Sri Lanka Law Reports
(1998) 2 Sri L.R.
KAMPANE GUNARATNA THERO
MAWADAWILA PANNASENA THERO
SUPREME COURTG. P. S. DE SILVA, CJ„
WIJETUNGA, J. ANDGUNASEKERA, J.
S.C. APPEAL NO. 3/97
A. NO. 18/89 (F)
C. COLOMBO CASE NO. 4975/ZL
6TH AND 18TH MAY AND 12TH JUNE, 1998.
Buddhist Temporalities – Claim of Viharadhipathi to a temple – Temple propertynot dedicated to Sangha according to vinaya – Deed "of dedication’ not accom-panied by the requisite religious ceremony – Maintainability of the action.
The plaintiff sued the defendants for a declaration that he is the lawful Viharadhipathiof the temple known as Mahajana Rajaramaya, for ejectment of the defendantsfrom the temple premises and for recovery of possession of the same. The templewas constructed on an allotment of crown land which had been leased to theTrustees of a Buddhist Association for the purpose of constructing a Buddhisttemple and dedicating it to the Sangha after which it was stipulated that the lessorwill issue a fresh lease of the land for 99 years in favour of the trustee or thecontrolling Viharadhipathi of the temple. The temple was constructed and a deed"of dedication" was executed with the approval of the Government Agent and theCommissioner of Buddhist Affairs. The deed appointed the plaintiff as theViharadhipathi of the temple.
The fact that a deed "of dedication" was executed with the full authorityof the state did not by itself, render the temple a Sanghika Viharaya whichwas the basis of the plaintiffs action. A mere claim to the office ofViharadhipathi independently of the title to the temple and temporalities isuntenable.
As the deed “of dedication" had not been accompanied by a solemnceremony in the presence of 4 or more monks representing the "SarvaSangha" or “entire priesthood", as prescribed in vinaya, the temple and itsproperty did not become-Sanghika property. The title to the property remains
1 with the State. In other words, the property remains “Gihi Santhaka”.
Kampane Gunaratna Thero v. Mawadawila Pannasena Thero
(G. P. S. de Silva, CJ.)
Cases referred to:
Wickramasinghe v. Unnanse 22 N.LR. 236 at 239. 242.
Wijewardena v. Buddharakkita Thero 59 N.LR. 121 at 125.
Mapalane Dhammadaja Thero v. Rotumba Wimalajothi Thero 79 N.LR.(Vol. 1) 145 at 163 and 164.
APPEAL from the judgment of the Court of Appeal.
P. A D. Samarasekera, PC., with 6. L Geethananda for the plaintiff-appellant.
T. B. Dissanayake, PC., with B. Coswatte and Nihal Samarasinghe for the 1stdefendant-respondent.
Cur. adv. vult.
June 30, 1998
P. S. DE SILVA, CJ.
The plaintiff instituted these proceedings in June, 1985 and prayedfor the following reliefs: (a) a declaration that he is the lawfulViharadhipathi of the temple known as Mahajana Rajaramaya, Rajagiriya;(b) that the defendants be ejected from the temple and premisesdescribed in the schedule to the plaint and the plaintiff be placed inpossession thereof. The schedule to the plaint sets out an allotmentof Crown land depicted as parts of lots 20, 22 and 47 in P. P. 20394.
After trial, the District Court held that the plaintiff was entitled toa declaration that he is the lawful Viharadhipathi of the temple andto a decree in ejectment against the 1 st defendant (The 2nd defendanthad already left the temple). Upon an appeal preferred by the 1stdefendant, the Court of Appeal allowed the appeal and set aside thejudgment of the District Court. The finding of the Court of Appeal wasthat there was no valid dedication of the temple to the MahaSangha, that the absolute title to the land remained with the State,and therefore the plaintiff could not have and maintain this action.
Against the judgment of the Court of Appeal, the plaintiff has lodgedthe present appeal. Special leave to appeal was granted by this courtupon the following principal question. “Whether there was a validdedication of the temple constructed on the land leased by the State,although (a) such dedication was by the lessees acting with theauthority of the State, and (b) the contemplated future lease was for99 years only.
Sri Lanka Law Reports
(1998) 2 Sri LR.
Mr. Samarasekera for the plaintiff-appellant submitted, (1) that thequestion whether the temple is a “Sanghika" temple is completelyirrelevant to the decision of this case; (2) the crucial issues werewhether a temple called the Mahajana Rajaramaya was constructedby the trustees on the land admittedly leased by the State and, ifso, who is the lawful Viharadhipathi of the temple (i.e. is it the plaintiffor the 1st defendant?); (3) that the plaintiff never sought a declarationof title to the land; he sought a declaration only to the office ofViharadhipathi.
On the other hand, Mr. T. B. Dissanayake for the 1st defendant-respondent contended (a) that on a consideration of the avermentsin the plaint, the documents relied on by the plaintiff, and the oralevidence of the plaintiff, it is clear that the case for the plaintiff isthat he is the Viharadhipathi of a Sanghika temple; (b) that therewas no dedication in terms of the Vinaya and the temple remained"Gihi Santake" (lay property); (c) this action necessarily involved aclaim of title to property although this was not expressly averred inthe plaint; (d) the action as framed was misconceived in law.
In order to consider the rival contentions, it is necessary to setout in detail the averments in the plaint.
Paragraphs in the plaint—
"(2) By Indenture of Lease dated 17th October, 1960, theGovernment of Ceylon granted a lease of a parcel of Crown landin extent two roods (AO. R2. PO) more fully described in theschedule to the plaint to Rev. Wadhibasinghe BalapitiyeDhammananda, Manameldura Piyadasa de Zoysa and EdwardBandula Abeysekera, the Trustees of the Association called BauddhaSanskarna Samwardhana Society on a rental of Rs. 37.50 perannum. (Indenture of lease was marked as P2 at the trial).
(3) Inter alia the said lease contained the conditions that theland demised was to be used for the purpose of building a BuddhistTemple to be dedicated to the Sangha and a Bhikku will be incharge and control of the Temple, subject to the approval by thePublic Trustee of Ceylon or any other Officer who may be entrustedwith the supervision of Buddhist Temporalities.
SC Kampane Gunaratna Thero v. Mawadawila Pannasena Thero
(G. P. S. de Silva, CJ.)199
In accordance with the terms and conditions of the saidlease which is produced herewith marked "A" and pleaded as partand parcel of the plaint the Trustees of the said Society, thelessees, constructed the buildings on the leased property whichis now known and referred to as "MAHAJANA RAJARAMAYARAJAGIRIYA".
The Government Agent of Colombo by his letter dated 25thMay, 1982, requested the Secretary of the Bauddha SanskaranaSamwardhana Society to forward a letter addressed to theCommissioner of Buddhist Affairs expressing the consent of theTrustees to dedicate the temple to the Mahasangha and name aperson as Viharadhipathi.
Further the Government Agent of Colombo by the said letterrequested the Secretary of the said society to forward to him threecopies of a draft of a Deed of Dedication duly completed asindicated by him. A copy of the said draft of the Deed of Dedicationis annexed hereto marked "B" and is pleaded as part and parcelof this plaint. (The draft Deed of Dedication was produced at thetrial marked P3).
On 15th September, 1982, the Commissioner of BuddhistAffairs approved the draft of the Deed of Dedication and instructedthe Secretary to get a Notary to attest the Deed of Dedication intriplicate and get it registered.
In compliance with the directions of the Commissioner ofBuddhist Affairs and in terms of the condition 3 (c) of the leasemarked "A" the Deed of Dedication No. 2022 of 4th December1983 was executed by the Trustees of the Society. (The Deedof Dedication was marked P4 at the trial).
By the said deed the temple known and called MahajanaRajaramaya was dedicated to the Mahasangha and the plaintiffwas duly and lawfully appointed as the first Viharadhipathi thereof.
(12) From about September, 1982, the two defendants jointlyand severally disputed the rights and title to the Viharadhipathishipof the temple by not allowing the plaintiff to enter the temple toperform his duties and functions as the lawful Viharadhipathi.
Sri Lanka Law Reports
(1998) 2 Sri L.R.
(15) This temple is exempted from the operation of s. 4 (1)
of the Buddhist Temporalities Ordinance, Chapter 318, L.E.C."
It is to be noted that paragraph 3 of the plaint speaks of a Buddhisttemple to be constructed on the land (taken on lease from the State)and it is to be dedicated to the Sangha. Further, there is the avermentthat there will be a Bhikku "in charge and control of the temple".Section 20 of the Buddhist Temporalities Ordinance provides that “allproperty, movable and immovable, belonging or in anywise appertain-ing to or appropriated to the use of any temple . . . shall vest inthe trustee or the controlling Viharadhipathi for the time being of suchtemple . . It seems to me that the submission of Mr. Dissanayakethat the averments in paragraph 3 attract the provisions of section20 of the Buddhist Temporalities Ordinance is well-founded.Mr. Dissanayake further pointed out that the exemption from theoperation of section 4 (1) of the Buddhist Temporalities Ordinancepleaded in paragraph 15 is the usual pleading in a straight forward"Viharadhipathiship case". Although Mr. Samarasekera submitted thatthe Buddhist Temporalities Ordinance does not necessarily deal onlywith Sanghika property, yet the view taken in the decisions of thisCourt are to the contrary. As far back as 1920, Shaw, A.C.J. inWickremasinghe v. Unnanse01 observed "… I do not think that theordinance is intended to apply to premises that are private property".Again, His Lordship Chief Justice Basnayake in Wijewardena v.Buddharakkita Thera® stated: "The Buddhist Temporalities Ordinancedeals with Sanghika property which has been dedicated to the Sanghaof a particular Vihare. It declares that such property is vested in thetrustee or controlling Viharadhipathi of the Vihare".
Similarly paragraphs 5 and 6 speak of dedication to the MahaSangha and paragraph 10 explicitly avers that: "By the said deed (i.e.the Deed of Dedication P4) the temple known and called MahajanaRajaramaya was dedicated to the Maha Sangha and the plaintiffwas duly and lawfully appointed as the first Viharadhipathi thereof."
Turning now to the documents, it seems to me that the documentstoo are on the basis that the temple is dedicated to the Maha Sangha.This is evident from the definition of the expressions "trustee" and"Viharadhipathi" in clauses 3 (b) and (c) of the lease P2. Trustee isdefined as "a trustee of the temple appointed under the provisionsof the Buddhist Temporalities Ordinance". The term Viharadhipathi
SC Kampane Gunaratna Thero v. Mawadawila Pannasena Them
(G. P. S. de Silva, CJ.)201_
in P2 is also defined in terms similar to the concept of the "ControllingViharadhipathi" referred to in section 4 (2) of the Buddhist Tempo-ralities Ordinance. In the draft Deed of Dedication P3 there are severalreferences to the fact of dedication to the "Maha Sangha" and thedeed itself is on the basis that the dedication of the temple is to theMaha Sangha. The Deed of Dedication P4 is in the same terms andit clearly states that the "dedication" of the temple is accepted by theplaintiff on his own behalf and on behalf of the Maha Sangha.
Upon a consideration of the oral evidence of the plaintiff himselfit is clear that his position too is that the temple is a Sanghika temple.The material part of his evidence in examination in chief reads asfollows (as translated) :
Q. Is this place (i.e. temple) Sanghika?
A. Now it is Sanghika.
Q. Since when is it Sanghika?
A. Since the date of the dedication to me. . . .
Q. This was given to you as a Sanghika gift?
A. As a Sanghika gift.
Q. You say you are the Adhipathi of Sanghika property?
Q. How was it rendered Sanghika?
A. It was the intention of the Dayaka Sabha. It was sodeclared.
Having regard to the averments in the plaint, the documents P2,P3 and P4 and the oral testimony of the plaintiff himself, I hold thatthe plaintiff has instituted this action on the basis that the temple calledMahajana Rajaramaya is a Sanghika temple. “It is by a gift that atemple or any other property can become Sanghika, and the veryconception of a gift requires that there should be an offering ordedication . . . until a dedication takes place the temple remains 'gihisanthaka' (lay property). This dedication may take the form of a writingor may be verbal but in either case it is a formal act, accompaniedby a solemn ceremony in the presence of 4 or more priests whoapparently represent the 'Sarva Sangha' or entire priesthood' “per DeSampayo, J. in Wickremasinghe v. Unnanse (supra). His LordshipChief Justice Basnayake cited Wickremasinghe's case (supra) inWijewardena v. Buddharakkita (supra) and stated: "No property canbecome Sanghika without such a ceremony … A temple or any
Sri Lanka Law Reports
(1998) 2 Sri LR.
other property given to the Sangha must be dedicated in the mannerprescribed in the Vinaya. Then and then only can it become Sanghikaproperty", (at pages 124 and 125). In the present case there is noproof of a “dedication" in the manner prescribed in the Vinaya. Thefact that the State validly leased the property to the "Trustees" in termsof the Crown Lands Ordinance for the purpose of constructing a templeand that a deed "of dedication" (P4) was executed with the full authorityof the State do not render the temple a Sanghika Vihara. Thecontemplated lease for a period of 99 years would make no differenceat all, for the title to the property still remains with the State. In otherwords, the property remains "Gihi Santhaka". The essence of a validdedication is that the property must cease to be "Gihi Santhaka";the dedication must be in terms of the Vinaya.
Finally, Mr. Samarasekera's contention that the present action wasonly for a declaration to the office of Viharadhipathi is not acceptable.As stated earlier the relief prayed for included ejectment and an orderfor restoration of possession. These reliefs attract a claim to property.As submitted by Mr. Dissanayake, the rights attached to the officeof Viharadhipathi necessarily involve rights to immovable property.Mr. Dissanayake very relevantly cited the following passage from thejudgment of Pathirana, J. in Mapatane Dhammadaja Thero v. RotumbaWimalajothi Thero(3>. "The temple which is the symbol of the officeof Viharadhipathi and its appurtenances which include the residentialquarters of bhikkus all stand on immovable property. The questionof title to all these is involved in an action for the Viharadhipathishipof a temple, not to mention that the title to its temporalities all ofwhich by operation of law after the Ordinance of 1931 vests in thelawful Viharadhipathi. . . Two concepts are therefore associated withthe office of Viharadhipathi of a temple. First, there is the holder ofsuch an office. Secondly, by virtue of the office there are interestswhich are attached to such office by operation of law . . . An actionfor declaration of title to the office of Viharadhipathi though in formit may appear to be an action for an office or status is in substancean action for the temple and all its temporalities." Referring to therelief in ejectment, Pathirana, J. stated; “To eject means to oust thedefendant from the temple and its temporalities and put the plaintiffin possession thereof. Ejectment of the defendant cannot thereforebe said to be purely incidental to the claim to be incumbent. Thetemple and the office of Viharadhipathi are so inextricably interwoventhat it is almost impossible to visualize one without the other."
Kampane Gunaratna Thero v. Mawadawila Pannasena Them
(G. P. S. de Silva, CJ.)
(at page 164). Thus the submission advanced on behalf of the plaintiff-appellant that the action was purely for a declaration in respect ofthe office of Viharadhipathi and not for a declaration of title to theland is untenable. The view taken by the Court of Appeal is relevantto the decision of the case and is correct. The plaintiff's action isclearly misconceived in law.
For these reasons the appeal fails and is dismissed, but in all thecircumstances, without costs.
WIJETUNGA, J. – I agree.
Whilst I agree with the judgment of my Lord the Chief Justice withwhom my brother Wijetunga, J. has agreed in which the facts relatingto this appeal are fully set out I am of the view that the plaintiff-appellant's action cannot be maintained for the following reasons aswell.
Special leave to appeal had been granted in this case upon thefollowing principal question. "Whether there was a valid dedication ofthe temple constructed on the land leased by the State, although-
such dedication was by the lessees acting with the authorityof the State, and
the contemplated future lease was for 99 years only".
The evidence relating to this aspect of the matter appears at pages169 onwards of the Court of Appeal brief. According to the evidenceof the plaintiff Kampane Gunaratna Thero, although he claims thatthe temple in question has become Sanghika property from the dayit was bestowed on him and that the Dayaka Sabha had the intentionof dedicating it to the Maha Sangha, there is no evidence on recordto establish that the formalities and the ceremonies that have to becomplied with for a dedication to the Maha Sangha for the saidproperty to become Sanghika property as referred to by Shaw, A.C.J.in Wickramasinghe v. Unnanse 22 NLR 236 have been fulfilled.
Sri Lanka Law Reports
(1998) 2 Sri LR.
Further, according to the lease agreement 'P2' the lessees wereto hold the land until the dedication of the temple in the mannerprovided for in clause 11 of its 6th schedule (vide the 3rd scheduleat page 61), and according to clause 14, 'upon the dedication of thetemple in the manner provided in clause 11 the lessor was to issuea fresh lease of the land for 99 years in favour of the trustee or thecontrolling Viharadhipathy, in trust for the temple so dedicated”. Fromthe above clauses it appears that title to the temple in question wasto remain in the State.
In my view not only has there been no dedication as required bythe Vinaya rules but also the intention has been that the title to theproperty was to remain in the State. In these circumstances, I answerthe question upon which leave was granted in the negative. The appealis therefore dismissed but without costs.