028-NLR-NLR-V-52-ALGAMA-Appellant-and-BUDDHARAKKITA-Respondent.pdf
1950Present : Dias S.P.J. and Swan J.
ALiGrAMA, Appellant, and BUDDHARAKKITA, RespondentS.C. 5—D.. C. (Inty.y Colombo, ■:59/Trust
Buddhist Temporalities Ordinance (Cap. 222)—Sections 11 (3) and 32 (I)—Right ofprovisional trustee to preserve a temple's temporalities—Meaning of “ Viharadhi-pathi ”—Section 2—Effect of the words " unless the context otherwise requires ".Where a provisional trustee for the Kelaniya Temple was appointed by thePublic Trustee under Section 11 (3) of the Buddhist Temporalities Ordinance,pending an action between two rival claimants to the incumbency of theTemple—.
Held, that, until the status of the person legally entitled to the incumbencywas decided by the Court, the temporalities of the Temple were lawfully vestedin the provisional trustee, who was, therefore, entitled, under section 32 (1>of the Buddhist Tempoigtlities Ordinance, read with section 2, to call uponboth the rival claimants to surrender to him all the temporalities which werein their possession. Section 32 is wide to include persons who are eitlierfunctioning as de facto viharadhipathis or who claim to be viharadhipathis.
A PPEAL from an order of the District Court, Colombo.'
N. K. Choksy, K.C., "with A. U. M Ismail, for the petitioner appellant.
N. E. Weerasooria, K.C., with E. B. Wikramanaytike, K.G., and2j. Qunaratne, for the first respondent.
Cut. adv. vult.
June 27, 1950. Dias S.P.J.—*
This is an appeal by a provisional trustee appointed by the PublicTrustee under section 11 (3) of the* Buddhist Temporalities Ordinance(Chapter 222), against an order made by the Additional District Judge•of Colombo in a proceeding under section 32 of that Ordinance.
The matter arises in this way: The viharadhipathi and trustee of theBLeianiya Temple had two pupils who are the respondents to thepetitioner’s application. The second respondent admittedly is thesenior pupil, and normally, in accordance with the rules of pupillarysuccession, should have succeeded to the incumbency on the death, ofhis tutor. The first respondent, the junior pupil, however, claimed tobe the viharadhipathi by virtue of a nomination alleged to have beenmade in his favour by the tutor before his death. We have been toldthat an action in the District Court between these priestly litigantsis now pending in appeal.. In that action the question as to who is the-de jure viharadhipathi will be finally decided. It is admitted bycounsel that when that desirable result is achieved the questions raisedin the present appeal would probably be of academic interest only.In such circumstances, the obvious thing to do would be to lay this•case by until that case is decided. Counsel, however, are pessimisticas to when that litigation will terminate. They take the gloomy viewthat it will be some months, at least, before that case may even be listedfor hearing in appeal, and there is always the possibility that there maybe an appeal to the Privy Council thereafter. Even thereafter thePublic Trustee will have to be moved to have the de jure viharadhipathiappointed trustee—section 11(2). We, therefore, decided that this
appeal should be heard and disposed of as soon as possible, because,•during the interval which must exist before a trustee is appointed bythe Public Trustee, the care and custody of the valuable temporalities«of this famous Temple would be in jeopardy.
The earlier history of this dispute between these two monks will befound set out in Buddharalcltitha There v. The Public* Trustee
Under the Buddhist Temporalities Ordinance, it is the duty of theviharadhipathi, i.e.r the de jure viharadhipathi, to nominate a trusteefor the temple, except in certain excepted cases—section IP (1). It isopen to the viharadhipathi to nominate himself as the trustee—section 11(1).In either case, the nomination must be first reported to the Public Trustee,whose duty it is to issue a letter of appointment to. the person nomi-nated, unless such appointment, would, contravene some provision of the
Ordinance. What happened in this case is that each of the rival claimantsto the incumbency, claiming to be the de jure viharadhipathi, having:nominated trustees., the Public Trustee, pending the- decision by acompetent Court or ecclesiastical tribunal, as to which of them had the.preferent claim, appointed the petitioner to be the Provisional Trusteeof the temporalities of the temple under section 11 (3)). His actionhas been upheld by this Court. Therefore it follows that until the statusof idle person legally entitled to make the nomination has been decided,the temporalities are lawfully vested! in the Provisional Trustee. Thequestion of status has not yet been decided.
The petitioner having failed to obtain possession of the temporalities,or adequate information regarding them, moved the District Courtunder section 32 of the Ordinance, naming both monks, i.e., both theclaimants, as the respondents to his application. The second respondent(the senior pupil) who does not contest' the petitioner’s claim has shownno cause. The first respondent has done so, and a kind of state trialhas been held in regard to a matter which should have been summarifydealt with.
The relevant passage in section 32 is sub-section (1) and reads asfollows: —'
“ 32.(1) Whenever the trustee of any temple who has vacated
his office as trustee for any cause whatsoever under the provisionsof the Ordinance or of any Ordinance hereby repealed, or any viharadhi'-pathishall hold or occupy, either directly or through any other personon his behalf, any movable or immovable property belonging to anytemple, and shall refuse or neglect to deliver possession of such property, to the trustee for the time being of the said temple, or to any personauthorised in that behalf by the Public Trustee, it shall be competentfor such trustee, or for the Public Trustee, or the person authorisedas aforesaid, as the case may be, to apply by way of summary procedureto the court for a wi-it requiring such first-named trustee or viharadhi-pathi- to deliver possession of the property to such other trustee oi~person aforesaid. ’ ’
The learned Judge has dismissed the application of the petitioner whoappeals therefrom..
Mr. N. E. Weerasooria who appears for the first respondent admitsthat there are certain findings of the learned Judge which he cannot-support. He, nevertheless, submits that in the result the Judge hasreached a correct conclusion.
In order to succeed, the petitioner in this case has to satisfy the Court
that the two respondents are “ viharadhipathis ”, (b) that they holdor occupy, either directly or through any other person on their behalf,00 any movable or immovable property belonging to the KelaniyaVihare, and (d) that they have refused or neglected to deliver possessionof such property to the petitioner, who is the duly appointed ProvisionalTrustee. If the petitioner succeeds in- establishing those facts, the Courtmust issue a writ of possession. As the proceedings have to be insummary procedure, the parties can show cause before the writ issues.
In tiig petition the petitioner alleged the facts which I have statedabove and averred that he had -called upon both respondents to furnishhim with all information as they may possess regarding the incomeof the temple from offerings made by the faithful since the date of thedeath of the incumbent, the nature,.-extent and value, of all lands formingthe temporalities of the temple, the amount of the rents and profitsderived from the temporalities, and to hand the same over to him.The petitioner stated that the respondents had failed to comply withliis request. He therefore moved for relief under section 32.
The second respondent appeared in Court and stated that he had nocause to show. The first respondent fijed' objections and later he submittedamended objections. I am informed that at this point of time,- this Courthad delivered its order in Buddharakkitha Thero v. The Public Trustee l.He pleaded (a) that the appointment of the petitioner to be ProvisionalTrustee was ultra vires and bad and that the application had been made** collusively with the object of harassing ” him and depriving■ him ofhis just rights These objections were filed on May 3, 1948. TheSupreme Court judgment was given on March 4, 1948. The firstrespondent was a party to that case. It is not understood, therefore,how either the first respondent or his proctor could, in the light of thejudgment of the Supreme Court, canvass the finding of this Court.{b) It was contended that relief under section 32 was hot available tothe petitioner to proceed against the two respondents alternatively, orwithout specifying the property. With regard to the latter contention,the petitioner does not know what the property is, and in this proceedinghe is trying to ascertain what it is. It appears from what the firstrespondent states about “ his just rights ” that he is probably in possessionof the temporalities, and he is unwilling to disclose them. (c) The firstrespondent further says that the Malwatta Sang a Sabawa has declaredthat he is the Viharadhipathi, and that, therefore, the petitioner is functusofficio. There is no proof of this fact. He failed to disclose that thequestion as to who is the de jure viharadhipathi is the subject ofpending litigation between the two respondents in the District Court ofColombo.-
A large number of issues were framed. Counsel for the first respondent,however, desired .the Court to deal with what he called “ a preliminaryobjection ”." His argument is that it was open to the petitioner to
proceed either by way of regular action, or by means of the “ short cut ”provided by section 32. In the latter case it was the duty of the petitionerto bring himself strictly within the provisions off section '32. He furthercontends that either of the respondents does not come? within the definitionof “ Viharadhipathi ” in the Ordinance. He further argues that oneeit was conceded that, the first respondent is the viharadhipathi, the status-of the petitioner as Provisional Trustee vanishes,, and the Court wouldhave no jurisdiction to proceed further. He also submitted that in. anapplication under section 32 the property sought to be recovered mustbe specified, and, finally, that relief in the alternative could not be askedfor under section 32.
The District Judge decided to deal -with the preliminary objection:in the first instance. Neither side called oral evidence. The Courtproceeded on the affidavits and the arguments of counsel.
The first question to decide is as to what meaning should be assignedto the words “ Any Viharadhipathi ” in section 32 (1) ? Section 2 ofthe. Ordinance provides that “ Viharadhipathi ” means the “ principalbhikku of a temple other than a dewale oar kov’ila, whether resident or notSection 2 defines the words “ Bhikku ” to mean “ a bhikku whetherupasampada (i.e., fully ordained) or damanera ” (i.e., a novice who hasnot proceeded to the upasampada ordination). Canekeratne J. in Punchi-rala v. Dharmananda Thero 1 pointed put that there are .several kindsof bhikkus..“ A bhikku may be t1ae presiding officer of a vihare, or a.
resident priest, or a non-resident priest (agantuge). The presidingpriest is known as the viharadhipathi, sometimes he is called the incumbent(the incumbency is called the adhipathi kama), in some cases the adhikanbhiks’hu. ' The viharadhirpathi has charge of the vihare and premises and.the rights and ceremonies within it, a resident priest has no such charge -He lives in the pansala in the vihare premises and assists in the services.He ’ is generally subordinate to. the viharadhipatJvi. The agantuge-generally is not permanently resident in a particular vihare—he goesto some vihare and is there for some time ; sometimes he may assistin the services ”..■ f
Obviously, until the civil litigation pending between these two monksreaches a final conclusion, it will not be possible for anybody to say who*is the de jure viharadhipathi of this temple. Until then we do not knowwho has the right to nominate the Trustee. If the appointment of the-junior monk is held to be bad, the senior pupil (second respondent)would by virtue of pupillary succession be the de jure viharadhipathi-On the other hand, if the letter of appointment is held to be valid andeffectual, then the claims of the junior first respondent would be preferent.We do not know, and, if we did, we should not be influenced by thedecision in the civil action until it reaches finality. Therefore,. theposition so far as we are concerned is, that it cannot be said at pres.enbwho is the de jure viharadlvipathi of this temple. Therefore' there isno trustee and the Provisional Trustee is entitled to possess thetemppi-alities…
It is contended that the definition Of “ Viharadhipathi ” in section 2means the de jure viharadhipathi. Section 2 does not say anything ofthe kind. What it says is that “ unless the context otherwise requires,
‘ Viharadhipathi ’ means the principal bhikku of a temple ….
I find it impossible tci interpret the word " principal ” to mean “ de jureThere are several sections in the Ordinance which indicate that, while-there may be a “ principal bhikku ” in a temple, there can also be a-" controlling viharadhipathi ”—see sections 18, 28 (1) (2), 29 and 31.Furthermore, having regard to the aim. scope, and purpose of the BuddhistTemporalities Ordinance—namely, the preservation of the propertyof the temple in the hands of a trustee who is accountable to the PublicTrustee, the object of the legislature would be completely frustrated if„
5n a esse like the present, the Court is powerless to grant relief to theProvisional Trustee whose object is solely to preserve the valuabletemporalities of this famous temple, until the question as to who isthe person who can lawfully nominate a trustee has been decided onceand for all.
The opening words of section 2 of the Ordinance says that the definitionscontained in that section are to have effect “ unless the context otherwiserequires ”. The context in which the words “ any viharadhipathi ” isused in section 32 shows that tl^e object of the legislature would bedefeated by giving those words the narrow interpretation contendedfor by the first respondent. Hameed v. Anarnally 1 is a case in point.Nagalingam J. quoting Maxwell on the Interpretation of Statutes said'
' ‘ Though the term * landlord ’ is, no doubt, given in the definition set out '…. in the Ordinance, it is important to bear in mind that the
definition is qualified by the words * unless the context otherwise requires ’.In regard to sections 3 and 7 of the Ordinance …. I have littledoubt that the term ‘ landlord ’ must be given its meaning as in thedefinition …. But, in regard to the construction of proviso (c),the definition of the term ‘ landlord ’ as given in the Ordinance cannotbe invoked, for otherwise, the undoubted result …. wouldbe to defeat the very object the Ordinance had in view in enacting thissection ”. In my view, that is the position here. To construe section32 in the manner contended by the first respondent would be to causethe risk of the temporalities of the Helaniya Temple being frittered awayor misused. In Beal’s Cardinal Rules of Regal Interpretation (3rd edition)page 351, are cited cases where the plainest words of a statute may,under certain circumstances, be controlled by a reference to the contextin which they are used. The Buddhist Temporalities Ordinance showsthat the word “ viharadhipathi ” is not used throughout the Ordinancein a uniform sense. In my opinion section 32 applies to “ any viharadhi-pathi ” whether de jure or de facto or who claims that status, whether inoffice, or whether removed from office, who has in his possession or underhis control any of the temporalities of a Buddhist temple, and whichhe refuses or neglects to hand over to the duly appointed trustee or theprovisional trustee. Such a person or persons can be proceeded withimder this section. As the singular number includes the plural undersection 32, two persons can be proceeded against jointly or alternatively—-Of. Aitken Spence & Go. v. The Ceylon Wharfage Co.2.
Admittedly, the learned Judge has erred in certain of his conclusions.Tie erred in construing section 32 by reference to the section of a repealedOrdinance. This led him to hold1 that section 32 only applies to aviharadhipathi who has-been suspended or removed from office. There isno warrant for suoh a construction of section 32. The learned Judgefurther held that because the petitioner did not plead in his petitionthat the respondents are “ viharadhipathis ”, but that they only claimto be such, therefore, the petitioner’s application must be dismissed.In my Opinion section 32 is wide enough to include persons who areeither functioning as de facto viharadhipathis or who claim to be viharadhi-pathis. I cannot agree with the learned Judge that it is the duty of – the1 {1946) 47 N.L.R. at p. 559-5603 {1900) 4 N.L.R. 263
petitioner to allege, in his application that the first respondent is inpossession of the property, or to detail the property he desires to be-restored to him. To require a man like the petitioner to specify theproperty is asking – him to do what is impossible. The petitioner asprovisional trustee is in the dark and is endeavouring to obtain, possessionof the property. If the first respondent is not in possession of thetemporalities the■ petitioner will fail if he cannot establish that fact. *
I Set aside .the order appealed against and send the case hack t'o beproceeded with. The District- Judge will give this case top priorityin his cause list, and, having regard to the proviso to section 143 (2) ofthe Civil Procedure Code, deal with the case with the utmost despatch.The petitioner, will have his costs bath here and below.
' Swan J.-—I agree.
Order set aside.