H. N. G. FEBNANDO, J.—Vajirawansa Thero v. Abraham Silva
1958 Present: H. N. G. Fernando, J., and T. S. Fernando, 3.K.VAJIRAWANSA THERO, Appellant, andP. H. ABRAHAM SILVA et al., Respondents
S. G. 191-193 (Inty.)—D. C. Kegalle, 8,036.
Buddhist ecclesiastical law—Deed “ promising to dedicate ” a temple and its lands—Effect—Gihi santhaka property—Property belonging to a religious institution—Transfer of rights of management and possession thereof—Transferee’s right tomaintain action against persons who disturb possession.
Where a Society which was formed to establish a Buddhist temple executeda deed entrusting the charge qf the temple and its premises to a priest pro-visionally, intending to effect a permanent transfer and dedication at somelater time—
Held, that the deed did not divest the Society of all its rights and prevent itfrom subsequently entrusting the control and management of tho temple topersons other than those named in the deed. The premises remained gihisanthaka.
Held further, that, just as a tenant is entitled to recover possession frompersons who have disturbed his possession without the necessity of making thelandlord a party to the proceedings, so also were the persons, to whom theSooiety had conveyed its admitted rights of management and possession,entitled to maintain an action for the assertion and recovery of those rights asagainst those who disturbed such rights.
-fi-PPEALS from a judgment of the District Court, Kegalle.
B. Gunaratne, with B. S. C. Ratwatte, for the 1st and 2nd defendants-appellants in 193 and 1st and 2nd defendants-respondents in 191 and192.
H. W. Jayewardene, Q.C., with P. Banasinghe, for the 3rd defendant-appellant in 192 and 3rd defendant-respondent in 191 and 193.
H. V. Perera, Q.C., with G. V. Banawake, for the 4th defendant-appellant in 191 and 4th defendant-respondent in 192 and 193.
A. L. Jayasuriya, with A. B. Perera and J. C. Thurairatnam, for theplaintiffs-respondents in all the appeals.
Cur. adv. vult.
March 21,1958. H. N. G. Febnakdo, J.—
The nine plaintiffs in this action claimed a declaration that certainlands forming part of the premises of the Bodhirajaramaya, situatedin the district of Kegalle, be declared property subject to a charitabletrust, for a vesting order vesting the property in the plaintiffs as trustees,and for the ejectments therefrom of the four defendants. The claimwas based on the following averments :— that a Society known as theSasana Abhiwardana Society was formed about 1908 for the purpose offounding an institution for the advancement of the Buddha Sasana andthe residence and maintenance therein of Buddhist monks; that certainmembers of the Society had purchased certain lands (now forming part-of the premises of the Institution) in furtherance of the objects of the
H. N. G. FERNANDO, J.—Vajirawansa The.ro v. Abraham Silva
Society, that these lands were donated to the Society and constitute anextent of 3 acres, 2 roods and 32 perches ; that the buildings and improve-ments on the lands were erected by the Society from private and publicsubscriptions; that at a meeting held on September 25th, 1949, oneE. M. Appuhamy, the vice president, was authorised to convey the righttitle and power vested in the Society in and over the land to the plaintiffsas trustees ; and that in pursuance of this resolution E. M. Appuhamyby deed P 29 of 14th and 15th January, 1950, constituted and appointedthe plaintiffs and one K. T. S. de Silva as trustees.
The 1st defendant in his answer denied that the Sasana AbhiwardanaSociety had any legal rights to the temple, although he admitted that theSociety did in fact supervise, look after and improve the temple. He alsodenied the right of the plaintiffs to be trustees of the temple or to sue assuch. In addition the 1st defendant pleaded that the premises areSanghika property by virtue of a dedication to the Sangha; that thecontrol, management and supervision belonged to the Viharadhipati,and that the 1st defendant was appointed an agent by the presentViharadhipati. The answer of the 2nd defendant was substantiallyto the same effect. The 3rd defendant’s answer did not touch upon theaverments in the plaint. The 4th defendant admitted that the SasanaAbhiwardana Society bought the land and put up the building on whichthe Bodhirajaramaya now stands, but he too relied on an alleged dedi-cation to the Sangha and on the rights of the Viharadhipati and of the1st defendant under him.
The question whether there had been a dedication in 1930 and whetherthe premises were Sanghika property was the principal one raised at thetrial by the defence. The learned District Judge has in my opinion givenconvincing reasons for rejecting the plea that there had been a dedication.
The evidence for the plaintiffs was that the monk who was first placedin charge of the temple was one Bharmakirti Pada Thero and that heremained in charge of the temple at the instance of the Society for twoyears from 1909 leaving Dhamma Kusala Thero whom the Societyaccepted as Viharadhipati. Thereafter, according to the plaintiff,Dhammadinna, the pupil of Dhamma Kusala, administered the templeas Adikari under the authority of Dhamma Kusala. The defence calledno witnesses to controvert this version of the early history of the temple,and indeed the case for the defence was only that a dedication took placein 1930. It is common ground that preparations for such a dedicationwere put in hand and that the permission of the Governor (then necessaryunder section 41 of the Buddhist Temporalities Ordinance, 1906) wassought to enable the Society to transfer the temple property to DhammaKusala. The necessary licence from the Governor was however with-held and in the result the document D9 which was signed on 13th March,1930, by the Society and Dhamma Kusala and his pupil Dhammadinnawas not a transfer, but only a promise to transfer within three years,after obtaining a permit from the Governor. In the meantime, however,this deed did purport to deliver charge of the temple premises to the twomonks. In so far also as the monks themselves were concerned, they
27$ H. N. G. FERNANDO, J.—Vajirawansa Thero v. Abraham Silva
would I think be bound by the recital in the deed that the premisesbelonged to the members of the Society, and it would not be open toany of the present defendants, if they base any claim under DhammaKusala, to deny the Society’s title.
The apparent basis of the defendants’ claim is that Dhammadinnawas the chief pupil of Dhamma Kusala and that Dhammadinna is thede facto Viharadhipati, having succeeded Dhamma Kusala. There isnothing in the evidence adduced for the defence to support the claimin the pleadings that Dhammadinna was the chief pupil of DhammaKusala, and that being so, I see no reason to question the opinionexpressed in the judgment that even if there has been succession to thetemple under the rule of Sisyanu Sisya Paramparawa, it would bo oneAththakusala and not Dhammadinna who would be entitled to succeed.
The learned District Judge has carefully considered the contentionthat a dedication did in fact take place on 14th March, 1930. I needrefer only to a few of the circumstances which support his finding. Inthe first place the licence of the Governor not having been obtainedfor a transfer of the property, even the deed P9 is entitled a deed“ promising to dedicate ”. One Mrs. Badhrawathie Fernando, a daughterof Camolis de Silva (a founder member of the Society), had appearedat the meeting and publicly protested against a dedication. Further,as the Judge remarks, it is unlikely that learned priests present at theceremony would have accepted as an absolute dedication what was interms only a promise to dedicate. Even if the monks imagined thatthere was to be a dedication, it can hardly be said that the membersof the Society who had executed P9 could possibly have had an intentionof immediate dedication when they were quite aware of the oppositionon the part of the family of one of the founder members and holdersof the legal title as well as the lack of the Governor’s licence for thetransfer of the land. The learned Judge also rejects the version that theceremony of dedication was completed by the pouring of water upon arock inscription, and I see no reason to doubt the correctness of hisviews that this ceremonial would not have been a proper substitutefor the established custom of pouring water into the hands of the donee.In the result it seems clear that all that took place on the 14th March, 1930,was that the Society entrusted the charge of the temple to DhammaKusala provisionally, intending to effect a permanent transfer anddedication at some later time. There is no evidence that this intentionwas ever carried out. No authority was cited to us in support of theview that a document like P9 was sufficient to divest the Society of allits rights and to prevent the Society from subsequently entrusting thecontrol and management of the temple to persons other than thosenamed in the document.
The learned Judge has also accepted the evidence for the plaintiffthat the Society appointed one Dhammavilasa in 1935 with the approvalof Dhamma Kusala to manage the temple affairs and that when the1st defendant originally interested himself in the temple, he did so underthe authority of Dhammavilasa, the Society’s nominee. I need onlyadd in passing that there was ample evidence for the Judge’s opinion
H. N. G. FERNANDO, J.—Vajirawansa Thero v. Abraham Silva
that the 1st defendant took forcible possession of the premises in April1950 and now seeks to shelter under alleged authority from an allegedincumbent.
For these reasons I am in agreement with the findings of the learnedJudge that the premises remained gihi santhalca and that the rights ofmanagement and control including the rights to nominate a monk tosupervise the temple were, despite the events of March 14th, 1930,still vested in the Society.
It is necessary at this stage to refer to the various deeds affecting theland on which the premises of the Bodhirajaramaya are situated. ByP2 of 1904 one Kiriappu conveyed a land called Udamullahena of about8 lahas to Dambadeniyage Don John Appu and Kankantantri CamolisSilva. By P3 of 1909 one Ran Kira conveyed an undivided half shareof a land called Panuambagahamullahena of 8 kurunies to Idris Silva.By P4 of 1911 one Kuda Ridi conveyed to Abraham Silva the 1st plaintiff,a liyadda of one laha in extent. By P5 of 1918 Andy Perera conveyedthe remaining portion of a land called Nikagolawatte of 5 kuruniesexcluding 1 laha previously sold, to five persons, Isanhamy, Andris Silva,Justin Perera, James Perera Goonewardena and W. M. Wijetunge.The 4th transferee on P5 as well as the sons of the the 1st and 2nd trans-ferees respectively, subsequently sold an undivided 3/5 part of Nikagola-watte to the 1st plaintiff by P7 of 1949. Similarly by P8 of 1949 oneEntin Silva, the son of Idris Silva, the transferee on P3, conveyed theundivided half share of Panuambagahamullahena to the 1st plaintiff.The effect of these transactions was that the 1st plaintiff by these meansacquired title to all the lands, save Udamullahena conveyed on P2 anda 2 /5 share of the land conveyed by P5. It would seem that the plaintiffsare faced with no difficulty in regard to the outstanding 2/5 share of the.land dealt with in P5 for the reason that the owners of those outstaiMingshares, namely, Justin Perera and W. M. Wijetunge, are signatoriesto the deed P29 upon which the nine plaintiffs based their claim to betrustees and by which the lands in question were transferred to thetrustees. The only issue raised by the defendants affecting the questionof title pure and simple was issue No. 35 which challenged the right ofthe plaintiffs to maintain the action on the ground that the heirs ofCamolis Silva the transferee on P2 had not joined in P29 and were notparties to the action. In the absence of any issue concerning the $ sharewhich Dambadeniyage Don John Appu acquired under P2, I do notfeel called upon to consider whether that share is outstanding, but wouldnote that it is possible that one William de Alwis Goonetilleke, a signatoryto P29, was the heir of Don John Appu.
The learned District Judge has apparently answered issue No. 35in favour of the plaintiffs notwithstanding the fact that the heirs ofCamolis Silva have certainly not divested themselves of their legaltitle and it is necessary to consider what effect this circumstance hason the plaintiff’s case. The evidence, which the learned District Judgehas accepted without question, was to the effect that one of the movingspirits behind the plan to form the Sasana Abhiwardana Society and tofulfil its pious objects was Camolis Silva himself. The evidence of
H. N. G. FERNANDO, J.—Vajirawansa Thero v. Abraham Silva
Mrs. M. W. R. de Silva, daughter of Camolis Silva, was to the effectthat her father died in 1928, that the temple in question was foundedby her father with the collaboration of the plaintiff, and that the Societycontrolled the temple and looked after its properties. Clearly then,questions of legal title apart, the interest which Camolis had in the landWas subject to his own avowed intention that the land be utilised for thereligious purposes in which the Society was interested. It would seemalso from her evidence that the members of her family had never setup any claim inconsistent with their father’s intention or with the religioususes to which Camolis had in fact put the land. There is nothing in theevidence to controvert the position taken on behalf of the plaintiffsthat for many years before the death of Camolis the land had in factbeen used and occupied for religious purposes and was therefore thesubject of a religious trust. If the plaintiffs action had been for a decla-ration of title, the fact that title to some portion of the land is outstandingin the heirs of Camolis Silva would undoubtedly be fatal to their claim.But in my understanding the action is not in essence one for such adeclaration. Indeed the plaint contains no prayer regarding title but isrestricted to a claim for a declaration that the land and premises, includingthe movables thereon, be declared to constitute a charitable trust andthat the plaintiffs are entitled to the management, control and adminis-tration as its lawful trustees.
The term “ trustee ” is so defined in the Trusts Ordinance thatit is applicable only to a person in whom the legal ownership of propertyis vested. While, therefore, it is probably correct that under the variousdeeds to which I have already referred the plaintiffs can properly claimto be owners and therefore the trustees of some of the allotments of landupon which the temple premises stand, they have no right to be declaredtrustees of the entire land because of the fact that the heirs of CarnolisSilva are still the legal owners of a portion. Nor would it serve anyuseful purpose to declare the plaintiffs to be the trustees of the portionto which they have title since that would not suffice to give them theeffective control which they seek of the temple and its appurtenances.
As stated earlier, however, the case for the defendants has been thatthere was in fact a dedication in 1930 by the then owners of the property,that is the Sasana Abhiwardana Society. Even if the Society wasnot the legal owner at that time, there is ample material on record toshow that the owners of the lands had in fact entrusted to the Societythe right to possess, manage and control the lands and buildings for thepurpose of maintaining thereon the religious institution. The defendantswho base their claim on an alleged divesting of ownership and controlby the Society are in my opinion estopped from denying that at theleast the Society had the right, on behalf of those interested in the trust,to possession and management of the premises. All that the plaintiffsnow seek to do is to regain the rights of possession and management ofwhich they have been deprived by the unlawful acts of the defendants'.Just as a tenant is entitled to recover possession from persons who havedisturbed his possession without the necessity of making the landlord■ a party to the proceedings (Wille—Landlord and Tenant in South Africa—4th Edition p. 145), the plaintiffs, to whom the Society had conveyed its
The Queen v. Sunderam,
admitted rights of management and possession, have a status to maintainthis action for the assertion and recovery of those rights. If and whenthe heirs of Carnolis Silva desire to assert their own title or to deny theexistence of the trust, any decree in favour of the plaintiffs in this actionwill of course not bind those heirs. While therefore the device of addingthe heirs as defendants, particularly at the stage when issue 35. wasraised, might or should have been adopted with a view to securing someconclusive determination ot questions of legal ownership and trusteeship,the present plaintiffs can rightly ask as against the defendants, thatthey are entitled to possession and control and for ejectment of thosewho have disturbed their rights.
The fact that one of the trustees named in P29 is not a party to theaction does not prejudice the plaintiff’s case. There is nothing in theevidence to controvert the explanation that that individual declined toaccept the office of trustee.
In the result I would dismiss these appeals with costs and affirm thejudgment and decree in D. C. Kegalle, No. 8,036 subject to the modificationthat the decree be amended by substitution for the 3rd, 4th and 5thparagraphs thereof of the following :—
“It is further ordered and decreed that the plaintiffs abovenamedbe and they are hereby declared entitled to the management, controland administration of the said premises.
“ It is further ordered and decreed that the defendants, their agentsand servants be ejected from the said land and buildings and premisesand the plaintiffs be placed in possession thereof.”
T. S. Fernando, J.—I agree.
P. H. ABRAHAM SILVA et al., Respondents