103-NLR-NLR-V-66-BADDEGAMA-SRI-RATNASARA-THERA-Appellant-and-M.-H.-M.-BASHEER-and-10-others-.pdf
T. 8. FERNANDO, J.—Baddegama Sri Ratnasara Thera v. Basheer 43S
Present: T. S. Fernando, J., and Sri Skanda Rajah, J.
BADDEGAMA SRI RATNASARA THERA, Appellant,and M. H. M. BASHEER and 10 others, Respondents
S. C. 87 of 1962 (Inty.) ~D. C. Matara, 1032fP
Buddhist ecclesiastical law—Viharadhipathi—“ Assignment ” by him of managementof temple property to a pupil—Right of appointee to represent temple after thedeath of the viharadhipathi.
The viharadhipathi of a temple executed a deed about one and a half monthsbefore his death. The deed was styled an assignment of management andpurported to appoint the 10th defendant, who was one of the junior pupils,to manage tl.e property of the temple during the lifetime of the viharadhipathiand, thereafter, to Bucceed as adhikari.
Held, that the 10th defendant had a legal right, on the death of the viharadhi-pathi, to represent the temple in an assertion of title to sanghika property.
-A.PPEAL from an order of the District Court, Matara.A. F. Wijemanne, for the 10th defendant-appellant.
W. D. Gunasekera, for the 1st defendant-respondent.No appearance for the other parties.
Cur. adv. vult.
June 1, 1964. T. S. Fernando, J.—
The 10th defendant-appellant who described himself as the ChiefIncumbent and Controlling Viharadhipathi of Kovilakanda PuranaViharaya claimed that he was entitled as Viharadhipathi of the saidtemple to an undivided half-share of the land sought to be partitionedin this action. One of the points of dispute {point No. 8) was whether aJ share of the land belongs to the Kovilakanda Rajamaha Viharaya.This point of dispute was decided by the learned District Judge adverselyto the temple, and the substantial question that arises for decisionon the present appeal is whether the learned judge was correct in hisdecision. The claim to an additional J share on the basis of prescriptivepossession by the temple was not pressed.
The J share claimed by the 10th defendant on behalf of the templehas been allotted to the 3rd defendant who claimed to have purchasedan undivided £ share as recently as September 19, 1955 on transfer3D1 for a consideration of Rs. 100, of which sum a part (Rs. 50)was stated in the deed to have been paid prior to execution thereof.
lxvi—19
2—* 25«—1,855 (12/64)
434 T. S. FERNANDO, J.—Baddegama Sri Ratnasara Thera v. Basheer
This partition action itself was filed on November 1, 1955, a few weeksafter the execution of 3D1. There is no earlier deed executed by anyof the predecessors in title of the vendors on 3D1.
The claim of the temple to a £ share is made on the strength of veryold documents. By 10D2 Banagala Sudassi Thera purchased in 1856from one Andris 8 kurunies paddy sowing extent of the field calledKajjugaha kumbura situate in Padilikokmaduwa village. Andrishad himself purchased this extent from one Lokuhettige Siman Appuby transfer 10D3 of the year 1840. The learned trial judge states thatthese two old documents do not recite the boundaries of Kajjugahakumbura, but the extent mentioned, viz., 8 kurunies paddy sowingextent is exactly one-fourth of 32 kurunies paddy sowing extent whichis the extent of the land to be partitioned according to both the plaintiffand the 3rd defendant.
A Grain Tax Commutation Register of 1890 (10D4) which the 10thdefendant attempted to produce in evidence was shut out on objectionsraised on behalf of the plaintiff. The reason or reasons which movedthe Court to reject this document are not stated on record ; but if itwas rejected on the ground that it had not been listed, we think thaton account of the importance of the document the Court should, in theface of the pedigree in this case, have permitted its production evenon terms. TVe have examined the document as it is to be found amongthe papers in the record. It appears to be an original document, andshows that in the year 1890 Apparakkege Appu, Banagala SudassiTerunnanse and others were considered the owners and registered assuch. As all parties are agreed that Apparekkege Appu was entitled to ahalf-share of this field, this document helps (1) to prove the title ofAppu and (2) to identify the field referred to therein with the fieldspecified in documents 10D2 and 10D3. In the purchase bySudassi Thera (10D2) there is a recital that the money paid thereforwas sanghika money and that the vendee was to hold and possessfor the use and benefit of the Maha Sangha and the Viharaya. AsI have stated already, 10D4 should not have beer rejected at the trial;if it had been admitted and considered along with 10D2, the Courtwould have seen that the claim put forward by the 10th defendantin an assertior of the title of the temple is one that could not have beenbarred by prescription—vide section 34 of the Buddhist TemporalitiesOrdinance. The Temple’s claim gains further support from a referenceto the terms of transfer deed Pi executed in 1901 by ApparekkegeAppu wherein he conveyed “all thrt remaining portion save andexcept the 8 kurunies of paddy sowing extent granted for charity ofKajjugaha kumbura alias Gamage kumbura ”.
The 3rd defendant immediately prior to the institution of this partitionaction probably made a speculative purchase; even if it was notsuch a purchase, it is not entitled to prevail over the title of the templewhich cannot be defeated by prescription,
T. S. FERNANDO, J.—Baddegama Sri RcUnasara Thera v. Baeheer
436
The other question that needs examination on this appeal is theclaim of the lOtb defendant to represent the temple in this action. Itis not doubted that he is in the paramparauv of the previous viharadhi-patbi, and he claims that by deed 10D1 of June 1948 the managementof the temple during the lifetime of the then viharadhipathi and allthe rights of the viharadhipathi on the demise of the latter becomevested in him. It is necessary to refer to this deed in some detail.The executant was Baddegama Dhammaratana Thera, the Chief Sanga-nayaka Thera of the Matara and the Hambantota districts who wasthe viharadhipathi of another temple as well, viz. Agrabodhi Viharaya.The executant recites that he has inherited from his teacher BanagalaSudassi Maha- Thera and is carrying on the management of KovilakandaPurana Viharasthanaya, and that as he finds it difficult now due toold age to cany on such management he is desirous of assigning thesaid management to his obedient pupil Baddegama Batanasara Thera(the 10th defendant) who resides therein. The deed is styled anassignment of management and it purports to appoint the 10th defendantthe adhikari of the said temple with the power of management of thelands and fields belonging thereto and of the relics, images and every-thing belonging to the Sangha. The deed orders the 10th defendant,inter alia, not to assign or hand over the viharaya to any one “ whodoes not belong to our succession ”.
The exeoutajit of 10X>1 is said to have died about a month or amonth and a half after its execution. The 10th defendant claimed thathe has been viharadhipathi of the Kovilakanda Purana Viharaya eversince the death of the executant. It was not suggested to him thathis claim to be the Viharadhipathi has been disputed by others althoughthere are other pupils of Baddegama Dhammaratana Thera who aresenior to him (the 10th defendant). It is the claim of the temple thathe seeks to safeguard and conserve in this action.
The learned District Judge reached the conclusion that deed 10D1did not have the effect of constituting the 10th defendant the viharadhi-pathi on the death of the executant thereof. He appears to havethought that this deed had the effect of making an acting appointmentin the office of viharadhipathi limited to the lifetime of the executant*In so thinking, the learned judge appears to have misunderstood thereal meaning of an answer given by the 10th defendant to a questionput to him. The relevant question and answer are reproduced below :—
C : Can a chief priest during his period of illness appoint anypriest to look after the temple as the Viharadhipathi ?
A : Yes. But that will be only in an acting capacity. But theactual priest to succeed to the viharadhipathiship will begoverned according to the rule of succession applicable tothe said temple. I say that by this deed 10D1 my tutorpriest appointed me to succeed him as the Viharadhipathiof this temple after his death.
430
T. S. FERNANDO, J.—Baddegama Sri Ratnasara Thera v. Basheer
I think the above answer was intended to convey no more than that(1) a monk can be appointed by a viharadhipathi to manage a templewhile the viharadhipathisbip continues to be held by the appointor,and (2) that an appointment of such a manager can be combined inone instrument with the appointment of a person to succeed as viharadhi-pathi on the death of the appointor. Looldr.g at the deed 10D1 as awhole, the most reasonable construction to be placed on it is that itpurports to appoint the 10th defendant to manage the property etc.during the lifetime of Dhammaratana Thera and to succeed as adhikarion the latter’s death.
Bertram C.J. in SamnanJcara Unnanse v. Indajoti Unnanse1, in thecourse of discussing at great length the different kinds of pupillage,adverts also to the expression “ adhikari ” thus :—“ The officer whoin Ceylon decisions and ordinances is referred to as the ‘ incumbent ’is an officer of f different nature. The term by which he is describedis 4 adhikari * (‘ a person in authority ’)— a word derived from theSanskrit word 4 adhikara meaning authority.” I am not unmindful thatBasnayake C.J. in Janananda Therunnanse v. Ratanapala Therunnanse 2has observed that “it is well established that the offices of viharadhi-pathi and viharadhikau are not the same ”. I do not, however, think it isnecessary in the present case to go into the question of the difference,if any, between these two expressions as it will often remrina question of interpretation whether a particular deed of appointmentconstitutes the appointee the viharadhipathi or merely a manager.We have here not a question of competing claims for the viharadhipathi-ship, but merely a claim of a legal right to represent the temple in anassertion to sanghika property. When the executant of 10D1 therebyordered the 10th defendant that he shall not assign or hand over theViharaya to anyone “ who does not belong to our succession ”, suchan injunction had no place in a deed of appointment of a mere manager.It was more appropriate in a deed appointing a person to perform allthe functions customarily performed by the monk who is now commonlyreferred to as viharadhipathi. For the limited purposes of the presentcase, points of dispute Nos. 4, 5, 9 and 10 should, in my opinion, havebeen answered in favour of the 10th defendant, while point of disputeNo. 8 should have been answered in favour of the temple.
For the reasons given below, I direct that the interlocutory decreeentered in this case be amended by deleting the 20/80 share allottedtherein to the 3rd defendant and allotting it instead to the 10th defendantas adhikari of the Kovilakanda Purana Viharaya. The order for costsmade against the 10th defendant is set aside, and in its place I subs-titute an order that the 3rd defendant do pay a sum of Rs. 105 ascosts of the contest to the 10th defendant. The 3rd defendant is orderedto pay the 10th defendant also his costs of this appeal.
Sri Skanda Rajah, J.—I agree.
Appeal allowed.
(1918) 20 N. L. R. at 897.
* (1959) 61 N. L. R. at 275.