BUDDHARAKKITHA THERO, Petitioner, and THE PUBLICE TRUSTEE et al., Respondents

098-NLR-NLR-V-49-BUDDHARAKKITHA-THERO-Petitioner-and-THE-PUBLICE-TRUSTEE-et-al.-Respondents.pdf


DIAS J.—Buddharabkilha Thero v. The Public Trustee
326
1948Present: Dias J.
B U DDHAR AKKlT H A THERO, Petitioner, and THE PUBLICTRUSTEE et al., Respondents.
S. C. 445—Application for a Writ of Mandamus on the PublicTrustee.
Buddhist Temporalities—-Nomination of trustee—Due nomination—Disputeas to right to nominate—Letter of Appointment—Provisional trustee—Chapter 222—Sections 9, 10 and 11.
Where two rival claimants to an incumbency purport to nominate trustees,the Public Trustee is not called upon to decide which of the two claimantshas the right to make the nomination. If he honestly 'has a doubt on thispoint he is entitled under section 11 (3) to appoint a provisional trustee untilthe point is decided.
A legal nomination is a nomination by a de jure vibaradhipathi..
Application for & writ of Mandamus on the Public Trustee.
V. Perera, K.C., with E. B. Wikramanayake, B. H. Aluwihare,and Cyril Randunu, for the petitioner.
Boyd Jayasuriya, Crown Counsel, for the first respondent.
A. Hayley, K.C., with D. L. Edusuriya, for the second res-pondent.
Cur. adv. vult.
March 4, 1948. Dias J.—
The late Mapitigama Dhammarakkita Nayaka Thero was theViharadhipalhi and Trustee of the Kelaniya Vihare also known asthe Sri Kalyani Rajamaha Vihare. This monk had two pupils—Mapitigama Sangharakkita Thero (admittedly the senior pupil) andMapitigama Buddharakitta Thero, who is the petitioner to thisapplication. It was assumed at the argument that this temple wasgoverned by the rules of pupillary succession known as Sissyana-sissya-paramparawa. The succession to this famous Temple camebefore the Courts in 1908 in the case of Sumangala XJnnanse v.Dhammarakkita,1 when Hutchinson C. J. said:“ As to the prima
facie right of the senior pupil to be the sole successor, that is whatI should have expected the rule to be; and the evidence satisfies methat it is the rule ”. The general rule of succession to a BuddhistTemple is that known as Sissy ana-sissya-paramparawa, i.e.j on thedeath of the incumbent or Viharadhipalhi, his senior pupil or thedeceased senior pupil’s senior pupil succeeds—Dhamma Joti v.Sobita2; Gunaralne XJnnanse v. Dharmananda3. Therefore, on thedeath of Mapitigama Dhammarikkita Nayaka Thero on July 17,1947, following the rule of pupillary succession, the senior pupilSangharakkita would normally have become the Viharadhipalhi ofthe Temple. It is, however, settled law that it is open to theviharadhipathi in his lifetime to appoint or nominate from amongsthis pupils a junior monk to succeed him, to the exclusion of the1 (190$) 11 N. L. R. 360.* (1913) 16 N. L. R.408.
(1921) 22 N. L. R. 276.
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DIAS J.—Buddharakkitha The.ro v. The Public Trustee
senior pupil—see Piyatissa Terunnanse v. Samapala Terunnanse.1There is no legal requirement that such an appointment should bemade by deed or will.
The Buddhist Temporalities Ordinance (Chap. 222) declares thatthe provisions of the Ordinance shall apply to every Buddhist Templein the Island except such as have been exempted— Sec. 3. TheKelaniya Temple has not been exempted. The management of theproperty or temporalities belonging to every Temple which has notbeen exempted shall be vested in a person or persons “duly”appointed trustee under the provisions of the Ordinance—Section 4
. Section 10 (1) of the Ordinance provides that “ the trustee ofevery temple which is not exempted from the operation of Section4 (1) may, if no other special provision is made under this Ordinancefor his appointment, be nominated by the viharadhipalhi of suchtemple, who shall thereupon report such nomination forthwith tothe Public Trustee. Whenever a vacancy occurs in the office oftrustee for any such temple, a trustee shall be similarly nominatedand reported within one month of the occurrence of the vacancySection 11(1)providesthat “ whenever a personisentitled to
nominate a trustee under sections 9 or 10 it shall be lawful for himto nominate himself as such trustee, unless he has been removedfrom the office of trustee under section 15 (2) or is disqualified frombeing a trustee by reason of section 14”. Therefore, in the ease ofthe Kelaniya Temple, after the death of the old viharadhipalhi, itwould be theduty ofthe new viharadhipalhi (a)tonominate a
trustee, or tonominatehimself as trustee, and (b)toreport such
nomination forthwith to the Public Trustee in whom is vested thelegal duty ofappointing the trustee under Section11(2)—see
Punchi Appuhamy v. Appuhamy 2.
Sections 11 (2) and (3) of the Buddhist Temporalities Ordinanceread as follows :—
“ (2) Whenever a nomination is duly made under sections 9 or10 and reported to the Public Trustee, it shall be the duty of thePublic Trustee to forthwith issue a letter of appointment to theperson so nominated unless such appointment would contravenethe provisions of this Ordinance.
(a) Whenever no nomination is duly made under sections 9and 10 within the periods specified in the said sections, or withinany further period that the Public Trustee may allow for suchpurpose, or
(6) Whenever by reason of any disputes as to the person entitledto make such nomination, more than one person is reported to thePublic Trustee as having been duly nominated trustee of any temple,the Public Trustee shall, pending a legal nomination, make anyarrangement he thinks necessary for the safe management of theproperty of such temple, and if he thinks fit, provisionally appointas trustee any person duly qualified
The duty of the Public Trustee to issue the letter of appointmentto a trustee arises :—(a) where a nomination of a trustee is “duly ”made, i.e., by the de jure Viharadhipathi of the Temple under section1 {1938) 40 N. L. B. 262.* {1936) 39 N. L. B. 329.
DIAS J.—Buddharakkiiha Thero v. The Public Trustee
327
10 (1),(b)thenominationis “reported” to the Public Trustee
and (c) where such appointment will not contravene the pro-visionsofthisOrdinance.When those conditions existand
the Public Trustee has no reason to believe that the appoint-ment of the nominee would contravene the provisions of thisOrdinance, e.g., the provisions of section 11(3) (6) or section
14, itistheduty ofthe Public Trustee “ forthwith” to
issue a letter of appointment in favour of the nominee ofthe de jure Viharadhipathi. If these requirements of the lawdo not exist, the duty of the Public Trustee to issue the letterof appointmentdoes notarise. I cannot construe theword
“forthwith” used in section 11 (2) to mean “immediately”. ThePublic Trustee must be afforded time in which to make independentenquiries as to the qualifications of the nominee of whether thereis a dispute as to the status of the person making the nomination.
In this proceeding the petitioner, alleging that the Public Trusteehas failed to perform the legal duty cast upon him under section 11 (2)of the Ordinance, moves for a writ of mandamus on him to performthat duty.
The relevant facts are simple and uncontested. The deceasedMapitigama Dharmarakkita Nayaka Thero on June 26, 1947, whilehe was in hospital, executed deed 5038—exhibit A. He nominatedthe petitioner, his junior pupil, to be the Viharadhipathi of theKelaniya Temple and the Lenagampola Temple. In that deed thedeceased recited that he had decided to appoint his senior pupilSangharakkita to be the Viharadhipathi of the Gangaramaya Templeby another deed of appointment. Whether such a deed was executedwe do not know. This deed A was notarially attested by Proctor,
F. J. Perera, Notary Public.
Dharmarakkita died on July 17, 1947. On the following day thePublic Trustee says that one Don Charles Wijeywardene, “ a chiefdayakaya ” of the Kelaniya Temple saw him and reported that adispute had arisen between the two pupils of the deceased monk inregard to the appointment of the new Viharadhipathi for the temple,and that efforts were being made to effect a settlement. The petitioner■wrote the letter marked B on July 19, 1947, to which he annexeda certified copy of deed 5038. The petitioner claimed to be the de jureViharadhipathi under the deed, and intimated that he had nominatedhimself to be the trustee of the Temple and requested the PublicTrustee to issue a letter of appointment in his favour. These paperswere received by the Public Trustee on July 22, 1947. In themeantime, Sangharakkita, the senior pupil who is not a party tothese proceedings, had written letter IRI on July 21, to the PublicTrustee where he stated that as senior pupil of the deceased monk hewas the lawful successor of .the deceased Viharadhipathi, and that he’had assumed control and was functioning as Viharadhipathi. Henominated himself as trustee, and requested the Public Trustee toissue a letter of appointment in his favour.
On July 26, 1947, the Public Trustee wrote letter C to the petitionerstating- “ that the Viharadhipathiship of the vihare was in dispute,the other claimant being M. Sangharakkita Thero He rightly
328
DIAS J.—Buddharakhitha Tht.ro v. The Public Trustee
expressed no opinion on these conflicting claims. On July 28 aproctor on behalf of Sangharakkita saw the Public Trustee’s chiefclerk—see 1R 2. On August 2, counsel saw the Public Trustee onbehalf of Sangharakkita and urged the Public Trustee in the interestsof the Temple to make a provisional appointment without delay. OnSeptember 8, 1947, counsel on behalf of the petitioner saw the PublicTrustee and urged him to recognize the petitioner as Viharadhipathi.It is, therefore, incorrect to say, as was argued for the petitioner, thatthe Public Trustee acted in this matter without bringing his mindto bear on the questions involved. Not only is it clear that thePublic Trustee considered the matter, but his interviews with thelawyers of both parties must have brought his mind forcibly to bearon all the implications involved were he to issue a letter of appointmentin favour of one of the disputants.
The Public Trustee says in paragraphs 9 and 10 of his affidavitthat more than one person having been reported to him as havingbeen duly nominated trustee of this Vihare, a dispute had, in hisopinion, arisen as to the person entitled to make such nomination interms of section 10 (3) (6). He, therefore, acting under section11 (3) (b), appointed the 2nd respondent, a respectable neutral person,to act provisionally as trustee pending a legal nomination, so that thetemporalities of the temple might be safeguarded while these priestlycontestants had their legal claims settled.
I should have imagined that the action of the Public Trustee wasthe most convenient and sensible arrangement under the circumstances.Counsel for the petitioner, however, has strenuously argued that onthe production of the deed 5038, which was on the face of it regular,it was the bounden and legal duty of the Public Trustee to haveissued a letter of appointment in favour of the petitioner, in spite,of the counter claim by the senior pupil, even if a Court of Laweventually held that the deed was for some reason invalid and thatthe senior pupil was entitled to succeed to the viharadhipathiship byright of seniority. I am unable to accept this contention.
The Public Trustee had before him two reports and two nominationsby two rival claimants for the incumbency asking that letters ofappointment be issued to two persons alleged to have been “ duly ”nominated to be trustee. Obviously, there cannot be two personswho are “duly” nominated to be trustees. “Duly” must mean“in the proper manner” or “regularly” or “properly”—see Silvav. Weerasooriya1 where the phrase “duly stamped” wasconstrued. The two persons nominated as trustees could not bothhave been “ duly ” nominated, i.e., by two de jure Viharadhipathis.It was not possible for the Public Trustee, who is not a judicialofficer, to adjudicate on the rival claims of the two persons whomade the two nominations. It would have been improper for thePublic Trustee to have adjudicated on the relative merits of thoseclaims and to have placed the nominee of one disputant in possession.The duty of the Public Trustee to issue a letter of appointmentcan only arise “ whenever a nomination is duly made ” undersections 9 or 10. To decide which of the two nominations was “ duly ”
1 (1906) 10 N. L. R. 78.
Perera v. Thomas Sinrio.
329
made, the Public Trustee must decide which of the two personsmaking the nomination was the Viharadhipathi, i.e., the de jureincumbent of the Kelaniya Temple. If the Public Trustee honestlyhas a doubt on the point as to whether the nomination or nomina-tions was or were “ duly ” made, I hold that his statutory duty toissue a letter of appointment does not arise until such doubt isresolved. Section 11 (3) makes special provision for such a situation.Pending a “ legal nomination ”, i.e., a nomination by a de jureViharadhipathi, he can refuse to issue a letter of appointment, and ifnecessary appoint as a provisional trustee some person duly qualified“ for the safe management of the property ” of the Temple, whilethe priestly contestants have the question decided elsewhere as to whohas the better right.
On the facts before me I find it impossible to hold that the PublicTrustee should have upheld the nomination of the petitioner andrejected that of Sangharakkita or vice versa. Until some tribunallay or ecclesiastical, decides whose right to be the Viharadhipathi isthe better one, a layman like the Public Trustee cannot be expectedto say which of the two monks had the right to make the nomina-tion for the trusteeship of this temple under Sec. 10 (1) and whichunder section 11 (2) the Public Trustee was bound to accept as a“ due ” nomination.
I am, therefore, of opinion that there has been no failure on thepart of the Public Trustee to perform a statutory duty which wasincumbent on him to perform. The application for the writ,therefore, fails ; and it is dismissed with costs.
Application dismissed.