024-NLR-NLR-V-65-K.-S.-PERERA-Appellant-and-C.-J.-C.-MATHEW-and-others-Respondents.pdf
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Persra v. Mathew
1963 Present: Abeyesundere, J., aDd G. P. A. Silva, J.K.S. PEREIRA, Appellant, and C. J. 0. MATHEW and others,
Respondents
8. G. 68 of 1961—D. G. Badulla, 13635Buddhist ecclesiastical law—Rri vindicatio action brought by a person claiming tobe trustee of a temple—feme raised as to due appointment of trustee—Burden ofproof—Buddhist Temporalities Ordinance, ee. 3, II.
Where a person, claiming to be the trustee of a Buddhist temple, institutesan action for a declaration that a certain land belongs to the temple, and bisright to institute the action is challenged on the ground that he does not bolda letter of appointment issued by the Public Trustee under section 11 of theBuddhist Temporatiliee Ordinance and, therefore, is not the duly appointedtrustee of the temple, the burden is then on him to establish that, although,under section 3 of the Buddhist Temporalities Ordinance, the provisions ofthat Ordinance apply to every temple in Ceylon, thoee provisions do not applyto the temple of which he claims to be the trustee.
ABEYESUNDERE, J.—Perera v. Mathew
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Appeal from a judgment of the District Court, Badullst.
B. Wilcratnanayalce, Q.C., with N. Senanayake and B. Nadarajah,-for-lst. defendant-appellant.
T. B. Dissanayake, for plaintiffs-respondents.
March 13, 1963.—Abeyesundere, J.—
In this case the plaintiffs-respondents, claiming to be the trustees ofVisuddharama Temple in Dematagoda, Colombo, instituted an actionagainst the 1st defendant-appellant and the 2nd defendant-respondentin respect of a land in Badulla district which had thereon a buildingdescribed as an “ avasa ”. The plaint alleged that the premises in suitbelonged to Visuddharama Temple and that the 1st defendant-appellanthad taken forcible possession thereof. The plaintiffs-respondents prayedthat the premises in suit be declared to be the property of VisuddharamaTemple, that the defendants be ejected therefrom and that possessionthereof be restored to the plaintiffs-respondents as the trustees of Visud-dharama Temple. The 1st defendant-appellant claimed to be the ownerof the premises in suit by right of purchase and denied that he tookforcible possession of those premises. The 2nd defendant-respondent,who is a Bhikku, was added as a party as he too claimed to be the ownerof the premises in suit. The learned District Judge delivered judgmentin favour of the plaintiffs-respondents. The 1st defendant-appellanthas appealed from that judgment.
Mr. E. B. Wikramanayake, Q.C., who appeared for the 1st defendant-appellant, argued that the Buddhist Temporalities Ordinance appliedto Visuddharama Temple, that the plaintiffs-respondents were notappointed trustees of Visuddharama Temple in accordance with theprovisions of that Ordinance and that therefore they were not competentto institute the action in respect of the premises in suit. If the plaintiffs-respondents had been appointed trustees of Visuddharama Temple inaccordance with the provisions of the aforesaid Ordinance, there wouldhave been a letter of appointment issued by the Public Trustee undersection 11 of that Ordinance. No such letter was produced by theplaintiffs-respondents. They claimed to be trustees of VisuddharamaTemple by virtue of appointment in accordance with the provisions ofIndenture No. 3631 of 4th April, 1919, marked P7 at the trial By thatIndenture the owner of the land on which Visuddharama Temple standsvested that land and the buildings thereon in trustees. Those trusteeswere empowered to have the control and management of all gifts andendowments, movable and immovable, made to Visuddharama Temple.
Mr. T. B. Dissanayake, who appeared for the plaintiffs-respondents,contended that the Buddhist Temporalities Ordinance applied to sanghikatemples only, that Visuddharama Temple was not a sanghika temple
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ABjE)Y£SSlJND£R£t J.—Pirtfu v. Jtf&lActi?
and that therefore the trustees of that temple need not be appointedin accordance with the provisions of that Ordinance. Issue 12 in the
action was as follows –
“ Are the plaintiffs the duly appointed trustees of Maha
Visuddharama Temple, Dematagoda ?”
If the position of the plaintiffs-respondents was that VisuddharamaTemple was not a temple to which the Buddhist Temporalities Ordinanceapplied, the burden was on them, in view of the aforesaid issue, to esta-blish that, although under section 3 of that Ordinance the provisions ofthat Ordinance applied to every temple in Ceylon, those provisions didnot apply to Visuddharama Temple. The plaintiffs-respondents failedto discharge that burden. There was no proof that VisuddharamaTemple was exempted under section 3 of the Buddhist TemporalitiesOrdinance from the provisions of that Ordinance and there was no proofthat Visuddharama Temple was not a sanghika temple.
Three documents relied on by the plaintiffs-respondents containpassages indicating a recognition of the fact that Visuddharama Templeis a sanghika temple. The Indenture marked P7 provides that thetrustees shall hold the subject matter of the trust “ generally for theuse and benefit of or as a dedication for the whole Order of Maha Sangha ”.According to the document marked Pi and entitled “ A dedication of aresidence of Sangha together with other things appurtenant to it ”, thepremises in suit which the plaintiffs-respondents averred belonged toVisuddharama Temple were dedicated “ to the Sangha from the fourdirections ”. The document marked P2 and entitled “ Deed of confir-mation of offering ” states that the premises in suit were donated “as aSanghika offering
Two decisions of this Court were cited on behalf of the plaintiffs-respondents in support of the contention that the properties vested intrustees by the Indenture P7 were not those in respect of which theBuddhist Temporalities Ordinance had any application. The firstdecision cited was that in the case of Moranluduwe Sri Naneswara Dhu'.n-mcinanda Nayaka Thero v. Baddegama Piyaraiana Nayako The.ro1. Thatcase related to the pirivena known as Vidyodaya Pirivena in connectionwith which a Buddhist place of worship had been established. It washeld in that case that “ religious education was the primary purposefor which the institution established on the premises in question cameinto existence and that worship was merely incidental to such purpose ”and that therefore “ the institution that was carried on in the premisesat the time of the filing of the action was not a temple within the meaningof the Buddhist Temporalities Ordinance As the Banghika gift in thatcase was to an institution that was not a temple within the meaning ofthe Buddhist Temporalities Ordinance, the argument that such sanghikagift was not one in respect of which that Ordinance had any applicationwas considered to he sound. In the present caso there was no evidence
* [1868) S9X.L.E.U2.
Gunasekera v. Minister of Lands and Agriculture119
that Visuddharama Temple was not a temple within the meaning of theBuddhist Temporalities Ordinance. The decision in the case relatingto Viuyodaya Pirivena is therefoie not applicable to the present case.The second decision cited was that in the case of L'ducoe Winala fiansi_ it at. v. C. J. 0. Mathew et td.. decided on February 21, 1962.(S. C.
No. 161/’59, D. C. Colombo No. 7865/L—Supreme Court Minutes ofFebruary, 1962.) That case related to a building described as a dharma-salawa. It was held therein that the finding of the District Judge thatsuch building had not at any time become sanghika property was correct.In that case those who claimed to be the trustees of the aforesaid buildingwere the trustees under Deed No. 3631 of April, 1919, which is theIndenture P7 in the present case. There was however no finding in theaforesaid case that Visuddharama Temple was not a temple within themeaning of the Buddhist Temporalities Ordinance. The decision in thecase relating to the dharmasalawa is of no assistance in deciding thepresent case.
I hold that the Buddhist Temporalities Ordinance applies to Visud-dhararua Temple and that the plaintiffs-respondents were not appointedtrustees of that temple in accordance with the provisions of that Ordin-ance. Consequently the properties of Visuddharama Temple did notvest in the plaintiffs-respondents according to law. They were thereforenot competent to institute the action in respect of the premises in suit.For this reason the first defendant-appellant must succeed in his appeal.
I set aside the judgment and decree of the learned District Judge anddismiss the action of the plaintiffs-respondents. The 1st defendant-appellant is entitled to costs in this Court and in the Court below.
P. A. Suva, J.—I agree.
Appeal allowed.