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KANDAPPA CHETTIAR v. JANAKIAMMAH
NLR62V447
1960 Present :
Sansoni, J., and Sinnetamby, J.
V. C. KANDAPPA CHETTIAR et al., Appellants, and N. JANAKIAMMAH
et al., Respondents
S. C. 109-D. C Jaffna TR 8
Charitable trust--Propmty
dedicated for its use-- Vesting of title to the property-Trust 80 Ordinance, 88.
75, 76, 77,112,113.
The owner of certain immovable property created a charitable trust (a madam)
and dedicated that property for the p'U'pose of the trust. She nominated as.
trustees to manage the trust property herself and, after her lifetime, one P
who. was the trustee of a Hindu temple (and after his lifetime his successors in
office as trustees of the temple).
Held, that in the absence of a notarial transfer in favour of P, the
legal title. to the immovable property remained in the author of the trust, and
on her death passed to her heirs, subject to the obligations of the trust, the
heirs then becoming constructive trustees.
Held further, that where a plaintiff claims to be entitled as
trustee to a land and seeks to eject a trespasser, he will not be entitled to
rely on a vesting order made in terms of section 112 of the Trusts Ordinance
unless he has obtained such vesting order prior to the filing of the action. If
the legal estate was not in him at the commencement 'of the action, no vesting
order obtained subsequently will cure the initial want of title.
APPEAL
from a judgment of the District Court,
Jaffna.
C. Thiagalingam, Q.C., with V. Arulambalam, for Plaintiffs-Appellants.
C. Ranganathan, with V. K. Palasuntheram and K. Devarajan, for
Defendants-Respondents.
Cur. adv. vult.
April 4, 1960. SANSONI, J.
The plaintiffs have sued the defendants claiming that they should be ejected
from a certain land in Vannarponnai, and asking to be quieted in possession
themselves.
It is common ground that one Ponnukannu was the former owner of that land, and
that she executed the deed PI in 1905 whereby she founded a madam named the Sri
Math Sunderamoorthy Nayanar Guru Pooja Madam and dedicated the land in dispute
for the purpose. She nominated as trustees and managers herself, the child or
children to be born to her, and her mother; and after their lifetime three
persons named Ponnusamy Chettiar, one of the trustees of the Vaitheesparan
Temple at Vannarponnai (and after his lifetime his successors in office as
trustees. and managers for his share of the Vaitheesparan Temple), Thambu Kaila.
sapillai, the trustee of the Saivapirakasa Vidiyasalai (and after his lifetime
his successors in office as managers of the said Vidiyasalai), and M. L. RM.
Kalaiyappapillai (and after his lifetime his successors as
administrators and managers of
his boutique). She further provided in the deed that she and her children and
her mother should reside in a building on the land; also that the trustees
should conduct and carryon the Guru Pooja of Sunderamoorthy Nayanar annually,
and after the death .of herself and her children and her mother a Maheswara
Pooja to each of them annually.
By a subsequent deed P2 of 1931, Ponnukannu reciting that M. L. RM.
Kalaiyappapillai had died and the boutique of M. L. RM. Kalaiyappapillai had
been closed, and that Thambu Kailasapillai had become old and was not willing to
carryon the charity, appointed herself, and after her death her mother, and
after her mother's death Ponnusamy Chettiar (and after his lifetime his
successors in office as trustees of the Vaitheesparan Temple), as the trustees
to manage the trust properties and to con. duct the Poojas.
The plaintiffs came into Court claiming to be the successors in office as
trustees of the Vaitheesparan Temple of Ponnusamy Chettiar, and complaining that
the defendants were in unlawful occupation of the land in dispute since 1953. In
their answer, the defendants pleaded that the deed PI did not create a valid
charitable trust, and that no rights vested in Ponnusamy Chettiar. They also
pleaded that the plaintiff
