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Present ; Wood Benton C.J. and De Sampayo J.WIMALASUBIYA v. WICKRAMARATNA.
325—D. G, Matara, 5,035.
Buddhist temple—Acquisition of title to land by prescription—Proclama-tion of September 18,1819—Buddhist Temporalities Ordinance,
1905, s. 41.
The prohibition against the acquisition of property by a Buddhisttemplewithoutthe license of the Governor does not prevent a
Buddhist temple from acquiring title by prescription to a land.
The Proclamation of September 18,1819, was confined to the
f HE facts are set out in the judgment of De Sampayo J.
Bawa, K.C., and M, W. H, de SUva, for the plaintiff, appellant.Keuneman and Drieberg, for the defendant, respondent.
Cut, adv, vult.
November 21, 1917. Wood Benton C.J.—
I do not think that'we are in a position in this case to differ fromthe learned District Judge on the facts. No doubt the legal titleis in the plaintiff, and it is too late .to raise for the first time now inappeal the point taken by the defendant’s counsel that he has not
*(1011) 15 N, L. R, 120,
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put in evidence, or proved the existence of, the decree in the mortgageaction. The existence of that decree was assumed in the secondissue. But in spite of the plaintiff's paper title, there is evidenceof long possession of lot B on behalf of the temple. That evidenceis corroborated by the entry in the commutation register (D 3), andit is not countered by proof of any veiy definite acts of ownershipon the part of the plaintiff’s testator or his predecessor in title.
The only other point in the case is that, under the concludingparagraph of the Proclamation of September 18, 1819, a donationor bequest to a temple, unless licensed in the'manner prescribedby the Proclamation, is absolutely prohibited, and is incapableof transmitting title to the donee. To that contention the answerappears to me to be that, even if the Proclamation of September 18,1819, were still in force, and had not, as 1 think it has, been impliedlyrepealed by section 41 of the Buddhist Temporalities Ordinance,1905,1 its operation was confined to the Kandyan Provinces,2section 41 of the Ordinance of 1905 does not prohibit a temple fromacquiring, without license, title by prescription.'1.
I would dismiss the appeal, with costs.
De Sampayo J.—
The plaintiff claims a declaration of title to the land marked B inthe survey plan filed of record. Both the lots A and B in that planformed one land, and belonged to Dona Cornelia Tillekeratne. Shemortgaged the entire land in 1879 to one Mathes Balasuriya, butpending the mortgage she transferred lot B by way of gift tothe Buddhist temple called Sirinivasa at Aturaliya, of which thedefendant is the present trustee under the Buddhist TemporalitiesOrdinance, No. 8 of 1905. Mathes Balasuriya sued on the mortgagebond, and having obtained a decree he had the entire land sold andpurchased it himself in 1884. The plaintiff who claims the landunder Mathes Balasuriya has good documentary title, but theDistrict Judge has dismissed the plaintiff’s action on the groundthat tiie temple has .acquired title to lot B by prescription. Theplaintiff appeals.
The finding of the District Judge as to prescriptive possession issupported by the evidence, and I do not think there is. any goodreason for interfering on that question of fact. But Mr. Bawa, forthe plaintiff, contends that as Buddhist temples sure prohibited fromacquiring property without the license of the Governor, it was notpossible for the temple to prescribe for the. land* Section 41 of the
^ No. 8 of 1905.
* See the decision of the Full Court in Oodinho v. Koning (1846) Bern.1848-55, page 132, where the fact is mentioned that an Ordinance (No. 2 of 1840)for extending the provisions of the Proclamation to the whole Island was disallowed'by the Grown.
3 SUva v. Fonseka. (1912 15 N. L. B. 239>
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Ds Sampayo J.
Buddhist Temporalities Ordinance, No. 8 of 1905, makes it unlaw-ful for any temple to “ acquire ” any immovable property of thevalue of Bs. 50 or upwards. The word “ acquire” in,the contextmeans acquisition by the modes mentioned in the next sentence ofthat section, ,viz., by “ devise, grant, or conveyance,” or other'investive act whereby ah individual transfers to another, and doesnot include the species of acquisition by prescription, which conferstitle by operation of law. This point is covered by the authority ofSilva v. Fonseka-1 It is impossible, in fact, to conceive how andat what stage the license of the Governor can or will be grantedfor possessing property deliberately against the true owner. Thisnaturally brings me to a further argument based on the Proclama-tion of September 18, 1819. That Proclamation, after declaring itunlawful to make a donation or a bequest of any land to any templewithout previously receiving a license in writing to make suchdonation or bequest, provides that any land gifted or bequeathedcontrary to that order shall not be considered as the property ofthe temple, but shall be given to the nearest heir of the person whodisobeyed the order, provided he sues for the same within a certaintime, " or else the land shall become forfeited to the Crown.”Mr. Bawa’s argument is that acquisition by prescription of a landso liable to forfeiture is not available. This contention cannot beentertained, for several reasons. I do not see, in the first place,why the provision as to forfeiture in favour of the Crown preventsprescription from taking effect in the usual way. Moreover, theProclamation? makes it clear that it is only acquisition by donationor bequest for which a license is required, and which, without suchlicense, is prohibited. All other modes, c.g., purchase or exchange,are beyond the scope of the Proclamation. It is also doubtfulwhether the Proclamation in respect of this provision is in operationnow. Section 41 of the Buddhist Temporalities Ordinance, whichcontains a complete provision relating to acquisition of lands bytemples and has no reference to the Crown, appears to me to havetacitly repealed the provisions of the Proclamation on the samesubject. Under that section there will be no forfeiture to theCrown. Apart from this, it is to be noted that the Proclamationis applicable to the Kandyan Provinces only. It followed upon theProclamation of November 21, 1818, which was enacted after theK,andyan rebellion of that year, and to which the preamble expresslyrefers. The very provision in question is directed against donationsand bequests by any inhabitant of “ these provinces, ” meaningthereby the Kandyan Provinces which had just before been annexedto the British Crown. It is clear that if the Proclamation is still inOperation with regard to mortmain, it is so only in the KandyanProvinces, and that all other parts of the Island—this case concernsthe Matara District—are governed by section 41 of the Buddhist.
* (1912) IS N. L. S. 239.
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Temporalities Ordinance. In Qodinho v. Koning1 the Proclamationis even called the “ Kandyan Proclamation.” and the judgment ofthe Court also points out that the Ordinance No. 2 of 1840t whichwas intended to extend the law of mortmain generally into theIsland in regard to all dispositions of land for religious or charitablepurposes, was disallowed by Her Majesty.
I think that the finding of the District Judge as to prescriptionremains unaffected by the legal argument, and I would dismiss theappeal, with costs.
– Appeal dismissed.
WIMALASURIYA v. WICKRAMARATNA