MALALANKARA THERO et al. v. SIMANANDA THERO

072-NLR-NLR-V-31-MALALANKARA-THERO-et-al.-v.-SIMANANDA-THERO.pdf


( 259 )
[In Review.]
Present: Hutchinson C.J., Middleton and Wood Renton JJ.MALALANKARA THERO et al. v. SIMANANDA THERO.248—D. 0. Tang alia, 700.
Buddhist Ecclesiastical law—Grant of temple to a priest and otherpriests of the Amarapura sect—Claim by pupil of grantee—Ramaflha sect—Is it part of Amarapura NikayatWhere the incumbency of a Buddhist temple was granted byGovernment to a Buddhist priest and " his brother priests of theAmarapura Ordination ”—
Held, that a pupil of the grantee was not disqualified fromsucceeding to the incumbency because he was an adherent of theRamafUia sect.
C
ASE heard in review preparatory t.o an appeal to the PrivyCouncil.
This was an action to eject the defendant from the incumbencyof the Yatala and Menik Dagobas at .Tissamaharama. It appearedthat Sir James Longden, Governor of Ceylon, granted by a letterdated July 4, 1882, permission to one “ Jinaratana Terunnanseand his brother priests of the Amarapura Ordination to occupy thetemples. ”
Upon the death of Jinaratana Terunnanse, the defendant,who belonged to the Ramanna sect, claimed to succeed to theincumbency as the pupil of Jinaratana and the present action wasinstituted to eject him.
31/20-
1908.
1908.
MalaUmkaraThero v.
, SimanandaThero
( 260 )
The judgment under review was delivered by Lascelles A.C.J. rWood Benton J. concurring: —
4th July, 1906. Lascellbs A.C.J.—
The claim in the action is to eject the defendant from the incumbencyof the Yatala and Menik Dagobas at Tissamaharama in the Districtof Hambantota. It appears that in 1889 numerous applications weremade to Government with regard to the appropriation of the ancientBuddhist Dagobas at Tissamaharama which had then been for manyyears in ruin and abandoned.
After personal inquiry Sir James Longden, the then Governor, grantedby letter dated July 4, 1889. permission to one Jinaratana Terunnanseand his brethren priests of the Amarapura Ordination to occupythe premises now in dispute. At the same time a similar grant withregard to another Dagoba was made to another priest and his brethrenpriests of the Siam Ordination.
Passing over for the present the objections which have been madeto the right of the plaintiffs to maintain this action, the principal pointfor determination is whether the defendant, who claims in pupillarysuccession from Jinaratana, is disqualified from succeeding to theincumbency by reason of. his adherence to what is known as theBammani Nilcaya or society of Buddhists.
In this connection it is material to consider the origin of the differentorders and societies of Buddhism in Ceylon. It appears that about theyear 1750 a.d. the number of fully ordained priests in Ceylon was soreduced by persecution and other causes that it became necessaryto bring priests from Siam, who became the founders of the SiamSamagama or orders. Some 50 years later the Amarapura Samagamawas founded by the importation of the priests from Amarapura, theancient capital of Burma.
These two principal orders of Buddhism in Ceylon have developeda tendency to subdivide into minor orders or fraternities separatedfrom each other and from the parent order by minute distinctions ofritual and habit of life.
Thus,' the Siam Samagama is divided into the Malwatta and AsgirivaSabhas or Colleges, the former being again subdivided into the Kelanivaand Cotta fraternities. Similarly, the Amarapura Order is stated tohave branched off into at least six Nikavas or fraternities, one of whichis the Chula Gunthi or Rammani Sect.
The dedication by Government in 1882 was in one case to a specifiedpriest and his brethren of the Amarapura Ordination, and in the othercase to another priest and his brethren of the Siam Ordination.
Having regard to the origin of these orders of priesthood and to thelanguage of the dedication, I cannot doubt that the Government inapportioning the ancient Shrines amongst the applicants had in viewonly the two main orders of Ceylonese Buddhism: the Siam Samagamaderiving its orders from Siam and the Amarapura Samagama derivingits orders from Burma. The Buddhist priesthood was broadly classifiedwith reference to the origin of its orders under these two principal headswithout regard to minor sects or fraternities.
The dedication is silent as to the devolution of the incumbency afterI he death of the grantee for the sufficient reason that the course ofsuccession in such cases is well settled by law.
In the absence of any provision to the contrary in the dedication of aBuddhist Temple the rule of succession is that known as Sisya-Puram-parawa or pupillary succession.
( 261 )
Sangharatana Unnanse v, Wirasekera (6 N.L.R., p. did). The defendantis unquestionably entitled to succeed his tutor Jinaratana in pupillarysuccession unless he is disqualified by being a member of the Rammanifraternity.
TheRammaniSectwas introduced in comparatively recentyears by
a priest named Ambagahawatte. He is stated to have been originallya fully ordained priest of the Siam Samagama. However, he went toBurma on the orders of Samanera or Novitiate of the AmarapuraSamagama, there he received full orders at Ratanapanna or Mandalayfrom the Sanga Raja, the supreme ecclesiastical authority. Ambagaha*watteappears tohave visited Lower Burma and to haveassociated
with the Chula Gunthi Nikaya, a fraternity of Lower Burmese priestsleading a simpler and more austere life than the priests of'Upper Burma.
Onhis returntoCeylon Ambagahawatte founded theRammani
Nikaya on the model of the Chula Gunthi society of Lower Burinu.
Now, so far as the origin of orders is concerned, there is no realdifference between the defendant and other priests • of Amarapura.The source from which Ambagahawatte derived his orders, the SangaRaja of Burma, being the same as that from which the Amarapvraordersemanated.Inpoint of fact the defendant and the 1st plaintiff
in this respect are on precisely the same footing. They both receivedUpasawpadawa fromthehandsofAmbagahawatte.The question
then arises whether the Rammani Nikaya has so far seceded from thedoctrines and observances of the Amarapura Ordination as to be excludedfrom a dedication in favour of the brethren of that ordination. Thereis no evidence of any difference on points of doctrine between theRammani fraternity and the• Amarapura Nikaya.TheRammani
fraternity professed a stricter rule of life, they considered it- wrong towear silk robes, to use umbrellas, although not objecting :to the Gotu-athas or talipot shade or to drive in carriages drawn by animals. Thereis some evidence thatofrecentyearsthe tendency ofthe Rammani
fraternity has been tokeepalooffromother priests ofthe Amarapura
Ordination and that priests of the two denominations will not perform“ Vinaya-Karmas ” together. The defendant himself stated that hehad no objection to performingVinayaKaunaswithpiouspriests of
the Amarapura Ordination. The matter is probably to a great extentone of personal feelings.
I am not prepared to hold that the distinction between the Ramannafraternity and the AmarapuraNikayais suchasto disentitle a
Rammani priest from the benefit of a dedication in favour of priests ofthe Amarapura Ordination. Indoctrineand intheoriginof their
orders no sound distinction can be drawn between the Rammani Sect'and Amarapura Nikaya. The differences in habit of life are of thecharacter which mark a subordinate fraternity of society rather thana seceding sect, they must be found in a greater or less degree in eachof the numerous Nikayaswhicharecomprised in the Amarapura
Nikaya. In this view of the case it is unnecessary to discuss theplaintiff’s rights to maintain this action. Wc have been asked to set thejudgment aside on the ground of the extraordinary delay which* tookplace between the closing of the hearing and the delivering of judgment,while I am not prepared to accede to this course I am , bound to statethat I cannot for tine moment accept the explanation for. this delaywhich was given by the District Judge. Making all allowances for thedifficulty oi the case and the extent to which it has been obscured by.the introduction of irrelevant evidence, it is not creditable to theadministration, of justice that the parties should have had to wait for. more than a year for judgment in this case.
1908.
MaUUankaraThero v.titmonandaThero
( 262 )
1908.
MalalankaraThero tf.8imanandaThero
I would also draw attention to the intolerable prolixity of the petitionof appeal in this case. The Civil Procedure Code, section' 758, requiresthe petition to contain a plain and concise statement of the ground ofobjection to the judgment. There can be no justification whateverfor a petition such as that in the present case consisting of 36 paragraphsand occupying 84 type written pages of argumentative matter.
It entirely fails to save the purpose for which petitions of appeal aredesigned and is a mere encumbrance to the record.
For the reasons which I have given I would affirm the judgment ofthe District Judge and dismiss the appeal with costs.
Wood Renton J.—
1 agree entirely. In particular I think that the presentation of sucha petition of appeal, as has been before us in this case, is an abuse ofthe process of the Court.
March 4, 1908. Hutchinson C.J.—
The plaintiffs claim an injunction to prevent the defendant fromofficiating as incumbent of two temples at Tissamaharama andfrom resisting the 1st plaintiff in assuming duties as incumbentthereof and also to eject the defendant from temples and theirappurtenances and .to have the 1st plaintiff placed in possessionthereof. The defendant claims tp be incumbent of the templesand to be in lawful occupation of them and their appurtenances.
The main dispute is whether the defendant is or is not a priestof the Amarapura Ordination.
Both parties derive their title from a grant made by the Govern-ment of Ceylon contained in a letter from the Colonial Secretarydated July 4, 1882, the essential portion of which for the presentpurpose is this:—■
** H. E. also granted to Jinaratana Terunnanse and his brethrenpriests of the Amarapura Ordination permission to occupyYotala and Menik Dagobas, &c. ”
Upon the death of Jinaratana the defendant claimed to succeedhim in the incumbency. He was Jinaratana’s pupil and entitled tosucceed if he is a priest of the Amarapura Ordination. He belongsto the Nikaya or sect called Ramana, but says that he is of theAmarapura Ordination. While the plaintiffs contend that theBamana Nikaya is so wholly distinct from *the Amarapura Nikaya,that a member of the former cannot be said to be of the AmarapuraOrdination; the District Court found as a fact that the priestsof the Bamana Nikayas are of the Amarapura Ordination. That-finding was affirmed in appeal; and I think it was right. Theevidence satisfies me that priests belonging to Bamana Nikayaare not of a different Ordination from other priests of the Amara-pura Ordination. That the Bamana Nikaya is not a sect of .Bud-dhists, but is rather a College or fraternity of priests who are allof the Amarapura Ordination. That is the only point which was
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seriously argued by the appellants before us. I think that thejudgment under revfew should be affirmed and that the appellantsshould pay the costs of the hearing.
Middleton J.—
The question of fact in this case which is raised iu review beforeus is whether the defendant who claims iu pupillary successionfrom one Jinaratana Terunnanse is disqualified from succeedingto the incumbency of the Yatala and Menik Dagobas at Tissa-maharama in the District of Hambantota by reason of his adherenceto what is known as the Bamani Nikaya or sect of the Buddhistreligion.
The dedication of the Government in 1882, which is accepted byboth sides as valid and binding, was a grant to Jinaratana Terun-nanse and his brethren priests of the Amarapura Ordination tooccupy Yatala and Menik Dagobas with ten acres of Crown land.The appellants admit that there is evidence that Jinaratana belongedto the Bamani Nikaya, and the defendant also admits that hebelongs to that Nikaya, but contends that it is a mere ‘ subdivisionof the greater Amarapura Nikaya and not a separate Ordfnation.
It was contended before us that the Supreme Court in its judg-ment had not taken into consideration certain evidence as regardsthe position occupied by what is known as the Matara Nikaya.a petition marked P13, an address of the Bamanf Nikaya to theDuke of York; Mr. Fowler's report and certain evidence at pages42, 48, 85, and 92 of the record.
It was also contended that th ** defendant had in fact beenreordained when entering the Bamani Nikaya, but the evidence onthis point I think shows that he was merely proceeding fromthe Samanera to Upasampada Status in the Amarapura Nikayaas from the diaconate to the priesthood in the Christian churches.
As regards the other evidence relied on for the appellants and• alleged not to have been considered by the Supreme Court, in myopinion it does not show that the Bamani Nikaya is,,*a; .different*Ordination to that of the Amarapura Nikaya, and I agree with thelearned Acting Chief Justice that as far as the origin of orders isconcerned there is no real difference between the defendant andother priests of the Amarapura Nikaya, the source from which Amba-gahawatte derived his orders, the Sanga Baja of Burma, beingthe same as that from which the Amarapura orders emanated. Noris there, as the Acting Chief Justice says, any evidence of differenceof doctrine between the Bamani Nikaya and the AmarapuraNikaya.
I take leave to think that there is no greater distinction betweenthe two so-called Nikayas than may be found between the followers- of the respective high church and low church division in the
1908.
Hutchinson
C.J.
MaUUankaraThero vtiimanandaThero
( 264)
1906.
Hutchinson-
C.J.
MalcUankura.
Thero v.SimanawhtThero
established Church of England. The priests and ministers of thesetwo divisions also to a certain extent keep aloof from each other, butthey are bound to admit their Common Ordination.
Tile difference between the Bamana Sect and the AmarapuraNikaya from which the sect emanates and to which it belongsis one more of ritual and external observances than anythingelse, while the Baniana Sect follows and inculcates a more asceticlife.
The other point raised by the learned Counsel for the appellant,was that succession to the incumbency was not to be governed by thelaw of Sisiyana Sisya Paramparawa or pupillary succession but bynomination or election by the whole body of the priests to whomthe endowment granted the dagobas.
The document of grant from the Government does not specifythe mode in which the succession to Jinaratana Terunnanse wasto be regulated, and the learned Counsel has been unable to referus to any authority which would support his contention' and thesuccession to the incumbency of these dagobas would be governedby any other than the well-known, and recognized principle ofpupillary succession.
According to the record of the Supreme Court Minutes of thejudgment in No. 366, Kurunegala, of the case of Eritninne Vnansev. Sinabowe Unattse dated October 21, 1833, to which 1 have hadaccess on reference from page 653 of Marshall’s judgments, muchdiscussion and consultation took place as to the distinction betweenSisya and Siwooro Paramparawa tenure, but it has not found room _in the judgment. Siwooro Parar iparawa. appears to occur when theoriginal proprietor ordains and endows one of his lay relationswho in his turn ordains another relation, &c. (Marshall, ubi supra).
I can find no distinct authority for holding that in default of adirection by the dedicator as to succession to the incumbency thesuccession must be regulated by Sisya Paramparawa.
I have no doubt, however, that the dedication document impliesand intends a priestly succession and nominates an Upasampadapriest and his brethren priests of the Amarapura Ordinationpermission to occupy the dagobas.
Jinaratana looked upon himself, as no doubt he was looked onby his brethren priests, and in fact, was, as the named incumbentdonee of the grant.
On the analogy of his position to that of the proprietor priestmentioned in the rules of the Malwatte priests approved of by twelveKandyan Chiefs laid down on the January 5, 1832 (Grenier’s Reports,1874, page 68), I would hold in default of any authority to thecontrary that Jinaratana was entitled to nominate the defendantas his pupillary successor in the incumbency and that he didgo nominate hiih by deed No. 7,842 of January 26, 1897.
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I think therefore that the appeal from the judgments under reviewshould be dismissed with costs.
I fullv concur with the Acting Chief Justice and mv brotherWood Renton in their remarks in respect of the intolerable prolixityof the petition of appeal, and would hold the Proctor who has signedit personally responsible for the costs of its preparation if it be inour power to do so.
Wood Rextox J.—
I see no reason to alter the opinion that I formed in regard to thiscase on the original appeal. The clear intention of. the Governmentof Ceylon in the grants of 1882 was to apportion the ancient dagobasbetween the two orders of the Buddhist priesthood then existentin the Island, viz., the Siamese and the Amarapura or Burmese.The only question, therefore, is whether the respondent is within themeaning of the grant of July 4, 1882, a priest of the AmarapuraOrdination. His orders are undoubtedly of Amarapura or Burmeseorigin and thus come, strictly speaking, within the forma doni, andI do not think that the evidence shows the Ramana Sect to whichthe respondent belongs to be anything more than a confraternitywithin the Amarapura priesthood living according to a stricter rulethan and tending of late years to keep aloof from the rest of the body.Mr. van Langenburg admitted that he could not find in the recordany proof that Ramana Ordination is treated by the AmarapuraSect as invalid except a statement by the respondent, himself thaton his presentation to Jinarat-ana Terunnanse for the XJpasampa-dawa priesthood he was disrobed and became a layman. Thewitness added (Record p. 81) that uhe re-robing which followed wasintended to cure any defect that there might have been in hisSamanerahood (Record p. 79). The respondent was called as awitness by the appellants themselves. The statements justmentioned were made in a re-examiriation, which was really a cross-examination. There is no evidence■- that disrobing of which therespondent speaks is not an ordinary part of the ceremonial bywhich Samanera is exchanged for Upasampadawa priesthood, andthe respondent stated that he did not consider that he had passedover from the Amarapura to the Ramana Nikava by virtue of it-I cannot regard evidence of this description as counterbalancingthe pointed failure of any of the appellants* witnesses to say thatthe Amarapura Sect hold Ramana orders to be invalid, a failurewhich was not per incuriam for the witness. Palivagoda Dharma-rama gave express evidence as to the view of the Siamese Nikayawith reference to Amarapura Orders or as discharging the burdenof proof resting upon the appellants. A similar line of criticismsuggests itself as to the documentary evidence on which they relied,the separate representation of the Ramana Sect in 1902 on appli-cations connected with the Buddhist Temporalities Ordinance,
1908.
HutchinsonC. J.
MalalankaraThero v.
<$hnanandaThero
( 266 )
1908.
Htttchinson-
C.J.
MalcdankaraThero v.SimanandaThero
and in the addresses presented to the Duke and Duchess of Yorkon their visit to Ceylon in 1901 and the minutes of the variousproceedings which have led up to the dispute now before theCourt. This whole body of evidence is perfectly consistent—dueallowance being made as regards the minutes of proceedings forthe tendency of communities at arm’s length from each other toexaggerate the difference between them—with the conclusionthat the Ramana Sect is merely a powerful confraternity within theAmarapura Samagama. No part of it supports the view that thereis any fundamental distinction between Amarapura and RamansOrdinations. The Report of Mr. Fowler, Colonial Secretary', infavour of the Amarapura claims in 1900 (p. 12) is not binding onthe respondent or on this Court and is of no probative value. Thestatement contained in it, that the priests of the Amarapura Sect-having nothing in common with the Ramana Sect, is disproved bythe oral evidence in the present case. The orders of both sectsare derived from a common source. There are no doctrinaldifference between them, and none of the points of disputed ceremonialwould seem to touch the vital question of orders. The historyof the Roman Catholic and Anglo-Catholic Churches furnishesinstances of bodies of ecclesiastics within these respective communi-ons separated by divergences quite as acute as any of these allegedto exist between the Amarapura and Ramana Nikavas, whosemembers would nevertheless not be held disqualified to take undera grant to priests of Roman or Anglican Ordination. On thequestion of the devolution of the incumbency I have nothing toadd to the judgment of Lascelles C-.J.
I would affirm the judgment under review with costs.
Appeal dismissed.
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