SANSONI, J.— Suraeena v. Riwatha Thero
1958Present: Pulle, J., and Sansoni, J.W. M. SURASENA et al., Appellants, and K. REWATHA THERO,
8. p. 852—D. 0. Kandy, 3983
Buddhist ecclesiastical law—Gift of jyudgalika property by a Viharadhipathi to hispupil—Does it create a charitable trust in favour of the Vihare ?—TrustsOrdinance (Cap. 72), e. 6.
Where a deed was, on the face of it, nothing more than a gift of pudgalikaproperty by a Viharadhipathi to his pupil and the latter’s “ successors in thepapillary succession”—
field, that it could not be contended that the donee held the land as templeproperty for the benefit of the Vihare.
■^APPEAL from a judgment of the District Court, Kandy.
J. A. L. Gooray, with F. X. J. Rasamyagani, for the defendants-appellants.
N. E. Weerasooria, Q.G., with B. 8. G. Ratwatte, for the plaintiff-respondent.
Pur. adv. mdt.
July 28,1958. Sansoni, J.—
The plaintiff filed this action as the Controlling Viharadhipathi andTrustee of Sirimalwatta Vihare, seeking to be declared entitled to theentirety of a field called Gedera Kumbura described in the plaint. Hepleaded that Sumangala Nayake Unnanse who was the ControllingViharadhipathi, having nominated and appointed his pupil RathanajotiUnnanse the Viharadhipathi, by his deed PI of 1918 conveyed the fieldto the latter to be held in trust by him and his successors in pupillarysuccession; and that upon Rathanajoti Unnanse’s death in 1951 theplaintiff succeeded him as Viharadhipathi, and the field became vestedin him. The four defendants were sued as persons in wrongful possession.
The defendants pleaded that one Lensuwa Heneya was the formerowner of this field, and that he by deed 4D 2 of 1874 conveyed it to hiswife Kuda Ridee and his son Rana Heneya. The 4th defendant claimedthe J share of Rana Heneya upon a series of deeds, while the 1st and 2nddefendants claimed that the | share of Kuda Ridee had devolved on themupon another series of deeds.
In 1913 Kuda Ridee and one Koin Menika by deed 2D1 purportedto transfer the entirety of the field to Sumangala Nayake Unnanse ofSirimalwatta Vihare and his heirs, executors, administrators and assignsfor a sum of Rs. 1,500. By deed PI of 1918 Sumangala Nayake Unnanse
SANSONI, J.— Surasena v. Jiewatha The.ro
purported to donate the field and other lands to his pupil RathanajotiUnnanse. The terms of the deed are important and I shall thereforeset them out in full:
“ Know all men by these presents that I SumangaJa Nayake Unnanseof Sirimalwatta Vihare in Sirimalwatta in Udagampola of Lower Dumbarain the District of Kandy in the Central Province of the Island of Ceylon(hereinafter calling myself the donor) for and in consideration of the loveand affection which I have and bear unto my pupil Rathanajoti Unnanseof Sirimalwatta Vihare in Sirimalwatta aforesaid (hereinafter called thedonee) and for divers other good causes and considerations me hereuntospecially moving do hereby give, grant, convey, transfer, set over andassure unto the donee and his successors in the pupillary succession byway of gift the lands and premises in the Schedule hereunder writtenparticularly described and of the value of Rupees Two Thousand oflawful money of Ceylon together with all rights, privileges, easements,servitudes and appurtenances whatsoever thereof or thereunto in anywise belonging or used or enjoyed therewith or reputed or known as partor parcel thereof and all the estate right title interest claim and demandwhatsoever of me the donor in to out of or upon the same, to have andto hold the said premises hereby gifted with their and every of theirappurtenances unto the donee and his aforewritten for ever. And I thedonee do hereby accept the above gift thankfully. ”
Rathanajoti Unnanse died in 1951 and the plaintiff thereupon succeededhim as Viharadhipathi.
Several issues were framed at the trial but the crucial question for thodecision of the Court, as suggested by the plaintiff’s counsel in issue (4),was:
“ Did the said deed (PI) operate to create a trust in favour of thesuccessors in pupillary succession to the said Rathanajoti Thero * ”The issue is based on paragraph 3 of the plaint and the amended plaintwhich reads:
“ One Sumangala Nayake Unnanse was about 40 years the ControllingViharadhipathi of the said Vihare and he having nominated and appointedhis pupil Rathanajoti Unnanse the Viharadhipati of the said Vihare byhis deed No. 1127 dated the 28th February 1918 conveyed the said fieldinter alia to him to be held in trust by him and his successors in pupillarysuccession. ”
On this part of the case the defendants claimed
that the field became the pudgalika property of Suman-
gala Nayake Unnanse when he acquired it upon deed2D 1 of 1913; and
that by deed PI Rathanajoti Thero became absolute
owner of it, or that at the most the pupils of Rathana-joti Thero were also intended to be benefited.
On the first point there is an admission by the plaintiff’s counsel at thetrial that on 2 D1 the land became the pudgalika property of Sumangala;in any event, there is no evidence that it bore any other character.
SANSONI, J.— Suraatna v. Rewatha Thero
After trial the learned District Judge held that Sumangala NayakeUnnanse became entitled only to a | share upon the deed 2 D 1, and thatthe other £ share belongs to the 4th defendant. He also held that thedeed P 1 executed by Sumangala Nayake Unnanse created a charitabletrust for the benefit of the Sirimalwatta Vihare, and he therefore gavejudgment in favour of the plaintiff in respect of a £ share of the field.The 1st and 2nd defendants have appealed from this judgment, and it•was submitted on their behalf that the deed P 1 did not create a trustbecause certain of the essential elements of a valid trust are absent.
Section 6 of the Trusts Ordinance (Cap. 72) requires that the authorof a trust should indicate with reasonable certainty, among other things.
(а)the intention on his part to create a trust;
(б)the purpose of the trust;
It seems to me that none of these elements are present in the deed P 1,On the face of it the document is nothing more than a gift by a BuddhistPriest in consideration of love and affection to his pupil and the latter’ssuccessors in the pupillary succession. Neither the purpose, nor thebeneficiary, nor the intention to create a trust in favour of the temple isset out in the deed. But it is urged for the plaintiff respondent that thedonee Rathanajoti Unnanse held the land as temple property for thebenefit of the Vihare because that is the necessary consequence of the gift* to Rathanajoti Unnanse and his pupillary successors. The argument,as I understood it, was that the deed in effect appointed RathanajotiUnnanse to succeed Sumangala Nayake Unnanse as incumbent of theVihare, that Rathanajoti’s pupillary successors would be his successorsin the incumbency, and that as an incumbent’s powers of dealing withVihare property are limited to such objects as would benefit the Vihare,the Vihare was by implication the beneficiary of the trust, and thepurpose of the trust was to benefit the temple. Such an argument wouldinvolve reading into the document a good deal more than it contains onits face. For one thing, Rathanajoti is not referred to as the next incum-bent, and there is nothing to indicate that the donor even contemplatedappointing him to that office. The gift is not limited to such pupillarysuccessors as would fill the office of incumbent. Even if these difficultiescan be explained away, precedent is against the plaintiff respondent’scontention.
It seems to have been argued in the lower Court that the deed createda charitable trust and that is the view the learned Judge has taken,apparently being of the opinion that a gift by a priest of a temple “ tohis pupil of the same temple to be possessed by the donee and his successorsin the pupillary succession ” creates a charitable trust. It seems a noveland a bold view to take, that where the beneficiaries of a trust are Buddhistpriests, the trust is charitable. The learned Judge answered issue (4)in the affirmative in this view of the matter, but he goes on in his judg-ment to say: “ Though it is not stated in so many words in the deeditself, there is no doubt that the intention of the donor was that the gift
SANSONI, J.— Surasena ®. Rtwatha Thero
was for tiie benefit of the Temple The beneficiary would then, inhis view, not be the priestly successors of Rathanajoti Unnanse, but theVihare. He then quotes a passage from Lewin on Trusts (15th Edition)page 455 cited by Fernando A. J. in his judgment in Muntgesoe v. Chelliah1which reads : “A much greater latitude of expression is allowed in giftsto charity than in gifts to individuals, and a gift to charity will neverfail for uncertainly The true meaning of this passage appears from thevery next sentence in that text book: “ Where a trust instrument onceshows a clear intention to devote the property to charity, it is immaterialthat the particular mode in which the intention is to be carried into effectis left uncertain, for the Court will carry the intention into effect”.An intention to create a charitable trust can never be gathered fromlanguage which does not point with certainty to that intention.
The question ultimately resolves itself into whether the deed PIcreated a valid charitable trust for the benefit of the Vihare or could evenbe treated as a donation to the Vihare. Unless the plaintiff can establishone or the other position he cannot succeed. Now the Vihare is nowherementioned in the deed as a beneficiary; nor is it possible to find in thedeed a clear intention that the lands dealt with were to be the propertyof the Vihare. The deed, it seems to me, is nothing but a deed of giftto Rathanajoti Unnanse and his pupillary successors. RathanajotiUnnanse was not at that time the incumbent of the Vihare, he was notappointed by the deed to succeed the donor as incumbent, and it was notcertain that he would ever hold that office. It cannot therefore be as-sumed from the terms of the deed that the donor’s intention was to benefitthe incumbent or his successors in office, still less that his intention wasto benefit the Vihare. Even if one were to read the deed as being a giftto the incumbent of the Vihare and his successors in office, such a gifthas been held not to be a gift to the Vihare but to the incumbentpersonally—see Appuhamy v. Sundara Banda3. De Sampayo A.C.J.in his judgment in that case (Garvin A. J. agreeing) said that the words“ successors in office ” were descriptive only, and he went on to say:
“ there is no difficulty in the conception of a gift designating the line ofpriests who are to take after the immediate donee. I therefore think thatthe gift was not to the temple and the property did not become Sanghika.”
We were referred by the plaintiff-respondent’s counsel to the judgmentsof Bonser C.J. in appeal3 and in review 4 in the KirieUa Vihare case.The Sannas which was considered there granted certain lands to a priest,and provided that the income of the lands should be appropriated by thesuccessive pupils of that priest and by priests who reside in the Vihare“ maintaining the services of the Vihare hereafter without dispute ”.That clause in the Sannas was emphasized by Bonser C.J., and.also byDe Sampayo A.C.J. in Appuhamy v. Sundara Banda 8 as setting outthe purpose and condition of the gift, and the absence of a clause of thatnature from the deed PI makes all the difference. In the present case Iwould follow, with respect, the view taken by De Sampayo A.C.J.
1 (1954) 57 N. L. S. 463.* (1900) 4 N. L. JR. 167.
* (1923) 1 Times of Ceylon L, S. 281.* (1900) 2 Browne's Reports 383.
Pir Mchamed v. Kadhibhoy
It is true that the deed we have to construe is not in the same terms as thedeed which that learned judge considered in Appuhamy v. SandoraBanda l, but the ratio decidendi of that case is clearly applicable.
I would therefore hold that the land gifted on the deed PI did notbecome the property of the Vihare, and that the plaintiff as the trusteeof the Vihare is not entitled to the relief he seeks.
The declaration of title to a § share of the field in dispute, and the ordersfor damages and costs, made in favour of the plaintiff-respondent, areset aside. The 1st and 2nd defendants-appellants are entitled to theircosts against the plaintiff-respondent in both Courts.
Pulle, J.—I agree.
W. M. SURASENA et al., Appellants, and K. REWATHA THERO, Respondent