Saddhananda Them v. Ratnayake
REV. MAIYAWE SADDHANANDA THERO
WANASUNDERA. J. RANASINGHE. J. AND ABDUL CADER, J.S C. APPEAL No 44/8? – D C CHILAVV No. 20386NOVEMBER 26. 198a
Land Development Ordinance, Sections 56. 33 and 170 – Land held by a Buddhistmonk on a grant under the Land Development Ordinance – Succession under s. 170 ofthe Land Development Ordinance – Operation ot ss 20 and 23 of the BuddhistTemporalities Ordinance.
The land in dispute belonging to the State had been grarted under the LandDevelopment ‘Ordinance to Rev. Maiyawe Saddhananda There by Grant PI dated7 7.1955. In 1955 the grantee nominated h's mother as his successor to the holdingin terms of section 56 of the Land Development Ordinance The mother predeceasedthe grantee in February 1967. The grantee d'ed on 1 7 1976 without making anyfurther nomination. A dispute to title to the land then arose between the defendant whowas the lay brother of the deceased monk and the plaintiff Viharadhipathy of the templeto which the deceased monk belonged. The plaintiff claimed the land >n terms of section23 of the Buddhist Temporalities Ordinance on The basis that the land should bedeemed to be the property of the temple. The defendant however claimed that the landbe. ’g a p-otecteo holding held under the conditions and restraints imposed by the LandDe”elopment Ordinance the later statute, section 170 of the Ordinance applied to barany mode of succession other than tha* provided in the Ordinance itself from beingapplied. Further boctrmaliy this land could not be considered Sanghika as the holderlacked full title.
Held – (Ranasmghe, J. dissenting) :
Section 23 does not prescribe a mode of succession as such but rather seeks to effecta transformation of the cnaracter of the particular property by which it becomesdeemed to be the property of the temple. It is a legal fiction that operates and it is notnecessary to decide whether the property is in fact sanghika or not. Therefore section23 of the Buddhist Temporalities Ordinance must be given effect to rather than section170 of ths Land Development Ordinance
A. C Gooneratne. Q C with K. S Tillekeratne and Mrs H Jayalath forplaintiff-appellant
Walter Wimalachandra with S C B Walgampaya for defendant-respondent.
Cur. adv vult.
Sri Lanka Law Reports
 2 Sri LR.
December 14, 1984.
The plaintiff in his capacity as the Controlling Viharadhipathi ofRatnagiri Rajamaha Vihara, Nalladarankattuwa, sued the defendant fora declaration of title to a land called Wilpatha Mukalana, thesubject-matter of the action, and for ejectment of the defendant andfor damages.
This land had been granted to one Rev. Maiyawe SaddhanandaThero of this same temple on Crown Grant P1 dated 7th July 1955.
In 1955, the Grantee had nominated his mother as his successor tothe holding in terms of section 56 of the Land DevelopmentOrdinance. His mother Menikhamy however died in February 1967,predeceasing the Grantee who died nine years later on 1 st July 1976without making any further nomination.
Upon the Grantee's death, two rival claims emerged in respect ofhis interests : one by the temple authorities to which the Granteebelonged, and the other by the defendant – the lay brother of theGrantee. Hence this action. Both those rival claims are, each foundedon a different statutory provision and the issue before us is toascertain which one of these statutory provisions should prevail overthe other.
The plaintiff-appellant relies on section 23 of the BuddhistTemporalities Ordinance (Cap. 318), which is worded as follows
"All pudgalika property that is acquired by any individual bhikkhufor his exclusive personal use, shall, if not alienated by such bhikkhuduring his life-time, be deemed to be the property of the temple towhich such bhikkhu belonged unless such property had beeninherited by such bhikkhu."
Mr.Gooneratne for the appellant has submitted that all therequirements of this section are satisfied in this case and the allotmenthas now become the property of the Temple and accordingly that theplaintiff-appellant is entitled to vindicate title to it.
The defendant-respondent on the other hand relies on theprovisions of the Land Development Ordinance. Mr. Wimalachandrarelied in particular on the provisions of section 170 of the Land
Saddhananda Thero v. Ratnayake (Wanasundera, J.)
Development Ordinance and generally on the other provisions of thatOrdinance. Section 170 indicates a special mode of succession andexcludes the application of any other mode of succession. He furthersubmitted that a Grant under the Land Development Ordinance givesonly limited ownership and also restrains alienation except in thecontrolled manner provided by the said Ordinance, and all theseprovisions were incompatible with the concept of sanghika propertyand excluded the application of section 23 of the BuddhistTemporalities Ordinance to the devolution of title to an allotmentunder the Land Development Ordinance. He also said that the LandDevelopment Ordinance is later in date to the Buddhist TemporalitiesOrdinance and had been specifically enacted for the alienation anddevelopment of Crown land and was entitled to prevail over the otherOrdinance in case of a conflict.
This' land had first come into the possession of Rev. MaiyaweSaddhananda Thero in 1942, during the time of the Second WorldWar, when he was issued a temporary permit by the AssistantGovernment Agent, Chilaw, under the Emergency (Food Production)Regulations. Thereafter, in 1944, the monk who was possessing thisland on this permit had been given specific permission to have apermanent plantation on this allotment. In 1949, after the war was.over, Rev. Maiyawe Saddhananda Thero obtained a permit under theprovisions of the Land Development Ordinance in respect of this sameallotment. This permit had been issued to the monk not asrepresentative of the temple, but in his individual capacity as a monk. Ihave something further to say on this matter later.
We know that under the provisions of the Land DevelopmentOrdinance the issue of a permit is generally the first step in the processof the alienation of Crown land. The second step consists in the issueof a formal Grant. In 1953 Rev. Saddhananda applied for a Grant butat that stage the authorities were not prepared to issue him a Grant,because as D5 puts it, "it is not the policy to alienate land to Buddhistpriests under the L.D.O.". However, a few years later, in 1955 Rev.Saddhananda succeeded in obtaining a Grant, which is signed by noless a person than the Governor-General and authenticated by the Sealof the Island. This apparently shows a change of policy on the part ofthe Government, and if so, this issue of a Grant to a monk must carrywith it all consequences that are associated with his status
Sri Lanka Law Reports
 2 Sri LR
As stated earlier, in September 1958, the Grantee had nominatedhis mother as his successor in accordance with the provisions of theOrdinance. In the meantime he had developed the land with apermanent plantation of coconut It is not disputed that theimprovement was effected by him using moneys belonging to thetemple. Originally the monk had nominated his mother as hissuccessor but after his mother's death he had expressed a desire tohave the allotment vested in the temple upon his own death. This wasapparently a firm conviction on his part, for he had evencommunicated this intention to the Land Commissioner and hadrequested that this wish be given effect to. The authorities hadhowever put him off by giving him some gratuitous advice to the effectthat such a course of action was not legally possible -D15. Whetheror not this is so, it seems to us, is essentially a legal question to bedecided by a court of law. So that, at or about the time of his death.Rev. Saddhananda has had a strong desire to see that this propertyshould go to the temple and not to his lay relations or to an outsider.
The Grant P1 embodies all the conditions set out in the FirstSchedule to the Ordinance as required by the law. It also contains aprovision for the payment of an annual rent of Rs. 48.50. Anexamination of the other conditions shows that PI embodies only afew of the conditions of the Second Schedule, namely items 4 and 7only. Section 33 states that the incorporation of the conditions in theSecond Schedule is optional. One significant omission may be notedand this is item 5 of the Second Schedule which requires the owner toreside on the allotment.
It appears to me that there is nothing in the conditions embodied inP1 that makes it burdensome or incompatible with the status of aViharadhipathi of a temple for the property to be vested in him onbehalf of the temple. In fact, he had been, in his capacity as a monk letinto possession as a permit holder and had been possessing theallotment for a number of years without complaint from the authoritiesthat his possession was inconsistent with his status as a monk.
The Court of Appeal in its judgment has drawn attention to the factthat a land alienated by the Government by way of Grant under theLand Development Ordinance becomes a protected holding. Inrespect of such a protected holding, the Ordinance has imposed a
Saddhananda Thero v. Ratnayake (Wanasundera, J.)
number of conditions and restraints. A disposition (meaning anytransaction of whatever nature affecting the land or its title) requiresthe written consent of the Government Agent Similarly, a lease ormortgage of the protected holding would also require the prior writtenconsent of the Government Agent. The law also provides that aprotected holding cannot be seized and sold in the execution of adecree of any court. The main fetter however is in respect of thedevolution of title to the holding by way of succession. The law seeksto ensure that there is no fragmentation of the land and that as far aspossible the allotment would remain intact and without division in thefamily of the original Grantee. However, the line of permittedsuccession set out in the Third Schedule follows more or less the lineof the general mode of succession upon an intestacy in ordinary law.Any mode of succession outside this, except with the prior writtenconsent of the Government Agent, would be unlawful under theOrdinance.
At this stage I would like to say that much of those provisionsrelating to succession appear to be inapplicable to the case of aBuddhist monk, although the Grant had been made after dueconsideration not to a layman, but to Rev. Saddhananda in hiscapacity as a Buddhist monk. The fact that he did not represent thetemple is immaterial. In my view, it is the failure to accord to Rev.Saddhananda his true status as a monk that has led to so muchconfusion in this case. The Grant was undoubtedly made to the monkin nis individual capacity and not as representative of the temple. But.this in no way means that Rev. Saddhananda could be placed in theposition of a layman in relation to this Grant. He received the Grant notas a layman but as a monk, and all incidents that appertain to a monkmust be takerf care of and provided for in the course of his dealingswith this land in so far as the legal provisions permit it.
Mr. Wimalachandra however emphasised the implications of theprovisions of section 170 of the Land Development Ordinance andrelied on it as his main submission. It is worded as follows
"(1) No written law (other than this Ordinance) whichprovides for succession to land upon an intestacy and no otherlaw relating to succession to land upon an intestacy shall haveany application in respect of any land alienated under thisOrdinance.
Sri Lanka Law Reports
 2 Sri L.R.
(2) No person shall, by virtue of any appointment in any lastwill, have or acquire any title to succeed to any land alienatedunder this Ordinance save and except a life holder or asuccessor duly nominated by last will under the provisions ofChapter VII."
He stressed the absolute nature of the prohibition contained hereand submitted that the present case is undoubtedly a case ofsuccession since it involves the manner of the devolution of the landupon the death of Rev. Saddhananda. He submits that in the face ofthis provision no other mode of succession contained in the written orunwritten law is entitled to prevail.
Mr. Gooneratne's reply was characteristically brief. He submittedthat section 23 of the Buddhist Temporalities Ordinance on which herelies is not a provision relating to succession but of an entirelydifferent nature. Section 23, he submits, contains a presumptionwhich has the effect of transforming property of one character toanother on the happening of an event, namely, pudgalika property intotemple property, if it is not alienated during the life-time of the monk. Iam inclined to agree with Mr. Gooneratne that section 23 seeks toeffect a transformation in the character of a property by operation oflaw and does not deal with succession as such. Undoubtedly a law ofsuccession will depend on the character of the particular property, butthe converse is not true for the character of poperty can standindependently of the law of succession. The character of the propertycan have a general and wider application as this very Ordinanceshows, and I am satisfied that section 23 precedes any application ofa law of succession and does not constitute an integral part of the lawof succession. In fact, this provision has the effect of obviating anysearch for a law of succession which should apply to such property. Ifthis construction is correct, as it appears to me to be, then section170 can have no application to this case, and I must perforce giveeffect to the provisions of section 23 leaving aside the provisions ofsection 170 of the Land Development Ordinance.
Mr. Wimalachandra's final submission is that it is a requirement foran offering of immovable property to be considered as sanghika, that itshould be property over which the offeror has full title, and that the giftmust also be made in perpetuity Since an allotment under the LandDevelopment Ordinance is not capable of giving that plenitude, he
Saddhananda Thero v. Ratnayake (Wanasundera, J.)
submits that such property cannot constitute sanghika prooerty. Forthis proposition he relied on concepts embodied in the DhammaVmaya, out could cite ro legai authooty. Mr. Gooneratne disputed thisand said that, on the contrary, a devout Buddhist is never prevented:ro:n maxing a pious offerrg and gifting almost any right, interest,or property (a few things however are excluded) is considered ameritorious act, and the requirement for full ownership or perpetuityas suggested are superimpositions not justified by the doctrine.
I am relieved however to find that this matter could be resolvedwithout reference to abstruse matters of doctrine. An examination ofsection 23, Buddhist Temporalities Ordinance, shows that it merelystates that the pudgalika property acquired by a bhikkhu for his own
use, if not alienated during his life-time “shall, be deemed to
be the property of the temple". It is not for us to decide whether or notsuch property is in fact sanghika, i e , using the term in the religiousconcept.
As far as the law is concerned, it would appear that propertybelonging to a temple is not limited to sanghika property properlyso called Temple property is ail land "belonging or in any wiseappertaining to or appropriated to the use of any temple" – section20. In this regard Mr. Wimalachandra's submission that this is notstrictly sanghika property may well be right from a doctrinal point ofview.
The sea-change the property undergoes under section 23 is duesolely to the operation of law and it is apparent that none of the rites,rituals, and ceremonies which are considered essential by the religioustexts or practices for such a change of character of prooerty have beenmade a requirement here In the result, one is compelled to regard thissection as a kind of pure statutory definition of a constitutive nature,■rear ug just what it states and nu more, namely, that such property"shal1 be deemed to be the property of the temple". The use of theword 'deemed' further emphasises the fact that it is a legal device orfiction. Whether or not it is appropriate to use the word 'sanghika' inits religious connotation in this context is another matter, but thisprovision declares that as far as the law and the secular authorities are(onceri ed. '.fey would regard and deal with property falling withinsection 23 as the property of the temple, irrespective of what it mayconstitute from the religious and doctonai point of vew.
Sri Lar.ka Lav/ Reports
 2 Sn L R.
In the result, the appeal must be allowed. I accordingly set aside theludgment of the Court of Appeal and restore the judgrn jnt of the trialcourt The plaintiff-appellant would also be entitled to costs both hereand in the Court of Appeal.
ABDUL CADER, J.- I agree.
have had the advantage of perusing the judgment ofWanasundera, J. I, however, find myself unable to agree with theconstruction placed upon the provisions of sec. 23, BuddhistTemporalities Ordinance by Wanasundera, J. in the said judgment.
I am inclined to the view that the said section 23 is a provision ofwritten law as is contemplated by the provisions of sub-sec (1) of sec.1 70 Land Development Ordinance (chapter 464). The consequence ofproperty, which falls within the scope of the said sec. 23, beingdeemed to vest in the temple would no doubt be to change the originalpudgalika character of the said property and impress it thereafter withthe character of sanghika property. It is a consequence which isbrought about by operation of law. It so follows from a provision of lawwhich states what is to happen to the property which belonged to aperson who has passed away without having expressely declared towhom it should go upon his death. Such a result would not detractfrom the primary concern of the said provision which is to provide forthe passing of property upon the death of the person who was entitledto and could have given directions in regard to how it should devolveupon his death, but who has however, not given any such directions totake effect upon his death. The conversion of the character of theproperty from that which it bore prior to the death of the owner toanother after the death of the owner is not something which theprovisions of the section themselves do. It is but the consequence ofwhat they ordain. The said section 23 is, in my opinion, a provision oflaw which makes provision for and regulates the passing of propertyupon the death of one who could have given directions in regard to itsdevelution upon his death but had nevertheless failed to do so.
I am not, therefore, disposed to interfere with the judgment of theCouit of Appeal. The appeal of the plaintiff-appellant must,accordingly, be dismissed with costs.
REV. MARIYAWAE SADDHANANNDA THERO v. RATNAYAKE