058-NLR-NLR-V-41-DHAMMADARA-THERO-v.-SEDERANHAMY-et-al.pdf
236
Dhammadara Thera v. Sederanhamy.
1939
Present: Hearne S.P.J. and Keuneman J.
DHAMMADARA THERO v. SEDERANHAMY et al.
115—D. C. Matara, 3,898.
Buddhist Temporalities Ordinance (Cap. 222), s. 23—Money due to Buddhistpriest on insurance policy—Property acquired for exclusive personaluse—Property of temple.
Money) due on a policy of insurance taken by a Buddhist priest isproperty acquired for his exclusive personal use within the meaning ofsection 23 of the Budhist Temporalities Ordinance and vests in thetemple on the death of the priest unless it has been alienated in hi si
lifetime.
* (1918) 20 N. L. R. 385.
(1924) 26 N.L. R. 257.
KEUNEMAN J.—Dhammadara Thero v. Sederanhamy.
237
^^PPEAL from a judgment of the District Judge of Matara.
N. E. Weerasooria, K.C. (with him E. B. Wikremaruxyake and C. E. S.Perera), for respondents, appellants.
H. V. Perera, K.C. (with him C. V. Ranawake, H. A. Koattegoda, and
J. Ranatunga), for petitioner, respondent.
Cur. adv. vult.
July 27, 1939. Keuneman J.—
This is a testamentary proceeding in respect of the estate of Rev.Somananda Unnanse, deceased, who was the incumbent of the Arambe-goda Temple. The deceased died on May 9, 1935, leaving an InsurancePolicy, P 1, valued at Rs. 4,167.40. The original "petitioner as incum-bent of the said temple claimed letters of administration to the estateof the deceased. The first respondent (appellant) as guardian ad litemof the second and third respondents (appellants) objected to letters ofadministration being issued to the petitioner. The second and thirdrespondents claim to be the lay heirs of the deceased.
At one stage, proceedings were stayed until the appointment of atrustee for the said temple had been made. Thereafter the respondentto this appeal was duly appointed as trustee. The original petitionerwithdrew his application and the contest for the letters was continuedbetween the appellants and the respondent, who was referred to as thepetitioner.
At the inquiry the following issues were framed: —
Is the policy of insurance which the deceased priest had takenacquired property within the meaning of section 23 of the BuddhistTemporalities Ordinance, No. 19 of 1931 ? (It is admitted by theparties that the deceased priest did not alienate the money that wouldhave fallen due on the maturity of the policy.)
As the priest died without alienating or otherwise encumberingthe money due on the policy, is the money due on the policy the propertyof the temple to which the deceased priest belonged?
If issues Nos. 1 and 2 are answered in the affirmative, who isentitled to letters of administration, is it Galahitiya DhammadaraThero, Mr. G. M. de Silva’s client, or the respondents represented byMr. Wijetunga?
The learned District Judge held in favour of the respondent and heldthat he was entitled to letters of administration. The appellants appeal.
The claim of the respondent is based on section 23 of the BuddhistTemporalities Ordinance of 1931, which runs as follows: —
“ 23. All pudgalika property that is acquired by any individualbhikkhu for his exclusive personal use, shall, if not alienated by suchbhikkhu during his lifetime, be deemed to be the property of the templeto which such bhikkhu belonged unless such property had been inheritedby such bhikkhu ”.
In the Court below it was established that the premiums in respect of thepolicy were* paid by the deceased priest out of this inherited property
20-
238KEUNEMAN J.—Dhammadara Thera v. Sederanhamy.
;4-
and it was argued that the section did not apply on that account.' TheDistrict Judge rejected that argument, and it has not been revivedbefore us, and I do not think that the argument is good.
Before us it was argued in the first place that the property involvedwas money due under the policy, and that this money could not bealienated during the lifetime of the deceased, and accordingly that it wasnot the class of property contemplated by the section. It was furtherurged that the right to claim this money only came into being on thedeath of the deceased.
If we examine the policy P 1, we find that the Insurance Companyagreed, on receipt of satisfactory proofs of the death of the assured, to payRs. 5,000 to his executors, administrators or assigns. Further, if theassured was living and the policy in force on August 20, 1944, the Com-pany agreed to pay to the assured or his assigns the sum of Rs. 5,000with any bonus then declared.
The policy accordingly was not one only to take effect on the deathof the assured. Further, it was a contract between the Company and theassured, whereby the assured obtained rights in the policy, which werecapable of being assigned. I think these rights may be described as theproperty of the assured, and that the executors or administrators, in theabsence of assignment, are parties who can now enforce rights whichaccrued to the assured previously, when he entered into the contract.
I do not think we can accept the interpretation contended for by theappellants.
The next point urged for the appellants is that this was not propertyacquired by the deceased for his exclusive personal use. It was contendedthat the word “ use ” was equivalent to “ user ”, and that the propertyreferred to was such as was needed for his personal enjoyment, or to putit in another way, that it was property which the priest himself used orintended to use for himself. Counsel for the appellants suggested thatit may mean “ the necessaries of life ”, and argued that under Buddhistlaw a Buddhist priest can only possess four necessaries, namely, clothing,medicines, furniture, and food. Reference was made to the case ofRatnapala Unnanse v. AppuhamyThough there is a reference to thesefour necessaries in the judgment of the District Judge in that case, theSupreme Court itself has not dealt with that point, but decided that caseon other considerations.
But whatever the position may be under the Buddhist law, our dutynow is to construe the words of our Ordinance. The first point we haveto consider is that section 23 excepts from the class of pudgalika propertyacquired by an individual bhikkhu for his exclusive personal use, propertywhich has been inherited by that bhikkhu. It is clear therefore thatinherited property may be “ property acquired for the exclusive personaluse ” of the bhikkhu. I think this exception cannot be reconciled with theargument for the appellants. It is difficult to understand how inheritedproperty can be regarded as property intended for the personal enjoymentof the bhikkhu, in the sense contended for by the appellants. In factinherited property comes to the bhikkhu apart from any intention on
1 4 N.L. R. 167.
KEUHEMAN J.—Dhammadara Thero v. Sederanhamy.239
his own part to use it, or enjoy it. Nor do I think that we are drivento give to the word “ use ” the meaning of “ user ” or “ enjoyment ”.The word “ use ” also bears the meaning of “ benefit ”, and I think thisis the more natural meaning to assign to it in this section.
The further argument is that we must give a meaning to every wordin the section, and that the phrase “ pudgalika property that is acquiredby any bhikkhu for his exclusive personal use ” must mean somethingmore than property acquired by the priest for his own benefit, and thatthe words “ exclusive ” and “ personal ” are redundant. “ Pudgalika ”,it is said, means “ that which belongs to one person, personal property ”(Clough’s Dictionary), and the words “ acquired for his exclusive personaluse ” must refer to user or enjoyment.
1 note, however, that in Codrington’s Glossary the- word “ Pudgalika ”is defined as follows:—“Property belonging to individual monks, asopposed to Sangika or belonging to the priesthood”. If we examinethe words of section 20, we see a distinction drawn between offerings forthe use of the temple, and pudgalika offerings for the exclusive personaluse of the individual bhikkhu. This appears to bring out the same point.It is possible that what the draftsman had in mind was a sharp differencebetween what was for the temple and what was for the individual monk,and that the phraseology “ for his exclusive personal use ” merely broughtout that distinction emphatically. But even if that argument cannot besustained, I think that the words “ exclusive personal use ” in section 23cannot be regarded as tautology. In employing the words “ personaluse ” I think the draftsman meant “ for his own use ”. The furtheremployment of the words' “exclusive” brings in the meaning “and notfor the benefit of someone else ”. I think it is not unreasonable tosuppose that the draftsman had in his mind the fact that the bhikkhumay have property with which he is vested, but which he holds eitheras trustee or in some fiduciary capacity and not for himself alone, andintended that the temple should not succeed to such property. Inthat case the use of both words “ exclusive ” and “ personal ” was notunnecessary.
So far I have discussed this case apart from authorities, but I thinksome light is thrown on this by the case of Reilly v. Booth In that caseby lease and release M and others conveyed to W,- a piece of freeholdground with a messuage thereon adjoining a covered gateway “ togetherwith the exclusive use of the said gateway ”. It was held that theconveyance to W passed the ownership of the gateway, and not merelyan easement. Cotton L.J. said: “ We must consider this as intended to benot only ‘ exclusive ’, that is excluding others, but a right to use thispassage …. for any purpose which the law will allow, and whichdoes not interfere with the rights of their neighbours …. Myview is that it is a conveyance really of the property in that passagewhich is as described ”. Lindley L.J. said :“ It is said that we ought
to construe the use of the gateway as the use of a way, and that it is amere easement. That, to my mind, is to limit without sufficient warrantor justification the words used in the grant”. Lopes L.J. said:“The
1 Court of Appeal (1890) 44 Ch. D. 12 : 62 Law Times 378.
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KEUNEliIAN J.—Dhammadara There v. Sederanhamy.
exclusive use of the said gateway was given. The exclusive or unrestrict-ed use of a piece of land, I take it, beyond all question passes the propertyor ownership in that land”.
I think, in view of this judgment, it is only a small step for us to holdthat, where the Ordinance employs the phrase “ acquired for his exclusivepersonal use ” in relationship to property, these words merely relate to thekind of title obtained by the person in the property, namely, a title forhis own benefit and not for the benefit of any other person, and haveno reference to the purpose for which the property is acquired, or to themanner in which the property is to be enjoyed, by the person acquiringit. “ Use ” may include “ user ” or “ enjoyment ”, but it has a wider.significance, namely, “ benefit ”, and as I pointed out previously, thewords “ exclusive ” and “ personal ” are not unnecessary or redundant..I think significance can be given to each word in the section.
I am of opinion that the argument for the appellants cannot besustained. The appeal is dismissed with costs.
Hearne S.P.J.—I agree.
Appeal dismissed.