092-NLR-NLR-V-54-K.-GUNARATNE-THERO-Appellant-and-W.-S.-NAYAKE-THERO-Respondent.pdf
GRATLAEN" J.—Ounaratne Thero v. Nayake Thero
391
1952Present : Gratiaen J. and Gunasekara J.K.GUNARATNE THERO, Appellant, and W. S. NAYAKETHERO, Respondent
S. C. 331—D. C. Kalutara, 27,182
Buddhist Temporalities Ordinance (Cap. 222)—Section 2-—Meaning of expression“ Temple ”.
Where a Buddhist temple, when its premises were under military occu-pation, suffered damage owing to substantial demolition of the buildings,the interval during which it became temporarily unfit, for use as a place ofworship cannot be said to have destroyed either its identity as a temple orthe status of its incumbent.'
j^LPPEAL from a judgment of the District Court, Kalutara.
N. E. Weerasooria, Q.G., with W. D. Gunasekera, for the defendantappellant.
B. Wikramanayake, Q.C., with V. T. de Zoysa and D. JR. P. Goone-tiUeke, for the plaintiff respondent.
Cur. adv. vult.
June 17, 1952. Gratiaen J.—
The plaintiff sued the defendant on 20th December, 1948, for a decla-ration that he was the incumbent of a Buddhist temple by right ofpupillary succession to the original incumbent who died in December,1933. The defendant disputed this right and pleaded in the alternativethat “ the said temple does not now exist ”, so that an action could notin any event lie for a declaration in respect of an allegedly non-existenttemple.
392
Girt.ATIAEN J.—Q-wnaratne The.ro -o. Na-yake Thero
The learned. Judge, after a very careful analysis of the evidence inthe case, held that the plaintiff had lawfully succeeded to the incumbencyupon the death of the original incumbent, and that he had officiatedin that office until the entire premises appertaining to the temple wererequisitioned by the Crown in 1942 for purposes connected with theprosecution of the war. The premises were de-requisitioned in or aboutFebruary, 1948, and were returned to the plaintiff.
The only question which was argued before us was whether, havingregard to the events which occurred during the period when the premiseswere under military occupation, the temple had so completely lost itsidentity and character as a “ temple ” within the meaning of section 2of the Buddhist Temporalities Ordinance (Cap. 222) that the plaintiffbecame divested of his incumbency in consequence ; and if so, whether,after the period of de-requisition was terminated, the character of thetemple and the status of the plaintiff had not been sufficiently, if notcompletely, restored so as to justify a declaratory decree in relationthereto.
On this issue the learned Judge has decided in favour of the plaintiff.He took the view that although the substantial demolition of the build-ings by the military authorities had rendered the temple temporarilyunfit for use as a place of worship at the time when the premises wererestored to the plaintiff, the damage was by no means irreparable.The plaintiff had in fact commenced the work of restoration in May,1948, but was prevented from bringing it to completion by an interiminjunction issued against him at the defendant’s instance. The learnedJudge was also satisfied that neither the plaintiff nor the other priestshad ever formed an intention to abandon the temple permanently.In these circumstances, he decided that the plaintiff was entitled to hisdeclaratory decree. I have not been able to discover any legal principlewhich compels me to reject this view which has the merit of beingentirely reasonable.
It is certainly correct to say that, at the time when the militaryauthorities restored the premises to the plaintiff, most of the buildingsappertaining to the temple had either been effectively demolished orat least rendered uninhabitable for the time being. It is very clear,however, that the plaintiff, as its incumbent, took upon himself mostenergetically to undertake the work of restoration. A small temporaryavasa was hastily improvised, and an image was kept there. Never-theless, it was conceded that persons professing the Buddhist faith hadnot yet resumed the habit of resorting to the premises as a place ofworship.
The definition of a “ temple ” in section 2 of the Ordinance includesobjects of Buddhist worship and “places of Buddhist worship5'. AsBasnayake J. pointed out in Romanis Fernando v. Wimaldsiri Theroxno particular type of buildings is necessary to constitute a temple.That decision was concerned with a place where a temple had beenestablished by gradual stages on a site acquired for that special purpose.We are here concerned with the converse case, in which a long-established1 (1951) 53 N. L. R. 245 ; 45 C. L. W. 47.
Siyado'is v. Peter Singho
393
temple, controlled and administered by its lawful incumbent, had throughnecessity ceased for a period to function effectively as such. I cannotconceive that the law requires us to regard this comparatively briefinterlude as having destroyed either the identity of the temple or thestatus of its incumbent who clearly intended to restore the status quoas soon as it was practicable to do so.
This action is concerned only with the plaintiff’s right to hisecclesiastical office and not with the temporal affairs of the temple.But it is important to bear in mind that, appertaining to that office, arecertain important rights and, indeed, duties of administration andcontrol. Terunnanse v. Terunnanse1. If it be the duty of an incumbenttT keep the vihare and the other appurtenances of his temple in goodorder and repair, and presumably to take the necessary steps to procurethe restoration of any buildings that have been destroyed by some out-side agency, I cannot see why even the complete demolition of a “ temple ”must necessarily operate to divest the incumbent of his office.
I would dismiss the appeal with costs, but I desire to say this inconclusion. The judgment which should in my opinion be affirmeddoes not proceed from any adjudication as to whether or not the propertybelonging or appertaining to the temple is vested in the plaintiff. Nordoes it decide that the plaintiff is the person entitled to receive the-compensation payable by -the Grown for any damage sustained whenthe temple premises were under requisition. Should any dispute arisehereafter in regard to any of those matters, I assume that the rights andduties of the Public Trustee, who is entrusted with special supervisorypowers under the Ordinance, would prominently arise for considerationby the appropriate Court.
Gtotasekaba J.—I agree..
Appeal dismissed.