021-SLLR-SLLR-1999-V-2-KALEGAMA-ANANDA-THERO-v.-MAKKUDDALA-GNANISSARA-THERO.pdf
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KALEGAMA ANANDA THERO
v.
MAKKUDDALA GNANISSARA THERO
SUPREME COURTG. P. S. DE SILVA, CJ„
PERERA, J. ANDWIJETUNGA, J.
S.C. APPEAL NO. 74/95
A. NO. 468/84 (F)
C. KEGALLE NO. 1291/LMARCH 8, 9, AND 11, 1999
Buddhist Ecclesiastical Law – Viharadhipathiship of a temple – Abandonment ofViharadhipathiship – Plea of abandonment – Burden of proof.
The original plaintiff instituted action against the defendant seeking a declarationthat he was the Viharadhipathi of Lendaramulla Vihare which was an appurtenenttemple of Helamada Vihare. The plaintiff claimed as the surviving senior pupilof Pemananda Thero who resided at the Helamada temple and died on 6.1.75.The defendant claimed under Dhammajothi Thero who was himself a pupil ofPemananda Thero and would have succeeded to the Viharadhipath ship ofLendaramulle Vihare but for the fact that he predeceased Pemananda Thero, in1966. Dhammajothi Thero was resident at the Lendaramulla Vihare and was infact in charge of its affairs. The defendant based his claim on the plea that inview of the evidence given by Pemananda Thero in an action filed by DhammajothiThero in 1939 for the ejectment of a trespasser from a land belonging to theLendaramulle Vihare, Pemananda Thero had abandoned the Viharadhipathishipof Lendaramulle Vihare, in favour of Dhammajothi Thero. In the course of hisevidence (marked V1) Pemananda Thero had said that he recognised DhammajothiThero as the Viharadhipathi of the temple and made no claim to theViharadhipathiship.
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Held:
There is a strong presumption against abandonment of the legal right ofa lawful Viharadhipathi. “Abandonment" means desertion of the temple, vizgiving up of the temple coupled with a clear manifestation of a decisonnot to attend to the functions and duties of such office. Whether a person,who was in law entitled to succeed to the incumbency has so conductedhimself is a question of fact. Such conduct must be conscious, deliberate,and must be clearly established and should not be left in doubt.
The burden is entirely on the defendant to establish by clear, cogent andconvincing evidence that Pemananda Thero abandoned his rights to theoffice of Viharadhipathi of Lendaramulla Vihare.
The evidence of Pemananda Thero relied upon showed that his intentionwas merely to protect the property of the temple by supporting the casefiled by his pupil. On the other hand subsequent documents such asUpasampada declarations and deeds of purchase in favour of DhammajothiThero showed that Pemananda Thero continued as the Viharadhipathi ofboth Helamada and Lendaramulla temples. The evidence reflected no morethan the de facto position, namely that Dhammajothi Thero being residentat Lendaramulla Vihare was in fact in charge of its affairs.
Cases referred to:
Dhammaratne Unnanse v. Sumangala Unnanse (1912) 14 NLR 400, 407.
Welakanda Dhammasiddi v. Kamburuoitiya Somaloka Thero (1990) 1 SriLR 234.
APPEAL from the judgment of the Court of Appeal.
N. R. M. Daluwatte, PC with Daya Guruge for defendant-appellant.
P. A. D. Samarasekera, PC with Keerthi Sri Gunawardana for substituted
plaintiff-respondent.
Cur. adv. vult.
May 24, 1999.
P. S. DE SILVA, CJ.
The original plaintiff (Ariyagnana Thero) instituted these proceedingsin November, 1975, against the defendant (Ananda Thero) seekinga declaration that he is the Viharadhipathi of the LendaramullaWatudeniya Vihare (Lendaramulla Vihare) and for the ejectment ofthe defendant from the Vihare.
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It is common ground that Tekewe Ratnajothi Thero was at onetime the Viharadhipathi of Lendaramulla Vihare (the temple indispute) and also of the Helamada Vihare which is the main Vihare.Upon the death of Ratnajothi Thero on 27.10.1927, his senior pupilPohorambe Gnanissara Thero became the Viharadhipathi of both theVihare in dispute and the Helamada Vihare. Pohorambe GnanissaraThero died in 1928 and upon his death his senior pupil PemanandaThero became the Viharadhipathi. Pemananda Thero was theViharadhipathi of several temples including Helamada Vihare and theLendaramulla Vihare. Pemananda Thero resided at the main temple,the Helamada Vihare. Pemananda Thero died on 6.1.75. His seniorpupil Dhammajothi Thero, under whom the defendant claims his rightto the Viharadhipathiship of Lendaramulla Vihare, died on 5.3.66. Inother words, Dhammajothi Thero predeceased his tutor PemanandaThero. Upon the death of Pemananda Thero on 6.1.75 his survivingsenior pupil was Ariyagnana Thero, the original plaintiff in this case.It is to be noted that it is now not in dispute that upon the deathof Pohorambe Gnanissara Thero, his senior pupil Pemananda Therobecame the Viharadhipathi of the main temple, Helamada Viharaya,and the temple in dispute, the Lendaramuila Viharaya. DhammajothiThero did not survive his tutor Pemananda Thero and thus could notsucceed to the Viharadhipathiship of his tutor's temples. Therefore,it was the original plaintiff (Ariyagnana Thero), the senior survivingpupil of Pemananda Thero who had the right of succession to theViharadhipathiship of the temple in dispute, Lendaramulla Vihare.
The claim of the defendant to be the Viharadhipathi of LendaramullaVihare is under Dhammajothi Thero. As stated earlier, DhammajothiThero was himself a pupil of Pemananda Thero and would havesucceeded to the Viharadhipathiship of Lendaramulla Vihare but forthe fact that he died in 1966 before the death of his tutor PemanandaThero. The case for defendant is that Pemananda Thero abandonedthe Viharadhipathiship of Lendaramulla Vihare and that he recognisedDhammajothi Thero as the lawful Viharadhipathi of LendaramullaVihare. Therefore, the crucial issue in the case is whether PemanandaThero abandoned the Viharadhipathiship of Lendaramulla Vihare onor about 16.6.1934 and recognised Dhammajothi Thero as the lawfulViharadhipathi of Lendaramulla Vihare. The District Court answeredthe issue of “abandonment" in favour of the defendant and dismissedthe plaintiff's action. The Court of Appeal allowed the plaintiff's appealon the ground that the defendant failed to establish his plea of
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“abandonment". Hence the present appeal by the defendant to thisCourt.
Mr. Daluwatte for the derfendant-appellant submitted that the casefor the defendant rested entirely on the plea of "abandonment", andthis plea was based on the evidence given by Pemananda Thero in1939 before the Court of Requests, Kegalle, in case No. 11811. Theevidence has been marked as V1 and the decree as M2. The plaintiffin that action was Dhammajothi Thero who was described in thecaption as "Incumbent priest of Lendaramulla Vihare". The action wasinstituted for the ejectment of a trespasser from a land belonging tothe Lendaramulla Vihare. Dhammajothi Thero was successful in theaction. He called as his witness Pemananda Thero who stated thathe was the Viharadhipathi of the Helamada temple and proceededto testify as follows:
“ I recognise him (ie Dhammajothi Thero) as the rightfulViharadhipathi of the temple (ie Lendaramulla Vihare). I make noclaim to the Viharadhipathiship."
It is upon this evidence that Mr. Daluwatte placed the utmostreliance in support of the defendant's plea of "abandonment". I mayadd that it is upon this evidence that the District Court held in favourof the defendant and dismissed the plaintiff's action.
Mr. Daluwatta strongly urged both in his oral and detailed writtensubmissions that the testimony set out above was a solemn statementmade by Pemananda Thero in judicial proceedings under affirmation.In support of the plea of abandonment Mr. Daluwatte strenuouslycontended (a) that the aforesaid evidence constituted an “expressabandonment" (as opposed to an "implied abandonment"); (b) thatthe evidence on record (which was accepted by the Trial Judge)showed that Pemananda Thero never functioned as Viharadhipathi ofthe Lendaramulla Vihare after he gave evidence in Court in 1939 andeven for some time before 1939; (c) that the consent decree V5dated 26.3.64 entered in DC Kegalle case No. 15047 is anothersignificant instance where Dhammajothi Thero asserted his rights asViharadhipathi of Lendaramulla Vihare and sought the ejectment oftwo laymen from land belonging to the Vihare; (d) that in terms ofsections 18 and 20 of the Buddhist Temporalities Ordinance it is the"controlling viharadhipathi" who is entitled to sue in respect of propertybelonging to the Vihare and so it was Dhammajothi Thero (and
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not Pemananda Thera) who instituted the actions in respect ofLendaramulla Vihare land.
What is meant by the expression "abandonment"? As submittedby Mr. Daluwatta, the concept of abandonment is known to theRoman Dutch Law. “An abandoned thing is something which its ownerhas thrown away or discarded with the intention of relinquishinghis ownership. . ." Wille, Principles of South African Law, 8th editionpage 283. In Buddhist Ecclesiastical Law there is a strong presumptionagainst the abandonment of the legal right of the lawful Viharadhipathito function as the Viharadhipathi of the Vihare. Upon a considerationof the opinions of several scholar monks Wood Renton, J. inDhammaratna Unnanse v. Sumangala UnnanseP) expressed himselfin the following terms:
“The weight of the expert testimony decidedly supports the viewthat a right of pupillary succession will be forfeited if the pupildeserts his tutor and the temple the incumbency of which heclaims." (emphasis added). Referring to the case of Punnanandav. Weliwitiya Soratha, 51 NLR 372 Gunasekera, J. pointed out inMapalane Dhammadaja Thero v. Rotumba Wimalajothi Thero, 79NLR volume I 145 at 193 that it is not the renunciation of theright to function as Viharadhipathi but the desertion of the Viharewhich constitutes "a forfeiture".
His Lordship Chief Justice Ranasinghe in Welakanda Dhammasiddiv. Kamburupitiye Somaloka Therom reviewed several decisions whichdealt with the plea of "abandonment" and concluded as follows atpage 243:
"On a consideration of the principles elucidated in the foregoingjudgments of the Supreme Court, in regard to this aspect of theBuddhist Ecclesiastical Law, it would seem that, what works theforfeiture of the right to an incumbency is the abandonment of thetemple, the incumbency of which is in dispute: that, in determiningwhether or not such an abandonment has taken place, a renun-ciation by him, who was, in law entitled to succeed, is an importantitem of evidence: abandonment connotes both a physical and amental element: it means and requires both a giving-up of or goingaway from the temple, coupled with a clear manifestation of adecision not to attend to the functions and duties which are tra-ditionally associated with and are expected to be performed by
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one who holds such office: whether a person, who was, in law,entitled to succeed to the incumbency, has so conducted himselfis a question of fact: that such conduct must be conscious, deliberate,and must be clearly established and should not be left in doubt."
As submitted by Mr. Samarasekera for the plaintiff-respondent,there is one other relevant matter which must not be overlooked inconsidering the plea of abandonment, namely, the burden of proof.The legal title to the Vihare was in Pemananda Thero and thereafterin the original plaintiff. There is no burden on the plaintiff to provethat Pemananda Thero resided at the Lendaramulla Vihare or thathe exercised his lawful rights as Viharadhipathi. The burden is entirelyon the defendant to establish by clear, cogent and convincing evidencethat Pemananda Thero completely gave up all his rights to the officeof Viharadhipathi and that there was a total severance of his asso-ciation with the Lendaramulla Vihare. The question then is, has thedefendant discharged the burden that lies on him?
The foundation of the case for the defendant is in the evidenceof Pemananda Thero (V1) referred to above. This evidence, however,has to be considered in the context of the relationship that existedbetween Pemananda Thero the tutor and his pupil Dhammajothi Thero.Mr. Samarasekera stressed the fact that there is ample evidence (andindeed it is common ground) to show that the relationship betweenthe tutor and his pupil was close, warm and cordial at all materialtimes. It is in evidence that Pemananda Thero permitted DhammajothiThero to maintain a dispensary on a land at Polgahawela belongingto Pemananda Thero. When cross-examined about the actions filedin the Court of Requests (V1 and V5) the defendant stated that itwas the intention of both Pemananda Thero and Dhammajothi Theroto protect the property belonging to the temple. This is an admissionwhich throws light on the true reason for the institution of the actionsin the Court of Requests. In other words, Pemananda Thero gaveevidence in support of the case filed by his pupil in order to safeguardproperty belonging to Lendaramulla Vihare. This certainly was not acase where the issue of Viharadhipathiship arose for consideration.It is to be noted that the decree V2 merely declares that the propertybelongs to the temple. It seems to me that it is somewhat unrealto seize upon the literal meaning of the words used by PemanandaThero in his evidence (V1) and conclude that Pemananda Thero hasrenounced his legal rights to the office of Viharadhipathi. A properevaluation of the evidence (V1) necessarily involves due weight being
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given to the purpose of the action and the prevailing cordialrelations between tutor and pupil. It seems to me, therefore, thatMr. Samarasekera's submission that Pemananda Thero had givenevidence relied on by Dhammajothi Thero solely to safeguard aproperty of the temple is well founded.
Besides, the documentary evidence tends to weaken the defend-ant's case of “abandonment." V6 is the Upasampada Declaration dated28.5.43 of the original plaintiff. In column 19 of V6 it is stated thatPemananda Thero is the Viharadhipathi of both the Helamada andLendaramulla temples. Pemananda Thero has signed V6 as the tutorwho presented the original plaintiff for ordination. V6 shows thatPemananda Thero was the viharadhipathi of the Lendaramlla Vihareeven in 1943. P2 is the Upasampada Declaration of MakuddalaGnanissara dated 3.6.68 wherein Pemananda Thero is described asViharadhipathi of the Helamada and Lendaramulla temples. There arethe two deeds V3 and V4 which are deeds of purchase in favourof Dhammajothi Thero. V3 was executed in 1960 and V4 in 1948.In neither V3 nor V4 is Dhammajothi Thero described as theViharadhipathi of Lendaramulla Vihare. The omission is undoubtedlyof significance.
Upon a consideration of the evidence the Court of Appeal hasconcluded that "Pemananda Thero's subsequent conduct as evidentin the aforesaid documents is a manifestation of his claiming rightsin the Viharadhipathiship of the Vihare in dispute. Such conduct doesnot establish a complete giving up of his claim to the Viharadhipathishipof the Vihare in dispute." (emphasis added). This finding is reasonableand is supported by the evidence in the case. Moreover V1, whichis the basis of the defendant's case, when viewed in the context ofthe other documentary evidence reflects no more than the de factoposition, namely that Dhammajothi Thero being resident at theLendaramulla Vihare was in fact in charge of its affairs. I accordingly,hold that the defendant's plea of “abandonment'' fails.
For these reasons, the judgment of the Court of Appeal is affirmedand the appeal is dismissed but without costs.
PERERA, J. – I agree.
WIJETUNGA, J. – I agree.
Appeal dismissed.