194-NLR-NLR-V-47-DHAMMADASI-THERO-Appellantand-DHAMMASIDDI-THERO-Respondent.pdf
Dhnmmadaai Thero v. Dhammasiddi Thero.
553
1946
Present: Keuneman S.P. J. and Canekeratne J.
THERO, Appellant, and DHAMMASIDDITHERO, Respondent.
294—D. C. Kandy, 610.
Buddhist Law—Dambulla Vihare—Dispute between Viharadhipathi andthewawa priest as regards the right to the keys and certain other articlesbelonging to one of the five shrines—Jurisdiction of Court to adjudicate insuch dispute—Right of Viharadhipathi to appoint a new thewawa priest—Contract of bailment known as commodatum—Evidence Ordinance,s. 117.
The plaintiff, who was the Viharadhipathi of Dambulla Vihare, averredthat he appointed the defendant as thewawa priest to perform the ritesand ceremonies of the shrine room known as Devu Raja Vihare. Thedefendant, according to the plaintiff, held the office during the will andpleasure of the plaintiff. The defendant, on the other hand, contendedthat the right of officiating at the five shrine rooms of Dambulla Viharewas regulated by the Sisyamu Sisya Paramparawa rule of succession andrefused to hand back to the plaintiff the keys and certain other articlesof the shrine room which had been delivered to him by the plaintiff on acontract, express or implied, that they should he redelivered as soon asthe time for which they were given should elapse.
In an action brought by the plaintiff praying that he be declaredentitled to the right and privilege of appointing a new thewawa priestand that the defendant be directed to deliver the articles to him—
Held, (1) that there was a contract of bailment of the kind known ascommodatum as regards the articles which had been delivered to thedefendant;
(2) that as the plaintiff must make provision for the preservation ofthese articles at Devu Raja Vihare he was entitled to appoint a newthewawa priest and entrust the same to him.
A
PPEAL from a judgment of the District Judge of Kandy. Thematerial facts appear from the head note.
N.E. Weerasooria, K.C. (with him S. R. Wijayatilake), for the defend-ant, appellant.—The right of officiating at the thewawa of the fiveVihares constituting the Dambulla Temple is regulated by the rule ofsuccession known as the Sisyanu Sisya Paramparawa. The pupils ofPothuhera Ratnapala and their successors have exercised these rightssince 1796 and the defendant and his predecessors being in the pupillaryline have been performing the thevjaiua ceremonies at the Devu RajaVihare, and the present action of the plaintiff who is the Viharadhipathiis an attempt to disturb the prevailing practice by making his ownappointments. According to the decree tho plaintiff has been given -theright to appoint any priest, whether lie be a successor of Pothuhera24—XLVii.
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Dha nmadaei Thero v. Dhammasiddi Thero.
Ratnapala or not. The system of hereditary succession of the Kapuralasat the Alutnuwara Dewale is analogous. See Nugawela v. MohcUhala >.
Moreover, according to the system at Dambulla Temple, if a change iseffected in respect of one Vihare like changes have to be made in theother Vihares too and the posts have to be confined to the sacerdotalline of Pothuhera Ratnapala. According to the evidence it is apparentthat the changes have been only among the successors of PothuheraRatnapala and that they have been functioning in the five vihares inrotation.
This practice should be maintained. See Kandyan Convention,Legislative Enactments, Vol. VI., section 5, Chapter 274.
The plaintiff’s action is misconceived as the Civil Courts have nojurisdiction to grant the relief claimed for as the matter in dispute ispurely of a religious or ecclesiastical nature and the proper body toentertain it would be the Sangha Sabha—Pitcke ThamJby v. CasaimMarikar 2 ; Vasudev et al v. Vamnaji et al 3. The present dispute isover the performance of certain religious rites and therefore quiteoutside the scope of the Civil Courts.
The plaintiff has no status to maintain this action in respect of thearticles used in the performance of the thewawa as he is admittedly notthe Trustee. See sections 18 and 20 of the Buddhist TemporalitiesOrdinance ; Dias v. Ratnapala 4.
A. P. Wijeyeralne (with him Walter Jayaioardene), for the plaintiff,respondent.—The plaintiff as the Viharadhipathi has the right to makeappointments for the performance of the thewawa in the five shrinerooms. In fact the defendant was appointed by the plaintiff on August15, 1928, and on July 3, 1938. The defendant has acknowledged theplaintiff’s authority to do so.
The present holders of the offices in the five shrine rooms are not theonly successors of Pothuhera Ratnapala—there are several others.It is conceded that the appointment must be confined to the successors ofRatnapala but not necessarily to the present holders of these offices.
According to the evidence it is obvious that the changes were not madein rotation.
The present dispute is in regard to an office and the Civil Courts havejurisdiction to entertain this action. The case of Pitche ThamJby v.Cassim Marikar can bo distinguished.
The articles referred to are necessary for and appurtenant to the officein dispute and the plaintiff having handed them over is entitled to getthem back. See Gooneratne Nayake Thero v. Punchi Banda Korala 5.
N. E. Weerasooria, K.C., in reply.—The alleged appointments in 1928and 1938 were redundant. The right to officiate at the thewawa has beenalways governed by the Sisyanu Sisya rule of succession. The generalright of a viharadhipathi to control the administration of a vihare should
1 (1945) 47 N. L. R. 47.
(1914) 18 14. L. R. 111.
31. jL. R. (1880) 5 Bornbay 80.
*(1938)40 N.L. R. 41.
3 (1926) 28 N. L. R. 145.
CANEKERATNE J.—Dhammadari Thero v. Dhammaaiddi The.ro.
555
not be confused with the traditional practice prevailing at the DambullaTemple from time immemorial. The defendant’s right to officiate arisesfrom the fact that he iB in the pupillary line of Pothuhera Ratnapala andany acknowledgment of the plaintiff’s authority is inconsequential.
The decree as it stands is too wide even according to the position nowtaken by the plaintiff.
It has never been the practice to make a change in one vihare only.The evidence led indicates that the changes if at all were in rotation-
The ratio decidendi in the case of Pitche Tamby v. Cassim Marikar{supra) is really against the plaintiff.
The case of Gooneratne Nayake Thero v. Punchi Banda Korala {supra)has no application to the facts of this case.
The Dambulla Vihare is one of the oldest temples and the ancientcustoms and practices should not be lightly disturbed.
Cur. adv. vuU.
November 18, 1946. Canekeratne J.—
The appointment of the Viharadhipathi of Dambulla Vihare has been,since the middle of the last century, in the hands of the Chapter ofAsgiriya Vihare. The present holder of the office is the plaintiff, theAnnunayake Thero of Asgiri Vihare. Dambulla Vihare consists of fiveshrine rooms known as the Devu Raja Vihare, Maha Raja Vihare, MahaAlut Vihare, Paschima Vihare and Deweni Alut Vihare ; Devu RajaVihare appears to be the most important and in it are three devales—a Vishnu, Natha and Kataragama devales. The practice has been forthe Viharadhipati who resides in Kandy to appoint a bhikku for each ofthese shrine rooms. His position seems to resemble that of an assistantto the Viharadhipati; he is called the thewawa Priest or thewakamaUnnanse.
The evidence shows that the bhikku appointed to officiate at a shrineroom must be a sacerdotal descendant of Panawe Dipankara or ofMadugalle Guneratne. This was not denied by Counsel for therespondent.
It appears that Pana-wo Dipankara had a pupil NIkawela Indrajoti,whoso pupil was Nikawela Ananda ; Nikawela Dkammadasi and Ina-maluwe Sumangala were pupils of Nikawela Ananda. MuruthaoluweGunaratno was a pupil of the former, Tnamaluwe (or Daniyagama)Ananda a pupil of the latter. The defendant is a pupil of M. Guneratne.
The plaintiff averred that he appointed the defendant on August 15,192S, to perform the' rites and ceremonies of the shrine room known asDevu Raja Vihare : the office is referred to hereafter as the office ofthewawa priest. The defendant, according to the plaintiff, held the officeof thewawa priest at this shrine room during the will and pleasure of.theplaintiff. The defendant on the other hand contended that the rightof officiating at the five shrine rooms is regulated by the Sisyanu Si"ya
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CANEKERATNE J.—Dhammadasi Thero v. Dhatnmaaiddi Thero.
paramparawa rule of succession. He claimed that the right of officiatingat Devu Raja Vihare devolved on the sacerdotal line of N. Dhammadasi,».e., on M. Guneratne, and then passed to the defendant. He also claimedthat he had acquired a right to hold this office by prescription. Therewas another contention put forward by the defendant in the course ofthe trial that a pupillary descendant of M. Guneratne was entitled to beappointed the officiating priest at one of the five shrines at least. Thelearned Judge accepted the contentions advanced by the plaintiff:it is impossible to state that his conclusion is wrong.
The evidence shows that N. Dhammadasi was appointed the thewawapriest of Devu Raja Vihare about October 25, 1892, by U. (or Udugama)Buddharakkhita, the then Viharadhipati; he was reappointed to the postby Sri Sumana, the successor of TJ. Buddharakkhita, about May 12,1898, and he continued in the said office till about June 13, 1901, whenInamaluwe Sumangala became the thewawa priest.
N. Dhammadasi appears to have become a layman and was appointedthe trustee of Dambulla Vihare by the Committee in 1903. About May21, 1905, Muruthaoluwe Gunaratna (the tutor of the defendant), whohad been the thewawa priest of Deweni Alut Vihare since May 14, 1903,succeeded I. Sumangala in the office of thewawa priest of Devu RajaVihare : he was succeeded by Embulambe Suwamajoti about June 15,1913, and Inamaluwe Sumangala succeeded the latter about June 11,1917. On the death of I. Sumangala shortly afterwards EmbulambeSuwamajoti was appointed in his place by the then Viharadhipathi(Sri Sumana). The plaintiff, who succeeded Sri Sumana, went toDambulla Vihare on October 16, 1924, and was given charge of theVihare and its shrines. Embulambe Suwamajoti was reappointed thethewawa priest on this day and the plaintiff handed over the shrine roomto him. Suwamajoti continued to officiate till about August 15, 1928,when the defendant was appointed in his plaee by the plaintiff. Thedefendant came over from Maha Alut Vihare to Devu Raja Vihare:he had succeeded his tutor Muruthaoluwe Guneratna in the office ofthewawa priest of Maha Alut Vihare on the death of the latter in 1921.The defendant was reappointed by the plaintiff on July 3, 1938.
The defendant accepted the keys of Devu Raja Vihare and “ the effectsbelonging to it ” , i.e., the articles enumerated in a list, in August, 1928 ;on July 3, 1938, he handed over these articles to the plaintiff and on thesame day he received them back from him. The plaintiff says that in1938 he appointed the defendant to be the thewawa priest for a shortperiod only—this is borne out by P 42. The plaintiff on March, 1943,requested the defendant to hand over the keys of Devu Raja Vihareand the articles to him. The defendant refused to give these up and thisaction was instituted. The defendant does not defend the action onbehalf of any third person but on his own account.
The trial Judge gave judgment in favour of the plaintiff in terms ofparagraph 1 of the prayer (i.e., the right and privilege of appointing abhikku) ; he directed the defendant to deliver the articles to the plaintiff(paragraph 3 of the prayer). These are the two main points of contestand they can be conveniently dealt with in the reverse order.
CANEKERATNE J.— Dhammadaai Theroo v. Dhammasiddi Thero.
557
There was a delivery of articles by the plaintiff to the defendant for aparticular purpose on a contract express or implied that the articlesshall be redelivered as soon as the time for which they were given shallhave elapsed. This is a contract of bailment of the kind known ascommodatum. It does not matter if the thing lent is the property of athird party seeing that the ownership does not pass in the case of com-modatum but only the natural detention and the use1. It is sufficient ifthe lender has a special (or qualified) property in the thing lent or the law-ful possession of it. 2 The right of the bailee may be determinable at anyinstant at the will of the bailor, or otherwise in accordance withthe terms of the bailment. There has been a determination ofthe bailment in this case and the right to take the articles hasreverted to the plaintiff. The law also creates an estoppel against abailee (Sec. 117 of Evidence Ordinance). One who received propertyfrom another as his bailee must restore or account for that propertyto him from whom he received it. A bailee may set up a jus tertiiif the facts show that there has been what is equivalent to aneviction by title paramount: if the bailee retains possession of thegoods and there has been no eviction the bailee may nevertheless set upand rely upon the jus tertii if he defends this possession upon the right,title and authority of the tertius s. It is not enough that the baileehas become aware of the title of a third person. The contention of thedefendant that the ownership of the articles is vested in the trustee of theVihare affords no justification for the defendant’s refusal to redeliverthem ; the present trustee is Daniyagama Ananda, who gave evidencefor the plaintiff.
In the exercise of his right the plaintiff appointed the defendant theofficiating priest in the shrine room : this is a religious office which isattached to a place. The office is now wrongfully usurped by thedefendant. The right to the possession of the articles enumerated in theplaint is in the plaintiff: these are articles necessary for the performanceof the ceremonies at the shrine room : they must be kept at Devu RajaVihare and the plaintiff must make provision for the preservation ofthese articles at the Vihare. As he lives in Kandy it would be necessaryto entrust the articles to some person living in the locality, preferablyto a person in whom he has confidence. The most natural course in thesecircumstances would be to appoint a new thewawa priest and to give thearticles to him. Rights of a temporal nature aro involved in the actionand a Court cannot refuse to adjudicate on such rights.
The appeal is dismissed with costs.
Keoneman S.P.J.—I agree.
Appeal dismissed.
1 3 Massdorp 127 (4th Edition).
* 3 Burge 712 (see also Voet 13—6—1; can Leeuwen's Censura Foreneis, 1—4. 6—1)a Biddle vs. Bond. (1859) 6B<t S. 225.
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