BANDATTARA JANANANDA MAHA THERO V. DEVINUWARA SIRI SUNANDA THERO

006-SLLR-1988-V2-BANDATTARA-JANANANDA-MAHA-THERO-V.-DEVINUWARA-SIRI-SUNANDA-THERO.pdf


BANDATTARA JANANADA MAHA THEROV.
DEVINUWARA SIRI SUNANDA THEROCOURT OF APPEAL
GOONEWAROENE J. & VIKNARAJAH J.
C A NO. 58/79 (F>
D.C.MATARA NO. L/3856
FEBRUARY 23, 24, 25 and 29 and MARCH 01, 1988.
Buddhist Ecclesiastical Law — Viharadhipaihiship — Succession — Rule ofsisiyanu sisiya paramparawa —, Succession by nomination or gift — Ras judicata— Estoppel—Abandonment.
The founding priest of the Amarapura Siri Dhammarakahita Wansa Maha Nikayaby his testament of 1837 appointed his eight pupils whom he named to succeedhim. in order of seniority. He had a 9th pupil but that was after he had made histestament
The last .holder of the Viharadhipathiship on the basis of the founder priestsnomination was Ratnajothi who by deed 7767 of 1897 appointed JambuwattePiyaratne to Succeed him. Piyaratne was not a pupil of Ratnajothi by robing orordination but had received instruction from him. Ratnajothi died in. 1902 andPiyaratne succeeded as Viharadhipathy. Piyaratne by deed No. 4212 of 1927.(P37) appointed his pupil Sirinivasa to succeed him and on Piyaratna's death on.16.2.1928 Sirinivasa succeeded hiqi. Sirinivasa by deed No. .1031 of 1955appointed the defendant to succeed him and on Sirinivasa's death on 27.6. 72the defendant succeeded to the Viharadhipathyship and functioned as such.
The plaintiff claimed on the basis that he was the senior pupil of Ratnajothi'ssuccessor Beragama Dhammananda (on the application of the.rule of sisiya-HSiyanu paramparawa.)
In Case No. 17548 D.C. Matarathe plaintiff had on 26.5.1947 conceded theright of Piyaratne's successor Sirinivasa to be Viharadhipathy in a case seekingthe relief of maintenance. In Matara D.C. 7624 Beragama Dhammananda hadclaimed maintenance on the footing that Piyaratne was the Chief Incumbent InMatara D.C. Case No. 22604 plaintiff had given evidence on the same basis.The plaintiff also claimed on the basis of appointment by his nikaya also i.e. bythe mahanayake thero and karaka sabha.
The cause of action in both cases 7624 and. 17548 is'the refusal to paymaintenance. Therefore the present action is hot barred by the principle of resjudicata.
The' plaintiff is estopped from maintaining a. claim to theViharadhipaffiish'ip in view of his conduct in Case NoS. 17548 and 22604
The plaintiff had abandoned his claim to the Viharadhipathiship.
Cates referred to
Dhammajotiv. Sobita 16 NLR 408
Gunananda Unanse v. Dewarakkita Unanse 26 NLR 257. 273. 275
Terunanse v. Terunanse 31 NLR 161. 163
Saranankara Unanse v. Indajothi 20 NLR 385
Pannaloka Thero v. Colombo Saranankara Thero [ 1.983) 1 Sri LR 332,339 '
6: . Visvalingam v. Liyanage [ 1983] 1 Sri LR 203. 209 .
7. Dhammarame Unanse v. Sumangala Unanse 14 NLR 400APPEAL from judgment of The District Judge of Matara.
L C. Seheviratne P C. with Lakshman Perera for plaintiff-appellant• A C. Gooneratne Q.C. with T. B. Dissanayake P.C. and.Mrs H. Jaryalath fo.rdefendant-respondent.
Cur. adv. vutt.
April 29.1988VIKNARAJAH, J
The plaintiff-appellant institutedthis. action against the'defendant-respondent for a declaration that
the ; plaintiff is the lawful Viharadhipathi of ParamaVichitrarama Rajamaha Vihare;
for ejectment of the defendaiifand all those holdmg under. him from the said temple;
fc) for damages.
■ Plaintiff pleaded in his plaint that the founder of the ParamaVichitraramaya Was Attudawe Dhammarakkhita Thero thefounder of the Amarapura.Siri Dhammarakkhita Wansa Maha
Nikaya and that he by his testament dated 18th March 1833 (P2)appointed his eight pupils to succeed him in their order ofseniority viz. (1) Sumana (2) Sugunna (3) Indasara (4)Dhammaratne {5) Sarananda (6>Ratnajothi (7) Ratnasara and (8)Pannasara.
On the death of said Dhammarakkhita Thero in 1834 theincumbency .devolved on the said Sumana and Sumana wassucceeded by Suguna and he was succeeded by Ratnajothi On18.04.1862. Indasara and Dhammaratne had died earlier andPannasara . had disrobed. .Sarananda died on 17.4.1862.Ratnasara died in 1867. Parties are agreed that Ratnajothi wasthe lawful successor when Suguna died on 18.04.1862 and thatRatnajothi was the last of the 8 pupils nominated by the founderDhammarakkhita Thero to succeed in order, of seniority..
, At. the/time the founder Dhammarakkhita Thero wrote histestarrjent in 1833 he had only d.pupils arid Hb appointed all. hiseight pupils to succeed to the incumbency in order of seniority.
Although in the plaint, the plaintiff has pleaded 'thatDhammarakkhita had only 8 pupils, the evidence is that he had.nine pupils and the ninth pupil was robed after Dhammarakkhitawrote bis testament P2. The 9th pupil is Kirilarela Saranapala.This is conceded by Counsel for appellant. In fact on thegpidence the finding of the District Judge is that Saranapala isji.e 9th pupil.
Ratnajothi before he died in 1902 had by deed No. 7767 of1897 (P11) appointed Jambuwatte Piyaratne to succeed him onhis death and Piyaratne succeeded Ratnajothi in 1902 andfunctioned as,such. It is admitted that Piyaratne is a pupil ofSaranapala the 9th pupil of the founder Dhammarakkita.Saranapala predeceased Ratnajothi. Piyaratne is a pupil ofRatnajothi only by instruction but not by robing or ordination. * Itis also admitted that Ratnajothi had two pupils Mirissa. Gunaratneand Beragama Dhammanandg. Plaintiff's cash is that BeragamaDhammanan.da succeeded to the incumbency .on Ratnajothi's
death as the senior pupil Gunaratne had abandoned his rights tothis Vihara because he became Viharadhipathi of anothertemple viz Galgama Vihara. It is also admitted that BeragammaDhamrinananda had.two pupils vj; Beragamma Kadvidaja and theplaintiff.
Plaintiff had pleaded in the plaint that he succeeded to theViharadhipathiship on Beragamma Dhammananda's death on31,1.1939 (P5).
On Ratnajothi's death.in 1:902 Piyaratne succeeded andfunctioned. as Viharadhipathy. by virtue of the deed ofappointment P11 of 1897-
By deed No. 4212 of 1327 (D23) Piyaratne appointed hispupil Sirinivasa and on Piyaratne's death on 16.2.1928. Sirinivasa succeeded and functioned as Viharadhipathy.Sirinivasa by his dged No, 1031 of 1955 (D38) and No.15530 of10.4.72(D39) appointed his senior pupil the defendant as theViharadhipathy.
sWhen Sirinivasa Thero died on 27.06.72 (P12 – DeathCertificate), the defendant succeeded him and functioned asViharadhipathy.
It is admitted that after Ratnajothi's. death in 1902 neitherBeragamma Dhammananda nor the plaintiff functioned asViharadhipathy of this temple.
The main submission of Counsel for appellant is that theappointment by Ratnajothi of Jambuwatte Piyaratne to theViharadhipathiship of the temple by deed No. 7767 Of14.1,1897 (D2 or P-1.1) is invalid for the reason that Piyaratne is. not a pupil of Ratnajothi either by robing or ordination and itviolates the tenure of succession which is the sisyanu sisyaparamparawa,
Counsel for appellant ..further submitted, that whenDhammarakkhita Thero the founder appointed by his testamentP2 his eight pupils to succeed to the incumbency in order ofseniority this mode of succession is sisyanu sisya paramparawa.
Counsel for respondent submitted that the mode of successionwhich the founder had laid down is by appointment by deed andthat Ratnajothi the last of the 8 pupils had a right to appointPiyaratne who was a pupil #f Saranapala the last pupil ofDhammarakkhita .Thero. 'Counsel for respondent furthersubmitted that Dhammarakkhita Thero when he wrote .histestament P2 intended that all his pupils should succeed to theincumbency but as Saranapala became a pupil afterDhammarakkhita wrote his testament P2. he. could hot haveincluded him in this -testament and therefore Ratnajothiappointed Piyaratne a pupil of Saranapala who had by thenpredeceased Ratnajothi. Piyaratne was not an outsider..
I shall now consider the validity or otherwise of the deed ofappointment No. 7767 of 14.1.1897 (P11)vwhich is the mainpoint of issue in this case.
By this deed. P1V Ratnajothi states that as he is of old age andit is necessary to appoint a'chief or president (gcDofixfiOes) and ofhis two pupils MirissaGunaratne had become chief or president.(g£w5»s£)c3)'in Galgama Vihara and is residing there and the other. pupit Beragamma Dhammananda who is residing in this templeis young,| he is appointing Jambuwatte Piyaratne who is his pupilby.instruction as the chief to remain' in the temple and look afterthe affains-'of the temple and to administer the temple. The dateof PI-1 is 14th January 1897. Prior to this deed of appointmentP11 is tne testament of the founder Dhammarakkhita P2 by"which he. appointed all his-eight-pupils to succeed to theincumbericy in order of seniority. P2‘is dated 1833. In P2 alsothe word'.Viharadhipathy is not used. But all the functions of theViharadhipathy have been vested in the person appointed as'chief. I do not think the word Viharadhipathy was in use during4the time P2 and P11 was drawn.up in 1833 iand 1897.
Dhammarakkhita Thero by his testament P2 of 1833 -appointedhis 8 pupils to succeed in order of seniority and Ratnajothi wasthe last of the.pupils to succeed under the testament P2 and hedid succeed and function as Viharadhipathy.
The Supreme Court has consistently interpreted the wordsSishiyanu sishiya' to mean from pupil to pupil. That is to say onthe death of the first Viharadhipathi he is succeeded by his ownsenior pupil and the succession continued in that manner aslong as such succeeding Viharadhipathi leaves d pupil or pupils. .
In Dhammajothi v. Sobita (1) it was stated as follows:—
"According to the sisyanu sisya paramparawa rule of descenton the death of a priest the incumbency devolves byoperation of law on his senior pupil unless he has by will ordeed appointed any particular pupil as his successor".
In Gunananda Unanse v. Dewarakkita Unanse (2) JayawardeneA. J. states as follows:—
"The rule requiring the transmission of the incumbency fromsenior pupil to senior pupil produces certainty and creates asort of 'primogeniture' which .is easily understood andapplied".
ti < • ••.
As an incumbent's choice is limited to his pupil it follows thathe may.not by will or deed transfer his rights to the incumbencyto a stranger to the exclusion of the direct line of succession (seeTerunanse v, Terunanse (3}j
When a bequest is made by a founder priest to all his pupils'such a bequest is strictly not the tenure of sisyanu' sisyaparamparawa.
When by P2 Dhammarakkita Thefo made a request to all hispupils directing that succession be by order of seniority themope of succession is not sisyanu sisya paramparawa.
In the case of Saranankara Unanse v.. Indajothi (4) it was heldthat the office of incumbent is a single, office and cannot be heldjointly and consequently a claim to a 'share' of an incumbencycannot be maintained. At page 398 Bertram C. J. states asfollows:—
"The office of adhikari is however single and indivisible. He isindeed primus inter pares but his rule is monarchical. Theoffice cannot be held jointly and consequently there is nosuch thing as 'share in an incumbency! As was said by PereraJ in Dhammajothi v. Sobita The idea of a joint incumbencycan hardly be entertained'. An adhikari may it is truenominate all his pupils to succeed him but they can onlysucceed one at a time."
For this view Bertram C. J. relied on the opinion of the priestsof the Malwatte College in Danture Unansev. Government otCeylon. The opinion is as follows:—
"If the priest declares his request common to his pupilsthey will all become entitled thereto one of them beingelected to the superiority, the others only participating inthe benefits. When the superior dies the one next in rankwill succeed to the superiority and the superiority willdevojve in this way until the last survivor who will have thepower to make a gift in favour of any other person".
Bertram C. J. accepted this opinion of Malwatte Collegeand held that there is no such.thing as joint incumbency orshare in the incumbency and that if a bequest is made to twoor more pupiis each will succeed in order of seniority.
This mode of succession has been expressly set out in thetestatment P2 and. Ratnajothi was the last to succeed. On theabove opinion of the Malwatte College "the last survivor hadthe power to make a gift in favour of any other person".Ratnajothi in pursuance of this power appointed JambuwattePiyaratne who is not a stranger but a pupil of Saranapala vyhois the 9th pupij of the founder Dhammarakkhitha Thero.
Counsel for appellant relied on the following passage from thejudgment of Jayawardene A. J. in the case of Gunananda (Jnanse
Dewarakkhita Unanse (supra):—
"He can appoint by will or deed, more than oiie pupil tosucceed him; in such acase-these pupils, although calledjointly.succeeds singly in rotation according to seniority. Thepupil who succeeds fast can appoint one of his pupils and inthe absence of such an appointment his senior pupil willsucceed him to the exclusion of the pupils of the previousincumbents".
On the basis of this dictum Counsel for appellant^ submittedthat Ratnajothi had no right to appoint a person who is not his«pupil and that according to the – rule of sisyanu sisyaparamparawa Ratnajothi's pupil should succeed to the-incumbency and accordingly; Beragamma Dhammananda.succeeded to the incumbency and thereafter his pupil theplaintiff succeeded to the incumbency.
.. Jayawardene A.J. did not refer to any authority for his opinionand in fact this opinion is obiter.
In the course, of his judgment Jayawiardene A.J. at page 266refers to the opinion of the Malwatte College which I havereferred to earlier with approval. According to this opinion ofMalwatte College the last survivor has the power to make a gift infavour of any other person. Bertram C.J. also refers to thisopinion of the Malwatte College at page 261 with approval.
According to D11 which is a plaint filed in the District Court■ Matara 17548 by the plaintiff in this case against SirinivasaThero on 9.2.1946. the plaintiff is claiming maintenance from1st defendant Sjrinivasa Thero who was functioning asViharadhipathy of the temple. Sirinivasa Thero. is the pupil ofPiyaratne and. Sirinivasa Thero succeeded Piyaratne asViharathipathy. In this case No. 17548 on 26.5.1947 plaintiff in' evidence stated as follows:-^
"The 1st defendant is the Viharadhipathy by a deed and notaccording to the pupillary succession. I refer to him as a
■. ■r
Viharadhipathy. I have no objection or clai© .to his right asViharadhipathy. He is entitled to it now in addition byprescription".
This case was then settled as follows:—
'Plaintiff admits that the 1st defendant (Sirinivasa) is thecontrolling Viharadhipathy of the temple in question andhas such rights and such control of the temple as aViharadhipathy is entitled, to. Plaintiff agrees to abide bysuch control.
The rest of the settlement was as regards maintenance.
i '*‘*
It would appear that in 1947 the plaintiff conceded the right ofPiyaratne s successor Sirinivasa to be the Viharadhipathy.
It is Piyaratnes appointment by deed P11 that Counsel forplaintiff' appellant strongly urged was illegal. It was alsosubmission of Counsel for appellant that the sisyanu sisya rule ofsuccession applied to the temple.
Piyaratne appointed his pupil Sirinivasa by deed D23 of 1927and Sirinivasa by deed D38 and D39 appointed his senior pupilthe defendant.
Thus after Piyaratne;the appointments do not conflict with thesisyanu sisya paramparawa rule.
The plaintiff himself who had given evidence in D.C. Mataracase No: 22604 in which case he. was the defendant claimingViharadhipathiship for Gaigane temple in Dondra states asfollows:
Succession to the Dondra Raja Maha Viharaya is not.according to sisyanu sisya paramparawa. Succession isaccording to seniority".
According to plaintiff on Ratnajothi's. death theViharadhipathyship devolves on his pupil BeragamaDhammarianda. But it will be seen that on 22nd. February1917 the sameCBeragamma Dhammananda had instituted actionagainst the 1st defendant a trustee and the 2nd defendantPiyaratne for maintenance. In the plaint Dhammananda hadaccepted the position that Piyaratne is the Viharadhipathy of thistemple and Dhammananda's Counsel stated in Court (D8) thatplaintiff i.e. Dhammananda as a pupil of Ratnajothi has a right toreside in the temple and to perform certain duties dictated by the.2nd defendant Piyaratne and also a right to maintenance Whilsthe remains in the temple.
The issues which relate to the appointment of Piyaratne byRatnajothi and the right of the plaintiff to Viharadhipathyship are
3(a) Is the alleged appointment and deed No. 7767 of14.1.1897 by Devinuwara alias Angahawatte Ratnajothilawful?
(b) Did any title, right or privilege devolve uponJambuwatte Piyaratne Thero upon the said, deedNo. 7767?
A Upon the death of the said Devinuwara aliasAngahawatte Ratnajothi Thero did theViharadhipathiship devolve on BeragamaDhammananda Thero?
Upon the death, of the said Beragama DhammanandaThero did the said Viharadhipathiship. devolve on the»plaintiff?
If issues 1—5 particularly issues‘3, 4 and 5 areanswered in favour of the plaintiff is the plaintiff thelawful Viharadhipathy of the said temple?
. 7. Did the said Devinuwara alias Angahawatte RatnajothiThero by and upon his deed No. 7767 dated 14.1.1897appoint Jambuwatte Piyaratne Thero as Viharadhipathyof the said temple?
8. On the death of the said Ratnajothi Thero. didJambuwatte Piyaratne Thero ‘ become .the lawfulViharadhiDathy uoon deed No. 7767 dated 14.1.1897?
: The Judge answered issues 3fa> and (b) and 17 and 18 in theaffirmative and issues 4 and 5 in the negative. Thus the issueswere answered against the plaintiff.
hold that the appointment’of Jam by watte'Piyaratne' byRatnajothi by deed No. 7767 of 4,1 1.1897 is lawful and validand that Piyaratne functioned as de jure Viharadhipathy: AsPiyaratne’s appointment’ is valid the appointment of Sirinivasaand thereafter of the defendants also valid. Sisyanu sisya rule ofsuccession will apply after Piyaratnes appointment.
The learned Judge has answered,the above issues correctly.
Counsel for appellant submitted that the judgment or decree inD. C. Matara case No. 7624 and/or.D. C. Matara 17548 are hotres adjudicata between the parties in this action;
• i ’..''■■■
Issues 27 and 28 relate to this submission and the learnedDistrict Judge has held that it is res adjudicata.'
D. C. 7624 is an action filed by Beragama Dhammanandaagainst 1 st defendant who is a trustee of the temple in suit in.thisaction and the 2nd defendant is Piyaratne the Viharadhipathy ofthis temple. The plaintiff Beragama Dhammananda is claimingarrears of maintenance in this action. In the plaint it is.pleadedthat! Piyaratne is .the chief incumbent of the temple.Dhammananda's Counsel has stated to Court in this case thatBeragama Dhammananda as a pupil of Ratnajothi has a right toreside in the temple and to perform certain duties dictated by the2nd| defendant Piyaratne (vide D6 and D8).
D. C. 17548(D11) is an action filed by the plaintiff in this caseagainst Sirinivasa Thero as Viharadhipathy of the temple. Thisaction is for. maintenance. In this action plaintiff gave evidenceand he accepted Sirinivasa as Viharadhipathy of . this temple(D16a). One of the terms of settlement in this case D14 is thatplaintiff admits that Sirinivasa Thero is the- controlling'Viharadhipathy of the temple in question and has such rights andsuch control of the temple as a. Viharadhipathy is entitled to and.plaintiff agrees to abide by such control.
The cause of action-in both these cases 7624 and 17548 isthe refusal to pay maintenance. The cause of action in the instantcase in appeal.is defendant’s denial of plaintiff's status and officeof Viharadhipathi. The facta tprobanda to establish theingredients of the cause of action in each case are different andthe right as claimed in the two sets .of actions are not the same.
The; bar does not operate when the cause of action in thesubsequent suit is not the same as the previous action. (SeePanrtatoka Thero v. Colombo Saranankara Thero (S. C.) (5)
In my view the District Judge misdirected himself in law inholding that the judgment and decree in case Nos. .7624 and17548 operated as res judicata against the plaintiff andprecluded him from maintaining this action. The judgment anddecree in case Nos. 7624 and 17548 do not operate as resjudicata against the plaintiff.
Issues 29. 30 and 31 relate to estoppel and abandonment.
The issues are as follows:—
29(a) Has the plaintiff acknowledged. the defendant'spredecessors to be the Viharadhipathi of the saidtemple in D. C. Matara case No. 17548 and 22604?
(b) Has the plaintiff recovered- maintenance from tliedefendant as trustee and Viharadhipathi of the said? temple?
If issues 29(a) and/or 29(b) is answered in theaffirmative is the plaintiff estopped from denying thatthe defendant is (a) the lawful Viharadhipathi and (b) thetrustee?
Has the plaintiff and the plaintiff's predecessorBeragama Dhammananda Thero abandoned their rightsto the Viharadhipathiship if any?
the successor of Piyaratne. in the case plaintiff acknowledged
Srinivasa Thero as Viharadhipathi and plaintiff did not claim
Viharadhip.athiship in this action.
•
D. C. 22604 is an action instituted by Viharadhipathy ofGalgama Vihara against plaintiff-appellant who was thedefendant in this case. Plaintiff was claiming Viharadhipathishipof Galgama Vihara. He gave evidence in 1956 in this case andproduced the decree in Dl C. 535. In his evidence beacknowledged Piyaratne as the Viharadhipathi of the temple indispute and that on Piyaratne's death Srinivasa succeeded him‘ (D5b)!and he claimed maintenance oh that basis.
Piyaratne became Viharadhipathi in 1902 on Ratnajothi'sdeath. The plaintiff in this case filed action only in June 1975> Claiming Viharadhipathiship.
■ 1 . ■ • • ’
The law of estoppel is satisfactorily stated in Hafsbury’s Law ofEngland 2nd Edn Vof 13 para 452 at page 400 in the followingwords:—
"When one has either by words or conduct made to anothera representation of fact, either with knowledge, of itsfalsehood, as with the intention that it should be acted upon.;or so conducts himself that another would as a reasonableman, understand that a certain representation of fact wasintended to be acted on, and that other has acted on suchrepresentation and alters his position to his prejudice/ anestoppel arises, against the party who has made therepresentation and he is not allowed to aver that the fact isotherwise than he represented it to be".
This passage has been cited with approval bySharvananda, J„ in Visvalingam v. Liyanage (6)
I hold that the plaintiff is estopped from maintaining a claim tothe Viharadhipathiship in view -of his conduct in case Nos.17 548 and 22604.
r
The learned trial Judge has answered issues 29. 30 and 31■ against the plaintiff. I see no reason to interfere with thosefindings.
The plaintiff also relied on an appointment made by theMahanayake Thero and the Karaka Sanghe Sabha of AmarapuraSiri Dhammarakkhita Nikaya. .The Karaka Sangha Sabha hadappointed the plaintiff a Viharadhipathy of this temple. The. appointment letter is dated 8th June 1975 the day previous toplaint being filed in this action. This appointment has beenproduced marked P8. In P8 it is stated that as Piyaratne who wasin the Amarapura Sri DhammarakkhitaWansa Nikaya has left thisNikaya and joined the Kalyana Wanse Nikaya. he has forfeited hisrights to the Viharadhipathiship of this temple and therefore theKaraka Sabha proceeds to . appoint the plaintiff asViharadhipathy. Piyaratne's appointment by deed is notchallenged as illegal by the Karaka Sabha. The complaint is thathe has joined the Kalyana Wanse Nikaya.
It is only when the succession to a Vihara in sisyanu sisyaparamparawa fails that the chapter of the college to which it. belongs has the right to appoint (see Dhammaratne Unanse v.Sumangaia Unanse (7). It was neither the plaintiff’s case nor thedefendant's case that the chain of succession failed. In fact theplaintiff is claiming through a chain from Ratnajothi andBeragama Dhammananda and the defendant is claiming fromRatnajothi and Sirinivasa.
Thus the chapter had no right to appoint a Viharadhipathi and’no right can be claimed by the plaintiff from the document P8.