Ohandrawimala Therunnanse v. Siyadoris.
1946Present: Howard C.J. and de Silva J.CHANDRAWTMALA THERUNNANSE, Appellant, andSIYADORIS et al., Respondents.
286—D. C. Galle, 890.
Buddhist Temporalities—Purchase of land by incumbent—Uncertainty as towhether consideration was from temple or private funds-—Subsequentpossession by temple for G7 years—Inference that property was sanghika—Bhikku, who is 'not rightful incumbent but has acted as Viharadhipathi—His right to maintain action regarding sanghika property.
ChandrawimaZa Therunnanse v. Siyadoris.305*
A certain land was purchased by the incumbent of a Buddhist, temple,but the deed of sale dated March 29, 1817, did not show whether theconsideration was provided by the priest out of his jmdgalilca propertyor from the funds of the temple. There was, however, documentaryevidence showing clearly that, subsequent to the death of the incumbent,the temple was in possession of the land as sanghika property for aperiod of 67 years.
Held, tbat the land was the sanghika property of the temple and notthe private property of any of the priests resident therein to whom thejntdgalika property of the incumbent had been devised.
Held, further, that a Bhikku, who is not the rightful incumbent,can maintain an action in respect of sanghika property of a temple if hehas acquired sufficient interest as Viharadhipathi.
^ PPEAT, from a judgment of the District Judge of Galle.
E. A. P. Wijeratne (with him U. A. Jayasundara), for the plaintiff,appellant.—The evidence both documentary and oral proves conclusivelythat the land in question was sanghika property. The evidence ofpossession negatives the suggestion that this was the jmdgalilca propertyof any priest. The last will 2D3 and the Inventories P10, Pll and theGrain Tax Commutation Register P6 are significant.
The planting agreement P7 entered into by the Trustee of the templewith one Uberis in respect of this land also indicates that this propertywas recognized as sanghika.
The learned Judge was right in holding that the plaintiff was entitledto maintain this action as controlling Viharadhipathi. See SurnanaTherunnanse v. Somaratne Therunnanse *.
H. W. Jayetvardene, for the first defendant, respondent.
A. Rajajtakse, K.C. (with him S. R. Wijayatilake), for the seconddefendant, respondent.—The learned Judge was right in holding thatthe property in question was not sanghika. The Inventory Pll is acopy of Inventory PIC. The lease 2D10 of 1922 for 10 years by Kon-danna Thero of this property was on the basis that it was jntdgalikaproperty. His including this land in the Inventory as sanghika propertycannot be of much significance. At the time of the lease KondannaThero was not functioning as Viharadhipathi and he could have leasedthe property only in his personal capacity. Two other lands, Radage-watta and Pothukumbura, which appear in the Inventory Pll as sanghikaproperty have been held to be jmdgalilca by the District Court, Galle—2D18 and 2D19. With regard to the planting agreement P7 theRegister 2D16 shows that in 1922 Uberis sued not the Trustee butKondanna for compensation and 2D17 shows that the compensation was
(1935) 5 C. L. W. 37.
DE SELVA J.—-Chandrawimala Therunnanse v. Siyadoris.
paid by Kondanna although, he had ceased to be Adikari in 1918. SeeP3 and P4. The deed 2D2 of 1852 refers to property acquired byIndrajothi out of his private cash and also to property granted to theViharaas charity. The land in dispute had not been given to the Vihara.Therefore it is reasonable to conclude that this property was recognisedas pudgalika property. See also the last will 3D3 and last will 2D5.Kondanna’s will was admitted to probate and this land was sold torecover the testamentary expenses 2D13 of 1934.
The plaintiff has no status to maintain this action as he is not theControlling Viharadhipathi. Indrajothi was the original incumbent andthe plaintiff is not in the line of succession of Indrajothi. Piyadassibeing in the direct line the plaintiff has no right to the incumbency.The deeds of appointment relied on by plaintiff do not convey rights tothe incumbency. A person other than the lawful incumbent cannot bethe controlling Viharadhipathi. The Buddhist Temporalities Ordinancedoes not provide for a de facto trustee. The effect of sections 4,18 and 20was considered by Abrahams C.J. and Soertsz J. in the case of Dias v.Ratnapala Therunnansel. The judgment in Sumana Therunnanse v.Somaratne Therunnanse 2 is that of'a single Judge. Moreover, the factsin that case can be distinguished.
An incumbency cannot be acquired by prescription—Therunnanse v.Therunnanse et al. 3.
E. A. P. Wijeratne, in reply.—The judgment in Dias v. RatnapalaTherunnanse (supra) is on another point. It does not apply to the factsof this case. On the other hand the decision in Sumana Therunnanse v.Somaratne Therunnanse (supra) is precisely in point.
Cur. adv. vult.
June 21, 1946. de Silva J.—
This is an appeal from the decree of the District Court of Galle dis-missing the plaintiff’s action. The plaintiff, claiming to be the controllingViharadhipathi of Sudharmaramaya Temple at Bope, sued the firstdefendant for a declaration of title to a land called Pathahewatta aliasBandarawatta Kumbura, and to have the first defendant ejected there-from. The first defendant filed answer stating that he was the lesseeof the Venerable Baddegama Piyaratne under Deed of Lease No. 3960of April 20, 1939. Thereupon the lessor, Baddegama Piyaratne, wasadded as second defendant and he filed answer denying—(a) that theplaintiff was the controlling Viharadhipathi of Sudharmaramaya Templeat Bope and stating (6) that the property in question was pudgalikaproperty which had vested in him by purchase from one Edward Dias
1 (1938) 40 N. L. R. 41.*1 (2935) 5 C. L. W. 37.
(1927) 28 N. L. R. 477.
DE SILVA J.— Cha>itlrawi»tala Therunnanse v. Si.yacloris.
Jay as i riwardene who had purchased it at a sale held in TestamentaryProceedings of the estate of one Bope Kondanna Therunnanse, No. 6476of the District Court of Galle.
At the trial the learned District Judge held that the property had beenpurchased by one Talpawila Indrajoti who was the first incumbent ofSudharmaramaya Temple at Bope and that the plaintiff was not therightful incumbent of the Temple but that he had sufficient interestto maintain the action if the property was sanghika property. He alsoheld that the property was not sanghika property of the Temple. Heaccordingly dismissed the plaintiff’s action with costs.
In appeal Counsel for the appellant contended that the documentaryevidence in the case showed conclusively that the property was sanghikaproperty of the Temple. Counsel for the respondents maintained thatthe Judge’s finding that the property was pudgalika property wassupported by the evidence and, further, that the learned Judge waswrong in holding that the plaintiff could maintain an action in respectof temp^p property.
It is necessary therefore to consider—(1) whether the property issanghika property of the Temple and (2) whether the plaintiff is thecontrolling Viharadhipathi and so entitled to maintain the action.
The property in question had been purchased by Indrajoti Therunnansefrom one Watugedarage Juwan of Kumbalwella on a bill of sale datedMarch 29, 1817 (2D1) for a sum of 75 Rix dollars. This deed does notshow whether the consideration was provided by the Priest out of hispudgalika property or from the funds of the Temple. No presumptionwould therefore arise either that it was sanghika or pudgalika property.Any attempt at this stage to find out what funds were actually paid wouldbe futile. The question has therefore to be decided by an investigationinto the possession of the property to determine whether it had beenjpossessed by the Temple or by the pupils of Indrajoti Therunnanse astheitpudgalika property.
Indrajoti Therunnanse by his last will No. 2130 (2D3) dated November22, 1852, dealt with all the properties which were in his possession, bothsanghika and pudgalika. After granting certain properties to two of hispupils, and confirming the previous grant (2D2) of J of the properties toDharmarakkita Therunnanse, he gave a half share of all the propertiesto his pupil Medhankara Therunnanse and another £ share to Dharma-rakkita Therunnanse, whereby Dharmarakkita Therunnanse becameentitled to half and Medhankara Therunnanse to the other half. Thesetwo pupils were directed that they should carry out the instructionsgiven in the last will “ without deviating from the true intent of a singleword or syllable by the Executors ”. These two Executors havingresided in the Temple were in a position to know whether any particularproperty had been possessed by Indrajoti Priest as pudgalika propertyor as sanghika property. As the pudgalika property would by his lastwill devolve on the two Executors and the sanghika property would
DE SILVA J.—Chandrawimala Therunnanse v. Siyadoris.
^evolve on all the priests of the Temple it was against the interests ofthese two Executors to enter in the' Inventory as sanghika propertyany property which in fact was pudgalika.
The estate of Indrajoti Therunnanse was administered in case No. 772of the District Court of Galle and the Inventory was filed on or aboutMarch 8, 1853. The Inventory shows that a careful distinction had heenmade between sanghika property and pudgalika property. Thirteen landshave been included in the Inventory as pudgalika property and another13 lands, including the temple in which the deceased resided, have beenincluded as sanghika property. As the two Executors j^ere in the bestposition to know which were sanghika properties and which were pudgalikait is clear that this property, which was included as sanghika property,was in fact treated as such during the time that Indrajoti was in possessionof the property. This admission on the part of the Executors, in theabsence of any satisfactory proof that it was due to inadvertence or amistake, is binding on the successors in title of the Executors (who werethe legatees under the last will) in any subsequent proceedings betweenthe temple and their successors in title. The question however does notrest on this admission alone.
Medhankara Therunnanse died in 1862 leaving a last will which wasadmitted to probate in case No. 1,804 of the District Court of Galle inwhich Dharmarakkita Therunnanse and Bope Kondanna Therunnansewere appointed Executors. In the Inventory filed by them on August 22,1862, was included the half share of this property which had been devisedto Medhankara Therunnanse as sanghika property of the Temple.
The next document which affords evidence as to whether the propertywas sanghika or pudgalika property is the document P6 of 1882. Thisis an extract from the Grain Tax Commutation Register which showsthat the owner of this property was the Bope Pansala.
Up to 1889 sanghika properties belonging to temples were managedby the Incumbent Priest, but in 1889 the Buddhist TemporalitiesOrdinance, No. 3 of 1889, was passed by which provision was made forthe appointment of Trustees, District Committees and Provincial Com-mittees. Section 14 of that Ordinance provided that it shall be the dutyof the District Committee to ascertain and record in a book to be keptby them for that purpose certain particulars, including the nature, extentand value of other iands belonging to such temple whether held underlease or otherwise. It also provided that all properties should vest in aTrustee to be appointed in terms of the Ordinance. This Ordinancewas followed by Ordinance No. 5 of 1905, section 14 of which containedprovisions similar to that of Ordinance No. 3 of 1889 but provided thatit shall be lawful for Trustees to demise for any term not exceeding50 years lands vested in them with the written sanction of the DistrictCommittee. In accordance with these provisions the Trustee of theTemple, one Don Andris de Silva of Bope, with the sanction of theDistrict Committee, entered into Agreement No. 35,711 (P7) of December1, 1911, with one Uberis for planting and improving the land for a period
DE SILVA J.—Chadrawimala Th&runnanse v. Siyadoria.
of 8 years. This agreement provided for the payment of Rs. 66*26for the coconut trees to be planted on the land. Uberis appears to havepossessed the land under this agreement for the full term mentionedtherein.
These documents thus show clearly that the Temple was in possessionof this property as aanghika property from the year 1852 till at least1919—a period of 67 years.
The first document relied on to prove that this property was pudgaZikaproperty is Deed No. 3,934 of 1922 (2D10) by which Bope KondannaThero purported to lease this property to one Simons for a term of 10years. Kondanna at this time had failed in his attempt to obtain theincumbency of the temple and was apparently trying to put forward aclaim to this property. It is also alleged that Kondanna paid thecompensation which was due to Uberis on Agreement No. 35,711 (P7)and an extract from the Registrar (2D16) and a receipt given by ProctorKarunaratne for the sum of Rs. 71*25 (2D17) have been produced.An examination of 2D16 shows that it was an action brought by Uberisagainst Kondanna of Bope for the sum of Rs. 100 * 50 and that he obtainedjudgment for Rs. 71 *25. There is nothing to indicate that this was inrespect of Lease P7, but the parties appear to be agreed that it was inrespect of that lease. If this is the case it is clear that payment wouldhave been made by Kondanna only on the basis that he was a successorin title to the Trustee. If he claimed the property on a different titlethen he would not be bound by the Agreement P7 and there would havebeen no reason for him to pay the compensation provided in theagreement.
The learned District Judge appears to have been influenced to someextent by the translation of the document 2D2 in coming to the conclusionthat Indrajoti purchased the property out of his private funds. Thetranslation reads :—“ Jth part or share of the Vihara and Pansala of myprivate property acquired out of my own private cash and of the highand low lands which have been granted to the said Pansala and Viharafor charity sake.” As this translation did not appear to be
correct I got the Interpreter Mudaliyar of this Court to translate therelevant passage, which is marked X. This translation reads :—“ One-fourth share of the Vihara and the Temple and of my lands inherited andpurchased by me and also of all the lands and fields donated to this Templeon charity ”. There is no indication in that document therefore thatthe purchase was made with the private funds of the Priest.
I think that on the evidence afforded by the documents the onlyconclusion possible is that the land in question was the aanghika propertyof the Temple and not the private property of any of the priests residingtherein.
As the earliest claim that this property was pudgalika property wasmade by the Lease 2D10 in 1922 no question of prescription will arise inview of the provisions of section 34 of Chap. 222.
Dascmoydke Appuhamy v. Kumaraeinghe.
The next question which requires consideration is whether the plaintiffcould maintain his action as he was not the lawful incumbent of theTemple. It is unnecessary for this purpose to consider the questionwhether a person who is not in the a pupillary succession of the firstincumbent can acquire the incumbency of a temple by prescription.Counsel for the respondent relied on the case of Therunnanse v. Therun-nanse et al.1 for his contention that an incumbency cannot be acquired byprescription, but in this case the plaintiff does not claim to be the incum-bent but the controlling Viharadhipathi who has the right to possess theproperties belonging to the temple. His Lordship the Chief Justicein the following passage of hiB judgment, in the case of VipulanandaTherunnanse v. Sedawatte Pannaaara 2 shows the distinction between aclaim to an incumbency and a claim to be trustee:—“ So far as theclaim of the plaintiff to succeed by right of prescription iB concerned,it was held in Therunnanse v. Therunnanse that, aB the incumbent of thetemple has no title to the immovable property of the temple nor a rightto the possession thereof nor any rights as contemplated by section 3of the Prescription Ordinance, he cannot obtain a title to an incumbencyby prescription”. The plaintiff’s tutor, Sarananda, had been Viharadhi-pathi from 1928 and the plaintiff has succeeded him as such Viharadhi-pathi. In the circumstances I agree with the learned Judge that thiscase falls within the principle laid down in the case of Sumana Therun-nanse v. Somaratane Therunnanse 8 and that the plaintiff is entitled tomaintain this action.
I would accordingly allow the appeal and set aside the decree and enterjudgment for the plaintiff as prayed for with costs.
Howabd C.J.—I agree.