032-NLR-NLR-V-77-A.-B.-PANANWALA-BASNAYAKE-NILAME-and-2-others-Appellants-and-D.-W.-PUNCHI-BAND.pdf
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Pananwala Basnayake Nilame v. Diaaanayake
1971 Present: H. N. G. Fernando, C.J., and Thamotheram, J.A. B. PANANWALA BASNAYAKE NILAME and 2 others,Appellants, and D. W. FUNCHI BANDA DISSANAYAKEand another, Respondents
S.C. 10/67 (F) —D.C. Kegalle, 16275/M
Buddhist ecclesiastical law—Kapurala of a dewale—Hereditary right—Disqualification on the ground of misconduct—Right of his sonsto officiate as Kapurala.
Members of a certain family had a hereditary right to officiateas Kapuralas of the Aluthnuwara Dewale at Hingula. Accordingly,the right of the plaintiffs’ father Mudiyanse, who was a memberof that family was recognized. In 1958 Mudiyanse was refused theoffice on the ground that numerous grounds of misconduct hadbeen proved against him and that he had thereby forfeited hisright to the office. In the present action the two sons of Mudiyanserelied, both on a deed of assignment from their disqualified fatherand on their own right as members of the family, to claim theoffice for themselves. Their claim was resisted on the ground thattheir right would not accrue until the death of their father.
Held, that although Mudiyanse forfeited his personal right bymisconduct, the rights of his descendants were not thereby forfeited.
PPEAL from a judgment of the District Court, Kegalle.
W. Jayewardene, Q.C., with C. R. Gunaratne and L. C.Seneviratne, for the respondents-appellants.
A. C. Gooneratne, Q.C., with R. C. Gooneratne, for theplaintiifs-respondents.
Cur. adv. vult.
H. N. G. FEENWDO, C.T. ~Parian*"ala Basnayake Nilame v. Diesanayake 173
February 13, 1971. H. N. G. Fernando, C.J.—
In this action instituted in 1963, the two plaintiffs, who arethe sons of one Dissanayake Wannakuralage Mudiyanse, claimeda declaration that they are entitled to officiate as Kapuralas ofthe Aluthnuwara Dewale at Hingula. The action is one of a longseries of actions which commenced in the early nineteen forties,when Mudiyanse, the plaintiffs’ father, together with two othermembers of. the Wannakuralage family sued the BasnayakeNilame of the Maha Vishnu Dewale in Kandy for a similardeclaration. In that first action, No. M. R. 1444, this Court affirmeda judgment of the District Court of Kandy holding that theplaintiffs in that action, as members of the Wannakuralagefamily, had a hereditary right to officiate as Kapuralas of theAluthnuwara Dewale, alternately with members of the Weediya-gedera family, for two-year terms (c.f. the judgment of theSupreme Court reported in 47 N. L. R. 17).
Subsequently to the decision of the first action, the BasnayakeNilames of the Maha Vishnu Dewale did recognize the rightof the plaintiffs’ father Mudiyanse to officiate as Kapurala. Butin 1953, Mudiyanse was refused the office, and that refusal wa?upheld by the District Court of Kandy in 1961, the District Judgedeciding that numerous grounds of misconduct had been provedagainst Mudiyanse and that he had thereby forfeited his right tothe office. In the present action, the two sons of Mudiyanse haverelied, both on a deed of assignment from their disqualifiedfather and on their own right as members of the Wannakuralagefamily, to claim the office for themselves.
In the first action, the claim of the Wannakuralage family tobe hereditary Kapuralas was established on the basis that oneAtugedera Appuhamy had been the Kapurala of this Dewalesome time prior to 1867, and that his daughter Dingiri Menikahad contracted two marriages ; by her first marrige she had ason Siyatu who had been Kapurala ; and by her second marriagea son Appuhamy ex-Arachchi who had also been Kapurala.Thereafter the sons of Siyatu Kapurala, and also the sons ofAppuhamy ex-Arachchi, had functioned as Kapuralas. In facttwo of the successful plaintiffs in action No. 1444, were Siyatu’ssons Mohottala and Punchi Appuhamy, and the third successfulplaintiff was Mudiyanse the son of Appuhamy ex-Arachchi. Thejudgment in that action thus recognized the joint rights of thedescendants of both Siyathu and of Appuhamy ex-Arachchi, andthe joint rights of both branches of descendants was thereafterrecognized by subsequent appointments made by the Basnayake
!*•—A 0S091 (74/07)
174 H. N- Q. FERNANDO, C-JPananwala Basnayake Nilame v. Dissanayake
Nilames. The two plaintiffs, being the sons of Mudivanse and thegrandsons of Appuhamy ex-Arachchi, now claim as the latter’sdescendants.
It is clear from the pleadings and issues in the present actionthat the plaintiffs’ claim is resisted on the ground that their rightwill not accrue until the death of their father Mudiyanse. Thiswould undoubtedly be so if the right of their branch is alreadyenjoyed by Mudiyanse or a brother of Mudiyanse, but that isnot in fact the case. I agree with the learned District Judgethat, although Mudiyanse forfeited his personal right by mis-conduct, the rights of his descendants were not thereby forfeited.I agree also that the incapacity attaching to Mudiyanse is nodifferent from an incapacity arising through senility orunsoundness of mind, and that in the event of a branch nothaving a representative of one generation as Kapurala onaccount of such incapacity, the right accrues to the succeedinggeneration of that branch. The claim of the plaintiffs had thus tobe upheld.
The documents produced in evidence at the trial, and theconstant litigation concerning the office of Kapurala of thisDewale, show that much financial profit can be derived by theindividuals who hold the office, and that the right to exercisethe functions of the office has sometimes been assigned inexchange for a cash payment. Indeed Mudiyanse stated inevidence in the present case that his income for a two-yearperiod as Kapurala had been about Rs. 50,000. If I am right indeploring a state of things in which offerings made at Dewalesout of religious piety are appropriated for private gain, a remedymust be applied by the Legislature, for the Courts have not thepower to deny hereditary rights and attendant privileges longestablished by religious custom.
I can neither share nor discount the foreboding expressed byMr. Jayewardene on behalf of the Basnayake Nilame that, sinceMudiyanse was proved to have been guilty of misconduct in thecapacity of Kapurala, his sons may prove to be equally unsuitablefor that office. In fact however, the claim of the plaintiffs wasnot contested on grounds of their unfitness.
The appeal is dismissed with costs.
Thamotheram, J.—I. agree.
Appeal dismissed.