DAMMARATNA UNNANSE v. SUMANGALA UNNANSE et al

113-NLR-NLR-V-14-DAMMARATNA-UNNANSE-v.-SUMANGALA-UNNANSE-et-al.pdf


( 400 )
.‘ov.23,1910
Present: Middleton J. and Wood Renton J.DAMMARATNA UNNANSE v. SUMANGALA UNNANSEefa/.210—D. C. Kandy, 18,982.
Buddhist ecclesiastical law—Expert evidence on various matters—Pupillary
•succession—Right of presentation where pupillary succession fails—
“ Sanghika."
A right- of papillary succession is forfeited if the pupil desertshis tutor and the temple the incumbency of which he claims.
The fact that a tutor disrobes himself for immorality or othorreason does not affect the pupil’s status as regards the right ofpupillary succession.
I f succession to a vihare in “ sisyanuaisya paramparawa ” fails,the Chapter of the college to which it belongs have the right toappoint, although in the case of small viliaras the Maha Nayakamay act alone in the faith of future support from the Chapter,and even in districts the local Nayaka Unhanses have been knownto appoint.
If the body or person having the right of presentation to theincumbency makes such presentation, the right of pupillary succes-sion does not revive to the incumbent so appointed. “ Pupillarysuccession is not revived upon a ‘ sanghika ’ appointment unlessthe terms of the grant do so, but the right of presentation reverts ■to the Chapter again.”
facts are set out in the judgments.
Bawa, for plaintiff, appellant.
Van Langenberg, Acting S.-G., for respondent.
Cur. adv. vult.
November 23, 1910. Middleton J.—
This was an action praying that plaintiff be declared incumbentof the Diwille Vihare and entitled to the possession of the pansalas,and to officiate in the said vihare by right of the tenure knownas “ sisyanusisya paramparawa,” or pupillary succession.
The plaint averred that the incumbency of the vihare was by thistenure, and that Sonuttara Unnanse was incumbent by successionfrom his tutor, and that on his death in 189.3 the plaintiff, asthe pupil of Tissa Unnanse, the only pupil of Sonuttara Unnanse,succeeded to the said incumbency, Tissa Unnanse having pre-deceased Sonuttara Unnanse ; that the plaintiff placed the first
( 401 )
defendant in charge in May, 1907, and that he wrongfully preventsthe plaintiff from exercising the functions of incumbent, and thatthe second defendant is the trustee of the said vibare.
The answer of the first defendant denied that the tenure ofthe incumbency of Diwille Vihare is by pupillary succession, butadmitted that Tissa Unnanse was at one time the pupil of SonuttaraUnnanse, but that Tissa Unnanse disrobed himself during thelifetime of Sonuttara Unnanse and afterwards became the pupil ofone Batugoda Unnanse ; denied that the plaintiff is the pupil ofTissa Unnanse, or that he succeeded to the incumbency or everexercised the rights and duties thereof ; denied that defendant wasplaced in charge of the temple, or that the plaintiff suffered any loss ;averred that for a time beyond living memory the temple, has beenheld as one belonging to the community of priests of the AsgiriyaVihare, and that since the death of Sonuttara Unnanse in 1893 thedefendant has been in charge as incumbent, with the sanction andapproval of the Maha Nayaka Unnanse and of the villagers ofDiwille and Murutawatta.
The answer of the second defendant admitted all the allegationsin the first paragraphs of the plaint, including the allegationthat the incumbency of the Diwille Vihare was held by pupillarysuccession, but denied the plaintiff’s right of action against him, andclaimed a dismissal of the action as against him with costs.
The following issues were agreed to :—
Whether the Diwille Vihare is held by the tenure of
“ sisyanusisya paramparawa ” ?
Whether Tissa Unnanse disrobed himself during the life-
time of Sonuttara and afterwards became the pupil ofBatugoda Unnanse ?
If the tenure was that of pupillary succession, whether Tissa
Unnanse’s disrobement broke the tenure ?'
Whether plaintiff was the pupil of Tissa Unnanse, and if so,
whether plaintiff succeeded to the incumbency ? •
Whether the plaintiff exercised the rights and performed
the duties of incumbent ?
Whether first defendant was placed in charge of the temple
by the plaintiff ?
What damages, if any, is plaintiff entitled to recover ?
Whether from time immemorial the temple was held as
belonging to the community of priests of the AsgiriyaVihare ?
Whether since the death of Sonuttara Unnanse in 1893 the
temple has been in the charge of the first defendant asincumbent and officiating priest, with the sanction ofthe Maha Nayaka Unnanse of the Asgiriya Vihare andof the villagers of Diwille and Murutawatta ?
31J. N. A 93348 (11/49)
Nov. 33,1010
Middleton
J.
DammaratnaUnnanse v.SumangalaUnnnnse
< 402 )
Nov. 23,1910 After hearing the evidence adduced on both sides the DistrictMiddleton Judge dismissed the plaintiff’s action, and he appealed.
The first thing necessary in this and most cases is to ascertainDatmnaratna what are the findings of fact which are not disputed.
XJflTKlHSR V.
Sumangaia In the first place, it is admitted that Sonuttara Unnanse wasVnnanse incumbent of the vihare, and there is the evidence of Kiri Banda,Registrar, and Saranankara, Priest, and uncle of plaintiff, thathe was the pupil of his predecessor Gammulla. The DistrictJudge finds it proved that Tissa was a pupil of Sonuttara,and that plaintiff was a pupil of Tissa, and he is of opinion thatif the tenure of pupillary succession applies to the vihare theplaintiff is entitled to succeed. The District Judge does not,however, find that if Tissa was subsequently disrobed, what wouldbe the effect of such disrobing on his or his pupil’s right of pupillarysuccession.
The plaintiff also admits that after being robed at Diwille byTissa he stayed four or five months in Diwille, and then went toTissa at Batugoda, where he was with him till his death, but thatat Sonuttara’s death he was at Deberrellawa, of which Sobita wasthe incumbent, and that he had become a pupil of Sobita, who taughthim “ bana and that he was ten or fifteen years at Deberrellawa,during which time the defendant acted for him.
The District Judge also finds that the defendant has been de factoincumbent of Diwille since Sonuttara’s death in 1893 ; that defend-ant, was not put in charge of Diwille by the plaintiff, and that thedefendant at Sonuttara’s death took charge of the temple, with thesanction of the Maha Nayaka of Asgiriya and with the approval ofthe villagers, and has held the temple uninterruptedly for sixteenyears, which the learned District Judge looks upon as prescriptiveproof that it is “ sanghika,” and not subject to the rule of pupillarysuccession. I saw no reason to doubt the correctness of any ofthese findings of fact, but on consultation with my. brother WoodRenton we deemed it necessary to have further evidence fromwitnesses learned in Buddhist ecclesiastical law, and a set of ninequestions were drawn up to be answered by seven witnesses, threeof whom were to belong to the Malwatta College and three to theAsgiriya College, while the seventh was to be the highest sacerdotalBuddhist authority in Colombo.
The evidence of seven gentlemen answering to this description hasbeen taken in the District Court, and their answers to the questions,which were abstract, should form a very valuable source of infor-mation for future reference on the points inquired, abqut. Thosequestions were as follows :—
How is the right of pupillary succession obtained ?
Can a pupil obtain the right of pupillary succession to his
tutor if he is not robed by him ?
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Does every pupil obtain the right of pupillary succession
to his tutor ; if so, in what order ; if not, which pupilobtains the right ?
If a person who has been pupil of one tutor becomes the
pupil of another tutor, does he lose the right of pupillarysuccession to his former tutor from that fact ?
Tf the pupil of a tutor dies before his tutor, does his pupil
lose the right of succession to his tutor’s tutor ?
If a tutor disrobes himself for immorality, what is the effect
of his doing so on his own and his pupil’s status asregards the right of pupillary succession ?
If a tutor has two or more pupils, in What order do they
succeed to their tutor, Le.f A has two pupils, B and C,and A dies. Who succeeds ? B or C ? E.g., A hastwo pupils, B andC, and B dies before A, does C succeed ?A has two pupils, B and C. B has pupil E, and C has F.B dies before A. Who succeeds to A ?
If pupillary succession fails to a vihare dedicated in
“ sisyanusisya paramparawa,” who has the right ofpresentation to the incumbency ?
If the body or person having the right of presentation
to the incumbency makes such presentation, does theright of pupillary succession revive to the incumbent soappointed, or even if he has a pupil on his death, againrevert to that body or person ?
iVov. 23,1910
Middleton
J.
DamtnaratnaUn name t>.SinnangalaOn name
The practically unanimous answer to the 6th question disposesof a doubt I had with regard to the plaintiff’s right of succession of .Sonultara if Tissa disrobed himself for immorality or other reason.The plaintiff’s right of succession to Sonuttara would not apparentlybe lost. The question is whether, when Sonuttara was appointedsome forty or fifty years ago, the incumbency was “ sanghika.” Inthe old action, No. 19,169, referred to by the District Judge, theadministrator of the estate of the former incumbent, HapugodaUnnanse, was sued by one Lenadora, grantee by deed of the incum-bency of Diwille Vihare in 1843 for the priests of the Asgiriya Vihare(vide Lawrie's “ Gazetteervol. /., p. 164). The deed recites thatthe vihare had been “ sanghika,” and the right to manage it wasvested in the Maha Nayaka of Asgiriya Vihare. The judgment ofthe Court does not help greatly, but the ground of the defendant’sdemurrer and the plaintiff’s deed establish that both parties musthave held the view that the vihare at the time was “ sanghika ”property, and I think we are entitled to hold that the vihare was“ sanghika ” in 1843 and 1844. Lenadora lost his action, and someyears afterwards apparently Sonuttara was appointed.
According to the answers to the 8th question, if pupillary succes-sion to a vihare in “ sisyanusisya paramparawa ” fails, the Chapterof priests of the college to which it belongs have the right to appoint,
( 404 )
Nov. 2St 2910
Middleton
J.
DajrwiaratnalhmQtite v.fifuwanffalaUn/ianae
although in the case of small vihares the Maha Nayaka may actalone in the faith of future support from the Chapter, and even indistricts the local Nayaka Unnanses have been known to appoint.
The preponderance of opinion in answer to question 9 is thatpupillary succession is not revived upon a “ sanghika ” appointmentunless the terms of the grant do so, but the right of presentationreverts to the Chapter again.
In this case the only evidence that pupillary succession wasconstituted is that Sonuttara was the pupil of his predecessorGammulla. As the District Judge says, this fact is not inconsistentwith a “ sanghika ” appointment, as the Maha Nayaka and Chaptermight have selected Sonuttara as the fittest person.
I agree, therefore, with the Judge that on the facts before him andthe further evidence we have obtained, this vihare was “ sanghika,"and the evidence is not sufficient to show that it has reverted to thetenure of pupillary succession.
I agree also with my brother Wood Renton, whose judgment I.have had the advantage of reading since writing the above, thatupon the expert evidence given in answer to question 5, and thecross-examination of Sri Dharmarama, the High Priest of Colomboand Chilaw, and the evidence taken before the District Judgeoriginally, that there is good reason for holding that the plaintiffby his action forfeited his rights of pupillary succession. I think,therefore, that the judgment of the District Judge was right, andthe appeal must be dismissed with costs.
Wood Renton J.—
This case was fully argued before my brother Middleton andmyself on March 7 and 8 last, and judgment was reserved on thelatter date. By decree dated March 23 we sent it back to theDistrict Court in order that expert evidence might be taken oncertain points of Buddhist law, which had been raised before us inthe argument of the appeal, and which seemed to us to be of materialimportance. That evidence has now been recorded, and the casewas put down before us on November 15 for any argument on theadditional evidence that either side might desire to address to theCourt. At the adjourned hearing of the appeal, however, counselfor the appellant and the respondent agreed to leave the decision ofthe case, without further argument, in our hands. The plaintiff-appellant claims the incumbency of Diwille Vihare in Matale Southby pupillary succession from Sonuttara, the former incumbent.He alleges that Sonuttara had an only pupil named Tissa, whosepupil he himself was. Tissa died in 1888, in Sonuttara’s lifetime.The appellant then, by Buddhist ecclesiastical law, became Sonut-tara’s pupil, and on Sonuttara’s death in 1893 succeeded to theincumbency by right of pupillary succession. The appellant saysthat thereupon he put the first defendant-respondent in charge of
( 405 )
WoodKenton J.
DammarutnaUitnanxe v.UmiuintialaUunmixt.
the temple ; that he continued to visit the temple as incumbent from 23, l'JlO
time to time; and that in May, 1907, the respondent, repudiatinghis subordinate character, himself set up a claim to the incumbencyand forcibly prevented the appellant from exercising his rights.
He claims accordingly a declaration of his title to the incumbencyand to the possession of the temple, and damages.
The respondent denies that the incumbency of Diwille Viharcwas held by the tenure of pupillary succession ; that the appellantwas the pupil of Tissa ; and that he had ever been placed by theappellant in charge of the temple. He alleges that from timeimmemorial the temple was held as belonging to the community ofpriests of Asgiriya Vihare, and that since 1893 it had been in hischarge as incumbent, with the sanction and approval of the MahaNayaka of Asgiriya and of the villagers. The District Judgedismissed the appellant’s action, holding that while if the rule ofpupillary succession applied, the appellant would be the de jureincumbent, the incumbency is not subject to that rule, but is“ sanghika ” property, lawfully in the charge of the respondent, withthe sanction of the Maha Nayaka of Asgiriya and the approval ofthe villagers.
Both the evidence originally recorded and the additional expertevidence now before us justify the conclusions of the District Judge :
(i.) that Tissa was Sonuttara’s pupil, and died in his master’s lifetime;
(ii.) that the appellant was the pupil of Tissa ; (iii.) that on Tissa’sdeath be became the pupil of Sonuttara and would be entitled assuch to succeed Sonuttara in the incumbency if it were in fact heldby the tenure of pupillary succession ; (iv.) that the appellant’srights would not be forefeited after his ordination even if Tissadisrobed himself for any cause whatever; and (v.) that his positionwould be equally unaffected by the mere fact that after Sonuttara’sdeath he became the pupil of the incumbent of another temple.
There is some divergence of opinion among the expert witnesses onthis last point. Ev,en if the appellant had deserted Sonuttara inhis lifetime, he would still be Sonuttara’s successor, according toHeramitigala Dhirananda of Malwatta Vihare, Ratnajoti NayakaUnnanse of Mayihangana in Bintenna, and Saranankara, HighPriest of Topawewa. On the other hand, according to Sri Dharma-rama, High Priest of the Colombo and Chilaw Districts, if the pupilof one tutor became the pupil of another he will have the rightto succeed his first tutor only in case he joined the second withthe consent and approval of the first; and if a pupil were to quarrelwith the first tutor and leave him altogether and join anothertutor and never return to the first, he will forfeit his rights to thelatter. Sri Dharmarama was further questioned on this point incross-examination
Q.—If Sonuttara had a pupil Tissa, who disrobed himselfduring Sonuttara’s lifetime, and left plaintiff a[s his
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pupil, and plaintiff deserted Sonuttara and the vihareand never went back, would the plaintiff have the rightto succeed Sonuttara ?
A.—That will depend on many circumstances. If he remainedin obedience to Sonuttara and adopted no other tutor,and Sonuttara expressed no contrary intention, theplaintiff would have the right to succeed even if heresided elsewhere, but with Sonuttara’s approval. WhenTissa disrobed himself, the plaintiff would stand in hisshoes, and he ought to have remained under Sonuttara,just as Tissa should have remained. If he did not remainunder such allegiance, he would forfeit all rights.
Later on he says :—
“ There must be robing plus obedience to entitle a pupil tosucceed his tutor. The books do not state it in so manywords, but they state that a pupil must be obedient tohis tutor. Hence, if he is disobedient, it is inconsistentwith his being a pupil in the Buddhist sense. If, in the .case put, Sonuttara or Tissa had no other pupil, it maybe proper that the plaintiff should succeed if he comesback to the vihare.”
The question above stated was put also to Sri Gnanissara, Vice-Principal of the Vidyodaya priental College, Colombo, and in effectto Wataraka Ratanajoti, Anu Nayaka of the Malwatta Vihare. Theformer replied :—
“ If the plaintiff continued to be a priest and was in robeswhen he went away, his leaving without Sonuttara’sconsent cannot deprive him of his rights, nor is itnecessary that Sonuttara should proclaim his recognitionof the plaintiff as his successor. I do not agree withDharmarama on this point.”
The. latter said :—
“If a tutor has a pupil who disrobes himself in his tutor’slifetime, but leaves a pupil of his own, that pupil willsucceed the original tutor, but only if he continue inthe vihare, owing allegiance to him. If he deserts thevihare, and the original tutor leaves no other pupil, thevihare will become ‘ sanghika.’
“ If a pupil does not remain in a vihare and assist his deceasedtutor's tutor, he cannot succeed him. It is not rightthat he should.
Nov. 23,1910
WoodRenton J.
DammaralnaUnnanse v.Gum angolaUnnanse
( 407 )
“ If the vihare was deserted and that pupil came back and gotin, he cannot be turned out. That is because thevihare had become ‘ sanghika and he as a priest canremain there. But he cannot become the incumbent ofit if he has no appointment.
“ If a pupil leaves a vihare without any intention of returningto it he would lose his rights altogether, even though hebe the sole pupil of his tutor.
“ It is an elementary rule that a pupil must remain permanentlywith his tutor if he is to obtain pupillary rights.”
The weight of the expert testimony decidedly supports the viewthat a right of pupillary succession will be forfeited if the pupildeserts his tutor and the temple the incumbency of which he claims.There is ample evidence in the present case justifying the conclusionthat such a forfeiture has been incurred by the appellant. But thecase may also be decided on the ground that the incumbency is notheld by pupillary succession at all. There is some evidence thatSonuttara was himself the pupil of one Gammulla. The witnesseswho speak to this are Kiri Banda, Registrar of Urulewatta, andSaranankara, Priest of Hunupahura Pansala, Matale. At the dateof this alleged* succession, however, the Registrar was only a boy.Saranankara was also a boy, and in addition to that he is theappellant’s uncle. The District Judge points out that even if itwere the case that Sonuttara was the pupil of Gammulla, the factwould not be necessarily inconsistent with the respondent’s conten-tion that the Diwille Vihare is “ sanghika ” property. And there isevidence establishing that contention, which the District Judge has
accepted. We start with the indisputable fact of the possession ofthe incumbency of the temple by the respondent from 1893 onwards.The Dayaka Kiriya says that the respondent applied for this positionto, and obtained it from, the Maha Nayaka, and that the appoint-ment was approved by the villagers. The expert evidence showsconclusively the existence in practice of such a mode of appointment(and see Dharmapala Unnanse v. Medagama Sumana Unnanse1).Muttuwa, another Dayaka, gives evidence to the same effect asKiriya. Muttuwa says that the inventory D l of the property of thetemple was prepared by the Dayakas at the time of the respondents,and that the appellant had nothing to do with it. H. Kiriya and
Kiriya, the Vel-Vidane,-corroborate the evidence of the Dayakasas to the circumstances under which the respondent took charge ofthe temple. In the last place, there is the case D. C. Matale, 4,289,instituted as far back as February, 1844, showing that the templehere in question was “ sanghika ” property.
I would dismiss the appeal with costs.
Appeal dismissed.
1 (1909) 2 Cur. L. R. S3.
Sov. 23,1910AVoou
itjSKTON J.
DammaratnaUnnanse v.iStnnaurfafaUnnantsc