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AMBALAVANAR v. SOMASUNDERA
NLR48V61
1946 Present:
Wijeyewardene and Canekeratne JJ.
AMBALAVANAR, Appellant, and SOMASUNDERA KURUKKAL.,
Respondent
7 - D, Jaffna, 984.
Trust - Religious trust - suit
by trustee to be placed in possession of certain lands belonging to the trust -
vesting order - modes of appointment of a new trustee - Trusts Ordinance (cap.
72) ss.101,112.
Where the plaintiff who was the hereditary trustee of a madam brought action in
respect of two lands belonging to the madam, and the trial judge ordered (a) the
plaintiff to be placed in possession of the lands. Defendants to be ejected
there form and to pay damages; (b) a vesting order to be made-
Held, that the plaintiff was not precluded by sections 101 and 102 of the
trusts ordinance from maintaining the action.
Held, further that a trustee of a religious trust is as much entitled as
any other person to avail himself of the provisions of section 112 of the trusts
ordinance for obtaining a vesting order.
APPEAL
from a judgement of the District judge of
Jaffna.
S. J. V Chelvanayagam (with him V. K. Kandaswamy and J. N. David),
for the 1st defendant, appellant.
N. Kumarasingham, for the plaintiff, respondent.
Cur. adv. vult.
December 18,1946. CANEKERATNE
J -
This is an appeal by the first defendant from a judgment in favour of the
plaintiff who sued as trustee of the Karthigai Nadchathira Madalayam (or madam)
of Vetharaniam in South India for possession of two lands situated at Sanguvely
in the parish of Udivil, Jaffna District, and forming part of the property
belonging to the madam. Certain material facts are not in dispute, namely, the
existence of this madam and
the utilization of the income of
these lands for performing poojahs at the madam for a long period. On other
points the views given expression to by the plaintiff and the appellant diverge
considerably.
One Namasivayam Kurukkal, the great-grandfather of the plaintiff, founded,
according to the latter, about 200 years ago the madam, created trusts in
relation thereto and settled funds for the purpose of the trusts; the objects of
the trust were the performance of poojahs called Maheswaram poojahs on the
Karthigai Nadchathiran day of each and every month, the feeding of the Kurukkals
who gathered at the madam for the celebration of the poojah and the celebration
of a special poojahs in the night before the shrine of Subramaniaswamy in the
Sivan temple about 200 yards away from the madam; the trustees were to be the
eldest living male descendants of the founder. The lands in dispute were
acquired by Vaithianathan, a son of Namasivayam, as trustee and held as part of
the trust property. One the other hand one Veerasegaram Mudaliyar, an ancestor
of the appellant, was, according to him, the owner of these lands; he donated
them "for the charitable object of performing poojahs at" this madam monthly on
a particular day (the same day as mentioned above). The appellant avers that the
lineal descendants of Veerasegaram were the trustees and that these descendants
carried out the trust till about 25 years ago when he madam was abandoned and
since that time he has devoted the income for "acknowledged charitable objects".
The plaintiff was not able to produce any deed relating to these lands in favour
of Vaithinathan, nor did the appellant produce any deed in favour of
Veerasegaram or the deed of donation. The plaintiff produced documents relating
to these lands, i.e., indentures of lease P6 (of March 1896) P1 (of October
1909), P7 (of October 1938) affecting land No.1; P2 (October 1909) and P5 (of
October 1938) affecting land No.2; P4 (of September 1920) affecting both lands
and a report (numbered P3 of June 1909) by four arbitrators (one of whom was the
1st defendant, then village headman) for damage caused to land No.1.
The trail Judge held that the plaintiff was the hereditary trustee of the madam
in question and that the lands belonged to the ancest
