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Present: Jayewardene A.J.
KUSELHAMY et al. v. DINGIBALA.
227—C. B. Regatta 19,314*
Devale—Bight to officiate as kapurala—Hereditary claim,—Appointmentby Basnayahe Ntlame.
Hereditary right is alone insuffiicent to entitle a person to actas kapurala in a devale. He must also be appointed to theoffice by the Basnayake Nilame.
PPEAL from a judgment of the Commissioner of Bequests,Kegalla. The plaintiffs claiming to be " kapuialas " or
•officiating priests of the Bamunugama Katar&gam Devale sued thedefendant, another kapurala of the same devale, to recover a sum ofBs. 250, being the value of a half share of the rights and privilegesof the office of kapurala for the year August, 1920-August,1921. The original kapurala of the panguwa in question, Dingi-jala, died, leaving two children, Ausadahamy and Appuhamy,who, according to the plaintiffs, jointly ‘possessed during the year.
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Ausadahamy died leaving as his heirs the defendant and Punchappu-hamy; and Appuhamy also died leaving the plaintiffs as heirs,,and the plaintiffs alleged that they continued to possess in the same*way as their fathers. They further said that it became theirturn (t.e., of the plaintiffs and of the defendant and his brother) to.officiate as kapurala* during the period August, 1920-August, 1921.By an arrangement, Dingirala, the defendant, undertook to enjoythe rights and privileges during that period, promising to allow the-plaintiffs to possess during the next term—August, 1923-August,1924. In spite of the agreement, the defendant had, they allege,taken possession during the period 1923—-24 and refused .to admitthe rights of the plaintiffs. The defendant specially denied theagreement alleged in the plaint, and pleaded that by immemorialcustom only the eldest male in the family perform the duties andceremonies of kapurala, and that he, as the eldest male descendant,performed them to the exclusion of the plaintiffs. The main issue-was with regard to the existence of the customs pleaded by thedefendant. The learned Commissioner held that the acceptedpractice was to appoint the eldest surviving male member of afamily, provided he is a fit and suitable person to act as kapurala.
H. V. Perera (with him Rajakariar), for appellants.
Navar&tnam (with him Schokman), for respondent.
October 10, 1924. Jayewardene A.J.—
This is an interesting case in which questions are raised with:regard to the rights of “ kapuralas ” attached to village devales-in the Kandyan Provinces. The .plaintiffs claiming to be 44 kapu-ralas ” or officiating priests of the Bamunugama Devale sue thedefendant, another “ kapurala M of the same devale, to recovera sum of Rs. 250, being the value of a half share of the rights andprivileges of the office of “ kapurala ” for the year August, 1920,to August, 1921.
It would appear that about the year 1872, when the ServiceTenure Register was compiled, there were three kapurala panguwasof this devale. The village devalest according to the report ofthe Service Tenure Commissioners for 1857—59, are left in charge-of a “ kapurala '* or hereditary priest of the deyot” who is generallythe largest tenant of the devale, and holds his lands as officiatingpriest. The panguwas of these 44 kapuralas ’* are registered asparaveni niUpanguwas (see P 4 and P 5). In the register two ofthese are called -the “ Loku Kapurallage Panguwa ” and “ Mad-duma Kappurala Panguwa/’ respectively, and the third, -Ipresume, is called the “ Kuda Kapurala Panguwa ” (but no extract-
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has been filed to prove this), and they consist of "fields, gardens,and chenas, and the services the pangukarayas have to performare given in detail.
The proprietor of these panguwas was the Bamunugama Katara-gam Devale. The services were to be performed in tattumaru—that is, once in three years by each tenant or set of tenants. Theofficiating 41 kapurala ’* became entitled to the offerings madeand to any other rights or privileges attached to the office duringhis year of service. The “kapurala” of the “ Madduma Fan-guwa, ” who is called in the register Dingirala, died leaving twochildren, Ausadahamy and Appuhamv, who, according to theplaintiffs, jointly possessed during their tattumaru year. Ausada-hamy died leaving as his heirs the defendant and Punchiapp«uhamy;and Appuhamy also died leaving the plaintiffs as his heirs, andthe plaintiffs alleged that they continued to possess in the sameway as their fathers. The plaintiffs’ cause of action is the breachof an agreement between themselves and the defendant. Theysay that according to the tattumaru arrangement, it became theirturn (that is, of the plaintiffs, the defendant, and his brother)to officiate as “ kapurala ” during the period August, 1920, toAugust 1921.
“By an arrangement, however, Dingirala, the defendant, under-took to enjoy the rights and privileges during that period, promisingto allow the plaintiffs to possess during the next term—August,1928, to August, 1924. In spite, however, of such agreement,the defendant has now taken possession during the period 1928to 1924, and refuses to give up the same to the plaintiff. ”
This is their cause of action, and they claim a half share of therights and privileges, that is, of the offering, &c., of the year 1920to 1921, which, as 1 said, they value at Es. 250. The defendantspecially denied the agreement alleged in the plaint, and alsopleaded that by immemorial custom only the eldest male in thefamily performs the duties and ceremonies of ‘c kapurala, ” an.d thatthe right does not belong to every male member of the family, andthat he, as the eldest male descendant, has always performed theoffice of “ kapurala ” to the exclusion of the plaintiffs. The mainissue raised was with regard to the existence of the custom pleadedby the defendant. No issue was framed with regard to the agree-ment pleaded in the plaint and of its breach by the defendant. Thelearned Commissioner thinks that “ there is every reason to believethat the accepted practice is to appoint the eldest surviving malemember of a family, provided he is a fit and suitable person toact as “ kapurala. ”
He is also of opinion that the profits derived by a “ kapurala ”from a small devale like the one in question must be regardedas a reward for services rendered by the “ kapurala, ” and thatthe plaintiffs not having performed any services during 1920 to
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Jayewab-Wob A. J.
1921 cannot lay claim to any remuneration. He dismissed theaction. One important fact has emerged from the evidence recordedat the trial, that is, that the Basnayake Nilame of the devale hasbeen granting a “ sittu ”—see D 1 to D 7—or writing appointingand empowering certain members of these families to act as“ kapuralas. ”
The report of the Service Tenure Commissioners for 1857 to 1858calls the Basnayake Nilame the head landlord of these devales;he generally lived at Kandy or wherever the provincial devalewas. It also records the- fact that the other officers of the devalepurchase their appointments from him, and reimburse themselvesfrom the nilakarayas and out of the offerings. The BasnayakeNilame also got a share of the offerings. This shows that theBasnayake Nilame appointed the “ kapurala ” for the year. Hewould, I am sure, in practice appoint a member of one of the“ kapurala ” families, for to discharge the duties of the office of“ kapurala ” a special training is required, and he would also follow,as far as possible, any rule established by custom in making suchappointments, for the office is regarded as hereditary. In respectof this devale^ there is a “ sittu ”—D 6—which shows that so farback as the – year 1872, the Basnayake Nilame exercised the rightof appointment and appointed Ausadahamy to officiate as “ kapu-rala ” for a period of twelve months. This practice has continuedup to date. When the Buddhist Temporalities Ordinance waspassed in 1889, the Basnayake Nilame purported to act under thepowers vested in him as trustee under the Ordinance—D 2. Itseems to be, therefore, clear that according to the usages of thisdevale, hereditary right is alone insufficient to entitle a person toact as “ kapurala, ” he must also be appointed to the office by theBasnayake Nilame. Bightly or wrongly, the defendant obtaineda ” sittu ” from the Basnayake Nilame to act as “ kapurala” forthe year 1920 to 1921, and I cannot see how the plaintifEs whoobtained no such “ sittu ” could have officiated as ” kapuralas. ”for that period, or claim a share of the offerings made during thatperiod from the defendant. If the plaintifEs had proved the agree-ment pleaded in the plaint, they might have been entitled torecover damages for breach of it; .in such a case entirely differentconsiderations would apply. But the plaintiffs made no attemptto prove it, although the defendant had expressly denied it. Theright which they claim to officiate as ” kapuralas ” cannot bedecided in an action to which the Basnayake Nilame is not a party.
They should apply to the Basnayake Nilame for a ■” sittu "or authority at the proper time, and if their application is notentertained, they should bring an action against him to vindicatetheir right, joining, if necessary, the defendant and the otherdescendants of Ausadahamy who claim the right. I do notknow how they can obtain a declaration of their right in this
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case, even if they had prayed for one. The learned Commis-sioner, as I have pointed oat Above, thinks that the office of“ kapurala ” descended to the eldest surviving male member ofthe family. I am unable to agree with his view on the evidenceled in this case. The Basnayake Nilame himseuf repudiates it.He says that it is not true that only the eldest male memberof the family is entitled to officiate as “ kapurala ”—all malemembers take by turns—and that the office of “ kapurala " is per-formed on the authority of a “ sittu. ”
In view of this evidence, I think the question of the immemorialcustom on which the defendant relies should be left open to bedecided in an action to which the Basnayake Nilame is a party.
I would, therefore, hold that the plaintiffs have no cause of actionagainst the defendant. They failed to prove the cause of actionpleaded in the plaint, and they had no “ sittu ” which entitledthem to perform the duties of a “kapurala” in 1920 and 1921.Their action has been rightly dismissed.
The appeal must also be dismissed, with costs.
D1M A. J*.KuaMotnyDingirqla
KUSELHAMY . v. DINGIRALA