073-NLR-NLR-V-29-ATTADASSI-UNNANSE-v.-REWATA-UNNANSE.pdf
( 361 )
Present : Dalton and Lyall Grant JJ.ATTADASSI UNNANSE v. REWATA UNNANSE.
1988.
3M—D. C. Kurunegala, 8,665.
Extra judicial tribunal—Finding questioned in Civil Courts Groundsof interference—Buddhist law—Claim- to incumbency.
A person, whose civil rights are involved, is entitled to questionthe finding of an extra judicial tribunal on the ground of grossirregularity or improper conduct on the part of the tribunal.
Semble' the incumbent of a Buddhist vihare is not entitledto claim compensation for improvements effected during his in-cumbency.
A Buddhist priest who has been expelled from the priesthood cannotclaim to retain the incumbency on the ground of prescription.
HE plaintiff sought to be declared entitled to the incumbency
of the Angangala vihare, and that the defendants be restrainedfrom interfering with him in the discharge of his duties. Theplaintiff stated that one Ratanapala Unnanse, the incumbent, diedin 1909, and that he, as the senior pupil, succeeded him. It appearsthat Ratanapala had, in 1897, executed a deed appointing the 1stdefendant as his successor. But plaintiff pleaded that Ratanapalawas not entitled to supersede him. It was further pleaded thatthe defendant had been expelled from the priesthood by the MahaSanga Sabha after inquiry into charges of immorality and misconductbrought against him. As a result, the defendant’s right to theincumbency had been determined, and the plaintiff was dulyappointed incumbent by the Maha Sanga Sabha.
The defendant pleaded that since his appointment in 1897 hehad been sole incumbent of the vihare, and that he had acquired anexclusive right to the incumbency by prescription.
The learned District Judge held in favour of the plaintiff on allthe issues.
R. L. Pereira (with D. B. Jayatilleke), for 1st defendant, appellant.
H. T’. Perera (with Batuwantudave and Wijewardene), for plaintiff,respondent.
February 3, 1928. Dalton J.—
The plaintiff, Attadassi Unnanse, sought in this action to bedeclared entitled to the incumbency of the Angangala vihare, andthat the defendants be restrained from excluding him from thevihare,' or from interfering with him in entering upon and dischargingthe duties of the incumbency. He pleaded that one Ratanapala
T
( 362 )
1028.
DaLto n J.
AUadassiUnnanaev. RewataUnnanae
Unnanse, who was incumbent, died about 1909, and that he (plaintiff)was his senior pupil, the incumbency being held under the tenureknown as Sisya sisyanu paramyarawa. Batanapala had in 1897executed a deed (1 DS) in favour of the 1st defendant, RewataUnnanse, but plaintiff pleaded that Batanapala was not in Buddhistlaw entitled to substitute anyone as incumbent, ancl that on hisdeath the incumbency devolved on him (plaintiff). Lastly, theplaint set out that, in 1920 the Maha Sanga Sabba, presided -overby the Mahanayake priest of the North-Western Province, afterinquiring into charges of immorality and other misconduct againstthe 1st defendant, Rewata in his presence, made a report to theMahanayake and Chapter of Priests of Malwatte vihare declaringthe 1st defendant “ parajika ” and unfit to be a member of thepriesthood and expelling him therefrom. As a result any rightRewata had to the incumbency was determined, and, four monthsafter, the Maha Sanga Sabha duly appointed plaintiff as incumbentof the vihare.
. The two defendants filed one answer- Therein it was pleadedthat Batanapala died leaving no pupils, and in 1897 by deed (1 D3)he had appointed and constituted Rewata and one Serananda to the•incumbency. Serananda, it is agreed, did not act and shortly afterdisrobed himself. Rewata pleaded that he had been sole incumbentof the vihare, which he says he had rebuilt and improved in numerousways, since 1897 and had acquired an exclusive right to the vihareand its appurtenances by prescription. He further urged that ajudgment of this Court in a previous action (D. C. Kurunegala,No. 6,454) is res judicata and a bar to plaintiff’s claim. Withrespect to the inquiry into his alleged immorality and expulsionfrom the priesthood, Rewata merely makes a general denial. In•respect of the 2nd defendant the answer merely states, that Rewatahas appointed him his pupil to succeed him as incumbent of thevihare.
Some eighteen issues were framed and agreed to by both sides.Those which are material to this appeal are the following : —
(2) Does the judgment and decree in case No. 6,454 operate asres judicata against plaintiff ?
(9) Did the Mahanayake of Malwatte vihare declare the 1stdefendant (Rewata) unfit to be a member of the priesthoodand order his expulsion ?
(.10) Did the Mahanayake appoint the plaintiff as incumbent ofthe vihare ?
(11) Is the said appointment a valid one ?
An issue was framed as to whether the Angangala vihare apper-tained to the Malwatte fraternity. There is a finding of the trialJudge that it did, and on this appeal Counsel for appellants (1st
( 363 )
and 2nd defendants) admitted that the vihare appertained to theMalwatte fraternity, and that it was held under the tenure Sisyasisyanu paramparawa. No issues were framed as to any rights ofthe 2nd defendant. The learned trial Judge found on all theseissues in favour of the plaintiff and entered judgment as prayed forwith costs.
With regard to the 2nd issue, in 1917 one Gurunanda Terunnansebrought the action No. 6,464 against three defendants, of whomEewata was one and Attadassi, the present plaintiff, another. Inthat action Gurunanda asked for a declaration that he, the 2nddefendant, and Attadassi be declared entitled to share in the rights,privileges, and advantages of the incumbency of the Angangalavihare, and that Eewata be ejected therefrom* In reply Eewataset up the deed of 1897 which has been marked in this case (1 D3).It is obvious, however, on reference to the judgment of Bertram C.J.upon which appellants rely, that all the Court there decided wasthat the deed operated as a resignation of the incumbency byEatnnupnln, and that thereby the incumbency became vacant.Whether or not Eatanapala could make a valid appointment ofEewata to the incumbency was not decided, it being merely heldthat Gurunanda at any rate had acquired no right of action. What-ever the respective rights of Eewata and Attadassi, Bertram C.J.says, the Court was not called upon to decide, and I can find nosupport in the judgment for the argument that the Court heldthat the deed appointed Eewata incumbent. The learned trial•Judge’s answer to this issue is in my opinion correct.
On the 9th issue there is in my opinion no difficulty, nor shouldihere have been any difficulty at the trial. Eewata in his answermerely denied the truth of the plea that he had been found guilty ofimmorality and expelled from the priesthood. In view of theevidence led he was clearly unable to sustain that defence. Whenhowever evidence was led on behalf of the plaintiff to prove thesefacts which were pleaded, certain questions were asked in cross-examination suggesting the proceedings of the Ecclesiastical Courtwere irregular and so not binding upon the 1st defendant, Eewata.There was no such suggestion in his defence, nor is there any suchsuggestion raised in any of the issues and the learned Judge waswrong in saying that just because certain suggestions were madein the cross-examination of witnesses, it was matter which camebefore him for decision on the trial. Plaintiff presumably calledevidence to support the case presented by him and to meet the casepresented by the defence in pleadings and issues. If further issueswere required by either side at any stage of the proceedings theyshould be duly framed, if the Court agrees it is right, so that eachside may know what he has to meet. It is unnecessary to speculateas to what might have been done by the plaintiff in the way of –
1928.
Dalton
J.
AttadassiUnnaAsev. BewataVnnanse
1928
Daikon J.
AuadasaiUnnanaeVj. RewataU nnanse
( 364 )
producing evidence had any amendment of the pleadings beenasked for and allowed, or had any other issues been raised. Thepurport of pleadings and issues is to set some definite limits to thematter upon which the parties are asking the Court to adjudicate.It is difficult to think that this allegation of irregularity on the partof the ecclesiastical tribunal, which is now the main ground uponwhich the appeal is based, is anything but an afterthought oranything but a straw thrown out by Counsel for the defendant incross-examination to which Rewata might clutch.. This comment is,in my opinion, fully justified when one considers the most prominentpart played by this argument on the appeal, and the absence of anysuggestion of the existence of any irregularity either in the pleadingsor; issues before the trial Judge. If the defence has raised noquestions to any irregularity in the proceedings in which he wasfound guilty, it was presumably because he was not able to do so,and it is certainly too late to do so now.
The proceedings before the ecclesiastical tribunal were put infor the purpose of proving that the Mahanayake of Malwattevihare had declared Rewata unfit to be a member of the priesthoodand had ordered his expulsion. They show, as does also theevidence before the trial Judge, that Rewata agreed in writingto abide by tic decision of the tribunal and was present all throughthe proceedings, cross-examining witnesses and calling evidencehimself. The judgment of the tribunal was confirmed by the MahaSanga Sabha, the order setting out the matter at length andconcluding in these terms : “ And as the' said accused priest hascommitted a great many offences against the Buddhist doctrineand thereby lost all priestly rights and privileges, it is adjudgedthat he be debarred for ever from the rights of the priesthood andtheir communion and be expelled from ecclesiastical grounds, andas he has had sexual intercourse he shall lose his incumbency ofAngangala vihare and be expelled therefrom and from otherBuddhist vihare grounds." Rewata received notice of the verdictand of the date when judgment would be delivered, but he did notattend. He applied however in September to the Maha SangaSabha for a retrial. As apparently he gave no reasons to supporthis request, it was refused. Subsequent events, put shortly, are thatthereafter application was made to have an incumbent appointedin his place, whereupon Attadassi put forward his claims and he wasduly appointed by the Maha Sanga Sabha (PI)- The date of thisappointment is not given in the translation, but when Attadasiwent to take possession of the vihare, Rewata was there andresisted him. These proceedings were thereafter taken.
The law with reference to the proceedings of extra judicialtribunals in the position of the Maha Sanga Sabha is referred to byWood Renton J. in Dharmarama v. Wimalaratna.l He points out
* 5 Bal. N. C. 57.
( 365 )
that Courts o£ law are exceedingly slow to interfere with the exerciseof the jurisdiction of domestic tribunals to which each of theirmembers has either expressly or by implication submitted himself.That jurisdiction must however not be exercised arbitrarily, butwith due regard to regularity and fairness; for example, as pointedout by the Privy Council in La Poiwte v. L*Association de Bienfai-sance et de Retraite dela Police de Montreal1 the rule expressed insuch a maxim as 4' audi alteram partem ’* is applicable to any tribunalinvested with authority to adjudicate upon matters involving civilconsequences to individuals. It is open of course to an individual,if his civil rights be involved, to question the finding of any suchtribunal before the Civil Courts on the ground of gross irregularity orimproper conduct oxr the part of the tribunal, but the onus ofestablishing such or any other grounds he may urge is upon the per-son averring them. Here 1st defendant has not taken upon himselfeven to make any such averment. Upon satisfactory prooftherefore, as here, that a tribunal which the evidence shows hadjurisdiction to deal with him for an offence in Buddhist law has sodealt with him, that he has admitted the authority of that jurisdictionand has been duly heard, and that in Buddhist law certain resultsfollow from his proved misconduct and effect has been given theretoin the judgment of the tribunal, the learned Judge, accepting thatevidence, was bound to answer the 9th issue in favour of the plaintiff,and this answer concludes 1st defendant's claim to the incumbency.In reply to a question I put, Counsellor Rewata stated that the ideaof a lay incumbent was foreign to Buddhist law, and that theincumbency of a vihare could not be held by any one who wasno longer a priest.
Upon the 10th issue the learned trial Judge finds that the plaintiffwas duly appointed the incumbent of the vihare on January 1, 1921.There is evidence to support this finding, and also to support theconclusion of the trial Judge that it was a valid appointment. Inview of the answer which must be given to the 9th issue, and in theabsence of any person with the right of succession under Sisyasisyanu paramparawa, on the authorities cited it seems to methe appointment was valid as the trial Judge finds.
In these circumstances it is not necessary to deal with any otherissues. Mr. Perera has argued on behalf of the respondent thatRatanapala had no right to appoint Rewata or anyone else in placeof himself as incumbent or to appoint anyone to succeed him(issue 6) as he is said to have done by the deed (1 D 3). It is notnecessary for the purposes of this case to decide that point in viewof the answer which must be given to issue 9. On the assumptionthat Rewata was entitled to claim that he had been appointedincumbent either during Ratanapala’s lifetime or as from his death
1 (1906) A. (7. 536.
1928.
Dalton J.
AttadaaaiUnncmaev. RewataUnnanse
( WG )
1028.
DiLlOK J.
AUadaesiUnnansev. RewataUnnanse
in 1909, that incumbency has been determined by the order of thetribunal with which I have already dealt. No authority has beencited to us to show that Rewata is entitled to compensation forany improvements he claims to have- effected during the periodin which he was incumbent, whether it be de jure or de facto, and thelearned Judge states there is no document to show he has effectedany improvement since Ratanapala’s death. On this, the 16thissue, therefore his decision must stand. On his claim also to haveobtained an exclusive right to the incumbency by prescriptionnq authority has been cited to us to show that, assuming a Buddhistpriest can maintain such a claim, he can do so if he be expelledfrom the priesthood. It is admitted by his Counsel that theincumbency can only be held by a priest, and that in Buddhist lawa priest can be deprived of, or can free himself from, the character,or status, or quality of a priest.
With respect to the 2nd defendant, all that it is necessary to sayis that he claims the right of succession to Rewata by deed, saidto have been executed after Rewata had been found guilty by theecclesiastical tribunal, which deed however he does not produce.I agree with the learned Judge’s conclusion as to the value of thatdeed.
For these reasons therefore in my opinion the appeal must bedismissed with costs.
Lyall Grant J.—I agree.
Appeal dismissed.