Murugesoe Et Al., V. Chelliah Et Al.,

1954 Present : Gunasekara, J., and H. N. G. Fernando, A.J.

S. MURUGESOE et al, Appellants, and V. CHELLIAH et al., Respondents

S. C. 534-D. C. Point Pedro, 3,035

Charitable trust-Construction of deed--Purchase of property for a Hindu temple- Legal position of the purchaser-Co-trustees-Survival of trust on death of a co-trustee-Trusts Ordinance (Cap. 72), ss. 5, 6, 78, 84, 107.

Where a transfer of immovable property contained a recital that the consideration was paid by the transferee " for " a specified Hindu temple-

Held, that the transferee must be taken to have purchased the property with funds provided by, or held by him for, the religious charity represented by the temple. The transferee, therefore, held the property as trustee, and, on his death, the land devolved on his heirs subject to the same trust.

Held further, that section 78 of the Trusts Ordinance is applicable to charitable trusts. On the death, therefore, of a co-trustee, the trust property passes to the other co-trustees and not to the heirs of the deceased trustee.

FERNANDO, A. J.-The words " for the Temple " were not merely precatory but were sufficient to create a trust.

APPEAL from a judgment of the District Court, Point Pedro.

H. V. Perera, Q.C., with H. Wanigatunga, for the 1st defendant appellant.

H. W. Tambiah, with H. L. de Silva, for the 2nd defendant appellant.

N. E. Weerasooria, Q.C., with E. R. S. R. Coomaraswamy, for the plaintiffs-respondent.

Cur. adv. vult.

September 14, 1954. GUNASEKARA, J.-

This is an appeal by the 1st and 2nd defendants in an action before the District Court of Point Pedro from a decree declaring the two plaintiffs entitled to a l/16th share each of a piece of land, 3 roods 14.5 perches in extent, which had been conveyed by the Crown to one Vyramuttu Kandavanam on the 8th October, 1910. The question that arises on the appeal is whether Kandavanam purchased it for himself, as alleged by the plaintiffs, or in trust for a religious charity, as alleged by the defendants.

Kandavanam died in 1914. The district judge holds that thereupon a \ share of this property devolved on Kandavanam's widow and the other half on his two brothers (the 3rd defendant and one Velupillai) and two sisters. Velupillai died in 1920, and the learned judge holds that the 1/8 th share which Velupillai had inherited devolved on his sons, the two plaintiffs. (An issue as to their legitimacy was decided in their favour and this finding was not canvassed in appeal.) The case for the 1st and

2nd defendants is that upon Kandavanam's death the property passed to his brothers subject to the trust alleged by these defendants, and upon Velupillai's death the 3rd defendant became the sole trustee and by two deeds executed on the 26th August, 1940, conveyed a portion of the property to the 1st defendant and the rest to the 2nd defendant subject to the same trust.

The crown grant of 1910 recites that the consideration for the grant is a sum of Rs. 27 " paid by Vyramuttu Kandavanam of Polikandy for Polikandy Kandasamy Temple ", and the appellants rely on this recital to show that Kandavanam bought the property in trust for the temple. The learned district judge takes the view that it is insufficient to indicate either the beneficiaries or the purpose of the trust.

The learned judge points out that " it is not possible to declare lands are the property of the temple as we do not recognise the personality of religious foundations ". But the personification of the temple in the statement that the price paid for the land was paid on behalf of the temple does not purport to treat it as a juristic person: the figure of speech is employed merely as a means of indicating the religious charity represented by the temple. As Mr. Perera pointed out in the course of his argument, it is one that the legislature itself has found it convenient to use for a similar purpose : see the B

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