Brown & Co.. Ltd. v. Fernando (T. D. G. DeAlwis, J.)
v.KANAMEEWELA SUMANAJOTHI THERO
WANASUNDERA, J.. L. H. DE AlWIS. J. AND H. A. G. DE SILVA, J.
S.C. No. 69/84.
C. KURUNEGALTk No. 2571/1.
MARCH 18. 1986.
Buddhist Ecclesiastical Law-Right of'Buddhist monk though not in the pupillary line toreside in a temple and be maintained from temple funds.
Once a temple is made Sanghika or offered to the Sangha, it belongs to theentirep.riesthood and any. priest can with the consent of the Chief Incumbent remain in thetemple though he is not in the line of pupillary succession; but he has no right to bemaintained from the temple funds. The right of residence is to reside in the temple in aplace allotted by the Chief Incumbent.
Cases referred to:
Vipulananda Terunnanse v. Sedawaue Pannasara -20 C.L.W. 119.
Paruselle Dhammajothy Unanse v. Tikiri Banda Parenatale-et al (1881) A SCC121.
Piyadasa v. Deevamitta-(1921) 23 N.L.R. 24, 29.
Moratota Sobhita Thero v. Amunugama Ratnapura Thero-[1983} Bar L.R. 151,160.
1/. Dhammaloka Thero v. P. Saranapala Thero-(1956) 57 N.L.R. 5 18.
APPEAL from judgment of the Court Appeal.
Nimal Senanayake, P.C. with K. Gunaratne and Miss S. M. Senaratne forplaintiff-appellant.
Everard Ratnayake for defendant-respondent.
Cur. adv. vult.
April 30. 1986.
A. G. DE SILVA. J.
In this case the plaintiff-appellant instituted this action against the 1stdefendant and the 2nd defendant-respondent to have himselfdeclared the lawful Viharadhipathi of a temple called Sudharmaramayaat Galyaya, to have the defendants ejected therefrom and fordamages. After trial judgment was entered for the plaintiff as prayedfor. The 1 st defendant had died during the pendency of the action andthe 2nd defendant appealed from the judgment of the District Court.The Court of Appeal dismissed the appeal of the 2nd defendant withcosts. In the course of its judgment the Court ot Appeal has gone onto state:
"But however the order of the learned District Judge ordering theejectment of the defendant is not to be construed as an orderejecting the defendant from the temple itself to reside wherein, thedefendant as a monk has an inherent right".
It is from this part of the judgment of the Court of Appeal that theplaintiff has appealed ic this Court.
Admittedly this is a temple exempted from !h« provisions of section4 of the Buddhist Temporalities Ordinance (Cap. 318) and successionto its incumbency is governed by the system of succession known asSisyanu Sisya Paramparawa. It was the contention of the learned
^ counsel for the plaintiff-appellant that inasmuch as the Court of Appeal.has held that the 1st defendant himself was an imposter and the 2nd'.defendant could not claim any interest from him, the learned Judges'of the Court of Appeal were in error when they added a rider that thedecree of ejectment should:
' • "not be construed as an order of ejectment of the 2nd defendant. from the temple itself where in the 2nd defendant as a monk has aninherent right".
Learned counsel conceded that had the 1 st defendant been one of thepupils of the plaintiff's tutor. The 2nd defendant being the 1stdefendant's pupil, he would have had a right to reside in this templeand be maintained from its funds but since the 1 st defendant has beenheld to be a stranger to the line of pupillary succession, and hence animposter, neither the 1 st defendant nor his pupil the 2nd defendanthad the right to continue to reside in the temple once the plaintiff wasdeclared the lawful viharadhipathi. He relied on the case' ofVipulananda Terunnanse v. Sedawatte Pannasara (1) to support hiscontention that a person who is in the line of pupillary successionwould be entitled to be maintained out of the funds of the temple, forthis case held inter alia that the pupil of the deceased senior pupilthough not entitled to succeed to the incumbency has the right toremain in the temple and be maintained out of its income.
Learned counsel for the respondent on the other hand relied on thedictum of Caley, C.J. in Parusselle Dhammajothy Unanse v. TikiriBanda Parenatale (2) where he stated as follows:
"It has been more than once pointed out by this Court that aBuddhist priest cannot be ejected from a Buddhist Vihare, except, ofcourse, for some personal cause irrespective of the rights ofproperty; for a duly dedicated Vihara is 'Sanghika'. the commonproperty of the Priesthood. But the incumbency of a Vihara and thecontrol apd management of its endowments may undoubtedly bevested in one or more persons to the exclusion of all others"
De Sampayo, J. in Piyadasa v. Deevamitta (3) refers to the dictumOf Caley, C.J. and goes on to say-
"Therg is no doubt about this Buddhist law, and it is thereforeunnecessary to examine further the authorities on that subject. Thisright of the priesthood, however surely does not mean that anindividual priest can select for himself a particular place in the vihare
independently of the chief incumbent and against his wishes. I thinkthat any persistent assertion of an insistence on such an allegedright is a 'personal cause' for which he may be properly asked toleave. Such conduct would amount to contumacy, and in theexercise of ecclesiastical discipline and order, the incumbent has. Ithink, sufficient authority even to eject the offending priest".
The dicta of Caley, C.J. and De Sampayo. J have been referred towith approval by Sarriarakoon. C.J. in Moratota Sobhita Thero v.Amunugama Ratnapura Thero (4).
It has been held in the instant case that Galyaya Chandrajothi Therowho belonged to the Asgiriya Chapter was at one time the lawfulViharadhipathi of this temple and functioned as such but two priestswho belonged to the line of pupillary succession of Chandrajothi Therohad received their higher ordination at the Malwatte Chapter andhence forfeited their rights to the incumbency of the temple which wasa temple that belonged to the Asgiriya Chapter. One of the two priestshad in addition, by a deed, renounced his claim to the incumbency ofthis temple in favour of the Maha Nayaka of the "Asgiriya Chapter whoby a deed executed in 1965 had appointed the plaintiff asViharadhipathi. This became necessary as the line of pupillarysuccession had failed and the temple vested in Sangha, or becameSanghika. and the right of appointment of a new Viharadhipathi vestedsolely in the Maha Nayaka of the fraternity which had jurisdiction overthe temple in question. (V. Dhammaloka Thero v. P. Saranapala Thero)
In my view, reversion to the Sangha of Sanghika property in thiscontext, is on the extinction of the line of pupillary succession, andenables the Maha Nayaka to make an appointment, but the dictum ofCaley, C.J. referred to above still holds good, in that once a temple ismade Sanghika or offered to the Sangha, it belongs to the entirepriesthood and any priest can with the consent of the chief incumbentremain in the temple though he is not in the line of pupillarysuccession, but he has no right to be maintained from the income ofthe temple. (Vipulananda Terunnanse v. Sedawatta Pannasara(supra)).
In the instant case the evidence is that the priests from whom the2nd defendant alleges he derived this rights were in possession of thistemple for nearly a hundrecJ years and the 2nd defendant himself
succeeded to the 1 st defendant who died during the pendency of this'action. It is only just and proper that the plaintiff should permit the 2nddefendant to reside, to which he has a right, in an allotted place in thetemple, if the 2nd defendant so desires. The appeal is accordinglydismissed. Parties will bear their own costs of this appeal.
WANASUNDERA, J. – I agree.
L. H. DE ALWIS, J. – I agree.
2-CHANDANANDA THERO v. KANAMEEWELA SUMANAJOTHI THERO