COURT OF APPEAL.
G. P. S. DE SILVA. J. (President. C/A) AND GOONEWARDENA. J.
D. C. HOMAGAMA 1317.
JUNE 23, 1986.
Buddhist Ecclesiastical Law-Last Will not admitted to probate-Prevention of FraudsOrdinance, s.9-Buddhist Temporalities Ordinance, s. 26.
A document which is a Last Will but not admitted to probate is admissible as evidenceof an appointment or nomination by a Viharadipathi of his successor. The provisions ofs. 9 of the Prevention of Frauds Ordinance do not apply to such a document whichshould be treated as a writing subject to proof to the satisfaction of the court.
Cases referred to:
Piyatissa Terunnanse v. Saranapala Terunnanse-(1938) 40 NLR 262.
Dhammasiri Terunnanse v. Sudiranando Terunnanse-(1937) 39 NLR 430.
Rewata Unnanse v. Ratnajothi Unnanse-3 CWR 193.
Gunananda v. Deepalankara-(1930) 32 NLR 241.
Dhammavisuddhi Thero et al v. Dhammadassi Thero-(1955) 57 NLR 469, 480.APPEAL from order of District Court.
T. B. Dissanayake, P C. with Prins Gunasekera for substituted 1st defendant-appellantS. C. B. Walgampaya for plaintiff-respondent.
Cur. adv. vult.
August 8, 1986.
P. S. DE SILVA, J. (President, C/A)
The plaintiff filed this action for a declaration that he is the controllingViharadhipathi of the Lenagala Raja Maha Vihare, for ejectment of thedefendants and for damages. The defendants denied the plaintiff'sclaim and the 2nd defendant in his answer prayed for a declaration
that he be declared the lawful Viharadhipathi of the Lenagala RajaMaha Vihare. At the trial, the defendant sought to produce Last WillNo. 19553 dated 25.2.79 (2D1) executed by the previous lawfulViharadhipathi of the temple, the late Jalthara Dhammarakkitha. Thiswas objected to by counsel for the plaintiff on the ground that 2D1has not been duly proved and has not been admitted to probate. TheDistrict Judge upheld the objection and rejected the document. Thisappeal is against that order.
It is not in dispute that 2D1 which, on the face of it, is a last will, hasnot been proved in the District Court and has not been admitted toprobate. The District Judge, relying on the provisions of section 9 ofthe Prevention of Frauds Ordinance, held that the document wasinadmissible in evidence. The only point that arises for our decision iswhether the District Judge was right in rejecting 2D1 for the reasonthat it has not been proved and admitted to probate as required bysection 9 of the Prevention of Frauds Ordinance.
Mr. Dissanayake, counsel for the appellant submitted that 2D1must be viewed in the light of Buddhist Ecclesiastical Law and theprovisions of the Buddhist Temporalities Ordinance. Although 2D1 isex facie a last will, and purports to deal with the temporalities of theLenagala Raja Maha Vihare, counsel argued that it does not constitutea devise of property as such, and that there is no requirement in lawthat 2D1 should be proved as a Last Will and admitted to probate. Onthe other hand, Mr. Walgampaya, counsel for the respondentcontended that, while the law does not require the appointment of aViharadhipathi to be in any particular form of writing, yet if aViharadhipathi chooses to nominate his successor by will, then it isessential that the will should be proved in testamentary proceedingsand admitted to probate if it is to be admissible in evidence.
It is now well settled that the nomination by a Viharadhipathi of hissuccessor need not be in any particular form (vide PiyatissaTerunnanse v. Saranapala Terunnanse (1). and DhammasiriTherunnanse v. Sudiranando Therunnanse(2)). It is true that 2D1 is exfacie a last will but in so far as it purports to deal with the temporalitiesof the Lenagala Raja Maha Vihare it would be inoperative-vide section26 of the Buddhist Temporalities Ordinance. However, in my opinion,Mr. Dissanayake's submission that 2D1 is admissible as evidence ofan appointment or a nomination or a selection of a Viharadhipathi iswell founded and must be upheld. A document which may beineffective for one purpose may yet be operative and admissible inevidence for another purpose.
There is support for the contention of Mr. Dissanayake in thejudgment of Shaw, A. C. J. and in the observations made bySchneider, A. J. in Rewata Unnanse v. Ratnajothi Unnanse (3) Thatwas a case where the plaintiff alleging that he was the senior pupil ofMedankara Unnanse, the late incumbent of the Pusulpitiya Vihare suedthe defendant, a co-pupil of his, for a declaration that he is entitled tothe incumbency of the Vihare and to reside therein. The defendantpleaded, inter alia, that the said Medankara Unnanse by "testament"dated 22nd March 1899 had appointed him as his successor to theincumbency. It is to be noted that the "testament" was not admitted toprobate. Shaw, A. C. J. held that—
"The appointment of the defendant by the late incumbent as hissuccessor by the document of 22nd March 1899 is conclusive in
his favourIt is true that it is called a testament by the maker
and purports to transfer the temple property after the maker's deathto the defendant. In view of the provisions of the BuddhistTemporalities Ordinance 1905 it would be inoperative for thispurpose. Whatever the document may be called by the maker it is ineffect the exercise by deed of a power of appointment vested in themaker and it having been made with the requisite formalities of adeed it is in my opinion a sufficient exercise of the power although itmay have been made somewhat in the form of a will and has notbeen admitted to probate." (The emphasis is mine)
In a separate judgment there appears the following obiter dicta ofSchneider, A. J.:
"I regard this instrument as only a pure act of appointment ornomination or selection to the succession to the incumbency. In thisview the instrument may be in any form. As at present advised theact of appointment may be done even by word of mouth. It need notbe in writing. This instrument therefore operated to confer on thedefendant the right to succeed to his tutor although he was only ajunior pupil".
I wish to add that the above decision was considered and cited withapproval by Maartensz, A. J. in Gunananda v. Deepalankara (4).
In considering the proper approach that a court should adopt inrelation to a matter such as this, it may not be inappropriate-to remindourselves of the observations of Basnayake, C. J. in DhammavisuddhiThero et al v. Dhammadassi (5):
"The secular courts when dealing with problems affecting theSangha should view them against the background of the Vinaya andshould be cautious in applying to the Sangha the rules that governrelations and transactions between laymen".
While it is correct that "nothing but the probate… or other
proof tantamount thereto of the admission of the will in the ProbateDivision is legal evidence of the will" (Williams on Executors andAdministrators, 14th Ed., Vol.l, page 53), yet the appellant in thepresent case is not seeking to rely on 2D1 as a-testamentarydisposition of the temporalities, but purely as a writing which isevidence of an appointment or a nomination or a selection of aViharadhipathi. In this view of the matter, I hold that the provisions ofsection 9 of the Prevention of Frauds Ordinance are not applicable andthat 2D1 is admissible in evidence subject, of course, to the "writing"being duly proved to the satisfaction of the court.
I accordingly set aside the order of the District Judge dated 6thNovember 1981 and direct that the record be returned forthwith tothe District Court for the continuation of the proceedings. In all thecircumstances I make no order as to costs of appeal.
GOONEWARDENA, J. – I agree.
Case sent back for trial to be continued.
RATANAJOTHI THERO v. SOMARATHANA THERO