PATHIRANA, J.-Jinaratana Thero v. Pannananda Thero
1977 Present: Pathirana, J., Ratwatte, J. and Wanasundera, J.KARAGAMPITIYA JINARATANA THERO, Plaintiff-Appellant andPUSSELLE PANNANANDA THERO, Defendant-Respondent.
S.C. 172/69 (F) – D.C. Ratnapura 7121
Buddhist Ecclesiastical Law – Sanghika Property – Proof of formal ceremony of dedication bypresumption – Temple established within living memory – Sisyanusisya paramparawa – Right ofappointment of Viharadhipathi vested in Sangha – Concept of abandonment.
A formal ceremony of dedication, to establish that the temple is sanghika property, can bepresumed from documentary evidence even though the temple was established within livingmemory and no witnesses have been called to testify to the formal dedication.
When a temple is dedicated to the sangha in the absence of proof of any other form ofsuccession attaching to the temple, the right of succession is presumed to be in accordance withthe rule known as sisyanusisya paramparawa.
When a Viharadhipathi disrobes leaving no pupils the line of pupillary succession becomesextinct and the right to appoint a Viharadhipathi vests in the Mahanayake of the sect.
When a temple had been dedicated to the Maha Sangha the concept of abandonment of sucha temple cannot be attributed to the Maha Sangha.
-AlPPEAL from judgment of the District Court of Ratnapura.
A. A.de Silva for Plaintiff-Appellant
J.C. T. Kotelanda for 11th defendent-respondent.
Cur. adv. vult.
December 13, 1977. Pathirana, J.
The plaintiff-appellant instituted this action on 26.1.1967 against thedefendant-respondent claiming a declaration that he was the lawfulViharadipathi of the Temple known as “Vivekaramaya” at Dodampe in theRatnapura district and for the ejectment of the defendant therefrom. Thetemple is exempted from the operation of section 4(1) of the BuddhistTemporalities Ordinance.
The plaintiff’s case was that in 1921 Saranatissa Thero, the senior pupil ofSumanajothi Thero of the Saddhamma Yuktika Nikaya of the AmarapuraSect founded the said temple on property dedicated to the Maha Sangha assangika property belonging to the aforesaid Sect. The right of succession tothe said temple was regulated by the rule known as sisyanusisya
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paramparawa. In 1921 Saranatissa Thero disrobed and died in 1925 leavingno pupils, whereupon his tutor Sumanajothi Thero lawfully officiated asViharadipathi of the said temple till his death in 1931 in which year he wasalso appointed Mahanayake of the Saddhamma Yuktika Nikaya of theAmarapura Sect. On the death of his tutor, Sumanajothi Thero, the plaintiffclaimed that as he was the sole surviving pupil he succeeded to theincumbency. Alternatively, the plaintiff claimed to have been selected andappointed as the controlling Viharadipathi of the said temple by theMahanayake of the Nikaya, Tangalle Somarathana Thero by letter ofappointment, P13, of 6.2.66 and as such was entitled to the incumbency ofthe said temple.
The defendant denied that the said temple was sanghika property as it wasnot a temple dedicated to the Maha Sangha and accordingly the plaintiffcould not make any claim thereto on the basis that it was sanghika property.The Mahanayake therefore had no right or power to make the purportedappointment of the plaintiff as the Viharadipathi.
In or about 1926 the dayakayas invited Dhammasena Thero to reside inthe said temple and administer to the religious needs of the people andfunctioned as Viharadipathi till he was murdered on 2.11.65. Thereafter thedayakayas invited the defendant to carry out the duties and functions ofViharadipathi of the said temple which he accepted and functioned asViharadipathi. Alternatively the defendant pleaded that the dayakayas invitedDhammasena Thero to be the Viharadipathi of the said temple in 1926 andon his death in 1965 the defendant succeeded to the office of Viharadipathi.The defendant further pleaded that upon the disrobing of Saranatissa Theroin 1921 the Saddhamma Yuktika Nikaya abandoned its rights to the saidtemple. The defendant also averred that the plaintiff’s claim was barred bylapse of time.
The learned District Judge dismissed the plaintiff’s action holding that thetemple was not proved to be sangika property. He held that the propertywhere the temple stood was “gihisanthaka” property as there was no reliableevidence that the premises where the temple stood had in fact been dedicatedto the Sangha by the owners of the property. Even on the assumption that theproperty was sanghika property he held that when Saranatissa Thero asViharadipathi of this temple disrobed in 1921 leaving no pupils, the pupillaryline became extinct and the temple vested in the Maha Sangha. The right ofappointing a new Viharadipathi was thereupon vested in the Mahanayake ofthe Sect to which this temple belonged. Saranatissa Thero’s tutorSumanajothi Thero could not as he claimed have therefore succeeded to theincumbency. When the line of pupillary succession became extinct thesuccession did not revert to the tutor and through him to his only survivingpupil, the plaintiff.
Regarding the claim made by the plaintiff that the Mahanayake of theNikaya had appointed him as controlling Viharadipathi of the temple he held
PATHLRANA, J. – Jinaratana Thero v. Pannananda Thero
that the purported appointment on P13 dated 6.2.66 was in fact noappointment. He further held that after Saranatissa Thero disrobed in 1921the Saddhamma Yuktika Nikaya has abandoned its right to this temple, andas such the plaintiff cannot claim to hold office as Viharadipathi. Thedayakayas had invited Dhammasena Thero of the Ramannya Nikaya, adifferent sect, in 1926 and he continued to control and manage the temple tillhe was murdered on 12.11.65. He also held that the action was barred bylapse of time.
For the purpose of this appeal I shall accept the correctness of thefollowing findings of the learned District Judge. This temple was establishedby Saranatissa Thero in 1912, on which occasion there was a ceremony inthe temple and that Saranatissa Thero functioned as Viharadipathi of thistemple till he disrobed in 1921 leving no pupils. Dhammasena Thero wasinstalled in this temple by one Lokumahattaya, one of the chief dayakayasbut not with the permission of Sumanajothi Thero the tutor of SaranatissaThero as claimed by the plaintiff. After the death of Saranatissa Thero,Sumanajothi Thero, his tutor, did not officiate as the Viharadipathi and afterthe latter’s death in 1931 the plaintiff did not exercise his rights asViharadipathi and it was Dhammasena Thero who was resident in the temple
Mr. Jayewardene for the plaintiff-appellant has canvassed the correctnessof these findings before us.
On the question whether the temple stood on sanghika property, thelearned District Judge held that there was no proof of any formal dedicationas understood by the Buddhist Ecclesiastical Law that the property on whichthe temple stood belonged to the Maha Sangha and therefore the temple wasnot sangika property. No witnesses had given evidence to prove the formaldedication to the Maha Sangha with the customary ceremonies although theplaintiff called the witnesses who were present at the ceremony on23.11.1912 on the occasion when the temple was inaugurated. Neither haveany witnesses, even those called by the defendant spoken of such customaryceremony on this occasion. Regarding the documentary evidence relied onby the plaintiff, namely PI, P2, P14, P16, P17 and PI8 to prove that thepremises were dedicated to the Sangha, the learned District Judge held thatthese documents were of very little value to show that there was in fact aformal dedication of the temple, and the premises to the Sangha, nor wasthere a presumption of dedication in regard to this temple as it is commonground that the temple was established in 1912 as this was not a temple theorigin of which was lost in the dim past.
The learned District Judge’s conclusion no doubt finds support in thefollowing high authority of de Sampayo, J. in Wickremasinghe v. Unnanse'
(1921) 22 N.L.R. 236 at 242.
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“No authority has .been cited from the Buddhist scriptures or from pastjudicial decisions in support of the proposition that a building intended tobe appropriated to religious worship and built or acquired with thecontributions of the faithful becomes at once sanghika without any furtheract. This appears to be opposed to principle, and is contradicted by theexpert evidence given in this case. It is by a gift that a temple or any otherproperty can become sanghika, and the very conception of a gift requiresthat there should be an offering or dedication. Accordingly, we find thatthe expert evidence is to the effect that until a dedication takes place thetemple remains gihisanthaka (lay property). This dedication may take theform of a writing or may be verbal, but in either case it is a formal act,accompanied by a solemn ceremony in the presence of four or morepriests, who apparently represent the Sarva Sangha or entire priesthood.There is no proof of any such dedication in the present case. It was arguedthat after a lapse of many years a dedication could be presumed. Thatundoubtedly would be so in the case of a temple whose origin is lost inthe dim past. But not only the origin of this temple, but every event inconnection with its subsequent history, is known, and the facts are suchthat the presumption can have no place.”
The solemn ceremony has been described by Basnayake, C.J., inWijewardene v. Buddarakkitha2
“It would appear from the case of Wickremasinghe v. Unnanse, that for adedication to the Sangha there must be a donor, a donee, and a gift. Theremust be an assembly of four or more bhikkhus. The property must beshown; the donor and donee must appear before the assembly, and recitethree times the formula generally used in giving property to the Sanghawith the necessary variation according as it is a gift to one or more. Watermust be poured into the hands of the donee or his representative. TheSangha is entitled to possess the property from that time onwards. Noproperty can become sanghika without such a ceremony. Sometimes thereis a stone inscription recording the grant or a deed is given.”
In Pannavasa Them v. Sudassi There? – it was held that where there isevidence that a Buddhist temple came into existence before any person wasborn, proof of a formal dedication of the temple as sanghika property is notessential and the dedication may be presumed since it is not possible to callwitnesses who can speak to that matter from personal knowledge.
Mr Jayewardene’s submission is that these were not the only twomethods by which a formal dedication could be proved or presumed. Hesubmitted on a construction of the documents PI, P2, P14, P16, P17 and P18
!(I957) 59 N.L.R. 251 at 124.
’(1958) 68N.L.R. 512.
PATH IRAN A, J. – Jinaralana Thero v. Pannananda Them
and the fact that by P5 dated 20.3.1936 the Public Trustee under section 21of the Buddhist Temporalities Ordinance sanctioned the lease by thecontrolling Viharadipathi of certain lands belonging to this temple, in theirtotality point to either evidence or presumptive evidence of a formaldedication of the said temple to the Maha Sangha. He submitted on theconstruction of these douments the inference is inescapable that a ceremonyattended by the requisite acts constituting a valid formal dedication had takenplace. The documentary evidence in this case proves that there was adedication. The only question is whether there was a formal dedication viz, adedication preceded by the customary solemn ceremonies.
I shall now examine the documentary evidence in the light of thecontention advanced by Mr. Jayewardene. This temple was inaugurated on23.11.1912. P14 is an extract from the newspaper “Arya Sinhala Vansaya”dated 3rd December, 1912, which was a report sent to this newspaper byPemananda Thero who was present at the ceremony and was called as awitness by the plaintiff. It is true that Pemananda Thero neither in hisevidence nor in P14 speaks of the formal ceremony of offering or dedicationto the Sangha. This news item merely refers to the offering of Katina Poojaand other offerings to the Bhikkus headed by Saranatissa Thero atVivekaramaya for the benefit of the members of the Sangha belonging to theSaddhamma Yuktika Nikaya on 23.11.1912, the full moon day, and to. thechief dayakayas, Bandara Mahattaya and Loku Mahattaya. PI is a PoojaPattraya (Article of dedication) dated 12.9.1912 by which a paddy-fieldcalled Kondemule Aswedduma (not the land on which the temple isestablished) was dedicated by its owners, the Chief dayakayas,Lokumahatmaya and his wife Ran Menika. This dedication reads asfollows:-
“…the undivided two-third share of the above is hereby dedicated to theSasana in Sanghika ownership being mindful of the Noble Sangha anddesirous of establishing a Vihara so that the Sangha may be benefited asregards their fourfold requirements. Further it is declared that neither thetwo of us, nor our heirs, successors or administrators shall have any claimon the said land so dedicated to the Sasana. In the event of any disputearising over the said dedicated land, only shall (they) appear in defencethereof, resolve such dispute and ensure to the custody of the Sasana, butnot to claim any title thereto. Witness to the fact that it is so offered to theBuddha Sasana in Sanghika ownership by attaching the signature of thesaid Kuttikandevidanalage Lokumahatmaya and his wife WeerasingamaRallaya Rammenika on 23rd November, 1912, before the Sangha of theSaddhamma Yuktika Nikaya in Dodampe Vivekaramaya and we theabove named two (persons) have signed hereto.”
P16 which is dated 23.11.1912 pertains to the land called Puhulwelahenaon which the temple stands by which 16 persons who were owners havedonated this land to the Maha Sangha for the benefit of the priests comingfrom all directions. P17 is a donation to the temple again on the same day
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23.11.1912 of the land called Horakandewelahena. The owners dedicated itto the Sasana for the benefit of priests coming from all directions. This landis also part of the temple. It is possible that the original intention of thedonors was to build the temple on the land referred to in the document PI butthey later changed their minds and built the temple on the landPuhulwelahena and Horakandewelahena referred to in P16 and P17. PI8 is adonation by the owners on the same day 23.11.1912 of the field calledMadakandaliyedda “to the Sasana for the benefit of all priests coming fromall directions”. P2 which is referred to as a deed of “handing over”, recitesthat the priests of Saddhamma Yuktika Nikaya were controlling theinstitutions mentioned in the document among which is the landPuhulwelahena on which this temple stands, as belonging to the SaddhammaYuktika Nikaya.
The document P5 by which the Public Trustee had sanctioned the lease ofcertain lands belonging to this temple on 20.3.1936 leads to the inferencethat they were sanghika property. In Wickremasinghe v. Unnanse – (supra),Shaw A.C.J. observed:
“I do not think that the Buddhist Temporalities Ordinance is intended toapply to premises that are private.”
Basnayake C.J., in Wijewardene v. Buddharakkita Thero (supra) at page125 made the following observations:
“Learned Counsel for the respondent also argued that even if the propertyhad been given to the trustees for the benefit of the Vihare, by virtue ofsection 20 of the Buddhist Temporalities Ordinance it vested in the trusteeappointed under the Buddhist Temporalities Ordinance. I am unable touphold that submission. The Buddhist Temporalities Ordinance deals withsanghika property which has been dedicated to the Sangha of a particularVihare. It declares that such property is vested in the trustee or controllingViharadipathi of the Vihare. Property can be given to the Sangha only assanghika property and in accordance with the customary mode ofdedication, but a person is not prevented from creating a trust for thebenefit of a Vihare in accordance with the Trusts Ordinance.”
No doubt, in this case although the temple was established within theliving memory of witnesses, that is, in 1912, no witness came forward tospeak the formal ceremony of dedication to the Maha Sangha although thedocuments 1 have referred to, distinctly speak of the land on which thetemple stood that it was donated by the owners “to the Sangha in sanghikafor the benefit of the priests coming from all directions”. The question iswhether in these circumstances we can draw the presumption that there was aformal ceremony of dedication, preceding the donation referred to in thedocument P16 of 23.11.1912. The fact that there was a ceremony isestablished by the news report P14. Our Courts have held that the
PATHIRANA, J. – Jinaratana Thero v. Pannananda Them
presumption of dedication can arise after lapse of many years where theorgin of the temple is lost in the dim past, or where a Buddhist temple cameinto existence before any living person was born. In this case there is veryreliable evidence that on 23.11.1912 there was a dedication of the land inquestion to the Maha Sangha for the benefit of the priests coming from alldirections. The news paper report refers to the chief dayakayas “as devoteesto the religion who could be seldom found in the present day.” It was veryunlikely in these circumstances that such devoted dayakayas who werededicating this property to the Maha Sangha would not have in thecircumstances observed a formal dedication enjoined by custom. I am of theview that the learned District Judgehad misdirected himself on the evidencein not drawing the presumption that there had been a formal dedication in thecircumstances of this case. I would therefore hold that the property on whichthe temple in question stands is sanghika property. Once it is sanghikaproperty the dayakayas have no right to instal or remove any priest oradminister the affairs of the temple.
When a temple is dedicated to the Sangha in the absence of proof of anyother form of succession attaching to the temple the right of succession ispresumed to be in accordance with the rule known as sisyanusisyaparamparawa. The dedicators, the grantors or the dayakayas cease to haveany right or control over the temple. Wellegama Dhamma Joty Unnanse v.Wellegama Sarananda Unnanse* and Wickremesinghe v. Unnanse – (supra).The contention of Mr. Wimalachandra, who appeared for the defendant-respondent, is that dayakayas were entitled in 1926 to instal DhammasenaThero, a total stranger, and a person from a different sect to manage andcontrol the temple, must therefore fail. Dhammasena Thero’s occupation ofthe temple and his claim to be the Viharadipathi thereof had no legal validityand the character of his occupation was that of an imposter and a trespasser.It must, therefore, follow that the defendant who is not even a pupil ofDhammasena Thero who was installed by the dayakayas in the temple afterthe death of Dhammasena Thero in 1965 had no right to occupy the templeor claim to be the Viharadipathi thereof. In short the dayakayas had no rightto instal Dhammasena Thero or the defendant in the temple to control andmanage the affairs of this temple in view of my finding that the temple issanghika property.
I now pass on to the next question whether the plaintiff is entitled to be.declared Viharadipathi of the said temple on the basis of succession throughhis tutor Sumanajothi Thero. The learned District Judge has held that theplaintiff was not so entitled as once the line of pupillary succession becomesextinct, succession did not revert to the tutor of Saranatissa Thero andthrough him to the plaintiff as his sole surviving pupil. He followed the caseof Attadassi Unnanse vs. Indajothi Unnanse (supra) where it was held thatwhere an incumbent of a Vihara.to which the rule of sisyanusisyaparamparawa succession applies, dies without leaving a pupillary line of
J (1881) 5 S.CC. 8.
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succession, succession becomes extinct and the right of appointing asuccessor is vested in the Sangha. It could not therefore be contended that theclaim of pupillary succession included not only the descending line but alsowhen the descending line became extinct, the ascending line.Mr. Jayewardene, however relied on a passage from a judgment ofJayawardene A.J., in the case of Gunananda Unnanse v. DevarakkitaUnnanse – (supra) and submitted if an incumbent dies leaving no pupils orfellow pupils endtled to succeed, his tutors or their pupils descending in thepupillary line of the incumbent of the temple succeeds. A judgment of thisCourt in the case of Wellegama Dhamma Joty Unnanse v. WellegamaSarananda Unnanse – (supra) is cited as authority for this proposition, whereDias, J. held as follows
“…I am not aware of any case in which the point has been expresslydecided; but I always understood the rule to be that after exhausting thedescending line you must resort to the ascending, line such as the tutor ofthe deceased incumbent, and, failing him, the fellow-pupils of thedeceased incumbent.”
The report does not say by what tenure the Vihara in question was held. Ihowever find that a contrary view had been taken in the case of SumanaTerunnanse v. Kandappuhamy5. In this case three pupils alleging that theywere the co-pupils of one Indajoti Unnanse, the incumbent of GodagamuwaVihara, all of whom they claimed were the pupils of Pannala Terunnanse,claimed the incumbency of the temple on the death of Indajoti Unnanse in1885 leaving no pupils. His tutor had predeceased him without executing adeed disposing of the Vihara or nominating a successor to the incumbency.The plaintiffs, however, admitted that Pannala Terunnanse was never theincumbent at any time of the temple in question and that Indajoti Unnansegot the incumbency in some other way than by succession from his and theplaintiff’s tutor. The question was whether the plaintiffs as co-pupils ofIndajoti Unnanse were entitled to claim the incumbency.
Lawrie A.C.J. in this case having referred to the 5 S.C.C. case made thefollowing observations at page 15:
“In 5 S.C.C. 8,1 find a decision which is very puzzling to me. There Diasand Clarence, J J., held that, on the death of an incumbent without leavinga pupil, his tutor succeeded to the vihare; but it is not explained by whattenure that vihare was held; surely, not by pupillary succession, for in thatcase the tutor would have been the incumbent, and the pupil would havehad, during his tutor’s life, only the expectancy of succession if hesurvived. But if it was not held by sisyanusisya paramparawa, why wasthe tutor selected? Dias, J., said “I always understood the rule to be thatafter exhausting the descending line you must resort to the ascending line,
3(1893) 3 N.L.R. 14.
PATHIRANA, J. – Jinaratana Thero v. Paivmnanda Them
such as the tutor of the deceased incumbent, and, failing him, his fellowpupils.”
I confess I do not understand this. The descending line cannot beexhausted if there be an ancestor or a collateral qualified to take. Thedescent is from a founder or original grantee, and the line of. hissuccession is not exhausted so long as there are persons alive whodescend in the pupillary line from him. But when that line is exhausted,there is no ascending line to which you can resort. Any other line is a lineof strangers to whom the incumbency cannot go.
I take the law to be that, on the death of the last of the line descendingfrom tutor to pupil from the original incumbent, the sisyaparamparawa,the connected chain, ends. There is no sacerdotal descent left.”
It was held that the plaintiffs had no right to the incumbency. Theplaintiffs had not averred any right by pupillary succession from theincumbent and they were not the line of succession and had therefore noright. This could only mean that as Pannala Terunnanse was never theincumbent of the temple and as Indajoti Unnanse acquired the temple insome other way than by succession from his tutor or plaintiff’s tutor theywere, as co-pupils not in the line of succession and therefore not entitled tosucceed to Indajoti Thero in respect of the temple.
In the case before us Sumanajoti Thero was never at any time theincumbent of this temple. Saranatissa Thero was installed in this temple in1912 for the first time as Viharadipathi after it was dedicated to the Sanghaand not by succession. The decision in Sumana Terunnanse v.Kandappuhamy was examined and commented.upon by Jayawardene A.J. inGunananda Unnanse v. Dewarakkiia Unnanse (supra) at 270:-
“In the case of Sumana Terunnanse v. Kandappuhamy, it was held thatunder the sisyanusisya paramparawa, if the last incumbent leaves no pupiland has nominated no successor by deed or will, the incumbency can passto his co-pupils only if their common tutor was himself in the line ofsuccession from the original proprietor-priest or incumbent of thevihare. Lawrie, J., thought that where a priest becomes entitled to anincumbency from a priest who is not his tutor, his co-pupils would notsucceed him if he dies having no pupils, unless they were also pupils ofthe priest who granted the incumbency.”
I am, therefore, of the view when Saranatissa Thero disrobed in 1921leaving no pupils the line of pupillary succession became extinct. His tutortherefore who was at no time incumbent of this temple could not havesucceeded to the incumbency and therefore on the tutor’s death, the plaintiff
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as the sole surviving pupil also could not have succeeded to this incumbency.I, therefore, agree with the learned District Judge that as the pupillarysuccession became extinct on Saranatissa Thero disrobing in 1921 the rightto appoint a Viharadipathi was vested in the Maha Nayake of the Sect-Mawelle Dhammavisuddhi Thero v. Kcilawana Dhammadassi Thero6 andDhammaloka Thero v, Saranapala Thero7.
The next question for decision is whether the learned District Judge wascorrect in holding that the Saddhamma Yuktika Nikaya has abandoned itsrights to the temple and therefore the plaintiff could not claim any right tohold office as Viharadipathi of the temple.
The plaintiff quite advisedly did not contend that a particular priestabandoned the temple as this would be inconsistent with his claim that whenSaranatissa Thero disrobed in 1921 leaving no pupils the line of pupillarysuccession having been exhausted, the temple vested in the Maha Sangha.Issue No. 18 which sets out the defendant’s contention reads as follows:-
Issue No. 18: Did the alleged Saddhamma Yuktika Nikaya abandon the
rights, if any, to the said Vivekaramaya?
The learned District Judge has answered this issue in the affirmative. Hisreasons are that when Saranatissa Thero disrobed in 1921 this temple wasabandoned thereafter and the dayakayas invited Dhammasena Thero toreside in this temple and manage its affairs which he did till his death in
Thereafter the dayakayas installed the defendant in the temple. Herejected the plaintiff’s contention that Dhammasena Thero was installed inthe temple with the permission of Sumanajothi Thero. He also held thatneither Sumanajothi Thero nor the plaintiff functioned as Viharadipathi ofthe temple at any time. He held further that the plaintiff had not attended anyimportant ceremony in this temple after the death of Saranatissa Thero. He,therefore, concluded that after Saranatissa Thero’s death in 1921 the templehad been abandoned.
The question therefore arises whether the concept of abandonment canapply to the Maha Sangha, (in this case the Saddhamma Yuktika Nikaya) inrespect of this temple which, as I have held, had been dedicated to the MahaSangha. In other words, whether the rights of the Maha Sangha (in this casethe Saddhamma Yuktika Nikaya) to this temple had been extinguished byabandonment. In finding an answer to this question I have to keep in mindwhat Bertram C.J. has stated in Saranankara Unnanse v. Indajoti Unnanse8-at 394:
‘(1954) 56N.L.R. 284.'(1918) 20 N.L.R. 385.
’(1956)57 N.L.R. 518.
PATH1RANA, J. – Jinaratana Them v. Pannananda Them
“But when we are dealing with ecclesiastical property, a region in whichwe are enforcing simply the ecclesiastical law based upon the originalauthoritative texts developed by religious customs, we ought not torecognize claims and transactions which are in their terms or in theirnature inconsistent with the fundamental principles of those texts andthose customs.”
Inherent in the idea of dedication of a Buddhist temple to the MahaSangha is that the dedication is made for “the use of the Sangha of the fourdirections whether present or to come”. On the basis of this formula which isrecited in the act of dedication to the Maha Sangha one finds it difficult toaccept the proposition that the concept of abandonment of such a temple canever be attributed to the Maha Sangha. It was held in Dhammaloka Them v.Saranapala Them – (supra) that upon the extinction of the line of pupillarysuccession governed by the rule of succession known as sisyanu sisyaparamparawa the temple vests in the Sangha and the right of appointing anew Viharadipathi vests in the Maha Nayake of the fraternity which hasjurisdiction over it. The fact that a stranger had functioned as Viharadipathifor a long time did not defeat the Maha Nayake’s right of appointment,which is a right that cannot be lost by prescription. By a parity of reasoningthe Maha Nayake of the sect to which a particular temple has been dedicatedcan always assert his rights to such a temple on behalf of the Maha Sanghadespite the fact that such a temple had been for many years abandoned.
I would therefore hold that the learned District Judge was wrong in hisdecision that by reason of abandonment the Saddhamma Yuktika Nikaya hadlost its rights to the said temple.
I will next deal with the question whether the learned District Judge wasright in holding that the plaintiff’s action was time-barred. I have held in thiscase the temple is sanghika property and the rule of succession known assisyanu sisya paramparawa applies to this temple. The dayakayas thereforehad no right to appoint any person to manage or administer this temple assuch, Dhammasena Thero who claimed to function as Viharadipathi till 1965and the defendant who also claimed to function as such thereafter wereimposters or trespassers who had no lawful right to this temple. It was heldin Kirikitta Saranankara Them v. Dhammananda Them5 – that an impostercould not acquire a right to an incumbency by prescription; nor can the rightsof a true incumbent be extinguished by prescription. Although the operationof the Prescription Ordinance, may destroy the remedy accruing from aparticular “denial”, the right or status itself still subsists. If any priestclaiming to be entitled to this temple as Viharadipathi instituted an action
’(1955) 55 N.L.R. 313 at 315.
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against Dhammasena Thero when he was alive, no doubt, he would havebeen met with the plea that his cause of action was prescribed as on theundisputed evidence Dhammasena Thero was in control of this temple from1926. He, however, died in 1965 and the defendant claiming to be theViharadipathi thereof is now disputing the plaintiff’s rights to the saidtemple. This action was instituted on 26.1.67 praying for a declaration thatthe plaintiff is the lawful Viharadipathi of the said temple and for theejectment of the defendant therefrom. Even if one were to assume that theperiod of prescription for such a cause of action is three years, the plaintiffhas instituted the action in time. I, therefore, hold that the plaintiff’s action isnot time-barred.
The pupillary line of succession to this temple having therefore becomeextinct consequent to Saranatissa Thero disrobing in 1921 without leavingany pupils and the succession not reverting notionally to the original tutorSumanajothi Thero and through him to his sole surviving pupil, the plaintiff,the temple therefore vests in the Sangha. The right of appointing a newViharadipathi to the temple vests in the Maha Nayake of the fraternity whohas jurisdiction over it. Dhammatilaka Thero v. Saranapala Thero — (supra)
The plaintiff claims to be the Viharadipathi of this temple by virtue of theappointment P13 dated 6.2.1966 by the Maha Nayake of the sect to whichthe temple belongs. The Maha Nayake, Tangalle Somarathana Thero gaveevidence for the plaintiff and produced the document P13. The learnedDistrict Judge although he refers to Somarathana Thero as a person whoclaimed to be the Maha Nayake of the sect, I am satisfied on his evidencethat he was in fact at the relevant time the Maha Nayake of the SaddhammaYuktika Nikaya to which sect this temple belongs. His evidence stooduncontradicted.
The learned District Judge having referred to PI 3 and the evidence of theMaha Nayake Thero held that PI 3 was not an appointment of the plaintiff asViharadipathi of the temple. The reason he gave was that it was not theposition of the Maha Nayake that he appointed the plaintiff to be theViharadipathi of the temple but that he was of the opinion that the plaintiffwas entitled to hold that office.
Mr. Jayewardene has strenuously contended that this finding is erroneousand is not based on a proper construction of the document P13.Mr. Wimalachandra who appeared for the defendant on the other hand hasinvited us to read the whole document along with the evidence of the MahaNayake on this question. He submits that PI3 cannot be construed as anappointment of the plaintiff as Viharadipathi. His position is that PI3 merelynarrates certain facts chronologically regarding the temple from the time that
PATHIRANA, J. – Jinaratana Them v. Pannananda Them
Sumanajothi Thero was the Viharadipathi. It refers to Dhammasena Therohaving lived in the temple without any right to the incumbency and his death.It merely reiterates the fact that the plaintiff managed the affairs of thetemple and had the right and power to do so. He also referred to the conflictbetween the evidence of the Maha Nayake and the construction sought to beput on P13 by the plaintiff. He drew our attention in this connection to theevidence of the Maha Nayake Thero in cross-examination, the relevantportion of which I now quote:-
“My object in writing P13 was because that the defendant priest does notbelong to our Nikaya and to settle the disputes. Rev. Saranatissa was theViharadipathi of this temple. I was the Maha Nayake duringRev. Saranatissa’s time. I came to know Rev. Saranatissa in 1917. I didnot appoint Rev. Saranatissa as Viharadipathi. By P13 I did not appointRev. Jinaratana as Viharadipathi, but Rev. Jinaratana was functioning asViharadipathi of the Dodampe Vivekaramaya at the time of the writing ofPI3. Plaintiff priest could have done what he wanted to do asViharadipathi. P13 was sent to the Plaintiff priest as an advice. WithoutPI3 he could have still functioned as Viharadipathi. I advised him to dothis as Viharadipathi. In P13 I mentioned historical matters in connectionwith Dodampe Vivekaramaya as I was Maha Nayake. As I know thehistory of this temple I gave PI3 to plaintiff priest. Plaintiff priest alsoknew the history of this temple.”
The Maha Nayake when he gave evidence was 73 years old, and therelevant portion which I have quoted above is in narrative form. One cannotdiscount the possibility that these may have been answers to leadingquestions in cross-examination. In order to appreciate the significance andmeaning of the document PI3 the prudent course would be to be guided bythe relevant passage in the original Sinhala of PI 3 which reads thus:-
The English translation of it would be “I hereby inform you to accept the.management of the temple and minister to the religious duties of thedayakayas. Let it be understood that you have the right and power to managethe temple”. Mr. Wimalachandra in support of his contention argued that thetenor of this letter did not show that there was a vacancy in the office of the'Viharadipathi which necessitated such an appointment but it is only areiteration of the existing state of affairs and merely confirms the fact that theplaintiff was entitled to manage the affairs of the temple. I find it difficult toaccept the contention of Mr. Wimalachandra that PI3 is not an appointmentof the plaintiff to be the Viharadipathi of this temple. The function of a
New Law Reports
(1978) Vol. 80 N.L.R.
Viharadipathi of a temple is to manage the temple and he has the right andpower to do so. This right and power are given in P13 to the plaintiff. It istrue that P13 does expressly not affix the label of Viharadipathi to theplaintiff in respect of the rights and powers that are conferred by it. But ifone looks at the true nature of the rights and powers that are granted by P13in favour of the plaintiff it is not possible to resist the conclusion that theMaha Nayake intended by P13 to appoint the plaintiff to perform the dutiesof the Viharadipathi of the temple. I am, therefore, satisfied on a reading ofP13 and the evidence of the Maha Nayake that the appointment wasnecessitated because Dhammasena Thero died and that there was a disputeregarding the temple since the defendant priest did not belong to the sameNikaya.
In construing a document like P13 one must find out the plain intention ofthe person making it from the meaning of the words used though there maynot be the express use of the word “Viharadipathi”. See Jinarathana Them v.
Ratwatte, J. -1 agree.Wanasundera, J. -1 agree.
Y1946) 47 N.L.R. 228.
this context in relation to a temple sufficiently connote the powers and rightsof the Viharadipathi of a temple.
Regarding the evidence of the Maha Nayake under cross-examination thathe did not appoint the plaintiff as Viharadipathi by P13,1 would think that heprobably was having in mind the fact that in P13 there was no reference tothe plaintiff being expressly appointed to the office of Viharadipathi.
Mr. Jayewardene also relied on the maxim “allegans contraria non estaudiendus," namely, that “a man shall not derogate from his own grant”.
For these reasons I am satisfied that the Maha Nayake Thero intended byPI 3 to appoint the plaintiff as Viharadipathi of the temple in question. Theplaintiff therefore succeeds in this appeal.
His appeal is allowed and the judgment and decree of the learned DistrictJudge are set aside. Judgment is entered for the plaintiff as prayed for. Theplaintiff will be entitled to costs both here and in the District Court.
Somarathana Them'0. The Sinhala words