DUWEGAMA INDAJOTHI STHAVIRA AND OTHERS V. PARAGASTOTA REWATHA STHAVIRA

027-SLLR-1988-V2-DUWEGAMA-INDAJOTHI-STHAVIRA-AND-OTHERS-V.-PARAGASTOTA-REWATHA-STHAVIRA.pdf


DUWEGAMAINDAJOTHISTHAVJRAAND OTHERSV.
PARAGASTOTA REWATHA STHAV1RACOURT OF APPEAL
C. A. 602/80 (F). D. C. KALUTARA 2573 L.
DHEERARATNE J. (PRESIDENT C/A) &. PALAKIDNAR J.
OCTOBER 03.1988
Buddhist Sccleciastical Law — Can any Viharadhipathi other than the ‘OriginalViharadhipathi or the "founder priest" appoint by deed several of his pupils tosucceed him one after the other?.
The original Malwatta opinion that such right was confined to the 'OriginalViharadhipathi* or ‘founder priest*, has not been modified to extend it to anyViharadhipathi.
Cases referred to:
1 Amarawansa Thero vs. Amaragnana Thero (1985) Vol. 2 S.L.LR. 275
2. Kamburugamuwe Piyananda Therunnanse vs. Uyangoda SumanajothiTherunnanse (1963) 66 N.L.R. 178.
3 Gunananda Unnanse vs. Dewarakkitha Unnanse (1924) 26 N.LR. 257
4. Devendra Unnanse vs. Sumangala Unnanse (1927)29 N.L.R. 415.
5 Piyaratne Unnanse vs. Medankara Unnanse (1931) 32 N.LR. 2 71.
6. Bremmne Unnanse vs. Sonabowe and Parakumbure Unnanse: Agent's CourtKurunegala No. 336; Vanderstraaten's Reports {1869-1871) XL iAppendix 'D'
7 Stnmvasa vs. Sarananda (V921) 22 NLR 318.
Dammojothi Unnanse vs. Parantale (1881 > 4 S C C 121.
APPEAL from judgment of Court of Appeal.
Dr. H. W. Jayewardene Q. C. with Miss. T. Keenawmna for defendant-appellants.*
Plaintiff-respondent absent and unrepresented.
Cur. adv. vutt.
December 16. 1988DHEERARATNE J.
Plaintiff filed this action, seeking a declaration that he is thelawful viharadhipathi of Uggalboda Malasne Rajamaha viharaand claiming damages from the defendants, who are said to bein unlawful possession of its temporalities. The learned trialjudge gave judgment for the plaintiff and the defendants haveappealed.
The origin of this temple is steeped in antiquity and as theevidence in the case discloses and the name of the templesuggests, the institution has had its birth during the time of theSinhala Kings. It is common ground that over hundred years ago,the viharadhipathi of the temple had been Kalutara Wimalasara.who was succeeded in his office by his pupil DodangodaDhammananda. Dhammananda was succeeded by his pupilDediyawala Dewananda. Dewananda by deed D4 of 1956purported to appoint his pupils;
Kummanthuduwe Pann'asara.
Karannagoda indasara, {who since gave up robes)
Duwegama Indrajothi. (1 st defendant)
Kotapitiye Seevali. (2nd defendant)
Panthiye Gunasiri. (3rd defendant)
Halthota Gnanathileke, (4th defendant)
Duwegama Indrasumana. (5th defendant)and
Dediyawala Hemasiri. to succeed to incumbency, oneafter the other in that order. After the death of DediyawalaDewananda. Kummanthuduwe Pannasara succeeded to theincumbency and the dispute arose after Pannasara's death in1970. Plaintiff Paragasthota Rewatha. the senior pupil ofPannasara, claims the incumbency, on the basis that deed D4only serves to appoint Pannasara to the incumbency and thatDediyawala Dewananda's purported act of appointing all hispupils to succeed to the incumbency, one after the other, isrepugnant to the rule of sisyanu sisya paramparawa andtherefore invalid in law. In other words, the contention is that theprinciple of succession being from tutor to pupil, an incumbentcannot divert the succession, so as to enable one co-pupil tosucceed another, thus depriving the rights of the first pupil'spupil for succession.
There is no doubt that the original incumbent's or the founderpriest s right to appoint several of his pupils to succeed him oneafter the other.'forms part of the rule of Sisyanu SisyaParamparawa, but the crucial question is whether such right hasbeen subsequently extended to any de jure incumbent comingdown the line of succession, and that too forms part of the ruleof Sisyanu Sisya Paramparawa. This vexed question does notappear to have directly surfaced for judicial decision in the longline of decided cases on 8uddhist temporalities, except in therecent ca$e of Amarawansa Thero vs Amaragnana Thero; (1) Itmay be observed that in all probability the reference to "originalviharadhipathi" agreed upon oy the parties in that case, asreferred to by Moonamale J. in his narration of facts, is noreference to the founder incumbent, but to the "original'viharadhipathi" as far as the line of succession could possibly betraced backwards. Moonamale J. expressed himself at page 287
in that case as follows:—
"On a consideration of all'these judicial decisions. I am ofthe view that the original rule laid down in the Malwattaopinion, that it is the original proprietor priest who cpuldappoint several of his pupils to succeed him in rotation hasbeen modified and extended to any lawful incumbent. I thushold that any lawful incumbent of a Buddhist temple or avihara may appoint several of his pupils to succeed him asviharadhipatht in rotation after his demise and I also holdthat this mode of succession ts consistent with the rule ofSisyanu Sisya Paramparawa."
What judicial decisions did Moonamale J. rely upon to reachthe above conclusion? For the consideration of the soundness ofthat opinion one has necessarily to examine the judicialdecisions which Moonamale J. states he relies upon and as farifs I can discern from his judgment they are:—
The judgment of Thambiah J. in KamburugamuwePtyananda Therunnanse vs Uyangoda SumanajothiTerunnanse (2)
The judgment of Jayewardene A. J. in GunanandaUnnanse vs Dewarakkitha Unnanse (3)
The judgment of Lyall Grant J. in Devendra Unnanse vs.Sumangala Therunnanse (4) and
The judgment of Dalton J. in Piyarathna Unnanse vs.Medankara Unnanse (5)
Thambiah J. in Kamburugamuwe Piyananda Therunnanse vs.Uyangoda Sumanajothi Therunnanse (supra) at pages 180 and181 stated:—
"Although the original rule as postulated by the Malwattapriest, is that only the founder priest of a vihara who couldappoint a number of pupils to succeed him. this rightappears to have been extended to any incumbent."
Thambiah J. thereafter proceeded to quote as authority rule (f) ofthe summary of rules given by Jayewardene A. J. in GunanandaUnnanse vs. Dewarakkitha Unnanse (supra) to which I shall referto in detail later. Thambiah J. also added parenthetically "videalso Piyaratne Unnanse vs. Medankara Therunnanse", this beingDalton J's judgment in 32 NLR 271. It is useful to bear in mindthe circumstances under which Thambiah J. was constrained tomake That observation. It was common ground between theparties in that case that the 'original viharadhipathi' wasAhangama Dhammananda. who by his Last Will of 1838.devised his property to six of his pupils. The plaintiff claimed theincumbency on some nebulous theory of precedence hereceived as being the most senior by Uppasampada Ordination,out of the pupils of Dhammananda's pupils. On the other handthe defendant claimed the incumbency on the rule of SisyanuSisya Paramparawa, as a pupil of the last pupil of Dhammanandato succeed to the incumbency. The effect of the Last Will and theresultant claims to succession of all Dhammananda's pupils werenever contentious matters. However, an examination of that LastWill, revealed that Dhammananda devised to his pupils movableand immovable property which he got from hie tutor and by hisown exertions; this receiving property from his tutor suggestingthat Dhammananda was probably no 'original viharadhipathi' or’founder priest' as was visualized in the original Malwattaopinion. Thambiah J. as well as Moonemale J. interpreted thejudgment of Jayewardene A. J. as suggesting that the originalMalwatta principle had been extended to cover anyviharadhipathi. Whether Jayewardene A. J. in fact ventured to'make such a suggesion has to be closely examined.
Before examining the judgment of Jayewardene A. J., it wouldbe convenient set out in full the relevant Malwatta opinion asappearing in Ertminne Unnanse vs. Sonabowe and Parakumbure *Unnanse; Agents Court ofKurunegata No. 336 (6). That reads:
'The lands viharas, ect. belonging to a Bhikku or(upasampada priest) will: although he had (so many as) fivepupils, devolve solely to that pupil to whom an absolute giftwas made thereof, and that pupil alone of the said donee will
afterwards succeed there to, who received a regular gift ofthe same from him. The uninterrupted succession of pupilsin this manner is termed sisya paramparawa.
Should the priest, the original proprietor, declare hisbequest common to all his five pupils, they will all becomeentitled thereto and one of them being elected to thesuperiority the other four may participate in the benefits.The said superior being dead, the next in rank will succeedto the superiority and along with the rest (of the survivors)will enjoy the benefits. This order having subsisted the lastsurvivor will enjoy the benefit and have the power to make agift in favour of any other person. But the original proprietorpriest may transfer his rights to any other person he maychoose, passing by his own pupils. In the event of theoriginal proprietor dying interestate, the priests whohappened to be assembled at his death, become entitled incommon. Things which belonged equally to two priestsdevolve wholely to the survivor."
I may digress here to mention that having access to AppendixD of the Vanderstraaton Report (1869-1871) proved no easytask, the copy of that report belonging to the Judges' Librarybeing missing, and the relevant pages of the Law Library copyand of few other copies as I could obtain from other sourcesbeing in tatters. To my despair, I found a copy of that report notavailable at the National Archives. However, I was fortunate inobtaining the copy which belonged to the late Chief Justice H. H.Basnayake. with the relevant pages intact, from his sonMr. Varuna Basnayake. to whom I am grateful. For the sake ofproviding easy access to that invaluable document — theAppendix O, I would venture to make it an appendix to thisjudgment.
In the case of Gunananda Unnanse vs. Dewarakkitha Unnanse(supra) the question for decision was whether when anincumbent of a vihara dies leaving a pupil and a co-pupil of hisown. which had the prior right to succeed and whether thedecision in Siriniwasa vs. Sarananda (7) had been correctlydecided. It is in this context that the Malwatta opinion set out inthe appendix D of Vanderstraaten's Reports came to beexamined by both Bertram C. J and Jayewardene A. J. Bothrespected judges having referred to the Malwatta opinion,sought to formulate the propositions spelt out in that opinion intheir own words. Jt may well be remembered that as I havementioned earlier in this judgment, the Malwatta opinionconfined the right to make a bequest in common to all pupils toonly "the original proprietor". There appears to be no. controversyregarding that.
Vet. Jayewardene A.J., in formulating the propositions of theMalwatta opinion omitted from his formulation No. 2, the words"original proprietor" and he expressed the relevant Malwattaproposition in the following terms:—
“2. if the priest declares his bequest common to all hispupils; they will all become entitled thereto — one of them ■being elected to the superiority the others only participatingin the benefits. When the superior dies the one next in rankwill succeed to the superiority, and the superiority willdevolve in this way until the last survivor, who will havepower to make a gift in favour of any other person "
It is obvious that Bertram C J. had the benefit of reading thejudgment of Jayewardene A.J. before he wrote his. for. he setsdown the Malwatta propositions himself after the followingintroductory remarks:— (page 261)
'With this preface, let us now analyse the propositions of.the Malwatta opinion. It appears to me that thosepropositions are the following and I state them In asomewhat different form from that adopted by my brotherJayewardene." (emphasis added)
Bertram C. J. thereafter proceeded to formulate the relevantMalwatta propositions as follows:—
'Where vihara with lands, ect. attached is vested in a priestas the "original proprietor’, he may take any of the followingcourses.""(2) The original proprietor ma/ make a bequest commonto all his five pupils. In that case all five succeed to thebenefits of the vihara. but one is elected to the superiorityand his office passes in succession to all of the five towhom the bequest has been made. The last survivor maythen make a gift in favour of any other person "
If Jayewardene A.J. was seeking to set down the Malwattaopinion as claimed by him. there appears to be little justificationon his part to have omitted the words "original proprietor" informulating his proposition No. 2. as then it would fail to be afaithful reproduction of the Malwatte opinion. It is significant tonote that there. Jayewardene AJ. was certainly not referring toany subsequent modification of the original Malwatta opinion,but to that opinion itself. Reference to Bertram CJ's formulationof the same proposition makes it further clear to my mind thatJayewardene AJ's omission of the words "original proprietor" informulating his proposition No. 2 is not deliberate andintentional.
I find it difficult to draw the same inference that Moonemale J.did, from the omission of the words 'original proprietor' inJayewardene AJ's restatement of the Malwatta opinion, in hisformulation No 2; not even in conjunction with the followingstatement of Jayewardene AJ. at page 267 of his judgment,which Moonamale J. thought is of supportive value to theopinion he formed:—
"The opinion is not complete or exhaustive and some of thepropositions have been considerably modified by judicialdecisions. For instance, the third proposition which saysthat the original proprietor may transfer his right to anyother person passing by his own pupils would apply wherea priest found a temple and becomes the incumbent withoutdefining the mode of succession to it. It can have noapplication to a temple the succession to which is regulatedby the Sisyanu Sisya Paramparawa."
However, the opinion of Thambiah J. as well as Moonamale J.appears to have been mainly influenced by another passage in
the judgment of Jayewardene A.J. and that is the rule (f)Jayewardene A.J. formulated at page 275. This is one of theseries of rules which Jayewardene A.J. formulated at the end ofhis judgment which together with his prefatory remarks reads asfollows:—
"It may perhaps be useful to summarize the rules regulating'the succession to temples and viharas as laid down in theauthorities:—" (emphasis added)
"(f) He can appoint by will or deed more than one pupil tosucceed him; in such a case these pupils, although calledjQintly. succeed singly in rotation according to seniority. Thepupil who succeeds last can appoint one of his pupils, andin the absence of such an appointment,,his senior pupil willsucceed him to the exclusion of the pupils of the previousincumbents."'
Did any authority lay down such a rule? It is not withoutsignificance to note that Jayewardene A.J. most meticulouslymakes reference to the decided authorities illustrative of everyrule summarized by him. with the singular exception in the caseof rule (f). I can hardly imagine that a single decided authority onrule (f). if any. could have escaped the studious attention ofJayewardene A-J-. Nor has learned Queen's Counsel for theappellants been able to cite any such authority whichJayewardene A.J. could possibly have had in mind. The obviousconclusion one can arrive at. therefore, is that omission of thewords "original proprietor" in Jayewardene AJ's own formulationof proposition No. 2 of the Malwatta opinion, got reflected itselfin his summary of rule (f). For the above reasons, with extremerespect to Thambiah J. and Moonamale J.. I am unable to agreewith the view that Jayewardene AJ's judgment is suggestive ofthe proposition that the original Malwatta opinion, that only thefounder priest of a vihara who could appoint a number of pupilsto succeed him. has been extended to embrace anyviharadhipathi. From an examination of that entire judgment, itappears to me that Jayewardene AJ's attention was neitherinvited nor directed to such a proposition.
There remains for me to consider the other two cases whichMoorramale J. appears to rely on. to base his opinion. The caseof Dewendra (Jnnanse vs. Sumangala Therunnanse (supra),seems to me to be no authority for the proposition that theoriginal Malwatta opinion has been extended, but the judgmentis a decision on the principle that incumbency may be held bytwo priests officiating in alternate years. I am unable to say that,even inferentially. that, decision lends support to the view takenby Moonamale J. The case of Piyaratne Unnanse vs. MedankaraUnnanse (supra) which even Thambiah J. briefly referred to bytitle in his judgment, is nothing more than a reiteration of theprinciple that the right of incumbency could be exercised byseveral pupils singly and in rotation and not altogether. I cannottrace any shadow of a suggestion in that judgment granting thesanction of court for any enlargement of the original Malwattaopinion.
Perhaps, it may not be irrelevant to remind ourselves of theemphatic words of Dias J. in Dhammajothi Unnanse vs.Paranthale (8): when he stated at page 123 as follows:—
"The vihare in question was founded by a Sinhalese king,and sannas on which it was founded is a document of theusual kind, and the tenure created thereby is the weltknowntenure of Stsysnusisya Paramparawa, which means"pupilary succession" or "succession from pupil to pupil."The second word "Anu" means "each by each" or "orderly"and the effect of that word seems to me limit the successionto the descending line, to the exclusion of both ascendingand collateral lines. Thus we see that, according to the strictgrammatical meaning of the words "SiayanusisyaParamparawa" the line of succession is limited to thedescending line."
he stated at page 273 as follows:—
"The decision in Siriniwasa vs. Sarananda (supra), therefore,stands by itself and no authority can be cited in support ofthe rule enunciated in it. It is contrary to the meaning of thereal name given to the rule as explained by Dias J. inDammajotht Unnanse vs. Paranthale (supra). The adoptionof such a rule would, in my opinion, lead to confusion, for itmay be asked who is to succeed on the death of the last ofthe co-pupils? Is the incumbent to be chosen from all thepupils of the co-pupils or only from the pupils of the lastincumbent? In cases where several persons are appointedby deed, there is an established rule that the pupils of thelast incumbent succeed but there is no such rule applicableto cases where succession is not by appointment. While, onthe other hand, the rule requiring transmission of theincumbency from senior pupil to senior pupil producescertainty and creates a sort of "primogeniture" which iseasily understood and applied, tn my opinion the judgments•of the court since 1874 have clearly recognized the right ofa pupil to succeed to the incumbency, although there maybe co-pupil of the last incumbent, and the right is so wellestablished that the incumbent cannot take it away bynominating one of his co-pupils”
For the above reasons I am of the view that there has been nomodification of the relevant original Malwatta opinion, and Idismiss the appeal without costs.
PALAK10NAB j. — .1 agreeAppeal dismissed
APPENDIX D. (Vanderatrastan Reports 1869-1871).
Extract from the proceedings of the Board of Commissioners held at Kandy.February 7th. 1832.
From the Agent's Court at Kornegalle.
No. 366.
In the case of Eriminne Unnanse…. Plaintiff and Respdt.vs.
Senabowe Unnanse. and Parekumbure Unnanse….
Defendants and Appellants
Originally heard by the Agent of Government at Kurnegalle. but left undecidedon account of a difference in opinion between the Agent and the Assessors, andbeing referred to the Court of the Judicial Commissioners in Kandy was decidedtherein. The first and third members of the Board having severally read and dulyconsidered proceedings had in this case, as well before the Court of the Agentof Government of Kurnegalle. as before the Court of the* JudicialCommissioners in Kandy the first member concurs in the decree of the JudicialCommissioners. It appears to the third member to be material for the decision ofthis case that it should be ascertained whether the succession to theincumbency is regulated by the Siwooroo or the Sissya Paramparawe. If it is theformer he would concur in his decision. If the latter he would question thelegality of a bequest in trust, the child not being admitted into the priesthood atthe period of the bequest. In reply to the observations of the third member, theJudicial Commissioner begs leave to explain for the information of the RightHon'ble the Governor what the nature of Siwooroo and Sissya Paramparawa is.and to show that this case can only be decided on it's own merits and withoutreference to those rules.
In trying the case of Dantura Unnanse ) Decided in favourvs.) of plaintiff. 4th
The Government of Ceylon, for the ) June. 1828. Decision affirmed
Wihara of Maiaganey in seven Korales. ) 8th August 1829.the parties of the two Wiharas were called on to define the terms SissyaParamparawe and Siwooroo Paramparawe. which they did in writing. Thefollowing are translations of the respective statements, "written and submittedby the undersigned Priests of Maiawatta Wihara. It does not appear to us thatthe statement in the paper writing exhibited to us. respecting the SiwoorooParamparawe and Sissya Paramparawe is correct, for according to the religionthe nature of the Sissya Paramparawe and of the Siwooroo Paramparawe are asfollows —
SISSYA PARAMPARAWE:— The lands Wiharas. &c.. belonging to Bhikshoo (orUspasampade Priest) will, although he had (so many as) five pupils, devolvesolely to that pupil to whom an absolute gift was made thereof, and that pupilalone of the said donee will afterwards succeed thereto, who received a regulargift of the same from him. The uninterrupted succession of pupils in this manneris termed Sissya Paramparawe.
Should the priest, the original proprietor, declare his bequest common to allhis five pupils, they will all become entitled thereto, and one of them beingelected to the superiority the other four may participate in the benefits. The saidsuperior being dead, the next in rank will succeed to the superiority and alongwith the rest (of the survivors) will enjoy the benefits. This order havingsubsisted, the last survivor will enjoy the benefit and have the power to make agift in favour of any other person. But the original proprietor priest may transferhis right to any other person he may choose, passing by his own pupils. In theevent of the original proprietor dying intestate, the priests who happened to beassembled at his death become entitled in common. Things which belongedequally to two priests devolve wholly to the survivor.
SIWOOROO PARAMPARAWE — The priest who was the original proprietor,ordaining a relation to the priesthood and bestowing his property on him. andthe latter in like manner ordaining a relation and making a gift in his favour, theordaining of relations for the succession in this manner is termed SiwoorooParamparawe. However, the practice has also subsisted in this Island of a priestwho had himself failed to appoint a relation to the succession, authorizinganother to ordain a relation to the priesthood and to deliver up the property tohim.
(Signed) Kandeygadere Mahanaike Unnanse and nine other priests of theMalwatte.
Explanation of the terms Sissya Pammpsrawsand SJwaroo Paramparawe
Written and submitted by the priests of Assgirage Wihare.
"Whereas a King or King's Minister, or other person in authority, or any otherdonor erected a Wihare. and by a inscription upon a rock, or upon a plate ofcopper, or other substance recorded the dedication thereof, stating that for thepurpose of the sacred offices being performed thereat the superiority has beenvested in such a priest and his pupils, and subpupils in successive generations,accordingly such rights being uninterruptedly maintained by the MahaTeroonnanse mentioned in the record and by his pupils and by their pupils insuccession, this is termed Sissya Paramparawe. This succession ceases when inconsequence of a priest in possession, having forfeited his right by treason, byinfringement of the Doctrine, or by other fault or by leaving no pupils tosucceed him. another priest obtains the gift this is the nature of SissyaParamparawe: the practice has also subsisted for any priest in such a station toordain a relation to the priesthood, and having duly qualified him thereto, tobestore on him, as his pupil, according to the rules of Buddhist Religion, theWihare. &c- which had been in his possession. When this order .of successionexisted sortie time, the term Siwoora Paramparawe is applied thereto by somepeople; but still it is in fact the Sissya Paramparawe. This succession all ceasesin the event of a duly qualified person not being in existence (at the demise ofthe incumbent) or some other causa occurring to interrupt the succession.
Paramparawe signifies uninterrupted succession, like the links of a chain —when interruption and vacancy occur there is no succession."
In the present case Eeraminne Lokoo Unnanse appears to be acknowledgedon all hands to have been the proprietor of the Wihare in question. EeraminneKuda Unnanse was the pupil, and so was also Wewagadara Unnanse. as someof the witnesses have stated, though others have declared that he wasBambakelle Unnanse's pupil, and had only been appointed by the saidEeraminne Lokoo Unnanse to be the guardian of Eeraminne Kuda Unnanse Atall events Eeraminne Kuda Unnanse and Wewegedera Unnanse appear to havehad joint possession of the Wihare. either as Guardian and Ward or as fellowpupils. When the former was dying he enjoined Wewagadara Unnanse to ordainthe plaintiff, then a little child, when he attained a sufficient age and then toinstall him in the incumbency. However, Wewagadera Unnanse neglected to do:but after the latter was dead, a contest arose amongst his pupils, of whom 1 stDefendant was one. the villagers interposed and had plaintiff robed and installedhim. they deeming him the nghtful heir of the Incumbency.
Whatever may have been the rights of Wewagadara Unnanse it is remarkablethat his only pupil who has been made a party in this case. viz. The 1stDefendant should have waived his claim, though he now denies it.
But allowing that Wewagadera Unnanse had a right to transfer or bequeaththe Temple contrary to the injunction of Eeraminne Kuda Unnanse, and that hehad so bequeathed or transferred the same to Wellawitta Naike Unnanse.neither, of which are proved, still it does not appear by what right the 2ndDefendant has interposed his claim in this case, for he has proved no gift fromWellawatta Naike Unnanse and his dispossession^ the plaintiff wasunwarranted. The 2nd Defendant Pdrakumbura Unnanse, is one of the seniorpriests of the Malwatta Wihara and Guardian to Welawatta Tikare Unnanse. theheir to the late Welewatta Naike Unnanse. and perhaps acts only in the capacityof Guardian or Proctor for Tikare Unnanse — but this is not explicitly stated inproceedings.
The proceedings were foiwarded to the right Hon'ble the Governor, whodesired The Board of Commissioners to take a convenient opportunity of callinga full assembly of the principal chiefs, and having submitted the case to them asit stands and also the observations of the 2nd and 3rd members of the Board..request their opinion on the same.
The meeting was held in the Hall of Audience at Kandy on the 6th day of May.1832
Present-
Colonel Miller Clifford. C. B.
Commanding the Troops in the Interior.
Henry Wright, Esq.
Judicial Commissioner,
George Tumour Esq. .
Revenue Commissioner.
Molhgoda. First AdekarMulligame, Sayapattuwe Maha Nilame.
Moladande. Disave of Pahalddolos PattooDunuwile. Disave of Udapalata.
Wattarantenne. Nanayakkara Lekam.
Gomgode. Basnayake Nilame.
Mampiteye. Basnayake Nilame.
Augammane. Basnayake Nilame.
Halangode. late Lekam.
Moladande. late Lekam.
Kotuwegedera. Walaawe Banda.
Dehigame. Banda.
'The letter of the Deputy Secretary, under date the 12th March last and theproceedings of the case to which it alludd& having being read to the chiefs nowin attendance, the points for consideration appear to be whether the decision ofthis case is to be regulated with reference to the rules Siwaroo or SissyaParamparawe or otherwise; that is to say 1st What is the general rule forregulating the succession to Temples, whether both in the Siwaroo and Sissya’ Paramparawe. the succession can be conferred upon a layman or whether it isto be confined to the Siwaroo Paramparawe only — 2nd whether there are anypeculiar circumstances in this particular case that should justify decisionwithout reference to those rules.
The chiefs are unanimously of opinion that the rule as laid down in theproceedings by the Malwatte priests is more correct than that which has beenexpressed by the priests of the Asgire Wihare; viz., that it is necessary to be apriest to succeed to a Temple under the Sissya Paramparawe. and there is onlyunder the Siwaroo Paramparawe that a laymen can succeed to a Temple on
condition of afterwards becoming a priest
From the circumstance of the Temple in this case having being given to a layperson, and that too by a priest of the Upasampada order, who must have knownthe impropriety of so doing unless it was a Siwaroo Paramparawe. the Assessorsinfer that it must have been regulated by the rule of Siweroo Paramparawa. theytherefore consider the gift to the plaintiff valid, and the interposition of thevillage people having been exercised in support of that gift, they consider it asan additional proof of its authenticity
The exceptions to those rules are those Temples which are in the gift ofGovernment or of private individuals.
In the present case it does not appear that the villagers had any inherent rightor authority for their interference in obtaining the appointment of the plaintiff, itwas merely made use of in support of the appointment made by the incumbentpriest, viz. Eremmne Kuda Unnanse. The villagers having made a finaldedication, loose all power or right in and over the Temple given. The chiefshowever think that it would be advisable to examine further evidence for thepurpose of clearing up any doubts as to whether the Temple in question shouldbe considered as coming under the Siwaroo or Sissya Paramparawa byascertaining if possible the terms upon which it was originally decicated toWeliweta Sanga Raja, which must have.been about in 70 years ago andwhether the succession .from him down to Ereminme Kuda Unnanse wasregulated by the Siwaroo Sissya Paramparawe Under these circumstances theBoard considers it expedient to order the further evidence suggested to beheard before the Judicial Court in Kandy, before returning the proceedings toGovernment ”
On 20th June, 1832, the Commissioners of the Judicial Court at Kandyassociated with Assessors heard further evidence, and decided as follows: "theAssessors are unanimously of opinion that the succession to the Temple inquestion is and should be regulated agreeably to the law of Sissya Parmparawa.in which opinion the Judicial Commissioner now concurs, and therefore the giftwhich Eeraminne Kuda Unnanse made to plaintiff was irregular and cannot beheld as a valid one “
In July 1832. the 1st and 3rd Member of the Board having read andconsidered all the proceedings concurred with the Judicial Commissioner'sdecision — 'The Sissya Paramparawa being the general rule of succession toWihares and the Siwooroo. the exception to the general rule, the burden ofproof vested on the plaintiff who pleaded the exception — and this he had failedin establishing.
In appeal, the Supreme Court on the 21 st October .1833. affirmed thedecision of the court, of the Judicial Commissioner at Kandy, dated the
20th June. 1832. This case has undergone much discussion and consultationas to the distinction between the Sissya and Siwooroo Paramparawa and greatpains have been employed to ascertain the law by which the succession to thisTemple should be governed. There seems no doubt that this succession oughtto go by pupils until the stock is exhausted. The supposed gift, therefore, to theplaintiff could by no possibility be valid, since he was a mere boy and a laymanat the time of that gift. But it is very doubtful whether Kudah Unnanse was evenentitled to make this grant even m the line of pupils. The evidence is not veryclear as to the stage at which Kudah had possession. But the plaintiffs ownwitnesses, on the second occasion, state that Kudah. and Wevagederahpossessed together, that Wevagederah was the elder, that Kuda died first andthat he left Wevagederah m possession According to the plaintiffs evidencetherefore Kudah could have no right to make the grant even to a pupil-