining income to the church. For a considerable time the income was handed over to the Archbishop. In 1930, John Fernando who was managing the land was sued by the Archbishop for an accounting. The former contested the rights of the latter, but as judgment went against John Fernando, he handed over the land to the defendant. The present action for an accounting was filed by the Archbishop against the defendant who denied the rights of the plaintiff. The learned District Judge held against the defendant.

H. V. Perera, K. C. (with him E. B. Wikramanayake), for defendant, appellant. -The question in this appeal is whether the plaintiff can maintain this action. The grantees of the will of Clara Pinto are liable to account to the church of St. Peter at Negombo. The Archbishop of Colombo is ?vested in charge, care and control of the church?. If he is the trustee he can maintain this action. The land on which the church was built had been gifted to the Archbishop of Goa and his successors. In pursuance of an agreement it was vested in the Archbishop of Colombo by an instrument which is not notarial and therefore invalid under section 2 of the Prevention of Frauds Ordinance, No. 7 of 1840. Hence the Archbishop of Colombo is not the trustee and cannot maintain this action.

If there is no trustee, one must be appointed. A vesting order could be obtained from the District Judge. - Under the law of Ceyl