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CHELLIAH et al v. SAIVA PARIPALAM
NLR47V419
1946 Present:
Keuneman S. P. J. and Jayetileke J.
CHELLIAH et al., appellants, and SAIVA PARIPALAM, Respondent.
249 ? D. C. Jaffna, 16,614.
Evidence ? Certified copy of a
private document kept at a Kachcheri ? Hearsay.
The question at issue was whether certain lands were
subject to a charitable trust in favour of a certain madam. The main evidence on
which the trial Judge relied was a document described as a certified copy of a
?register ?kept at the Jaffna Kanchcheri wherein the lands however, established
that the ?register ?was made under any statutory duty on the part of the
Government Agent; it appeared to be a purely private document based on reports ?
submitted by the Udayar and Vidhanes of the village in question to the
Maniagar.?
Held, that the document should have been rejected as
hearsay evidence.
APPEAL
from a judgment of the District Judge of Jaffna.
G. Crosette Thambyah (with him V. K. Kandasamy and
C. Sanmuganayagam), for the first and second defendants, appellants.
N. Nadarajah, K. C. (with him C. Renganathan),
for the plaintiff, respondent.
Cur. adv. vult.
September 25, 1946. KEUNEMAN S.
P. J.-
The plaintiff, a corporation incorporated under Ordinance
17 of 1931 (Cap. 240), sued the defendants to obtain judgment declaring that the
properties mentioned in the schedule to the plaint were subject to the
charitable trust known as the Chidambaram Ambalavanarswamy Punnianachy
Tharmam and that the plaintiff as the lawful trustees of the said trust was
entitled to possess the said properties.
Plaintiff obtained judgment as prayed for, and the first and
second defendants appeal.
There were several matters which the plaintiff had to
establish in order to succeed in this action :-
(1) Was there a charitable trust as described in the plaint ?
(2) Were the three lands described in the schedule to the
plaint subject to the said trust ?
(3) Was the plaintiff the duly appointed trustee in respect
of these three lands ?
(1) The plaintiff?s case was that one Punnianacham founded at
Chidambaram in India and in Jaffna the trust described in the plaint which was
also known as the Punnianachy Mada Tharmam. It was alleged that this
trust was created for the establishment and maintenance of a madam or
place of rest for pilgrims who go to worship at the famous shrine of
Ambalavanarswamy Temple in Chidambaram, South India, and for the purpose of
making contributions to the temple for various poojahs and other ceremonies of
the temple. Under the terms of this trust a madam was in fact built at
Chidambaram but this now appears to be in ruins.
In this appeal I do not think there has been any real
controversy as regards the existence of the trust as alleged. It is in evidence
that the plaintiff has been in possession of certain lands and has administered
those lands for the purpose of this trust. The plaintiff has also obtained a
vesting order as trustee for these lands ? not those in the schedule to the
plaint. In my opinion the plaintiff has made out a sufficient case in this
respect, and the District Judge has so held.
(2) It is strongly urged for the appellants that the
plaintiff has failed to prove that the three lands described in the plaint are
subject to this trust. It has been established in evidence that the first land
Kuranthan and the second land Arachchivayal originally belonged to Ramanathan
Mudaliyar. The thombus of 1822 (P 9 and P 10) strongly support that
contention. There is no proof that
Punnianacham was even a descendant of Ramanathan Mudaliyar, nor is it shown how
Punnianacham obtained any title to the said lands. In fact we know nothing of
Punnianacham and she appears to be a legendary figure. There is no evidence that
Punnianacham dedicated these two lands for the purpose described. It is no doubt
also true that the appellants have failed to prove that they are the descendants
of Ramanathan Mudaliyar,. The District
