HEENATIYANA NANDA TISSA THERO AND ANOTHER v. WEERAPURA

002-SLLR-SLLR-1993-2-HEENATIYANA-NANDA-TISSA-THERO-AND-ANOTHER-v.-WEERAPURA.pdf


sc
Don Kamnaratne v. The Monetary Board of the Central Bank of
Sri Lanka and others (Kulatunga, J.)
11
HEENATIYANA NANDA TISSA THERO AND ANOTHER
v.WEERAPURA
COURT OF APPEALWIJETUNGA, J. ANDANANDACOOMARASWAMY, J.
CA NO. 560/83
DC MT. LAVINIA NO. 270/ZL
MAY 03, 16 AND 20, 1991.
Trust – Dedication – Sanghika property.
Held :
Where property purchased for the International Buddhist Centre was bydeed, gifted to a Buddhist monk, and the deed itself dedicated and grantedthe lands and premises to the Buddhist S as ana and the Maha Sangha andreferred to the donee as Viharadhipathi of the said International Buddhist Centre
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and a dedication ceremony with die appropriate rituals of dedication was heldon Duruthu Poya day in January 1966, the property becomes Sanghika A claimto treat it as a trust on a belatedly executed deed cannot prevail once the propertybecame Sanghika in January 1966.
Cases referred to :
Wijewardene v. Buddharakkita Them (1957) 59 NLR 121.
Wickramasinghe v. Unnanse (1921) 22 NLR 236.
APPEAL from the judgment of the District Judge of ML Lavinia.
A. C. Gooneratne, Q.C. with P. A D. Samarasekara, P.C. and M. B. Peramunafor substituted 1A defendant-appellant and 2nd defendant-appellant.
H. L de Silva, P.C. with Gomin Dayasiri for plaintiff-respondent
Cur. adv. vult.
October 11, 1991.
WIJETUNGA, J.
The plaintiff, claiming to be the trustee of the International BuddhistCentre, Wellawatta, sued the original 1st defendant Rev. HeenetiyanaDhammaloka Maha Thero and the 2nd defendant, seeking inter aliaa declaration that the premises described in the schedule to theplaint were the property of the International Buddhist Centre and werevested in the plaintiff as trustee thereof and for the ejectment of thedefendants from the said premises.
It was averred in the plaint that in the year 1953 M. PodilinuFernando, M. Somasiri Somaratna, N. Oliver Fernando and
D. Jinadasa (referred to as the authors of the trust), agreedamong themselves to purchase the two lots of land called MahaWellawatta described in the schedule to the plaint, for the purposeof providing a suitable place of residence for foreign missionaries andstudents who came to Sri Lanka to study the Buddha Dhamma andfor Buddhist monks who came to the city of Colombo for brief periodsfrom different parts of the Island. They engaged the 2nd defendantto bid for this property at the public auction as their agent. The 2nddefendant having been the highest bidder, the two lots of land wereaccordingly purchased and in furtherance of the aforesaid objectives,the said four persons commenced construction of the InternationalBuddhist Centre building in 1957. With the aid received from thegovernment and the general public and with their own contributions,
SC Heenatiyana Nanda Tissa Thero and another v. Weerapura (Wijetunga, J.)13
the construction work was completed in 1959 and the said propertyof the International Buddhist Centre, it was claimed, became trustproperty governed by chapter X of the Trusts Ordinance.
It was further averred that Podilinu Fernando died in 1955, OliverFernando in 1958 and Somasiri Somaratna in 1962 and H. D.Jinadasa thus became the sole survivor of the four original authorsof this trust. Pending the proper appointment of a trustee, theaforesaid property was conveyed to the 2nd defendant by deeds Nos.1893 and 1893 dated 8.12.1963 (P28 & P29). Thereafter, onthe instructions of the said Jinadasa, the 2nd defendant by deedNo. 1060 dated 18th November 1965 (P13) conveyed the legaltitle of the said property to Rev. Wellawatte Ananda Thero, who withthe assistance of the International Buddhist Centre Society,administered the activities of the trust. The said Jinadasa has beenfunctioning as the Treasurer of the Society. Rev. Ananda died on11th May, 1977 and the trusteeship of the said InternationalBuddhist Centre fell vacant. The plaintiff claims that, taking advantageof this position, the defendants had broken the locks of the saidpremises and wrongfully obtained possession of the same on 5thNovember, 1977. The defendants had also filed a plaint againstthe said H. D. Jinadasa for criminal trespass and insult, but withoutsuccess. The defendants have also permitted some monks as wellas laymen to come into occupation of the said premises and havedemolished a wall and made alterations to the buildings togive it the appearance of a vihara. The defendants have also claimedthat the premises and the movable property therein are those ofa Buddhist vihara and as such sanghika property. The plaintiff alsostated that the defendants have removed certain items of movableproperty from the said premises.
The plaintiff further claims that the sole surviving author ofthe trust H. D. Jinadasa and the legal representatives of the lateRev. Wellawatte Ananda Thero who are Algina Fernando (hismother) Mahinda Weerapura, the plaintiff (his brother) and MurielWickremasinghe (his sister) have under section 75 of the TrustsOrdinance, by deed No. 674 dated 3rd May, 1978 (P35) appointedthe plaintiff to be the trustee of the said International BuddhistCentre and consequently the property of such trust has been vestedin the plaintiff. The plaintiff further pleads that a cause of action hasthus accrued to him to sue the defendants inter alia for the reliefsaforesaid.
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The original 1st and 2nd defendants filed answer denying theexistence of a trust and stating that by reason of deed No. 674 dated3rd May, 1978 (P35), the plaintiff acquired no rights to the premisesin suit or that the grantors of that deed had any right to appointa trustee in respect of the International Buddhist Centre. They furtherclaimed that the said land and premises were, from November, 1965,Sanghika property and were for a period of more than 10 years priorto the date of action the property of the International Buddhist Centrewhich is a place of Buddhist worship and thus belonged to the saidtemple. The said temple was exempt from the provisions of section4 (1) of the Buddhist Temporalities Ordinance and was in chargeof the 1st defendant as the lawful Viharadhipathi. The defendantshave further averred that in or about 1953, a society was formedfor the purposes aforementioned and the land in question waspurchased in the name of the 2nd defendant, the major part of theconsideration having been furnished by the mother and thebrothers of the 2nd defendant and the balance having beenobtained through the collection of funds. A Buddhist temple bythe name of International Buddhist Centre, it is claimed, hadthereafter been established with Rev. Wellawatte Ananda as theViharadhipathi. By deed No. 1060 dated 18th November, 1965 (P13)the land and buildings standing thereon have been given over to Rev.Ananda for the use and benefit of the Maha Sangha and suchproperty had been sanctified as Sanghika property at a specialpinkama which had been held thereafter. On the death of Rev.Ananda in 1977, without pupils, the 1st defendant was appointed inhis place as Viharadhipathi by the Amarapura Nikaya and thusthe sole management of the lands and buildings mentioned in theplaint were vested in him as the controlling Viharadhipathi of thetemple. The defendants claim that after the death of the Rev. Ananda,the plaintiff and some others, without any manner of right, have beenattempting to obstruct the use of the said land and buildings asproperty of the said temple and to prefer a claim to the said sanghikaproperty with a view to obtaining the same for personal benefit. Theyalso plead that deed No. 674 (P35) has been fraudulently executedwith a view to instituting these proceedings. They have accordinglysought a dismissal of the plaintiffs action.
The case went to trial on a number of issues and the learnedDistrict Judge entered judgment in favour of the plaintiff declaring himthe trustee of the premises in suit and thereby being entitled to the
SC Heenatiyana Nanda Tissa Thero and another v. Weerapura (Wijetunga, J.)15
reliefs prayed for in the plaint. He also awarded the plaintiff the costsof action. It is from this judgment and decree that the defendantshave appealed to this Court.
It was the submission of learned counsel for the appellants thatthe property in question was sanghika property and that TitusFernando by deed No. 1060 dated 18th November, 1965 (P13) hadin clear and unmistakable terms dedicated and granted the said landsand premises to the Buddha Sasana and the Maha Sangha. Thishad been followed by a formal dedication ceremony. Deed No. 674dated 3rd May, 1978 (P35), he submitted, was executed after thedeath of Rev. Ananda and gave the plaintiff no title. The very claimof a trust which was made for the first time in 1978 through P35is destroyed by P13 which recognises Rev. Ananda as theViharadhipathi of the International Buddhist Centre and not as itstrustee. Rev. Ananda not having had any pupils, the property revertsto the Maha Sangha on his death. There was also no referencewhatsoever in the minutes of meetings of the International BuddhistCentre (P23) to a trust. It was his submission that the assumptionof a trust by the learned trial Judge was, therefore, incorrect andthe Court had misapplied to this case the rules regarding trusts andconsequently the judgment should be set aside.
Learned counsel for the respondents, on the other hand,submitted that deed No. 674 of 3.5.78 (P35) was not the trust deed.
D. Jinadasa’was one of the original authors of the trust. TitusFernando was not the absolute owner of the property in suit as theconsideration had been provided by the authors of the trust andunder section 84 of the Trusts Ordinance he was therefore holdingthe said property as a trustee. It was his submission that the objectivewas not to set up a temple and that section 107 of the TrustsOrdinance infers in these circumstances that there exists a trust. Inthe absence of evidence of the formal constitution of a trust, onehas to consider whether under section 3 of the Ordinance, the propertywas free from obligation. Titus Fernando who had only nominalownership had accepted that obligation. The admissions recorded on27.9.79 made it clear that the lands in question had been purchasedin the name of the 2nd defendant for the achievement of theobjectives referred to in paragraph 2 of the plaint The absence ofa deed or writing for the creation of a trust, he submitted, wastherefore immaterial.
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He also commented that the alleged dedication ceremony bywhich the said property is said to have become sanghika propertyreceived no publicity. In any event, the question also arose whethersuch dedication was legal and vaild. The first matter to be determinedis whether the donor had the capacity or title to make such adedication, which in his submission the donor did not have. The 2nddefendant did not give evidence. It was Werapitiya alone who gaveevidence in regard to the dedication ceremony but the trial Judgewas not satisfied with that evidence. In these circumstances,counsel submitted that the learned trial Judge was right in regardto his conclusions and the appeal should, therefore, be dismissed.
It has been held in Wijewardene v. Buddharakkhita Them, (1> thatthe property given to the Sangha must be dedicated in themanner prescribed in the ' vinaya ’ and then only can it become1 sanghika 1 property. Basnayake, C.J. quoting from Wickremasinghev. Unnanse, states that" for a dedication to the Sangha there mustbe a donor, a donee and a gift. There must be an assembly offour or more bhikkus. The property must be shown ; the donor anddonee must appear before the assembly and recite three times theformula generally used in giving property to the Sangha with thenecessary variation accordingly as it is a gift to one or more. Watermust be poured into the hands of the donee or his representative.The Sangha is entitled to possess the property from that timeonwards. No property can become sanghika without such a ceremony.Sometimes there is a stone inscription recording the'grant or a deedis given ”.
His Lordship observes that the procedure laid down in that casefor giving property to the Sangha is in accord with the Vinaya(Cullawagga Sixth Khandhaka, sections 2, 4 and 5).
The judgment of the Supreme Court in Wijewardena v.Buddharakkhita Them (supra) (3) was upheld in appeal by the PrivyCouncil – vide 62 NLR 49.
Before I examine the question of dedication, let me deal with therelevant transfers of the property in suit in the instant case.
Paragraph 7 of the plaint states that the 2nd defendant, actingon the instructions of the sole surviving author of the said trust,H. D. Jinadasa by deed No. 1060 dated 18.11.1965 transferred the
SC Heenatiyana Nanda Tissa Them and another v. Weerapura (Wijetunga, J.)17
legal title of the lands described in the schedule to the plaint, toRev. Wellawatte Ananda Thero as trustee. This deed has beenmarked P13.
But, that deed specifically states that Titus Fernando “ doth herebyoffer, dedicate and grant by way of gift unto Reverend WellawatteAnanda the Vihara Adipathi of the International Buddhist Centre forthe benefit of the Maha Sangha and the use of the Buddhist priestsarriving from the four directions and for other religious purposes, the
lands fully described in the First and Second Schedulesto have
and to hold the said lands hereby offered, dedicated and grantedto the Buddha Sasana and Maha Sangha." The acceptance byRev. Wellawatte Ananda too is on behalf of the Buddha Sasanaand the Maha Sangha.
It is significant that the words used are in the traditional form ofa gift to the Buddha Sasana and the Maha Sangha and Rev. Anandahas been described as ' Viharadhipathi Nowhere in that deed isthere a reference to any trust or to Rev. Ananda being a trusteeof the said institution.
Deed No. 674 dated 3.5.1978 (P35) by which H. D. Jinadasa as1 sole surviving author of the trust 1 and Algina Fernando, MahindaWeerapura and Muriel Wickremasinghe as ' Legal Representativesof the late Reverend Wellawatte Ananda ' purported to appointMahinda Weerapura (the plaintiff) as trustee of the InternationalBuddhist Centre states that: ' on the instructions of the authors ofthe trust the said Moratuwage Titus Fernando executed deed No.1060 dated 18th November, 1965' (P13) conveying the said parcelsof land etc. to Rev. Ananda ' to be held by him as Trustee andDirector of the International Buddhist Centre, Wellawatte for thebenefit of the Maha Sangha and Buddhist priests coming fromthe four directions and for other religious purposes' and thatRev. Ananda Thero ' accepted the aforesaid appointment as trusteeand functioned as such until his death on the 11th May, 1977 '.
As stated above, the reference to Rev. Ananda as ' trustee 'is contrary to what is stated in P13, in that the said deed refers tohim as the ' Vihara Adipathi 1 of the International Buddhist Centre.The deed P35 acknowledges that Titus Fernando (the 2nddefendant-appellant) executed P13 ' on the instructions of the
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authors of the trust H. D. Jinadasa who had described himself asthe 1 sole surviving author of the trust1 is the principal signatory toP35. It cannot, therefore, now be claimed that the gift to Rev. Anandawas not as Viharadhipathi or that the grant was not to the BuddhaSasana and the Maha Sangha.
Thus, the very basis of the plaintiff's claim to be the trustee ofthe International Buddhist Centre is negated by P13 which recognizesRev. Ananda as the Viharadhipathi, P35 is clearly a belated attemptby the plaintiff and the others behind him to clothe this institutionwith a trust when in fact there was none.
No doubt the property so conveyed does not become Sangikaproperty unless the donor had the capacity to make such dedicationand the rituals of dedication referred to above have been observed.
On the plaintiffs own pleadings, the property in question hasbeen purchased by Titus Fernando on deeds Nos. 1892 and 1893dated 8.12.1963, P28 and P29. On the face of the deeds, theconsideration had been paid by him and legal ownership ofthe property was therefore vested in him. Accepting that theconsideration for the same was furnished by the ' authors of thetrust', the grant of the said premises by way of gift to Rev. Anandaby Titus Fernando was on their instructions, as acknowledged in P35.The donor, therefore, had the title and the capacity to make suchdedication.
One must then consider whether such dedication was asprescribed by the rules of' Vinaya'. Werapitiya, in his evidence, givesa detailed description of the dedication ceremony that took placeon 6.1.66, the ' Duruthu Poya ' day. All the necessary ingredientsof a proper dedication to the Sangha, referred to in 22 NLR 236(supra), had been present at that ceremony for the property tobecome 1 sanghika '. Although the learned trial Judge had chosennot to act on the evidence of Werapitiya in regard to the dedicationceremony, he has given no acceptable reasons therefor. Otherthan the bare suggestion that was put to this witness in crossexamination that he was telling an untruth when he spoke of thisdedication ceremony, no serious attempt has been made to test theveracity of his evidence in this regard.
SC Heenatiyana Nanda Tissa Them and another v. Weerapura (Wijetunga, J.)19
One cannot in this context ignore the report appearing in the“ Times of Ceylon " dated 5.1.66 (VI) where the ' Duruthu Poya 'programme at the International Buddhist Centre has been set outin detail, commencing with ' Atasil ' at 6 a.m. and ending with' Pirith ' and meditation at 8.15 p.m. That programme specificallyrefers to the offering of the International Buddhist Centre to theMaha Sangha, which was to follow the 1 Sanghika Dana ' at 11a.m. Werapitiya's evidence is thus amply supported by V1. Thedocument V37, which is a list of office-bearers, said to be in thehandwriting of Rev. Ananda, shows that Werapitiya was an importantoffice bearer, vis. the Honorary General Secretary at the relevant time,as claimed by him in his evidence. The letter written by Rev. Anandato the Editor, " Ceylon Dauly News ' dated 20.4.66 (V30) states that’ it was on Duruthu Poya day this year that the Centre was formallydedicated to the Maha Sangha, with me as the Viharadhipathi andDirector of the Centre. “
Against the backdrop of this evidence, there was no justificationfor the learned trial Judge to have acted in disregard of the evidenceof Werapitiya as regards the dedication ceremony.
Once the aforesaid evidence is accepted, it must follow thatthe property in question has to be considered as having become1 sanghika ' in January, 1966. The plaintifs claim to be the trusteeof the said International Buddhist Centre thus fails and he isconsequently riot entitled to sue the defendants for the reliefsaforesaid.
I would, therefore, allow this appeal and dismiss the plaintiffsaction with costs in both Courts.
ANANDACOOMARASWAMY, J. – I agree.
Appeal allowed.