Terunnanse v. Don Aron.
Present: Dalton and Drieberg JJ.
TERUNNANSE v. DON ARON et al.
168—D. C. Kalutara, 15,374.
Buddhist Temporalities—Action for recovery of temple—Right of -Incumbent—Ordinance No. 8 of 1905, s. 20.
The incumbent of a Buddhist temple has -no right to maintain anaction to recover possession of property, which is vested in the trustees,under section 20 of the Buddhist Temporalities Ordinance.
DRIEBERG J.—Terunnanse t>. Don Aron.
A PPEAL from a judgment of the District Judge of Kalutara.
N. E. Weerasooria, for plaintiff-appellant.
H. V. Perera (with him Ameresekere), for defendant-respondents.
June 28, 1932. Drieberg J.—
The first appellant who claims to be the chief incumbent of the Suvi-suddarama3ra temple said that he planted rubber on the Pansalawatta,the land on which the temple stands ; thereafter, he took up his residenceat another temple and appointed the sixth respondent DhammanandaUnnanse, his pupil, to act as his agent and look after the land during hisabsence. In October, 1928, he determined the 'authority of the sixthrespondent and leased six hundred rubber trees on a 5-acre portion ofPansalawatta to the second and third appellants. The lease P 8 of theOctober 29, 1928, was for a term of three years. He asked the sixthrespondent to give over possession of this portion, but he refused to do soand placed the first to the fifth respondents in possession of it ; he saidhe was in possession of the rest of Pansalawatta. . He asked to be restoredto possession of this portion of the land and for damages at the rate ofRs. 180 a year until restoration of possession.
The sixth respondent said that he was the rightful incumbent of thistemple by pupillary succession. He was young and had not completedhis studies when he succeeded to the incumbency. He was given overto the first appellant to be taught and was later sent to the MaligakandaCollege. He completed his studies in 1921, and then lived with the firstappellant at another temple of which the first appellant was incumbent.In 1923 he went to the Suvisuddaramaya temple. He claimed to haveplanted some rubber in 1927. The coupons for the rubber from theearlier plantations had been obtained in the name of the first appellant.He did not admit that the plantation was made by the first appellant,but said that, when he was with the sixth respondent, the latter wasentrusted with the collection of the income of the rubber land. Thefirst to the fifth respondents said they were dayakayas of the templeand denied having in any way interfered with the possession of the landby anyone.
The trial proceeded on the following issues: —
Did the first plaintiff make the ruober plantation in question on
land belonging to the Suvisuddaramaya temple ?
Did the first plaintiff entrust the sixth defendant with the care and
control of the said rubber plantation and if so, can he now
question the first plaintiff’s title thereto?
Has the plaintiff acquired title to the rubber plantation made by
him by right of prescriptive possession ?
Did the defendants or any one or more of them prevent the plaintiffs
or their agents from possessing the said rubber plantation and,
if so, to what damages are they entitled-?
Is the first plaintiff the incumbent of the temple in question ?
Can the first plaintiff maintain this action in view of the provisions
in section 20 of the Ordinance No. 8 of 1905 ?
DRIEBERG J.—Terunnanse v. Don Aron.
Does the deed of lease 719 of October 29, 1928, by the first plaintiff
to the second and third plaintiffs convey any title and, if not,can the second and third plaintiffs maintain this action ?
Are the first to fifth defendants in possession of the rubber plantation
in dispute ?
A great deal of evidence was led on the question of who was the chiefincumbent of the temple and it appears that the real object of this actionwas to obtain a decision on this point; the learned District Judge held,however, that it was not necessary to decide this question as the leaseP 8 was void. This temple is in an area which was brought under theoperation of the Buddhist Temporalities Ordinance and trustees wereappointed until 1916 or 1917. No trustee was appointed thereafter;a meeting was held in 1928 for the election of a trustee but it ended indisorder .and this was not done. The land admittedly belongs to thetemple which stands on it. Where no trustee has been appointed theincumbent can under the provisions of section 27 of the Ordinance leasetemple lands for a period not exceeding ten years but he should obtainthe sanction of the District Committee for the purpose.
Mr. Weerasooria referred us to the case of Pietersz v. BastionFernando.1 In that case the incumbent, the fourth defendant, leasedtemple lands to the plaintiffs who were ejected by the first, second, andthird defendants. The temple was one governed by the Ordinance,but no trustee had been appointed. No' question was raised in the lowerCourt regarding the validity of the lease but it was raised at the argumentbefore the Appeal Court. The judgment in favour of the plaintiff wasaffirmed, but on the ground that the right of the incumbent to lease wasnot raised at the trial and that in the absence of evidence to the contrarythe Court was entitled to assume that he had done so properly under thepower conferred by section 27. This is no authority for the propositionthat a lease withou| such sanction can be recognized, and in this case therespondents expressly questioned the legality of the lease. The appellantsdo not say that the first appellant obtained the sanction of the DistrictCommittee to the lease.
It has been held in Seyedu v. Lokunda" that the proviso to section 27k under which the temple lands may be demised with the sanction of theDistrict Committee applies only to cases where no trustee has beenappointed at any time under the Ordinance, and this provision cannotapply to the lease in question.
But in any case, can the plaintiff maintain this action ? An issue wasframed on this point. It is an action by the plaintiff, claiming to be thechief incumbent, to recover possession of temple land, and it must betaken, for the temple. Under section 20 of the Ordinance this land withits rents and profits vested in the trustees, and it is only the trustees whocan bring an action for the recovery of possession of property vested inthem—see section 30. In the case of refusal to accept office, death,incapacity, disqualification, resignation, suspension, dismissal, bank-ruptcy, insolvency, or departure from the Island of any trustee, theDistrict Committee is empowered by section 34 to make provisional» (1926) 28 N. Is. R. 88.2 (1927) 29 N. L. U. 216.
DRIEBERG J.—Terunnanse v. Don Aron.
arrangements for the performance of the duties of the office pending theelection of a successor, and a person so appointed provisionally to act astrustee has all the power and is liable to all the duties of a trustee electedunder the Ordinance. Mr. Weerasooria contended that the Courtcould recognize the right of the first appellant to maintain such an action,as this on the ground that he was a de facto trustee. It is not easyto see how, when by statute certain property is vested in trusteeswith adequate provision for succession and for provisional trusteesduring such intervals as there are no elected trustees, the right of anyothers to act as trustees impossibly be recognized.
In Sidhartha TJnnanse v. Udayara1 the incumbent of a temple anda man who cultivated under him a field belonging to the temple wereallowed to maintain a possessory action against trespassers. Thepriest’s right to do so was recognized on the ground that for over twentyyears he had charge of the field, given it out to be cultivated and takenthe customary share of the landowner. Sampayo J. held that inthese circumstances he could be regarded as a de facto trustee. Wewere informed by Mr. Perera that no trustee had been appointed andthat this fact was before the Appeal Court though not referred to in thejudgment. On examining the record of the case C. R. AnuradhapuraNo. 9,343, I find that this is so. The Commissioner desired informationon this point and it appears that the district in which the temple issituated was proclaimed in January, 1907, but there was no evidencethat a trustee was ever appointed ; the action was brought in April,1918. That case is therefore distinguishable from this, for here trusteeshad been appointed and the temple property, together with the rightto bring actions for the recovery of possession of it, rested in them andin their successors as provided by the Ordinance.
The first appellant therefore cannot maintain this action for therecovery of possession of this land and its rents and profits. The rightsof the other appellants are derived from the first appellant and theirposition is no better than this.
In his evidence the first appellant advances a claim of an unusualnature. He said he regarded the rubber as his private property andtook the income from it. He admits that the land belongs to the temple,but he assumes the position of a planter who has planted and improvedland. He says he had done this with his pudgalika money and claimsfor this reason to be entitled to the plantation. It was even suggested,see issue No. 3, that he had acquired title to the plantation by pre-scriptive possession. I do not see how such a claim can succeed, for hecannot say that he had the land planted in a personal capacity andnot as the incumbent of the temple. It is sufficient, however, to notethat the action was not brought on that basis but on an alleged right asincumbent.
The appeal is dismissed with costs.
Dalton J.—I agree.
1(1929) 6 0. IT'. R. 29.
TERUNNANSE v. DON ARON et al