157-NLR-NLR-V-39-K.-DHAMMANANDA-v.-DAVITH-RANASINGHE.pdf
LORD THANKERTON.—K. Dhammananda v. Davith Ranasinghe. 567
[In the Priw Council.]
1937Present: Lord Thankerton, Lord Alness, and
Sir Lancelot Sanderson.
K.DHAMMANANDA v. DAVITH RANASINGHE.
Buddhist temporalities—Property acquired by incumbent on Crown grants—Succession to property—Title transmitted to succeeding incumbent—Prohibited bequests to temples—Proclamation of 1819.
Property dedicated to a Buddhist vihare is the property of the incum-bent for the time being, for the purposes of his office including his ownsupport and the maintenance of the temple and 'its services ; and on hisdeath it passes by a special rule of succession, which secures its trans-mission to the succeeding incumbent.
Land acquired by an incumbent on Crown grants and certificates ofquite possession may be similarly transmitted.
The proclamation of September 18, 1819, which makes it unlawful fora person to make a donation or a bequest to or for the use of a templedoes not apply to Crown grants.
An appellant cannot be permitted to raise for the first time in appealquestions which should have been put in issue at the trial so as to affordthe respondents the opportunity’of producing all the evidence available.
^^PPEAL from a judgment of the Supreme Court.
November 23, 1937. Delivered by Loro Thankerton.—
The appellant, who is defendant No. 1 in a suit for declaration of titleto land, appeals against a decree of the Supreme Court of the Island of** Ceylon, dated March 11, 1935, which affirmed a decree of the DistrictCourt of Colombo, dated July 26, 1933.
'The respondents brought the suit on September 5, 1929, as the trusteesof the temple called Pilikuttuwa Purana Vihare duly appointed underthe Buddhist Temporalities Ordinance, No. 8 of 1905. They asked fora declaration that nine contiguous allotments of land, eight of which aredescribed in the schedule attached to the plaint, and the ninth of whichis the land called Galkandahena described in paragraph 5 of the plaint,are the property of the said temple, and for quiet possession and damages.Of the six defendants, defendants Nos. 1 and 2 claimed as owners of thesuit properties,, the remaining defendants being their lessees. Thedefendants Nos.,1 and 2 claimed to have acquired the properties under adeed of March 30, 1928, executed in their favour by one Sonuttara, whomthey alleged to have been in possession by a title adverse- to andindependent of the temple for some thirty years.
In the trial Court the defendants disputed the validity of the appoint-ment of the respondents as trustees of the temple, but the District Judgeheld that their appointment was valid, and his decision was not challenged.In fact, before the date of trial the respondents’ term of office had expired,and the first respondent had been duly appointed as their successor underOrdinance No. 19 of 1931, and the decree was granted in his favour astrustee of the temple.
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568 LORD THANKJSRTON.—K. Dhammanamla v. Davith Ranasinghe.
The appellant, at the hearing of this appeal, felt bound to accept the:oncurrent findings of fact by the Cpurts below and it will be convenientto state shortly the relevant facts, which are either undisputed or havebeen concurrently found by these Courts.
The temple is a very old one ; early in the last century the chief priestwas one Sobitta Terunnanse. He had four pupils : (1) Sumangala AttadasiTerunnanse, (2) Kinigama Seelawanse Terunnanse, (3) Kondana, (4)Aturuwella Sonuttara Terunnanse, also' called Induruwella SonuttaraTerunnanse. On the death of Sobitta, apparently about 1862-65, hewas succeeded by Attadasi, who died on July 5, 1872.
On Attadasi’s death, without pupils, the succession fell to Seelawanse,who died in 1900.
There was some dispute as to whether Seelawanse was succeeded byhis pupil Kinigama Saranapala or Sonuttara, or both jointly. The trialJudge, after saying that it was unnecessary to decide the question, held,on the evidence, that it was proved that Saranapala became the chiefpriest. The Supreme Court, while appearing to accept this …finding,treated it as immaterial. In the opinion of their Lordships, it is im-material in'view of the concurrent findings as to the nature of the holdingof the suit properties by all the chief priests, including Sonuttara.
In any event, it is clear that, after the death of Saranapala in 1910,Sonuttara was the chief priest until his death in April, 1929.
The Courts below have concurrently found in fact that all the chiefpriests held and administered the suit properties as de facto trustees ofthe temple, and this finding disposed of the main contention of the appel-lant on the facts,- which included an allegation that Attadasi had made agift of the suit properties to Sonuttara before his death. Indeed, theappellant does not appear to have challenged the trial Judge’s findingson this matter in the Supreme Court, and appears to have confined hisargument to a question of law based on section 41 of the Ordinance No. 8of 1905, which provides as follows : —'
41. From and after the time- when this Ordinance shall come intooperation, it shall not be lawful for any temple, or for any person intrust for, or on behalf, or for the benefit of any temple, to acquire anyland or immovable property or any interest in any land or immovableproperty of the value of fifty rupees or upwards, unless the licence ofthe Governor under the public seal of the Island be obtained. And ifany person shall by devise, grant or conveyance, or otherwise purportor attempt to vest in any such temple on in any person or persons intrust, for or for the benefit or on behalf of any such temple, any land orimmovable property, or any interest therein,”of the value aforesaid,and such licence as aforesaid is not obtained, such land or property orinterest shall devolve, on, and become vested in, the lawful heir orheirs of such person, notwithstanding such devise, grant or conveyanceto the contrary ”.
It may be here noted that section 42 provides : —
“No alienation of movable or immovable property belonging to anytemple by sale, mortgage, gift, or otherwise between the date of the
LORD THANKERTON.—K. Dhammahanda v. Dapith Ranasinghe. 569
passing of this Ordinance and the appointment of trustee's to such
temple in manner herein provided shall be of any force or avail in law,
but the same shall be absolutely null and void
As already stated, the appellant* who is defendant No. 1, and defendantNo. 2 claim right to the suit properties under a deed of gift in their favourby Sonuttara, dated March 30, 1928. If the properties were validly heldby Sonuttara in trust for the temple, section 42 would render the deed ofgift null and void, as it was prior to the appointment of the statutorytrustees in 1929, and that apart from any question of breach of trust.
In the" plaint the plaintiffs claim that the title of the temple was byright of long and prescriptive possession. In their answer the defendantsclaimed that Sonuttara by possession adverse to the temple and all othersfor over thirty years prior to 1928 had acquired title to the properties.
Before the Supreme Court the appellant maintained that, in view ofsection 41 above quoted, neither the temple nor anyone on its behalfcould acquire a title by prescriptive possession. This contention, whichdoes not appear to have been submitted to the trial Judge, was rejectedby the learned Judges of the Supreme Court, on the ground that section 41did not apply to the acquisition of title by prescription, following certaindecisions of the Courts in Ceylon to which they refer.
Before their Lordships the appellant did not challenge this ground ofdecision of the Supreme Court, and their Lordships express no view as. toits soundness, and reserve any opinion on the question.
The only contention submitted by the appellant to their Lordshipswas an entirely new one, which he admitted had not hitherto been sub-mitted at any stage of the case, and which is not even mentioned in hiscase in this appeal. He contended that, in the absence of any proof ofthe necessary licences under section 41 of the Ordinance of 1905 or thecorresponding enactments which preceded it, having been obtained, thetemple were not entitled to the suit properties.
For the purpose of his argument he divided the properties into threegroups as follows : —
Group I.
No. 6 in the schedule. Acquired by Attadasi by a Crown Grant datedOctober 16, 1872, under the public seal of the Island.
No. 7 in the. schedule. Acquired by Attadasi under a similar grant ofthe same date.
• Group II.
No. 5 of the schedule. Certificate of Quiet Possession in favour ofAttadasi dated May .23, 1872.
Group III.
Nos. 1, 2, 3 and 4 of the schedule. Certificates of Quiet Possession infavour of Attadasi, all dated May 23, 1872.
No. 8 of the schedule. Certificate of title in favour of Saranapala^ aspurchaser at a sale dated August 30, 1898.■’'»
Galkandahena, referred to in paragraphs 5 and 6 of the plaint.Acquired by Seelawanse under a deed of exchange dated March2, 1896, in exchange for land called Lindamulawatta.
570 LORD THANKERTON.—K. Dhammananda v. Davith Ratiasinghe.
It will thus be seen that, with the exception of No. 8 of the scheduleand Galkancjahena, the titles date back at least to 1872. The certificatesof quiet possession are granted under clause 7 of Ordinance No. 12 of 1840.They certify that the Crown has no claim to the land,, of which the appli-cant for the certificate is in possession, and they are given with the consentof the Governor. Nos. 3 and 4 of the schedule are entered in the GrainTax Commutation Register of February 24, 1880, as the property ofthe temple. As regards'No. 5 of the schedule, it . is shown on title planNo. 32,084 .dated September 2, 1827, where it is described as “ a piece ofGovernment high ground called Wiharelande ” claimed by Sobitta.
It will be noted that section 41 of Ordinance No. 8 of 1905 only operated .after the Ordinance came into force. It superseded section 48 of Ordi-nance No. 3 of 1889, which was in identical terms. The matter wasregulated prior to 1889 by the Proclamation of September 18, 1819, whichprovided as follows
“ It has not been, nor shall be hereafter lawful to any inhabitant ofthese provinces to make either a donation or a bequest of any land, whatsoever to or for the use of any temple, whether vihare, dewala, orotherwise called, without having first signified to us, through theHonourable the Resident, or through any Resident Agent of Govern-ment, his or her desire to make such bequest or donation, and havingreceived a licence in writing to give or bequeath the saprte ; and any• land given or bequeathed contrary to this order shall not be consideredas the property of a temple, but shall be given to the nearest heir ofthe person who has disobeyed the law by attempting to give andbequeath such land, provided he sues for the same before the JudicialCommissioner or Agent of the Government within twelve months fromthis date, or from the date of such gift or bequest, or from the time thepossession has been taken for any temple ; or else the land shall becomeforfeited to the Crown ”.
It will be noted that this provision only applies to bequests and gifts,$nd also that it does not apply to Crown grants.
The appellant pointed out that none of the Crown writs or certificatesof quiet possession were in favour of the temple, but in favour of the chiefpriest as an individual, though he was in each case described as a priest.But it must be remembered, as pointed out by the Supreme Court, whocite the authorities, that in the Island property dedicated to the vihareis the property of the incumbent for the time being, for the purposes ofhis office, including his own support and the maintenance of the templeand its services, and that, on his death, it passes by a special rule ofsuccession, which secures its transmission to the succeeding incumbent.In the present case, it is evident that the suit properties were so ttans-mitted. In his reply to the address of the respondents’ Counsel to theirLordships, the appellant’s Counsel confined his claim to three of the suitproperties, viz., Nos. 5, 6, and 7 of the schedule.
Their Lordships, however, are of opinion that the contention thusraised by the appellant for the first time involves questions of fact, namely,whether licences were necessary at the date on which each property was
571
HEARNE J.—Kern v. Wickremesinghe.
acquired, and, if so required, whether they were obtained. The appellantcannot be permitted at this late stage to raise questions which' shouldhave been put .in issue at the trial, so as to afford the respondents theopportunity of recovering and producing all the evidence available.
Their Lordships will therefore humbly advise His Majesty that theappeal should be dismissed with costs.
Appeal dismissed.