Pemananda Thero v. Thomas Perera
1955Present:Gratiaen J. and Sansoni J.H. PEM AN AND A THERO, Appellant, and M. THOMAS PERERA,RespondentS. C. 387—D. C. Kurunegala, 6,133
Buddhist Temporalities Ordinance (Cap. 222)—“ ControUitvj Viharadhipati ”—
Meaning oj expression—Sections 2, 4 (1) and (2), 20, 22, 29 (1).
In the case of a temple which was exempted from the operation of section4 (J) of the Buddhist Temporalities Ordinance (Cap. 222) the managementand the title to the property of the temple are vested in the priest who is theprincipal hhikkhu in the line of pupillary succession from the first incumbentof lliat temple. Tho “controlling viharadhipati ” need not be resident in thetemple.
“ At no time in the history of Buddhist temples in this Island has a priestwho hud no right to iiie incumbency of tlio temple been invested with tho titleto, or tho power to manage, the temporalities of tho temple. ”
“ In enacting Cap. .222 there was no intention on the part of the legislatureto draw a distinction between a Viharadhipati and an incumbent. ”
Sumana Therunnanse v. Somaratne Therunnanse (1936) 5 C. L. W. 37 andChandrowimala Therunnanse v. Siyadoris (1946) 47 N. L. R. 304, not followed.
• (1934) 2 K. B. 403.'(1940) 42 N. L. R. 73,
SANSONT J.—Pemananda Thero v. Thomas Perera
J^.PPEAL from a judgment of the District Court, Kurunegala.
II. V. Perera, Q.C., with H. IF. Ja.yasurtya, for the defendant appellant.
II. IF. Jayeirtirdene.:, Q.C., with D. R. P. Goouelilleke, for tho plaintiffrespondent.
Cur. adv. vuU.
March 5, 1955. .Sansoni J.—
The plaintiff in this action claimed a declaration that ho was entitledto a leasehold interest in a certain land belonging to the Tekawa Yihareunder a deed of lease executed in 1946. Ho complained that while hewas in possession as lessee he was ousted by the defendant in 1948. Heasked to be restored to possession and for damages. The loase wasexecuted by Gorakadeniya Pemananda Thero who described himselfas “ Controlling Viharadhipati ” of the Vi hare, with the written sanctionand approval of the Public Trustee, for a term of 15 years. That Viharehas admittedly been exempted from the operation of section 4 (1) of tlioBuddhist Temporalities Ordinance, Cap. 222. The defendant. HelamadePemananda Thero claimed that ho was the Adliikari Bhikklui or Vihara-dhipati of that Vihare since his tutor Tekawa Ratnajothi Thero died in1927, the latter having succeeded Tekawa Sumangala Thero in thatoffice ; he claimed that ho was the Controlling Viharadhipati and theproper authority to possess and lease the property belonging to thoVihare. He said that tho plaintiff’s lessor had been merely residing inthe temple and looking after it with liis permission. Tt was commonground that Gorakadeniya Pemananda gave up his robes in 1948 andthe defendant thereupon took possession of the leased land.
Tho learned District Judge held that the defendant was the successorin title of Tekawa Sumangala the former Viharadhipati. Although thoplaintiff’s lessor was not in that lino of succession, the learned Judgedecided that he functioned as the de facto Viharadhipati from 1935 to1948, while being in control of the temple and its temporalities duringthat period, and was therefore the Viharadhipati. He gave the plaintiffjudgment as prayed for in the plaint save for a reduction of the quantumof damages. The question that arises in this appeal is whether Goraka-deniya Pemananda who was not the lawful incumbent of this Viharecould rightly have claimed to be the Controlling Viharadhipati as theterm is defined in section 4 (2) of the. Ordinance. Nothing, of course,turns on the fact that the Public Trustee sanctioned the lease in question,since under section 29 (1) of the Ordinance it is only the trustee “or Con-trolling Viharadhipati who is empowered to lease lands belonging to atemple, and if the lessor did not hold that offico the lease would be void.
The term “ Viharadhipati ” is defined in section 2 as meaning “ theprincipal bhikkhu of a temple other than a dewale or kovila whetherresident or not”, and section 4 (2) reads, “The management of the pro-perty belonging to every temple exempted from the operation of the
SANSONI J.—Pemananda Thero v. Thomas Perera
last preceding sub-section but not exempted from the operation of theentire Ordinance shall be vested in the viharadhipati of such templehereinafter referred to as the ‘ controlling viharadhipati ’ It becomesclear that the first qualification required of a “ Controlling Viharadhipati ”is that he should be the Viharadhipati of the temple ; he receives thestatutory label “ Controlling Viharadhipati ” only because the templeis exempted from the operation of section 4 (1) and the management ofits property vests in him as Viharadhipati instead of in a duly appointedtrustee. Section 20 similarly provides that all the movable and immov-able property of the temple shall vest in the controlling Viharadhipatiin such a case ; by section 18 he is empowered to sue for the recoveryof such property and to be suod ; by section 22 'he is empowered toenforce all contracts and all rights of action in favour of the temple,all these being extensive powers which only a duly appointed trusteecan exercise in the case of temples which have not been exempted fromthe operation of section 4 (1). It seems to have been assumed in thecase of Surnana Therunnanse v. Somaratana Therunnanse 1 that the term“ Controlling Viharadhipati ” would include any bhikkhu—be he theprincipal bhikkhu or not—so long as he exercised control over the affairsof the temple. The ratio decidendi of that caie is that an Incumbentor Adhikari Bhikkhu who lived away from a temple and did not controlits affairs could not be the controlling Viharadhipati. The judgmentof Soertsz A.J. in that case was cited with approval by de Silva J.(Howard C.J. agreeing) in Chandrawimala Therunnanse v. Siyadoris 2.In the latter caso, the plaintiff priest who was not and did not claim tobo the lawful incumbent of a temple claimed to be its controllingViharadhipati and to have the right to possess the properties belongingto the temple. He sued for declaration of title to a land as Sanghikaproperty of the temple. De Silva J. said :—“ The next questionwhich requires consideration is whether the plaintiff could maintain
his action as he was not the lawful incumbent of the temple
The plaintiff’s tutor Sarananda had been Viharadhipati from 1928 andthe plaintiff has succeeded him as such Viharadhipati. In the circurmstances I agreo with the learned Judge that this case falls within theprinciple laid down in the case of Surnana Therunnanse v. SomaratanaTherunnanse (5 C. L. W. 37) and that the plaintiff is entitled to maintainthis action ”. That case therefore raised the question whether one whois not the incumbent of a temple can be its Viharadhipati or controllingViharadhipati. Now one should not lose sight of two essential matters inthe statutory definition of “ Viharadhipati”, viz., (1) he must be theprincipal bhikkhu of the temple ; (2) he need not be resident in the temple.No emphasis can properly be placed on the epithet “ controlling ” ;it was chosen by the draftsman as a convenient word to describe theprincipal bhikkhu who fills the role of a trustee. With respect, I thinkt hese judgments have overlooked these matters and must be regardedas having been pronounced per incuriam.
It is useful also to consider the question in the light of the earlierOrdinances and a few cases which seem to have a bearing onit. The Ordinance
1 (1936) ( O. L. IF. 37.
(1946) 47 N. L. R. 304.
8ANSONI J.—Pemananda Thero v. Thomas Per era
in force juflt prior to the enactment of Cap. 222, which was enacted in1931, was the Buddhist Temporalities Ordinance, No. 8 of 1905. Section2 of that Ordinance defined “ Incumbent ” as “ the chief rosidont priestof a temple Ordinance No. 8 of 1905 repealed and replaced No. 3of 1889, which had also been passed to provide for the bettor regulationand management of the Buddhist Temporalities in this Island. Section2 of Ordinance No. 3 of 1889 defined “Incumbent” as “ the chief residentpriest of a Vihnrc ”. There was therefore only one meaning to be attachedto the word “ Incumbent ” between the years 1889 and 1931 ; it stoodfor the chief resident, priest of a temple. What is more, the definitionsin the Ordinances of 1889 and 1905 expressed .what has always been under-stood by the word “Incumbent” whenever that word waB consideredin judgments of this Court. A priest claiming to be the incumbent,(or Aclikari Bhikkhu) of a temple had to establish that he had “ a rightto the presidency ”, as do Sampayo J. has termed it, as against all otherpriests in the line of pupillary succession from the first incumbent. Theright to succeed to an incumbency is generally determined by seniorityor by valid nomination by the previous incumbent, but as was held inSaranankara Unnanse v. Indajoti Unnanse 1 “ the office of Adhikariis single and indivisible. He is, indeed, primus inter pares, but his ruleis monarchical …. An Adhikari may, it is true, nominate allthe pupils to succeed him, but they can only succeed one at a time ”.
Prior to the enactment of the Buddhist Temporalities Ordinance theendowments of a temple were vested in the incumbent and, to quote fromthe judgment of the Privy Council in Dhammananda v. Ranasinghe2“ property dedicated to the Vihare (was) the property of the incumbentfor the time being for the purposes of his office, including his own supportand the maintenance of the temple and its services ”, wordB which arequoted almost verbatim from the judgment in the old case of RathanapalaUnnanse v. Kerritiagala Unnanse3. After 1889, however, they werevested in trustees appointed under the Ordinances though the presidingpriest or incumbent has the control and administration of tho Vihareitself (per Ennis J. in Davarakkitta v. Dhammaratne'). At no timein the history of Buddhist temples in this Island has a priest who had noright to the incumbency of a temple been invested with the title to, ortho power to manage, the temporalities of the temple. I am unable toaccept the suggestion that the Ordinance of 1931, Cap. 222, had the far-reaching effect of conferring an, important legal status on one who maynot even claim to be, and who is not in law, the chief priest of a temple.Instoad of the words “ the chief ” in the earlier definitions of “ incumbent”the definition of “ Viharadhipati ’’ contains the words “ the principal ”and tho only other cha nge effected is that a Bhikkhu could be a Viharadhipatiwhether he was resident in the temple or not—a change which was pro-bably made because a priest can be an incumbent of more than onetemple. In effect, therefore, a Viharadhipati after 1931 is the presidingpriest who was known as an incumbent before 1931, with the differencethat he need not be resident in the temple of which he claims to be the 1
1 (1919) 20 N. L. R. 38h.* (1890) 2 S. C. C. 20.
* (1939) 39 N. L. R. 367.« (1921) 21 N. L. R. 235.
SANSON! J.—Pemancndu Thero v. Thomas Perera
Viharadhipati. Bearing in mind that the expression “ chief priest (orbhikkhu) of a temple ” has always been the definition of the word“ incumbent ” and substantially the same expression has been used todefine the word “ Viharadhipati it seems only reasonable to assumethat the legislature meant the new expression to be the equivalent of theold expression “ incumbent Another consideration which leads meto the same conclusion is the presumption referred to in Maxwell’s“ Interpretation of Statutes ” (10th Edition, page 81),
“ Presumption against Implicit Alteration of Law.
Ono of these presumptions is that the legislature does not intend tomake any substantial alteration in the law beyond what it explicitlydeclares either in express terms or by clear implication, or, in othor words,l>eyond the immediate scope and object of the statute. In all goneralmatters outside those limits the law remains undisturbed. It is inthe last degree improbable that the legislature would overthrowfundamental principles, infringe rights, or depart from the generalsystem of law, without expressing its intention with irresistibleclearness ”.
To attach any importance to the circumstances that a priest who is notthe chief priest in the line of pupillary succession is actually living in aparticular temple and managing its affairs while the chief priest is livingelsewhere would be to lose sight of the most important elements of thedefinition of a Viharadhipati. It seems clear, therefore, that in enactingCap. 222 there was no intention on the part of the legislature to drawa distinction between a Viharadhipati and an incumbent. I suggestthat this is the fallacy underlying the reasoning in Chandratoimala,Therunnanse v. Siyadoris (supra). I find support for this conclusionin the judgment of Canekeratne J. in Punchibanda v. DharmanandaThero *. The learned Judge said “ The bhikkhu may be the presidingofficer of a Vihare, or a resident priest, or a non-resident priest (agantuge);the presiding priest is known as the Viharadhipati ; sometimes he iscalled the incumbent (the incumbency is called the adhipatikama) insome cases the adhikhari bhikkhu ”. Later in the judgment he says :—“ A Viharadhipati is one who can lawfully claim to be the head of theVihare ; one, generally, who can show that he is the pupil of the lastincumbent or that he is in the line of pupillary succession ”. I do notconsider the judgment of Dias S.P.J. in Algama v. Buildharakkita 2 tobe against this view. On the contrary the learned Judge cited withapproval the judgment of Canekeratne J. in Punchibanda v. Dharma-nanda Thero already referred to. But in dealing with the words “ anyViharadhipati ” in section 32 he considered that the context requiredthat both those who claim to be and those who are functioning as Viha-radhipatis were covered by those words, having regard to the purposeof the section.
These considerations lead me to the conclusion that the correct con-struction to be placed on the provisions of the Ordinance is that it wasintended, in the case of a temple which was exempted from the operation1 (1918) 48 X. L. if. 11.• (1951) 51 X. L. if. 150.
Kuhtnan v. Abdul Nakeetn
of section 4 (1), to vest the management and the title to tho propertyof such a temple in the priest who is the principal bhikkhu in the line ofpupillary succession from the first incumbent of that temple.
For these reasons I hold that the lease in favour of the plaintiff con-veyed no right to him. I would therefore sot aside the judgment underappeal and dismiss the plaintiff’s action with costs in both Courts.
Ghatiaen J.—I agree.
H. PEMANANDA THERO , Appellant , and M. THOMAS PERERA, Respondent
Pemananda Thero v. Thomas Perera