Doraiswami Kurukkal V. Thambipillai Et Al

1949 Present: Dias J. and Windham J.

DORAISWAMI KURUKKAL, Appellant, and THAMBIPILLAI et at,
Respondents

S. C. 28 Inty. and 139-D. C. Jaffna, 16,608 M.

Hindu temple-Charitable trust-No deed creating the trust-Founder and heirs unknown-Appointment of trustee in such circumstances-Trusts Ordinance (Cap. 72), ss. 99 (c), 107.

The 1st substituted defendant and his ancestors for nearly one hundred years were officiating as the de facto managers and trustees of a Hindu temple which was proved to be a charitable trust within the meaning of section 99 (c) of the Trusts Ordinance. There was, however, no deed creating this charitable trust and the founder and his heirs were unknown and could not be traced.

Held, that, in the circumstances, section 107 of the Trusts Ordinance was applicable and the 1st substituted defendant should be held and declared to be the de jure trustee of the temple.

APPEAL from a judgment of the District Court, Jaffna.

S. J. V. Chelvanayakam, K.C., with A. Vythialingam, for the 1st substituted defendant appellant.

H. W. Tambiah, with S. R. Canaganayagam and C. Shanmuganayagam, for the plaintiffs respondents.

N. Kumarasingham, with C. Vanniasingham and S. Sharvananda, for the 2nd substituted defendant respondent.

S. Thangarajah, for the 3rd defendant respondent.

A. C. Nadarajah, for the 10th respondent.

Cur. adv. vult.

November 8, 1949. DIAS J.-

This is a dispute regarding the ownership and management of a Hindu temple known as the Maviddapuram Kandaswamy Temple in Tellipallai, Jaffna.

The deceased 1st defendant who is now represented by his son the 1st substituted defendant claimed the temple and its appurtenances as their absolute private property. This is denied by the plaintiffs who are some of the worshippers at this temple. They assert that the temple is a " charitable trust " within the meaning of s. 99 (c) of the Trusts Ordinance (Chapter 72). They have filed this action under s. 102 of the Trusts Ordinance alleging mismanagement and misappropriation of temple property. They prayed that the 1st defendant should be removed from office as manager, and asked the Court to formulate a scheme for the better control and management of the trust.

The 1st defendant having died during the pendency of the action, his two sons the 1st and 2nd substituted defendants were added in his place. The 2nd substituted defendant disclaimed all interest in the temple. The plaintiffs did not amend their plaint asking for any relief against the 1st substituted defendant. In fact, no charges have been made against him personally, except that he is the son of his father. The 3rd and 4th defendants and the 10th respondent (who is the nephew of the deceased 1st defendant) claim to be officiating priests in this temple. They merely ask that in any order which the Court may make in this case, their status and rights should be preserved. The main contest, therefore, is between the plaintiffs and the 1st substituted defendant who is now in control of and managing this temple.

The learned District Judge has considered the various questions raised. His findings may thus be summarised : (1) The temple is a public charitable trust. The District Judge holds that the evidence on the point is overwhelming and to a great extent admitted. He holds that the 1st substituted defendant is, and his ancestors were, hereditary trustees and managers of the temple, but not its proprietors. (2) The 1st defendant and after him his son the 1st substituted defendant cannot be regarded as being the proprietors of the temple and its temporalities. He holds that in the face of the various donations made by the faithful to the deity, they cannot claim to be proprietors of the endowments of the temple, and nowhere has any distinction been made between the kovilkadavi itself and the endowments to the temple. They were all treated alike. (3) Various acts of mis

Click Here to Read the rest of this document