089-NLR-NLR-V-56-REV.-WERAHERA-WIMALASARA-Appellant-and-N.-POROLIS-FERNANDO-et-al-Respondent.pdf
GRATIAE1J J.—Wifnalasara v. Porolte Fernando3B9
1955Present : Gratlaen J. and Gunasekara J.REV. WERAHERA WJMAI-ASARA, Appellant, and N. POROUSFERNANDO el al., RespondentsS. G. 405—D. C. Colombo, 6,210
Buddhist ecclesiastical lata—Trust—Property donated to seminary under a trust ins-trument—No formal dedication to Sang ha—Power of trustee to remove a priestfrom premises—Sanghika property.
The ceremonies which took place when a Buddhist seminary was establishedupon certain premises did not constitute a formal dedication sufficient to pass thepremises from private ownership to the Sangha. Thereafter the owners of thepremises conveyed the premises to trustees to be used as a Buddhist sominaryfor the benefit of a certain^priest, G., and his pupil priests. On the face of theinstrument, the lay trustees were vested with power, inter alia, to appoint asuccessor to G. in the offioe of “ Chief Priest ” and also to remove “ any of thepriests remaining in the premises” on grounds of misconduct or misbehaviour.Held, that inasmuch as the premises in question were not Sanghika propertythe trustees were entitled to remove a priest from the premises on bona fidsgrounds in accordance with the power vested in them under the trustinstrument.
PPH AL from a judgment of the District Court, Colombo.
Sir Lalita Rajapakse, Q. C., with M. L. S. Jayasekera anti M. L. de Silvafor the defendant appellant.
H. IF. Jayewardene, Q. C., with D. R. P. Goonetilleke, for the plaintiffsrespondents.
Cur. adv. vult.
February 25, 1955. Gratiaen J.—
In my opinion the judgment under appeal should not be disturbed. ByP2 dated 10th September, 1913, two pious Buddhists named RomanisFernando and Charles Fernando conveyed the property in dispute tocertain trustees “to be used as a Buddhist seminary for the benefit ofXanugala Gunatissa Therqnanse …. and his pupil priests who areprosecuting Oriental studies and studying the doctrines of Buddhism ”.On the face of the instrument, the lay trustees are vested with power,inter alia, to appoint a successor to Gunatissa Therunanse in tho office of“ Chief Priest ” and also to remove “ any of tho priests remaining in thepromises ” on grounds of misconduct or misbehaviour. The appellant haschallenged the authority of the trustees to exercise these powers because,in his submission, the premises had already been formally dedicated by theclonors to the Sangha so that the premises thereafter constituted Sanghikaproperty. If that were so, it necessarily follows that Romanis Fernandoand Charles Fernando had no right subsequently to convey the premises-to the trustees.
370
Mieso v. MohmntdaUy
That certain ceremonies had in fact taken place at or about thotime when the seminary was established is not disputed—but the questionis whether they could properly be regarded as constituting a formal de-dication sufficient to pass the premises from" private ownership. On thisvital issue, the learned trial judge seems to me to have applied certainextremely practical tests. “ There is no reason that I Ban see, ” heobserved, “ nor has any been advanced by the defendant, as to why thesetwo pious donors should have executed a document which was unnecessaryand which would certainly have the effect of nullifying the act of dedi-cation which they are alleged to have performed”. The subsequentconduct of the parties also negatives the argument that anybody regardedthe premises as Sanghika property. For instance, the defendant hadactively associated himself with the trustees in 1946 when they success-fully asserted their right under P2 to remove another priest namedWiraalajothi from the premises. His present attitude is quite inconsistentwith that which he had previously adopted, and I am unable to say thatthe learned judge was not justified in rejecting his explanation of thisinconsistency.
Once the argument that the premises are Sanghika property is rejected,there is no reason for doubting the authority of the trustees to removethe defendant on bona fide grounds. I would therefore dismiss the appealwith costs.
Gunasekara J.—1 agree.
Appeal dismissed.