073-NLR-NLR-V-69-E.-A.-MUDIYANSE-Kapurala-and-de-facto-Trustee-of-Eragoda-Paththini-Devale-.pdf
Mudiyanee v. Dingiri Banda
9S7
1006Present: G. P. A. Silva, J., and Alias, J.E. A. MUDIYANSE (Kapurala and de facto Trustee of Eragoda PaththiniDevale), Appellant, and T. M. DINGIRI BANDA andanother, Respondents
S. C. 19211965—D. C. Kandy, 2783/L.
Buddhist ecclesiastical law—Devale—De facto trustee thereof—Action instituted byhim for declaration of title to land belonging to the devale—Maintainability—Buddhist Temporalities Ordinance, ss. 2, 3, 4 (1) (2), 8, 10.
356
G. P. A. SILVA, J.—Mudiyanse v. BingiH Banda
Where a devale is exempted from the operation of section 4 (1) of the BuddhistTemporalities Ordinance, a de facto trustee of the devale who has not receivedan appointment as such from the Public Trustee can maintain an action for adeclaration of t'tle to any land said to belong to the devale.
A.PPEAL from a judgment of the District Court, Kandy.
T. B. Dissanayake, with S. Moonesinghe, for the Plaintiff-Appellant.
V. Jonklaas, Q.C., with G. Candappa, for the Defendants-Respondents.
Cur. adv. wilt.
November 22, 1966. G. P. A. Silva, J.—
The plaintiff-appellant, calling himself a hereditary Kapurala and thede facto trustee of the Eragoda Paththini Devale, brought this action inhis capacity as such trustee for a declaration of title and for ejectmentof the defendant-respondent from a portion of land said to belong tothe devale alleging that the latter and her husband had entered intothis land as a lessee of the former and was wrongfully disputing histitle. Several issues were framed at the trial but the parties agreedthat the issue whether the plaintiff had any right or title to maintainthe action should be first decided as it would go to the root of the cases.The learned District Judge accordingly tried this as a preliminary issueand held that the plaintiff was not entitled to maintain the action.The plaintiff appeals from this order. The only question that this courtis called upon to decide therefore is whether a de fcudo trustee of thedevale who has not received an appointment as such from the PublicTrustee can maintain an action for a declaration of title to any land saidto belong to the devale. The question turns on an interpretation of therelevant sections of the Buddhist Temporalities Ordinance.
According to the definition in section 2 of the Buddhist TemporalitiesOrdinance, which I shall refer to hereafter as “ The Ordinance ”, atemple means, inter alia, a vihare or a devale. Section 3 makes theprovisions of the Ordinance applicable to every temple in Ceylon unless,by an Order made by the Minister, such a temple is exempted from theoperation of all or any of its provisions. Counsel appearing on bothsides before this court were agreed that the devale which, according tothe definition, is a temple, has been exempted from the operation ofsection 4 (1) of the Ordinance. The question has therefore to beconsidered on that basis.•
As there was considerable argument in regard to sections 4 and 8 ofthe Ordinance it is necessary to consider the bearing of these two sectionson the present question. Section 4 (1) deals with the management of theproperty belonging to every temple not exempted from the operation
G. P. A. 8ILVA, J.—Mudiyanse v. Dingiri Banda
359
of this subsection and vests such management in a person or persons dulyappointed trustee under the provisions of the Ordinance, which provisionswould appear to be contained in section 8. As the temple in thiscase is one which is exempted from the operation of this subsection theprovision as to vesting of the management has no application. Section4 (2) deals with the management of property belonging to every temple'exempted from the operation of section 4 (1) but not exempted from theoperation of the entire Ordinance and vests such management in theviharadhipati of such temple. It would thus appear from a reading ofsections 3 and 4 together that the Ordinance contemplates three classesof temples, namely, those that fall within the operation of the Ordinance,those that are exempted from the operation of section 4 (1) and those thatare exempted from the operation of all the provisions of the Ordinance.So far as it is necessary for the present purpose, in the case of temples notexempted from the operation of Section 4 (1), the management would bevested in a person or persons appointed trustee in terms of the provisionsof section 10, where such temple is a vihare, and in terms of section 8when it is a devale. In the case of temples exempted from the operationof section 4 (1), although the provision regarding their management iscontained in section 4 (2), a certain difficulty is created by the wordingof the provision which lays down that the management shall vest in theviharadhipati. A viharadhipati can be present only if a temple is avihare and not a devale. For this reason, although section 4 (2) dealswith the management of property belonging to a temple which can meanboth a vihare and a devale, the vesting of the management in a viharadhi-pati, by necessary implication, restricts the operation of this subsectionto vihares only and excludes devales from its purview. The Ordinance istherefore silent as regards the vesting of the management of devaleproperty when such devale is exempted from the operation of section 4 (1)and it will not be permissible to invoke the provisions of section 8 for theappointment of a trustee to the devale in those circumstances. When,therefore, section 8 provides that the trustee for every other devale shallbe a person appointed by the Public Trustee, the words “ every otherdevale ” must be interpreted as being applicable only to those devalesthat arc not exempted from the operation of the Ordinance. A similarquestion arose for consideration in the case of Peter Singho v. Appukamy1in which Wijeyewardene J. expressed the view that a devale wliichhas not been brought under the operation of section 4 (1) of theBuddhist Temporalities Ordinance, falls. outside the provisions ofthe Ordinance. This is a judgment which commends itself to me as onethat should be followed. In order to accept Mr. Jonklaas’ submissionthat the provisions of section 8 are wide enough to cover every devale,it is necessary to proceed on the basis that, while the Ordinance itselfexcludes certain devales—which would be included in the definition of‘ temple ’—from the operation of the Ordinance, section 8 at the sametime governs such devales as well. Such an interpretation would sufferfrom inconsistency and must therefore fail.
29-Volume LXIX
1 (1940) 41 N. L. B. 627.
380
G. P. A. SILVA, J.—Mudiyanse v. Dingiri Banda
Counsel for the appellant has cited, apart from the case already referredto, a number of older cases in support of his submission that a de factotrustee of a devaie can maintain an action for declaration of title to landbelonging to the devale. In the case of Sidhartha Unnanse v. Udayara1it was held by de Sampayo J. that a de facto trustee of adagoba who had proved his actual possession for many years and wasousted was entitled to maintain a possessory action. In the course of hisjudgment Sampayo J. referred to the Privy Council decision in the caseof Abdul Azeez v. Abdvl Bahiman,2, which confirmed the principlethat a person in possession of a land, even though it does notbelong to him by any investive fact, has a right to bring a possessoryaction. The Privy Council in turn cited with approval the followingpronouncement of Bonser C.J. in the case of Changarapilla v. Chelliah3:“ It seems to me that if the plaintiff, who is called the manager ofthe temple, has the control of the fabric of the temple and ofthe property belonging to it, he has such possession as would entitle himto maintain an action, even though he makes no pretence of claiming thebeneficial interest of the temple or its property, but is only a trustee forthe congregation who worship there.”
While the last two cases cited above dealt with the trusteeship of amosque and a Hindu Temple respectively it is possible to extract aprinciple from these three cases, namely, that a person who functions as atrustee of a religious institution such as a devale, temple or mosque, maybe treated as a de facto trustee for the purpose of instituting proceedingsfor the protection of any property belonging to such religious institutioneven though he may not have a legally recognised title thereto. Counselfor the respondent advanced the argument that all these cases weredecided prior to the Buddhist Temporalities Ordinance of 1931 and havetherefore no application to the instant case. He relied of course for thisargument on his earlier submission that section 8 of the Ordinance coveredevery devale. In view of the opinion I have already expressed in regardto the inapplicability of section 8 to devales exempted from the provisionsof the Ordinance, the argument of counsel cannot prevail.
For the above reasons I hold that the plaintiff in this case is entitledto maintain this action, assuming that he is able to establish on theevidence that he is a de facto trustee of the devale. I accordingly allowthe appeal, set aside the order of the District Judge and send the caseback for trial in due course. The appellant is entitled to his costs in thiscourt and in the court below.
Alles, J.—I agree.
Appeal allowed.8 (1911) U N. L. B. 317.
8 (1905) 2 Bat. 19.
1 (1919) 6 C. W. B. 29.