Kandiahpillai Et Al., V. Vythialingam Et Al.,

1948 Present: Soertsz S. P. J. and Nagalingam J.
 
KANDIAHPILLAI et al., Appellants, and VYTHIALINGAM et al., Respondents.
     
S. C. 91-D. C. Jaffna 14,151.

    Trust -Declaration that Kovil is charitable trust-Claim to be hereditary managers- Compromise-Validity of compromise-Public rights involved-Civil Procedure Code, section 408-Trtixts Ordinance, sections 102, 106.
 
Under section 102 of the Trusts Ordinance plaintiffs brought this action for a declaration that the Nugapushani Animal Kovil was a public charitable trust. Defendants contended that it constituted a private trust. A compromise was reached whereby the Kovil was to be declared a public trust and a board of nine trustees were to be appointed of whom four of the defendants were to be regarded as hereditary trustees. Plaintiffs sought to have this compromise set aside on the ground that the action did not relate to private rights but had reference to the rights of the public represented by the plaintiffs and that the plaintiffs could not become parties to a settlement without the prior assent of those whom they represented.
 
Held, that a compromise entered into bona fide in such an action was binding on the parties.
 
There is nothing in section 408 of the Civil Procedure Code or in any other provision of the law which carries such an action beyond the field of compromise.
 
APPEAL from a judgment of the District Judge of Jaffna.
 
H. V. Perera, K.C., with H. W. Tambiah and S. Sharvananda, for the plaintiffs, appellants.
 
F. A. Hayley, K.C. with P. Navaratnarajah, for the defendants, respondents.

Cur. adv. vult.

January 27, 1948. NAGALINGAM J.-
 
The plaintiffs appeal from an order of the District Judge of Jaffna refusing to set aside the terms of a compromise entered into between them and the defendants to the action.
 
The action was one instituted under section 102 of the Trusts Ordinance for a declaration that the Nagapushani Ammal Kovil of Nainatiru is a charitable trust within the meaning of the said Ordinance and for certain ancillary reliefs. The defendants contended that the temple constituted a private trust. On November 7, 1942, the case was compromised, and on that date it was agreed between the parties that the temple should be declared a charitable trust within the meaning of section 99 of the Trusts Ordinance and, inter alia, that a vesting order in respect of the temple and its temporalities should be made in favour of trustees to be appointed by Court. The Court thereupon directed that a scheme of management consented to by the parties should be submitted for its consideration. On March 18, 1943, the proctor for the plaintiffs filed a scheme to which the proctors for the defendant would not assent, and when the matter was taken up for consideration

the defendants objected to the scheme in so far as it did not recognize the rights of the defendants as hereditary managers of the temple-rights which had been put in issue between the parties by issue 9 framed at the commencement of the trial. The Court thereupon made order setting down for trial that issue. The trial of that issue was taken up on August 4, 1944, when a compromise was again reached whereby it was agreed that there should be a board of nine trustees of whom four of the defendants were to be regarded as hereditary trustees, and the other five were to be elected by the congregation according to a scheme to be settled thereafter. It is this second compromise that the plaintiffs seek to have set aside.
 
Two grounds have been urged in support. The first is that by the terms of settlement reached on November 7, 1942, where under it was agreed that trustees were to be appointed by Court, any claim on the part of the defendants to be declared hereditary trustees was, to say the least, not accepted by them, and that in fact it was rejected by Court. The second ground is that in any event a

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