Dhammananda There ». Saddananda !Thero299
1977Present: Pathirana, J., Malcolm Perera, .J. and ,;Wanasundera, J.
MEDDEGAMA DHAMMANANDA THERO, 1st Defendant-Appellant and Another
DEKATANA SADDANANDA THERO, Plaintiff-RespondentS.C. 136/70 (F)—D.C. Gampola, 11011/L
Buddhist Eccelesiatical Law—Action for declaration that plaintiffViharadhipathi of Buddhist Temple—-Nature of such action—Death of defendant—Does action abate—Scope and applicabilityof maxim “ actio personalis moritur cum persona ”—CivilProcedure Code, sections 392,404—Buddhist Temporalities
Ordinance (Cap. 318) section 20.
Plea of res judicata by defendant—Validity thereof—Decision of MahaSangha Sabha—Irregularities in proceedings at inquiry—Violationof rules of natural justice—Can such decision be acted upon—^Abandonment of right to be Viharadhipathi—Evidence giventhereof by such priest—Plea of prescription—Imposter cannotacquire title to incumbency by prescription.
The plaintiff filed this action against the original 1st defendant(since deceased), the 2nd (also since deceased) and the 3rd defen-dants claiming to be the lawful Viharadhipathi of the MahaloluwaPurana Vihare. He asked for a declaration that he was the rightfulViharadhipathi, for an order ejecting the defendants from the saidTemple and for damages. The mode of succession applicable wasthe sisyanu sisya paramparawa. The 2nd defendant died duringthe trial in the District Court but it was agreed by Counsel appear-ing for the parties that no substitution was necessary as he hadbeen sued as an agent of the 1st defendant and the action againsthim had abated on his death. The trial proceeded against the 1stand 3rd defendants only. After trial, judgment was entered infavour of the plaintiff as prayed for but without an order fordamages. The 1st and 3rd defendants appealed.
During the pendency of the appeal the 1st defendant-appellantdied and the record was returned to the District Court for substitu-tion. Thereafter, the 3rd defendant filed petition and affidavitobjecting to any substitution on the ground that the action by theplaintiff being a personal action to establish the right to an officeabated on the death of the 1st defendant. Reliance was placed onsection 392 of the Civil Procedure Code. At the inquiry into theseobjections no order for substitution was made and the record wasreturned to the Appellate Court at the request of both Counsel. Itwas submitted there by Counsel for the 3rd defendant-appellantrelying on the Divisional Bench judgment of Dheerananda Therav. Ratnasara Thera that the suit had abated on the death of the1st defendant, inasmuch as the cause of action was purely personal.
Dhammananda Them v- Saddananda Thero
It was submitted on behalf of the plaintiff-respondent thatalthough tne plaintiff had sued for a declaration to the office ofViharadhipathi the plaint showed that it was in substance anaction both for the office of Viharadhipathi and the temple and itstemporalities. The action could therefore continue after the death ofthe 1st defendant in view of the provisions of section 404 of the CivilProcedure Code as on the assumption that the 1st defendant wasthe Chief Incumbent of the temple, by operation of law there wasa creation or devolution in favour of his successor in title. It wassubmitted further that there was a distinction between section 392which referred to the necessity for identity of causes of action for anaction to survive and section 404 which referred to the identity ofinterests which enable the causes of action to continue. Finally itwas submitted that by reason of the refusal to substitute thesuccessor of the deceased 1st defendant on whom the interests devol-ved, the appeal of the 1st defendant had abated.
Held:(1) That in an action for declaration of title to the
office of Viharadhipathi of a temple, on the death of the plaintiff orthe defendant (if he too claimed to be the Viharadipathi) the actioncan be continued by or against the successor-in-title under section404. The maxim actio personalis moritur cum persona will not applyin such a case to abate the action. The action though in form anaction for a status or an office is in substance an action for a templeand the temporalities which by operation of law belong to theViharadipathi of the temple.
(2) That inasmuch as no substitution Jrad been made in place ofthe deceased 1st defendant-appellant this appeal stood abated.
Per Pathirana J. : “ I have next to consider the applicability of themaxim in relation our law particularly Chapter XXV of the CivilProcedure Code which relates to continuation of action after altera-tion of a party’s status and examine to what extent the maxim ismodified by statute. In considering this question I have also to keepin mind two other relevant maxims of equal importance in relationto litigation. The first is the maxim “ interest reipublicae ut sit finislitium,” viz. the general interests of the community in the termina-tion of disputes and in the finality and conclusiveness of judicialdecisions, and secondly, the maxim “Nemo debet bis vexari pro unaet eadem causa ”, viz. the right of an individual to protected fromvexatious multiplication of suit.
In fact the aim and purpose of the Civil Procedure Laws of thiscountry are primarily directed to the speedjr and final determinationof all actions and the avoidance of multiplication of action exceptin exceptional circumstances. It is not in dispute in this case thatthe Civil Procedure Code applies.
Chapter XXV which refers to continuation of actions and thesections in the Code relating to res judicata are the principle mediaby which this aim and purpose is sought to be achieved. Whereverpossible every reasonable construction must be placed which wouldhelp the Court to continue the action rather than see the actionabated or force a party on whom a deceased party’s interests de-volved to resort to fresh litigation with the attendant expense anddelay such a process necessarily involves.”
Dheerananda Thero v. Ratnasara Thero, 60 N.L.R. 7, distinguished.
Inasmuch as the 3rd defendant in this action had in his answerdenied the plaintiff’s title to the said temple the Appellate Courttook the view that it was incumbent on the plaintiff to establishhis title not only against the 1st defendant but also against the 3rddefendant. Submissions on behalf of the 3rd defendant-appellantwere also therefore heard.
Dharnmonanda Thero v. Saddananda Thero
The 1st defendant-appellant had at the trial urged that thefinding in an earlier action 3102/L, operated as res judicata againstthe plaintiff in regard to his right to the incumbency of the temple.This was on the basis that one Vajiragnana Thero, the tutor ofthe plaintiff who the plaintiff claimed was the eldest pupil ofDhammarakkita Thero was a party to that action. It was commonground that Dhammarakkita Thero had been Viharadipathi of thistemple until his death in 1933.
Held : (3) That the said decree did not operate as res judicata-as Vajiragnana Thero was not a party to that action.
The question was also raised as to whether the 1st defendant-appellant or the said Vajiragnana Thero was the senior pupil ofDhammarakkita Thero. The learned District Judge had held thatit was Vajiragnana Thero and that the 1st defendant was in factthe pupil of one Seelaratana Thero.
Held : (4) That on an examination of the evidence in this case thelearned trial Judge was right in holding that the 1st defendant-appellant was not the pupil of Dhammarakkita Thero but was apupil of Seelaratana Thero.
On the question of whether Vajiragnana Thero was the seniorpupil of Dhammarakkita Thero as claimed by the plaintiff, the 1stdefendant-appellant’s position had been that Dhammarakkita Theroduring his life time had dismissed Vajiragnana Thero from hispupilage. He also relied on a decision of the Maha Sangha Sabhamade on 2.11.47 to the effect that Vajiragnana Thero though ordainedby Dhammarakkita Thero was not robed by him. The 1st defendant-appellant had also claimed title to the Viharadhipathiship byprescription.
Held : (5) That on the evidence Vajiragnana Thero was and re-mained the pupil of Dhammarakkita Thero. The decision of the MahaSangha Sabha relied on by the 1st defendant-appellant could not be-acted upon inasmuch as there were such substantial irregularities inthe procedure at the inquiry and also a violation of the principles ofnatural justice, that little reliance could be placed on this decision,even assuming that the Tribunal had jurisdiction to consider thethe matter. This decision did not in any event act as an estoppel or-res judicata against the plaintiff’s claim that Vajiragnana Thero was-the pupil of Dhammarakkita Thero.
(6) That the plaintiff’s claim that he was the successor-in-title•of Vajiragnana Thero to the incumbency should be upheld.Gnanawasa Thero who was the senior pupil and who gave evidenceon this point for the plaintiff had clearly abandoned his rights tothe Viharadipathiship.
Held further : That the 1st defendant’s claim to be entitled tothe Viharadipathiship by prescription must also fail as he couldnot by mere occupation of the temple acquire prescriptive titleto the Viharadhipathiship. An imposter cannot acquire title to anincumbency by prescription and to uphold the contention that the1st defendant was entitled to the incumbency until his death wouldbe tantamount to so holding. On the death of Vajiragnana Theroin 1962 a fresh cause of action accrued to the plaintiff his pupil,which cause of action was not barred by lapse of time even on theassumption that the prescriptive period was 3 years.
PATHIRANA, J.—Dhammananda Thero v. Saddo.na.nda Thero
Cases referred to :
Deerananda Thero v. Ratnasara Thero, 60 N.L.R. 7Pannananda Thera v. Sumangala Thera, 68 N.L.R. 367.
Finlay v. Chimey, (1888) 20 Q.B. 494.
Cassim & Sons v. Sara Bibi, (1936) A.I.R. Rangoon 17.
Admiralty Commissioner v. S. S. Amerika, (1917) A.C. 38;
(1916-17) All EJ1. Rep. 177 ; 116 L.T. 34; 3? T.L.R. 135.
Charlis Appu Kapurala v. Manis Appu, 71 N.L.R. 350.
Yarmouth v. France (1887)19 Q.B.D. 647; 57 L.J.Q.B. 7; 4-
Lissenden v. Bosch Ltd., (1940) A.C. 412.
Podiya v. Sumangala Thero, 58 N.L.R. 29.
Sham Chcmd Giri v. Bhayaram Panday, (1894 ) 22 Cal. 92.
Ramsarup Das v. Rameshwar Das, (1950) A.I.R. (Patna) 184.Vajiragnana Thero v. Anomadassi Thera, 73 N.L.R. 529.Saranankara Thero v. Dhammananda Thero, 55 N.L.R. 313.Dhammararma v. Wimalaratne, (1913) 5 Bal. Notes of Cases 57.Attadassa Unnanse v. Revata Unnanse, 29 N.L.R. 361.
Terunnanse v. Terunnanse, 6 Times of Ceylon L.R. 22.
PPEAL from a judgment of the District Court, Gampaha.
A. Koattegoda with N. R. M. Daluwatte and Day a Pelpola,for the 3rd defendant-appellant.
Eric S. Amerasinghe, with D. R. P. GoonetilleTce and C. D. S.Siriwardene, for the plaintiff-respondent.
Cur. adv. vult.
December 7, 1977. Pathirana, J.
The plaintiff-respondent instituted this action against theoriginal 1st defendant Dhammananda Thero (since deceased),Jinananda Thero, the 2nd defendant (since deceased) andSaranapala Thero, the 3rd defendant, claiming to be the lawfulViharadipathi of Mahaloluwa Purana Vihara, a Buddhist temple.He alleged that the 1st defendant who had no title to the saidtemple had denied the title of the plaintiff and had placed the2nd and 3rd defendants in possession of the said temple and thatthe 2nd and 3rd defendants were in wrongful possession thereofto his loss and damage which he estimated at Rs. 750 per annum.He asked for a declaration that he is the rightful Viharadipathiof the said temple, for an order ejecting the defendants fromthe said temple and for damages.
It is common ground that one time Anugammana Dhamma-rakkitha Thera was the Viharadhipathi of the said temple tillhis death in 1933. The plaintiff claimed as the successor-in-titleof the eldest pupil of Anugammana Dhammarakkhitha Thera,namely Panagoda Vajiragnana Thera. The defendants in their
PATHIRANA, J.—Dhammananda Thero v. Saddananda There
answer denied the plaintiff’s title and claimed that it was the1st defendant who was the senior pupil of AnugammanaDhammarakkhitha Thera and was the lawful Viharadipathi ofthe said temple. The 1st defendant pleaded that by deed No. 3665of 16.2.46 he had appointed the 2nd and 3rd defendants as jointmanagers of the said temple.
During the course of the trial in the District Court, the 2nddefendant Jinananda Thera died on 1.8.69. As the action againstthe 2nd defendant has been brought as an agent of the 1st defen-dant it was agreed by Counsel appearing for the parties that nosubstitution was necessary in respect of the 2nd defendant asthe action against the 2nd defendant had abated as a result ofhis death. The trial thereafter proceeded against the 1st and3rd defendants only. The learned District Judge enteredjudgment in favour of the plaintiff as prayed for but without anorder for damages.
The 1st and 3rd defendants on 30.5.70 appealed against thejudgment and decree.
During the pendency of the appeal, on 6.7.72 the 1st defendant-appellant died and the record was sent from the Supreme Courtto the District Court for an order for substitution. On 28.11.72the 3rd defendant-appellant filed petition and affidavit objectingto any substitution as the action by the plaintiff being a personalaction to establish the right to an office the action thereforeablated on the death of the 1st defendant under the maxim actio'personalis moritur cum, persona relying on section 392 of theCivil Procedure Code. In the meantime the proctor for the plain-tiff filed a motion dated 7.2.73 and moved for notice on Sandan-gama Attadassi Thera alleging that by deed No. 1385 of 20.7.72the deceased 1st defendant Dhammananda Thera had appointedthe said Attadassi Thera, his senior pupil, as his successor. Aninquiry was held into the objections of the 3rd defendant on15.2.73.
At the inquiry learned Counsel appearing for the plaintiff -respondent and the 3rd defendant-appellant, however, made nomotion or application for substitution. Counsel for the 3rd defen-dant submitted that on the death of the 1st defendant the actionstood abated and there was no provision in law for substitution,of any other person in his place. He relied on the DivisionalBench decision of Deerananda Thero v. Ratnasara Thero, 60NXi.R. 7, and referred to section 392 of the Civil Procedure Code.Attadassi Thera appeared on notice and although the DistrictJudge explained to him of the matters arising out of the deathof the 1st defendant, Attadassi Thera stated that he was not
294PATHXRANA, J.—Dhammananda Thera v. Saddananda Thera
taking any steps to have himself substituted. As no one had takenany steps for substitution in place of the deceased 1st defen-dant on the request of both Counsel the record was returned to-this Court.
Before us at the forefront of his submissions Mr. Koattegoda,learned Counsel for the 3rd defendant-appellant relied stronglyon the Divisional Bench judgment of Deerananda Thero v.Ratnasara Thera (supra). In this case as the plaintiff sued thedefendants primarily to establish his personal right to an officeas Viharadipathi and the cause of action was purely personal, itwas held that the suit abated on the death of the defendantduring the pendency of the suit by virtue of section 392 of the-Civil Procedure Code in accordance with the maxim actio per-sonalis moritur cum persona.
Mr. Eric Amerasinghe, learned Counsel for the plaintiff-respon-dent, however, submitted that although the plaintiff sued for adeclaration to the office of Viharadipathi a perusal of the plaintwould reveal that although the action in form was one for theoffice of Viharadhipathi but in substance it was an action both forthe office of Viharadipathi and the temple and its temporalities.In spite of the death of the 1st defendant the action couldcontinue in view of section 404 of the Civil Procedure Code as-on the assumption that the deceased 1st defendant-appellantwas the Chief incumbent of the temple by operation of law therewas a creation or devolution in favour of the successor in titleof the deceased 1st defendant-appellant of the interest in thetemple and by virtue of section 404 the action can be continuedagainst the person to whom such interest has come in substi-tution from the person from whom it has passed. He relied onthe case of Pannnanda Thero v. Sumangala Thero, 68 NX..R.367, which held that where a plaintiff sues for a declaration thathe is the lawful Viharadipathi of a Vihara and was entitled topossess the temporalities thereof, dies during the pendency ofthe action, a person who can establish that under the BuddhistEcclesiastical Law he would be the successor to the title of in-cumbency upon the assumption that the deceased person him-self had been the incumbent is entitled to substitution undersection 404 of the Civil Procedure Code.
Mr. Amerasinghe in support of his submission drew our atten-tion to certain averments in the amended plaint of the plaintiffwhich stated that the defendants were in possession of the temple-causing loss and damage to the plaintiff. The cause of action was,
(a) for a declaration that the plaintiff was the Viharadipathiof the temple and,
PATKIRANA, J.—Dhammananda Thero v. Saddananda Thtro
(b) for an order ejecting the 1st, 2nd and 3rd defendantsfrom the said temple.
Schedule 1 appended to the plaint refers to the land on whichthe temple is situated and schedules 2 to 9 refer to the temporali-ties belonging to the temple. In the body of the plaint is theaverment that Mahaloluwa Pur ana Viharaya is an ancienttemple and the premises and appurtenances thereof are more-fully described in the schedule hereto. Annexed to the plaintwas an abstract of title relating to the nine lands. Mr. Amera-singhe relied strongly on section 404 which in his submissionwould apply to the facts of this case and was an enablingsection for the continuation of the action. He drew a distinctionbetween section 392 whcih according to him refers to the neces-sity for identity of causes of action for an action to survive andsection 404 which refers to the identity of interest which enableda cause of action to be continued. Mr. Amerasinghe thereforesubmitted that the 3rd defendant-appellant and Attadassi Therahaving contumaciously refused to substitute the successor of thedeceased 1st defendant on whom the interests devolved in placeof the deceased 1st defendant in order to continue the actionwhen section 404 enabled such a course of action, the appeal ofthe first defendant-appellant abated.
Before I deal with the other submissions made on behalf ofthe appellant I shall first deal with the question whether on thedeath of the 1st defendant-appellant the plaintiff’s action abatedunder section 392 of the Civil Procedure Code.
It is not disputed in this case that the mode of succession tothis temple is regulated by sisyanu sisya paramparawa and thatthe temple is exempted from the operation of section 4(1) of theBuddhist Temporalities Ordinance.
It would be necessary to trace the origin and examine thenature and scope of the maxim actio personalis mortiur cumpersona. The principle expressed in this maxim means that apersonal right of action dies with the parties to the cause ofaction. A personal action is an action where a cause of action orcomplaint or injury is one affecting solely a person. It is a causeof action purely personal on both sides, personal both to theperson on whom and by whom the injury is inflicted. Accordingto Bowen, L. J. in Finlay v. Chirney, (1888) 20 Q.B.L.R- 494, themaxim is of some antiquity but its origin is obscure and postclassical. They were still in the dark as to the maxim’s exactmeaning or source. Pollock in his Treatise on The Law of Torts,13th Edition, commenting on the maxim before the Law Reform(Miscellaneous Provisions) Act of 1934 speaks of a very similar
PATHIRANA, J.—Dhammananda Thero v. Saddananda Thero
nde which existed in Roman Law with the modification thatthe inheritance of a man who had increased his estate by doluswas bound to restore the profits so gained and that in someeases heirs might sue but could not be sued. He goes on to say'** Whether derived from a hasty following of the Roman rule orotherwise, the common law knew no such variations ; the maximwas absolute. Indeed, the survival of a cause of action was theexception in the earliest English Law. ” Bowen, L.J. in Finlay v.Chimey (supra) has stated : —
“The truth is, that in the earliest times of English lawsurvival of causes of action was the rare exception, non-survival was the rule.”
Its origin, may be traced to the forms of actions under theearly common law of England. When the common law of Englandwas in the early stage of its development it was a principle ofthe common law that if an injury was done either to the personor to property of another for which damages only could berecovered in satisfaction, the action died with the person towhom or by whom the wrong was done. The reason was thatthe only writ available to a plaintiff in such cases was a writ oftrespass which was quasi-penal in its effect a verdict for theplaintiff resulting not only in an award of compensation to theinjured party but also in the infliction of a fine or imprisonmentupon the defendant. In such circumstances, it was regarded asunjust that personal actions survive against the executor oradministrator of the tort feasor because there could be no reasonwhy he should be subjected to the fine or imprisonment whichmight follow a verdict of guilty in an action for trespass. Videthe judgment of Page, C. J. in Cas'sis & Son. v. Sara Bibi,(1956) A.I.R. Rangoon 17.
Bowen, L. J. in Finlay v. Chimey (supra) expressed the sameview :
“ Actions of trespass were formerly actions of a quasi-penal character and based upon the supposition of personalwrong. It was not unnatural that such actions should dieupon the death of the trespasser. “ All private criminalinjuries or wrongs as well as all public crimes are buried,”says Lord Mansfield in Hambly v. Trott (2), “with theoffender.” But survival was also denied to other actionswhich did not fall within this category.”
Many inroads have been made upon this maxim even inEngland throughout the ages and in this way the ambit of anapplication has been limited and curtailed by the Law Reform(Miscellaneous Provisions) Act of 1934. On the death of a person
PAT HIP. ANA, J.—Dhammananda Thero v. Saddananda Thero
after the commencement of the Act all causes of action subsistingagainst or vested in him shall survive against or f.or the benefitof his estate except actions for defamation, seduction or inducingone's spouse to live or remain apart from the other or damageson the ground of adultery.
The maxim has been subject to consistent severe criticism. Inthe case of Admiralty Commissioner v. S.S. Amerika, (1917)A.C. L.R. 38 at page 60, Lord Sumner made the followingremarks : —
“ The maxim itself has many critics ; it has been coldlydisparaged as post-classical, meaning thereby that it is badLatin : Finlay v. Chirney (1) ; it has been suggested to be amistake for actio poenalis (Poste’s Gaius, 2nd Edition, p. 493),whence it is sometimes insinuated that it is bad law ; andit has been peevishly described as “ a wretched saw ” andas “ a purely identical proposition ” : Austin’s Jurisprudence,3rd ed„ Vol. 2, p. 1013. ”
Pollock in his treatise on the Law of Torts, 13th Edition, statesthat it is one of the least rational parts of our law and that whenonce the notion of vengeance has been put aside and that ofcompensation substituted, the rule actio personalis moritur cumpersona seems to be without plausible ground.
Page, C.J. in Cassim & Sons v. Sara Bibi (supra) said :
“ Now I have never heard it suggested that the rule actiopersonalis moritur cum persona, is based upon justice orcommon sense or that it can be supported upon any principleof law. ”
The maxim, therefore, according to its early English commonlaw origin appears to be associated with injuries solely affectingthe person and the quasi-penal nature of the verdict against thewrongdoer.
The maxim actio personalis and the controversial views arisingout of it surfaced in this country after the judgment of the Divi-sional Bench of three Judges in the case of Deerananda Thero v.Ratnasara Thera, 60 N.L.R. 7, and the cases of Pannanda Thera v.Sumangala Thera, 68 N.L.R. 367, and Charlis Appu Kapurala v.Manis Appu, 71 N.L.R. 350. I
I have next to consider the applicability of the maxim in rela-tion to our law particularly Chapter XXV of the Civil ProcedureCode which relates to continuation of actions after alteration ofa party’s status and examine to what extent the maxim is modi-fied by statute. In considering this question I have also to keep
PATHIRANA, J.—Dhammananda Thero v. Saddananda Thero
in mind two other relevant maxims of equal importance in rela-tion to litigation. The first is the maxim “ Interest reipublicae utsit finis litium. ” viz., the general interests of the community inthe termination of disputes and in the finality and conclusive-ness of judicial decisions, and secondly, the maxim “Nemo debetbis vexari pro una et eadem causa ”, viz., the right of an indivi-dual to be protected from vexatious multiplication of suit.
In fact the aim and purpose of the Civil Procedure laws ofthis country are primarily directed to the speedy and final deter-mination of all actions and the avoidance of multiplication ofactions except in exceptional circumstances. It is not in disputein this case that the Civil Procedure Code applies.
Chapter XV which refers to continuation of actions and thesections in the Code relating to ries judicata are the principalmedia by which this aim and purpose is sought to be achieved.Wherever possible every reasonable construction must be placedwhich would help the Court to continue the action rather thansee the action abated or force a party on whom a deceased party’sinterests devolved to resort to fresh litigation with the attendantexpense and delay such a process necessarily involved.
The next question is how far this maxim which had its originin the early English common law associated with the forms ofactions and its quasi-penal character can be applied in its pristineabsoluteness to a cause of action for declaration of title to theoffice of the chief incumbent of a Buddhist temple, an office withperpetual succession, and more particularly after the coming intooperation of the Buddhist Temporalities Ordinance, where sub-ject to certain exceptions all property movable and immovabletogether with all issues, rents, moneys and profits of the sameis vested in the chief incumbent for the time being.
The tendency to apply indiscriminately legal maxims whichare general in their scope and operation as a ready-made solutionto any problem without any definition and limitation had, infact, induced Lord Esher, M. R. in Yarmouth v. France, (1887)(19) Q. B. D. 647 at 653, to protest :
“ I detest the attempt to fetter the law by maxims. Theyare almost invariably misleading : they are for the most partso large and general in their language that they always in-clude something which really is not intended to be includedin them. ”
PATHIRANA, J.—Dhammananda Thcro v. Saddananda Thera
Lord Wright in the House of Lords case of Liesenden v. Bosch,Ltd., (1940) AC. 412 at 435, added this caution :
“ Indeed, these general formula are found in experienceoften to distract the Court’s mind from the actual exigenciesof the case, and to induce the Court to quote them as offeringa ready made solution. But it is not safe to act upon themunless and to the extent that they have received definitionand limitation from juridicial determination. ”
Under section 392 if the action is pure and simple a personalaction like an action for seduction under the Roman Dutch Law,then the death of the plaintiff or the defendant will abate theaction as the right to sue cannot survive. There are no interestsin the action which can devolve on any other person. I agreethat an action to be declared entitled to an office likewise is gene-rally a personal action and cannot survive in the event of thedeath of the plaintiff or the defendant as with his death theholder of the office ceases to hold office. The question is whetheran action for the declaration of title to an office of Viharadipathiof a temple the succession to which is regulated by sisyanu sisyaparamparawa as in the present case, is an action for a status oroffice which abates on the death of the plaintiff or the defendant.A proper understanding of the nature and character of the officeof Viharadipathi, the creation and devolution of title to the officewill be useful to determine this question.
Every Buddhist temple is presumed to be dedicated and regu-lated by the form of pupillary succession known as sisyanu sisyaparamparawa unless the contrary is proved. It is not in disputethat the temple in question in this case is regulated by this modeof succession. Under this mode of succession after the death ofthe chief incumbent of a Buddhist temple in the absence of adeed or will nominating another particular pupil as his successor,the eldest pupil succeeds unless he has deserted his duties orsuffered what may be termed “ ecclesiastical death” such as bydisrobing. The office is one which an imposter cannot acquire byprescription nor can the rights of a true incumbent be extin-guished by prescription. With the coming into operation of theBuddhist Temporalities Ordinance, by section 20, subject tocertain exceptional cases, the title to temple property is vestedby law in the controlling Viharadipathi for the time being. Theoffice is therefore one in which continuity of succession is assuredby the operation of law, so much so in the case of a temple whichis regulated by sisyanu sisya paramparawa one cannot conceiveof such a temple without a Viharadipathi or the Viharadipathi
PATH Lit ANA, J.—Dhammananda Thero v. Saddananda Thcro
without the temple quite apart from its temporalities or proper-ties. There is privity of estate or interests between a provedincumbent and his pupil.
In regard to the office of Viharadipathi of a temple whetherthere are lesser rights in property which by virtue of his officeas Viharadipathi he acquires besides those under section 4(2)and section 20 of the Ordinance was considered by Sansoni, J.in Podiya v. Sumctngala Thero, 58 N. L. R. 29. In this case thequestion was whether a pupil was a privy of his tutor for thepurpose of the law of res judicata. Sansoni, J. held that this wasso and made the following relevant observations : —
“ I do not think that it is essential in order to constituteone person the privy of another that there should be aquestion of ownership of property arising ; there are lesserrights in property which a Viharadipathi, by virtue of hisoffice, acquires. For instance, he is entitled to the unham-pered use of the Vihare for the purpose of maintaining thecustomary religious rites and ceremonies. He can claim fullpossession of it even though the title in respect of it andof the other endowments of the Vihare is vested in atrustee. See Guneratne Nayake Thero v. Pune hi BandaKorale, (1926)28 N.L.R. 145. Again, he is entitled to
the control and management of the temple premises andmight regulate its occupation and use to the extent that noother priest can select for himself a particular place in theVihare independently of him against his wishes. A priest whois guilty of contumacy is liable to be ejected by him. SeePiyadasa v. Deevamitta, (1921) 23 N.L.R. 24.”
It would therefore appear that the office of Viharadipathi isnot a nominal or titular office.
Two concepts can therefore be associated with the office ofViharadipathi of a temple. Firstly there is a holder of such anoffice, secondly by virtue of the office there are interests whichare attached to such office. Regarding the first, although the holderon his death ceases to hold such office yet, by operation of lawthere is always continuity of succession and there is always apriest on whom the office devolves. Secondly, the interests whichgo with office despite the death of the holder of such officedevolve on each successive holder of the office of Viharadipathiby operation of the law. Therefore in action for a declaration oftitle to the office of Viharadipathi of a temple on the death of theplaintiff pending the action although his title to the office dieswith him, his interests in the temple devolve on his successor intitle. Apart from section 392 I have therefore to examine whether
PATHXRANA, J.—Dhammananda Thero v. Saddananda Thero
under section 404 if the interests of the plaintiff priest on hisdeath devolves on his successor in title the latter can continuethe action in substitution for the person from whom it haspassed, although the original plaintiff’s right to sue does notsurvive. In Pannananda Thero v. Sumangala Thero, 68 N.B.R.367, the plaintiff had sued for a declaration that he was theViharadipathi of a Vihare and entitled to the temporalitiesthereon and also for possession of a number of properties statedto be temporalities of the Vihare. The dispute between the plain-tiff and the defendant in this case chiefly concerned the questionof the right to possess the temple properties. The plaintiff’saction was dismissed and an appeal against the dismissal wastaken. During the pendency of the appeal the plaintiff died andan application for substitution in place of the plaintiff was refus-ed by the District Court, although the petitioner sought to provethat he had succeeded the plaintiff as Viharadipathi of the temple.In appeal H. N. G. Fernando, A.C.J. allowed the substitutionfor the following reasons : —
“ In my opinion the difficulty is met by section 404 ofthe Civil Procedure Code. The title to temple property isvested by law in the controlling Viharadipathi for the timebeing (subject of course to certain exceptional cases.) There-fore, on the assumption that the deceased plaintiff was theincumbent of the Vihare, then, on his death, the title tothe temple property is vested by law in his successor. If,therefore, the present petitioner is the lawful successor ofthe plaintiff, the title to the property which is the subjectof this action, has now vested in him. The position takenup by the petitioner, therefore, is that there has been byoperation of law a creation or a devolution in his favourof interests in the lands which are the subject of this action ;and if he can establish to the satisfaction of the DistrictCourt that he would be the successor in title to the incum-bency upon the assumption that the deceased-plaintiffhimself had been the incumbent, then the petitioner willbe entitled to substitution under section 404. The correct-ness of that assumption will, of course, have to be decidedin the substantive appeal. ”
In this case, no doubt, H. N. G. Fernanda, A.C.J. emphasisedthe fact that temple property and title to property were indispute and these were interests within the meaning of section404 which devolved on the person claiming to be the successor-in-title of the deceased incumbent. But as Sansoni, J. remarkedin Podiya v. Sumangala Thero (supra), “ There are lesser rightsin property which a Viharadipathi by virtue of his officeacquires. ” Temporalities or property belonging to a temple
PATHIRANA, J.—Dhammananda Thero v. Saddananda Thero
merely provide income for the maintenance of the temple. Theyare not absolutely essential appurtenances for a temple. Whilea Viharadipathi must have a temple the fact that he does notown temporalities or immovable properties does not disqualify 'a priest from being a Viharadipathi of a temple. A Viharadipathiby virtue of his office has interests and rights in relation to histemple, quite apart from the temporalities, which must devolveon his successor-in-title by operation of law.
At this stage, it would be relevant to consider the languageused in section 404 in relation to section 392. Section 392 dealswith the right to sue on the cause of action surviving. Section 404does not say “ In other cases of assignment, creation or devo-lution of the right to sue on the cause of action. ” Section 404makes no reference to “ the right to sue on the cause of action.”It has to be considered independently of section 392. It onlyspeaks of “ devolution of interests ” pending the action in whichevent the action may be continued by or against the person towhom such interests had come either in addition or substitutionfor the person from whom it has passed. In the case of a templesubject to sisyanu sisya paramparawa it will be the successor-in-title of the deceased incumbent.
In my view, in an action for declaration of title to the officeof Viharadipathi of a temple, on the death of the plaintiff orthe defendant (if he too claims to be Viharadipathi) theaction can be continued by or against the successor-in-title undersection 404. The maxim actio personalis moritur cum personawill not apply in such a case to abate the action. The action thoughin form an action for a status or an office, is in substance anaction for the temple and the temporalities which by operation oflaw belong to the Viharadipathi of the temple.
When an usurper, imposter or trespasser disputes the rightsof a lawful Viharadipathi of a temple, this usually takes theform of occupying the temple and or its temporalities, the templebeing a symbol of the office of the Viharadipathi. In the resultin an action for declaration of title to the office of Viharadipathiof a temple though in form it is an action for an office or status,it is in substance an action for the temple and all its temporalities.In the present case, the plaintiff who is asking for a declarationof title for the incumbency also asks for an order of ejectment.Ejectment from what ? Obviously from the temple and its tempo-ralities. The action is therefore not merely for the office ofViharadipathi but also other interests attached to that office,which as I have pointed out earlier are disclosed in the plaint.Ejectment of the defendant cannot therefore be said to be purelyIncidental to the claim to be the incumbent. The temple and
PATHXRANA, J.—Dhammananda Thero v. Saddcmanda Them
the office are so inextricably interwoven that it is almost im-possible to visualise the one without the other. To eject meansto oust the defendant from the temple and put the plaintiff inpossession of the same temple.
I shall now deal with the case of Deerananda Thero v. RatnasamThero, 60 N.L.R. 7. In this case the plaintiff claimed to be thepupillary successor to one Piyadassi Thero. He instituted thisaction to the incumbency of a temple against Piyaratna Theroalleging that the latter was—
unlawfully disputing his rights to the incumbency; and
is disobedient and disrespectful to him and obstructing
him in the lawful exercise of his rights as incumbent.
He prayed that he be declared the incumbent and the defendantand his agents be ejected from the temple. During the pendencyof the trial Piyaratana Thero died. The plaintiff’s proctor filedan application which stated that any rights that the defendanthad to the incumbency had devolved on Deerananda Thero andit had become necessary to substitute the latter in place of thedeceased defendant. Deerananda Thero consented to this subs-titution and he was made the substituted defendant. Trialproceeded and judgment was entered for the plaintiff against thesubstituted defendant declaring the former the incumbent andordering the ejectment of the defendant. In appeal it was con-tended for the plain tiff-appellant that the judgment cannot standas the action instituted by the plaintiff abated on the death ofPiyaratana Thero. It was argued that the action being oneof a personal nature against the original defendant the right tosue ceased on the death of that defendant on the maxim actiopersonalis moritur cum persona.
T. S. Fernando, J. (H. N. G. Fernando, J. and Sinnethamby, J.agreeing) took the view that the action as framed was un-doubtedly one of a personal nature and was limited to seekinga declaration to this alleged status of incumbency. Although itwas true that the ejectment of the defendant and his agentswas also claimed but this claim was purely incidental to theclaim to be the incumbent and was not a claim to eject thedefendant on the ground of “ parajika conduct ” of the latter.Secondly, that the question of title for the possession of tempo-ralities did not arise in the action. It was held that on ttie deathof the original defendant the action abated by virtue of theprovisions of section 393 of the Civil Procedure Code.Although an alternative argument was put forward that thesubstitution was justified under section 404 the Court did notconsider it necessary to examine this submission and therefore
PATHIKANA, J.—Dhammananda Thero v. Saddananda Thero
did not consider 404. The action being one of a personal natureagainst the *original defendant the right to sue ceased on thedeath of that defendant. The cause of action did not survive onthe death of the original defendant and the maxim actiopersonalis moritur cum persona was applicable. T. S. Fernando, J.relied on the Indian cases of Sham Chand Giri v. BhayaramPanday, (1894) (22) Calcutta 92, and Ramsarap Das v. Ramesh-war Das, (1950) A.I.R. (Patna) 184.
I shall examine these decisions to see whether the maximactio personalis was applied not so much because the actionswere personal actions for an office but because in fact the personclaiming substitution could not establish that the interests ofthe original plaintiffs devolved on them as they were layingrival claims in conflict with the claim of the original plaintiffsand in the circumstances their only remedy was separate suits-
In Sham Chand Giri’s case the plaintiff prayed for a declarationthat he was the duly constituted Mahanth of the shrine and forpossession thereof and for an injunction to restrain the defen-dant from interfering or dealing with the properties of theshrine and for other reliefs. He prayed for a declaration thathe was the duly constituted Mahanth of the shrine. On the deathof the plaintiff, the petitioner asked that his name be substitutedin place of the deceased plaintiff. The argument adduced wasthat,
the right to sue had not abated by reason of the death
of the plaintiff, and
there had been a devolution of interests in favour of
Sale, J. examined section 361 (our Code section 392), section362 (our Code 393), section 363 (our Code 394), section 365(our Code section 395) and section 372 (our Code section 404)of the Indian Civil Procedure Code. The petitioner claimed asthe Chela or disciple not of the original plaintiff but ojf hispredecessor and this claim in reality put him in opposition tothe original plaintiff whose case was that his predecessor hadno Chela besides himself as regards to whom the ceremonies ofinitiation and installation were performed. Sale, J. took the viewthat the petitioner therefore was in the position of a rival clai-mant who was desirous of setting up a claim of his own whichwas not only not dependent upon the claim of the originalplaintiff but was in conflict with it.
PATHIRANA, J.—Dhammananda Thero v. Saddananda Thero
On this finding therefore the petitioner who sought substitu-tion could not establish there had been any devolution of theinterests of the original deceased plaintiff in him as such hecould not resort to section 372 of the Indian Code which corres-ponds to section 404 of our Code. His only remedy was to haveinstituted a fresh action as his cause of action was entirelydifferent, as the real object of the petitioner was to establish arival claim to the office of Mahanth which could only be done bya separate suit. The case, therefore, could have been decided onthis ground but, I find that Sale, J. thereafter had proceeded tostate as follows : —
“ The suit was of a personal character in as much as itsobject is to establish a right to a personal office, and forthat reason it appears to me that the right to sue doesnot survive. The result is that the action abates. ”
If in fact the petitioner could have established that there wasa devolution of the interests of the original plaintiff in himthe action need not have abated.
I shall next deal with the case of Ramsarup Das v. RameshwarDas, (1950) A.I.R. (Patna) 184, relied on by T. S. Fernando, J.This was an action for declaration of title for the recovery ofproperties by the plaintiff as shebait of the deity. The plaintiffprayed for a declaration that according to the terms of thedocument of 1919 he was the Mahanth and shebait after thedeath of the last shebait.
The first defendant claimed as shebait of the last Mahanth. Inthe original Court decree was entered for the plaintiff againstthe 1st defendant, holding that the plaintiff was the Mahanthand shebait of the deity in accordance with the terms of thedocument of 1919 and that the possession of the first defendantwas wrongful. The defendant appealed and during the pendencyof the appeal the plaintiff died 'and an application was madeby another person as the chela of, the deceased plaintiff forsubstitution in his place. It was contended in appeal that thesuit was abated as a result of the death of the plaintiff who hadsued for his personal rights.
The person who sought substitution in the place of the originalplaintiff could only succeed by virtue of an appointment interms of the document of 1919 and not by virtue of the factthat he was the chela of the deceased plaintiff. Here too theperson who sought substitution was a person on whom theinterests of the original plaintiff could not have devolvedbecause he was not a person who claimed to be appointedaccording to the document of 1919, but claimed office as a chela
PATH IK AN A, J.—Dhammananda Thero v. Saddananda Thero
of the deceased plaintiff. Here also as in Sham Chand Giri’scase the person seeking substitution was setting up a claim ofhis own which was not dependent upon the claim of the originalplaintiff but was in conflict with it. His only remedy was tohave instituted a fresh action as his cause of action was entirelydifferent. The person seeking substitution could not thereforeclaim that the interests of the original plaintiff had devolved onhim, so that with the death of the original plaintiff the action hadto abate. The person seeking substitution could not invoke thesection corresponding to section 404 of our Civil ProcedureCode. I also find thiat section 372 of the Indian Civil ProcedureCode which is the same as section 404 of our Code has not beenreferred to in the course of the judgment.
In Charlis Appu Kapurala v. Manis Appu, 71 N.L.R. 351,section 404 was considered but on the facts of the case it was heldthat the action abated on the death of the 2nd defendant as theclaim in the action was in respect of which the 2nd defendantwas liable personally.
The action framed against the original 2nd defendant allegeda wrongful act on his part in collusion with the 1st defendantand the action lagainst the 2nd defendant was an action in tort.The action, therefore, being framed against the original 2nddefendant personally and in tort, section 404 could not havebeen invoked as there was no devolution of the liability incurredby the original 2nd defendant on his death. No liability orinterest passed from the original 2nd defendant to the substitu-ted 2nd defendant. The facts and conclusion in this case, there-fore, do not apply to the present case.
Thh decision in Vajiragnana Thera v. Anomadassi There, (1970)73 N.L.R. 529, is also not helpful to the appellant. In this case,the plaintiff sued the defendant for a declaration that he wasthe controlling Viharadhipathi of the temple and for its tempora-lities and for the ejectment of the defendant from that temple.The plaintiff’s predecessor had instituted an earlier action againstthe same defendant for a declaration that he is controllingViharadhipathi of the temple and its temporalities and for theejectment of the defendant from the temple. That action wasabated upon the death of the plaintiff on the ground that thecause of action did not survive the death of the plaintiff. There-after the plaintiff sued the same defendant for the similar reliefwhich his predecessor claimed. The learned District Judge heldthat because of the abatement of the former action section403 of the Civil Procedure Code was applicable and he dismissedthe plaintiff’s action. It was held that it was competent for theperson who claimed to be the deceased plaintiff’s successor in
PATH!RANA, J.—Dhammananda Thero v. Saddananda Thero
office to institute a fresh action against the same defendant forsimilar relief. Here the original action which was brought bythe deceased plaintiff was not only for a declaration that heis the controlling Viharadhipathi of this temple but he sued forits temporalities and also for the ejectment of the defendantfrom the temple. In view of the decision in Pannananda Theroiv. Sumangala Thero, (1965) 68 N.L.R. 367, it would have beencompetent for the successor in title of the original plaintiff tocontinue the action under section 404 of the Civil ProcedureCode as a person on whom his interests devolved.
The most that can be said of the three Bench decision inDeerananda Thero’s case is that the principle laid down in thatcase must be confined to the facts of that case and cannot beapplied as a general proposition of law. In that case the plaintiffnot only alleged that the original defendant denied his title butalso that he was disobedient, disrespectful to him and obstructedhim in the lawful exercise of his rights as incumbent. He was,therefore, alleging contumacious conduct on the part of thedefendant which if established would have lost the defendantthe right of residence in the temple. This contumacious conducttherefore cannot be attributed to the defendant’s successor-in-title on the death of the defendant. If the plaintiff’s contentionwas merely that the defendant denied his title then should theinterests of the defendant have devolved on the substituteddefendant as his lawful successor-in-title, unless the substituteddefendant admitted plaintiff’s title he too would be denying theplaintiff’s title in which event the cause of action would still bethe same, namely, a denial of plaintiff’s title. But in DeeranandaThero’s case there was the added circumstance that the plaintiffattributed contumacious conduct against the defendant whichwas a distinct cause of action in the sense that it was in additionalleging a wrong for the prevention or redress of which theaction was originally instituted.
therefore, take the view that despite the death of the1st defendant-appellant, the plaintiff’s action does not abate butcould proceed under section 404 of the Civil Procedure Code.No substitution has been made in place of the deceased1st defendant-appellant. Although Attadassi Thero was noticedby the plaintiff to appear in Court on the basis he had beenappointed by the 1st defendant to be his successor, AttadassiThero stated to Court that he was not taking any steps for substi-tution. In the result I would hold that the appeal of the 1stdefendant-appellant stands abated.
Mr. Amerasinghe submitted that in the event of the 1st defen-dant-appellant’s appeal being declared abated there would
PATHIRANA, J.—Dhammananda Thero v. Saddananda Thero
appear to be no merit in the appeal of the 3rd defendant-appellant. His argument is that the 3rd defendant was admitted-ly an agent of the 1st defendant in occupation of the temple.The 1st defendant’s appeal having been abated and dismissedit was in effect a declaration that he had no rights to the templevis-a-vis the plaintiff, and therefore the 3rd defendant hisagent too had no rights to the temple. The 3rd defendant’sappeal therefore should be dismissed as on the face of it therewas no merit in this appeal and at most it was academic. Theanswer to Mr. Amerasinghe’s contention is that this is an actionfor a declaration of title to the Viharadipathiship of the temple,and the 3rd defendant in his answer has denied the plaintiff’stitle to the said temple. It was therefore incumbent on theplaintiff to establish his title not only against the 1st defendantbut also against the 3rd defendant. For these reasons wedecided to hear argument on behalf of the 3rd defendant-appellant.
We have therefore to consider Mr. Koattegoda’s submission onbehalf of the 3rd defendant-appellant urged before us.
The 1st defendant had taken up the position that the decreein D.C. 3102/L (D12) dated 27.11.1947 affirmed in appeal by theSupreme Court (D4) of 5.6.51 operated as res judicata againstthe plaintiff in regard to his right to the incumbency of thetemple. This action was instituted on 18.11.43 by the 1st defen-dant against Mailawalane Seelaratana Thero in which he claimedthat as senior pupil of Dhammarakkhitha Thero having beenrobed in 1924 he was entitled to the incumbency of the temple.Seelaratana Thero too claimed the incumbency as senior pupiland that the 1st defendant was not a pupil of DhammarakkhithaThero. Vajiragnana Thero sought to intervene in the action andin an ex-parte application made by him he was made the 2nddefendant and in fact filed an answer in which he claimed thathe was the senior pupil of Dhammarakkhitha Thero having beingrobed in 1915 and that the 1st defendant was never a pupil ofDhammarakkhitha Thero. The 1st defendant thereafter objectedto the intervention of Vajiragnana Thero. The learned DistrictJudge thereupon vacated the ex-parte order adding Vajirag-nana Thero as a party and he was discharged from the case.Thereafter the case proceeded to trial and decree was entered infavour of the 1st defendant against Seelaratana Thero. TheCourt held that the 1st defendant was the senior pupil ofDhammarakkhitha Thero. The caption in the decree entered inthe District Court incorrectly shows Vajiragnana Thero as the2nd defendant but this is not so. I do not think that this decreecan operate as res judicata against the plaintiff who claims t®
I'ATHIRANA, J.—Dhammananda Thero v. Saddananda Thero
be the senior pupil of Vajiragnana Thero as the .latter was nota party to Case No. D.C. 3102/L. On this decree SeelaratanaThero was ejected from the temple in 1932. I, therefore, agreewith the learned District Judge that that decree in D.C. 3102/Ldoes not operate as res judicata against the plaintiff in thepresent case.
On the question whether Vajiragnana Thero or the 1st defen-dant is the senior pupil of Dhammarakkhitha Thera, the learnedDistrict Judge has held that Vajiragnana Thero was the seniorpupil and that the 1st defendant was not his pupil but the pupilof Napagoda Seelaratana Thero. This finding was stronglycriticised by Mr. Koattegoda who invited us to reverse it as hesubmitted the evidence in fact established that the 1st defendantwas the senior pupil.
The plaintiff has relied on Vajiragnana Thero’s UpasampadaDeclaration (P8) dated 28.3.32 which states that he was robedon 15.3.1915 by Gnaninda Thero and Dhammarakkhitha Thero,the Viharadipathi of Mahaloluwa Temple, the temple in question.He was ordained on 9.6.1930 and the tutors presenting him forordination were Dhammarakkhitha Thero and Chandasarabin-dana Thero.
The 1st defendant claimed that he too was robed by Dhamma-rakkhitha Thero and relied on his Upasampada Declaration (P64)dated 29.3.32 which purported to be a certified copy. Accordingto P65 the names of his robing tutors in cage 7 appear firstly asDhammarakkhita Thero and secondly as Napagoda SeelaratanaThero. Only the year of robing was given as 1924 with no date.The date of ordination was 26.6.1928. The tutor presenting himfor ordination was Napagoda Seelaratana Thero who had alsorobed him. The 1st defendant thus relied on his UpasampadaDeclaration (P65) in cage 7 to prove that he was robed byDhammarakkhitha Thero. The 1st defendant also produced D5which according to him purported to be a certified copy of theUpasampada Declaration of the plaintiff which is different fromP8. The Upasampada Declaration produced by the 1st defendantD5, in Cage 7 mentions only the name of Gnaninda Thero as theplaintiff’s robing tutor, the name of Dhammarakkhitha Therobeing absent, whereas P8 includes Dhammarakkhitha Thero ashis robing tutor.
At the trial the plaintiff challenged that the 1st defendant wasnever a pupil of Dhammarakkhita Thero and that the declara-tion produced was a counterfeit document, that an examinationof the originals in the custody of the Registrar-General and
PATHIRANA, J.—Dhammcmanda Thero v. Saddananda The.ro
the Malwatte Chapter would reveal that the name of Dhamma-rakkhitha Thero *had been subsequently interpolated in cage 7of the Upasampada Declaration of the 1st defendant for thepurpose of supporting his alleged claim that he was the robedpupil of Dhammarakkhitha Thero.
The evidence is that Dhammarakkhitha Thero in his life timediscovered that his name has been falsely entered in P63, theUpasampada Certificate of the 1st defendant kept in the custodyof the Malwatte Chapter. He made representations to theChapter on 30.6.1930 stating that the 1st defendant wasnot his pupil. This was about 3 weeks after the ordination ofVajiragnana Thero which took place on 9.6.1930. The Chapterwent into this complaint and by its decision dated 21.7.1930(P63a) ordered that the 1st defendant was not a pupil of Dham-marakkhitha Thero and deleted the name of DhammarakkhithaThero as the tutor of the 1st defendant. On the reverse of thisdocument the Maha Nayake of the Chapter has certified thisdecision on the same day.
An examination of the original of the 1st defendant’s Upasam-pada Declaration kept in the custody of the Registrar-General, thephotostat copy of which is marked P65a clearly shows that incage 7 the name of Dhammarakkhitha Thero had been interpo-lated as the robing tutor in addition to Napagoda SeelaratanaThero. The year of robing has been altered from 1926 to 1924.There is much in the suggestion of Mr. Siriwardena, learnedCounsel for the plaintiff-respondent before us that this was doneby someone at the instance of the 1st defendant to defeat therights of Seelaratana Thero in the action No. 3102/L in whichhe too claimed that he was robed by Dhammarakkhitha Theroin 1924. In that action the 1st defendant claimed that he wasrobed in January 1924 whereas Seelaratana Thero claimed thathe was robed in October 1924. In case No. 3102/L only thecertified copies appear to have been produced and the Court didnot have an opportunity of examining the originals where theinterpolations are seen.
P66 is a duplicate of the Upasampada Declaration of the 1stdefendant in the custody of the Malwatte Chapter which underthe Ordinance had to be sent by him to the Registrar-Generalwho in turn had sent it to the Malwatte Chapter. The photostat
PATHJRANA, J.—Dhammananda Thero v. Saddananda Thero
copy P66a (the original P66 would have been produced at thetrial) again shows the interpolation in cage 7 of the name ofDhammarakkhitha Thero as the 1st defendant’s robing tutor.
No supporting evidence was led at the trial by the 1st defendantto prove that he was robed by Dhammarakkhitha Thero. No wit-nesses have been called by him to say that he was robed byDhammarakkhitha Thero. The 1st defendant was unable to givethe date on which he was robed. He did not have an explanationfor the alterations and interpolations in the documents I havereferred to as to when, why and by whom they were made. Thereis no doubt that the only person who could have taken any ad-vantage of these interpolations and alterations was the 1st defen-dant. It therefore follows that these alterations and interpola-tions, to say the least, were made by someone at the behest ofthe 1st defendant. The learned District Judge in the present casewho had seen the originals in which the interpolations and altera-tions were made and the photostat copies thereof wasundoubtedly right in coming to the conclusion that these werefabrications for the purpose of establishing that the 1st defen-dant was robed by Dhammarakkhitha Thero.
It is also in evidence that when the 1st defendant receivedhis higher ordination the notice that the ordination ceremonywould take place on 20.6.28 was only issued by Napagoda Seela-ratana Thero who referred to the 1st defendant as “ my pupil I,
I, therefore, agree with the finding of the learned District Judgethat the 1st defendant was not the pupil of DhammarakkhithaThero but was the pupil of Napagoda Seelaratana Thero.
I shall next examine the question whether Vajiragnana Therowas the senior pupil of Dhammarakkhitha Thero. TheUpasampada Declaration P8 no doubt states that he was robedby Dhammarakkhitha Thero on 15.3.1915 and he was thereforeboth the robed and ordained pupil of Dhammarakkhitha Thero.The 1st defendant, however, took up the position that Dhamma-rakkhitha Thero in his life time had dismissed him from hispupilage, and in evidence he produced a notice alleged to havebeen published by Dhammarakkhitha Thero in the Sinhala news-paper “ The Dinamina ” of October 7, 1932 (P6), which statedthat Dhammarakkhitha Thero had expelled Vajiragnana Thero
PATHIRANA, J.—Dhammananda Thero v. Saddananda Thero
from his pupilage. The plaintiff’s answer to this was that thiswas a bogus notice published without the knowledge ofDhammarakkhitha Thero at a time he was very ill. In fact, hedied on 16.4.1933. There was a refutation of this notice byVajiragnana Thero in the Sinhala newspaper called “ TheSwadesha Mitraya ” of 25.3.33 (P7).
In the meantime someone has stolen a letter-headed paper con-taining the printed name of Dhammarakkitha Thero with his sealand sent a letter purporting to be from him to the Maha SanghaSabha of the Malwatte Chapter requesting the cancellation ofthe pupillary rights of Vajiragnana Thero. The Chapter acceptedthe letter on the face of it without doubting that it was a letterwritten by Dhammarakkitha Thero. On 25.10.32 a letter was sentby the Maha Navake to Dhammarakkitha Thero deleting thename of Dhammarakkitha Thero as the tutor of VajiragnanaThero. Dhammarakkitha Thero died shortly afterwards in 1933.The Dayakayas of the Mahaloluwa Temple including D. P. Raja-karuna who gave evidence for the plaintiff in this case, thereuponsent a petition to the Maha Nayaka Thero alleging that the alleg-ed letter purporting to be sent by Dhammarakkitha Thero wassent at the instance of 1st defendant and that the signature ofDhammarakkitha Thero on it was forged.
An inquiry was duly held by the Maha Sangha Sabha inAugust and September 1934 and it came to the conclusion thatthe letter alleged to be sent by Dhammarakkhitha Thera was infact a forgery. The Maha Sangha Sabha thereafter ordered thatthe letter sent on 25.10.32 to Dhammarakkhitha Thero cancellingthe pupillary rights of Vajiragnana Thero should be revokedand further ordered that the remarks in the Upasampada SeetuNo. 132 of 9.6.30 of Vajiragnana Thero which contained thewords “ cancel the pupillary rights ” be also cancelled. The MahaSangha Sabha accepted the fact that Vajiragnana Thero was apupil of Dhammarakkhitha Thero. It also declared that the noticeappearing in “ The Dinamina ” of 17.10.32 was an untruth. Thejudgment of the Sangha Sabha is marked P2 and was deliveredon 8.11.1934, and has been certified under the signature of theMaha Nayaka. This evidence leaves no room to doubt thatVajiragnana Thero was the senior pupil of DhammarakkhithaThero and was never removed from his pupilage. Saranapala
PATHTRANA, J.—Dhammananda Thero v. Saddananda Thero
Thero, the 3rd defendant, who at the time he gave evidence was70 years old, under cross-examination by counsel for theplaintiff admitted that at the ordination of the plaintiff on9.8.1930 he had by his side his tutors Dhammarakkhitha Theroand Chandasara Thero. His answer to the following question isrevealing and important.
“ Q. If Panagoda Vajiragnana falsely stated he was a pupilof Ahugammana Dhammarakkhitha that would have beencorrected then and there by Ahugammana Dhammarak-khitha ?
A. He should have said so at that time. ”
Five days after having successfully opposed the interventionof the plaintiff in D. C. Case No. 3102/L the 1st defendant on10.8.47 made one more attempt to challenge the claim ofVajiragnana Thero that he was robed by DhammarakkhithaThero. By this time it must be noted that the 1st defendant hadbeen disowned by Dhammarakkhitha Thero as his pupil videP63a of 21.7.1930 the order of the Maha Nayaka deleting thereference to the 1st defendant that he was a pupil of Dhammarak-khitha Thero from the Upasampada Register. The 1st defendantsent a petition P43 to the Maha Sangha Sabha on 10.8.47 allegingthat cage 7 in the plaintiff’s Upasampada Declaration was falseand that the plaintiff was in fact robed by Gnaninda Thero whobelonged to the Kotte Nikaya. He called for an inquiry. The MahaSangha Sabha by letter dated 6.9.47 (P42) gave notice toVajiragnana Thero that the inquiry would be held into thismatter on 5.10.47 and wanted his reply before 25.9.47. He wasordered to produce two witnesses to show that he was robed byDhammarakkhitha Thero. He was further told that if he failedto be present ex parte inquiry will be held and if it was provedthat the entry in cage 7 was false that portion would be struck offafter which the Registrar-General would be informed.Vajiragnana Thero replied by letter P44 that the entry in cage7 was true and referred to the judgment of the Maha SanghaSabha. This refers to the judgment P2 of 8.11.34 which I havementioned earlier. He indicated that it would be unnecessaryfor him to produce his witnesses until the complainant provedthat the statement contained in cage 7 in his Upasampada
PATHIRANA, J.—Dhammananda Thero v. Saddananda Tht.ro
Declaration was false. In taking this stand Vajiragnana Therowas relying on a previous judgment of the Maha Sangha Sabha(P2) of 8.11.34 countersigned by the Maha Nayake which hadheld that he was a pupil of Dhammarakkhitha Thero. The MahaSangha Sabha, however, without holding a preliminary inquiryas was the usual practice and without taking into considerationthe previous decision, P2, made a decision dated 2.11.47 to theeffect that Vajiragnana Thero although he was ordained byDhammarakkhitha Thero was not robed by him. The MahaNayake thereafter without first taking action as ordained bylaw to rectify his own register by letter 10.10.48 (D15) informedthe Registrar General of this decision and requested him to deletethe name of Dhammarakkhitha Thero as the robing tutor ofVajiragnana Thero in Cage 7 of his Upasampada Declaration.This accounts for the absence of the name of DhammarakkhithaThero as the robing tutor in cage 7 of D5, the UpasampadaDeclaration of Vajiragnana Thero produced by the 1st defendant.
The learned District Judge has held that Vajiragnana Therohad refused to submit to the jurisdiction of the Chapter andtherefore the Chapter had no jurisdiction to try the matterand could not have therefore given the decision. He has com-mented on the fact that the proceedings conducted by thetribunal were not available for reference and that there hadbeen no proper assembly of the Chapter.
Mr. Siriwardane for the plaintiff has severely criticised theconstitution of this tribunal, the procedure it has adopted andthe decision it has given and submitted that the defendantwas not bound by the decision. He urged the following broadgrounds in support of his contention.
That the Maha Sangha Sabha had no jurisdiction to dealwith that question and the matter had not been dealt with by aproper assembly of the Chapter.
That there was no submission on the part of the plaintiffto abide by the decision of the tribunal.
That no preliminary inquiry was held by the Chapterbefore the final decision was made by it in accordance with itspractice.
PATHIRANA, J.—Dhammancmda Thero v. Saddananda Thero
That the tribunal failed or refused to take into considera-tion a material fact, namely, the decision of the Maha Sangha-Sabha (P 2) of 1934 which had already held that VajiragnanaThero was the pupil of Dhammarakkhitha Thero.
That the Maha Sangha Sabha itself has not recognized or.given effect to this decision.
Gratiaen, J. in Saranankara Thero v. Dharmmananda Thero, 55N.L.R. 313 at 314, refers to the well-established rule of lawwhereby persons who voluntarily submit a dispute to a non-judicial or domestic forum must abide by its decision unless itis vitiated by misconduct or substantial irregularity of procedureor by the violation of the principles of natural justice. He thenrefers to the procedure in the Ecclesiastical Court of the Mal-watte Chapter which deals with disciplinary matters relatingto Buddhist priests owing allegiance to the Malwatte Chapter.The traditional procedure for the settlement of disputes was forthe one party or the other to start proceedings before the Chapterby sending a petition ; the Chapter thereupon issues notice tothe party against whom the complaint was made ; and the preli-minary investigation of a quasi-judicial nature was then heldby one or more priests selected for the purpose, after which thefinal decision was reached by the Sangha Sabha. The other im-perative requirements are that the rule expressed in the maximaudi alteram, partem must be observed—Dhammarama v.Wimalaratne, (1913) 5 Bal. N.C. 57, and that the jurisdictionmust not be exercised arbitrarily but with due regard to regular-ity and fairness. It was open to an individual if his civil rightshave been involved to question the findings of any such tribunalbefore the Civil Courts on the ground of gross irregularity orimproper conduct on the part of the tribunal but the onus ofestablishing such or any other ground he may urge was upon theperson averring them. When an Ecclesiastical Court has juris-diction to give a decision on any matter, the Court on proofthereof and in the absence of irregularity or improper conductenforces such a decision. (See Attadassa Unnanse v. RevataTJnnanse, 29 N.L.R. 361 ; Terunnanse v. Terunnanse, 6 T.C.L.R.22.)
PATHIRANA, J.—Dhammananda Thero v. Saddananda The.ro
The learned trial Judge appears to be justified in not acting onthe material produced at the trial in proof of such proceedings.The Secretary of the Chapter who gave evidence stated that thedocuments relating to the proceedings spoken to by the defen-dants could not be traced at Malwatte where they should havebeen properly deposited. Reference has also been made to the factthat on a termination of proceedings it was in the first instance,incumbent on the Malwatte authorities to rectify their ownrecords before requesting the Registrar-General to alter hisregisters. The existing records at Malwatte remains unalteredand in no way reflects the outcome of this inquiry. Mr. Siriwar-dene has accordingly contended that the absence of such rectifi-cation is indicative of the informal and irregular nature of thealleged inquiry.
Further, what we have before us are some isolated documentspertaining to the inquiry and they do not appear to constitutea proper record of the proceedings coming from the authoritywho should have custody of the material. Undoubtedly some sortof inquiry did take place. The documents produced show thatthe matter had come before the Sangha Sabha at one of, themonthly meetings of the Chapter. Mr. Siriwardene submittedthat this was not a proper meeting of the Chapter for thispurpose. There seems to be some doubt even on this question.He also argued that the decision was one that has not beenarrived iat in accordance with the practice obtaining at suchmeetings.
Other irregularities in the proceedings have also been broughtto our notice. The evidence led at the trial indicated that thepractice was to hold a preliminary investigation before thematter was finally decided. Such a preliminary investigation hasnot been held in this case. As regards the inquiry itself, the letterP2 sent to the plaintiff giving notice of the inquiry, has statedthat the inquiry was to be held on the 5th October, 1947. Thejudgment D7, however, shows that the actual inquiry took placeon the 2nd November, 1947. There is no material to show as towhat transpired on the 5th October nor is there evidence toshow that the plaintiff was noticed to appear again on the 2ndof November.
PATHIRANA, J.—Dhammananda Thero v. Saddarutnda Thero
As regards the evidence at the inquiry, Rev. Gnanissara Therowho had come forward to give evidence in favpur of the plain-tiff was excluded from the inquiry on the ground that he refusedto be sworn. It has been suggested that an unnecessary obstacle—as this was not the normal practice—was placed to preventthis witness from giving evidence. It seems to us that even theburden of proof has been placed wrongly on the plaintiff whowas asked to establish matters (which were prima facie mattersof record contained in documents in their custody) more thanforty years after their occurrence. In this connection it shouldbe mentioned that the judgment of the Sangha Sabha containsno reference to the previous decisions of the Maha SanghaSabha, where in 1934 it cancelled an earlier order (mistakenlymade by the Sanga Sabha) and by its judgment confirmed thethe fact that Dharmmarakkhitha Thero was the plaintiff’s robingtutor. This was a serious omission of a material fact. In allthese circumstances, I feel that the learned trial judge was rightwhen he thought it was unsafe to hold that the material placedbefore him constituted an adequate record of proceedings beforea valid tribunal. In any event, there is, in this case such substan-tial irregularities in the procedure at such inquiry and a viola-tion of the principles of natural justice that little reliance canbe placed on that decision, even assuming that the tribunal hadjurisdiction to consider the matter.
I would, therefore, hold that the purported decision of the MahaSangha Sabha (D7) dated 2.11.47 does not operate as an estoppelor as res judicata against the plaintiff’s claim that VajiragnanaThero, his tutor, was the robed pupil of Dhammarakkhitha Thero.
I shall next deal with the question whether the plaintiff issuccessor-in-title of Vajiragnana Thero to the incumbency.Vajiragnana Thero had two pupils by robing, the senior of whomwas Gnanawasa Thero who was robed according to his Upasam-pada Declaration P74 in 1934 and the plaintiff who according tothe Upasampada Declaration D39 was robed in 1940.
The plaintiff’s case is that Gnanawasa Thero abandoned hisright to the Viharadipathiship of the temple and thereupon hebecame the lawful Viharadipathi. On this point GnanawasaThero himself gave evidence for the plaintiff and stated quite
PATHIRANA, J.—Dhammananda Thero v. Saddananda Thero
categorically he was not claiming any rights to the temples ofVajiragnana Theror. In any case he is not claiming any right tothe Vjiharadipathishdp of the temple in question. He is notchallenging the plaintiff’s claim that he had abandoned his rightsto the Viharadipathiship of the temple. He is at the moment theViharadipathi of Diyawadanaramaya temple. Although learnedCounsel for the appellant submitted that this evidence was in-sufficient to prove abandonment I would, however, agree withthe finding of the learned District Judge that Gnanawasa Therohad abandoned his rights and therefore the plaintiff succeeded tothe rights of Vajiragnana Thero as Viharadipathi of the templein question.
The 1st defendant has claimed title to the Viharadipathishipby prescription. The learned District Judge held that the 1stdefendant was not a robed pupil of Dhammarakkhitha Thero, andthat therefore he was occupying the temple in the characterof an imposter or trespasser. I have already agreed with thisfinding. He cannot by mere occupation of the temple acquireprescriptive title to the Viharadipathiship of the temple (seeSaranankara Thero v. Dhammananda Thero, 55 N.L.R. 313). An.argument was presented to us on the basis that the plaintiff’scause of action arose only on the death of the 1st defendant whichtook place in 1972 as the 1st defendant was entitled to the in-cumbency until his death. I cannot agree with this contentionas it is tantamount to holding that an imposter can acquirerights to an incumbency by prescription and till his death hisrights cannot be interfered with. It is settled law that an impostercannot acquire an incumbency by prescription. It may well bethat Vajiragnana Thero in his life time may not have been ableto institute an action to eject the 1st defendant after the rele-vant period of prescription had passed. But on the death ofVajiragnana Thero on 28.5.62, a fresh cause of action has accruedto his pupil, the plaintiff, and he can bring an action within theprescriptive period which he has done.
PATHXRANA, J.—Dhammananda Thera v. Saddanonda Thera
The 3rd defendant also took up the position that the plaintiff'saction was barred by lapse of time in that it had been instituted3 years after the date of ouster from the temple. The learnedDistrict Judge has held that the right to sue accrued to theplaintiff only in 1962 after the death of his tutor VajiragnanaThero and that it was only after that event that the plaintiff wasentitled on his own right to file an action. I agree with the learnedDistrict Judge. The plaintiff’s action, therefore, having beenbrought within 3 years, even on the assumption that the prescrip-tive period is 3 years, is not barred by lapse of time.
The learned District Judge has held that the 1st defendant wasan imposter or trespasser and the 3rd defendant was an agent ofthe 1st defendant and had no rights of his own, therefore, neitherthe 1st defendant nor the 3rd defendant was entitled to reside inthat temple or be maintained from the temple funds. I, therefore,agree with the judgment of the learned District Judge ejecting the3rd defendant from the temple in question.
The appeal of the 1st defendant-appellant is declared abatedand dismissed. The appeal of the 3rd defendant-appellant isdismissed with costs.
Malcolm Perera, J.—I agree.
W ana sunder a, J.—I agree.
Appeal of 1st defendant-appellant abated.
Appeal of 3rd defendant-appellant dismissed.
MEDDEGAMA DHAMMANANDA THERO, 1st Defendant-Appellant and Another and DEKATANA