SOERTSZ J.—Dias v. Ratnapala Teruriridnse.
Present: Abrahams C.J. and Soertsz'J.
DIAS v. RATNAPALA TERUNNANSE.
98—D. C. Galle, 34,685.
Buddhist temjporalities—Temple not exempted from. operation of Ordinahce—Right of incumbent to vindicate title to temple tand—Ordinance No. 19 of1931, s. 4 (1).
The incumbent of a Buddhist temple, which is not exempted from tbeoperation of section 4 (1) of Ordinance No. 19 of 1931, is not entitled tovindicate title to land belonging to the temple.
^^PPEAL from a judgment of the District Judge of Galle.
N. Nadarajah, for defendant, appellant,
M.T. .de S. Amerasekere (with him Barr Kumarakulasingham andJayasundara), for plaintiff, respondent.
Cur. adv. vult.
January 31, 1938. Soertsz J.—
It is with some regret that I reach the conclusion that this appeal mustbe allowed, for on the substantial question whether the .land in suitbelongs to the Andugoda Temple or to the defendant, the learned trialJudge has given very cogent reasons, for holding in favour of the temple.In fact, Counsel for the appellant admitted that it would be impossiblefor him to ask us to set aside the findings of the trial Judge on the questionsof title and possession. But, he maintained that he was entitled tosucceed in his appeal for the reason that the plaintiff has no status tomaintain this action and that it should have been dismissed on thatground.
The plaintiff came into Court averring in paragraph 3 of his plaint that“ this land is Sanghika property belonging to the Andugoda TempleHe sought to vindicate title to it in his capacity of. incumbent; He hasestablished satisfactorily that he is the'incumbent. The sole question iswhether the incumbent of this temple can maintain an action for decla-ration of title to “ property belonging to or in anywise appertaining to,or appropriated to the use of the temple ".
The Ordinance that applies in this case is No. 19 of 1931. That is anamending and consolidating Ordinance and applies to every temple in theIsland other than those that may be exempted by the Governor byproclamation, either wholly or partially. In this instance, it is. notclaimed that there has been any exemption by proclamation.
The Ordinance proceeds to enact in section 4 (1) that the managementof the property belonging to every temple “shall be vested in a person orpersons duly appointed trustee under the provisions of the Ordinance”,unless any particular temple is exempted from that requirement, and insection 4 (2) that if a temple is exempted from the necessity to have themanagement of its property vested in a trustee or trustees, the manage-ment of the property of such a temple shall be vested in the Viharadhipathi,that is to say, in “ the principal Bhikshu of the temple ” who in thatcapacity is known as the “ controlling Viharadhipathi
SOERTSZ J.—Dias v. Ratnapala Terunnanse.
There is nothing to show that this temple has been exempted from theoperation of section 4 (1) and consequently it is a temple, in regard towhich the management of its property is to be vested in a trustee ortrustees. Section 20 of the Ordinance takes the matter a stage further.
. It vests all property, movable and immovable, not merely the managementof such property, in the trustee or trustees in those instances in whichtrustees are required to be appointed or nominated under the provisionsof the Ordinance, and in instances in which there is exemption from.section 4 (1) in the controlling Viharadhipathi.
In regard to the institution of actions for the recovery of any propertybelonging to a temple, section 18 of the Ordinance enacts that the trusteecan sue as trustee where the law required a trustee, that is to say whereexemption has not been obtained under section 4 (1), and that thecontrolling Viharadhipathi can sue as trustee where exemption fromsection 4 (1) has resulted in the Viharadhipathi being vested with themanagement of the property under 4 (2), and with the property itself undersection 20.
The present plaintiff is not a nominated or appointed trustee, Hecannot claim to be the controlling Viharadhipathi because he has notshown that the temple has been exempted from section 4 (1). It seemsclear, therefore, that the plaintiff as incumbent pure and simple cannotmaintain this action. His Counsel, however, urged that it would be agreat hardship if an incumbent is not able to sue in this manner in regardto temples for which trustees, had not been appointed, and he cited thecases of Siddhartha Unnanse v. Udayara1 and Ranasinghe v. Dhamma-nanda *, and claimed that the plaintiff is the de facto trustee of the land inquestion and, as such, entitled to maintain this action. For my part,I think it is a sufficient answer to this argument to say that the Ordinancedoes not provide for a de facto trustee suing in any circumstances.
It is true that in the earlier of the cases cited, de Sampayo J. held thatthe incumbent of a vihare who had proved actual possession of a land byhim for a great many years and recent ouster, is entitled to maintain apossessory action. If I may respectfully say so, it seems to me that inthat instance the learned Judge appears to have relaxed the law in orderto give relief in what he considered was a deserving case. In Terunnansev. Don Aron % Dalton and Drieberg JJ. held -that the incumbent of aBuddhist Temple has no right to maintain an action to recover possessionof property which is vested in trustees under section 20 of OrdinanceNo. 8 of 1905. Drieberg J. commented on the submission made in thatcase as follows:—“Mr. Weerasooria contended that the Court couldrecognize the right of the first appellant to maintain such an action asthis on the ground that he was the " de facto trustee ”. It is not easy tosee how, when by statute certain property is vested in trustees withadequate provision for succession and for provisional trustees during'suchintervals as there are no elected trustees, the right of any others to act astrustees can possibly be recognized ”. Drieberg J. sought to distinguishthe case he was considering from the case of Siddhartha Unnanse v.Udayara (supra), on the ground that in the case just named, no trustee had» (1929) 6 C. W. R. 29.a (1935) 37 N. 1,. R. 19.
a (1932) 14. N. L. R. 34S.
SOERTSZ J.—Dias v. Ratnapala Terunnanse.
actually been appointed at the time the priest sued, whereas in the caseunder consideration trustees had been appointed under the Ordinance.I am not sure that this was a sufficient reason for saying that the rulingin Siddhartha Unnanse v. UQayara, did not apply to the case beforeDrieberg J. In a similar manner, that case can be distinguished from thepresent on the ground that that case was a possessory action in which aperson who had long been in possession of a land and had been ousted wasput back into possession as de facto trustee of the land for the temple.The present is an action for declaration of title. But I prefer not to seekto distinguish the two cases in that way but to say that there appears tobe a conflict between the decisions (Siddhartha Unnanse v. Udayara andTerunnanse v. Aron), and that I would follow the decision in Terunnansev. Don Aron.
It does not seem to me to matter whether trustees have been appointedor not. So long as trustees are required by the Ordinance but do notexist, I am unable to see how property destined by the Ordinance to vestin trustees, can be said to vest in persons not contemplated by the Ordi-nance.
In regard to the case of Ranasinghe v. Dhammananda (supra), I do notthink it has a direct bearing on the point that has arisen in this case. In thatcase duly appointed trustees were suing to recoyer temple property relyingon the fact that several incumbents of the temple had been in possession ofit and had acquired a prescriptive title for the temple. For the defence,-it was argued that a temple was not a persona and was therefore, unableto acquire a prescriptive title. If an incumbent acquires a prescriptivetitle, he acquires it for himself. He is not a trustee for the vihare. Theperson who succeeds to the incumbency is not a successor-in-title of theprevious incumbent. This Court held that the incumbents, were de factotrustees of the temple and that their possession enured to the benefit ofthe temple. The evidence showed that these incumbents had avowedlypossesised the land for the temple. They were the agents of the temple,and their possession enured to the benefit of the temple, and was possessionon which duly appointed trustees could rely when they were seeking tovindicate the title of the temple. The case, is clearly different from thepresent case, and would hardly have been cited in this case but for thefact that expressions like de facto trustee, and trustee de son tort, had beenused somewhat inaptly if I may say so with great respect. The argumentof hardship to the temple if it is not permitted to a person in the positionof the plaintiff to maintain an action in default of trustees, is not impressive.It seemed to me that plaintiff’s Counsel was shedding crocodile tears.But yet, by way of comforting him, I would point out that there is balmin Gilead. There are liberal provisions in the Ordinance to meet suchcontingencies, for instance, sections 9, 10 and 11. It is still open to thetemple to avail itself of those provisions and to bring a properly consti-tuted action. I would allow the appeal and dismiss the plaintiff’s casewith costs in both Courts.
Abrahams C.J.—I agree.
DIAS v. RATNAPALA TERUNNANSE