-AMARAWANSA THERO v. PANDITHA GALWEHERA AMARAGNANA THERO

034-SLLR-SLLR-1985-V2-AMARAWANSA-THERO-v.-PANDITHA-GALWEHERA-AMARAGNANA-THERO.pdf


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Amarawansa Thero v. Amaragnana Them
275
AMARAWANSA THERO
v.
PANDITHA GALWEHERA AMARAGNANA THERO
COURT OF APPEAL.
G P. S. DE SILVA, J. AND MOONEMALLE, J.
C.A. 73/76 – D. C. BALAPITIYA 1931.
MAY 16, 23 AND 24, 1985.
Buddhist Ecclesiastical Law – Succession in rotation to Viharadhipathyship of a temple- Right of controlling Viharadhipathy to devise mode of succession – Sisyanu SisyaParamparawa – Section 4(1) and (2) 18, 20 and 22 of the Buddhist TemporalitiesOrdinance – De jure Viharadhipathy and de facto Viharadhipathy – Possessory action.
Gnanatilleke Thero, the original Viharadhipathy of the Pushparamaya alias Nayaketemple, appointed five of his pupils to succeed him by 'Last Will' which was dulyadmitted to probate. The first pupil died and he was succeeded by the secondUttamagnana Thero in order of appointment. Uttamagnana Thero in writing appointedthe plaintiff, his pupil, to be the Viharadhipathy.
After the death of Uttamagnana Thero the plaintiff claiming to be the Viharadhipathysued the defendant who was resident in the temple (according to the defendant on theinvitation of the Uttamagnana Thero and according to the plaintiff as his (plaintiffs)pupil brought in to look after Uttamagnana Thero during his illness) for a declaration thathe (plaintiff) was the Viharadhipathy and for ejectment of the defendant and incidentalrelief.
Held –
Succession to the Viharadhipathyship of a Buddhist temple will be regulated by theform of the original dedication, In the absence of evidence on this point succession willbe according to the rule of Sisyanu Sisya Paramparawa.
Apart from the original founder the lawful controlling Viharadhipathy for the timebeing is also entitled to bequeath the Viharadhipathyship in common to his pupils andthey will become entitled to succeed in turn in order of seniority, This mode ofsuccession is not contrary to the rule of Sisyanu Sisya Paramparawa. 3
(3)In the case of a temple exempted'from the operation of section 4( 1) of the BuddhistTemporalities Ordinance the controlling or de jure Viharadhipathyship has themanagement and title to the properly of the Temple. A de facto Viharadhipathy has nolocus standi to sue for possession of the temple property.
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Cases referred to:
Sangharatna Unnanse v. Weerasekera (1903) 6 NLR 313.
Dharmapala (Jnnanse v. Medagama Sumana Unnanse (1910) 2 C L R. 83.
Unnanse v. Unnanse (1921) 22 NLR 323.
Ratnapata Unnanse v. Kewirigata Unnanse (1879) 2 SCC 26.
Eriminne Unnanse v. Sonabowe and Parakumbure Unnanse; Agent's Court ofKurunegala No. 336; Vanderstraaten's Reports (1869-1871) XL 1 Appendix D.
Oantura Unnanse v. Trie Government of Ceylon – Vanderstraaten 's Reports App.D p. XU.
Gunananda Unnanse v. Dewarakkita Unnanse (1924) 26 NLR 25 7.
Kamburvgamuwa Piyananda Terunnanse v. Uyangoda Sumanajothi Terunnanse(1963) 66 NLR 178.
Saranankara Unnanse v. Indajothi Unnanse (1918) 20 NLR 385.
< 10) Dewandra Unnanse v. Sumanagala Terunnanse (1927) 29 NLR 415.
Piyaratne Unnanse v. Medankara Terunnanse (1931)32 NLR 271.
Driarmarakkita v. Wijitha (1940) 41 NLR 401.
Dhammaratana Unnanse v. Sumanagala Unnanse (1910) 14 NLR 400.
Sumana Therunrtanse v. Somaratne Therunnanse (1 $36} 5 CLW 37.
Chandrawimata Therunnanse v. Siyadoris (1946) 47 NLR 304.
Pemananda Thero v. Thomas Perera (1955) 56 NLR 413.
Dammadaja Thero ir. Wimalajothi Thero (1977) 79(1) NLR 145.
Changrapillai v. Chelliari (1903) 5 NLR 270.
Tissera v. Costa 8 S. C. C. 193.
Banda v Hendrick (1907) 1 Appeal Court Reports 81.
Abdul Azeez v. AbdulRahuman (1910) 14 NLR 317 (P.C ).
Sameen v..Dep(1954) 55 NLR 523.
APPEAL from a judgment of the District Court of Balapitiya.
H. W. Jayewardene. Q.C. with M. L. de Silva and Miss T. Keenewinna fordefendant-appellant.
J. W. Subasinghe. P C. with Prins Gunasekera, Miss E. M. S. Edirisinghe and MissKumari Dasanayake for plaintiff-respondent.
Cur. adv. wit
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Amarawansa Thero v. Amaragnana Thero
277
July 10, 1985.
MOONEMALLE, J.
The plaintiff instituted this action to be restored as controllingViharadipathy to the possession of the Pushparamaya alias NayakeTemple and its temporalities described in the Schedule to the plaint,for ejectment of the defendant therefront, and for damages.
It is common ground that Uddatta Ariyawansalankara GnanatillekeThera was the original Viharadipathy of this Temple, and that by LastWill No. 402 of 9.4.1941 (D1) which was admitted to probate in D.
C. Balapitiya T 31, the said Gnanatilleke Thero appointed five of hispupils, Wellaboda Gnanawansa Thero, Wellaboda UttamagnanaThero, Wellaboda Gnanawimala Thero, Alapalawala MahindagnanaThero and Givilipitiya Mahindabuddi Thero to succeed him after hisdemise in that order. The plaintiff's case was that, the first pupil whosucceeded Gnanatilleke Thero was Gnanawansa Thero who died on26.8.1953, and he was succeeded by Uttamagnana Thero.Uttamagnana Thero, by a writing dated 22.9.1961 (P9) appointedthe plaintiff who was his pupil to be the Chief Incumbent orViharadipathy of the said Pushparamaya alias Nayake Temple. PI 5 is awriting dated 1 8.1961 in which Uttamagnana Thero states that hewith the consent of his senior pupil Wijegnana Thero had entrusted the -said Temple, and its temporalities as set out therein to the plaintiff.According to the plaintiff, from 22.9.1961, he functioned as theViharadipathy and possessed the said Temple and collected itsincome till 10.12.1970 ; and that after the death of UttamagnanaThero on 22.1 1.1961, neither Gnanawimala Thero norMahindagnana Thero possessed or officiated as Viharadipathy of thesaid Temple. According to the plaintiff, the defendant was his pupiland he got him to this Temple to attend on Uttamagnana Thero whowas ill, and after the death of Uttamagnana Thero, the defendantcontinued to live in the said Temple while he (the plaintiff) managedthe temple till 10.12.1970 without any dispute. The plaintiff hadexpelled and removed the defendant from pupilage (Vide Cage 23 ofthe defendant's Upasampada Declaration P 3). Then according to theplaintiff, from 10.12.1970. the defendant had prevented the plaintifffrom collecting the income and profits of the Temple and remained in
wrongful and unlawful occupation of the said Temple and itstemporalities.
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I he defendant denied that the plaintiff had any claim to the saidTemple in dispute and averred that the plaintiff had no cause of actionagainst him. According to the defendant, the appointment byUttamagnana Thero of the plaintiff as his successor as Viharadipathyby P9, is invalid and of no force or avail in law. Further, after the deathof Uttamagnana Thero, in terms of D1, Gnanawimala Thero succeededhim, and after the death of Gnanawimala Thero on 11.5.1969,Mahindagnana Thero succeeded him. According to the defendant, hecame to this Temple in the early part of 1960 on the invitation ofUttamagnana Thero, and after Gnanawimala Thero succeededUttamagnana Thero as Viharadipathy, the administration of theTemple was carried out by him (the defendant) with the consent ofGnanawimala Thero, and on the death of Gnanawimala Thero,Mahindagnana Thero who succeeded him as Viharadipathy, entrustedthe administration of the Temple to him. The defendant's position wasthat the plaintiff never resided in the Pushparamaya alias NayakeTemple but had been resident throughout at the Pathiraja Pirivena inWalagedera.
The trial commenced on the following issues 1 to 10
Did Wellaboda Uttamagnana Thero as Viharadipathy of thePushparamaya alias Nayake Temple appoint the plaintiff as hissuccessor as the Viharadipathy of the said Temple on or about22nd September 1961 ?
Did the plaintiff function as Viharadipathy of the Temple from22nd September 1961 till 10th December 1970 ?
Has the plaintiff being in possession as pleaded in paragraph 4of the plaint of the land and premises described in the Scheduleto the plaint from September 1961 to 10th December 1970 ?
Is the defendant in wrongful and unlawful occupation of the saidland and premises from 10.121970?
If issues 1-4 are answered in the affirmative, is the plaintiffentitled to have the defendant ejected from the said land andpremises and to be placed in quiet possession thereof ? 6
(6)What damages is the plaintiff entitled to ?
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Amarawansa Thero v. Amaragnana Them (Moonemalte, J.)
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Has the plaintiff any claim to the Temple in dispute ?
If the above issue is answered in the negative, can the plaintiffhave and maintain this action ?
Is the defendant in occupation of the said land and premiseswith the leave and licence of the plaintiff ?
If issue 9 is answered in the affirmative, is the defendantestopped from denying the plaintiff's title to the said land andpremises ?
The plaintiff's first witness Mahindagnana Thero gave evidence, andbefore his evidence was concluded, the trial was postponed. Beforethe next date of trial, an application was made on behalf of the plaintiffto amend paragraph 8 of the plaint which dealt with damages.Objection was taken on behalf of the defendant to the proposedamendment. The amendment was disallowed. On the next date oftrial, the learned District Judge despite objections being taken onbehalf of the defendant, permitted two new issues to be raised onbehalf of the plaintiff, and he also allowed the plaintiff to delete is sueNo. 6 which dealt with damages. The two new issues are :
Has the plaintiff possessed the land in question ut dominus fromSeptember 1961 till 10.12.1970 for more than a year and aday ?
If so, is the plaintiff entitled to be restored to possession of thepremises in question ?
This order of the learned District Judge remained without any stepsbeing taken to have it revised. Thereafter the trial proceeded on issues1 to 5 and 7 to 12. After trial, judgment was entered in favour of theplaintiff, directing the defendant to be ejected from the said Templeand premises, and the plaintiff to be restored to possession thereof.This appeal is from that judgment. Mr. H. W. Jayewardene. Q.C., onbehalf of the defendant appellant submitted that the person who canclaim the right to the possession of and the right to administer the saidPushparamaya alias Nayake Temple is the controlling viharadipathy orde jure viharadipathy of this Temple, and that the plaintiff who is notthe de jure viharadipathy of this Temple has no legal status to maintainthis action. He submitted that the learned District Judge erred inholding that the plaintiff was entitled to have the defendant ejectedfrom the said Temple and to be placed in quiet possession of the same
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on the basis that the plaintiff is the de facto viharadipathy of thetemple He further submitted that in terms of Last Will D1, the de jureviharadipathy of the said Temple is Wellaboda Mahindagnana Therowho succeeded as viharadipathy on the death of Gnanawimala Thero.He also submitted that P9 gave no rights to the plaintiff to theincumbency of this Temple. He further submitted that the plaintiffresided at the Pathiraja Pirivena and did not have possession of thisTemple. He finally submitted that the evidence of dispossession led bythe plaintiff is based purely on hearsay.
Mr' Subasinghe, P. C., on behalf of the plaintiff respondentsubmitted that D1 contravened the rule of Sisyanu SisyaParamparawe, and that D1 operated only in respect of GnanawansaThero who was the first named pupil in D1 to succeed to theincumbency. He submitted that Gnanawansa Thero died leaving nopupils therefore Uttamagnana Thero who was the next senior pupil ofGnanatilleke Thero succeeded to the incumbency in accordance withthe rule of Sisyanu Sisya Paramparawa, and that Uttamagnana^ Therohad the right to appoint anyone of his pupils to succeed him.Therefore, the plaintiff who was a pupil of Uttamagnana Therosucceeded to the incumbency by virtue of P9 by which he wasappointed by Uttamagnana Thero to succeed him. He also submittedthat it was only the founder Priest who could appoint his pupils tosucceed him in rotation. So that, as Gnanatilleke Thero was not thefounder priest of the said Temple, D1 had no force or avail in Law. Hesubmitted that the plaintiff respondent therefore had the right tomaintain a possessory action. He finally submitted that there wassufficient evidence led to support the plaintiffs case that he had beenin possession of the said Temple for a year and a day and that he hadbeen dispossessed. Mr. Subasinghe conceded that document P1dated 24.12.72 was written after the institution of this action andtherefore is not relevant to this appeal
Admittedly, the Temple in suit is exempt from the operation ofsection 4(1) of the Buddhist Temporalities Ordinance of 1931 (Cap.222). According to section.4(2) the management of the propertybelonging to every Temple exempted from the operation of section4 (1 )shall be vested in the viharadipathy of such Temple referred to asthe Controlling viharadipathy. Thus, the management of the Temple insuit and its temporalities vest in the controlling viharadipathy of thesaid Temple. According to section 18. it shall be lawful for the trusteeor controlling Viharadipathy of a temple to sue under the name and
CAAmarawanse Them v. Amaragnana Them IMoonemaUe, J )281
style of trustee of the Temple for the recovery of any property vestedin him under the Ordinance or of the possession thereof. Undersection 20 all the movable and immovable property of the Templeshall vest in the controlling viharadipathy. By section 22 theviharadipathy is empowered to enforce all contracts and all rights ofaction in favour of the Temple. It is clear that the person who had thelegal status to institute a possessory action to obtain restoration of theTemple in suit is the controlling viharadipathy of the said Temple.
In the present action, the plaintiff respondent prayed that he berestored fes controlling viharadipathy to the possession of the Templein suit, and issue 1 raised on his behalf at the trial is based on thefooting that Wellaboda Uttamagnana Thero as viharadipathy of theTemple in suit appointed the plaintiff as his successor, as theviharadipathy of the said Temple. The legal status therefore, that theplaintiff claims to have to maintain this action is that he is thecontrolling viharadipathy of this Temple. Thus, the burden is on theplaintiff to prove that he is the controlling viharadipathy of this Templein order that he can maintain this action.
The plaintiff relies on writing P9 to establish that he is the controllingviharadipathy of this Temple. He is the pupil of Uttamagnana Therowho as viharadipathy had appointed him by P 9 to succeed him asviharadipathy of'the said Temple, it is common ground that UkkattaAriyawansalaskara Gnanatilleke Thero was the original viharadipathy ofthis Temple and that he by Last Will No. 402 of 9.4.41 (D1)appointed five of his pupils namely Gnanawansa Thero, UttamagnanaThero, Gnanawimala Thero, Mahindagnana Thero and MahindabuddiThero to succeed him on his death in that order. According to Mr.Jayewardene, Uttamagnana Thero had no power to divert the line ofsuccession given in D1, by appointing the plaintiff to succeed him interms of P9. Mr. Subasinghe on the other hand, challenged the validityof D1 in that it contravened the rule of sisyanu sisya paramparawa andthat the mode of succession set out in D1 could only be made by thefounder Priest of the Temple. The crucial question then would bewhether D1 is valid and effective in Law for the purpose of thesuccession set out therein.'Thus, two questions arise fordetermination. Firstly, whether the mode of succession set out in D1is conoisient with the rule of sisyanu sisya paramparawa, andsecondly, whether the mode of succession set out in 01 could only bemade by the founder Priest or. original proprietor of the Temple.
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Succession to an incumbency is regulated by the torm of the originaldedication -Sangharatna Unnanse v. Weerasekera {1) DharmapalaUnnanse v. Medagama Sumana Unnanse (2) and Unnanse v. Unnanse
.
Where the right to an incumbency is in question, in the absence otevidence to the contrary, it must be presumed that the incumbency issubject to the rule of sisyanu sisya paramparawa – RatnapalaUnnanse v. Kewitigale Unnanse (4) and Unnanse v. Unnanse (supra).
In the present case, there is no evidence as to the mode ofsuccession to the Temple in suit as set out in the original dedication.Thus, the presumption would be that this Temple is subject tc^he ruleof sisyanu sisya paramparawa. Moreover, it is common ground thatthe rule which governs the succession to the Pushparamaya aliasNayake Temple is the rule of sisyanu sisya paramparawa.
What is the definition of Sisyanu Sisya Paramparawa ? This questionarose for determination over one hundred and fifty years agoin – Enminne Unnanse v. Sonabowe and Parakumbure Unnanse (5).Appendix D of Vanderstraaten's Report (supra) contains an extractfrom the proceedings of the Board of Judicial Commissioners held atKandy on 7th February, 1832 – The case was that of ErimmneUnnanse v. Sonabowe and Parakumbure Unnanse (supra) which wasoriginally heard in the Agent's Court Kurunegala but was leftundecided on account of a difference of opinion between the Agentand the Assessors and was referred to the Court of JudicialCommissioners in Kandy. One of the members of the Commission wasof the view that it was material for the decision of the case to ascertainwhether the succession to the incumbency was regulated by theSiwuru or Sisya Paramparawe. These proceedings were forwarded tothe Governor who desired the Board of Commissioners to call a fullassembly of the principal chiefs and obtain their opinion. The assemblyof the Chiefs was convened accordingly. At this meeting, the Chiefsconsidered the opinions of the Mahanayakes of the Malwatte Templeand of the Asgiriya Temple as to the definition of Sisya Paramparawaand Siwuru Paramparawa, expressed by them in the case of DantureUnnanse v. The Government of Ceylon (6) which is referred to in theEriminne Unnanse Case (supra). The Case of Danture Unnanse v. TheGovernment of Ceylon (supra) had come up before the JudicialCommissioner's Court on 26th June, 1827, and was decided on 4thJune, 1828, and the decision was affirmed on 8th August. 1829. Inthat case the Mahanayakes of the Malwatte Temple and the AsgiriyaTemple werejcalled on to define the terms Sisya Paramparawa and
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Amarawansa Thero v. Amaragnara Them (Moonemalle. J.)
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Siwuroo Paramparawa. The Chiefs were unanimously of opinion thatthe rule as laid down in the proceedings by the Malwatte Priests ismore correct than that which was expressed by the Asgiriya Priests.The Malwatte opinion was thus accepted in the Eriminne UnnanseCase (supra).
The propositions of the Malwatte opinion on the Sisya Paramparaweas appearing in the Report of Case No. 366 Agents Court Kurunegala
(supra) are as follows :
"The lands Vihares, etc. belonging to a Bhikku or (Upasampadapriest) will, although he had (so many as) five pupils, devolve solelyto that pupil when an absolute gift was made thereof, and that pupilalone of the said donee will afterwards succeed thereof, whoreceived a regular gift of the same from him. The uninterruptedsuccession of pupils in this manner is termed Sisya Paramparawa.
Should the priest, the original proprietor, declare his bequestcommon to all his five pupils, they will all become entitled thereto,and one of them being elected to the superiority the other four mayparticipate in the benefits. The said Superior being dead, the next inrank will succeed to the Superiority and along with the rest of the(Survivors) will enjoy the benefits. This order having subsisted thelast Survivor will enjoy the benefit and have the power to make a giftin favour of any other person. But the original proprietor priest maytransfer his right to any other person he may choose, passing by hisown pupils. In the event of the original proprietor dying intestate, thepriests who happened to be assembled at his death, becomeentitled in common Things which belonged equally to two priestsdevolve wholly to the survivor."
These propositions of the Malwatte Priests were analysed byBertram, C.J. and Jayawardene, A.J. in their respective judgments inthe case of Gunananda Unnanse v. Dewarakkita Unnanse (7)
Bertram. C.J's analysis is as follows :
"Where a vihara with lands, etc. attached is vested in a priest asthe 'original proprietor', he may take any of the following courses –
If he has pupils (say five pupils) he may make an absolute gift toone of them. In that case the vihare with its lands devolvesabsolutely on that pupil. The pupil may make a similar donationto a pupil of his own. When this goes on uninterruptedly, this iscalled sisya paramparawe.
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The original proprietor' may make a bequest common to all hisfive pupils. In that case all five succeed to the benefits of thevihara, but one is elected to the superiority, and this officepasses in succession to all of the five to whom the bequest hasbeen made. The last survivor may then make a gift in favour ofany other person.
The 'original proprietor', instead of making a gift to a particularpupil, and thus starting a line of pupillary succession, or makinga common bequest to all his pupils, may, if he likes, transfer hisrights to any other person passing over his pupils.
The 'original proprietor' may, if he likes, do none of thesethings. He may elect to die intestate, without making anydisposition of the temple and its lands. In that case (and herecome the important words): 'the priests who happen to beassembled at his death become entitled in common'. Theopinion adds these words things which belong equally to twopriests devolve wholly to the survivor' *
Jayawardene, A.J. set out the propositions of the Malwatte opinion ina different form which are –
"(1) When a priest has several pupils, the temple property woulddevolve ^solely on that pupil to whom an absolute gift had beenmade.
If the priest declares his bequest common to all his pupils, theywill all become entitled thereto – one of them being elected tothe superiority, the others only participating in the benefits.When the superior dies, the one next in rank will succeed to thesuperiority, and the superiority will devolve in that way until thelast survivor, who will have the power to make a gift in favour ofany other person.
The original proprietor-priest may transfer his right to any otherperson passing by his own pupils
If the original proprietor-priest dies intestate priests assembledat his death become entitled in common. 5
(5)Things which belonged equally to two priests devolve wholly tothe survivor."
(2)
(3)
(4)
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The mode of succession set out in the first part of paragraph 2 ofthe Malwatte opinion is reflected in proposition 2 as set out in theanalysis of the Malwatte opinion by both Bertram. C. J. andJayawardene, A. J. This same proposition is reproduced in paragraph
of Jayawardene, A. J's summary of the rules regulating thesuccession to Temples and Vihares appearing at the end of hisjudgment at page 275.
Paragraph {f) reads thus –
'He can appoint by will or deed more than one pupil to succeedhim ; in such a case these pupils, although called jointly, succeedsingly in rotation according to seniority. The pupil who succeeds lastcan appoint one of his pupils, and. in the absence of such anappointment, his senior pupil will succeed him to the exclusion ofthe pupils of the previous incumbents."
This proposition that I have referred to clearly forms part of thesisyanu sisya paramparawa rule laid down by the Malwatte priests,and reported in the case of Eriminne Unnanse v. Senabowe Unnanseand Parakumbure Unnanse (supra}. The mode of succession set out inD 1 is precisely the same as described in the Malwatte opinion and inproposition 2 as set out in the analysis of the Malwatte opinion by bothBertram, C. J. and Jayawardene, A. J. (supra) and which isreproduced in paragraph {/) of Jayawardene, A. J's summary (supra).
There can be no doubt therefore that the mode of succession setout in D1 is consistent with the rule of sisyanu sisya paramparawa.This principle is enunciated in the case of Kamburugamuwa PiyanandaTerunnanse v. Uyangoda Sumanajothi Terunnanse (8) where theoriginal viharadipathy devised by last will the vihare and itstemporalities to all his pupils to be shared equally by them, and afterhis death the pupils succeeded in turn as incumbents, according totheir seniority. Tambiah, J. held that the finding that the original pupilssucceeded in turn to the incumbency was not inconsistent with theapplicability of the sisyanu sisya paramparawa rule.
I held that the mode of succession set out in D1 is consistent withthe rule of sisyanu sisya paramparawa.
On the next question, whether it is only the Founder Priest orOriginal Proprietor Priest who could appoint his pupils to succeed himin rotation, Tambiah, J. in the case of Kamburugamuwa PiyanandaTerunnanse v. Uyangoda Sumanajothi Terunnanse (supra) at pages180 and 181 stated as follows :
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"The early decisions of this Court recognised the right of thefounder to appoint all his pupils to the incumbency When thefounder of a vihare appoints several pupils to succeed him, they allbecome entitled to the temple ; one of them is elected as superiorand the others participate in the benefits (vide Daniura Unnanse v.Government of Ceylon (supra) and this rule received theapproval of Bertram. C.J.in Saranankara Unnanse v. IndajothiUnnanse (9) and several other cases (compare Dewandra Unnansev Sumanagala Terunnanse (10) Piyaratne Unnanse v, MedankaraTerunnanse (11) )".
"Although the original rule as postulated by the Malwatte Priests, isthat it is only the founder priest of a vihare who could appoint anumber of pupils to succeed him, this right appears to have beenextended to any incumbent. Jayawardene, A.J. in the case ofGunananda Unnanse v. Dewarakkita Unnanse (supra), in discussingthe right of an incumbent to apoint his pupil, summarised the rule asfollows (vide 26 N.L.R. at page 275)."
I have already set out this rule (supra) as appearing in paragraph (f)of Jayawardene, A.J's summary pf rules regulating the succession toBuddhist temples of vihares. It is clear from this rule set out inparagraph (f) (supra) that any incumbent can appoint more than onepupil to succeed him in rotation to the incumbency on his demise.
Even when Jayawardene, A.J. analysed the propositions of theMalwatte opinion which were set out differently to that of Bertram,C.J. in the case of Gunananda Unnanse v. Dewarakkita Unnanse(supra) at pages 266 and 267 it is of note that proposition 2 (which isthe relevant proposition) –
"The right of a priest to declare his bequest common to all his
pupils" is not limited to that of the original proprietor priest.
There is no reference in that proposition to the Founder Priest ororiginal proprietor Priest. That proposition has nothing to do with theFounder Priest. It is only in propositions 3 and 4 that reference ismade to that of the original, proprietor priest. According toJayawardene; A.J. proposition 3 had no application to a temple thesuccession to which is regulated by the sisyanu sisya paramparawaAt page 267 Jayawardene. A.J. stated as follows with regard to theMalwatte opinion –
"This opinion is not complete or exhaustive and some of thesepropositions have been considerably modified by judicial decisions.For mstanee,the third proposition which says that the original
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proprietor priest may transfer his right to any other person passingby his own pupils would only apply whbre a priest founds a templeand becomes the incumbent without defining the mode ofsuccession to it It can have no application to a temple, thesuccession to which is regulated by the sisyanu sisyaparamparawa".
Then in the case of Dewandra Unnanse v. Sumanagale Terunnanse(supra) it was held that the incumbency of a Buddhist Temple may beheld by two priests officiating in alternate years.
In the case of Piyaratne Unnanse v. Medankara Terunnanse (supra)it was held that where several pupils of an Adhikari Bhikku succeed tothe incumbency, they must exercise their rights singly and in rotationand not all together.
On a consideration of all these judicial decisions, I am of the viewthat the original rule laid down in the Malwatte opinion, that it is theOriginal Proprietor Priest who could appoint several of his pupils tosucceed him in rotation has been modified and extended to any lawfulincumbent. I thus hold that any lawful incumbent of a Buddhist templeor vihare may appoint several of his pupils to succeed him asviharadipathy in rotation after his demise, and I also . held that thismode of succession is consisent with the rule of sisyanu sisyaparamparawa. I further held that the Last Will D1 does not contravenethe rule of sisyanu sisya paramparawa, and the mode of successionset out therein is consistent with the rule of sisyanu sisyaparamparawa. Thus, the appointment by Gnanatilleke Thera in D1 ofhis five pupils named therein to succeed him in rotation after hisdemise is valid and effective in law Therefore by D1 the succession tothe temple in suit operates as follows : On the death of GnanatillekeThera, Gnanawansa Thera succeeds. On the death of GnanawansaThera, Uttamagnana Thera succeeds. On the death of Uttamagnana 'Thera, Gnanawimala Thera succeeds. On the death of GnanawimalaThera, Mahindagnana Thera succeeds and on the death ofMahindagnana Thera, Mahindabuddhi Thera succeeds. It isMahindabuddhi Thera that would have the right to appoint any one ofhis pupils to succeed him, and if he dies intestate without making anyappointment then by custom the right to succeed is determined byseniority. But the selection of the incumbent rests with the pupils. Sothat if Mahindabuddhi Thera dies intestate then his pupilsessembled at
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nis death are called to succession and they may elect one of their-ownnumber other than the senior pupil as incumbent when the seniorpupils consents or acquiesces in such election, but where the seniorpupil does not consent, then the senior pupil succeeds as incumbent.Dharmarakkita V. Wijitha (12). In Saranankara Unnanse v. IndaiotiUnnanse (supra) Bertram, C.J. stateo :
"By custom the right to succeed is determined by seniority(though it would appear from the evidence recorded in the case ofDhammaratana Unnanse v. Sumangala Unnanse (1 3) that the rightattaching to seniority is not so unqualified as some of our decisionsappear to suggest.'
As Gnanawansa Thera, Uttamagnana Thera, and GnanawimalaThera are admittedly dead, the controlling viharadhipathi or de jureviharadhipathi of the Pushparamaya alias Nayake Temple isMahindagnana Thera. The resulting position is that P9 by whichUttamagnana Thera appointed the plaintiff to succeed him to the saidTemple after his demise is invalid and is of no avail or effect in law.Uttamagnana Thera therefore had no right to divert the line ofsuccession given in D1. Thus, the plaintiff has no legal status to claimto be the controlling viharadhipathi of the said temple. The learnedDistrict Judge came to the correct finding that the appointment of theplaintiff as incumbent by P9 was only to be effective during the lifetimeof Uttamagnana Thera, and it was not an appointment which entitledthe plaintiff to succeed Uttamagnana Thera after his death. He furthercame to the correct finding that the plaintiff had no legal title to be theviharadhipathi in terms of Last Will D 1. As the plaintiff has no legal titleto be the de jure viharadhipathi of this temple, he has no legal status tomaintain this action. However, the learned District Judge, instead ofdismissing the plaintiff s action came to the finding that the plaintiffnad in fact functioned as de facto viharadhipathi of this temple from22.09.1961 till 10.12.1970. It is on this finding that the learnedDistrict Judge entered a possessory decree in favour of the plaintiff.Now the question arises whether the plaintiff who is not the de jureviharadhipathy of the said Temple could claim the right to maintain thisaction on the basis that he is the de,facto viharadipathy.
At one time the view was that a de facto viharadhipathi couldmaintain an action to an incumbency – Sumana Therunnanse v.Somaratna Therunnanse (14) and Chandrawimala Therunnanse v.Sryadoris {15). However, this view was quashed by Sansoni. J. (as hethen was) in Pemananda Thero v. Thomas Perera (16) and the twocases mentioned (supra) were not followed.
CAAmarawansa Thero v. Amaragnana Thero (Moonemalle. J.)289
I quote with approval the following illuminating passages from thejudgment of Sansoni, J. where it is made clear that the BuddhistTemporalities Ordinance of 1931 (Cap 222) contemplated only a dejure viharadhipathi while the concept of de facto viharadhipathi earnsno recognition – At page 414 Sansoni, J. stated, "The termviharadhipathi is defined in section 2 as meaning the principal Bhikkhuof a temple other than a devale or kovila, whether resident or not", andsection 4 (2) reads "The management of the property belonging toevery temple exempted from the operation of the last precedingsection but not exempted from the operation of the entire Ordinanceshall be vested in the viharadhiDathi of such temple hereinafter referredto as the 'controlling viharadhipathi ."'it becomes clear that the firstqualification required of a controlling viharadhipathi is that he should bethe viharadipathi of the temple ; He receives the statutory label"Controlling Viharadipathi" only because the temple is exempted,fromthe operation, of section 4(1) and the management of its propertyvests in him as viharadhipathi instead of in a duly appointed trustee.
At page 417, Sansoni, J. went on to state -"To attach any importance to the circumstances that a Priest whois not the Chief Priest in the line of pupillary succession is actuallyliving in a particular temple and managing its affairs while the ChiefPriest is living elsewhere.would be to lose sight of the mostimportant elements of the definition of a viharadhipathi. It seemsclear, therefore, that in enacting Cap 222 there,was no intention onthe part of legislature to draw a distinction between a viharadhipathiand an incumbent "
At page 416, Sansoni, J. stated -"At no time in the history of Buddhist temples in this Island has apriest who had no right to the incumbency of the temple beeninvested with the title to, or the power to manage, the temporalitiesof the temple. I am unable to accept the suggestion that theOrdinance of 1931, Cap 222, had the far reaching effect ofconferring an important legal status on one who may not even claimto be, and who is not in law, the Chief Priest of the Temple."
Finally, Sansoni, J. came to the conclusion that the correctconstruction to be placed on the provisions of the BuddhistTemporalities Ordinance is that it was intended, in the case of atemple which was exempted from the operation of section 4(1) tovest the management and the title to the property of such a temple in
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the Priest who is the principal Bhikkhu in the line of pupillary successionfrom the first incumbent of that temple. In the case of DhammadajaThero v. Wimalajothi Thero (1 7) Pathirana. J. reaffirmed and quotedwith approval the judgment of Sansoni. J. in Pemananda Thero v.Thomas Perera (sopra). At the page 162 the judgment reads-
"I am of the view that Sansoni, J. was right when he said that theviharadhipathi contemplated in section 4(1) and section 20 of theOrdinance of 1931 is the de jure Viharadhipathi and not the de factoViharadhipathi. The whole purpose of the Ordinance of 1931 will bedefeated if temples and temporalities which should be safeguardedby the lawfully appointed custodian should be permitted to be in thehands of an imposter or one who had no legal claim and give such aperson the protection of the Ordinance."
Thus it is very clear from the provisions of sections 4 (2) 18. 20 and22 of the Buddhist Temporalities Ordinance of 193.1, and the views ofSansoni, J. in Pemananda Thero v. Thomas Perera (supra) and ofPathirana. J. in Dhammadaja Thero v. Wimalajothi Thero (supra) that itis only a controlling Viharadhipathi who has the rights and powers inregard to a Temple exempted from the operation of section 4(1).Thus, though the earlier decisions of the Supreme Court gaverecognition to the concept of de facto Viharadhipathi, that concept nolonger enjoys approval or acceptance in our Courts. Such a concept iscontrary to the very spirit and letter of the Buddhist TemporalitiesOrdinance of 1931.1 hold that it is the Controlling Viharadhipathi or dejure Viharadhipathi of the Pushparamaya alias Nayake Temple whocould have and maintain the present action and no other.
Therefore, in the present action, the plaintiff not being thecontrolling Viharadhipathi or de jure Viharadhipathi of the temple in suithas no locus standi to sue for the possession of the temple propertyand for ejectment of the defendant therefrom. The plaintiff's action isclearly misconceived and must necessarily fail.
Mr. Subasinghe cited several authorities relating to persons who areentitled to maintain a possessory action. In the case of Changrapillai v.Chelliah (18) the manager of a Hindu Temple who had been oustedwas entitled to maintain a possessory action.
In Tissera v. Costa (19) the Muppi of a Roman Catholic Church whowas only a Caretaker was not entitled to maintain a possessory action.
In Banda v. Hendrick (20) a usufructuary mortgagee was held tohave sufficient beneficial interest in the property to constitutepossession uf dominus.
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Amarawansa Thero v. Amaragnana Thero IMoonemalle, J.j
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In Abdul Azeez v. Abdul Rahuman (21) a person appointed by thecongregation of a Mohammedan Mosque as trustee for a term ofyears was entitled to maintain a possessory action.
In Sameen v. Dep (22) a contractual or statutory tenant who hadbeen forcibly ousted could maintain a possessory action.
None of these cases cited by Mr. Subasinghe have any relevance tothe present appeal as the Buddhist Temporalities Ordinance is a codewhich deals with the management and control of Buddhist templeproperty in this country, and the question whether the plaintiff has alegal status to maintain the present action has to be decided byreference 10 that Ordinance.
Hegarding the question of possession, there is no doubt that on theevidence of the plaintiff's principal witness Mahindagnana Thero, theplaintiff has been resident throughout in the Pathiraja Pirivena inWalagedera and not in the Temple in suit. Therefore the plaintiff wasnot in possession of the said Temple.
Further, according to Mahindagnana Thero, he became theviharadhipathy of this Temple after the death of Gnanawimala Theroand he had autnorised the defendant to manage this temple on hisbehalf , thus, the possession of thi Temple by the defendant is lawful.
Finally, on the question of dispossession, the only evidence led isthat of the plaintiff which is based on pure hearsay and this evidence isvague and uncertain, and is insufficient to establish dispossessionwithin the meanin.n of section 4 of the Prescription Ordinance.
For the reasons set out by me, the judgment of the learned DistrictJudge cannot be sustained. Issues 1,11 and 12 have been answeredin the negative as against the plaintiff. I, accordingly set aside thejudgment and decree entered in this case and I dismiss the plaintiff'saction with costs.
I allow the appeal with costs.
G. P. S. DE SILVA, J. – I agreeAppeal allowed.
Plaintiff's action dismissed.
(Note by Editor: Application (No, 88/85) to the Supreme Court foispecial leave to appeal from the above judgment was refused.by theSupreme Court on 24.09.1985)