081-NLR-NLR-V-47-JINARATHANA-THERO-Appellant-and-SOMARATNE-THERO-Respondent.pdf
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JAYETLLEKE J.—Jinarathana Thero v . Somaratne Thero.
1946Present: Jayetileke and Canekeratne JJ.JINARATHANA THERO, Appellant, and SOMARATNE THERO,
Respondent.
86—D. C. KegaUa 2,711.
Buddhist law—Incumbency of vihare—Succession—Sisiyanu Sisya Param-parawe—Appointment of junior pupil as incumbent’s successor—Sufficiency of deed executed by incumbent transferring the templeproperty to the pupil and indicating that latter should be successor.
Where the incumbent of a Buddhist temple which was held under theSisiyanu Sisya Paramparawe tenure executed a deed purporting todonate the property belonging to the temple to the first defendant,one of his junior pupils, and giving him the right to convey the said landson a similar instrument to any one of his pupils to succeed him asVihare Adipathy and providing that, after the death of the first defendant,the said lands should devolve on his pupils in pupillary succession—
Held, that the deed was intended by the donor to appoint the first■defendant as fris successor to the incumbency.
PPKAL from a judgment of the District Judge of Kegalla.
N.. E. Weerasooria, K.C. (with him N. Nadarajah, K.C., and G. R.Guneratne), for the plaintiff, appellant.
H. V. Perera, K.C. (with him L. A. Rajapakse, K.C., and E. A. P.Wijeratne), for the first defendant, respondent.
Cur adv. vult.
April 16,1946. Jayetileke J.—
This is an action brought by the plaintiff for a declaration that he isentitled to the incumbency of the Hunugampola Vihare and for anorder that the defendants may be ejected from the vihare. The plaintiffsays that he is the rightful incumbent by right of succession as the seniorpupil of the last incumbent Guneratne Thero according to the law ofsuccession called Sisiyanu Sisya Paramparawe. The first defendant,who is also a pupil of Guneratne Thero, claims to be the incumbent byTight of appointment by his tutor. Guneratne Thero was ill for a periodof about three months and he died on August 25, 1942. He had fourpupils : the plaintiff, the second defendant, Seelaratne Thero, and thefirst defendant. The plaintiff as the senior pupil would be entitled to theincumbency if Guneratne Thero died without appointing a successor.The District Judge held that Guneratne Thero appointed the first defen-dant as his successor both orally and by a notarially attested documentbearing No. 20708 dated June 30, 1942 (Dl). It is unnecessary for usto go into the claim of the first defendant based on the oral appointmentby Guneratne Thero because it was not insisted on at the argument beforeus. Dl purports to be a gift of the temporalities to the first defendant,but the evidence shows that .one of the lands donated was the personalproperty of the donor. The plaintiff adnlitted that the vihare, preachinghall, the school and the sacred Bo-tree stand on the lands dealt with by
JAYETILEKE J.—.Tinarathana Thero v. Somaralne Thero.
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Dl. In D1 Guneratne Thero is described as the Vihare Adipathy ofHunugampola Temple, and the properties gifted are described as thosethat came to him from his tutor Sum an a Thero by pupillary succession.I>1 provides inter alia as follows :—
That the second defendant shall have the right to live atHunugampola Vihare during his life time and to be maintained out ofthe income of the lands donated to the 1st defendant.
That the first defendant should attend on Guneratne Theroand look after him during hia life time, cremate his body after hisdeath and perform the necessary religious rites ceremonies and charitiesfor the repose of his soul.
That the first defendant shall subject to the aforesaid conditionspossess the lands and improve them …. and lie shall havethe right to give the said lands on a similar instrument to any one ofhis pupils to succeed him as Vihare Adipathy (Chief Incumbent)if he so desires.
After the death of the first defendant, the said lands shall devolveon his pupils in pupillary succession.
Mr. Nadarajah contended that by Dl Gunaratne Thero has not appointedthe first defendant his successor.
In Saranankara Unnanse v. Indejoti1 a deed similar to Dl wasrelied on by one of the claimants to the incumbency and in the courseof his judgment De Sampayo J. said :
“ The case thus turns upon the rights of the third and fourth plaintiffsand with regard to them, the questions for determination are (1)whether they are the pupils of Sri Sumana Unnanse, and (2) whetherSri Sumana Unnanse, to whom Ratnapala Unnanse gave a deedof gift, was a pupil of the latter. These deeds take the form of atransfer of the property belonging to the temple and not of nominationof the grantor’s pupil or pupils as his successor or successors. Butno dispute has been raised on that score. Such deeds are not un-common, as witness the deed of gift put forward by the defendantthemselves. In most cases the defect is due to want of appreciationof the nature of the transaction or of professional skill on the part ofthe notary and I think that the deeds pleaded by the plaintiffs may betaken as being intended to gift the right of succession ”.
De Sampayo J. was a Judge of great experience and eminence and thoughthese observations are obiter they are entitled to great weight.
In an unnamed case from the District Court, Kurunegala2 and in Sum-angala Unnanse v. Sobita Unnanse?, the right of an incumbent to appoint bissuccessor by transferring the temple and lands to him has been recognised.It is, however, unnecessary for us to go into this question because thelanguage of Dl seems to us to indicate that Guneratne Thero meant toappoint the first defendant as his successor.
To interpret a deed, the expressed intention of the parties must bediscovered.
1 {1918) 20 N. L. R. 385.2 {1866) Vanderstraaten’s Reports Appendix F.
3 {1883) 5 S. C. C. 235.
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DE SILVA J.—Asia Umma «, Coder Lebbe.
In Moneypenny vs. Money penny1 Lord Wensleydale said :
“ The question is not what the parties intended to do by enteringinto the deed, but what is the meaning of the words used in the deed :a most important distinction in all cases of construction and thedisregard of which often leads to erroneous conclusionsIn Clayton v. OlengaU 8 Lord Denman C.J. said :
“ It is quite true I am not to conjecture or guess what might havebeen the intention of the parties but I am to consider the whole instru-ment if there is a plain intention to give interest, then, though thereshould be no express words to that effect, and this is the case of a deedyet I am bound to give that construction
In D1 there is a reference to the successor of the first defendant as thechief incumbent and a provision that the lands gifted shall devolve onthe pupils of the first defendant in pupillary succession unless the firstdefendant gifts them to one of his pupils. I am unable to comprehendhow the successor of the first defendant can become the chief incumbentunless the first defendant himself is the chief incumbent. In my viewthe words made use of by Guneratne Thero in DI contain a plainintention to appoint the first defendant as his successor to the incumbency.
The learned District Judge has, in my opinion, come to a correct con-clusion in this case. The appeal is accordingly dismissed with costs.Canekbbatne J.—I agree.
Appeal dismissed.