015-NLR-NLR-V-76-ESWATTE-DHAMMATILAKA-THERO-Appellant-and-DOMPE-DHAMMARATANA-THERO-Respondent.pdf

Was Diddeniya Piyaratana Thero the senior pupil of Eswatte
Sumangala Thero ?
a . Did Diddeniya Piyaratana Thero succeed Eswatte Sumangala
Thero and function as incumbent of the said Vihare ?
Is the plaintiff the senior pupil of Diddeniya Piyaratana Thero ?
a. Did the plaintiff succeed Diddeniya Piyaratana Thero as incumbent
of the said Vihare ?■
If issues 1, 2 and, 3 are answered in the affirmative, is the plaintiff
the lawful Viharadhipati of the said Varana Eajamaha Viharein accordance with the sisyanu sisya rule of succession ?
a. If issues (1)a, (2)a are answered in the affirmative, is theplaintiff the lawful Viharadhipati of the Vihare in the sisyanusisya paramparawa rule of succession ?
(6) Has the defendant whilst denying the plaintiff’s rights and titleto the said Viharadhipatiship been guilty of contumaciousconduct as averred in paragraph 6 of the plaint ?
76 G. P. A. SILVA, S.P. J.—Dhammatilaka Thero v. Dhammaratana Thero
If issues 4 and 5 are answered in the affirmative—
(а)Is the plaintiff entitled to the declaration of his status as
Viharadhipati of the temple in suit ?
(б)Is the defendant liable to be ejected from the said temple
and premises ?
Did Bomiriye Gunaratana Sunanda Thero succeed and function
as Viharadhipati of the Varana Rajamaha Vihare as set out inparagraph (4)A of the answer ?
Did Eswatte Sumangala Thero renounce and abandon the Varana
Rajamaka Vihare and forfeit for himself and his pupils all rightsto the said Vihare ?
Did Diddeniya Piyaratana Thero abandon the Varana Rajamaha
Vihare and forfeit for himself and his pupils all rights to thesame ?
Did Kossinne Pannananda Thero succeed the said Bomiriye
Gunaratana Sunanda Thero and/or function as the incumbentof the said Varana Temple ?
Did Kossinne Pannananda Thero Ijy his Last Will No. 1613 dated
23rd March, 1928 appoint the defendant as Viharadhipati ofthe Varana Temple ?
Did the defendant as the sole pupil of Kossinne Pannananda
Thero succeed him as Viharadhipati of the said Vihare ?
Is the Mangala Pirivena a temporality of the said Varana Temple
and/or subject to the lawful control and administration of theViharadhipati of the said temple ?
Are the Varana Temple, the plaintiff and defendant subject to
the jurisdictional control of the Malwatte Chapter ?
Did the defendant petition the Sanga Sabha of the Malwatte
Chapter against the plaintiff requesting that the defendantbe declared the Viharadhipati of the Varana Temple ?
Did the Sangha Sabha of the Malwatte Chapter by its order dated
6.1.67 declare the defendant the Viharadhipati of the saidtemple ?
Is the order and judgment of the Malwatte Chapter—
res judicata between the plaintiff and defendant ?
binding on the plaintiff ?
estop the plaintiff from claiming the Office of Viharadhipati
of the Varana Temple as set out in paragraph 12 (1) ofthe answer ?
G. P. A. SILVA, S.P. J.—Dhammatilaka Thero v. Dhammaratana Thero
77
If issues 14, 15, 16 and 17 are answered in favour of the defendant
is the defendant entitled to a declaration that he is theViharadhipati of the temple ?
If issues 11 and or 12 are answered in favour of the defendant is
he entitled to a declaration that he is the Viharadhipati of thetemple ?
If issues 18 and/or 19 are answered in favour of the defendant is
the defendant entitled to have the plaintiff ejected from theOffice of the Parivenadhipathi and from the Pirivena buildingsand the temporalities and premises of the said Varana Vihare 1
Was the alleged order dated 5th January, 1967 in fact a decision
of the Sangha Sabha ?
Was the said petition referred to in issue 15 regularly and properly
inquired into by the said Sangha Sabha ?
Was the said order influenced by bias and/or improper conduct
on the part of any one or more of the members of the saidSangha Sabha ?
If all or any one or more of the issues 21, 22 and 23 are answered
in the affirmative is the said order binding on the plaintiff inany manner whatsoever ?
Even if issue 24 is answered against the plaintiff is the said order
of the Sangha Sabha—
(а)res judicata
(б)binding
(c) operate as estoppel against the plaintiff on the claim basedin the title, set out in his plaint in this action ?
In any event can the defendant maintain his claim set out in his
answer to have the plaintiff ejected from the Mangala Pirivenaand/or the Office of Viharadhipati ?
Is the relief claimed by the defendant formulated^in issues 18
and 19 barred by the provisions of the Prescription Ordinance ?
Is the plaintiff’s action barred by prescription ?
Even if issue 1 and/or 2 and/or 3 is answered in the affirmative
and issues (1)a, (2)a, and (3)a or any one of them is answeredin the negative, is the plaintiff the Viharadhipati of the VaranaRajamaha Vihare and/or entitled to a declaration as such ?
Does the decree in D. C. Colombo Case No. 615 operate as res
judicata against the defendant in respect of his claim to theoffice of Viharadhipati of the said Varana Rajamaha Temple ?
a Is the plaintiff a privy to any party in Case No. 615 ?
22326 (5/73)
78 G. P. A. SILVA, S.P.J.—-Dhctmmatilaka Thero v. Dhammaratana Thero
(31)b If not, is the plaintiff’s plea of res judicata if any entitled toprevail ?
After trial the learned District Judge on the 14th November, 1969 deliveredhis judgment dismissing plaintiff’s action with costs and enteredjudgment in favour of the defendant in terms of paragraphs b, c, d and eof his prayer.
Even though a large number of issues was raised in this case, it seemsto me that the crucial question falls within a somewhat narrow compass.Assuming that the sisyanu sisya paramparawa rule governed thesuccession to this temple and that Eswatte Sumangala Thero was thelawful successor of Attadassi Thero, if, as the learned District Judgeheld, Gunaratana Sunanda Thero became the Viharadhipati of Yaranaeither within the lifetime of Sumangala Thero itself or upon his death,the right of succession of Kossinne Pannanda and the subsequentdevolution of title on the defendant is in my view established. Thevital question therefore is whether the District Judge arrived at thecorrect conclusion when he held that Gunaratana Sunanda Thero atsome stage succeeded as the lawful Viharadhipati of Varana to theexclusion of Eswatte Sumangala Thero or that the latter had renouncedhis right in favour of the former. I shall examine this question bearing inmind the decisions of this Court which counsel for the appellant has citedin support, particularly the cases of Jinaratana Thero v. DhammaratanaThero/ 57 N. L. R. 372, and Dhammavisuddhi Thero v. DhammadassiThero,2 57 N. L. R. 469, in which the principle was laid down that anintention to renounce the right to be Viharadhipati will not be inferredunless such intention clearly appears from the facts and circumstancesand that from mere residence, whatever its duration may be, a monkdoes not acquire a right to the incumbency as against the lawfulIncumbent.
I shall first of all enumerate the facts and circumstances relating tothe occupation of Varana Vihare by Bomiriye Gunaratana SunandaThero which are relevant to the consideration whether he was or wasnot the lawful Viharadhipati of the temple and for this purpose I shallbegin with the first document produced by the plaintiff' himself, namelythe Last Will of Dangalle Attadassi Thero dated 10th September, 1880,marked PI. A reading of clause 2 of PI shows that Attadassi Therohimself and one Pugoda Sumangala Therunnanse had a common teacher,Pugoda Devarakkhita High Priest, who was the incumbent of two temples,Anuragoda Vihare situated at Ganagoda pattu and Dangalle Vihare.Even though, according to ordinary rules of sisyanu sisya paramparawaas they are understood today after receiving judicial interpretationduring the early part of this century, either Attadassi Thero or PugodaSumangala Thero, whoever happened to be the senior pupil of PugodaDevarakkhita High Priest, would have succeeded to both these temples,what is stated in this clause is that Anuragoda Vihare was possessed and
(1955) 57 N. L. R. 372.
(1955) 57 N. L. R. 469.
O. P. A. SILVA, S.P.J.—Dhammatilaka Thero v. Dhammaratana Thero
79
improved by Pugoda Sumangala Thero whose pupils “inherited” thattemple by virtue of pupillary succession while Dangalle -Vihare wasimproved and possessed by Attadassi Thero and he desired that it shoulddevolve on his existing seven pupils and any pupils robed subsequently.The neccessary implication of this clause is that neither Attadassi Theronor Pugoda Sumangala Thero had a desire to dethrone the other fromthe temple which he possessed and enjoyed but accepted the positionthat each of them inherited one of the two temples. For, in the secondparagraph of this clause Attadassi Thero has been careful to mentionthat the respective resident priests of each temple, one of them beinghis own Dangalle Vihare, should not encroach on the rights of the residentsof the other temple, as has been the practice hitherto (the italicising ismine). Although this fact by itself is an inconclusive guide to inferthat Attadassi Thero would therefore have had the same type of successionin mind so far as his temples were concerned, the fact that he was himselfheir to this pattern of succession gives rise at least to the probabilitythat he may well have contemplated a similar type of succession to histemples when he executed his Last Will. That this mode of successionmay have influenced him is rendered even more probable when one readsparagraph 4 of Pi where he expressed the wish that among the sevenpupils enumerated in paragraph 2 Eswatte Sumangala Thero and BomiriyeGunaratana Thero who had been rendering assistance with due obedienceto him shall possess and enjoy certain properties referred to in thatclause (without specifying which property was to be possessed by whichof them) residing wherever they liked (the italicising is mine) and thatafter their demise the same shall devolve by pupillary succession. Thephraseology of this clause in which special mention has been made byhim of these two admittedly senior pupils, Sumangala being presumablythe senior of the two having regard to the order in which the names havebeen mentioned, reminds one at once of the type of succession that hehimself shared with Pugoda Sumangala Therunnanse in relation to thetwo temples of which their common teacher was the Viharadhipati, •and at least gives the impression that Eswatte Sumangala and BomiriyeSunanda were allowed the choice of the temple in which each one was toreside and the properties referred to in that clause which each one waeto possess, and that such properties were thereafter to devolve on pupilsby pupillary succession. It is very significant that a specific directionis given that both these senior pupils should possess and enjoy withoutmaking special mention of any one of them or the senior among themand that the devolution on pupils by pupillary succession also has beenset out without specifying that pupils of any one of them shall succeed.It is also significant that in respect of both Dangalle and Varana he hasmentioned the devolution on the seven pupil monks and others to berobed thereafter but not nominated any one of the two senior pupils.Whenever he did mention any pupils with any particularity in the Willhowever he mentioned both Sumangala and Sunanda, the only exceptionalinstance being that he mentioned only Sunanda at the beginning in clause6 ; but this was for the special reason that he was allowed to possess a
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G. P- A. SILVA, S.P.J.—Dhammatilaka Thero u. Tihammaratana Thero
half share of the property referred to because he planted it. On twooccasions in clauses 4 and 8, Sumangala Thero and Sunanda Thero havebeen specifically mentioned and on both occasions they have been giventhe option of choosing their residence and the devolution after theirdemise has been laid down as being on the pupils by pupillary succession.When the choice of residence is mentioned, it is reasonable to think thatthe residences contemplated were the two vihares which Attadassi Theropossessed, namely, Dangalle and Varana. These facts which emergefrom the Last Will form a useful background in which the other evidencerelevant to the questions at issue can be considered.
The two next important documents produced by the plaintiff P2 and P3,both being letters written by Bomiriye Gunaratana Sunanda Thero,have reference to the death of Eswatte Sumangala Thero and pertainto arrangements consequent on that event. It is noteworthy' that theletter P2 was addressed to the Sangha Sabha on April 2, 1908, whichwas just one week after the death of Sumangala Thero. The promptnessof the letter itself—the lapse of one week being probably accountedfor by the performance of duties connected with the funeral of thedeceased Thero—and the fact that it is addressed to the Sangha Sabhathe membership of which would have comprised all those interested inthe succession to the two temples, are matters which should be keptin the forefront in considering the rights of succession. For, if any claimmade by Gunaratana Sunanda Thero was in dispute the appropriateSangha Sabha was given the opportunity to contest it at the earliestpossible stage. In the letter P2 Sunanda Thero stated categoricallythat on the death of Attadassi Thero who was Viharadhipati of Dangalleand Varana, out of his four existing pupils, Sumangala Thero and he(Sunanda Thero) were appointed to the chief position in the two viharesand that as Sumangala Thero was the senior he (Sunanda Thero) placedSumangala Thero in the chief position. He also enumerated variousmatters that had to be attended to at the Dangalla Temple and requestedthe Sabha for directions as to what course he should take in connectionwith those matters thereafter. He added that both Sumangala Theroand he himself had separate pupils both ordained and not ordained(novices).
Before passing on to other matters, I should like to dispose of thequestion of seniority as between the two monks Eswatte Sumangalaand Bomiriye Sunanda. The order in which their names have recurredin the Last Will PI in several places and the admissions made in P2 andP3 by Sunanda leave no room for any inference other than that Sumangalawas, and accepted by Sunanda himself as, the senior of the two. Howeverthe deliberate distinction made in PI between these two monks and therest of Attadassi’s pupils and the repeated references to these two in abracket as it were on various occasions in this Last Will make it highlyprobable to my mind that Attadassi’s intention was either that Sunandashould follow Sumangala as Viharadhipati of these two vihares or thatthe two should by mutual arrangement be the Viharadhipati of each
G. J?. A. SILVA, S.P.J.—Dhammaitldka. The.ro v. Dhammaratana Thero 81
temple and that the rule of sisya paramparawa should follow them. Suchan arrangement of course is not clearly laid down, but when he had twolarge temples, Dangalla and Varana, and he allowed the two seniorpupils the option to reside wherever they pleased and also laid downthe succession as a sisya paramparawa, the fact of the two of themresiding at Dangalla and Varana respectively cannot he explained onany reasonable hypothesis other than by an arrangement between thetwo. The fact of actual residence by them in the two places withoutevidence of any dispute and the succession that followed in each placeconfirm further that the Last Will PI was acted upon in that way. One'has always to1 bear in mind, as I have already referred to earlier in passing,that the strict rules of sisyanu sisya paramparawa as we understandtoday came to be accepted with greater rigidity only after the rule wasjudicially interpreted in the second and third decades of this century.It will not be correct to say that there was inflexible adherence to thisrule prior to this interpretation and we might mislead ourselves if weapply the rule as interpreted without exception to the past not takinginto account the facts and circumstances of each case. One might saythat even after such judicial interpretation instances of a departure fromthe ordinary rule are found occasionally in respect of certain temples.
I cannot escape the feeling in these circumstances' that the two pupilsSumangala and Sunanda fully appreciated the intentions of their teacherus expressed in the Last Will and acting in perfect harmony Sumangalapossessed and enjoyed Dangalla Vihare and Sunanda possessed andenjoyed Varana Vihare. Sunanda in his own mind considered Sumangalaas his-senior and gave him precedence whenever the necessity arosewhile Sumangala, although he was senior, was quite content to haveSunanda as the incumbent of Varana without any interference whatso-ever and thereby impliedly at least renouncing any rights that he mayhimself have had in respect of Varana. As I shall have occasion to gointo greater detail later on in this judgment, this is the only basis onwhich it is possible to explain how it was that after the death of SumangalaThero when both the occasion and opportunity arose for any claimantsto advance their claims to Varana, if indeed Sumangala Thero was thelawful incumbent at the time of his death, there is no evidence of anypupil monk of Sumangala Thero even pretending to put forward anysuch claim. This circumstance clearly points in my view to theacceptance by the entire Sangha Sab ha, which met after the death ofSumangala Thero, of Sunanda Thero as the lawful successor of Varanaat least and perhaps even Dangalla ; for the documents indicate that thesuccessor to be in charge of Dangalla was appointed at the instance andwith the consent of Sunanda Thero.
In this context the two letters P2 and P3 were of the utmost proprietyand significance. Sunanda Thero in these letters admitted that SumangalaThero was the senior pupil of Attadassi Thero ; indicated to the SanghaSabha the original intention of Attadassi Thero to appoint both of themas the Chief of the two vihares ; disclosed to the Sangha Sabha that hehad conceded the seniority of Sumangala Thero and, without arrogating
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G. P. A. SILVA, S.P.J.—Dhammatilaka The.ro v. Dhammaratana Thero
to himself the right of succession at Dangalla too which he may wellwith reason have done, requested the Sangha Sabha for directions.This was not all. He also informed the Sangha Sabha that Sumangala.Thero too had his own ordained pupils thereby almost suggesting to thoSangha Sabha to appoint one of Sumangala’s pupils to Dangalla. Thatsuch a suggestion was implicit in this letter is confirmed by his statementin the letter P3 of 17th May, 1908—the date is important as it is so closeto the death of Sumangala Thero—to the Director of Education thatDangalla Dhammananda Thero was appointed by the Sangha Sabhaas the chief of Dangalla Vihare with his consent. The place where theSangha Sabha was held in order to consider these matters is also materialto this question. The letter P2 is of course not addressed to a particularplace. In the body of the letter however there are two references oneof which at least clearly points to the venue of the Sangha Sabha beingDangalla Vihare. Although it is not brought out in the translation theoriginal of P2 commences with the Sinhala words ©@d3SeoDofr
which means “ in this Dangalla Vihare ” with reference to SumangalaThero having held the office of Viharadhipati before his death. In thesecond paragraph of this letter the same word is used with reference to-certain articles and books on religion kept at Dangalla. Thirdly, it is-most probable that Eswatte Sumangala Thero died at the DangallaTemple where he admittedly resided and that the body was lying-in-stateat that temple and that Sunanda Thero and all the monks who attendedthe funeral who were interested in the succession and connected questionswould have assembled there for the Sangha Sabha.
It is relevant to consider now what would have transpired at thismeeting and what decisions would have been arrived at had the positionbeen as asserted by the plaintiff. According to the plaintiff the rightfulsuccessor to both Dangalla and Varana would have been DiddeniyePiyaratana Thero. If that were so one would expect Piyaratana Therowho, according to D18, admittedly lived at Dangalla at the time, tohave put forward his claim at this Sangha Sabha to the office ofViharadhipati of both Dangalla and Varana ; for the Sangha Sabha tohave decided accordingly and for Piyaratana Thero as successor to haveassumed that role and to have resided at one or other of those two placesin that capacity and then onwards to assert his authority in some wayor even if he chose to five in any place other than these two vihares, toindicate his authority in some way at least on occasions when suchauthority was called for. But instead what does the available evidencedisclose 1 The document P3 dated 17th May, 1908, from Sunanda Theroshows that, at some stage even prior to the date of that letter,which would be shortly after the death of Sumangala Thero, Dangalla-Dhammanada Thero had been appointed to be the chief of Varana withhis (Sunanda’s) consent. Document D18 dated 12th May, 1908, fromPiyaratana Thero and Saranapala Thero proves—
(a) that the appointment of Dhammananda Thero as chief of Varana.took place even before the 12th May ;
G. P. A. SELVA, S.P.J.—Dhammatilaka Thero v. Dhammaratana Thero
83
(6) that the appointment was not opposed by Piyaratana Thero ;
that Piyaratana Thero himself acknowledged Dhammananda
Thero as the chief of Dangalla ; and
that Piyaratana Thero along with his co-pupil Ratanapala Thero
residing at Dangalla desired that Dhammananda Thero beappointed also as the Manager of the school conducted atDangalla.
It is also not unreasonable from these documents, in the absence of anyevidence to the contrary, to infer that the Sangha Sabha—includingPiyaratana Thero, alleged by the plaintiff to have been the rightfulsuccessor of Sumangala Thero—acknowledged Sunanda Thero as havinga right to the succession not only of Varana but of Dangalla and thata pupil of Sumangala Thero was appointed as chief of Varana becauseSunanda Thero himself suggested or consented to that course. One ishere reminded of the fact which I referred to earlier, namely, that thissuccession, the pupil of Sumangala Thero succeeding him at the templewhere he resided leaving the other temple Varana to Sunanda Theroand his pupil, followed the same pattern of succession that AttadassiThero had in contemplation in his Last Will. Although I will not say' that these documents by themselves support a renunciation of the rightsover Varana by Sumangala Thero in favour of Sunanda Thero, theparticipation of Piyaratana Thero in the appointment of DhammanandaThero as the Manager of the school and his admission that Dhammanandawas already the chief of Dangalla seem to me to be strong presumptiveevidence of the renunciation by him of the rights, if he had any at all,to succession of Dangalla Vihare. The oral evidence which I shall referto later, far from improving his position, only confirms the defendant’scase. Furthermore, document P18 in which he joins Saranapala Theroin stating to the Director of Education, so soon after Sumangala Thero’sdeath, that Dangalla Dhammananda “ is presently the Chief Priest ofthis Vihare ” without any further qualification makes the conclusionalmost irresistible that two monks junior to Dhammananda were sendinga communication to the Department of Education expressing theirsupport to the senior monk’s appointment as Manager of the school atDangalla Vihare. Had that not been the position and PiyaratanaThero was senior to Dhammananda, I would have expected him to writea letter on his own, without any association with Saranapala Thero,explaining that for some reason he has consented to the appointmentof Dhammananda Thero as chief of Dangalla Temple as he was himselfunable to function and requesting Dhammananda’s appointment alsoas Manager. Without doing so and particularly by joining SaranapalaThero in writing this letter I cannot help thinking that he has placedhimself in the same category as Saranapala Thero, a mere resident pupilof Dangalla Vihare, as both of them indeed described themselves in theletter. This circumstance again lends support for the contention of thedefendant that Dhammananda and not Piyaratana was the senior pupilof Sumangala Thero, based, among other items of evidence, on the order
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G. P. A. SILVA, S.P.J.—■Dhammatilaka Thero v. Dhammaralana Thero
of numbering in the Lekammitiya, D22 referring to Dangalla Samaneraand D44 referring to Diddeniye Samanera. It is noteworthy in thisconnection that there is no reference anywhere in the evidence to asamanera from Dangalla other than Dhammananda and one fromDiddeniye other than Piyaratana who are connected with Attadassior Sumangala Thero and whose names are mentioned in these documents.I may also say that these circumstances considerably weaken the argumentof appellant’s counsel that there is no proof either that Dangalla samanerarefers to Dhammananda or that the numbers in the Lekammitiyamaintained at Malwatte followed the order in which samaneras werepresented for ordination. In the first place the probabilities are thatany institution worthy of the name would have been inclined to maintainsome order in assigning these numbers in a matter which would assumegreat importance when a question of seniority and succession had to bedecided at some future date. If the numbers are entered at randomwithout any order, such a procedure would defeat the very object forwhich such numbers are assigned. The order of numbering wouldtherefore help to decide the question of the seniority as betweenDhammananda and Piyaratana. Further the contents of Piyaratana’ssubsequent letter D18 which leads to a possible inference that he wasjunior to Dhammananda also renders more probable that the numberingin D22 and D44 followed the order of seniority at the ordination andthe documents in my view support each other in arriving at a conclusionthat Dhammananda was senior to Piyaratana. It was submitted bycounsel for the appellant that the learned District Judge was in error incommenting or on deciding on this matter of Dhammananda’s senioritywhich was irrelevant. I am altogether unable to agree with thissubmission. One of the issues that arose in the case for activeconsideration was whether Piyaratana Thero was the senior pupil ofSumangala Thero and whether Piyaratana Thero succeeded SumangalaThero. It was highly relevant to this issue to show that, far fromPiyaratana succeeding Sumangala Thero, another pupil of SumangalaThero, namely Dhammananda, succeeded at least at the Dangalla Templewhere Sumangala Thero resided before his death and that PiyaratanaThero not only did not succeed but expressed his approval ofDhammananda’s appointment. This the defendant sought to proveby the necessary implication contained in D18 in which Piyaratana Therojoined Ratanapala Thero to request the Director of Education to appointDhammananda Thero who was “ presently ” the Chief Priest of Dangallaas the Manager of the school to succeed Sumangala Thero who wasManager. The decision on this matter was relevant not only in regardto this issue but at the same time answered the other issue as to whether,even if Piyaratana Thero was the senior pupil and had a right to succeedSumangala Thero, he abandoned such right.
A close study of the Last 'AVill PI coupled with P2 leads to two possibleviews. One is that Attadassi Thero desired that the two pupils shouldbe joint incumbents of the two temples after him and the other is that
G. P. A. SILVA, S.P.J.—Dhammatilaka Thero v. Dhammaratana There 85
■Sunanda Thero should follow Suruangala Thero, the first of them ofcourse being the more probable because, while these two senior pupilsare clearly distinguished from the rest of his pupils, no distinction ismade as between these two except in the order in which the namesnppear. The order of mention of the names read with the statementin P2 however in which Sunanda Thero acknowledges the seniority ofSumangala Thero leads to the other possible implication that AttadassiThero intended that Sunanda Thero should succeed Sumangala Thero.Else there is no escape from the conclusion that they were nominatedin PI as joint incumbents. Even if that were so, in practice of courseone could have assumed control only after the death of the other or couldhave shared the temples by arrangement. The one conclusion that isnot possible from the Last Will either from express words or by necessaryimplication is an intention on the part of Attadassi Thero that SumangalaThero should succeed him to the exclusion of Sunanda Thero and thatSumangala Thero’s pupils should succeed Sumangala Thero. The■course of events that followed subsequently which are'highly materialif not conclusive on this matter may be summarised as follows :—
The immediate assumption of powers of Viharadhipati by Sunanda
Thero after Sumangala Thero’s death.
The prompt communication to the Sangha Sabha by Sunanda
Thero regarding the work that remained to be done at Dangallaand Varana and the request for a decision regarding certainarticles at Dangalla.
The action taken by the Sangha Sabha as well as the dayakayas
(lay devotees) of the four quarters as evidenced by the letterP3, namely, that Dhammananda was appointed as chief ofDangalla at the request of Sunanda Thero.
The express acceptance of this appointment by Piyaratana
who, if he had a right to succeed Sumangala Thero at leastat Dangalla, even if he did not assert his right or protestagainst the appointment could have remained silent and therebygiven at least an impression of disapproval or disagreement withDhammananda’s appointment and Sunanda Thero’s right toinitiate action thereon.
The total absence of any interference with the exercise of the
rights eS Viharadhipati by Sunanda at Varana or evenDhammananda, his nominee, at Dangalla.
The absence of any claim to the office of Viharadhipati of Varana
being put forward on the happening of the next importantevent, the death of Sunanda Thero.
The absence of interference on the part of any pupil of Sumangala
Thero during the regime of Pannananda who was admittedlySunanda Thero’s pupil and succeeded him at Varana, and
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G. P. A. SILVA, S.P.J.—Dhammalilaka Thero v. Dhammaratana Thero
The absence of any claim to Varana at any stage by DangallaDhammananda after his appointment to Dangalla on the onlybasis that he was the senior pupil of Sumangala Thero.
The totality of these events and circumstances are inconsistent in myview with any reasonable hypotheses other than the following :—
That everyone concerned with the succession to Sumangala Thero
comprising the Sangha Sabha and any others present atDangalla after the death of Sumangala acknowledged SunandaThero as Viharadhipati of Varana without question andperhaps recognised even the right of Sunanda Thero to succeedSumangala Thero at Dangalla.
That the question of renouncing any claim to Varana by any
pupil of Sumangala Thero did not even arise.
That if anyone had a claim it had been renounced or abandoned,
and
That if there was something in the nature of a renunciation or
abandonment of any right it was only associated with Dangallato which Sunanda Thero may be considered to have abandonedhis claim, when he had Dhammananda appointed as the chiefpriest and also gave reasons for his inability to function there,namely, distance and ill-health.
In this connection I must say that while the plaintiff relies on P3 toestablish the admission by Sunanda Thero of Sumangala Thero beingthe chief Priest of Varana and Dangalla during his lifetime, one cannotoverlook however that this document also contains in it some strongsupport for the defendant’s case in Sunanda Thero’s assertion that hewas the rightful successor to both temples Dangalla and Varana afterSumangala Thero’s death, that by virtue of that right he had takensome action in the period that elapsed between P2 and P3 to haveDhammananda appointed as chief priest of Dangalla and that he wasfurther taking action with the Education Department, as Viharadhipatiof both Dangalla and Varana, to have Dhammananda appointed asManager of the Buddhist school. This action by Sunanda Thero andthe assertions in P3, which are not contradicted by any other evidence,reinforce the conclusions that one is necessarily compelled to draw fromthe totality of the circumstances which I have endeavoured to enumerateabove. A word of explanation is perhaps necessary as to why I saythat some action was taken by Sunanda Thero to have Dhammanandaappointed in the period that elapsed between P2 and P3. P2 does notspeak of succession but only of the disposal of certain articles and bookslying at Dangalla. P3 speaks only of the appointment of Dhammanandaas Manager of the school at Dangalla but significantly refers toDhammananda as having been appointed with his consent. As to whenthis consent was given is not to be found in any document produced byeither party. From the date on P3 it must probably have been given
G. P. A. SILVA, S.P.J.—Dhammatilaka The.ro v. Dhammaratana Thero 8T
at the Sangha Sabha held at Dangalla some time after P2. Thi3 isconfirmed by D18 of the 12th May, 1908, which shows that Dhammananda-Thero was the chief priest of Dangalla at that date and that Piyaratanaand Saranapala Thero wanted him appointed as Manager of the schoolin the vacancy,created by the death of Sumangala Thero. It is reasonableto infer then that the appointment of Dhammananda was made betweenthe 2nd April, 1908, when P2 was' written and the 12th of May, whichis the date ofD18 which is chronologically the first document regardingthe appointment of a Manager for the Buddhist school at Dangalla.The letter P3 by Sunanda Thero also reaffirms that he was consideredthe chief priest of both Varana and Dangalla after Sumangala Thero'sdeath. Otherwise it is not understood how he, residing at Varana Temple,had any right to nominate a Manager for the Dangalla Buddhist Schoolin his letter to the Director of Education. However, the evidence doesnot indicate that Sunanda Thero had any aspirations to succeed atDangalla due perhaps to the practice or the pattern of succession thatobtained earlier, the result being that Sumangala Thero’s pupils succeededat Dangalla left by Attadassi Thero and Sunanda Thero’s pupilssucceeded at Varana.
The answer of counsel for the appellant to the occupation of Varanaby Sunanda Thero followed by Pannananda Thero and thereafter byVipassi Thero is that none of them was a de jure incumbent. His submissionis that the possession of a temple by a monk, however long continuedthat may be, does not give him any right to the office of Viharadhipatias against the lawful Viharadhipati. While conceding therefore thatSunanda and thereafter Pannananda and thereafter Vipassi were residentat Varana and occupied the position of Viharadhipati and may evenhave been recognised as such, he submits that they were only Viharadhipatisde facto and the de jure Viharadhipatis were always the pupils in the fineof succession of Sumangala Thero. In order to succeed in this argument,he has to establish that Sumangala Thero was the original de jureViharadhipati and, secondly, that even if that were so there was norenunciation or abandonment of his right to be Viharadhipati of Varanaby him. As I have pointed out earlier a possible view on the documentP2 read by itself is that Sumangala Thero functioned as the de jureViharadhipati not only of Dangalla but also of Varana. But when itis read together with PI which preceded it and P3 which followed it andalso in the light of Sunanda Thero’s occupancy of Varana, one hasnecessarily to pause before coming to a conclusion solely on P2. Whenfurther P3 is read in conjunction with D18 and the admitted successionof Pannananda Thero at Varana sometime after the death of SunandaThero, three years after Sumangala Thero’s death, Pannananda beinga pupil only of Sunanda Thero and having no connection with SumangalaThero, this possible construction on P2 is completely rebutted givingway to the conclusion that there was some agreement between SumangalaThero and Sunanda Thero to be Viharadhipatis of Dangalla and Varanarespectively and that Sumangala Thero’s pupils being aware of the
158 G. P. A. SILVA, S.P.J.—Dhammatilaka Thero v. Dhammaratana Then
arrangement did not challenge or dispute the succession of Pannananda-at Varana. This is not all. Pannananda thereafter admittedly functionedas Viharadhipati till he died in 1930 without any challenge or obstructionby any pupil of Sumangala Thero. Pannananda was again succeededby Vipassi who had no claim whatsoever in the line of succession ofSumangala Thero and held the office for some 30 years. WhetherVipassi Thero rightly or wrongly succeeded Pannananda Thero vis a vis"the defendant, not being a pupil of Pannananda Thero but a co-pupil ofSunanda Thero with Pannananda, is not relevant to the immediatequestion which I am now discussing. 'What is important is that, althoughVipassi functioned as Viharadhipati for 30 years, no pupil in the line ofsuccession of Sumangala Thero laid any claim to the incumbency during"this very long period. That item of evidence is even by itself sufficientto support a prima facie case that Sunanda Thero and those claimingunder him had held the office for over 50 years for the good reason that-Sunanda Thero was accepted as Viharadhipati by virtue of the LastWill of Attadassi Thero and any subsequent arrangement there mayhave been. It also gives rise to a strong presumption of abandonmentof the right to the office by Sumangala Thero and thereafter byDhammananda and/or Piyaratana, even if any of them had a right.When the matter was thus left for oidy a presumption to be drawn, theplaintiff’s own conduct at this stage furnished the vital decisive factorfrom which there is no escape. What does plaintiff do ? Calling himselfa pupil of Dangalla Dhammananda, Viharadhipati of Dangalla, andDiddeniye Piyaratana, Viharadhivasi of Dangalla, in his UpasampadaDeclaration, he resided at Varana and conducted the Mangala Pirivena.The documents produced by the plaintiff himself P12, P13, P14, P29,P30, P37 and the defendant’s documents D23 to D35, D37, D40 relativeto this period furnish abundant proof that the plaintiff acknowledgedVipassi as the Viharadhipati while living under the same roof, consentedto an appointment as trustee of the Viliara by Vipassi, or at least on therecommendation of Vipassi in his capacity as Viharadhipati, as requiredby the Buddhist Temporalities Ordinance ; and that he Consented to beadopted by Vipassi as the latter’s pupil and in fact claimed under himin previous cases the records of which have been produced in this case.This conduct of the plaintiff, from whatever angle one may considerit, is totally inconsistent with any claim of his to the office of Viharadhipatithrough Sumangala Thero and his pupils which is the basis on which hehas come to court and it is only consistent with his acceptance of Vipassias the de jure Viharadhipati of Varana. Vipassi’s claim is based on asuccession which recognises ’the right of Sunanda Thero to havebeen the Viharadhipati on his own right to the exclusion of any pupilsof Sumangala Thero.
As if all this evidence was not sufficient to establish the point, theUpasampada Declaration furnished by the plaintiff, P 7 A, has anamendment dated 1954 in cage 19 to the effect that Vipassi was theViharadhipati of Varana. This being a document prepared and submitted
G. P. A. SILVA, S. P.J.—Dhammatilaka Thero v. Dhammaratana Thero 89-
by the plaintiff containing this admission by him it must necessarilyhave the effect of contradicting further the plaintiff’s case. and.strengthening the case of the defendant. I think that the submissionsof counsel for the appellant in the face of this evidence that Pannanandaand Vipassi must be considered as only de facto Viharadhipatis whilethe de jure Viharadhipatis were those in the pupillary succession ofSumangala Thero and Piyaratana Thero is wholly untenable and thedocuments of the plaintiff have only succeeded in demolishing his owncase and proving conclusively the defendant’s case. Having regard tothese violently contradictory positions that the plaintiff has endeavouredto take advantage of in this court and in his earlier litigation or hisreference of the dispute to the Malwatte Chapter, he could not havebrought this action with any hope of success.
As I have referred here to the Upasampada Declaration of the plaintiffI wish to deal with another aspect of the documents P7 and P7A whichare relied upon by the plaintiff. The Declaration P7A sets out in cage7 that Dangalla Dhammananda was the Viharadhipati of Dangalla only,no mention being made of Varana, and that Diddeniye Piyaratana wasthe Viharadhivasi of Dangalla and proceeds to contradict this in cage19 by describing Diddeniye Piyaratana as Viharadhipati of Dangalla.Quite independently of the defendant’s documents which point to theseniority of Dhammananda over Piyaratana therefore, the plaintiff has,by the admissions contained in documents P7 and P7A, cast seriousdoubts as to whether Dhammananda or Piyaratana was the senior monk.Secondly, by his significant omission to mention in the relevant cagesof these documents that either Dhammananda or Piyaratana was theViharadhipati or even the Viharadhivasi of both Dangalla and Varanaand by mentioning DangaUa in one instance and Dangalla and BodhimaluVihare in the other, he has compelled the inference that neitherDhammananda nor Piyaratana had a claim to Varana. His claim beingbased on Piyaratana’s right to be the de jure Viharadhipati, accordingto the averments in the plaint, that claim too must necessarily fail.While I am on this point of the Upasampada Declaration, several of whichwere produced by the plaintiff and relied on by counsel for the appellantto support the holding of the office of Viharadhipati of Varana bySumangala Thero, I should like to observe that the material containedin these two all-important declarations have been proved to be soundependable that it is unsafe to rely on the information containedeven in any others for the purpose of establishing the status of a monkwho has been described as the tutor of the monk in respect of whoseordination the declaration has been made. The Upasampada Declarationwould at best be evidence of the status of the bhikkhu furnishing it andof his pupillage. To rely further on these declarations in order to provethe right of the tutor to be Viharadhipati of a particular temple wouldbe altogether unsafe, particularly when there is a dispute in regard tothat very matter. Secondly, there is the point which was repeatedlystressed by counsel for the appellant in regard to the distinction to be
■SO G. P. A. SILVA, S.P.-J.—Dhammatilaka Thero v. Dhammaratana Thero
-drawn, between a de jure Viharadhipati and a de facto Viharadhipati.A person filling the form of declaration may not give his mind at all tosuch a distinction and, even if he does, he can only state his impressionor understanding of the position which may be found quite incorrectupon examination. Thirdly, there is a further possibility to whichour attention was drawn by counsel for the respondent, namely, thatthese declarations started coming in after Ordinance No. 19 of 1931 bywhich time certain disputes as to the right to be Viharadhipati of Varanahad already arisen and the information contained should therefore betreated with great caution as it may be supplied by interested and self-serving sources. I think there is substance in this submission and theamendments contained in P7A which I have referred to already illustratethe correctness of this caution. I do not consider it necessary to examinethese declarations in detail as they constitute at best, as counsel for theappellant himself agreed, supporting evidence to buttress or contradictother important items of evidence.
Thus the documentary evidence which I have detailed above and thefacts and circumstances present at the crucial stages, considered in theirtotality, are so overwhelmingly decisive against the case that plaintiffset out to establish. Independently of this, the oral evidence whichwas elicited in the examination of the plaintiff and his witness JinaratanaThero supplied the necessary material to show that after SumangalaThero, Sunanda Thero was in control of Varana ; that Sumangala Therowas resident at Dangalla, that he died there and that there was a meeting•of the Sangha; that Dangalla Dhammananda suceeded SumangalaThero as chief priest and resided at Dangalla after the death of SumangalaThero ; that Diddeniye Piyaratana resided in Eswatte Temple whichwas a small village temple of Sumangala Thero and that he djed there-and that he did not succeed Sumangala Thero at Varana nor did anypupil of Piyaratana Thero succeed at Varana after his death ; thatKossinne Pannananda Thero was in control of the affairs at Varana as■a pupil of Sunanda Thero after the latter’s death ; that Vipassi Therosucceeded him ; that the plaintiff went to Varana in 1936 when VipassiThero was Viharadhipati and, having been adopted by the latter as hispupil, founded the Mangalagiri Pirivena of which he was Parivenadhipati.It also transpired in this evidence that Kossinne Pannananda left only-one pupil, namely, the defendant, who was very young at the time of■his death and that Vipassi came to the temple and started administeringit and that there was a dispute between Vipassi Thero and the defendantwhich was settled by the Sangha and the Dayaka Sabha by appointingVipassi to look after the temple. It also appeared from the evidencethat Sumangala Thero’s line of successors succeeded at Dangalla afterhis death, namely, Dhammananda and after him Jinaratana claimingto be a pupil of Dhammananda. The plaintiff’s evidence also establishedthat from the 23rd December, 1961, the defendant who was living else-where before that came into residence of Vipassi Thero’s avasa and refusedto leave; that he was prosecuted by the plaintiff for criminal trespass
G. P. A. SILVA, S.P.J.—Dhammalilaka Tkero v. Dhammaratana Thero91
and, though he was convicted in the lower court, the conviction wasset aside in appeal. His evidence also revealed the inconsistent positionhe had taken up in the Bodiyandeniye Temple case having regard to thebasis of his claim in the instant case as a pupil of Diddeniye Piyaratana.Having conceded at the earlier stage that Vipassi Thero was the lawfulViharadhipati of Varana his subsequent position was that he himselfwas the Viharadhipati of Varana as the pupil of Piyaratana Thero.At one stage he was compelled to say that he was the Viharadhipatiof Dangalla too and that Jinaratana was functioning as such with hisconsent, which was not the position taken up by Jinaratana Thero. Theseinconsistent positions do not bear examination quite independently ofthe conflicting documentary evidence. It would thus appear that notonly are there inherent inconsistencies in the plaintiff’s evidence itselfbut also material conflicts between his evidence and that of JinaratanaThero. In whichever way one looks at all the evidence, both documentaryand oral, one is left with no other choice than to hold that after the deathof Sumangala Thero there was not even an attempt by his pupil to advanceany claim to Varana and, if there was any legal claim, that it was abandoned.My own view, as I have indicated before, is that Sumangala Thero himselfhad abandoned or renounced any claim he had to Varana during hislifetime itself and that Sunanda Thero functioned as Viharadhipati not 'merely de facto but de jure. The pattern of the succession in each place,Dangalla and Varana, confirms such abandonment, Sumangala beingfollowed at Dangalla by Dhammananda and Jinaratana while Sunandawas followed at Varana by Pannananda and Vipassi. The evidenceavailable thus satisfies the principle laid down by the judgments citedby counsel for the appellant in support of his submission on the questionof renunciation or abandonments
While the evidence in this case satisfied even the requirements laiddown in the decided cases, I would however wish to observe that thesecases have mostly contemplated instances where a Viharadhipati ofmany temples places pupils in charge of each of them. In such instances,for whatever duration the pupil functions in that capacity he will haveno right to base a claim to the office of Viharadhipati unless a renunciationof the rights of Viharadhipati has been expressly conveyed. Differentconsiderations will however apply in cases where generations of pupilssucceed to the office of Viharadhipati of a particular temple accordingto the sisyanu sisva paramparawa even though such temple may .haveoriginally been one of several belonging to one Viharadhipati who hadplaced one of his pupils to look after that temple. In such a case, in. consonance with the principle laid down in the cases cited by counsel,namely, that renunciation or abandonment will not he presumed unlessit is clearly expressed by facts and circumstances, a court will have totake a close look- at the available facts and circumstances and draw alegitimate inference as to whether the. line of succession of the originalViharadhipati or the line of succession of the respective pupils who wereplaced by the original Viharadhipati at the head of each temple has the
92 G. P. A. SILVA, S.P.J.—DhammalUaka Thero v. Dhanvmaratana Thero
rightful claim to succeed to a particular temple. As I have pointed outearlier, the facts and circumstances which emerge from the documentary-evidence in this case alone would lead to the irresistible conclusion that,although Attadassi Thero was the original Viharadhipati of Dangallaas well as Yarana during his lifetime, there arose after his death twolines of succession at the two temples, namely, Eswatte SumangalaThero and his pupils at Dangalla and Bomiriye Sunanda GunaratanaThero and his pupils at Varana. I have first endeavoured in this judgmentto show how the inferences from the documentary evidence alone demolishthe case of the plaintiff and later to outline some of the main items oforal evidence from the plaintiff and his principal witness which,independently of the documentary evidence, establishes facts andcircumstances which destroy the case which the plaintiff set out to proveand only results in building up the case of the defendant. I am thereforeof opinion that the learned District Judge arrived at the correct conclusionin dismissing the plaintiff’s action and at the same time holding in favourof the defendant’s claim. For, the concession by the plaintiff and hiswitness of Vipassi Thero’s succession at Varana, which is inextricablyconnected with the Last Will of Pannananda Thero D41 coupled with'the admission in evidence that the defendant was the only pupil ofPannananda Thero established at once the case of the defendant.The complaint made by counsel for the appellant that the defendantdid not give evidence in order to establish his case is therefore withoutsubstance. The oral evidence placed by the plaintiff and his witness-and the irrefutable evidence provided by his own documents togetherwith the admissions in cross-examination, taken in conjunction withthe documentary evidence of the defendant, in my view, proved thecase of the defendant so conclusively that it was redundant for him to-buttress his claim by his own evidence. He was therefore entitled tosucceed without any oral evidence on his part.
In the view I have taken on the evidence before the District Court Ifeel that it is superfluous to deal with the questions which revolveround the reference of this dispute to the Malwatte Chapter. Thequestion whether the decision of the Malwatte Chapter operates as resjudicata between the plaintiff and the defendant would in thecircumstances be one of academic interest and I do not consider it usefulto prolong this judgment further by dwelling on the lengthy arguments-of both counsel in regard to that matter. Nor do I consider it necessaryto deal with the somewhat obvious question whether the decision in theprevious case between Vipassi Thero and the defendant, District CourtColombo Case No. 615, has the effect of res judicata as between thedefendant and the plaintiff who was not privy to any party in that caso.I would only say that the learned District Judge arrived at the rightconclusion on this issue as well.
On the issue of prescription raised by the plaintiff in regard to the-defendant’s claim, the cases cited by counsel for the appellant themselves,would operate as the greatest hurdle in his way and would militate-
G. P. A. SILVA, S.P.J.—Dnummatilaka Thero v. Dharmnaiutana Thero 93
against any theory that the right to the office of Viharadhipati can beprescribed against. Furthermore, the defendant was not in the positionof one .who renounced or abandoned his right or even slept over it. Despitethe handicap of his youth, he resisted Vipassi Thero at the appropriatestage and asserted his right later again when his opportunity arose. Theplaintiff cannot therefore succeed in this plea either.
The only question that remains concerns issue 26, as to whether thedefendant can in any event maintain his claim to have the plaintiffejected from Mangalagiri Pirivena. This is a question which hasconfronted me with a moral but not a legal difficulty of immeasurablemagnitude. The learned District Judge who has analysed the mass oforal and documentary evidence in this case with commendable clarityof thought and competence and has reached, in my view, the correctconclusions, expressed his great reluctance to make the order for theejectment of the plaintiff, from the Mangalagiri Pirivena which formedpart of the Varana Raja Maha Vihare, in view of the long and meritoriousservices he had rendered to this institution. This is indeed the insuperabledifficulty which baffled this Court at various stages of the argument.As comparisons are always invidious, I refrain from expressing my views .in regard to the superlative erudition, stature and capabilities of theplaintiff as Parivenadhipathy of the Mangalagiri Pirivena vis a vis thedefendant in this case. The only course legally available to this Courthowever does not permit me to translate my feelings into an order whichwill provide full scope for the continuance of the services which theplaintiff will undoubtedly he able to render. It is perhaps the genuinedesire of the plaintiff to continue his selfless devotion to his brain child,the Mangalagiri Pirivena, to which he had dedicated his life that evenblinded him to the obvious inconsistencies involved in his present pursuit.It is a regrettable paradox, however, that the very circumstancesattendant on this pursuit have brought him legally within the area ofcontumacious conduct which deprives him of the right to remain in residenceat Varana. It is because of this unavoidable conflict between the rigourof the law and the justice of his claim in this respect that, more thanonce in the course of the argument, this Court suggested to counsel thedesirability of a settlement which would have been a happy compromisebetween two irreconcilable alternatives. The plaintiff, most unfortunately,but perhaps for good reasons of his own, was not agreeable to thiscompromise and the Court has therefore no alternative hut to decidethat the law should take its course. The defendant is accordinglyentitled to an order of ejectment of the plaintiff from the Varana Temple.While I. am compelled to make this order, I have no doubt that theMangalagiri Pirivena will remain as a lasting monument of the plaintiff’sservices to the Vihare. In concluding this judgment I would expressthe fervent hope that the defendant will, having contented himselfwith his victory in this suit, extend to the plaintiff a magnanimousinvitation to remain at Varana and to continue his services to thePirivena and the Buddha Sasana. A failure on the part of the defendant
94
H. N. G. FERNA.NDO, O. J.—In re Dharmalingam
to adopt such a course would be a poor commentary of his appreciationof the Buddha Dhamma, one of whose fundamental tenets demandsforgiveness and compromise.
The appeal has perforce to be dismissed with costs.
This Court is deeply obliged to counsel on both sides for their invaluableassistance.
Samebawiokrame, J.—I agree.
Appeal dismissed.