DHARMARAKKITA v. WIJITHA

100-NLR-NLR-V-41-DHARMARAKKITA-v.-WIJITHA.pdf


KEUNEMAN J.—Dharmarakkita v. Wijitha.401
1940Present: Moseley S.P.J. and Keuneman J.
DHARMARAKKITA v. WIJITHA20—D. C. Kalutara, 19,992.
Buddhist ecclesiastical law—Succession to incumbency—Right of pupils toelect a successor other than senior pupil.
The pupils of a deceased incumbent have the right to elect one of theirown number, other than the senior pupil, as incumbent when the seniorpupil consents to or acquiesces in such election.
^^PPEAL from a judgment of the District Judge of Kalutara.
N. E. Weerasooria, K.C. (with him L. A. Rajapakse and C. V.Ranawake), for defendant, appellant.
V. Perera, K.C. (with him H. A. Wijemanne and A. C. Gunaratne),for plaintiff, respondent.
Cur. adv. vult.
March 1, 1940. .Keuneman J.—
The plaintiff brought this action to be declared the incumbent of theIndasararama Maha Vihare, and that he be declared entitled to the rubbercoupons issued in respect of certain rubber plantations on the templeproperty, and that the Rubber Controller be directed to issue to himcertain coupons which had been allocated to the defendant, and fordamages Rs. 900 and further damages at'Rs. 60 per month till couponsare issued to the plaintiff.
The learned District Judge entered judgment declaring the plaintiffentitled to the incumbency, the rubber coupons and damages at Rs. 720and furher damages at Rs. 30 a month till restored to possession. Thedefendant appeals from this judgment.
The temple in question was founded by Wettawa Indasara, who wasthe original incumbent. Plaintiff claimed the incumbency by pupillarysuccession, namely, sisyanu sisya paramparawa.
Plaintiff stated that Indasara was succeeded by his pupil Sumangala,and that Sumangala was succeeded by his pupil Dhammananda, and thatDhammananda was succeeded by his pupil Sumanasara. Plaintiffclaimed that as a pupil of Sumanasara, he succeeded to the incumbencyon the death of the latter in 1930.
At the trial the following issues were framed: —
Is the plaintiff the incumbent of the Indasararama Maha Vihare ?
2a. Is the defendant entitled to the incumbency by election or.
otherwise?
Did the defendant wrongly appropriate the rubber coupons from
August, 1934 ?
Damages.
Has the defendant’s claim, if any, to the incumbency been
prescribed?
It was admitted in the proceedings that Sumanasara was the incumbentof this temple till his death on May 22, 1930, that the plaintiff was a pupilof his, and that the defendant was a co-pupil of Sumanasara, both beingpupils of the previous incumbent* Dhammananda. It further transpiredin the evidence that the plaintiff was not the senior pupil of Sumanasara,and that he was also the pupil of the defendant by virtue of his ordination.
402
KEUN&MAN J.—Dharmarakkita v. Wijitha.
According to the plaintiff, on the death of Sumanasara all the pupils ofSumanasara, including the senior pupil Dharmasena, consented to theplaintiff succeeding as incumbent. The plaintiff produced document P 2signed by his four co-pupils whereby they stated that they had selectedand installed him to succeed Sumanasara to the incumbency of thetemple.
P 2 purports to bear the date, May 29, 1930.
Dharmasena in his evidence said: “ After Sumanasara’s death all of uspupils of Sumanasara agreed that the plaintiff should succeed. I have abetter right to the incumbency than the plaintiff, being his senior, butwithdraw and recognize him as the rightful incumbent ”. He also added:
“ I remember writing P 2. It was about eight years ago ”. He was nothowever able to remember whether the date was on the document when itwas originally written.
Another signatory of P 2, Sirinewasa, also acknowledged his signaturein P 2, but was not certain whether the date was there when he signed.He was certain however that P 2 was signed some time before thedefendant was appointed incumbent by the Buddhist TemporalitiesCommittee.
P 2 has been impugned by Counsel for the defendant as a later fabri-cation, but on an examination of the evidence I am satisfied that it is agenuine document. The date has not been strictly proved, but I thinkthe evidence establishes that it was executed shortly after the death ofSumanasara.
P 2 shows that all the pupils of Sumanasara, including the senior pupilDharmasena, agreed that the plaintiff should succeed as incumbent in theplace of Sumanasara, and there is no question that he was unanimouslyelected by his co-pupils to fill that office.
Plaintiff said that he reported this election to the Buddhist Tempora-lities Committee, and produced a reply from the Chairman, P 7, datedAugust 17, 1930, wherein he was recognized as incumbent.
The defendant denied that the rule of pupillary succession wasapplicable to the incumbency in question. According to him, the rightto elect the incumbent resided in- the Sangha Sabha which appears tocomprise the priesthood of the whole sect in this district. Its memberswere therefore drawn not only from this temple, but also from the othertemples in this district, and included the High Priest of his sect,Dewarakkita.
The defendant produced a document D 7, dated September 21, 1930,signed by Dewarakkita and a number of other priests of the varioustemples, including one priest from the temple now in question, wherebythe Sangha Sabha declared that the defendant had been approved bythem as a proper and suitable person to be the incumbent of the templewith which we are concerned. D 7 was sent to the President of theBuddhist Temporalities Committee of Kalutara, and on receipt of it, thePresident wrote D 8 of September 22, 1930, to the defendant, informinghim of his appointment to the incumbency. D 9 of October 3, 1930, wasalso produced to show that the Assistant Government Agent, Kalutara,also accepted this appointment. The defendant claimed the incumbencyby virtue of this appointment.
KEUNEMAN J.—Dharmarakkita v. Wijitha.403
The plaintiff had earlier been notified that Kalyana Tissa was appointedincumbent—vide P 11 of June 17, 1930—and had protested against thisappointment—vide P 12. But Kalyana Tissa appears to have declinedthe office on the ground of ill-health—vide D 7.
The first question to be decided is whether the right of pupillarysuccession applies to the incumbency in dispute.
It has been held that where the right to an incumbency is in question,in the absence of evidence to the contrary, it must be presumed that theincumbency is subject to the sisyanu sisya paramparawa rule of succession—vide Ratnapala TJnnanse v. Kewitigala Unnanse' and Unnanse v.Unnanse *.
In this case there is only the bare statement of the defendant that onprevious occasions the Sangha Sabha has made the appointments to theincumbency. No corroboration of this has been given by the productionof documents or by other satisfactory evidence. The plaintiff led evidenceto the contrary effect, and pointed out that in every case the deceasedincumbent was succeeded by his pupil. I must hold that the rule ofsuccession which is applicable is the sisyanu sisya paramparawa.
In this connection, I may mention the evidence of Sri Dhammananda,High Priest of Colombo and Chilaw, Principal of the VidyalankaraPirivena and Chief Officiating Priest for Ordination at Malwatta,admittedly very learned in Buddhist law and an authority on custom.He sets out the rule of succession in the case of sisyanu sisya paramparawa,namely, that the senior pupil suceeds the tutor as a matter of course,that the tutor can choose any pupil to succeed him, and that the pupilsmay choose one of themselves also. (I shall deal with this in anotherconnection.) He then goes on to say: “ Nevertheless the final choicerests with the Sangha Sabha. That right is exercised when there is nosuitable person or when the person elected is not suitable ”. He speaks ofthe right of the Sangha Sabha “to interfere” when a person who is notsuitable is elected. By “ suitable ” he meant “ a pious or learned orjust person ”.
Now, there are several points to be considered on this evidence. In thefirst place, the right of the Sangha Sabha never arises, unless there is nosuitable person or the person elected is not suitable, i.e., they only intervenewhen there is no election possible, or after an election has been made.Clearly they are not the body in whom the primary right of electionresides.
In the second place, the witness admits that he does not remember asingle instance where, the Sangha Sabha interfered with the choice of thetutor or of the co-pupils.
Lastly, the Sangha Sabha mentioned by the witness is a very differentbody from that which purported to make the appointment in this case.The witness describes the Sangha Sabha as " the priesthood attached to theparticular temple in question”, clearly excluding thereby the priests of othertemples. I do not thihk it is necessary in this case to consider the rightwhich he mentions, because the facts of this case apply to a very differentset of circumstances.
>«S.C. C. 26.
* 22 N. L. R. 323.
404
KEUNEMAN J.—Darmarakkita v. Wijitha.
Several further points were raised by Counsel for the appellant and I"think his main arguments may be summed up as follows: —
As regards the history of this incumbency, the senior pupil has not
in fact succeeded the incumbent, but some pupil other than thesenior.
Under the rule of sisyanu sisya paramparawa, the succession of the
senior pupil is imperative, unless the incumbent has nominatedsome other pupil. Where the incumbent has not nominatedanyone, there is no right on the part of the pupils to elect one oftheir number who is not the senior pupil. The further corollaryto this is that where the senior pupil does not accept the incum-bency or has relinquished it, the right to the incumbency isvested in the senior pupil of that senior pupil. In other words,it was contended that if Dharmasena can be regarded as havingrepudiated the incumbency, the proper person to succeed wasDharmasena’s senior'pupil.
Where the pupil of an incumbent is also the pupil of another priest
of the same temple who comes within the line of pupillarysuccession, such pupil cannot succeed to the incumbency 'untilthe death of the surviving tutor, and such tutor is entitled tothe incumbency. In this case it was contended that as theplaintiff was the pupil both of Sumanasara and of the defendantwho was a co-pupil with Sumanasara, his right to succeed mustbe deferred till the death of the defendant and that the defendantwas entitled to the incumbency.
I shall deal with each of these points in turn.
Counsel for the defendant stated that on the death of each incum-bent, he was succeeded, not by his senior pupil, but by some other pupil,and depended upon this to show that the rule of pupillary succession,sisyanu sisya paramparawa, was not applicable to this temple.
There are questions of fact involved here which we must determine.
The first incumbent was Indasara. On his death, he was succeeded byhis pupil Sumangala. It was contended that the senior pupil wasGunaratne. The plaintiff led evidence to the effect that Sumangala wasthe .senior pupil. The defendant, in addition to his evidence, produceddocument D 3. D 3 is a document executed in 1889, and appears to be astatement of the movable and immovable property acquired by Indasara,and a statement of the pupils ordained by Indasara and his successorSumangala. In the list of pupil priests ordained by Indasara, the nameof Gunaratne appears first and that of Sumangala second. There ishowever nothing to show that the compiler of this document was directinghis mind to the question of seniority among the pupils, and I cannot seethat this document is conclusive evidence of the fact that Gunaratne wasin fact the senior pupil.
As regards Sumangala, it was contended that his senior pupil wasDevananda, on the ground that his name occurs in D 3 above that ofDhammakkhandha. The same argument applies to this case as to theprevious one. Further, it is by no means clear that either Gunaratne orDevananda was alive at the time of the death of the incumbent tutor.
KEUNEMAN J.—Dharmarakkita v. Wijitha.
405
As regards Dhammakkhandha’s pupils, it was contended that thesenior pupil was Kalyana Tissa. Apart from the oral evidence, thedefendant relied on a deed of gift by Dhammakkhandha, D 14 ofSeptember 27, 1913, in which the donor referred to Kalyana Tissa as his“ chief pupil As against this, the plaintiff led a body of oral evidenceand produced document P 15 of October 14, 1917, wherein the Maha-nayaka of the Sangha Sabha set out the names of “ the living pupils ” ofDhammakkhandha, placing the name of Sumanasara first and KalyanaTissa third. I do not think that any conclusive inference can be drawnfrom this evidence. It has to be remembered that the burden of provingthat some other rule of succession than the sisyanu sisya paramparawarule applied to this temple lay on the defendant. I do not think that thedefendant has succeeded in discharging that burden.
Further, the question as to the right of the pupils under the sisyanusisya paramparawa to elect one of their number other than the seniorpupil will be dealt with later. There is a distinct suggestion in theevidence of the plaintiff’s witness Dharmasena that at least one of thesepersons referred to, namely, Dhammakkhandha, was selected by hisco-pupils, because he was the cleverest of the pupils. If in fact there issuch a right on the >part of co-pupils to choose one of their number who isnot the senior, then no inference can be drawn against the application ofsisyanu sisya paramparawa to this temple.
We may now consider the second argument urged by Counsel forthe appellant, namely, that under the rule of sisyanu sisya paramparawathe right of the senior pupil to succeed is imperative and that no rightresides in the pupils to choose any other person out of their number.
It has been pointed out by Counsel for the respondent that in Saranan-kara Unnanse v. Indajoti Unnanse ' Bertram C.J. stated : “ where thereare several persons in the line of pupillary succession, the adikhari isappointed from among these persons, either by nomination of his prede-cessor or by selection of these persons. This selection …. is…. the formal choice of the other persons entitled to the
succession. By custom the right to succeed is determined by seniority(though it would appear from the evidence recorded in the case of Damma-ratana Unnanse v. Sumangala Unnanse ~, that the right attaching toseniority is not so unqualified as some of our decisions appear to suggest. . . .). When, therefore, in such cases, our Courts declare that anyperson is entitled to succeed to an ‘ incumbency ’, what they, in effect,decide is that the person in question, by virtue of seniority (or such otherqualification as the Court may determine to govern the matter), is bycustom entitled to be selected for the office by the other priests in the lineof pupillary succession ”.
Again, in Gunananda Unnanse v. Dewarakkita Unnanse Jayawar-dene A.J. said : “ If an incumbent dies leaving several pupils, the seniorpupil succeeds. The-selection of the incumbent, however, rests with thepupils, and the right of the senior pupil might, in certain circumstances,be disregarded ”.
1 20 .V. L. R. 3S5 at 391.* 14 N. L. R. 400.
3 26 N. L. R. 257 at 275.
406
KEUNEMAN J.—Dharmarakkita v. Wijitha.
It has been pointed out for the appellant that these statements areobiter dicta as the immediate point with which we are concerned did notcome up for determination in these cases. This is undoubtedly the fact,but at the same time these statements are of great weight, as the wholequestion of sisyanu sisya paramparawa was investigated in each case, andexpert evidence, not only in those cases, but also in Dammaratana Unnansev. Sumangala Unnanse1 was fully considered. In the last-mentionedcase, at the instance of the Supreme Court, a series of nine questions waspropounded to seven priests of the highest distinction and learning, andthe evidence of these seven priests appears in the Appendix to Volume 20of the New Law Reports at page 506. The Supreme Court consideredthat the answers to these questions “ should form a very valuable sourceof information for future reference on the points inquired about ”,
Bertram C.J. had recourse to this evidence .jn Saranankara Unnanse v.Indajoti Unnanse (supra), and, in my opinion, correctly so. deSampayo J. who sat with him stated:“ I think …. that we
may safely adopt such propositions as are supported by a concensus ofopinion, or are approved by a majority of the learned and eminent priestswhose evidence is available to us. The evidence in the Kandy case”(i.e., Dammaratana Unnanse v. Sumangala Unnanse (supra) ) “ is the mostimportant, because it was given, not in the interests of the parties, butwith a view of assisting this Court …. ”.
The evidence in the 14 N. L. R. case is available to us and has beenstudied by us. One of the questions formulated, namely, No. 3, was :
“ Does every pupil obtain the right of pupillary succession to his tutor;if so, in what order; if not, which pupil obtains the right? ”
The answers to this question are illuminating. Pour of the priestsdeposed to the right of the pupils to select one of their number, butrecognized the right of .the senior pupil to succeed, in the absence ofnomination by the tutor. The emphasis on the two aspects of thisquestion was differently placed by the various priests. Some said thatthe senior pupil succeeds, but if he is unfit or not learned enough, all thepupils join in selecting their head. Others laid more emphasis on theright of selection by the pupils, who were also influenced by the fact ofseniority.
Three of the priests stated that in the absence of nomination by thetutor, the senior pupil becomes the incumbent. They did not refer tothe right of the pupil in any circumstances to select one of their number.It was contended that they must be regarded as having denied any suchright to the pupils. I am not satisfied that this conclusion must bedrawn. I think the better opinion is to regard their evidence as silentupon that point.
It may well be that the right of the senior pupil to succeed cannot bedisplaced except with his consent or acquiescence. I do not express anopinion on that point, because it is not necessary for the determination ofthis case. But I think that there is a very strong body of expert opinionin favour of this proposition at least, namely, that the pupils have theright to nominate one of their number, where the senior pupil consents toor acquiesces in this.
» 14 N. L. B. 400.
KEUNEMAN J.—Dharmarakkita v. Wijitha.407
So far I have not dealt with the evidence called in the present case.-Admittedly the most distinguished and learned of the experts on BuddhistEcclesiastical Law called in this case was Sri Dhammananda, whoseevidence I have referred to earlier. He was called by the defendant, buthis evidence on this point is favourable to the plaintiff. On this particularpoint he said:
"The usual rule of succession is the sisyanu sisya paramparawa.The senior pupil succeeds the tutor as matter of course. The tutor canchoose any pupil to succeed him. The pupils can choose one of them-selves also. That is, the senior pupil can waive his right to theincumbency.”
This was said in cross-examination. In re-examination he said :
“When there are several pupils, the senior pupil is selected; but ifthere are more suitable pupils, then the most suitable is chosen. ”
I do not propose to comment on the other evidence on this point,because in' respect of weight and authority it is inferior to that of SriDhammananda. I need only say that plaintiff called evidence in supportof his contention and the defendant called certain evidence to the contrary.
I think that all the evidence to which I have referred undoubtedlyestablishes the right of the pupils of a deceased incumbent to elect one oftheir own number, other than the senior pupil, when the senior pupilconsents to or acquiesces in this. This is a right pertaining to the rule ofsuccession sisyanu sisya paramparawa. I hold that the plaintiff has beenselected by the correct authority, and that his right to the incumbencyhas been established.
In view of this decision, the further corollary argued, namely, that inany event, if Dharmasena relinquished the right of succession, the properperson to succeed was Dharmasena’s senior pupil, does not arise. I mayhowever add that this proposition appears to be contrary to authority.
The third proposition of the appellant’s Counsel was, that in viewof the fact that plaintiff was a pupil not only of Sumanasara but also ofthe defendant who was a co-pupil with Sumanasara, the plaintiff cannotsucceed to the incumbency until the death of the defendant, and that thedefendant is now entitled to the incumbency. No previous authority tothis effect has been cited to us, nor have we been able to trace any casewhere such a right has been mentioned. On the contrary, one of thequestions propounded in the 14 N. L. R. case, namely, No. 4, was:
“ If a person who has been a pupil of one tutor becomes the pupil ofanother tutor, does he lose the right of pupillary succession to hisformer tutor from that fact ?”
All the answers positively stated that he would not lose his right, andno mention was made by anyone of any special exception as is contendedfor here.
Further, in the case, decided by a Divisional Bench, of GunanandaTJnnanse v. Dewarakkita Unnanse (supra), where the right of a pupilto succeed as against the fellow-pupil of his tutor was expressly considered,it was held that the rights of fellow-pupils of the tutor can only arise whenthat tutor has no pupils of his own or when the direct line of succession is
408
KEUNEMAN J.—Dharmarakkita v. Wijitha.
exhausted—wide at pages 264 and 275. In spite of considerable inquirymade in that case, no mention was made of the special instance which isnow put forward.
The evidence led in the present case, apart from that of the defendant,is as follows : —
Sri Dhammananda, the witness already mentioned, stated :
“ A pupil can have more than one tutor. If a pupil has two tutorsin the same temple, if pupillary succession applies, then the pupil mustwait until both die. That is the case if both tutors belong to the sameline of pupillary succession.”
He added that where the tutors were in different temples this rule hadno application.
Now this witness did not expressly mention that the surviving tutor hada right to the incumbency; but even if I assume that he meant to say so,several questions arise which have not been satisfactorily answered.
First, has such a tutor the right, which is conceded to the ordinaryincumbent, of nominating his successor from among his pupils ? If hehas that right, he is entitled to pass over the senior pupils of the deceasedincumbent, and even to direct the succession to another line. Is this inkeeping with the rule of pupillary succession ? I think not. If, on theother hand, the right of the pupil is merely suspended during the lifetimeof the co-tutor, what exactly are the rights of the surviving co-tutor,and how are these rights consonant with the rules of pupillary succession ?No satisfactory answer is available to these questions.
One other witness, Wimala Nay aka, cited his own case. He is nowthe Chief Priest of a certain temple at Walana. His predecessor in theoffice, Mangala Nayaka, was a co-pupil of the witness under a previous,incumbent. Both of them had a pupil in common. On the death ofMangala Nayaka, witness succeeded to the exclusion of the common pupil.Witness also mentioned the names of two temples in which, he said, thesame thing had happened.'.
Witnesses for the plaintiff "contested the proposition so enunciated,which I think gives a right to a co-pupil of the incumbent difficult toreconcile with the decision of the Divisional Court. Further, while it ispossible that there may be one or more modern instances on which theappellant can found an argument, I do not think there is that degree ofproof which will enable us to hold that any custom has been establishedwhereby the right of the plaintiff to succeed to the incumbency has to bedeferred until the death of the defendant. It has not been suggested thatthis proposition has been spoken to by an expert, until the trial of thiscase, and I think that for the establishment of so novel a proposition, astrong and satisfactory body of expert opinion is necessary. Suchtestimony is lacking in this case, and I must hold accordingly that thecontention for the appellant fails and that the plaintiff is entitled tosucceed to the incumbency in spite of the fact that his co-tutor is aliveand is a priest in this temple.
The appeal is dismissed with costs.
. Moseley S.P.J.—I agree.
Appeal dismissed.