Dullewa V. Somawathie Upasika

1944 Present: Howard C.J. and Wijeyewardene J.

DULLEWA et al., Appellants, and SOMAWATHIE UPASIKA
et al., Respondents.

1-D. C. (Inty.), Kandy, 582.

Action under section 101 of the Trusts Ordinance-Alleged breach of charitable trust-Denial of trust by defendants-Right of plaintiffs to institute action.

An action may be instituted under section 101 of the Trusts Ordinance even where the defendants deny the existence of the alleged trust.

Where plaintiffs bring an action under that section for an alleged breach of a charitable trust they must allege and prove-(1) the existence of a charitable trust, (2) the breach of such trust by the defendants.

Where the cause of action is the necessity for the direction of Court for the administration of a trust the plaintiffs must allege and prove -(1) the existence of a charitable trust, (2) the necessity for the direction of Court.

APPEAL from an order of the District Judge of Kandy. The facts appear from the argument.

M. T. de S. Amerasekere, K.C. (with him E. B. Wikremanayake), for the plaintiffs, appellants.-This is an action instituted under section 101 of the Trusts Ordinance (Cap. 72). The first defendant denies that the property which is referred to in the plaint is subject to any charitable trust and claims it for herself. The third and fourth defendants also deny the existence of any trust and claim for themselves certain shares of the property. The learned District Judge has dismissed the action on the preliminary ground that an action under section 101 of the Trusts - Ordinance cannot be maintained in view of the denial of the existence of a trust by the defendants He has purported to follow Jamaluddin v. Mujtaba Husain et al. [1 I. L. R. (1903) 25 All. 631.] and Khursaidi Begum v. Secretary of State for India [2 A. I. R. (1926) Patna 321 at 326.]. In each of those two cases the action was solely for a declaration of trust. In the present case, however, various other reliefs which are provided for under section 101 of the Trusts Ordinance are sought for. Deo Saran Bharthi et al. v. Deoki Bharthi et al.[3 A. I. R. (1924) Patna 657. ] where Jamaluddin v. Mujtaba Husain et al. (supra) is considered supports the view that the present action is maintainable although the trust is denied by the defence. See also Eralappa Mudaliar v. Balakrishniah [4 A. I. R. (1927) Mad. 710.]; Anjaneya Sastri v. Kothandapani Chettiar [5 A. I. R. (1936) Mad. 449.]; (Syed Shah) Muhammad Kazim v. (Syed) Abi Saghir [6 A. I. R. (1932) Patna 33.]; Abdul Majid v. Akhtar Nabi [7 A. I. R. (1935) Cal. 805.]; Loke Nath Mukerjee et al. v. Abani Nath Mukerjee et al. [8 A. I. R. (1941) Cal. 68.]; Said Mahar Husein v. Haji Alimahomed Jalaludin [9 A. I. R. (1934) Bombay 257].

N. E Weerasooria, K.C. (H. V. Perera, K.C., with him S. P. Wijewickrema), for the third and fourth defendants, respondents.-A. suit under the special provisions of section 103 of the Trusts Ordinance

cannot be maintained in law when the existence of the trust is denied by the defendants. Section 101 has a special application under special circumstances and provides for a case dealing with purely the internal administration of an admitted trust. The position is fully discussed in Budree Das Mukin v. Chooni Lal Johurry et al. [1 I. L R. {1906) 33 Cal. 789 at 804.]. The first part of the judgment in Eralappa Mudaliar v. Balakrishniah (supra) is at variance with the concluding portion. In each of these cases cited on behalf of the appellant a trust was at some stage or other admitted and the dispute was only as to internal administration. See also Swaminathapillai v. Kanagamuttu [2 (1930) 7 Times 134.].

[WIJEYEWARDENE J. pointed to section 107 of the Trusts Ordinance and to the absence of a similar enactment in India.]

Section 107 lays down only a rule of evidence in- view of the earlier section 5, and does not affect the view taken in the Indian cases. Nor d

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