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Present: Middleton J. and Wood Renton J.
THE TRUSTEE OF MUTIYANGANA VIHARE t>.
BANDARA et al.
366—D. C. Badulla, 2,462.
Buddhist Temporalities—Reasonable notice must he given of meeting for*
electing a trustee—Ordinance No. 8 of 1905, s. 17.
Undersection17 of “ The Buddhist TemporalitiesOrdinance, •
1905," the District Committee summoning a special meeting for theelection ofa trusteeis requiredby implication to givesuch notion
of the intention to hold the meeting as 'will be reasonably sufficientto bring the fact that it is to be held to the knowledge of the generalbody of resident voters. No form of notice is prescribed by the-section. It is – not possible to lay down any general rule on thesubject.
Middleton J.—If a proper notice was published at the vihare*for fourteenclear days beforethemeetingto be held forthe purpose
of electinga trusteeundersection 17,and notice was given by
beat oftom-tominthevillage or villages attached tothe vihare
asking thevoters toattendthemeetingat least twodays before-
the holding of the meeting, such a notice would be sufficient.
fjl HE facts are fully set out in the judgment-.
Bawa, K.G., for appellant.
H. A. Jayewardene (with him J, W. de Silva), for respondents.
Cur. adv. vult.
January 31, 1912. Middleton J.—
This is an action brought by a person calling himself the trusteeof the Mutiyangana Vihare against two defendants, the first of whomis a former trustee, and the second the incumbent of the vihareor temple. The action was brought to recover all the property,movable and immovable, belonging to the vihare, which it wasalleged had been handed over by the first defendant to the seconddefendant, and which it was alleged -was retained by him. The-plaintiff estimated the relief , he sought at the value of Rs. 2,000..The answer of the first defendant was a denial of the due appoint-ment of the plaintiff as trustee, an admission by him that his appoint-ment had lapsed by effluxion of time; while the second defendantayerred that the plaint disclosed no cause of action against him,.
8J.N. A 99413 (8/50)
Trustee ofMutiyan-gana Vihare«. Bandura
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and denied that the plaintiff was the duly appointed trustee of theMutiyangana Vihare of Badulla. The issues settled were:—
Whether the plaintiff was the duly appointed trustee of the
Whether the plaintiff called upon the first defendant!’.on
April 22, 1910, to deliver up possession of the property
of the vihare to him?
If so, did the defendant decline to do so?
Are the defendants wrongfully detaining the properties of
the temple from the plaintiff?
The first issue was the one to which the attention of the C'dbrtwas mainly directed, and which, of course, is vital to the plaintiff’srights. A very large body of evidence was called for both, sides,and the District Judge, has written a careful and well-reasonedjudgment upon that evidence, in which he has held that the plaintiffwas not the duly elected trustee of the vihare, on the ground -thatthe notice given by the District Committee for the holding of,, anelection of a trustee for the temple according to section 17 of the.Buddhist Temporalities Ordinance, No. 8 of 1905, was insufficient.In that section there are no directions, set out, or any terms Jaiddown, as to. how a meeting by the District Committee is to,1 beheld for the election of a trustee, but the section simply says that atrustee is to be elected for a term of three years by a majority of thevoters resident in the villages to which the temple is attached at ameeting held by the District Committee specifically convened for thatpurpose. Under section 6 of the same Ordinance the mode ofsummoning a public meeting for the election of a District Committeeis specifically laid down, and in that section it is enacted that’ atleast thirty days before the time determined on for the meeting &written notice of it is to be affixed to some conspicuous part of eachtemple within the sub-district, and that due publicity of such ndtioeshall be given by beat of tom-tom or otherwise on three consecutivedays before the day fixed for the meeting. Now, an examinationof the evidence shows, as the learned District Judge says in# hisjudgment, that some 150 notices dated April 1 in the Sinhaleselanguage were printed announcing an election on April 9 and issuedfor distribution: 50 in the sub-districts, 100 in the town and neigh-bourhood. The President of the District Committee said that49 notices were actually delivered in the town by one person, andhe distributed others himself. Notices were also, the Presidentavers, affixed in the kachcheri and court notice boards, of whichthe District Judge is doubtful. But there is no evidence of anynotice at the vihare itself—a serious omission*—and tom-tom wasbeaten once through the town from Hinagoda to Kammanakada onthe day of the meeting. As a result some 30 or 40 people attendedthe adjourned meeting. It would appear also that many of . "the
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notabilities of the district attending the vihare in question werecalled, and asserted that they knew nothing of the proposed meeting.The Batemahatmaya of the division, the Basnaike Nilame, andprominent Buddhist laymen, such as Messrs. Kotalawala, DonPabilis Appuhamy, N. Marasinghe (the rejected candidate), theTown Araehchi, the Town Assessment Collector, the KachcheriAraehchi, alTbore testimony that they knew nothing of the meetingat all. The priest of the temple himself and the old trustee werenot notified. .There were hardly any voters of prominence at themeeting of April 11, and of headmen only two: one ex Batemahat-maya,* the plaintiff’s father, and the Mylagastenne Araehchi, thePresident’s son. It was also in evidence that early in the year ithad been intimated to the District Committee by a petition by 53persons believing themselves to be voters that they desired tosupport the candidature of the first defendant for re-election. Itwas proved also that a person named Marasinghe, the candidatefor the office, had sent in an application to the District Committeethat his name should be put forward for election as trustee of th£vihare. It, therefore, must have been quite obvious to the Presidentof the District Committee that a strong feeling existed in the districtwith regard to the election of a new trustee, and that there was atany rate one new candidate, together with the old trustee, ready tocome forward for election to the office.
It was contended on behalf of the appellant that the notices ofthe meeting which had been proved were, in the circumstances ofthe case, amply sufficient. The Ordinance made no provision forany specific forms of notices, and it was contended on the authorityof the cases of Mercantile Investment and General Trust Company v.International Company of Mexico, 1 reported in a footnote to the caseof Sneath v. Valley Gold, Limited, that the notices were reasonablysufficient. In that- case it was held that a notice given by anadvertisement in the public newspapers for fourteen days before ameeting convened by the directors of a company for passing aresolution for an exchange of shares was a reasonable wand sufficientone. It was argued that the election of a new trustee was anofficial act, as to which there was a presumption that everythingwas duly performed according to the requirements of the law, andthat the burden of proof rested on the defendants to show that theelection had not been duly held. In the absence of any provisionrelating to the formalities requisite for holding such an election asthis, I am of opinion that it would be sufficient to give such a notice•published in such a way and by such means as would be reasonablysufficient to enable the majority of the electors to-attend the meetingconvened. I am much impressed in this case by the fact that nonotice of the meeting was published at the vihare, and the noticegiven by beat of tom-tom up. a road mentioned in . the evidence
1 (25dpi 'Ohancety 484.
Trustee ofMutiyan-gana Viharev. Bandara
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<1918. does not seem to me to be' a very effectual manner of conveying
_to the voters of the villages to which that particular vihare was
j. attached that a meeting for the purpose of electing a trustee for“, it was to be held. According to the Buddhist religion, I understand
Mutiyan- that there are four poya days every month • at the four phases of•^J2£*the moon> and it is not unreasonable to suppose that good Buddhistswould attend their vihare at least on these occasions. Arguing bythe analogy of proceedings in Christian communities, a notice givenin a church or a chapel would ordinarily be deemed to have reachedthe ears of the worshippers of such church or chapel. Here it-would seem to be argued that there is no notice board at any vihare,-and no means of giving any information, to the worshippers, and:that the voters of”the vihare would be, as a rule, in the majoritywomen. I think, however, that notice at a vihare as required*uuder section 6 of the Ordinance is particularly significant in view•of any other meetings to be held for the purposes of the Ordinance.Tt is contended for the defendants that a certain section of thevoters who supported the plaintiff in this case were desirous ofobtaining his election behind the backs of a very large majority ofthe other voters, and it is suggested before us that the mode ofnotice adopted for the plaintiff was intended for the purpose ofstudiously leaving out those who were opposed to his candidatureand obtaining the presence of those who supported him. Thereseems to be perhaps some ground for this contention, looking at•the evidence. It is contended for the appellant also that in hiscase the number of voters present at the meeting were no less thanthe 40 who were present at the election of the previous trustee.This no doubt is the case, and it is open also to question, as theappellant urges, whether any election under the Ordinance has everbeen conducted on the basis of a reasonable and sufficient notice.It is not within my province to lay down how long a notice shouldbe given, or where it should be given, or in what way it should be;given. But my own opinion is that, if a proper notice was publishedat the vihare for fourteen clear days before the meeting to be' heldfor the purpose of electing a trustee under section 17, and noticewas given by beat of tom-tom in the village or villages attached tothe vihare asking the voters to attend the meeting at least two daysbefore the holding of the meeting, such a notice would be sufficient.
There is one other point that was raised for the respondents,•and that.was that the Committee recognized the irregularity of themeeting in April for want of notice by announcing another meetingduring August to be held in September. This, however, may havebeen done upon the suggestion of the District Court. In my opinionthe judgment of the District Judge was right and should be affirmed,and I would dismiss the appeal with costs, which, I think underthe circumstances, should very properly be paid by the appellantpersonally.
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Wood Renton J.—
Under section 17 o£ “ The Buddhist Temporalities Ordinance,1905 ” (No. 8 of 1905), the District Committee summoning a specialmeeting for the election of a trustee is required by implication togive such notice of tEe intention to hold the meeting as will bereasonably sufficient to bring the fact that it is to be held to theknowledge of the general body of resident voters. No form ofnotice is prescribed by the section. It & not possible to lay down anygeneral rule on the subject. The question whether the noticegiven is sufficient will in each case be one of fact. The learnedDistrict Judge in an admirable judgment has held that the noticegiven by the District Committee in the present case was insufficient,and I am certainly not prepared to say that his finding on this pointwas wrong. Admittedly no notice was affixed to the vihare, theplace of worship of the principal Buddhists in the district. Nonotice of any kind reached a long series of influential Buddhists;Mr. Katugaha, the Ratemahatmaya of Yatikinda, though he livesin the town of Badulla, only three-fourths of a mile from the vihare,and worships there; Mr. Bandaranayaka, Basnaike Nilame of a. neighbouring vihare, and a regular worshipper at the vihare herein question, resident within one-sixteenth of a mile of it; Mr. Kotala-wala, also a regular worshipper at the vihare, and resident aboutone-eighth of a mile from it; Don Pabilis Appuhamy, a residentin Badulla, and a regular worshipper at the vihare, within thepremises of which he has built an almshouse; Mr. Marasinghe,Recordkeeper of the kachcheri, and himself a rival of the appellantfor the vacant trusteeship; Herat Appuhamy, Town Arachchi ofBadulla, also a regular worshipper at the vihare, AppuhamyArachchi; G-anetirala Arachchi; and Kade Ratuheneya. Counselfor the appellant said that it is not necessary tha.t notices of thekind that we are here concerned with should be proved to havereached every prominent resident yoter. That is quite right. Butthe fact that a large number of influential voters received no noticeis evidence, and may be strong evidence, of the inadequacy of thenotice actually given. In addition to the matters just mentioned,I think that the District Judge must be taken to-have held, dis-believing the evidence of the President of the District Committeeon that point, that notices were not proved to have been affixedto the notice boards of such frequented places as the court and thekachcheri. The appellant’s counsel argued that the attendance atthe meeting here in question was shown by the evidence to havebeen as large as that at other meetings of a similar character. Butin the present case the facts are established (a), that while a newtrustee ought to have been elected in the end of January, 1911,that election had not taken place, and the appellant had beenirregularly appointed provisional trustee; and (6) that the District
Trustee ofMtUiyan-gana Viharev. Bandara
Trustee ofMutiyan-gana V Outrev. Bandara
Committee waB in presence, early in the year 1911, of a petitionsigned by 53 persons, believing themselves to be voters, intimatingtheir desire to support the candidature of the retiring trustee, thefirst defendant-respondent, for re-election. I agree with the DistrictJudge that these circumstances made it doubly incumbent on theCommittee to see that adequate notice of the special meeting forthe election of a trustee was given, and it is difficult to believe thatif that duty had been properly performed, the appellant’s electionwould have been, as it was, .unanimous. Accepting the contentionof the appellant’s counsel that the burden Of proving the notice tohave been insufficient was on the respondents, I think that thatburden has been discharged.. The counter evidence for the appellantas to tom-tom beating and the distribution of notices is unsatis-factory. The tom-tom beater himself admits that of his twotom-tom beatings, only one related to the calling of the meeting.None of the notices reached the prominent Buddhists above referredto. I see no reason to differ from the decision of the learnedDistrict JucTge as to costs. I would dismiss the appeal, with costspayable by the appellant personally.
THE TRUSTEE OF MUTIYANGANA VIHARE v. BANDARA et al