Sri Lanka Law Reports
[1983J1 Sri LR.
. GANGULWIT1GAMA PANNALOKA THERO
v.COLOMBO SAljtANANKARA THERO AND OTHERS
SHARVANANDA, J., RATWATTE, J.,
AND COLIN-THOME, J„,
S.C.NO. 17/81, C„A. NO. 353/72(F)D.C. COLOMBO NO. 11150/26SEPTEMBER 9TH 1982,
OCTOBER 14TH & 15TH, 1982.
Succession to the Viharadhipathiship ot a Temple – Section4(1) and (2) of the Buddhist Temporalities Ordinance – Theplea of aresjudicatae from both parties – Section 24. 3334i 207, 406(2), of the Civil Procedure Code –
The plaintiff-Appellant claimed on two grounds,to the Viharadhipathiship of the tempJ e called"Wijewdrdana Aramaya" situated at Skinner 'sKotahena after the death of its former Vinaradhipa-thi (Gangulwitigama Saranatissa Thero)He claimedthat according to a deed No. 1125 Of 27.9.1958 (P6)which created a line of succession to the Viharad-hipathiship and that he being the senior pupil ofthe said Saranatissa Thero, he was the lawful Viha-radpipathi of the said temple.
The defendant-respondent denied the plain-tiff's claims and in turn claimed that he is entit-led to the. incumbency of the said temple on adifferent writing dated 14.9.1959 (D2) and that he
SCPannaloka Them v. Colombo Saranankara Tboro333. .
is a senior pupil of the said Saranatissa Thero.
The trial judge held against the plaintiff'sclaim, on deed (P6) , which was affirmed by theCourt of Appeal. On the issue of seniority thetrial judge concluded that the plaintiff was thesenior pupil of the said Saranatissa Thero. Thoughthe Court of Appeal affirmed this, it however, heldagainst the trial Judge's decision that the writingD2 is not the act and deed of Saranatissa Thero andthat it conveyed no right to the incumbency of thetemple to the defendant. The claim in reconventionof the defendant was upheld and the defendant wasdeclared the Viharadhipathi of the said temple.
The main issue was res judicata. Both partiescontended that the other party was precluded by theearlier judgment and decree in case D.C. Colombo9357/1. from maintaining his claim to the incumbency
of the fceaple. The trial judge upheld the argumentof res judicata set up by both parties. Bathparties appealed on this and the Court of Appealset aside the trial.judges decisions.
.(1) That though the plaintiff's claim to the•Viharadhipathiship of the temple based ondeed P€ cannot be sustained, on the basisof the dstes and names of the robing andordaining tutors, he is the* senior pupil of1st. Saranatissa Naha Thero.
That the trial judges' observation that"all the circumstances confirm the suspi-cious and questionable character of thewriting D 2" is, in the perspective of theease, apt and well-founded. The Court ofAppeal ■ was not justif ied, in reversing thefinding respecting the validity and genui-nesa of the document D 2 by the trialjudge.
Sri Lanka Law Reports
 1 Sri LR.
(3) That the District -Judge misdirected himselfin law in holding that the judgment and decreein case No. 9357/L operated as res judicataagainst the plaintiff and precluded him frommaintaining tills action. The facta probanda toestablish the ingredients of the cause ofaction in each case are different and therights claimed in the two actions are not thesame. The Court of Appeal is in error inholding that what the defendant had pleaded inhis answer in case No. 9357/L was by way ofdefence and not by way of counter claim; – Sincethere had been no adjudication no rule of resjudicata estops the defendant from setting upthe plea as a defence. The defendant is barredfrom maintaining his present claim in recon-wention to have himself declared Viha-radbipathi of the temple# but he is not pre-cluded or estopped from resisting or defendingplaintiff's claim on the grounds which supporthis claim to viharadhipatbiship.
. (4) That the plaintiff-iappellant is the lawfulviharadhipsthi of the said “WijayawardensAramaya" entitled as controlling Vikaradhi–pathi of the said temple and its temporalities*to control* administer and manage the same.
Cases referred to :
Somaratna vs. Jinaratne (1941) 42 N.L.R. 361
Chand Koer vs. Pratab Singh, 16 Cal,. 98 (P.C.)
Samichi vs. Pieris (1913) 16 N.L.R. 257 at 261
Ranhoti vs. Singho (1935) 14 C.L. Rec. 91
Krishna vs. Thevarajah (1959) 62 N.L.R. 511
6* Punnirulapillai vs. Western India Oil
Distribution Co,.Ltd.t A.I.R. 1948 Madras 270
Jayawardena vs. Aranolishamy» 69 N.L.R. 49
Fernando vs. Perera (1923) 25 N.L.R. 197
Radheyshiam vs. Nazir Khan A.I.R. 1937 Oudh 394
Dhatmajoti vs. Sobita (1913) 16 N.L.R. 408
■ SC Pannaloka Them v. Colombo Saranankara TheroUSharvananda>. JX 335: .
Piyatissa Tenmnanse vs. Saranapala ,Tervnnanse(1938) 40 ! N.L.R. 262
APPEAL from an order of the Court of Appeal. '
E. Amerasinghe, S.A, , with L.C. Seneyiratn&y*Lakshman Peiris Mid Miss 1). Quniyangoda . forplaintiff- appellant J
H. L. de Silva,S,_A. with S. H&henthiran tot .
March 24, 1983.Qir.adv.vult.
The Plaintiff-Appellant instituted thisaction on 23rd August 1963 against the Defendant-Respondent praying inter alia for a declarationthat the Plaintiff-Appellant is the lawfulViharahipathi of the temple called 'WijayawardanaAramaya' situated at Skinner's Road North, Kotahena©ed that as the controlling Viharadhipathi of thesaid temple and its temporalities he is entitled tocontrol and administer the same.
It is admitted that the founder and the firstViharadhipathi of this temple was GangulvitigamaSaranatissa Thero and that the temple is exemptedfrom the operation of section 4(1) of the BuddhistTemporalities Ordinance, but is governed by section4(2). The said G^ngulwitigama Saranatissa MahaThero died on the 27th August 1960. This dispute-that has arisen in this case is in respect of thesuccession to the Viharadhipathiship of the saidtemple with the death of the said Saranatissa Thero.
The Plaintiff-Appellant based his claim tothe Viharadhipathiship on two grounds. He. statedthat according to deed No. 1126 dated 27.9.1958(P6) the said Saranatissa Maha Thero created a lineof succession to the Viharadhipathiship of the saidtemple, according to the rule known as 'GnathisisyaParamparawa' and appointed the Plaintiff-Appellant,
.336Sri Lanka Law Reports[19S3J1 Sri UL
who is a blood relative o£ the said SaranatissaMaha Thero to succeed him as Viharadhipathi. ThePlaintiff claimed that the said deed F6 constitutes3 valid nomination and appointment of the Plaintiffto the office of Viharadhipathi of the said templein succession to the said Saranatissa Maha Theroand that he was therefore a lawful Viharadhipathiof the said Wijewardena Aramaya. The Plaintifffurther claimed that, in any event, he:' being thesenior pupil of Saranatissa Maha Thero he hadsucceeded the latter priest as Viharadhipathi ofthe said temple.
The Defendant-Respondent denied theplaintiff's claim to the Viharadhipathiship of thesaid temple and in turn claimed a declaration that
he is entitled to the incumbency of the said templeon the following grounds
That he is a senior pupil of SaranatissaMaha Thero and is thus the lawful Viharahdi-pathi of this temple.
That the said Saranatissa Maha ' There ' had.by writing dated 14.9.1959 (D2) nominated andappointed him to succeed to the incumbency ofthis temple on his death; the defendant had byvirtue of the said document D2 , succeeded asthe lawful Viharadhipathi of this temple.
That, on the day following " the nominationof Saranatissa Maha Thero, the Sanga Sabhatogether with the Plaintiff-Appellant and otherpupils of the deceased priest elected andnominated the Defendant as the Viharadhipathi.of this temple.
The Plaintiff-Appellant has by his conductand consent to the said election and/or nomi-nation renounced and/or abandoned any right ofthe plaintiff to the incumbency and that the
SC Panrtaloka Thero v. Colombo Saranankara Them I (Sharvananda, J.) 337
plaintiff was thereby estopped from making thepresent claim and cannot have and maintain thisaction.
The Plaintiff-Appellant by his replicationdenied that the defendant was a senior pupil ofSaranatissa Maha There or that the writing dated14.9.1959 – D2 was the act and deed of the deceasedSaranatissa Maha Thero. He also denied (a) that theSanga Sabha nominated or elected the Defendant -Resopndent as the Viharadhipathi or (b) that thePlaintiff or other pupils of the said SaranatissaMaha Thero at any time acquiesced in or consentedto the appointment of the Defendant as an incumbentor (c) that he renounced or abandoned any of hisrights to the incumbency of this temple as allegedby the Defendant.
The trial Judge has held against Plaintiff'sclaim based on deed No. 1125 dated 27.9.1958 to theViharadhipathiship of the temple. This finding hasbeen affirmed by the Court of Appeal. I am inagreement with the conclusion of the Courts belowthat the Plaintiff's claim to Viharadhipathiship ofthe temple based on deed P6 cannot be sustained.
On rhd issue of seniority, the trial Judgehas the evidence of the Plaintiff whichwas supported by the 'Upasampada" Register (P2) anddocuments P6 and P21, that he is the. senior pupilof Rev. Saranatissa Maha Thero ' by robing andordination. The Defendant was a pupil ofSaranatissa Maha Thero only by ordination. Underthe Buddhist Ecclesiastical law pupilage isconferred by robing or by ordination and a robedpupil is entitled to succeed to the • incumbency ofthe tutor, whether he has been ordained or not.'Robing precedes ordination and the pupil who is thefirst to be robed is the senior pupil, who isentitled to succeed his predecessor. ( Senaratnevs. Jinaratne^i 1) . On the basis of the dates and
 1 Sri LH
.. 338Sri Lanka Law Reports
the names of the robing and ordaining tutors givenin the declarations PI, P2 and PS, the DistrictJudge concluded that the Plaintiff was the seniorpupil of Saranatissa Maha There. The Court ofAppeal has affirmed this finding. No valid reasonto differ from this conclusion has heen advancedand I hold that the Plaintiff is the senior pupilof Eev. Saranatissa Maha There.
The evidence and contention of the Defendantthat he was appointed as Viharadhipathi of thetemple by the Sanga Saba at a meeting held on theday after the cremation of Saranatissa Maha Theroand that the Plaintiff had consented to andacquiesced in his election ha&j been rejected by thetrial Judge. On the evidence on record the findingsof the trial Judge on this issue cannot be.faulted.The main argument in this appeal related to theissue of res judicata. Both Plaintiff and Defendantcontended that the other party was precluded by theearlier Judgment end Decree in case 3.C. Colombo9357/L from maintaining his claim to the incumbencyof the temple. In the earlier action. 9357/Linstituted on 14th of December I960, thePlaintiff-Appellant, along with seven otherPlaintiffs had sued this Defendant for adeclaration of title to the said land on which thetemple was built, the buildings, the furniture andother articles within the buildings on the land andfor ejectment of the Defendant .priest and fordamages, on the basis that the subject' matter was'pudgalika property' of Rev. Saranatissa Maha Theroand that he had gifted the property to thePlaintiffs by Deed No. 1125 dated 27th September1958 (PI) subject to the terms thereof. In thataction the Defendant had filed answer stating thatthe said land and premises constituted 'sangika'property and that the deed F6 was invalid and hadno effect in law. The Defendant has further statedthat he was the senior pupil of Rev. SaranatissaMaha Thero and had as such succeeded to the
SC PantiSloka Them v. Colombo Saranankara Tfot6^Shrifananiiat 239
Viharadhipathiship of the temple on the death ofSaranatissa Maha Thero and farther prayed far adeclaration that he was the lawful Viharadhipathiof the said temple and entitled to the premises.The said case No.9357/L went to trial on elevenissues all touching on Plaintiff's claim. TheDefendant-Respondent raised the decisive issuewhether the said temple property was Sangikaproperty and if so whether the plaintiff couldmaintain his action. The defendant respondent,though in his answer, had by way of a claim inrecenventien prayed for a declaration that he wasthe lawful Viharadhipathi of the temple, did notraise or put in issue his claim whether he was thesenior pupil and if so he had succeeded the saidSaranatissa Maha Thero as Viharadhipathi of theteaple * By its judgment dated 3rd June 1963 thetrial Court held that the property was Sangikaproperty and dismissed the plaintiffs’ action incase No.9357/L, This judgment was affirmed in ap-peal on 20th July 1956 by the Supreme Court.
On the basts of the judgment and decree incase No. 935?/I, the Defendant-Respondent contendsthat due to the failure of the Plaintiff to claimin case No. 9357/L that he was the senior pupil ofSaranatissa Thero and was the lawful Viharadhipathiof the temple, the judgment and decree in the saidcase operated as res judicata against the plaintiffand that sections 33, 24 and 207. of the CivilProcedure Code taken together barred him frommaking the present claim. On the other hand thePlaintiff-Appellant contends, on the basis of thepleadings judgments and decree in case No. 9357/L,that though the defendant had pleaded in case No.9357/L that he was the senior pupil of Rev.Saranatissa Maha Thero and had become the lawfulViharadhipathi of the temple on the death ofSaranatissa Maha Thero and had prayed for adeclaration that he was the lawful Viharadhipathiof this temple, he had failed to put these matters
340 .Sri Lanka Law Reports[1983J1 Sri LR.
in issue in case No.9357/L and had thereby
abandoned his claim, and was barred by theprovisions of section 406(2) of the Civil
Procedure Code from agitating the said issues inthis case and make a claim that he was the seniorpupil of Saranatissa Maha Thero and is the lawfulViharodhipathi of the said temple.
The trial Judge upheld the argument of resjudicata set up by both parties and dismissed theplaintiff's action and the claim in reconvention ofthe defendant. Both parties appealed from thejudgment- of the District Judge dismissing theirclaims to the Court of Appeal. The Court of Appealby its judgment dated 22.11.1979 set aside theDistrict Judge's determination on the pleas of resjudicata raised by both parties to _the ease andheld that the judgment and decree in case No.93S7/L did not operate as res judicata or as anestoppel against the claims of the Plaintiff andDefendant in this case.
Though the Court of Appeal affirmed thefindings of the District Judge that the Plaintiffwas a senior pupil of Rev. Saranatissa Maha Theroand that he had not abandoned the claim forincumbency, it however held that Rev. SaranatissaMaha Thero had by writing dated 14.9.1959 (D2JInominated and appointed the Defendant Respondent to .the incumbency of the temple and temporalities andit set aside the findings of the trial judge thatthe said writing D2 was not the act and deed ofSaranatissa Maha Thero.Inthe resultthe
plaintiff's action has been dismissed with costsand the claim in reconvention of the defendant hasbeen upheld and the defendant respondent declaredthe Viharadhipathi ofthetemple andits
temporalities by the Court of Appeal. The Plaintiffhas preferred this appeal against the judgment ofthe Court of Appeal.
~St. AwwwMka Thero v. Cokjmbo Saranankara Than '.(Sfuavanamta,3<3
Iii my view the District Judge misdirectedMnself in law in holding that the judgment anddecree in case No. 93S7/L operated as res judicataagainst the Plaintiff and precluded him frommaintaining this action. Hie Plaintiff-Appellanthad along with seven others claimed in action No.9357/L title to the land on which the temple isbuilt and the buildings thereon on the footing thatthey constituted 'pudgalika property* of Sara-satissa Maha Thero which were actually disposed ofby him by Deed No. 1125 – P6 in their favour andthat the entirety of the said property had devolvedon them according to P6. On the other hand theclaim of the Plaintiff – Appellant in this actionis founded on the premise that the temple and itstemporalities constitute 'sangika property* andthat as senior pupil of the last incumbent he hassucceeded as the Viharadhipathi. In this action thePliantif£ prays for a declaration that he is thelawful Viharadhipathi of the temple and entitled ascontrolling Viharadhipathi of the said temple andtemporalities, to control and administer the same.Hie District Judge has fallen into the error ofdssitt&ilng that the cause of action in, the presentcase is identical with the cause of action in caseNo. 9357/L . The cause of action pleaded in theearlier case No. 9357/L was defendant's denial ofthe plaintiff's title to the land and premisesdescribed in the schedule to the plaint in thecase, namely the land on which the ..temple is builtwith the buildings standing thereon together withthe furniture and other articles on the saidbuilding. The cause of action pleaded by plaintiffin the present action is defendant's denial ofplaintiff's status and office of Viharadhipathi ofthe temple. The facta probanda to establish theingredients of the cause of action in each case aredifferent and the rights claimed in the two actions-are not the same. The earlier action is based onownership of the property on which the temple isbuilt, while the present action seeks to establish
Srf Lanka Law Reports * 1 Sri LR.
entitlement to the office of the Viharadhipathiwhich carries with it the right to . the possessionand control of the temple and its temporalities.The rights claimed are different in nature andcontext, the grounds of title to the respectiverights are different and the causes of action aredistinct. True that the defendant had in theearlier action resisted the plaintiff's claim onthe ground that the land and temple are ' sangikaproperty' and that he was the lawful Viharadhipathiof the temple and entitled, as such to be inpossession of the said premises and temple. But, asobserved by Lord Watson in Chand Koer vs. PratahSingh» (2) "the cause of action has no relationwhatever to the defence which may be set up by thedefendant, nor does it depend upon the character ofthe relief prayed for by the plaintiff. It refersentirely to the grounds set forth in the plaint asthe cause of action or in other words, to the mediaupon which the plaintiff asks the Court to arriveat a conclusion fei his favour? This principle hasbeen accepted and .adopted by our Courts (VideSamichi vs, Peiris (3) , Rankoti vs. Singke^4),Krishna vs. Thevarajah (5). The plaintiff, thoughcould have set up, was not. bound to have set up,in the ectrlier action No. 9357/L, his rights to theincumbency of the temple bn the ground that he wasthe senior pupil of Rev. Saranatissa Maha Thero;. aperson is not bound to sue on an alternative causeof action; his failure to do so . in the formeraction does not bar the present action fordeclaration that as the senior pupil of SaranatissaMaha Thero, he is the lawful Vihahradhipathi of thetemple in suit. The bar does not operate when thecause of action in the subsequent suit is not thesame as in the previous action. The defendant'splea of res judicata based on sections. .34 and 207of the Civil Procedure Code is misconceived for,what would be res judicata in terms of thosesections are rights and reliefs which could haVebeen claimed or put in issue between the parties
SC Pannaloka Them v. Colombo Saranankara Them (Sfiarvarumda, J.)l 343.4-^^:f
upon the cause of action for which action No.9357/L was brought. Further' the Plaintiff in thepresent case could not have joined in action No.9357/L his personal claim to the Viharadhipathishipof the temple with the claims of other plaintiffsin that action, to the land on which the temple wasbuilt which was tfye subject matter of that action ■-there would have been misjoinder of parties andcauses of action.
I shall now deal with the plaintiff'scontention that since the defendant had failed toput in issue in case No. 9357/L his claim to bedeclared the senior pupil of Rev. Saranatissa, thepresent Viharadhipathi of the temple, the judgmentand decree in the said case No. 9357/L operate asres judicata in respect of the said claim ( issses7 and 8 raised by the plaintiff ).
In my view no question of res judicata isinvolved in respect of the defendant's claims; forthere has been no adjudication on the said claiessin the earlier action; the claims were not put inissue. Couu^ol for the plaintiff however contendedthat what precludes the defendant from maintaininghis claim in this action is not any rule of resjudicata but the statutory bar created by section406(2) of the Civl Procedure Code. He urged thatthe defendant had in his answer in case No. .9357/Lnot only denied and resisted the plaintiff's claimbut in fact had made a claim in reconvention thathe be declared the lawful Viharadhipathi of thetemple in suit and entitled to the premises. Hesubmitted that since the defendant had howeverrefrained from framing any issue with respect tohis claim in case No. 9357/L, the defendant is con-sequently precluded by the said provisions ofsection 406(2) from reagitating that claim in thepresent action.
£ri tents tm» Rtipcrts
41983J2 Sri IM
Counsel submitted that where a defendant,matoes a claim in reconvention, he is presumed to bein the position of plaintiff in so far as the saidclaim for reconvention is concerned. He based hissubmission on section 75(E) of the Civil ProcedureCode. The Defendant having put forward his claim inreconvention was bound to put in issue and hawedecided all matters an which he founded his clad®in reconvention. The section provides that a claimin reconvention (duly; set up in the answer has thesame effect as a plaint in a cross action. Counselcited in support of his submission the case ofPmairnla^illi&i vs. Westers India Oil OistritmtmmCo. Ltdir (6) where it was held that since a defen-dant who prefers a counter claim is in the positionof a plaintiff in respect of his claim in recoss-vention, Order 23 Rule 1(3.) of the Indian CivilProcedure Code which corresponds to section 406(2)of our Civil Procedure Code would operate topreclude him from bringing a fresh action for thesome matter, the subject of his claim in recca-vention if he withdraws or abandons his claim iareconventioa without the permission of Court.
The Court of Appeal has said that the defendanthad in case No. 9357/L only pleaded a defence andnot set up a claim in reconvention and has reasonedthat sections 34, 207 and 406 of the CivilProcedure Code apply in the Case of a defendantonly when a claim in reconvention is made by thedefendant and not where the defendant has onlypleaded to the Plaint. In my view the Court ofAppeal is in error in holding that what thedefendant had pleaded in his answer in case No.9357/L was by way of defence and not by way ofcounter claim. In his answer in that ease thedefendant had in paragraph 8 not only pleaded fa?way of defence that he was the senior pupil of Rev.Saxanatissa Maha Thero and the lawful Viharadhd-pathi of the said temple and entitled to thepremises and place of worship, but had in his
■SC ‘Psnrialoka Them r. Colombo Suranankara Them .(Sharvanamta, JJ 365 '
prayer Asked not only that the plaintiff's actionbe dismissed but that he ( the defendant) bedeclared the lawful Viharadhipathi of the templeand entitled to the said premises. The defendant .had thus sought not only -to justify his possessionof the temple and the premises on the ground thathe is the lawful Viharadhipathi of the temple, buthad proceeded to pray for a declaration that he isthe lawful Viharadhipathi and entitled to thepremises in suit, on the grounds set out in thebody of the answer. The plaintiff, in fact hadfiled his replication dated 4th May 1961, denyingdefendant's claim in recooweatio* and prayed forits dismissal.
In my view the failure of the defendant incase No. 9357/1 to put in issue his claim to theincumbency amounts to an abandonment of his rlaimby the defendant. The Court had not granted h W.permission for such abandonment. Section 406(2)provides that if the plaintiff withdraws from theaction or abandons part of his claim without thepermission of Court, he shall be precluded frombringing a fresh actios for the same matter or isae&pect of the same part. The 'matter' referred to1-p. section 406(2) does not mean the property inrespect of which an action is brought. It means thecause of action in respect of which the action isbrought. It includes the facts -and circumstancesupon which the right to relief claimed by the party -who withdraws or abandons his 'claim depends.
( Jayavardena vs. Aramolishamy >),(7). As stated
earlier, this bar to a fresh suit in respect of thesubject matter of the former action which had beenwithdrawn without the permission of Court is notbased on the principle of res judicata but isattributable to the provision enacted in section406(2). The stringency of this section is such,that the fact that an action was withdrawn beforethe service of summons does not take the case outof the provisions of section 406; an action is
Sri Lanka Law Reports
 J Sri LR.
instituted when a plaint is presented. Fernando vs.Perera (8).
On the above view of the matter I agree withthe contention of Counsel for the plaintiff thatthe defendant in the present action is precluded bythe statutory bar.created by section 406(2) of theCivil Procedure Code from resurrecting his claim inreconvention viz. that he be declared entitled tothe incumbency ox the temple on the grounds whichcould have been put in issue in the earlier action9357/L by way of fresh action or fresh claim inreconvention agalnt the plaintiff.
But the defendant's claim is not irrelevantor purposeless in plaintiff's present action. Sincethere had been no adjudication, no -rule of resjudicata estops the defendant from setting up aplea as the defence. Section 406(2) does notextinguish a party's right; it only bars hisremedy; it does not operate to preclude the partyfrom resisting the plaintiff's Claim on the basisof the right in which he founded his claim inreconvention. The prohibition enacted by section406(2) of the Civil Procedure Code applies toactions and not to defences. Where a defendantraises a plea of set off but withdraws it withoutthe permission of the Court, he will not beprecluded from raising the same plea by way of adefence in a subsequent suit against him… Radheyshiam vs. Nazir Khan (9).
On the above analysis of the question of resjudicata or estoppel by statutory bar, raised bythe parties, 1 am of the view that the defendant is. barred from maintaining his. present claim inreconvention to have himself declared Viharadhi-pathi of the. temple, but he is not precluded orestopped from resisting or defending plaintiff'sclaim on the grounds which support his claim toVibaradhipathiship. For the purpose of his defence
SC Pannaloka Them v. Colombo Saranankara Thero (Sharvananda, J.) 347
the defendant can reagitate the issue of Viharadhi-pathiship which he abandoned in action No. 9357/L.Hence if the defendant establishes in this caseeither that he is the senior pupil of SaranatissaMaha Thero or that he had been appointed andnominated by writing dated 14.9.1953 – D2 bySaranatissa Maha Thero to succeed him as incumbentof the temple, though the defendant will not beentitled to any declaration that he is the lawfulincumbent of the temple he can negate theplaintiff's claim and have the plaintiff's actiondismissed.
Finally there is the defence of the defendantthat Saranatissa Maha Thero appointed the defendantby writing dated 14th September 1959 marked D2, tosucceed him as Viharadhipathi of the temple. Thedefendant is admittedly a pupil of Saranatissa MahaThero, though not the senior pupil, A Vihara-dhipathi has the right to nominate his successorfrom amongst his pupils, even a junior pupil overthe head of the senior pupil. Dhammajothi vs.Sobitha.(10), Pivatissa Terurmanse vs, SaranapalaTerunnanse (U). The Plaintiff has challenged thegenuineness of the said writing and has averredthat it is not the act and deed of the deceasedSaranatissa Thero. The burden of establishing' thatthe writing D2 was the act and deed of the deceasedlay on the defendant. The trial. Judge has, on theanalysis of the evidence and the probabilities ofthe case, held that the writing D2 "is not the actand deed of Saranatissa Thero and that it conveyedno right to the incumbency of the temple to thedefendant. The Court of Appeal had disagreed withthe finding of the trial Judge and has held thatthe writing D2 is a valid and authentic documentand that it constitutes a nomination of thedefendant to succeed the writer to the incumbencyof the temple and its temporalities. Counsel forthe plaintiff-appellant has relevantly urged thatthe Court of Appeal was not justified in reversing
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6be trial Judge's finding of primary fact. Theqoesti-en whether D2 is the .act and deed of thedeceased is essentially a question of fact and aCoart sitting in appeal over the judgment of atrial Judge should be slow to interfere with thefindings ef fact reached by a trial Judge, unlessit is satisfied that such finding is against theweight of evidence or that no person actingjudicially and properly instructed as to therelevant law could have come to such conclusion.
Apart from the signature appearing in D2which, according to the evidence and report of thehandwriting expert was that of Rev. Saranatissa,the body of the document is not in his handwriting;
it is typed. The Court of Appeal has observed that" there is complete absence of any suspiciousfeatures on the face of the document itself." Iregret that I cannot share this perception of thedocument. I note an unexplained space between thebody of the document and the signature. Thecircumstances in which, the document D2 was allegedto have been executed and the probabilities of thecase further caution against accepting it at itsface value.
According to the defendant, the deceasedpriest had, on his return from the funeral of hisbrother from Ratnapura on 12.9.1959, that verynight come to his room at about 12.30 a.m. andindicated to him that he was going " to devise theViharadhipathiship of the temple to the defendant'and on the following night at about 12.30 a.m. hadbrought the typed document D2 and read it to himand Rev. Walane Ananda and handed over the documentto Rev. Walane Ananda for safe keeping, a littleafter midnight on that day. Defendant at one stagesaid that he identified Rev. Saranatissa’ssignature on D2, but later, in cress examinationtried to make eut that the priest signed thedocument in his presence. The trial Judge has quite
.SC PantfaSoka Thero v. Cotombo Saranankara therolfStrarmnarate, A) 349
1.'V- – –:1
yastifiabl-y pointed out that there aace severalcimcu nstances relating to the execution of theD2, which are suspicious and which ndlhrtate igainst its acceptance. I agree with theobserratios of the ferial Judge that " it seems mostunlik ily that the Nayake priest could have come tothe defendant's room ‘at, about 12.30 a.m. on the
very night that he returned from Ratnapura in order :to tell the defendant that he had decided to changehis mind in regard to the deed of gift of theKotahena tenpie to the plaintiff. Moreover onewould ordinarily have expected the Nayake priest tohave summoned the junior priest to his room if hswished to speak to him. The defendant's evidencethat he came again the following night at about thesame time and pead M to his and Eev.Walanewhe had been got down by the defendant m thftinfractions e£ the Nayake priest seuad -tesartificial to be believed – D2 is a typed document'sthere is no typewriter in the temple, it would havebeen typed elsewhere. St mast necessarily have beendone on the 13th, since the document was handedover to Rev. Ananda for safe keeping a little aftermidnight on that day, but the document strangelybears the date of 14th September." I agree with theDistrict Judge that the circumstances surroundingthe execution of the document D2 as deposed to bythe defendant are highly suspicious and question-able. It is a telling circumstance that though thedefendant was well aware of the execution and.existence of the document D2, "by whichthe
incumbency was devised to him, he had not, in theearlier case No. 9357/L based his claim to theincumbency on the writing D2 dated 14.9.59, nor wasthe said writing referred to in the defendant'spleadings in that case. Diis document surfaced onlyin the defendant's list of documents dated 5th July1961. As the trial Judge has quite rightly observed"there is no reason why the defendant should haveconcealed the existence of D2, if it was a -genuineand untainted document until after the trial in the
 1 Sri LR.
. 350 .Sri Lanka Law Reports
earlier case commenced." Further the defendant hadnot produced this document before the Sanga Sabawhich he said was convened immediately after thefuneral at Ratnapura in order to decide thesuccession to the Viharadhipathiship of the twotemples at Pelmadulla and Kotahena. The defendantdid not produce D2 even when the plaintiff came tothe Kotahena temple to assert his rights to theViharadhipathiship, shortly after the funeral ofRev. Saranatissa Maha Thero. He has also not men-tioned the existence of the writing in hiscomplaint to the Police dated 18.9.60 – D27. Thetrial Judge's observation " all these circumstancesconfirm the suspicious and questionable characterof the writing D2'' is, in the perspective of thecase, apt and well-founded.
A writing such as D2 by which an incumbent ofa Buddhist temple nominates a person to succeed himon his death is in the nature of a testamentarydisposition. Where such writing is relied on tosupport nomination to incumbency the burden lies onthe party who relies on such document to establishto the satisfaction of Court that the document isthe act and deed of the deceased and if circum-stances exist which arouse the suspicion of theCourt, as to the genuineness of the documentor asto the circumstances in which the document isalleged to have been executed, the Court should bevigilant and jealous in examining the evidence insupport of the writing which it should not acceptand act upon unless.the suspicion is removed and itis judicially satisfied, as in the case of a LastWill, that the writing represents the truedisposition of the deceased.
In my view the very legitimate suspicionsrespecting the execution of the . document D2, andits belated disclosure by defendant, taken toge-ther, conduce to a high degree of improbability
SC Pannaloka Thero v. Colombo Saranankara Them (Sharvananda, d.f 351
that the writing is authentic. The acceptance ofthe authenticity of the writing depends on defen-dant's evidence. It is to be noted that thedefendants evidence on a number of matters hadrightly been rejected by the District Judge. In thecircumstances one cannot, with confidence act onthe defendant's evidence and accept the document asthe act and deed of the deceased priest which itpurports to be.
The Court of Appeal was not justified inraversing the finding respecting, the . validity andgenuineness of the document D2 by the trial Judge.
I therefore set aside the judgment of theCourt of Appeal dismissing the plaintiffs actionand allowing the defendant's claim in reconvention.I also set aside the judgment of the District Judgedismissing the plaintiff's action with costs. Iallow the appeal of the plaintiff-appellant withcosts and enter judgment for the plaintiff-appellant declaring him the lawful Viharadhipathiof the yijcBardaaa Aramayae Skinner's Road North,Kotahena, entitled as controlling Viharadhipathi of.the said temple and its temporalities, to control,administer and manage the same. I dismiss thedefendant's claim in reconvention. The Plaintiff asViharadhipathi is entitled to be in possession ofthe temple and the temporalities. The defendantrespondent had wrongfully denied "the plaintiff'srights of the Viharadhipathiship of the temple andits temporalities and has been wrongfully inpossession of the temple and its temporalities andcollecting the rents therefrom. The Plaintiff inhis evidence has assessed the damage that he hassuffered by the defendant's wrongful possession atRs. 450/- a month. The defendant has not suggestedthat this amount is excessive. I direct thedefendant to pay the plaintiff-appellant a sum ofRs. 400/- per month, from the date of the plaint
 1 Sa&L
552Sri banka Law.Reports
i.e. 23rd August 1963 until the plaintiff isrestored to and quieted in possession of the saidtemple and the temporalities. Since the defendantis admittedly a pupil of Saranatissa There he isas such entitled to reside at the Vihare.
I do not order the ejectment of the defendantand I direct the defendant to put the Plaintiff inquiet possession of the temple and its tempora-lities. The defendant-respondent will pay theplaintiff-appellant the latter's costs in thisCourt, in the Court of Appeal – and the DistrictCourt.
RATWATTE, Jt> I agree.
COLIN T-MGME, J^I agree.
GANGULWITIGAMA PANNALOKA THERO v. COLOMBO SBARANANKARA THERO AND OTHERS