GUNANANDA UNNANSE v. DEWARAKKITA UNNANSE

044-NLR-NLR-V-26-GUNANANDA-UNNANSE-v.-DEWARAKKITA-UNNANSE.pdf


( 257 )
1924.
Present: Bertram C.J., Schneider J., and Jayewardene A.J.GUNANANDA UNNANSE v. DEWABAKKITA UNNANSE.500—D. C. Kandy, 30,403.
Buddhist ecclesiastical law—Sisya paramparawa—Succession to incum-bency—Bights of a fellow-pupil.
Where the incumbent of a vihare dies leaving a pupil and afellow-pupil, the' pupil has the prior right of succession to theincumbency.
Siriniwase e. Sarananda 1 overruled.
A
PPEAL from a judgment of the District Judge of Kandy.
The plaintiff and the defendant are Buddhist prieBts, and
each claimed to be the lawful incumbent of a vihare in Kandy. Itwas admitted that one Indasara Unnanse who died many years agowas the incumbent of this temple. He died leaving three pupils:{1) Gunaratne Unnanse, (2) Gunananda Unnanse, the plaintiff, and.
Dhammarakkita Unnanse. ' Gunaratne Unnanse, as the seniorpupil, succeeded to. the incumbency, and died in September,1922. Since then the defendant assumed the office of incumbent.The plaintiff, as one of the pupils of Indasara Unnanse, claimed theincumbency as the fellow-pupil of the last incumbent in preferenceto the defendant who was the pupil of the last incumbent. TheDistrict Judge held that the defendant was the rightful successorto- Ihe incumbency.
H. V. Per era (with him Navaratnam), for plaintiff, appellant.
Samarawickreme (with him D. B. Jayatileke and Chas. de Silva),for defendant, respondent.
October 27, 1924. Bertram C.J.—
This case raises an important question with regard to pupillarysuccession. The problem is shortly this: If an adikhari bhikshu, or,as we call him, an “ incumbent ” of a vihare, dies, leaving a pupiland a co-pupil of his own, which has the prior right to succeed ?
This question was considered in a very recent case (Siriniwase v.Sarananda (supra)), and there a Court of 'two Judges decided thisquestion in favour of the collateral pupil and against the pupil in thedirect line of succession. The learned District Judge in a very care-fully framed judgment has felt himself bound to follow this recentdecision, but distinguishes the present case on the ground that the
1 tmi) t* N- L. B. 318.
9
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1924.pupil who now claims the officedoes sonot merelyby virtue of
BertramSuccession, but also by virtue ofa directnominationby his tutor,
J.the deceased adikhari, before bisdeath.The learnedJudge treats.
Qunananda*be above-mentioned decision asconfinedto a casein which the
Unnanse deceased adikhari has not appointed a successor. It is not necessaryDewarakkita us at this point to examine the soundness of the distinction.Unnanse thus made by the learned District Judge, because doubts havearisen as to whether the decision in Siriniwa8e v. Sarananda (supra)is itself in accordance with established principles. That decision ip,in fact, in conflict with a series of earlier decisions, which havehitherto been treated as authoritative. There is no report of theargument in Siriniwase v. Sarananda (supra). The decisions inquestion are not mentioned in the judgment, and it is difficult to-believe that they were adequately brought to the notice of theCourt.,
The first of these decisions was in the year 1874 (D. C. Kurunegala,19,418 l *). There Cayley C.J.. sitting with Stewart J., and upholding;the opinion of Mr. J. H.. de Saram, then District Judge of Kandy(an office which Cayley C.J.. had himself formerly held), declared,that “ the enforced limitation of succession to a priest’s own pupilshas never been questioned previously to. this.”* A curious attemptwas made to procure the recall of that decision (quia improvideemanavit) on the ground of the subsequent discovery of an obiterdictum in a District Court judgment (D. C. Kurunegala, 15,057 *),which had been cited in another case (D. C. Ratnapura, 9,040 3). This-dictum was to the effect that it was competent to a priest to nominateas his successor a fellow-pupil in preference to his own pupil. Both* cases went to appeal, and the judgments in both cases were affirmed,without any reported repudiation of this dictum. Cayley C.J. andStewart J., however, refused to say that their decision improvideemanavit, and referred the applicants to the Privy Council.'
In a subsequent case (Dhammajoti v. Tikiri Banda 4) Cayley C.J.dispassionately reviewed and upheld his own decision, and this-was fortified by an emphatic expression of opinion by Dias J., aJudge of great local experience. In a subsequent case (WeligamaDhammajoti U.nnanse v. Weligama Sarananda Unnanse 9) Dias J.repeated his opinion that a co-pupil could only succeed after thedirect pupillary line had been exhausted.
It is true that Phear C.J., in a judgment of historical interest(Ratnapdla Unnanse v. Kewitigala Unnanse *), intimated that therule of sisya paramparawa was elastic enough to extend to a co-pupil,and that Dias J. has created a difficulty by his incidental referenceto a supposed preference of the ascending over the collateral lines.See Weligama Dhammajoti Unnanse v.. Weligama Sarananda Unnanse
1 (U74) 3 Grenier 66.
* Vand. App. F.,p. It.
3 Vandp. 224.
4iMl) 4 C. G. 121.
(mi) 6 S. Ci G. S.
(im) 2 s. c. c. 2e
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(Supra) and the comment in Mr. Hayley’s book, Sinhalese Loses andCustoms, pp. 552,553. Neither.of these dicta, however, affects the Bertramprior right of a pupil as against a co-pupil of his tutor. From 1874 C.J.onwards, for a period of dose on fifty years, there has been no Owwnandadecision or dictum opposed to the principles first authoritatively Unhanseenunciated in the case in Grenier's Reports. I need not cite any of Dtuwrakkti*the above expressions of judicial opinion, as they are fully set Unnanseout in the judgment of my brother Jayewardene.
As I have said, it is difficult to believe that these decisions wereadequately pressed upon the attention of the Court in Siriniwasev. Sarananda (supra). Attention appears to have been concentratedupon the evidence set out in the Appendix to vol. XX. of the NewLaw Reports, and this was perhaps treated as putting the questionof pupillary succession on a new footing.
There, certainly, are expressions in the course of that evidence whichdo suggest the idea of priority in the collateral lines-r-in particular,the answer of the witness Batnajoti on p. 507:" (7) If a tutor
has two or more pupils, they all succeed him in the order ofseniority of their ordination.” This opinion seems at first sight tobe supported by a passage in a very early authority, viz., the opinionof the Malwatta priests, cited in 866, Agent's Court, Kurunegala 1:
“ In the event of the original proprietor dying intestate, the priestswho happened to be assembled at his death become entitled incommon. Things which belong equally to two priests devolvewholly to the survivor.” There is a dictum of my own which seemsto tend in the same direction. “ Similarly, if an adikhan makes nonomination, they (his pupils). would all succeed him singly and inrotation.” Saranankam Unnanse v. Indajoti Unnanse.2
If this passage from the opinion of the Malwatta priests has themeaning which has been attributed to it, it must carry very greatweight. If the Malwatta priests really meant to say that wherean adikhan bhikshu of a temple dies leaving several pupils, but with-out making a special disposition in favour of any one of them, these■pupils succeed in rotation to the exclusion of the pupils of the firstof them who may leave pupils, and that it is only upon theexhaustion of this collateral succession that the claims of the nextgeneration of pupils come into consideration, this is an opinioncontrary to the authorities above summarized, and, if sound, wouldjustify the decision in Siriniwase v. Sarananda (supra). In view ofthe antiquity of this opinion of the Malwatta priests, and in view ofthe fact that the case in which it is cited, 366, Agent’s Court,
Kurunegala (supra), has always been referred to as the leading caseon the subject of pupillary succession, I thought it well to investi-gate the circumstances under which that opinion was given. I
1 Vand. App. D, p. sdi.
8 {ISIS) 20 N. L. R. 385 on p. 398.
1*24,
Bertram
C, J.
Gunananda
Unnanse
v,
Dewarakkita
Unnanse
' i
( 260 )
regret that the result has not been very informing, but it may bewell to place it on record for the assistance of any future investi-gations on the subject.
The case in which the opinion of the Malwatta and the AsgiriyaChapters was sought was not 366, Agent’s Court, Kurunegala(supra), but an earlier case (Dantura Unnanse v. The Governmentof Ceylon x), which came before the Judicial Commissioner’s Courton June 26, 1827. 1 have obtained the original record of thatcase. The subject-matter of that case had nothing* to do withthe question we are here discussing. It relates to anotherprinciple of Kandyan ecclesiastical law which appears now to beobsolete; Under that principle the Crown appears from time totime to have made grants of lands attached to a temple to aparticular family. The Yiharegama, . as it was called, descendedby inheritance, and it was incumbent on the persons through whomit descended “’to keep in repair the temples thereon and to havethe sacred duties duly performed.'' For this purpose a member ofthe proprietor's family was from time to time duly ordained aspriest. The case of Dantura Unnanse v. The Government of Ceylon(supra) was concerned with a claim by a priest to a hereditary righton the part of his family to the Yiharegama in question. The casewas tried by the Judicial Commissioner, and he gave judgment onJune 24, 1828. His decision then appears to have been referred tothe Board of Commissioners for Kandyan Affairs, and these Com-missioners, according to the procedure then in force, appear to havemade a report of their own for the assistance of the Governor. Itwas then for the Governor to confirm or not to confirm thejudgment of the Judicial Commissioner and the recommendationsof the Board of Commissioners. , In this case the Governor confirmedthe judgment of the Judicial Commissioner on August 8, 1829.The opinion of the Malwatta and Asgiriya Chapters would appear tohave been sought by the Board of Commissioners for KandyanAffaire. That opinion was invited upon a written statement sub-mitted to the two chapters (see the Malwatta opinion whichcommences: “ It does not appear to us that the statement in thepaper writing* exhibited to us, respecting the sivruru paramparawaand the sieya paramparawa is correct “). Unfortunately, the recordof the case does not contain that paper, nor does it contain thereport of the Judicial Commissioners. It is possible that this gapwill some day be supplied.
The opinion of the two chapters given in that case was subse-quently referred to in 366, Agent’s Court, Kurunegala. That caseis briefly reported in Vanderstraaten/ but the whole record is fullyset out in the Report of the Service Tenures Commission, 1870,pp. 376-384. It there appears as an appendix to yet another
x Fond. App. B, p, *K.
oase (Indasara Unnante o. Bobita Unnanto *), D. 0. Ratnapura, 1M*.3,040 (supra), which deoided that the “ inoumbent ” of a temple a——…was a mere trustee and not an absolute proprietor.OJ.
Unfortunately, therefore, we are not acquainted with the precise Gfunonando ».proposition submitted to the two chapters. We are not, therefore, &*>£*** ,in a position satisfactorily to dear up oertain obsourities in the DewartMba*Malwatta opinion.Umam*
The two (pinions were in the course of 866, Agent's Court,
Kuranegala (supra), submitted to a meeting of ohiefs held in theAudience Chamber. These ohiefs are said to have declared theMalwatta opinion to be more correct, and it has consequently beenregarded as being more authoritative than the Asgiriya opinion. AILthat the ohiefs meant was that they considered the opinion morecorrect on the particular point under discussion. There is a dilleienoe-between the Malwatta and Asgiriya opinions on this point. Thequestion on which this difference ooours had reference not to tityaparamparawa, but to siwuru paramparawa. The Asgiriya Chapterdeel’ned to recognise that this was a special form of suooession. Theyregarded it simply as a form of tisya paramparawa. They refusedto allow that for the purpose of this form of suooession a laymanmay be nominated as toe suooessor of an ‘' inoumbent,” being firstordained for toe purpose. The chapter held. that if there was no-qualified person in existence on the death of toe “ inoumbent,” toesuooession failed. The Malwatta Chapter, however, held thatlaymen members of an ” inoumbsnt’s ” family might he ordainedfor the purpose of continuing the suooession. It was only on thispoint that the ohiefs preferred the Malwatta opinion, it appears tome, if I may venture to say so, that toe Asgiriya opinion is verymuch more luoid and enlightening than that! of the MalwattaChapter, With this preface, let us now analyse the propositionsof the Malwatta opinion. It appears to me that those propositionsare the following, and I state them in a somewhat different form fromthat adopted by my brother Jayewardene.
Where a vihare with lands, ho., attaohed is vested in a priest asthe ” original proprietor,” he may take any of toe.following courses—
(1) If he has pupils (say five pupils) he may make an absolutegift to one of them. In (hat case the vihare with its lands,devolves absolutely on that pupil. This pupil may makea similar donation to a pupil of his own. When this goeson uninterruptedly, this is called titya paramparawa.
(8) The " original proprietor ” may make a bequest common to-all his five pupils. In that oase all five suooeed to thebenefits of the vihare, but one is eleoted to the superiority,and this' offloe passes in suooession to all of the five to whomthe bequest- has been made. The last survivor may then-make a gift in favour of any other person.
1 (1870) Sortm Tenure* CammfMion Report, p. 379..
1924:
Bbtram
0<J«i
Gunananda.
Unndnse
v.~
DetoarakkitaUnname
{ 26.2 )
. (3) The original proprietor," instead of making a gift to aparticular pupil, and, thus starting a line of pupillarysuccession, or making a common bequest to all his pupils,may, if he likes, transfer his rights to any other personpassing oyer his pupils.
The “ original proprietor " may, if he likes, do none of thesethings. He may elect to die intestate, without makingany disposition of the temple and its lands. In that case(and here come the important words): “ the priests whohappen to be assembled at his death become entitled in. common." The opinion adds these words: “ things whichbelong equally to two priests devolve wholly to thesurvivor."
It thus appears that this opinion is not an attempt to codify thelaw of pupillary succession. It is dealing simply with the alter-native courses, open to an “ .original proprietor-priest." He mayestablish a rule of pupillary succession. He may make a jointbequest common to all his pupils. He may, if he likes, confer thetepiple upon a stranger. And finally, he may do nothing, at all.In^ the light of this analysis, we are now in a position to interpretthe words: " in the event of the ‘ original proprietor * dying intestate,the priests who happen to be assembled at his death become entitledin common." These words clearly do not mean that if any adikharibhikshut in whom in the course of time the temple may becomevested, dies leaving more them one pupil, without making anyspecial appointment, all his pupils become jointly entitled to the, temple and its lands with benefit of survivorship. It may possiblybe argued that this by analogy ought to be the rule^ but this is notwhat the words say. Moreover, I think that they are capable ofanother interpretation, namely, that suggested by Mr. Samara-wickreme in the course of the argument. According to thisinterpretation, what the words mean is that where the “ originalproprietor " dies without having done anything .to establish theprinciple of pupillary succession, and without making any dis-position of his rights in the vihare, the vihare being sanghika propertyvests, on behalf of the sangha in suchT members of the Buddhistclergy, as at his death may assemble as representatives of the sangha.This view is confirmed by an expression in the evidence of one ofthe witnesses, whose testimony is recorded in the Appendix tovol. XX. of the New Law Reports on p. 507. The witness isthere dealing with the case where there are no pupils to succeed.He says: “ If the chain of pupillary succession to a vihare dedicatedin sisyanusisya paramparaiva is broken, the vihare will revert tothe whole body, of priests of the college to which it belongs andbecome sanghika, in which case, according to the law laid down inthe ancient books, a new ‘ incumbent ' will be appointed by theunanimous vote of the priests who assemble for the purpose." If
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this, as I would submit, is the true interpretation, it is apparent 19M.that these words have no bearing on the question of the rival rights -p—of the pupils of a tutor and that tutor’s own fellow-pupils. I wouldhere note that Cayley J. in D. C. Kurunegala, 19,413 (supra), adopted OunanantUrthe same interpretation. He takes the Malwatta opinion as laviug Vnnanseit down that ‘1 the original proprietor may indicate the person Dewarajchitothrough whom the line of succession is to pass." He expressed a f7nnans*similar opinion as District Judge in D. C. Kandy, 51,811, cited in therecord in this case: " The original proprietor-priest, that is, Isuppose, the original grantee under the king’s saunas, had powerto pass over his own pupils." I would interpret the final vords:
" things which belong equally to two priests devolve wholly to thesurvivor,” not as indicating that the priests who assemble at thedeath of the proprietor take the vihare with benefit of survivorship,but simply as indicating that where there are two original jointproprietors, or- possibly, where there are two or more personsentitled to the benefits of residence at the temple, they are entitledin due succession to benefit of survivorship.
1 would, therefore, adopt this interpretation. I would hold thatthe expression of opinion by the witness Batnajoti in Appendix tovol. XX. of the New Law Reports on p. 507 has reference to a casewhere a tutor leaves (say) two pupils, and the one who firstsucceeds dies without leaving pupils of his own. My own dictumin Saranankara Vnnanse v. Indajoti Unnanse (supra) above referredto was not intended as expressing any opinion on the question nowat issue. All that it was intended to point out was that if twopupils of an adikhari succeed him, they must do so singly and inrotation, and not both- together.
It appears to me, therefore, that there is nothing in any of theearlier authorities which is in conflict with the series of cases, theresults of which I have summarized above, commencing with thecase reported in Grenier’s Reports.—
But the case does not rest here. No evidence of religious customwas called in Sinniwase v. Saranahda (supra). The evidence printedin the Appendix to vol. XX. of the New Law Reports was treatedas applying to the case. In the present case, however, there isexpress evidence of religious custom. – The defendants cited threewitnesses of experience and eminence. The first, who had been•fifty-two years in robes, was a member of the Malwatta Chapter,the third had been for fourteen years a member of the AsgiriyaChapter, and the second was the High 3'riest ci Colombo and Chilaw.
The defendants thus followed the precedent of the evidence in theAppendix to vol. XX. of the New Law Reports, which was thatof representatives of the two Kandy Chapters and the highecclesiastical dignitary resident in Colombo. This evidence is verycarefully and expressly given, and it is unanimous. The firstwitness says: “ When a tutor has several pupils,' on his death one
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•1024. succeeds as chief of the vihare. If the latter dies leaving his ownBbkfbam pupils, one of these latter will now succeed. If at the time of the0.7. second death there is alive a pupil of the original tutor, I cannot4htnananda 8ay if that co-pupil should succeed as chief incumbent or not.Vnmnae j can only say there has been no such instance. The custom is. Beifarukkita th&t succession runs from pupil to pupil. . '.. All I can say
fJnnanae js that in my long experience I have not known a brother pupilto exclude a deceasedV own pupils ; to do so does not appearto me to be' consonant' with fairness.’/ This is most judiciallyand carefully expressed, and carries far more weight than amere enunciation of a dogma.. What we require' to know iswhat is the custom observed in actual practice.Another
witness says: “ I am aware of no case where a co-pupil has.excluded one's own pupils." And he cites a case in this very viharein which, on the contrary, a pupil took priority over a co-pupil ofhis tutor. All the witnesses had obviously carefully studied theopinion of the Malwatta priests given in the case above cited, andthey treat what I have numbered above as the second alternativeas having reference $o .the special and particular case of an odikharlnominating all his pupils to the succession jointly. As I have said,no serious attempt was made to contest this evidence, and even onthe appeal it was obvious that counsel for the appellant had nodefinite /instructions that contradictory evidence would be avail-able, if an opportunity were given to present it.
In view, therefore, of the concurrence of early* authority abovepointed out, the absence of any contrary authority, the explicitevidence called in the present case, and the absence of any contraryevidence, 1 have come to the conclusion, after careful consideration,that it would be superfluous for us. to remit the case for furtherinquiry. I would follow the original authorities above cited, and holdthat, whatever may be the rights of fellow-pupils of a tutor they onlyarise when that tutor has no pupils, of his own, or when the direct lineof succession is* exhausted. What was in/ fact declared by thoseearlier authorities was that an incumbent could not appoint one ofhis fellow-pupils in preference to a pupil of his own. But it followso fortiori that where there has been no such appointment of a fellowpupil, the direct .pupils of the incumbent must have a prior right,particularly when, as in the present instance, it is the pupil whoholds the 'express appointment. The learned District Judge is•clearly right when he holds that the appointment of a pupil by anincumbent to succeed him is paramount. The right to make suchan appointment has been affirmed from the earliest times, and ithas never been suggested that that right is subject to any overridingtights in the incumbent's fellow-pupils.
1 would note, before concluding, a point to which I have previouslyelsewhere drawn attention—the phraseology -used with reference totbhese cases. When we speak of “ incumbents," " deeds of gift,”
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*' bequests by last will, ” we are using a dialect foreign to orthodoxecclesiastical ideas. Adihhari bhihshu* are not 44 incumbents, ” Bhkerah-.nor do they dispose of temples by deed or will. One of the witnesses . C.J.in the present case gives us a useful reminder of the true position: ffimnnunifn44 I do not understand what is meant by a 4 last will.’ If the tutor Unnane*had written to the Bangka that on his death he wished that the vihare jMtraroftHfrgand its endowments should go to his co-pupil, if the sabka accepted Unnan#*.the letter, both would be heirs, and the two members arrange whomust be adikhari. Otherwise the Bangka sabka must decide. ”
1 would, therefore, uphold the decision of the learned DistrictJudge, and dismiss the appeal, with costs.
Schneider J.—
I have read with much interest the learned judgments of myLord the Chief Justice and of my brother Jayewardene. I agreewith thdm in the decision of this case. In deciding Hftriniwase v.
Sarananda (supra), in which I took part, my brother Ennis and Iproceeded upon the evidence set out in the Appendix to vol.
XX of tke New Law Report*. In the light of the evidence calledin this case upon the express point arising for decision, and afterfurther and fuller consideration of the authorities cited at theargument of this case, I am of opinion that the ratio decidendi ofSiriniwa8e v. Sarananda (supra) is not sound.
Jayewardene A.J.—
This case involves a question of considerable importance to theBuddhist priesthood—the order of succession to their incumbencies.
The plaintiff and the first defendant are Buddhist priests, and eachclaims to be the lawful incumbent of a well-known vihare in Kandy,called the Niyamgampaya vihare. The second defendant is thetrustee of the vihare. It is admitted that one Indasara Unnansewho died many years ago was the incumbent of this temple. Hedied leaving three pupils:—(1) Gunaratne Unnanse, (2) Gurik-nanda Unnanse, the plaintiff, and (3) Dhammarakkita Unnanse.
Gunaratne Unnanse, as the senior pupil, succeeded to the incumbency?and died in September, 1922. Since then the first defendant, as thesenior pupil of Gunaratne Unnanse, has assumed the office^ of'incumbent of the vihare. The plaintiff, as one of the pupils of IndasaraUnnanse, questions his right to do so, and claims to be declared,entitled to the incumbency, which he says has devolved on him as thefellow-pupil of the last incumbent according to Bud.dhist ecclesias-tical law. The first defendant says He is the rightful successor tohis tutor and last incumbent, Gunaratne Unnanse, according to therule of sisyanusisya paramparawa,. which governs the succession tothis vihare. He also produces a deed granted by Gunaratne Unnanseappointing him his successor. The plaintiff relies on a decisionof this Court in Siriniwase v. Sargnandg (supra) in. which the rightof a co-pupil of the last incumbent to succeed him was upheld. But.
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1984. the learned District Judge has held that that case has no applica-Jamwab- tion here, as the first defendant is entitled to the incumbency bydbnb A.J. virtue of his appointment as incumbent by deed by Gunaratnegtinnncrmfa Unnanse, his tutor. The learned District Judge also indicated hisUnnanse view that according to the rules regulating the succession to theBeutorakkita vihare; the first defendant was the rightful successor, and that the. Unnanae decision in Siriniwase v. Sarananda (supra) did not lay down a generalrule that a co-pupil has the preference over one’s own pupil, butwas a decision on the particular facts of that case. The claim ofthe plaintiff raises a difficult question, and, in my opinion, if he isthe successor under the rule of sisyanusisya paramparawa,his right cannot be overridden by the appointment by GunaratneUnnanse of one of his pupils as his successor to the incumbency.The origin of the rule of sisyanusisya paramparawa cannot betraced,, but Sir John Budd Phear, who had been at one time a Judgeof the Calcutta High Court and was Chief Justice of Ceylon,remarked that—
“It is noteworthy that the law of property, which obtains, withregard to the Hindu math, an institution which has manyfeatures in common with the Sinhalese vihare, and is.characteristic of the Bihar (or vihare) district of Bengalfrom whence Buddhism sprung, is precisely that whichhas just been stated, and is founded on a text of. theMitackhshera, prescribing that the property of a sanyasimust descend to the selected pupil-’’ Ratnapala Unnansev. Kewitigala Unnanse (supra).
There is no reference to the sisyanusisya paramparawa inBuddhist ecclesiastical works, it has been in existence for about500 years, and it is by a purely customary rule that a pupilinherits what his tutor possessed. In the year 1828 the priests ofthe Malwatta vihare and of the Asgiriya vihare were called uponto define the* term siyanusisya paramparawa and siwuru param-parawa, and the priests of Malwatta gave an opinion which hasbeen accepted as being more correct than that of the Asgiriyapriests. See Appendix D, Vanderstraaten’s Report, xlif xlii.
According to the opinion of the Malwatta prists—
When a priest has several pupils, the temple property would
devolve solely on that pupil to whom an absolute gift hadbeen made.
If the priest declares his bequest common to all his pupils,
they will all become entitled thereto—one_ of them beingelected to the superiority, the others only participatingin the benefits. When the superior dies, the one next inrank will succeed to the superiority, • and the superioritywill devolve in this way until the last survivor, who willhave the power to make a gift in favour of any other person.
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The original proprietor-priest may transfer Ills right to any
other person passing by his own pupils.
If the original proprietor-priest dies intestate priests assembled
at his death become entitled in common.
Things which belonged equally to two priests devolve wholly
to the survivor.
This opinion is not complete or exhaustive, and some of thesepropositions have been considerably modified by judicial decisions.For instance, the third proposition which says that the originalproprietor-priest may transfer his right to any other person passingby his own pupils would only apply where a' priest founds atemple and becomes its incumbent without defining the mode ofsuccession to it. It can have no application to a temple, thesuccession to which is regulated by the sisyanusisya paratn-parawa {Dhammajoti Unnanse t), Paranatale,1 DharmapalaUnnanse v. Medagama Sumana TJnnanse,2 Dhammajoti v. SobitaIndasoti v. Ratnasothi 4).
Again, the fourth proposition says that if ad original proprietor-priest dies intestate, the priests assembled at his death becomeentitled to the temple in common. In such a case, according to thedecisions, in the absence of definite terms attaching to the dedi-cation, the rule of succession will be presumed to be the sisyami-sisya paramparawa {Dhammajoti v. Sobita {supra) and SangharatanaUnnanse v. Weerdsekera *).
This opinion does not help the plaintiff, although it mightsupport the first defendant’s claim on the deed of appointment.But the plaintiff’s contention is that by the law of sisyanusisyaparamparawa he is entitled to succeed his fellow-pupil to the exclusionof the incumbent’s own pupil, and that it is not open to his fellow-pupil to divert the line of succession by the appointment of anyoneelse. He argues that as in a case where several persons are appointedby deed or will to an incumbency, the appointees succeed in rotationto the exclusion of the pupils of any of the persons appointed, so inthe same way, in the absence of any such appointment, the pupils ofthe last, incumbent succeed in rotation. In my opinion, the personsappointed to the incumbency by deed or will succeed in rotation,,because it is not possible for them all to succeed to the incumbencyat the same time or jointly—the office of incumbent being a single-office which cannot be held jointly {Dhammajoti v. Sobita {rnprayand Saranankara Unnanse v. Indajoti Unnanse {supra)).
The question for decision here was raised in an old case, D. C..Kurunegala, 19,413, reported in 3 Grenier's Reports, p. 66, and the-District Judge said :—“ This declaration that Karewelagala Unnanse-was the testator’s fellow-pupil is conclusive, and from the leading;
1 (1881) 4 S. C. C. 121.9 (1918) 16 N. L. R. 408.
s (1910) 2 C. L. R. 83 current.4 (2925) 4 Bal:.39.
* (1903) 6 N. L. R. 313.
1914.
JaybwaA*J>EXB AJ.
Gunanandb
•Unnanse
v*
DetoarakkifO.
Unnanse
( 268 )
1024.
Jayewab-■ IDKNB A.J.
Otmananda
Unnanse
A
IfcwwakkitaUnnanse
C&se on this right to succession to vihares (866, Agent’s Court,Kurunegala) it is clear, that Kotagame Unnanse could not bequeathhis trust, and will away his temple and its endowments to hisfellow-pupil to the exclusion of his pupil, the first defendant. ’’
In appeal it was contended that it was competent for KotagameUnnanse to bequeath to his fellow-pupil to the exclusion of his ownpupil. But Cayley C.J. (then Cayley J.) who heard the case withStewart J. interposed saying:—
“ It has always been the accepttd rule of law in this Court thatwhen once a gift was made by a 8anna8t or otherwise, ofylands for the purpose of future priestly succession bysisya paramqmrawa, . the original proprietor-priest mightindicate the person through whom the line of successionwas to pass, but that thereafter the succession was alwaysto continue therein strictly limited to the pupils of eachsuccessive incumbent. ”
And in the course of the argument the same Judge again remarked:—
“ The enforced limitation of succession to a priest’s own pupilshas never been questioned previously to this, and as ithas always been accepted and acted upon, our judgmentmust be given in accordance with it. M
In the result the judgment of the District Court was affirmed with-out counsel for .the respondent being called upon. On a subsequentdate counsel for the. appellant drew ,tbe attention of the Court toanother judgment of the Supreme Court in D. C. Ratnapura, 9,040'(supra), affirming a judgment of the District Court, in which theDistrict Judge had said that an incumbent might , even bequeath histrust to a co-pupil or brother scholar of the original sacerdotal line ofpupils to the exclusion of his own pupil, but not to a stranger-priest,and asked that the judgment be recalled quia improvide enmnavit,but the Supreme Court thought that its judgment had not improvideemanavit, and told counsel that, if the judgment was erroneous,'he might have it brought up in review for the purpose of an appealto the Privy Council. It is significant, however, this step wasnever taken, although the temple was a very valuable one. InDhammajoti Unnanse t>. Paranatale (supra) a similar question arose.TThere the incumbent had granted-the vihare and its endowments toa fellow-pupil to the exclusion of his own pupils, and it was held(Cayley C.J. and Dias J.) that the incumbent was not entitled todo so, Cayley C.J. said :—
/
“ It was urged in appeal that plaintiff and Ratnapala (the elder)were co-pupils, each having been a pupil of Mahala, andthat the deed of 1849 did not confer any right upon astranger, in the event, which happened, of plaintiff sur-viving the other grantees, plaintiff himself being withinthe original pupillary line. The second defendant admits
( 269 )
that plaintiff and Batnapala (the elder) -were both pupils. of Mahala. The question then arises whether an inoum-bent has power to limit the succession to the incumbencyfirst to a co-pupil jointly with a pupil of his own, and then,after the death of the pupil, over to the co-pupil, to theexclusion of the pupil's pupil.. I am not aware of anyprecise decision in point. It was held by the DistrictJudge of Kuruneg&la in case No. 19,413 {supra) that anincumbent could not by will confer a temple and its endow-ments upon a co-pupil to the exclusion of his own pupils,and this decision was affirmed by the Supreme Court.This case would seem to show that, when an incumbent haspupils of bis own, he cannot interrupt the regular chain ofsuccession from pupil to pupil, though, no doubt, when inany case an incumbent has several pupils, he may make aselection from among them. The decision of* the DistrictJudge in the Kurunegala case is based, upon the well-knowncase No. 866 of the Agent’s Court, Kurunegala (supra), butthis case does not strictly decide the point. The SupremeCourt, however, judging from the reported obiter dicta ofthe Judges, would seem to hold that an incumbent cannot,if he has pupils of his own, break theirne of succession, byappointing a co-pupil. ”
*
And Dias J. said: —
In this case I fully concur in the judgment which has just beendelivered by my Lord the. Chief Justice, but as the point oflaw involved in the case is one of some importance, I shallstate my reasons, for the opinion which I have formed.The vihare in question was founded by a Sinhalese king,and the sannas on which it was founded is a document ofthe usual kind, and the tenure created . thereby is thewell-known tenure of sisyanusisya paramparawa, whichmeans “ pupillary succession j ” or “ succession from pupilto pupil. ” The second word “ anu ” means “ each byeach " or " orderly, ” and the effect of that word seems tome to limit the succession to the descending line, to theexclusion of both the ascending and the collateral lines.Thus we see that, according to the strict grammaticalmeaning of the words sisyanusisya paramparawa, the lineof succession is limited to. pupils of the descending line.
And towards the conclusion of his judgment, he added—
M And as I have already remarked, 'the plaintiff as a co-pupil ofBatnapala is not in the line of succession by descent, butin the collateral line, which, in my opinion, is inconsistentwith the line of succession contemplated by the tenure ofsisya paramparawa.
1W4.
Jaybwab-DJCNE AiJ*
Qunananda
Unnanae
v.
Dewarakkiia
Umanse
( 270 )
1024.
Jaybwab-DBNB A.J.
Gunananda
Unnante
t>.
Dewarakkita
Unnanse
** With regard to the several cases referred to by the learnedJudge such of them as go to support the view that a co-pupilof the last incumbent who left pupils of his own can beplaced in the line of succession to the exclusion of the pupilsof the last incumbent are opposed to the succession which" results from the tenure of sisya paramparawa, and 1 amof-opinion that the case referred to by my Lord (Greniers.Reports,1874, p. 68) lays down the law on the subject
more correctly and consistently with the practice whichprevails among Buddhists. ” –
ft is to be noted that the case in 3 Grenier, 66, was referred toand followed in this case.
In the case of Sumana Terunnanse v. Kandappuhamy,1 it was heldthat under the sisyanusisya paratnparawa, if the last incumbentleaves no pupil and has nominated no successor by deed or will, theincumbency can pass to his co-pupils only if their common tutor washimself in the line of succession from the original proprietor-priest orincumbent of the vihare. Lawrie. J. thought that where a priestbecomes entitled to an incumbency from a priest who is not his tutor,his co-pupils would not succeed him if he dies having no pupils,unless they were also pupils ,of the priest who granted the incum-bency. The learned Judge in the course of hi$ judgmentreferred to a passage from the judgment of Phear G.J. in RatnapalaUnnanse v. Kewitigala Unnanse (supra) where the learned ChiefJustice had .said: —
“ Subsequent cases determined by the Supreme Court haverecognized that the sisya paramparawa has some elasti-city, and is not rigidly restricted to the actual pupils ofthe deceased incumbent; it may comprehend his fellow-pupils, or the pupils of an institution with which he stoodin intimate relation; and the selecting authority inreference to these need not necessarily be the deceasedhimself, but may be some other sacerdotal person orpersonage, or college, variously defined.
“ In some instances, too, under this paramparawa, the deceasedhas a discretion to appoint joint, successors. ” (Ram.(1863-68), 280 ; Vand. p. It.)
Lawrie J., commenting on this passage, said : —
“ I do not understand the latter part of this sentence, nor haveI discovered any authority for it, but, for the first part ofthe sentence, Sir John * Phear quotes the case I have justreferred to in Ram. (1863-68),280, I venture to
think that this expression of the law; which in the circum-stances was obiter, is not correct."
1 (1898) 3 C. L. B. 14.
( 271 )
The judgment of the Supreme Court in the case reported in Bam.(1863-68), p. 380, has no bearing on the question raised, butJLawrie J. was referring to an admission by counsel in the DistrictCourt that when a priest died without having a pupil of his own, thepupils of his deceased tutor (co-pupils) would be entitled to succeedto the vihare, which he thought was a legitimate admission only if'-their tutor was descended from the original incumbent.
The admission .is, however, of some importance, as disclosingwhat was then understood to be the rule regulating the right ofsuccession, namely, that a co-pupil of an incumbent can succeedlim only if the latter had no pupil of his own.
We next have a case of great importance (Saranankara Unnansev. Indajoti Unnanse (supra) ). In this'case the plaintiffs claimed tohe entitled jointly with the defendants to the incumbency of avihare. The first defendant and one Ratnapala were fellow-pupils ofPinguwa Unnanse; the first defendant, his senior pupil, became theIncumbent. Ratnapala. left a pupil, Sri Sumana Unnanse, to whomhe conveyed certain rights by deed. The third plaintiff claimed tobe the pupil of Sri Sumana, and as such to succeed to a “ share ”In the incumbency and to be joint incumbent with the firstdefendant.
Among the questions propounded fcfc decision was the following:—
“ (iii) Does every pupil obtain the right of pupillary successionto his tutor, if so, in what order ; if not, which pupil obtainsthe right ? "
My Lord the Chief Justice in an instructive judgment dealt withthe historical aspect of the question and discussed .the effect of pupil-lary succession in establishing a special office in .connection withvihares—that of a presiding officer—and in regulating the successionto this office. He came to the conclusion that the officer, who inCeylon decisions and Ordinances is referred to as the “ incumbent,was an officer different from the special officers referred to in theVinaya, and was called in Sinhalese adikhari, meaning a person “inauthority. ”
The adikhari was appointed by nomination by his predecessor,or by selection by the persons in the line of pupillary succession.By custom the right was generally determined by seniority. Theoffice of -adikhari was single and indivisible, an adikhari mightnominate all his pupils to succeed him, but they could only succeedone at a time; and at page 398 the learned Chief Justice said:—
“ Similarly if the adikhari makes no nomination they would allsucceed him, but they would succeed him singly in. rotation.
This remark might be cited in support of the contention that thesuccession to an incumbency when an incumbent dies having severalpupils is regulated in the same, way as when he appoints more than
1924.
Jaybwab-PENB A.J.
Ounananda
Unnansev.
Dmarakhita
Unnanse
( 272 )
1924* one pupil to succeed him by deed or will. But that it was not the*~Jaybwar- intention of the learned Chief Justice to lay down any such rule is.bene A.J. clear from a subsequent passage in the Same judgment • where he:
Qunangnda^
Unnanse ** question as to the order in which persons belonging to theDewarakkitapupillary succession may be eventually entitled to succeed
Unnanseto the incumbency is an extremely obscure one. It has.
not yet been properly elucidated; I doubt myself whetherit is capable of full elucidation. The question, however,does not arise here; it is sufficient to say that the pupils,of an adikhari and the pupils of those pupils are entitledto maintenance and residence at the vihare of which heis or wag the adikhari. ”
The Chief Justice has, in my opinion, left the question arising*for decision here entirely open, and the observation, which, Ihave quoted above, cannot be regarded as a considered statement,of the law, as in that case no question had arisen between an*,incumbent’s pupil and a co-pupil, and the authorities bearing onthe subject had not been referred to or discussed.
Referring to this case Shaw J. in his judgment in GunaratneUnnanse v. Dharmananda 1 said: —
“ In the recent case (Saranankara Unnanse v. Indaj'oti Unnanse(supra)) the right of pupils in the collateral line to succeedon failure of the direct line was recognized in the judgment,and decree in the case, although there was no deoision onthe point that is raised in the present case. As I under-stand the rules of sisyanusisya paramparawa, there is no*failure in the succession so long as there remain directpupillary successors to any^ previous incumbent.1'
Then we come to the case of Siriniwase v. Sarananda (supra), onwhich, as I said, the plaintiff strongly relies, and it is, undoubtedly,a clear authority in his favour. There the facts were that oneKukulupone Sonuttara Unnanse had been incumbent of the viharein dispute. He had a pupil, Batnapala, who succeeded him, anddied leaving a pupil, the defendant. The plaintiff who was also oneof the pupils of Kukulupone contested, the defendant’s right to theincumbency. It was held by this Court that as the plaintiff wassenior by ordination to the defendant-and senior in proximity to thefounder, he was entitled to the incumbency, and that the defend-ant was only entitled to reside in the vihare atkd to be maintainedfrom the income. This judgment appears to be based onDammaratna Unnanse v. Sumangala Unnanse 8 and SaranankaraUnnanse v. Indajo.ti Unnanse (supra), and the evidence recorded inthe first case in answer to certain questions framed by this Court andprinted as an Appendix to vol. XX of the New Law Report at page 506_
» (1921) 22 N. L. R. 276 [280).
2 (1910) 14 N. L. R. m~
( 273 )
On a consideration of the answers given to some of the questions,
Enniswho delivered the judgment of this Court, concludes Jaybwab-
that on the death of the chief incumbent more than one personJ.
could succeed to the right to remain in the vihare and to be maintained Qunananfaout of the income, and that the right to be the chief incumbent or Unnansethe person in authority in the temple depended upon seniority, or DewortAhUnappointment, or experience, or election, or cleverness. That as Unnonasregards the pupils of a founder or priest incumbent, the successionwas regulated by seniority of ordination. But, as between pupils ofthese pupils, the seniority of their tutor might confer ^ome seniority,and as the plaintiff was senior by ordination to the defendant andsenior in proximity to the founder he was entitled to the incumbency.
It may be pointed out that the questions framed in that case dohot touch the question of' the competing claims between anincumbent’s pupil and co-pupil, and none of the replies, so far as Ican see, provide an answer to the question. Seniority, appointment,experience, election, and cleverness seem to be matters to be takeninto consideration by the pupils in choosing one of themselves to bethe incumbent. See the answers given to questions (3) and (7). Theselection has to be from among the pupils of the deceased incumbent,and not from his co-pupils who seem to have no Voice in the matter.
/
I do not think the answers can be construed as recognizing theright of a co-pupil to succeed an incumbent, however senior he. maybe in ordination or in proximity to the founder, for a co-pupil wouldbe always the latter and almost always the former.
Neither do the judgments of this Court in Saranankara Unnansev. Indajoti Unnanse (supra) when read as a whole lend any supportto this view.
The decision in Siriniwasa v. Sarananda (supra), therefore, standsby itself, and no authority can be cited in support of the rule enun-ciated in it. It is contrary to the meaning of the very name givento the rule, as explained by Dias J. in Dhammajoti Unnanse v.
Paranatale (supra). The adoption of such a rule would, in myopinion, lead to confusion, for it may be asked who is to succeed on^the death of the last of the. co-pupils? Is the incumbent to bechosen from all the pupils of the co-pupils, or only from the pupilsof the last incumbent? In cases where* several persons are ap-pointed by deed, there is an established rule that the pupils of thelast incumbent succeed, but there is no such rule applicable to caseswhere succession is not by appointment. While, on the other hand,the rule requiring the transmission of the incumbency from seniorpupil to senior pupil produces certainty and creates a sort of“ primogeniture ”* which is easily understood and applied.. In myopinion-the judgments of this Court since 1874 have clearly recog-nized the right of a pupil to succeed to the incumbency, althoughthere may be co-pupils of the last incumbent, and the right is so
( 274 )
1984.
Jayewar-sain A. J.
Ounananda
Unnanse
v.
Dtwarakkiia
Unnanse
well established that the incumbent cannot take it away bynominating one of his co-pupils.
Furthermore, in this case we have a strong body of evidence fromexpert witnesses whose statements of the law or custom regulating'the succession to incumbencies stands uncontradicted. They allagree in saying that according to Buddhist ecclesiastical law asprevailing in this country, an incumbent is succeeded by his pupiland not by his fellow-pupils.
As a rule, the senior pupil has the right to succeed the incumbent,and this has been recognized and enforced by our Courts, although,in theory, the selection of a pupil is based on the consent of all thepupils of the last incumbent.
As. Bertram C.J. pointed out in Saranankara Unnanse v. Indajoti .Unnanse (supra):—
“ By custom the right to succeed .is determined by seniority(though it would appear from the evidence recorded in thecase of Dammaratna Unnanse v. Sumangdla Unnanse (supra).that the right attaching to seniority is not so unqualifiedas some of our decisions appear to suggest. See SumanaTerunnanse v. Kandappuhamy (supra). When, therefore,in such cases, our Courts declare that any person is entitledto succeed to an “ incumbency,*' what they, in effect,decide is that the person in .question, by virtue of seniority(or such other qualification as the Court may determine to-govern .the matter), is by custom entitled to be selectedfor the office by the other pri.ests in the line of pupillarysuccession."
In my opinion the rule laid down in D. C. Kurunegala, 19,413(supra) and in DhatnmajoU Unnanse v. Paranatale (supra) should beregarded as the correct one.
It may perhaps be useful to summarize Hie rules regulating thesuccession to temples and vihares as laid down in the authorities: —-
Succession to an incumbency is regulated by the terms of the
original dedication. Sangharatana Unnanse v. Weerasehera(supra), Dharmapala Unnanse v. Medagama SumanaUnnanse (supra), and Unnanse v. Unnanse
If the original dedication is silent as to the mode, of succession,
then the succession is presumed to be in accordance withthe rule of sisyanusisya paramparawa or pupillary success-sion, to the exclusion of even the succession* known assiwuru paramparawa, and the grantors or dedicators ceaseto have any control over it. Ratnapala Unnanse v.Kewitigala Unnanse (supra), Weligama DhammajotiUnnanse v. Weligama Sararianda Unnanse (supra),Dharmapala Unnanse v. Medagama Sumana Unnanse(supra), and Unnanse v. Unnanse (supra).
1 (1921) 22 Ar. L. R. 323.
( 275 )
The general rule of succession is the sisyanustsya param-
parawa. Dhammajoti t>. Sobita (supra),
If an incumbent dies leaving several pupils, the senior pupil
succeeds. The selection of the incumbent, however, restswith the pupils, and the right of the senior pupil might,in certain circumstances, be disregarded. SaranankaraUnnanse v. Indajoti Unnanse (supra),
The incumbent can appoint or nominate one of his pupils to
succeed him, the pupil so appointed or nominated, if ajunior, succeeds to the exclusion of the senior pupils.Vand,, App. F, p. li., Sumangala Unnanse v> SobitaUnnanse (supra), and Bewala Unnanse v. RatnajotiUnnanse,1
(j)He can appoint by will or deed more than one pupil to succeedhim; in such a case these pupils, although called jointly,succeeds singly in rotation according to seniority. Thepupil who succeeds last can appoint one of his pupils,and, in the absence of such an appointment, his seniorpupil will succeed hirn to the exclusion of the pupils ofthe previous incumbents.
(g An incumbent cannot deprive his pupils of their right ofsuccession by appointing a fellow-pupil or stranger bydeed or will. Dhammajoti v. Sobita (supra) end Indasoti• v, Ratnasoti (supra),
(h) It is only where an incumbent dies having no pupils that hisfellow-pupil succeeds him. In re Polwatte J ananartdaTerunnanse,2 D. C. Kurunegala, 19,413 (supra), Dhamma-joti Unnanse v. Paranatale (supra), but a fellow-pupilcannot succeed^ unless he is in the line of pupillarysuccession to the vihare. Sumana. Terunnanse v. Kand-appukamy (supra).
(j) If an incument dies leaving no pupil or fellow-pupil entitledto succeed, his tutor or other priests descending in.the pupillary line from an incumbent of the templesucceeds. VandApp. F, p. li.; Weligama Dhammajoti'Unnanse v. Weligama Sarananda Unnanse (supra) whereDias J. said:—
“ I always understood the rule to be that after exhausting the*descending line you must resort to the ascending line,such as the tutor of the deceased incumbent, and,,failing him, the fellow-pupils of the deceased incum-bent.
1 {1916) 3 C. W. R. 193.* {1857) 3 Lor, 143.
– 19fcfc
Jayswab-PENB A. J*
Gunananda1Unnansev.
Dewarakkita-
Unnanse
( 270 )
1984.
Jaybwab-BBNB A. J.
Ounananda
Unnanee
v.
Deutardkhita
Unnanee
In Sumana Terunnanse v. Kandappuhamy (supra) Lawrie J.questioned the correctness of this view:
" I confess I do not understand this. The descending line cannot -be exhausted if there be an ancestor or a collateral qualifiedto take. The descent is from a founder or original grantee,and the line of his succession is not exhausted so long asthere are persons alive who descend in the pupillary linefrom him. But when that line is exhausted, there is noascending line to which you can resort. Any other lineis a line of strangers to whom the incumbency cannotgo. " Gunaratne Unnanee v. Dharmananda (supra).
(fc) On the death of the last of the line descending from tutor topupil from the original incumbent, the sieya paramparawa,the connected chain, ends. There is no sacerdotal descentleft. And the ,vihare becomes eangikd, or common,according to some authorities, to the priests who attended .the deathbed of the last incumbent, or to all ordainedpriests subject to the nomination of a priest by theMahanayake of Malwatta or Asgiriya. Sumana Terunnansev. Kandappuhamy (supra), Dharmaratne Unname v.Sumangala Unnanee (supra), and Dharmapala Unnanee v.Sumana Unnanee (supra).
All priests who are pupils of a previous incumbent and pupilsof such priests are entitled to reside in the vihare and tobe maintained from the income: Saranankara Unnaneev, Indajoti Unnanee (supra) and Siriniwase v. Sarananda(supra).
The learned District Judge has, in my opinion, come to the rightconclusion, and the appeal must be dismissed, with costs.
Appeal dismissed.
( 277 )
Present : J&yewardene A.J.
1924.
155—€. B. Oampola, 6,257.
Muslim law—Wife*8 right to maggar—Vesting of right—Consummationofmarriage—Subsequentadultery—Desertion—Husband'sclaim
for double the value of maggar—Muhammadan Code, 88. 80-86.
Under Muslim law when a marriage has been consummated,the wife's right to maggar is confirmed, and is not lost by hersubsequent apostasy or adultery.
Sections 80-86 of the Code deal with the subject of divorce bykhulat i.e.t divorce at the instance of the wife. If in Ceylon ahusband grants his wife such a divorce, he would be entitled todemand from her double the value of the maggar. Sbe would,however; have the right to set off against it the maggar due toher. If the husband can prove before * a Court of competentjurisdiction that his wife persists in her refusal to be reconciledto him, he can claim to have restored to him double the value ofthe maggar without proving that all the requirements of sections80-84 have been complied with. A divorce must precede oraccompany the liability to restore double the value of the maggarunder section 86.
PPEAL from a judgment of the Commissioner of Bequests,
Gampola. The plaintiff, the wife of a Muslim, sued her
husband for the recovery of a sum of Bs. 280.40, of which a sumof Bs. 179.40 represented maggar and the balance Tcaicooly. Her- right to Tcaicooly was admitted but the husband contested hisliability to pay the maggar, on the gound that the plaintiff separated' herself and left his house without any reason, although he waswilling to live with her. In consequence of such desertion, heclaimed to be entitled to recover double the value of the maggaraccording to the law prevailing among the Muslims of Ceylon.At the trial no evidence was led, but it was admitted on behalf of thewife that she refused to live with the defendant. The Commissionerof Bequests held that the facts relied upon by the defendant did notconstitute a defence to the plaintiff's claim for maggar.
J. S. Jayewardene, for defendant, appellant.
Garvin, for plaintiff, respondent.
September 8, 1924, Jayewabdene A.J.—
This is an action between Muslim parties in which the question,whether a wife, who refuses to live with her husb&nd whois prepared to receive her, is entitled to claim her maggar, arises
A
( 378 )
1924.
Jayewah-DENS A.J.
Beebe v.Pitche
for decision. In this case the wife claimed a sum of Rs. 280.40from her husband, Rs. 179.40 as maggot and the balance Rs. 101
as kaieooly….
Her right to the kaieooly is admitted ; but the husband contests,his liability to pay the maggar, on the ground that the plaintiffseparated herself and left his house without any cause or reasonwhatsoever, although he was and is willing to live with her ; andin consequence of such desertion, he not only denied his liabilityto pay the maggar, but he also claimed to be entitled to recoverdouble the value of the maggar according to the customs and lawsprevailing among the Muslims in Ceylon. In support of his claimto double the value of the maggar, reliance is placed on section86 of the Muhammadan Code of 1806, which declares a wife liableto pay double the value of the maggar, if she persists in her refusalto be reconciled to her husband.
At the trial no evidence was led, but it was admitted on behalf ofthe wife that she refused to live with the defendant.!
The learned Commissioner after hearing argument held that thefacts relied on by the defendant did not constitute a defence to theplaintiff’s claim for maggar.
He based his decision on the judgment of this Court in Pathumma
v. Cassim,1
As ..regards the claim for double the value of the maggar, he said r—
“ The provisions of the Muhammadan Code do not appear to havebeen followed, and besides they are hedged in with so manyconditions that to take advantage of them, defendant mustprove that all the necessary steps to bring about a settle-ment have been taken. ”
He accordingly held the plaintiff entitled to the maggar. Thejudgment of the learned Commissioner is, in my opinion, right,although I do not agree with the reasons given by him for holdingthat Section 86 has no application.
In Pathumma v. Cassim (supra), the plaintiff—the wife—claimedboth maggar and kaieooly. There, too, the husband raised thedefence that, as his wife had wilfully separated herself from himand refused to return to him, she had forfeited her right. Butcounsel for the husband conceded that so far as the maggar wasconcerned, the wilful separation and refusal to return did notconstitute a defence to her claim, and the Court held that kaieoolywas governed by the same principles as maggar, and decreed thewife's claims. The correctness of this admission is contested in thepresent, case.
Strictly speaking, that case cannot be regarded as an authorityfor the proposition that maggar can be claimed by a wife in thecircumstances stated above, as it proceeds on an admission made by
1 (1919) 21 X L. R. 221.
( 279 )
counsel. But counsel's admission seems to be quite correct accord-ing to Muhammadan Law. Maggar or Maskawien as it is some-times called in the Muhammadan Code (see sections 76, 77, and 86)is the same as the 44 mahr” oi the Muhammadan Law. In Englishit is termed “ dower/*
Maggar, mahr, ox dower has been defined to be “ the propertywhich it is incumbent on a husband, either by reason of its being inthe contract of marriage or by virtue of the contract itself, to givein exchange for .the' usufruct of the wife/*
It is not the exchange or consideration given by the man to thewoman for entering into the contract ; but an effect of the contractimposed by the law on the husband as a token of respect of itsobject—woman.
The usufruct of the wife being another of its effects, one of these(dower) is said to be exchanged for the other (usufruct), and marriagebecomes, in the language of the law, a contract of exchange,though, in popular parlance, it is only a contract of union. Theright to maggar is in danger of being lost altogether by the apostasyof the wife, or her kissing her husband’s son with desire, but thisdanger is removed by consummation which is an actual delivery ofthe exchange for the maggar.Hence maggar is said to be confirmed
and made binding by consummation, or by its substitute a validretirement (according to the Hanafi doctrine), or by death whichby terminating the marriage puts an end to all the contingenciesto which it is exposed. Bailie’s Digest of Muhammadan Law, pp. 91,92; Vanderstraaten’s Reports (1869-71), 196; TJmma v. Marikar.1
The maggar generally remains in the hands of the husband andunder his control and management until it is demanded from himby the wife, and it forms a settlement intended for her exclusivebenefit. It is payable to her heirs at her death, and forms a firstcharge on her husband’s property. She is entitled to it, if herhusband divorces her. and it may be demanded by her at any time,even during the subsistence of the marriage, when the dower is“ prompt ” and not “ deferred.” Amir Alt’s Muhammadan Law,vol. II., ch. 12 sec. 2, p. 503 ; Vanderstraaten’s Reports, 162.
When dower or maggar has once been confirmed or perfected asstated above, the wife does not lose her right to it by any conducton her part. Bailie in his Digest of the Muhammadan Law, j>. 101thus states the law on the subject: —
” When dower has once been perfected, it does not drop, though aseparation should afterwards take place for a cause proceedingfrom the wife as, for instance, her apostatizing or consentingto the son of her husband, after he had consummated orretired with her ; but before dower is perfected, the wholefail? by reason of any separation proceeding from the wife.”
1924.
Jayewui-DBNK A* J.
Beebe o.Piteftc
1 [1912) IS X. L. B. $16.
( 280 )
1924.
JlYSWAB*9DQB AJ1•
Beebe v.Ptiche
And Amir Alif vol. /., at p. 390, says: —
“ When the right to the dower has once vested in the woman,,it is not defeated or lost by any conduct on her part.For example, when the marriage has been consummated(according to the Sunnis as well as the Shiahs), or a validretirement has taken place (according to the Hanafie), thewoman’s right to her dower is not lost by her subsequentapostasy or adultery ; but it would be otherwise, if theapostasy or misconduct occurred before the right vestedin her. In such a case, .the entire dower would fall to theground. The right once vested is not lost, even if thewoman were to murder her husband.**
Other writers on Muhammadan law lay down the law in similarterms. Tyabji’s Muhammadan. Low, p. 115.
The passages I have cited negative the right of a husband to refusehis wife her maggar because of her separation from him and herunreasonable refusal to live with him. In fact, the passage fromBailie deals with the very case that has arisen here. I would,therefore, hold that the wife refusal to live with the* defendantdoes not justify him in refusing to pay her the maggar. But in sucha case, it is argued that under the Muhammadan Code, .the wife' becomes liable to pay to the husband double the value of the maggar.It is said that the Muhammadan Code, sections 80-86, confer on thehusband such a right. It is necessary, therefore, to ascertain thecircumstances to which sections 85 and 86 apply. Havingconsidered sections 80 to 86 of the Code and the commentaries onthe Muhammadan Law, it seems to me that section 86 applies tocases where the wife obtains a divorce from the husband.
Under Muhammadan Law there are three kinds of divorce whichhave specific names: —
“ When the dissolution of the marriage tie proceeds from the
husband, it is called Mtalak ” or “ Tollek
When it takes place at the instance of the wife, it is called
“ khular
(a) When it is by mutual consent,, it is called “mubarat.” Amir
Ali, vol. JI.t ch. 14, pp. 567-568.
I>ivorce by the husband by giving talak or letters of divorce isdealt with in sections 87 to 90 of our Muhammadan Code.
Sections 80 to 86, in my opinion, refer to a divorce at the instanceof the wife, or khula : and section 79 to divorce by the mutualconsent of both, or mubarat.
Sections 80 to 85 lay down the procedure to be adopted when ahusband and his wife disagree and live in continued dissensionswith one another and wish to be divorced. In such a case, undersection 81, the priest and the commandants on both sides are toinquire into the matter and try to reconcile the parties. If .the wife
( 281 )
is opposed to a reconciliation, and the husband desires a divorce, 1924.parties are to be separated, each living with his or her relations(section 82). Then a meeting of the priests and the officers of the dene a* J•company is to be convened for the investigation of the matter indispute a second time, and an attempt made to reconcile the parties Ptiche(sections 83 and 84). if the parties cannot be reconciled even then,the matter must be brought before the sitting Magistrate (section•85). If the wife should still oppose the reconciliation, she must payto the husband twice the value of the maggar (section 86), and then,
I presume, she obtains the divorce, which the parties wished for■and which is referred to in section 80.
A reference to the works on Muhammadan Law shows thatsection 80 gives the grounds for which a khula—divorce may beobtained. Bailie (p. 30) cites the following passage from the
Fatawa Alamgiri " which follows the Hedaya: —*
“ When married parties disagree and are apprehensive that theycannot observe the bounds prescribed by Almighty God(or, in other words, perform the duties incumbent on themby the marriage relation), there is no objection to thewoman ransoming herself from her husband with property,in consideration of which he is to give her a khula; andwhen they have done this, one irrevocable separation ordivorce takes place, and she is liable for the property.*’
See Amir Alt's vol. II., ch. 14, p. 567, where he observes that■“ where the wife owing to her aversion to the husband, or herunwillingness to fulfil the conjugal duties, is desirous of obtaining adivorce, she may obtain a release from the marital contract, bygiving up either her settled dower (maggar) or some other property.
'Such a divorce is consequently called khvld.tr For a khula to be♦effective, particular forms have to be observed. Amir Ali (p. 568,seq) gives the procedures adopted in different countries, and theyappear to vary. Thus in some countries, “ in case of habitualdiscord between husband and wife, an impartial woman, calledhakima, is selected by the H&kim-ushshar'a (or Kdzi) to try and•effect a reconciliation between them ’’; in others, “ the Kdzi has theTight to proceed himself to effect the reconciliation/’ “ Among the'Shaf’els (whose principles apply in Ceylon) and Hanafis, in•countries where the Islamic law is in force, the Kdzi,* in case of adisagreement between husband and wife, appoints two females—oneon the woman’s behalf the other on the husband’s, to arbitratebetween them, and to endeavour to bring about a reconciliation."
“ If the cause of dissension continue, or if the attempts to recon-cile the parties are unavailing, then they are allowed to dissolvetheir marriage by any of the procedures indicated above." Accord-ing to another system all cases of this kind must be submitted tothe Judge for a divorce. The Muhammadan Code has laid down
( 282 )
1924.
JAYEWAR-DENS A J.
Beebe v.Pitche
a procedure of its own, and the attempts at reconciliation must be-mad© by the priests, the commandants, and the officers of thecompany, and iastly by the Judge himself. When a wife obtains adivorce in this way, that is by khvla, the wife has to pay compensa-tion to the husband which is generally the value of the maggarif she has received it, or if she has not received it, she forfeits herright to it.
Although compensation in excess of the maggar is consideredto be harch and improper, it is not illegal ; the amount is usuallyfixed by mutual agreement, and section 86, in iny opinion, fixes the-compensation payable by wife at double the value of the maggar.It proceeds on the assumption that maggar has already been paidto the wife, as the word used is ” restore.” It seems to me clear-from what I bave stated above that sections 80—86 deal with thesubject of divorce by khulat and if, in Ceylon, a husband grants his.wife such a release from her matrimonial tie, he would be entitledto demand from her double the value of the maggar. She would,however, be entitled to set off against it the maggar due to her.In this case the learned Commissioner seems to think that owing tothe failure of the husband to follow all the provisions of sections.80—85 and fulfil the conditions therein, he is disentitled to exactdouble the value of the maggar under section 86. At the presenttime it is impossible to follow the provisions of these sections, for itis not possible to convene a meeting of “ priests,” “ commandants,”and “ officers of companies,” as required by those sections, tosettle the difference of Muslim spouses. Provisions similar tothese appear in other sections of the Code dealing with matrimonialaffairs, but they are regarded as having fallen into disuse andbecome obsolete, as the machinery for their observance no longer-exists. See Nell's Muhammadan Laws of Ceylon, pp. 42 and 43t.and the judgment of De Sampayo J. in Rabbia Umma v. Saibu.1But, if any of these sections confer a right on any person, that rightcan be enforced through the machinery now available. Thus it washeld in Petchi TJmma v. Modelyatchy 2 that in the absence sinceBritish rule of an official corresponding to the “ commandant,” the-*recording of talak under section 90 was no longer required, and thefact of divorce might be proved by oral evidence. It may be thatin view of section 85 a " khvla divorce ” must be granted orconfirmed by a Judge. That can be done even at the present day.For it hag been held that ” the sitting Magistrate ” or ” competent-Judge ” of the Court corresponds to the District Judge of thepresent day: Agesha Umma v. Abdul Carim* In my opinion,therefore, if a husband'can prove to the satisfaction of a Judge thathis wife persists in her refusal to be reconciled to him, he can claim,to have restored.to him double the value of the maggar without
1 (1914) N. L. R. 338 (341).
*(1880) 4 8. 0. 0.13 (14).
# (1850) 3 Lor 251.
( 283 )
proving that all the requirements of sections 80 to 84 have beencomplied with. In the present case, the husband has claimeddouble the value of the maggar, and I think he is entitled to havehis right inquired into in the light of what. I have stated above,provided the Court has jurisdiction to do so.
The liability of the wife to pay the value of the maggar is, aspointed out above, based on the fact that the marriage is dissolved!by a khula divorce, and such a divorce must, in my opinion, precede•or accompany the liability to restore double the value of the maggarunder section 86. In an action to enforce the provisions of section$6, therefore, the Court has to inquire into a matrimonial matter,that is, the dissolution of the marriage. But Courts of Bequestshave no jurisdiction to take cognizance of matrimonial matters(section 77, Courts Ordinance); District Courts alone have the rightto do so (section 64, Courts Ordinance). The defendant's claim•cannot consequently be tried in the present action. I wouldaccordingly dismiss the. appeal, with costs.
1924.
Jayewab-
DENE .4, J.
Beebe v.Pitch*
Appeal dismissed.