Fernando V. Sivasubramaniam

1959 Present: Basnayake, C. J., and Pulle, J.

C. A. FERNANDO et al., Appellants, and T. N. I. SIVASUBRAMANIAM
AIYER, Respondent

S. C. 444 A-B-D. O. Jaffna, 173/L

    Charitable trust-Applicability of English law-Hindu religious trust-Interpretation of expressions such as " madam ", " abishekam ", " neivethiam ", " Duwadesi " -Trusts Ordinance (Cap. 72), 88. 2, 99 (1) (c), 99 (4).

If a trust is claimed to be charitable and it falls within one or other of the categories specified in section 99 (1) of the Trusts Ordinance, no principle of English law relating to charities isadmis8ible to show that it is not a charitable trust.

Per PULLE, J .-(1) In determining whether an instrument has created a Hindu religious trust for the maintenance of religious rites and practices within the purview of section 99 (1) (c) of the Trusts Ordinance, provisions relating to the feeding of Brahmins on "Duwadesi " days and to the assignment of a " madam " for that purpose, and expressions such  " abishekam " and" neivethiam ", must be interpreted in the context of the religious beliefs of the person who executed the deed, For such purpose, admissions made by the trustees in previous action concerning the trust are relevant, (ii) If a place is constituted as a " madam ", it is for those who accept the trust to do what is necessary to make it a place of worship and pilgrims' rest. A continuous breach of trust in this respect cannot defeat the trust.

APPEAL from a judgment of the District Court, Jaffna.

C. Thiagalingam, Q.C., with C. Ranganathan and E. R. S. R. Coomaraswamy, for the added defendants-appellants in 444 B and for the added defendants-respondents in 444A.

H. W. Jayewardene, Q.C, with G. Barr Kumarakulasinghe and N. R. M. Daluwatte, for the 1st defendant-appellant in 444A and for the 1st defendant-respondent in 444B.

A. Sambandan, with S. Sharvananda and S. Sivarasa, for the plaintiff respondent in both appeals.

Cur. adv. vult.

May 12, 1959. BASNAYAKE, C.J.-

I have had the advantage of reading the judgment prepared by my brother Pulle, and I agree that the decree appealed from should be set aside and that the plaintiff's action should be dismissed with coats.

As my brother has stated the facts at length it is not necessary for me to recapitulate them all. The question that arises for decision is whether by deed No. 4867 of 27th July 1888 (PI) Kanapathy Aiyer Sanmuga

Aiyer created a charitable trust. Kanapathy Aiyer Sanmuga Iyer by that deed dedicated to religious charity the lands referred to therein. This is how he expressed his wish.

"I, Kanapathy Aiyer Sanmuga Aiyer, residing at Vannarponnal West, Jaffna, being desirous of my soul's attainment of salvation do hereby execute deed for the performance of charity. As it is my desire that feeding of Brahmins should be conducted on each 'Dwadesi' day occurring every month, I assign the following place for that purpose."

After describing the land he goes on to say:-

" I have, in order to be of use for the performance of the duty mentioned above, and for religious worship given all that is contained within these boundaries, including building, well, cultivated and spontaneous plantations the sacred name' Dwadesi ' Madam and have executed this instrument for the performance of charity The value of this is Rs. 500.

" The properties I give over to this Madam are :-
. . . . . . ."

He then describes the properties, and states :--

"I have given over to the above named 'Dwadesi' Madam all these lands so that with the income there from the feeding of Brahmin may be conducted on each' Dwadesi' day occurring every month at the said' Dwadesi ' Madam and also to perform Abishekam and Neivethiam ceremonies on each Vinayaga Sathurthi day and on each Sathaya Lunar Constellation day every month to Sri Visuvalinga Maha Ganapathi Deity who, as a blessing, has taken abode in th4 Temple situated in the land called ' Pan

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