Sri Lanka Law Repcns
 1 SriL.R.
KAMBURUPITIYE SOMALOKA THERO
K.A.P. RANASINGHE. C.J., G.R.T.D. BANDARANAYAKE J andK.M.M.B. KULATUNGA, J.
S.C. No. 19/88 – C.A. No. 336/80 (F) – D.C. MATARA 3770/ LNOVEMBER 21 and 22, 1989.
Buddhist Ecclesiastical Law – Succession to Viharadlvpathiship – Abandonment.
Welakanda Dhammasiddi v. Kamburupitiye Somaloka Them
On the death of Kahawe Nandarama Thero his senior pupil Kamburupitiye SomalokaThero the plaintiff – respondent was entitled to the viharadhipathiship of the WilagodaViharaya. At a meeting of the Sangha Sabha of Wilegoda Viharaya presided over by theChief Sangha Nayake of the-Maiara – Hambantota Districts to fill the vacancy which hadarisen in the Viharadhipathiship of the Wii9goda Temple, a co – pupil of the deceased Theromoved a resolution that the defendant – appellant Welakande Dhammasiddi Thero beappointed. The plaintiff – respondent Kamburupitiye Somaloka Thero, the most seniorpupil of the deceased Thero seconded the resolution and said that as he was employedas a teacher in Government Service and also was functioning as the Viharadhipathi ofTuwakkugodawatte Parana Viharaya he was finding it difficult to accept the Viharadhipa-thiship of the Wilegoda temple and attend to its duties, and that the defendant priest wasin every way suitable to hold the Viharadhipathiship and he was assigning and transferringwhatever rights he had in respect of the said incumbency to him. He added that ail that hedesired was that one of the pupils or a co – pupil of the deceased Thero should hold theViharadhipathiship and work for the betterment of the pirivena and temple and heexpressed the hope that the defendant Thero would accept the Viharadhipathiship.Therefore all the pupils and co – pupils of the deceased Thero entrusted the Viharadhipa-thiship to the defendant priest. The minutes of this meeting (D5) signed by the parties andlay dayakas were produced in support of the plea of abandonmen* by the plaintiff priest.
What works the forfeiture of the right to an incumbency is the abandonment of thetemple.
(a) In determining whether or not an abandonment has taken place a renunciation byhim who was in law entitlod to succeed is an important item of evidence.
Abandonment connotes both a physical and a mental element. It means and requiresboth a giving – up of or going away from the temple, coupled with a clear manifestation ofa decision not to attend to the functions and duties which are traditionally associated withand are expected to be performed by one who holds such office.
(e) Whether a person who was, in law, entitled to succeed to the incumbency has soconducted himself is a question of fact.
(a ) The desire expressed by the plaintiff in the course of his speech recorded in theminutes D5 does not seem to be compatible with the conduct of one who has made up hismind to sever completely his association with the said temple and to take no further interestin its future well – being.
(b ) (i) The plaintiff was in fact residing in one of the temples of the paramparawa.
(ii) The necessity to appoint someone to be in charge of Wilegoda temple had arisen notonly because the plaintiff was in actual lesidence in another temple but also because hewas a teacher in the Education Department.
The claim for the incumbency is being advanced by the very priest who is said to haveabandoned the right to it.
In view of the above facts the plaintiff cannot be said to have abandoned his right to theincumbency. He has not forfeited his right to it.
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Cases referred to :
Dhammadaja Triero v. Wimalajolhi Thero 79 (1) N.L.R. 145, 191
Dhammaratna Unnanse v. Sumangala Unnanse 14N.LR. 400 – see also 20 N.L.R. 368
Pemananda v. Welivitiyg Soratha 51 N.L.R. 372. 376
Jinaratana Thero v.Dhammaratana Thero 57 N.L.R. 372, 374
Sangananda Tenjnnanse v. Sumanatissa Terunnanse 66 N.L.R. 394, 396
Amaraseeha Thero v. Sasanatilleke Thero 59 N.L.R. 289, 290
Dharmapala Unnanse v. Sumangala Unnanse 41 N.L.R. 235
Dhammavisuddhi Thero v. Dharmadassi Thero 57 N.L.R. 235
Dheerananda Thero v. Ratnasara Thero 67 N.L.R 559
B. Janananda Maha Thero v. B. Sirisunanda Thero  2 Sri LR 61, 73
APPEAL from judgment of the Court of Appeal.
T.B. Dissanayake P.C. with S.Walgampaya and N. Hatch for substituted defendant -appellant.
N.R.M. Daluwatte P.C. with Mrs. D.K.Gabadage Manohara de Silva and S. Abhayajeewafor plaintiff – respondent.
January 17, 1990.
The plaintiff – respondent has instituted these proceedings against thedefendant – appellant for a declaration that he is the lawful Viharadhipathyof the Wilegoda Viharaya, on the footing that the succession to the saidviharaya is based on the principle of sisyanu sisya paramparawe. and forejectment of the defendant appellant therefrom.
The defendant – appellant, in his answer, has taken up the position thatthe plaintiff had abandoned whatever rights he (the plaintiff) had inrespect of the incumbency of the said temple; and that he, the defendant,is now the lawful Viharadhipathy of the said temple.
The District Court entered judgment for the plaintiff and the defendant’sappeal therefrom to the court of Appeal has been dismissed by the Courtof Appeal.
Thereafter, upon the defendant moving this Court for special leave toappeal to this Court, this Court, by its order dated 9.5.88, granted himspecial leave upon the two questions : the abandonment by the plaintiffof his rights as Viharadhipathy : whether the purported appoinment on8.3.72, and later recognised and confirmed by the Malwatte Chapter,
CAWelakanda Dhammasiddi v. Kamburupitiye Somaloka237
Thero (Ranasinghe, C.J.)
constituted a valid appointment of the defendant as Viharadhipathy of thesaid temple.
When this appeal was taken up for argument before this Court learnedPresident’s Counsel for the defendant – appellant informed this Court thathe was not pressing the second of the aforesaid two.questions, namely,the validity of the said appointment of the defendant on 8.3.72. The onlyquestion, which now arises for consideration by this Court, is whether theplaintiff has abandoned his rights to the Viharadhipathiship of the saidtemple. An affirmative answer to this question would entail the dismissalof the plaintiff's action.
The defendant-appellant relies entirely upon the document D5 whichembodies the proceedings of a Sangha Saba held at the said temple fivedays after the death of the previous incumbent, Nandarama Thero, on8.3.1972 to establish that the plaintiff-respondent is not entitled to theincumbency of the said vihare.
The document D5 contains the minutes of a meeting of the SanghaSaba held at the Wilegoda Viharaya at 7.00 p.m. on the 8th March 1972,presided over by the Chief Sangha Nayake of the Matara-HambantotaDistrict. This meeting had been convened at the special request of therobed pupils and the co-pupils of the late Kahawe Nandarama Thero. Thepurpose of the meeting, as has been clarified by the Chief AdikaranaSangha Nayake of the Matara Palatha, was to fill the vacancy which hadarisen in the Viharadhipatiship of the said Wilegoda Temple, by appointing,with the common consent of all the robed pupils and the co-pupils of thesaid deceased Nandarama Thero, a suitable priest. A resolution had thenbeen moved by Pilimatalawa Dhammapala Thero, who was a co-pupil ofthe deceased Nandarama Thero, that Welakande Dhammasiddi Thero(the defendant) be appointed to fill the said vacancy. KamburupitiyeSomaloka Thero, the plaintiff, had then, whilst seconding the said motion,stated: that, as he was then employed as a teacher in the service of theGovernment and was also functioning as the Viharadhipathi of theTuwakkugodawatte Purana Viharaya in Galle, he was finding it difficult toaccept the Viharadhipathiship of the Wilegoda temple and attend to itsduties: that the said Dhammasiddhi Thero was in every way suitable tohold the said Viharadhipathiship: that he was assigning and transferringwhatever rights he has in respect Of the said incumbency to the saidDhammasiddhi Thero: that all he desires is that one of the pupils or a co-
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pupil of the deceased Nandarama should hold such Viharadhipathishipand work for the betterment of the pirivena and the said temple. Sayingso, the plaintiff had gladiy seconded the said resolution, so moved byDhammapala Thero and had expressed the further hope thatDhammasiddhi Thero would accept the said Viharadhipathiship.Thereupon all the pupils and co-pupils of the said deceased NandaramaThero, had entrusted the said Viharadhipathiship to the said DhammasiddiThero subject to their right of maintenance. D5 also makes it clear thatthereafter the said Dhammasiddi Thero had been so appointed, but thatsuch appointment, was to be confirmed only after the lapse of a period ofthree years, if his services were found to be satisfactory. This decision ofthe Sangha Saba had been accepted by all ihe lay dayakas who had beenpresent. This document has also been signed, inter alia, by the plaintiffin this case, the said Kamburupitiya Somaloka Thero.
It has been contended by learned President's Counsel for the plaintiffon the basis of the judgment of Gunasekera, J., in the case of DhammadajaThero v. Wimalajothi Thero, (1) that .the conduct of the plainiiff at the saidmeeting – in saying what he said and in seconding the said motion – doesnot amount to a renunciation of his right to officiate as Viharadhipathi;that, even if it amounts to an act of renunciation such renunciation aloneis not sufficient to deprive him of Ihe rights which he had, inlaw, becomeentitled to upon the death of his tutor, the deceased Nandarama Thero,as his senior pupil: that his conduct does not in law amounts to anabandonment of his rights and of the said Wilegoda Vihare.
Gunasekera, J., had expressed the opinion that :
“the Buddhist Ecclesiastical Law does not recongnise such arenunciation of the right to function as Viharadhipati. The office ofViharadhipati is inalienable and a priest on whom this office hasdevolved according to the Sisyanu Sisya Paramparawa rule ofsuccession only holds it in his lifetime to pass it on according to law,to his senior pupil or such other pupil as he may select."
Gunasekera, J., has proceeded to take the view, alter a considerationof the two judgments – Dhammaratna Unnanse v. Sumangala Unnanse,(2) and Pemananda v. Welivitiye Soratha, (3) – that what deprives amonk, and his pupils of the rights to succeed to a Viharadhipathiship,which devolves on him according to law, is the "desertion of a vihare andthe abandonment" of the office of Viharadhipathiship.
SCWelakanda Dhammasiddi v. Kamburupitiye Somaloka239
Them (Ranasinghe, C.J.)
Way back in 1910, in the case of Dhammaratna Unnanse v. SumangalaUnnanse (2) the Supreme Court concluded, after having had the expertevidence of seven Mahanayakes – which said evidence was intended tobe "a source of information for future reference on the points inquiredabout”, and now published in the Appendix to the 20th Volume of theNew Law Reports, vide 20 N. L. R. p. 388:
“that a right of pupillary succession will be forfeited if the pupil desertshis tutor and the temple the incumbency of which he claims".
With regard to the question of “abandonment “ by a Buddhist monkof his rights to an incumbency, Windham, J., observed, in the case ofPemananda v. Welivitiye Soratha, (3) that the “abandonment of suchrights does not require any notarial deed or other prescribed formality,but is a question of fact, and the intention to abandon maybe interred
from the cirumslances”, and that the "question appears not to be
covered by authority.” it has been held in Dammaraina Unnanse v.Sumangala Unnanse (supra) that when a tutor disrobes himself forimmorality, this does not deprive his pupils of their rights of pupillarysuccession. But I think the case is different where the tutor abandons hisright to an incumbency. Disrobing , with the intention of giving up thepriesthood, is the equivalent, ecclesiasiasticaily, of personal demise, andit does not entail, any more than death entails, an abandonment of rights,but merely a personal incapacity to exercise them. These rights canaccordingly descend to a pupillary successor. The abandonment of anincumbency by a priest, on the other hand, constitutes the forfeiture ofthat to which his pupils' right of succession are attached, namely theincumbency itself. The priest remains a priest, but abandons his rightsto the incumbency, upon which the pupillary right of succession aredependent. There accordingly remain no rights for the pupil to inherit.
The evidence led in that case established that Sumangala Thero,through whom the claim for the incumbency was founded had from thedeath of his tutor Revathe, in 1894 until his own death many years later,officiated as incumbent neither personally nor through a deputy.Furthermore, Sumangala Thero had in a letter P9, expressed his desirenot to be burdened with the temple. These items of evidence, togetherwith his, Sumangala Thero's failure at any time to exercize any rights andfunctions of an incumbent either personally or through deputies, weretaken as having constituted an abandonment of Sumangala Thero'srights to the said incumbency.
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[19901 1 SriL.R.
The case of Jinaratana Thero v. Dhammaratana Thero, (4) is anotherinstance where the Supreme Court expressed the opinion that aBuddhist monk could renounce his rights to a Viharadhipathiship, eventhough it was held that, in the circumstances of the case, no suchrenunciation has, in law, taken place. Said Basnayake, A. C. J., at page374-
“It has been held by this court that a bhikku can renounce his rightto be Viharadhipathi of a vihare and that the remunciation of the rightneed not be expressly made; but may be inferred from facts andcircumstances, But an intention to renounce will not be inferred unlessthat intention clearly appears therefrom upon a strict interpretationof the facts and circumstances of the case. If the facts andcircumstances leave the matter in doubt then the inference to bedrawn is that there is no renunciation.
There being no presumption in favour of the renunciation of a right,the onus is on the appellant to prove facts and circumstances fromwhich it can be clearly inferred that Ratanapala renounced his rightto the office of Viharadhipathi of Mungampola.
Learned Counsel for the appellant has not cited any authority insupport of his contention that a Viharadhipathi forfeits his rights to theoffice when he leaves the temple of which he is Viharadhipati andtakes up residence in another of which he is also Viharadhipati. Theoffice of Viharadhipati is not one that can be abandoned by mereresidence in another place. There is nothing in the vinaya or thedecisions of this court which requires a Viharadhipathi to reside inthe temple of which he is Viharadhipati. A bhikku who is Viharadhipathiof more than one temple must of necessity reside in one place ata time and the mere fact that he makes one of the temples hispermanent residence does not operate as a renunciation of his rightto the others."
Sanyananda Terunnanse v. Sumanatissa Terunnanse. (5) is alsoanother instance where the concept of renunciation was affirmed, eventhough once again the claim of a renunciation was held not to beestablished by the evidence relied upon, Sansoni, J., dealt with thematter, at page 396 in this way :
"The law is clear that although a renunciation by a monk of his rightto be Viharadhipati may be inferred from facts and circumstances,
SCWelakanda Dhammasiddi v. Kamburupitiye Somaloka241
Them (Ranasinghe, C.J.)
such an inference will not be drawn if the matter is left in a state ofdoubt. It is quite usual for a monk who is the Viharadhipathi of severaltemples to give charge of one or more of those temples to othermonks, who would normally reside in and look after those templesandtheir temporalities. It is not always convenient fora Viharadhipathito look after temples which are situated some distance away fromthe temple in which he resides, and he may appoint managers ordeputies for this reason. Any acts of possession or management bysuch appointees are referable to that appointmet; they would all beon behalf of the lawful Viharadhipathi and would not give theappointee any claim to that title.”
The plea of renunciation was held to have been established by ChiefJustice Basnayake, in the case of Amaraseeha Thero v. SasanatilakeThero, (6). Basnayake, C.J., observed –
“ the fact that the resolution to place the plaintiff in
charge of Sanghatissarama was proposed by Aggawansa andseconded byGnanawansa and adopted nemine contradicente by theassembled Sang ha, removes all difficulties that would otherwise havearisen. I have no doubt that on the facts of this case the Plaintiffis the de jure Viharadhipathi of Sanghatissarama. In my opinion it iscorrect to infer from the fact that Aggawansa proposed andGnanawansa seconded the resolution that they renounced theirrights."
In the case of Dharmapala Unnanse v. Sumangafa Unnan.se, (7) theSupreme Court took the view that a senior pupil who deserts the templeforfeits his right to the incumbency of the said temple. Although thequestion of desertion and the consequent forfeiture of his rights hadnot been expressly taken up in the lower court, the Supreme Court yetdealt with it for the first time in appeal, and the Court was satisfied thatthere was sufficient material to justify the conclusion that "R”, the priestfrom whom the claim was put foiward. had, on the death of his tutor ‘‘S’’,left the temple, having "bolted” 10-12 days after the tutor's death toanother temple, and thus relinquished his claim to the incumbency. Incoming to the said conclusion the Supreme Court also took intoconsideration that “R” had never returned to the temple and had notat any time made any claim to the incumbency.
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The claims to the incumbency in these two cases were not. it mustbe noted, put forward by the very bhikkus who were alleged to haveabandoned the rights in dispute.
Dealing with the position of a bhikku who is Viharadhipathi of morethan one temple, Basnayake, A.C. J., did, in the case of DhammavisuddhiThero v. Dhammadassi Thero (8) , observe that : where suchViharadhipathi places a bhikku, who is not necessarily a pupil of his , incharge of temple of which he is also the Viharadhipathi while adoptingfor his usual residence only one of them, the performance of anyfunctons by such bhikku so appointed does not have the effect ofmaking such bhikku the Viharadhipathi of such temple; that there beingno particular duties, spiritual or temporal, which a Viharadhipathi needperform for the purpose of keeping alive his rights, such right cannotbe said to be lost because another bhikku, who is actuallyresiding inthe temple, manages its affairs and prevents the temple from falling intodecay; and that such other bhikku cannot by virtue of his residence asserthis right to be its Viharadhipathi.
Dheerananda Thero v. Ratnasara Thero, (9) is also a case in which theSupieme Court had to consider a claim that a Viharadhipathi hadabandoned his rights to an incumbency, Sirimane J., dealt with this matterin this way at page 561 —
"The basis of abandonment is the intention to renounce one's rights;and this intention must be clear and unambiguous. If there is any doubton this matter, the inference drawn must be against an abandonment,(see Jinaratane vs. Dhammaratana Thero, 57 NLR 372 (4) at page562)"
Sirimane J., proceeded to deal with the distinction betweenabandonment, or relinquishing of one's rights and a conveyance of thoserights to another, thus :
“When rights are abandoned they disappear, and cease to exist,and there is no person to whom those rights accrue In the case of aconveyance the transferor asserts his rights, and then transmits themto the transferee so that rights continue in the transferee. It may turnout that the act of transfer is ineffective (as in this case) but then therights of transferordid not disappear (for he never renounced them) butcontinue to remain in him."
SCWelakanda Dhammasiddi v. Kamburupiliye Somaloka243
Them (Ranasinghe, C.J.)
Having dealt the relevant facts and circumstances, the Court held thatthere was, at least a great deal of doubt as to whether Piyadassi Thero,through whom the rights were claimed, had abandoned his rights or not,and, on that basis, the Court affirmed the findings of the District Court thatthere was no proof of,abandonment.
The case of B. Janananda Maha Thero v. D. Sirisunanda (10) is alsoa case in which the question of abandonment was considered, along withquestions of res judicata and estoppel, in relation to a claim of forfeitureof the right of succession to an incumbency. The' Court of Appealjudgment does not, however, appear to be of much assistance for thereason that, having considered two earlier cases and taken the view that,although the claim to the incumbency is not barred by the principles of resjudicata, the plaintiff is nevertheless estopped from maintaining theaction. The court merely states, at page 73, that the plaintiff has also“abandoned” his claim to the Viharadhipathiship.
On a consideration of the principles elucidated in the foregoingjudgments of the Supreme Court, in regard to this aspect of the BuddhistEcclesiastical Law, it would seem that, what works the forfeiture of theright to an incumbency is the abandonment of the temple, the incumbencyof which is in dispute : that, in determining whether or not such anabandonment has taken place, a renunciation by him, who was, in law,entitled to succeed, is an important item of evidence : abandonmentconnotes both a physical and a mental element: it means and requiresboth a giving-up of or going away from the temple, coupled with a clearmanifestation of a decision not to attend to the functions and duties wh1'11are traditionally associated with and are expected to be performed ft onewho holds such office: whether a person, who was, in law, er^[e<^,0succeed to the incumbency, has so conducted himself is ? ijestion 01fact: that such conduct must be conscious, deliberate, an^1 ’ust be c,ear|yestablished and should not be left in doubt.
The desire expressed by the plaintiff in<ne course of his speech,seconding the motion as set out in P5, <^>es not seem to be compatiblewith the conduct of one who has made up his mind to sever completelyhis association with the said temple and to take no further interest in itsfuture well-being.
It is alfif' ■” •» ,fu&nce thai (jiaintiff was, in fact, residing in one of the
, ipies of the paramparawa: that the necessity to appoint someono to be
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(1990) t SriL.R.
in charge of the Wilegoda temple had arisen not only because the plaintiffwas in actual residence in another temple but also because the plaintiffhad accepted a job as a teacher in the Education Department.
It is also noteworthy that in this case – unlike in the cases where theclaims of abandonment were upheld, as in Dhammapala Unnanse v.Sumangala Unnanse (supra), Pemananda v. W. Soratha (supra) andAmaraseeha Thero v. Sasanatilaka Unnanse (supra) – the claim for theincumbency, which is resisted on the basis of an abandonment, has beenput forward by the very person who, it is claimed, has abandoned the rightto such incumbency.
In this view of the matter, I find myself unable to say that the findingsof the District Court, which have also been affirmed by the Court of Appeal- that the plaintiff has not forfeited the right, which devolved on him on thedeath of his tutor Nandarama Thero, in respect of the incumbency of thesaid temple – should be set aside.
The appeal of the defendant-appellant is, therefore, dismissed withcosts.
BANDARANAYAKE, J.-1 agree.
KULATUNGA, J„ – I agreeAppeal dismissed.
WELAKANDA DHAMMASIDDI v. KAMBURUPITIYE SOMALOKA THERO