Morawaka v. Dhammaratna Thero
Morawaka v. Dhammaratna Thero
COURT OF APPEAL.
SOZA, J. AND VICTOR PERERA. J.
C. A. (S.C.) 172/71 (f)—D. C. COLOMBO 12432/l.
November 9. 10, 27, 28, 1978.
Buddhist Eccelesiastical Law—Transfer of land by Vitharadhipathi oftemple to third party—Claim by succeeding Viharadhipathi againsttransferee on basis that land was sangika property—Character of theproperty—Burden of proof.
The plaintiff as the Viharadhipathi of a Buddhist temple filed this actionagainst the defendant seeking a declaration of title to a land on behalfof the said temple. The defendant claimed title on the basis of a transferto him for valuable consideration by the predecessor of the plaintiff asViharadhipathi of the said temple. The defendant’s position was thatthe land in question was the pudgalika property of the plaintiff’s prede-cessor as Viharadhipathi while the plaintiff himself claimed that itwas sangika property. The land in dispute had been sold to MadiwalaDhammatilaka Therunnnanse the plaintiff’s predecessor in office on deedNo. 5647 of 27.8.38 by two persons D. J. Ramanayake and M. S. Perera.The learned District Judge had held that the land in the hands of thesaid two vendors had not been sangika property although it had beenurged on behalf of the plaintiff that it was and that the said vendorshad been holding the said premises in trust for this temple as therehad been an assignment of a decree in favour of an earlier Viharadhi-pathi to these vendors. The terms of the deed itself did not indicatethat it was purchased with temple funds or that the plaintiff’s prede-cessor even purported to purchase the land in 1938 as Viharadhipathi.
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It was for the plaintiff to prove that on the transfer by Ramanayakeand Perera to Dhammalilaka Thero the property became temple landor acquired the character of sangika property.
The learned trial Judge was wrong in holding that merely becauseDhammatilaka Therunnanse who officiated as controlling Viharadhipathipossessed the land for over 30 years until he sold the same to thedefendant, he had acquired a title to this land as sangika property byprescription. If he had possessed the land in this way and prescribedagainst his vendors this possession would enure to the benefit of histransferee the defendant; but in the absence of proof that the landwas purchased with temple funds, that the income derived by leasingthe land was utilized for the temple or in the absence of any gift ordedication to the temple the finding that the land became sangikaproperty could not be upheld.
Cases referred to
Marshall’s Judgments, 649.
C. R. Regalia Case No. 2743, Perera’s Armour 51, 52.
(,3) Ratnapala Unnanse v. Cader and Another, (1882) 5 S.C.C. 61.
32 D. C. Matara, Morgan’s Digest, 282.
C. R. Regalia, 2743, Solomon’s C. R. Appeals, Pt. 1, 10.
D. C. Randy 67849, (1877) Ramanathan Reports 182.
Ranasinghe v. Dhammananda, (1935) 37 N.L.R. 19.
Wickremasinghe v. Unnanse, (1920) 22 N.L.R. 236.
Dhammananda v. Ranasinghe, (1937) 39 N.L.R. 567 (P.C.).
Dhammananda Nayaka Thero v. Piyaratna Nayake Thero, (1958)
59 N.L.R. 412.
Dhammananda Nayake Thero v. Pannasekera Nayake Thero and
Others (1963) 65 IVJL.R. 196 (P.C.).
Dharmakeerthi Thero v. Jinasiri Thero, (1978) 79 (2) N L.R. 86.
Saranankara Unnanse v. Indajothi Unnanse, (1918) 20 N.L.R. 385.
Wijewardena v. Buddharakkita Thera, (1957) 59 N.L.R. 121.
APPEAL from the District Court, Colombo.
C. Ranganathan, Q.C., with E. S. Amerasinghe, M. B. Peramuna and I.(Hassen, for the defendant-appellant.)
H. W. Jayewardene, Q.C., with Walter Wimalachandra and LakshmanPerera, for the plaintiff-respondent.
Cur. adv. vult.
January 24, 1978.
VICTOR PERERA, J.
This action for a declaration of title is in respect of the landcalled Waljambugahawatte filed by the Viharadhipathi of Wija-yasiriwardhanaramaya claiming the land to be Sangikaproperty. It will be necessary to set out the documentary evid-ence in chronological order before the matters in dispute areconsidered. The original owner of this land was one MorawakageBastian Perera who by Deed No, 3696 dated 24th November, 1908,(D2) sold the same to Mirihane Aratchige Sadelis Appu who byDeed No. 4070 dated 30th January, 1918, (Dl) sold the same toone Henry Alexander Silva. Henry Alexander de Silva by DeedNo. 281 dated 17th July, 1930 (P7) mortgaged this land togetherwith two other lands on Deed No. 281 dated 17th July, 1930, toTalapathpitiya Pemaratana Therunnanse, Incumbent of Wijaya-siriwardhanaramaya for Rs. 3,500 being money lent and advancedto him by the said Talapathpitiya Pemaratana Therunnanse. The
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said Alexander de Silva in terms of the said deed engaged andbound himself to repay the said sum of Rs. 3,500 to the said Tala-pathpitiya Pemaratana Therunnanse or his heirs, executors,administrators and assigns and until such repayment to payinterest at 13 per cent per annum from the date of the saidmortgage. The said Thalapathpitiye Pemaratana Therunnanse,Incumbent of Wijayasiriwardhanaramaya as plaintiff filed caseNo. 52308 in the District Court of Colombo against Alexander deSilva on 31st March, 1933, for the recovery of Rs. 4,732.32, interestand costs due on the said mortgage bond and for a hypothecarydecree. In paragraph (2) of the plaint (P8) he the defendantbound himself to pay the plaintiff, namely, TalapathpitiyaPemaratana Therunnanse or to his heirs, executors, administra-tors and assigns the sum of Rs. 3,500 and interest at 13 per centper annum. Decree was entered in the said action on 21st July,1933, (P9), that the defendant do pay the plaintiff the sum ofRs. 4,732.32 with interest on Rs. 3,500 at 13 per cent per annumfrom 31.3.1933 up to the date of decree and thereafter with interestat 9 per cent per annum till payment in full and costs of suitbut .that if the defendant pays a sum of Rs. 4,500 on or before30th November, 1933, then satisfaction of decree was to beentered. Thereafter Thalapathpitiya Pemaratana Therunnanse,Incumbent of Wijayasiriwardhanaramaya by Deed No. 851 dated25.8.1934 (Pll) purported to assign the decree for Rs. 5,000, to
Don James Ramanayake and (b) Mirihanage Sadiris Perera.
The recitals in the said Deed No. 851 are as follows :—
“ Whereas the said Talapathpitiya Pemaratana Therun-nanse obtained judgment and decree dated 21st July, 1933,in action No. 52308 etc. and whereas the said TalapathpitiyaPemaratana Therunnanse has agreed with Don James Rama-nayake and Mirihanage Sadiris Perera for the absoluteassignment unto them the amount due and recoverable underthe said judgment and decree for a sum of Rs. 5,000. ”
The operative part of the Deed of Assignment is as follows:—“Now Know You and These Present Witness that thesaid Thalapathpitiya Pemaratana Therunnanse in pursuanceof the said agreement and for and in consideration of thesum of Rs. 5,000 well and truly paid to him by the saidDon James Ramanayake and Mirihanage Sadiris Perera atthe execution of these presents (the receipt whereof he dothhereby admit and acknowledge) doth hereby transfer, assign,set over and assure, unto the said Don James Ramanayakeand Mirihanage Sadiris Perera, their heirs, executors,administrators and assigns, etc. ”
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The Habendum clause in the deed reads as follows:—
To have Hold receive and Take the said moneys herebyassigned and every part thereof unto the said Don JamesRamanayake and Mirihanage Sadiris Perera and their afore-written for their own use and benefit absolutely
However, the attestation states that for the consideration ofRs. 5,000 a Promissory Note of the same date was given by theassignees in favour of the assignor. The note has not been pro-duced and no positive evidence has been led to prove whetherthe money was received by or paid to Premaratana Therunnanse.
The said Don James Ramanayake and Mirihanage SadirisPerera thereafter on 1.10.1934 applied to the District Court incase No. 52300 (Colombo) to have themselves substituted in placeof the plaintiff (execution creditor) and moved for an order tosell the three mortgaged properties. Thereafter the mortgagedproperties were sold. At the sale the two substituted executioncreditors purchased two of the three lands on Deed No. 919 dated30th July, 1935 (P12) while the 3rd land was purchased by athird party. The substituted execution creditors had drawn thesum of Rs. 500 being the proceeds of sale deposited in Court. Itwould thus appear from the documents that the said Don JamesRamanayake and Mirihanage Sadiris Perera had obtained creditin Rs. 3,250 and obtained cash Rs. 500 on the sale in execution.The said Pemaratana Terunnanse died on 27.3.1937 accordingto the Death Certificate (PI).
The next document in the chain of title is Deed No. 5647 dated27.8.1938 (P13) by which Don James Ramanayake and Miriha-nage Sadiris Perera sold one of two lands purchased by themon Deed 919, namely the land which is the subject matter ofthis action to Madiwala Dhammatilaka Therunnanse of Wijaya-siriwardhanaramaya for Rs. 2,500 (well and truly paid to themby the purchaser). In the attestation the Notary certified thatRs. 500 was paid in cash in his presence and Rs. 2,000 was acknow-ledged to have been received earlier. On the same date the saidMadiwala Dhammatilaka Therunnanse of Wijayasiriwardhana-ramaya borrowed Rs. 500 on Deed No. 5648 dated 27.8.1938 (D3)from the Withanage Carolis Perera and the attestation statesthat Rs. 500 was paid in cash in the presence of the Notary.The discharge of this bond has been registered on 5.4.1939.
Thereafter according to the documents produced at the trialMadiwala Dhammatilaka Maha Isthavira, the Viharadhipathi ofWijayasiriwardhanaramaya, leased this land for Rs. 5,000 for5 years to Carolis Perera Morawaka the defendant-appellant in
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this action on Deed No. 8287 dated 1.1.1960 (P17). Again by leaseBond No. 12639 dated 17.1.1965 (D4) the said Madiwala Dhamma-tilaka Maha Thera leased the said land for a further period of5 years from 8.1.1965 for Rs. 5,000 to this defendant-appellant andaccording to the attestation this sum was paid before the Notary.
The said Madiwala Dhammatilaka Isthavira having possessedthe said premises from 1938 by himself and through his lesseesdid by Deed No. 14558 dated 17th May, 1967 (P14) sell the saidland to the defendant-appellant for Rs. 25,000. The deed describesMadiwala Dhammatilaka Isthavira, the Chief Incumbent ofWijayasiriwardhanaramaya. In the attestation the Notary certi-fies that Rs. 15,000 was paid in his presence and that MortgageBond No. 14559 of even date was given for the balance ofRs. 10,000. The Mortgage Bond No. 14559 had been produced as07 and the deed states that the defendant-appellant had mort-gaged the said land to Madiwala Dhammatilaka Thero, the Vihar-adhipathi of Wijayasiriwardhanaramaya with a promise to paythe said sum of Rs. 10,000 to him, his heirs, executors, administra-tors and assigns with interest at 2 per cent per annum. Thismoney due on this Bond had been paid to the said DhammatilakaTherunnanse and discharged (D7A). The next document produc-ed is an affidavit dated 2nd July, 1967 (D5) given by MadiwalaDhammatilaka Thero, the Viharadhipathi of Wijayasiriwardha-naramaya to the effect that he sold the said land for Rs. 25,000of his own free will.
The said Madiwala Dhammatilaka Thero died on 30th May,1968, at the age of 30 years according to the Death Certificate(P3).
On a bare analysis of the above documents and the recitalscontained therein there is a total absence of any evidence thatthis land was at any time purchased with temple funds or thatthe income from the lands were appropriated by or used for thetemple.
On the 4th of July, 1969, the Rev. K. Dhammaratana Thero, theplaintiff-respondent filed this action as controlling Viharadhi-pathi of Wijayasiriwardhanaramaya against the defendant-appel-lant challenging the validity of the sale of the land in disputeon Deed No. 14599 dated 17th May, 1967, (P14) seeking a declara-tion of title to the said land on behalf of the said Temple on thebasis that the purported conveyance by his tutor DhammatilakaThero was not valid and or of no force or effect in law as theproperty at all material dates belonged to the said Temple.
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The plaintiff-respondent made this claim on the basis thatPemaratana Therunnanse had lent Temple Money on MortgageBond No. 281, that as Viharadhipathi he obtained a hypothecarydecree in case No. 52308 of the District Court of Colombo, thatas Viharadhipathi he assigned the said Decree to Don JamesRamanayake and M. A. Sadilis Perera in trust for him as Vihara-dhipathi, that the assignees obtained the Secretary’s transferNo. 919 for this land in their name and in pursuance of the saidTrust conveyed the same on Deed No. 5647 dated 27th August,1938, to Madiwala Dhammatilaka Thero who had succeededPemaratana Therunnanse as Viharadhipathi of the Temple.
The defendant-appellant filed answer denying the avermentsthat the mortgage No. 281 was executed with temple funds, deny-ing the alleged Trust and pleaded that the land in dispute wasthe pudgalika property of Madiwala Dhmmatilaka Thero andthat he had lawfully bought the same from him. He furtherpleaded that he was a bona fide purchaser for value withoutnotice of the alleged trust. The defendant-appellant had admit-tedly paid Rs. 25,000 to Dhammatilaka Therunnanse for a landwhich he had bought for Rs. 2,500.
At the trial the following issues were raised:—
Is the plaintiff the controlling Viharadhipathi of
Is the said temple exempted from the operation sectionof the Buddhist Temporalities Ordinance, Chapter318?
Was Talapathpitiya Pemaratana Thero, Viharadhipathi
of the said temple at the material dates ?
Did the said Pemaratana Thero advance from temple
funds a sum of Rs. 3,500 to Alex de Silva on mortgagebond No. 281 of 17.7.1930 ?
(It is admitted that the mortgage bond decree wasentered on the said bond in case No. 52308 of this Courtin a sum of Rs. 4,732.32).
Was the assignment of the said decree by Deed No. 851
of 1934 by the said Pemaratana Thero, in trust for himas Viharadhipathi ?
Did the said assignees on the conveyance to them on
deed No. 919 of 1935 hold the said premises in trustfor the said temple ?
Did Dhammatilake Thero succeed Pemaratana Thero as
Controlling Viharadhipathi. ?
Morawaka v. Dhammaratna Thero
(Victor Perera, J.)
(?) Was the conveyance on deed No. 5647 of 27.8.38 toDhammatilake Thero in pursuance of the said trust ?
Was the conveyance by Dhammatilake Thero on Deed
No. 14558 of 17.5.67 for any consideration ?
(a) Did the said Dhammatilake Thero have any legal
title to the said premises ?
Was the said premises by reason of the facts averredin paras (2) to (?) of the amended plaint in thehands of Dhammatilake Thero, Sangika Property ?
Were the said premises possessed by Dhamma-tilake Thero as Viharadhipathi of the said Temple ?
Did the temple acquire prescriptive title thereafter ?
Was the said Deed No. 14558 of 1967 executed by the
said Dhammatilake Thero, acting in collusion withthe defendant with the object of depriving thesaid temple of the said premises ?
Did the said deed No. 14558 convey any title to the
defendant and or was it valid or of any legal effect ?
What damages, if any is the plaintiff entitled to ?
Was the defendant bona fide purchaser for value of the
said premises without notice of the alleged trustreferred to in the plaint ?
Did the said Dhammatilake Thero the grantee on deed
No. 5649 of 1938 referred to in para (?) of the amendedplaint hold the property in trust for the said templeas alleged by the plaintiff ?
Even if issue 9 (6) and/or issues 12 and 13 are answered
in the affirmative, is the defendant bound by thealleged trust ?
Tne plaintiff-respondent called as his witnesses Don JamesRamanayake, Prematilaka Wijesiri, D. S. Ranasinghe and hehimself gave evidence.
The defendant-appellant called as his witness H. W.Gunasekera, the Notary who attested the deed in his favour andalso gave evidence himself.
After the addresses of the respective Counsel who appeared atthe trial, the learned District Judge gave judgment on the 16thMarch, 1971, answering issues 1, 2, 3, 6, 8 in the affirmative,issues 4, 5, 7 in the negative. In regard to issue 9 he answeredissue 9 (a), (b) and (e) in the negative namely that this propertywas not Sangika Property and issue 9 (d) in the affirmative andentered judgment for the plaintiff.
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The learned District Judge held on the evidence that there tonsno trust established by the assignment of the mortgage bond(Pll)or on the Secretary’s conveyance P(13).
The learned District Judge, however, proceeded to considerwhether the land in dispute could be treated as “ SangiltaProperty ” and having considered the submissions made and theevidence came to the finding that the property when it waspurchased by Don James Ramanayake and Sadilis Perera ondeed No. 919 in execution (P12) ioas not “ Sangika property
This finding of the learned District Judge on the aforesaidfacts cannot be disputed when one examines the documents andthe oral evidence. In the first place there is no evidence in themortgage bond 281 dated 17th July, 1930, (P7) that PemaratanaTherunnanse lent temple funds. Three lands were mortgaged.The subsequent hypothecary decree was in respect of all threelands. The Secretary’s transfer No. 919 dated 30.7.35 (P12) wasin respect of only two lands including the land in dispute andthe 3rd land was sold to a stranger. The said sale by Don JamesRamanayake and Sadilis Perera 5647 dated 27.8.38 (P13) is inrespect of only the land in dispute. These facts clearly indicatethat this property alone could not be regarded as temple property'’while the other two lands went into the hands of outsiders. Oneland continued to remain in the hands of Don James Ramanayakeand Sadilis Perera and the third land was purchased by a thirdparty. The contention that the assignment of the decree, theSecretary's transfer and the subsequent transfer of this oneland alone to Dhammatilake Unnanse cannot be regarded as anacknowledgement that this was land belonging to the templewhile the other lands did not belong to the temple. In spite ofthe evidence of Don James Ramanayake and the plaintiff, theabove documents disprove the assumption that the assignmentof the mortgage decree was merely a sham transaction allegingthat Pemaratna Unnanse who sued on the bond as plaintiff hadreligious scruples in executing the decree personally in his name.Pemaratana Therunnanse was satisfied with the Promissory Notefor 5,000. Therefore even if the original investment was out oftemple funds, when Premaratana Therunnanse took the Promis-sory Note he ceased to have any further interest in the land. Thelearned District Judge was therefore right in holding that whenDon James Ramanayake and Sadilis Perera purchased this landand another on Deed 919 (P12) the land did not form landbelonging to the temple or form *‘ Sangika Property ”.
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Having disposed of these two contentions the learned DistrictJudge considered the submissions made by the learned Queen’sCounsel who appeared for the plaintiff at the trial, namely—
that the land was regarded and dealt with as “ Sangika
Property ” and
that Dhammatilake Thero by possessing it on that basis
for the prescriptive period has acquired a title to it as
“ Sangika Property
The learned District Judge having held that the land in' thehands of Don James Ramanayake and Sadilis Perera on DeedNo. 919 of 1935 (P12) was not temple or Sangika Property it wasnecessary for the plaintiff to prove that when they sold this landon Deed No. 5647 dated 27.8.38 (P13) to Dhammatilake Thero theproperty became temple land or acquired the character of.
Sangika Property ”. The terms of the deed itself do notindicate that the land was bought with the temple funds or thatDhammatilake Thero even purported to purchase the same as,Viharadhipathi. The consideration was Rs. 2,500. Rs 2,000 was.acknowledged to have been paid earlier and Rs. 500 was paidin the presence of the Notary. The defendant-appellant hadproduced mortgage bond No. 5648 (D3) executed on the samedate by which Dhammatilake Therunnanse had borrowed Rs. 500from one Vithanage Caroiis Perera agreeing to pay interest at16J per centum and it was this sum of Rs. 500 that was paid onthat date when he purchased the property. It is to be notedthat in executing this mortgage bond he did not describe himselfas the Viharadhipathi and that under this bond he bound himselfhis heirs, executors, administrators.
The learned District Judge, however, had held with theplaintiff-respondent on these two points merely on the oralevidence of Don James Ramanayake.
At the argument of this appeal Mr. Ranganathan, Counsel forthe defendant-appellant, strenuously challenged the learned.District Judge’s findings on these two points. In regard toSangika Property he contended that there must be evidence of aformal dedication to the Sangha in order to convert property intoSangika Property and that mere possession of property cannotconvert property purchased by a Bhikku into Sangika Property.His contention was that to become Sangika there must be aformal dedication or gift to the Sangha as a whole and that apurchase in favour of any Bhikku whether he was officiating asViharadhipathi or otherwise could not convert such a propertyinto Sangika and that at most the property will be held by the
1*—A 57457 (81/06)
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individual Bhikku as a trustee in terms of the deed if therewere any conditions set out in such a deed. A number of autho-rities were submitted in which the distinction between‘Pudgalika’ and ‘Sangika Property’ were discussed.
According to the precepts of the Buddhist Law a man bybecoming a priest loses all rights of inheritance to the propertyof his parents (see Perera’s Armour, p. 51). This rule appearsto have become a dead letter, for the rights of priests to possess,inherit and succeed to property have been acknowledged by ourCourts of Law, “ The situation of Priest in Ceylon ” says Hardy,
“ is at the present very different to that which was intended atthe commencement of this Order by its Founder ” (1),
In a case No. 2743 C. B. Kegaila (2) a priest was non suited onthe ground that being a priest he could not possess property, theCommissioner no doubt, proceeding on the old rule laid down in(Sawers Digest, p.,7) “that to take the robes was to resign allearthly wealth ”. The Supreme Court, however, in setting asidethe order sent the case back for hearing and judgment remarkingthat the Ceylon Courts of Law have consistently held thatpriests have the same rights as laymen.
In a case reported in 1882(3), in an action by a Buddhist priestupon a mortgage in favour of the plaintiff’s predecessor in theincumbency of a Pansala to recover the money due on the bond,the plaintiff claimed that the deceased priest had acquired themoney advanced on the mortgage by the sale of the coffee grownon the Pansala Land. The Commissioner dismissed the suitholding that the mortgage passed not to the mortgagee’s spiritualsuccessor but to his temporal representative. The SupremeCourt upheld the decision of the Commissioner by stating that atemple incumbent holds temple’s lands subject to the duty ofmalting provision out of the revenues for the maintenance ofthe temple. Anything which he saves out of the revenue and diespossessed of passes to his legal representatives, that is the personwho would be his legal representative were he a layman. Clarence
J.stated “in my opinion the current of modern decisions pointsto that conclusion ” and referred to cases (4) and (5).
In a Kandy case D.C. 67849 (6), the Supreme Court held asfollows: —
“ The plaintiff sues as a pupil of a deceased priest on a bondand Promissory Note granted by the defendant in favour ofthe deceased priest. The parties intervene in the case, onecalling himself a pupil of the deceased priest and the otherhis brother and there is no doubt that if the Bond and
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Promissory Note are not temple property the brotherwould be the party entitled to them. The two documentson the face of them are a Bond and a Promissory Note infavour of the deceased priest. There is nothing in them toshow that they are trust property which would go to theheirs and we tkink the District Judge was right in holdingthat they were the private property of the deceased priest ”,
But temples in Ceylon were possessed of extensive tracts ofland most of them granted by ancient kings and chiefs as offeringsto the Buddha (see Tennent, Vol. I, pp. 363, 374, 406) (Marshall’sJudgments, p. 382). On the death of the Incumbent, if the templeis held in Sisyanu Sisya Paramparawa (pupilary succession) theproperty decends on his pupils who thereupon assume the entirecontrol and management of it.
It is in this context, that landed property of each temple wasfrom the ecclesiastical point of view Sangika, that is regarded asdedicated to the whole body of priests at large even where therewas no deed of dedication for the practical purposes of municipallaw it was possessed by the Incumbent for the time being of theVihare to which the landed property, appertained or wasappropriated. There was no conversion of private property intoSangika Property but merely a possession for or on behalf of thetemple which though in law was not a juristic person v/asregarded as an Institution.
This w'as the position till the enactment of the BuddhistTemporalities Ordinance No. 8 of 1905 which become law on25th August, 1905. Section 20 vested in elected Trustees all pro-perty movable and immovable belonging to in any wiseappertaining to or appropriated to the use of any temple togetherwith all the issues, rents and profits of the same. Where anIncumbent of a Vihare to which no Trustee was appointedpossessed lands not expressly gifted or dedicated to the Viharehe was in the position of a de-facto trustee for the VihareRanasinghe v. Dhammananda (7). It was in this backgroundthat the Supreme Court held that such a de-facto trustee couldacquire title by prescription for the benefit of a Vihare. But itdid not hold that there was a conversion into Sangika Property!
Mr. Ptanganathan, Q.C., cited the case of Wickremasinghe v.Unnanse (8), where the Supreme Court held that it is by a giftthat a temple or any other property can become “ SangikaProperty ” and that the very conception of a gift requires thatthere should be an offering or dedication. Until a dedicationtakes place the temple remains “ gihi Santaka ” (lay property).This dedication may take the form of a writing or may be verbal
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but in either case it is a formal act, accompanied by a solemnceremony, in the presence of four or more priests who representthe Sarva Sangha or the entire priesthood. A dedication may bepresumed in the case of a temple whose origin is lost in thedim,past. That was an action in which the plaintiff was claiminga declaration that certain premises in the Fort of Galle whichhad for some years been used as a Buddhist temple and calledSudharmalaya were not “ Sangika Property ”, The evidence ledin the case was that in 1887 a Society under the name of Sudhar-marana Sangamaya was formed for the purpose of the promotionof Buddhism generally and particularly for the establishment ofa place of worship in the Fort of Galle. By a process of gradualevolution the premises in dispute devolved into the character of atemple through the efforts of this Society which acquired abuilding there. In spite of the fact that the place became a centreof religious worship, the Supreme Court held that these premisesnever became ‘ Sangika Property ’.
In the case of Runasinghe v. Dhammananda (7) earlier referredto, there was an appeal which was filed from the Supreme Courtjudgment. The Privy Council judgment is reported (9), and itwas there decided that the lands had been acquired by theIncumbent of the temple on Crown grants and Certificates ofQuiet Possession and the Court held that on the death of theIncumbent the title was transmitted to the succeeding Incumbent.
In Dhammananda Nayake Thero v. Piyaratana NayakeThero (10) the Supreme Court and later on an appeal therefromto the Privy Council (11), the Court was called uponto examine the case in which by a deed executed in 1876a land was dedicated to a Buddhist priest named Sri Sumangalafor the establishment on it of a Pirivena for the teaching of theprinciples and precepts of the Buddhist faith “subject alwaysto the protection and orders ” of a certain Sabha. The deed furtherstated that Sri Sumangala as the Principal of the Pirivena hadagreed “ to accept this as a deed of trust subject to all the afore-said directions, stipulations and conditions. ” The instituteestablished upon the land was known as the Vidyodaya Pirivenaand also sometimes Maligakanda Temple. The Privy Councilagreed with the finding of the Supreme Court that the Institutionwas from its original dedication and had always remainedessentially a Pirivena, an educational establishment and heldthat the Institution was governed by the Trusts Ordinance andnot by the Buddhist Temporalities Ordinance.
However, the point stressed by Mr. Jayewardene, Q.C., atthis appeal was that here was a type of land which was regarded
CA Morawaka v. Dhammaratna Thero (Victor Perera, J.)
as Sangika Property though there was no temple and that thesuccession to Sangika Property (whether temple or not) may begoverned by the terms of the act of dedication to the exclusionof the Buddhist Rules of succession.
After the conclusion of' the submissions, Mr. Ranganathan, Q.C-,cited a recent unreported judgment of Samarakoon, C.J., Ismail,J. and Sharvanand3, J. (12), with notice to Mr. H. W. Jayewar-dene. This case was decided on 25th May, 1978. The plaintiff-respondent in that case instituted an action against the defendant-appellant for a declaration that he was the lawful Viharadhipathiof a temple called Rama Vihara situated in Kandy. The plaintiffclaimed the property as Sangika. The defendant claimed thatthe property was Pudgalika. The premises were first acquiredby one Suriyagoda Sonuththra Thero on a Crown Grant dated30.3.1883. According to the evidence a temple was constructedon this land. The Court following the judgments of the SupremeCourt (8), (13), (14), referred to earlier, held that the merefact that a temple has been given to the Sangha does not makeit Sangika and that it must be dedicated in the manner pres-cribed by the Vinaya to become Sangika.
However, in the present case, the learned District Judgehaving clearly held that the land in dispute was not Sangikaproperty in the hands of the Dhammatilake Therunnanse hasmis-directed himself by assuming that merely because Dhamma-tilaka Therunnanse who officiated as controlling Viharadhipathiand possessed the land for over 30 years till he sold the samethere was a conversion in the character of the property andthat he had acquired a title to the said land as ‘SangikaProperty’ by prescription. If Dhammatilaka Therunnansepossessed the land for over 30 years, he would have prescribedagainst his vendors Don James Ramanayake and Sadilis Pereraand that possession would ensure to the benefit of his transfereethe defendant-appellant. But in the absence of any proof that theland was purchased with temple funds, that the income derivedby leasing the land was utilized for the temple, in the absenceof any gift or dedication to the temple, there was no justificationfor the learned District Judge holding that the land in disputebecame ‘ Sangika Property ’.
I therefore allow the appeal of the defendant-appellant, setaside the judgment of the learned District Judge and dismissthe plaintiif-respondent’s action with costs. The defendant willbe entitled to costs of the appeal.
SOZA, J.—I agree.