MORONTUDUWE SRI NANESWARA DHAMMANANDA NAYAKA THERO, Appellant, and BADDEGAMA PI

094-NLR-NLR-V-59-MORONTUDUWE-SRI-NANESWARA-DHAMMANANDA-NAYAKA-THERO-Appellant-and-BADDEGAMA-PI.pdf

412 Ulorontuduwe Sri Naneswara Dhammananda 1Vat/aha Thera v.'Baddegama
. -Piyaratana Nayaka Thera
Present :H. N. G. Fernando, J., and T. S. Fernando, J.
MORONTUDUWE SRI NANESWARA DII AMMAN AKD A KAYAK A.THERO, Appellant, and BADDEGAMA ' PIYARATANANAYAKA THERO cl at… Respondents
S. C. 26, with S. G. 73 (Inty.)%ind S. G. 102 {Inly.)—D. G. Colombo 2SS2JL
lluddhist ecclesiastical law—jIaligakandc—Pirivena established for religious edu-cation—Not a “ temple ”—■Buddhist Temporalities Ordinance, s. 2—Dedi-cation of immovable property Jor establishing a pirivena or a temple—Giftdescribed as “ sanyhika ”—Succession to incumbency—Regulation thereofaccording to the terms of the dedication—'Charitable trust—Trusts Ordinance,s. 113 [!)—Expulsion of a monk from a vihare—Principles applicable thereto. (i)
(i) Promises dedicated by a porson or an unincorporated body of persons for■ tho establishment of a pirivena to impart knowlcdgo of Buddhism to Bhikkhusas well ns laymen do net constitulo a “ templo ” within tho moaning of section 2of tho Buddhist Temporalities Ordinance even if, subsequent to tho establish-ment of tho pirivena and in the course of the years, a dagoba, ah iraage-housoand a bo-tree appear on tho premises and tho monks residing in tho pirivenapermit lay devotees to come thero on certain-days for worship.
T. S. FJGRXAXDO, J.—.1lorontuduice Sri A’aiicsuara Dliammananda4 13
JVayoka Thero v. Baddcgama Biyaratana Kayaka Thero
(ii) Where immovable property £3 dedicated by notarial deed in favour of aBuddhist priest to establish a pirivena or even a templo and is described in theinstrument of dedication as by way of a sanghika gift, the title to tho propertywould not pass, on the death of the granteo, to the grantee’s pupils accordingto tho rule of sisyanu. sisya paramparatra if express provision is mado to thocontrary in the dedication. Tho succession to tho incumbency is regulated bytho terms of tho dedication, and tho dedicators are entitled to reserve to them*selves tho power to regulate the succession..
Held Jut t her, that such an instrument is not governed by tho Buddhist Tem-poralities Ordinance but creates a valid charitable trust under the Trusts Ordi-nance and that the office of trustee devolves on the.person appointed from timeto time in terms of tho instrument..
. (Hi) A monk residing in a Vihare is liable to be ejected therofrom if ho isguilty, of porajika or contumacious conduct.
from a judgment of (he District Court, Colombo.
H. IF. Jayeuardene, Q.C., with P. Pana-singhe and N. P. M. Dalit-icatte, for the 1st defendant-appellant.
K. Herat, with Stanley Perera, for the plaintiff-respondent.
B. Wikramanayake, Q.C., with II. A. Koattcgoda-, for the 3rdoth, 7th to 10th, 12tlr. 13th, 17th, ISth, 20th to 22nd defendants-respondents.
.Cur. adv. vull. –
February 13, 105S. T. S'. Fernando, J.—
These appeals arise out of a distressing dispute which began in thecourts in 1943 between two Buddhist monks, both holding high rank hithe Buddhist hierarchy in the Island, over the control of a religiousinstitution established in Colombo and referred to in this ease sometimes' as Vidyodaya Pirivena-, and at other times as Vidyodaya Pirivena Vihareor Maligakande Temple.
On 2Gth July 1943 the plaintiff instituted this action alleging that he isthe duly appointed principal of a Buddhist teaching institution knownns the Vid3*odaya Pirivena established on premises described in theSchedules marked -“A” and “ B ” attached to his plaint and seeking
a declaration that lie holds the premises'so described in trust for and astrustee of the members of an unincorporated body of persons called theVidj’adhara Sabha (hereinafter referred to as the Sabha) and (ii) theejectment of the 1st defendant (the appellant on all' three appeals andhereinafter referred to as the appellant). The members of the Sabhareferred to above were added as defendants in the case although, of course,no relief was claimed against them. These members who were theoriginal 2nd to 14th defendants filed answer supporting the position takenup by the plaintiff in his plaints The appellant in his answer, whileconceding the fact of a bare appointment by the Sabha of the plaintiff as .
2*J. X. B -10S6 (6'53.)'
41-4 T. S. FERNANDO, J.—Jiloronfudutce Sri 2Tancswara D/iamtnananda
Nayaka The.ro v. Baddegama Biyaralana jV«yaka Thero .
principal of the Vidyodaya Piriyena, alleged that the appointment of theplaintiff by the persons who claimed to be members of the Sabha wasunlawful, and asserted that the land described in the plaint and thebuildings thereon form a “ temple ” within the meaning of the BuddhistTemporalities Ordinance. He claimed to be the lawful incumbent orviharadhipati of that temple, having been appointed by an instrumentdated 22nd June 1941 by one Jinaratne Nayaka Thero who was allegedto have become the lawful viharadhipati under the rule of successionknown to the Buddhist ecclesiastical law as sisyanu sisya paramparawaon the death of the monk to whom the premises had been transferredat the time they were dedicated to the Sangha, viz. Hikkaduwe SriSumangala Nayaka Thero..
The case came up for trial for the first time on Gt-h November 1944and, on that occasion, after a large number of issues had been framedby counsel and accepted by the Court, the learned District Judge beforewhom the trial commenced decided to try three of the issues, beingissues of law, as preliminary matters “ on the assumption but withoutconceding the truth of the allegations in the plaint ”. The judge byhis order made on 20th November 1944 decided the preliminary issuesagainst the plaintiff and dismissed the action on the ground that theplaintiff had no status to maintain it as trustee of the pirivdna inasmuchas ho had not been duly appointed in the manner set out in Section 113 (2)and (3) of the Trusts Ordinance (Cap. 72). On an appeal preferred bythe plaintiff, to the Supreme Court, this Court by Ha judgment1 deliveredon 25tli October 1946 set aside the order dismissing the action and sentthe case back to the District Court for the determination of the otherissues in the case..
Before the trial could be resumed in the District Court the plaintiffon 2nd April 1947 amended his plaint alleging that he, as principal of thePirivena, is a trustee of a charitable trust for establishing and maintainingin the premises described in the schedule to the plaint a privena for thepurpose of teaching Buddhism. The trial was eventually resumed onlyon 15th May 1950 and, after verylengthj' proceedings in the course ofwhich a number of witnesses were examined for both sides, the DistrictJudge by his judgment delivered on 17th October 1950 held with theplaintiff on most of the material issues and entered judgment for him asprayed for in the amended plaint and ordered the ejectment of the ap-pellant from the premises. Decree was entered accordingly. The mainappeal of the appellant (Appeal No. 26-Final-of 1952) is against thisjudgment and decree.
Before the appeal could come up for argument certain of the defen-dants who had been added as parties as being members of the Sabha—viz., the 2nd, the 6th and lltli defendants—died and the plaintiff soughtto substitute in their places the 18th, the 21st and the 19th defendantsrespectively. The 19th defendant himself died and in his place the plain-tiff then sought to substitute the 20th defendant. In spite of objectionsraised by the appellant to these substitutions on the ground that the
>(10JG) IT jv ./?. 537.
T. S. FERXAXDO, J.—Hforonluduure Sri 2Cancsirara Dftammanaiida -415
2Vai/aia Thtro r. Baddegama Piyaratana .Ynj/nia T/iero
defendants sought to be substituted bad not been duly elected as membersof the Sabha, the District Judge on 1st September 1955 held that theelections were valid and that the substitutions were proper. Interlocu-tory appeal Xo. 73 of 1956 is against this order of the District Judge.
Thereafter, again before Appeal Xo. 26 could be set down for argument-another defendant, t! e 16th. defendant, died and the plaintiff sought to-substitute the 22nd defendant in his place. The appellant again objected,and the District Judge before whom the matter was argued held on 9thAugust 1956 that the election of the 22nd defendant as a member of theSablia was valid and that he had been correctly substituted. Inter-locutory Appeal Xo. 192 of 1956 is against this last mentioned order.
At the hearing before us, counsel for the appellant argued that thesubstitutions had not been properly made and urged the same reasonsthat had been urged on behalf of the appellant in the District Court.It soon became apparent, however, that an3r success of the appellantin the two interlocutory appeals would necessarily involve a bar to thehearing by us of the main appeal (Xo. 26), and we were informed bycounsel that the parties had reached an agreement that for the purposesof Appeal ATo. 26 {Final) of 1952 the substitution of the 18th to the 22nddefendants bo accepted as duly made and that the two interlocutoryappeals be dismissed without costs and that neither party be entitledto the costs of the inquiries in the District Court relating to the sub-stitutions. In terms of that agreement I would therefore direct that thetwo interlocutory appeals be dismissed without costs and that neitherparty is entitled to the costs of the inquiries in the court below relatingto the substitutions.
I can now turn to Appeal Xo. 26. To appreciate the questions thatarise thereon, it is necessary to examine the eases for the plaintiff and theappellant in some detail. At the time of the institution of the actionthere were on the land of about 2 J- acres in extent described in Schedules“ A ” and “ B ” or in Schedule “ C ” to the plaint a large number ofbuildings winch are depicted in plan Xo. 7S6 dated 10th July 1943—marked P 8—made by licensed surveyor Indatissa. They are describedin the plan as a dagoba, a vihare, Sri Sumangala dharmasalawa, theprincipal’s quarters (with bathroom, garage and driver’s room attached),four separate sets of rooms, two separate sets of living quarters, kitchenand dining hall, library, and Sri Sumangala Memorial building. Thereis also a bo-tree on the premises. Xo attempt has been made to find outdefinitely which of the buildings stand on the land described in Schedule“ A ” and which on the land described in Schedule t: B ”. Thopoint is not of any importance in the present dispute as both the plaintiffand the appellant claim both lands ; the plaintiff asserting that togetherthey form the grounds of the Pirivcna of which he is the Principal,while tho appellant claims that they are lands belonging to tho VidyodajmPirivcna Vihare or Maligakande templo of which he is the Yiharadhipati.
The plaintiff’s claim is based on a notarial deed—Xo. 1259 of 9thMarch 1S76—P 2, but to understand the circumstances in which thisdeed came to be executed one has to go back nearly two and a half years
41G T. S. FERjSTATSTDO, J.—Moronluduwe Sri Naneswara DJiammananda
■' Nayaka Thcro v. Baddegamct Piyaralana Nay aka Thcro■
to 6th ^December 1873 when a notarial agreement—No. 925 of that date—P 1 was entered info by thirteen persons in which theso persons declared,
. inter alia, (a) their determination to collect and bo responsible forcollecting a sum of Rs. 6,000 for purchasing a land and for other workin order to establish a pirivena for imparting a knowledge of Buddhismto bhikkus as well as laymen, (b) that a Sabha or Society capable ofreceiving and safeguarding that sum’ of money is necessary, and (c) thatthe thirteen persons are appointed as the Sabha with the name of Vidya-dhara Sabha given to it by the people assembled at Maligakande wattebelonging at the time of this agreement P 1 to L. Andris Perera, one ofthe thirteen persons who constituted the Sabha. By P 1 the thirteenpersons referred to entered into sixteen covenants designed to further theestablishment and maintenance of a pirivena on a land to be purchaser!by tho Sabha.
Three parties took part in the execution of the deed P 2 referred toabove, tho three parties being L. Andris Perera as the party of thefust part, sixteen persons (among whom R. Andris Perera himself wasone) forming members of the Sabha in 1870 as tho party of the secondpart, and Hikkaduwe Sri Sumangala (described as tho Nay aka Thcroof Sri Padasthanaya and Principal of Vidyodaya Pirivena, Colombo)as the party of the third part. This deed recites that the Sabha, liasestablished for the purpose of teaching Buddhism and imparting know-ledge both to bhikkus and laymen an educational institution calledVidyodaya Pirivena in the halls built on the land called Maligakande,valued at Rs. 6,000, belonging to L. Andris Perera, and that the Sabhalias been able to collect only Rs. 2,070 out of the sum of Rs. 6,000 expectedto be collected. Other recitals show that Andris Perera (tho owner ofthe land) in consideration (i) of the payment to him of the sum of Rs. 2,070and (Li) of his devotion to Buddhism and other reasons has, withthe approval of the Sabha, agreed to dedicate the land with the buildingssta2iding thereon to Sri Sumangala Nayaka Thcro, Principal of the Vidyo-daya Pirivena and, on his demise, to the Sanglia including the monkswho succeed to the office of Principal of the said Pirivena as sangikaproperty, so long as they live in accordance with Buddhist doctrine,for the maintenance of a pirivena to impart knowledgo not only toBuddhist monks and laymen but also to all “ religionists ” of all countrieswith no difference in treatment so long as they conduct themselvesin good manner, subject always to the protection and orders of the saidVidyadhara Sabha constituted upon agreement P 2, viz. tho gentlemenforming the parties of the second part, and on their death those joiningthe said Sabha. After a further recital that Sri Sumangala Naj-akaThcro as Principal of the said pirivena and on behalf of the Principalswho may be appointed on his demise by the said parties of the second partand on their deaf7t by those succeeding them has agreed to accept thisas a deed of trust subject to all the aforesaid directions, stipulations and‘ conditions, the habendum clauso of the deed gives and assigns to SriSumangala Nayaka Thero and, on his demise, to tho Principals who may .be appointed to the pirivena from time to time by the Sabha the promisesdescribed in Schedule “A ” to the plaint as and by way of a dedication.absolute and irrevocable and as sangika properly.
T. S. FERXAJJDO, J.—jiforonluditwe Sri jS'anesivara Dhnnvn.ananda 417
Xayaka Thero v. Baddcgmna Biyaralana Xayaka Thero
The deed also contains two clauses, one providing for the framing ofrules and regulations by the Sabha and conferring authority on theSabha with the approval of a Sangha Sabha to remove Principals whotransgress such rules and regulations, and the other declaring that theSabha shall have no right to give directions or frame rules regarding theinternal affaira of the pirivena and that the monies who from time to timehold the office of Principal shall have the right to attend to internalaffairs without interference or obstruction from the Sabha.
Bight 3-ears after the execution of P 2 there was executed transferXo. 213-1 of 4th -April 1SS4—P 3—bj' which certain premises called“Palm House” adjoining the land dealt with Ly P 2.was transferredby one Dharmagooncwardcne to Mabotuwane Siddhartha Thero. Thisis the land described in Schedule “ J3 ” to the plaint, and it is not disputedthat buildings of the present Vid3rodaya Phi vena or Malignkande Temple,whichever name one gives to the institution, stand on the premisestransferred by" P 3. It was the plaintiff’s ease that Siddhartha Theroheld this property in trust for the charitable trust created by deed P 2.Siddhartha Thero, it may here be stated was a pupil of Sri SumangalaXayaka Thero, but predeceased his tutor. The appellant did not denythat the land described in Schedule :t B ” was not the pudgalika orprivate propert}' of Siddhartha Thero. His contention was that thepremises were being treated as sangika property of the MaligakandaTemple, and that the legal title thereto vc ted on Siddhartlia’s deathin the Viharadhipati, Sri Sumangala Xayaka Thero, and on tho latter’sdeath passed according to the rule of sisyanu sisya paramparaiva.
There is no dispute in this ease that Sri Sumangala Naj-aka Theroperformed the duties of Principal of the Vi d 3-0 day a Pirivena from about1876 to the time of his death in 1911. The plaintiff claimed that in1911 the Sabha appointed Xanissara Na3raka Thero to succeed SriSumangala. Xayaka Thero as Principal and that the former held thisoffice until his own death in 1922 whereupon the Sabha appointedBatanasara Xajuika Thero as Principal. It is not without somesignificance in the dispute arising in this ease that Batanasara Xaj’akaThero was not a monk belonging to the line of succession or pnrainjiaraicaof the first Principal, Sri Sumangala, whom the appellant claims wasnot only principal but also the Viharadhipati at Maligakandc.Batanasara Xajaka Thero held office as Principal until 1936 when hehimself died, and the Sabha thereupon by letter P 19 of 7th March 1936invited the plaintiff, who was at this time Vice-Principal of the Pirivena,to act as Principal in addition to his duties as Vice-Principal. By theletter P 20 of the same date the Sabha invited the views of the tutorsof the pirivena on tlie question of a suitable successor to the deceasedBatanasara. It should be mentioned at this stage that the appellanthad been a tutor at this pirivena for sometime prior to 1934. He appearsto have fallen ill in 1934 and spent some months in hospital. He doesnot appear to have been assigned any teaching work on his return fromhospital, and the plaintiff’s evidence indicates that this was due to thefact that the appellant had incurred the displeasure of Batanasara.However that may be, the appellant addressed the Sabha letter P 13
418 T. S. FERXANDO, J.—J/orontuduwe Sri Naneswara Bhammananda
22 ayaka Thero t?. Baddega ma Piyaratana WayaKa Thero – ' -.
of 28tli March 1936 which is nn application for the post of Principal.The Sablia at a meeting held on 6th April 1936 unanimously decided,to appoint the plaintiff to the permanent office of Principal and informedhim accordingly by letter P 26 of 7th April 1936. In this letter theSablia informed the plaintiff that they thought “ it would be good if theappellant who had been a tutor at the pirivena could again be appointedas a tutor Notwithstanding this suggestion of the Sablia, the plaintifFdid not appoint the appellant as a tutor, and the appellant who was-residing in the premises of the pirivena or vibare addressed-the Sabbano less than four letters (P 14 to P 17) between 22nd May 1936 and13th May 1941. In one of these letters P 16 of 7th May 1940, theappellant wrote :— “ Even now I am maintained as a teacher of thepirivena by the Vidjadhara Sabha which supplies all my needs. In thecircumstances I most kindly request you to consider whether it is fairor just not to get a Bhikku of my standing to render the service thatshould be given through this pirivena to the religion ”. By the next-letter P 17 of 13th May 1941, the appellant sought an interview withthe Sabha with a view to his reappointment as a tutor. It has to benoted that the appellant addressed not only the Sabha on this matterbut within a period of one month wrote repeated letters, viz. P 27 toP. 30 of 28th June to 28th July 1940, to the plaintifF himself to the sameend. These requests were ignored by the plaintiff and it may not beirrelevant to notice that the appellant had incurred the displeasure, asmentioned earlier, of Batanasara Nayaka Thero and also of the Sabhaby reason of a fast he had undertaken at the pirivena premises in protestagainst the levy by the Sabha of certain fees from pupil monks on accountof electricity and municipal rates. The letters P 14 to P 17 and P 27 toP 30 are eloquent evidence of the feeling of frustration from which theappellant, himself a monk of learning and the incumbent of the veryimportant temple of Sri Padasthanaya, suffered at this time by reasonof what he appears to have considered a deliberate affront to hisdignity.-
While in this state of frustration the appellant- received what purportedto be an appointment—P 7 of 22nd June 1941—as Viharadhipati of theVidyodaya Pirivena Vibare at Maligakande. The appointor wasJinaratana Nayaka Thero who claimed in the document to be the lawfulViharadhipati. The plaintiff and the witnesses called on his behalfwere emphatic that Jinaratana Nayaka Thero who was the aged in-cumbent of a temple at Hunupitiya in Colombo had nothing to do withthe Vidyodaya Pirivena or Maligakande Temple, whichever name ispreferred, and that any visits he paid to Maligakande were few and farbetween and were limited to conversations with one Pemananda Therowho held tho office of Kurthiadhikari or Manager of the Pirivena, anoffice to wliich he had been appointed by Sri Sumangala Nayaka Thc-ro.Armed with the deed P 7 the appellant began to conduct himself in sucha way as to make it at first difficult and later impossible for the pirivenato function as a teaching institution in the way the plaintifF wanted orbelieved he had a right to conduct it. The restdt was the institution ofthis action in July 1943.
T. Sf. FEBIWJfDO, J.—Alorontwluwe Sri yancswara Dhommanar.da 419
Wayakn Thero v. Baddegama Piyaratanci jrayaka Thcro
The answer of the appellant to the plaintiff’s claim may be summarisedshortly as follows :— There is in these premises a “ temple ” within themeaning of the Buddhist Temporalities Ordinance (Cap. 222) known asVid3*odaya Pirivena Vihare or as Maligakandc Temple with a Vihara-dhipati controlling it, and also a pirivena or teaching institution knownas Vidyodaya Pirivena with a Principal or Parivenadhipati at its headwho is appointed with the approval of the Viharadhipati. He claimedto be the Viharadhipati while conceding to the plaintiff the appointmentas Parivenadhipati and contended that the pirivena is carried on as apart of the temple. The premises, he contended, were dedicated to SriSumangala Haj-aka Thero by way of a sangilca gift with the result thatthe dedicator and' everj' member of the laity ceased immediately tohave aiy control over the premises, and that P 2 constituted a dedicationin general sangika or, in other words, to the entire body of the Buddhistc-Ierg3r. Being sangika property, so tlieargument proceeded, the propei^’attracted to itself the rules of succession known to Buddhist ecclesiasticallaw as the sisyanu sisya paramparaiva and that the office of viharadhipatidevolved in 1911 on the death of the first viharadhipati, Sri Sumangala,on his senior pupil, Jinaratana, and then in 1941 by appointment fromthe latter—vide P 7—on him the appellant. . .
Admittedly, there were at the time of the institution of this actionand there are now in the premises the subject of this action all thebuildings and equipment associated with a large Buddhist pirivena aswell as with the average Buddhist temple found in this country. Theplaintiff contends that the pirivena was established first and, as itapparent^ began as a residential teaching institution, the erection ofbuildings and the growth of other things helpful in assisting the pupilsand tutor's to engage themselves in worship which is a necessary partof the life of Buddhist monks was only natural, and that the institutiondid not thereby become converted into a temple even as a Christianresidential college does not lose its principal characteristics of a teachinginstitution merel3r because a chapel is erected to enable the students toattend divine worship. The appellant, on the other hand, contendedthat an aramaya or dwelling-place of Buddhist monks existed on theland with sufficient characteristics of a temple before a pirivena cameto be established b3r Sri Sumangala- Hayaka Thero with the assistanceof the Vid3*adhara Sablra, and that the pirivena was merely an adjunctof the temple.
The trial judge has found that the pirivena came up first or, at a'.13'rate, the aramaya came up with it, but in either ease the aramaya, wasan adjunct of the pirivena ; he has also found that the pirivena wasestablished by the Sabha and not by Sri Sumangala Hay aka Thero.These findings have been criticised by appellant’s counsel. There wasno witness available at the time of the trial who was living about the3'ear 187G and able to give evidence on the question of what came first—a pirivena or an aramaya—-, but a close examination of the old deeds,
P 1, P 2 and P 3 shows that these findings of the trial judge are correct.
It is significant that in P J, tho earliest of the three deeds, there is nomention whatsoever of an aramaya or, indeed, even of Sri Sumangala
. 4 20 T. S. FERNANDO, J.—jUIoronludutce Sri Xanesu-ara Dfiammarumda
Nayaka 'S'hero v. Baddcgama Piyaratana Nayaka Thero-
Hayaka Thero. : If this learned monk was resident in an aramaya onthis land iii 1S73 or .had decided to erect a pirivena thereon with thehelp of the Sabha, mention of the fact in the deed was almost inevitable.On the contrary; P 1 indicates that the Sabha which had met on this -very land was then on the look out not only for a suitable land for estab-lishing the pirivena, but- also for a suitable monk of learning to be installedas principal. ■ There is no doubt raised that, of the monks living at thetime, Sri Sumangala Nayaka Thero enjoyed unquestioned pre-eminenceas a scholar and was the obvious choice for the office of principal, if hewas willing. If an aramaya had existed on this land in 1873, and SriSumangala had any connection with it, it would have been highly probablethat his name would have appeared prominently in this deed. Two anda half years later, when this very land on which the members of theSabha met in 1873 was dedicated to Sri Sumangala, there is a referenceto the fact that an aramaya had come into existence. Since P 2 con-stituted the dedication, whatever the implications or the extent of thededication may be, it is self-evident that at the time of its execution,viz. Oth March 1876, it was private property and not sang if: a. Accordingto the evidence, whatever meaning the word aramaya bore originally,it began to attract to itself the special meaning of a residence of monks.Therefore, even if the aramaya that existed in 187G was a residence ofmonks, it was such a residence on private premises which had hithertonot been the subject of a gift to monks in any' form. When the adjoiningpremises, “ Palm House ", were gifted to Siddhartha Thero in 1SS4 bydeed P 3, the northern and eastern boundaries of “ Palm House "are referred to as land belonging to the temple. The reasonable con-clusion froni these facts is that between 1873 and 1S76 the land earmarkedfor dedication for the purpose the Sabha formed in 1873 contemplatedhad been utilised for the erection of certain buildings a3 residences forthe monks who would be pupils and teachers at the pirivena.
Before I consider the soundness of the plaintiff’s claim that P 2 createda charitable trust for religious education, it would be useful to examinethe contentions advanced by or on behalf of the appellant. One of themis the claim that there exists on these premises a “ temple ” within theinenning of the Buddhist Temporalities Ordinance. Section 2 of thatOrdinance defines a- “ temple ” as meaning a viliare, dagoba, dewale,-kovila, avasa or any place of Buddhist uorshijj, and including the DaladaMaligawa, the Sripadasthanaya and the Atamasthana of Anuradhapura.The importance to the appellant of this claim is that, if it is a " temple ",then, not being a temple exempted from the operation of the Ordinanceby proclarnation as indicated in Section 3, the property belonging to thetemple ” and the Management thereof is by sections 4 (2) and 20 of theOrdinance vested in the Viharadhipati which office he claims he holdsby virtue of P 7.-.
It is. correct to say that the definition of "temple ” in the Ordinanceis very wide and, as has been observed in Romanis Fernando v. WimalasiriThero1, “ no particular type of building or buildings is necessary toconstitute a temple ”. At the same time, the essential character of a■'(10*1) 53 X. L. Ii. 215.-.,
T. S. l-T!RX.XDO, J.—Jloroniitduice Sri X’attesirara Dhammananda 421
yayaka Thero r. Tiaddeyama Piyaralana yayaka ITfiero
*' temple ” i3 that ifc is a place dedicated primarily for Buddhist worship.The evidence shows that the pirivena on these premises has grown fromvery modest beginnings until it had on its rolls, at the time* of the presentsuit, about S00 pupils from all parts of the Island, and even from foreigncountries. A place where' such a large number of monks foregathermust sooner or later, especially if it is at least partly residential, makefacilities available for worship which one understands to be an importantpart of the Buddliist religion. The evidence suggests that quite earlysuch facilities were made available, and iu the course of the years adagoba, an image-house and a bo-tree appeared on these premises. Theplace also attracted lay Buddhists from the neighbourhood who it may■ be assumed came there, particularly on full moon days, only for worship.The evidence places the number of lay devotees coming there on full moondays at over a thousand. They attend at the dagoba, image-houseor bo-tree for worship. It has been suggested t-o one witness that someof these devotees go even to the avasa or living quarters of the monksfer the purpose of worship, but it seems to me that the witness was heretreating mere obeisance as synonymous with worship. However thatmay be, the fact that the monk or monks in charge of the pirivenapermitted or acquiesced in lay Buddhists attending the premises oncertain days for worship at the spots or places originally intended formonks does not in my opinion have the effect of converting the pirivenathe object of which was religious education into a temple which is a -place established for worship. The question whether it was for thefurtherance of religious education or for worship by Buddliist monksthat the premises were dedicated must, in my opinion, as the trial judgehas rightly apprehended, be determined by an interpretation of the termsof the deed P 2 itself. P 2 is specific on the point that the dedicationby the owner of the property and by the Sabha was for the establishmentand continuance of a pirivena- to impart knowledge to Buddhist monksand lajnnen and even to people of other religions. It does not evenrefer to worship as one of the- purposes of the dedication, although no onecan deny that worship will not be opposed to the avowed purpose of thededication. I am therefore of opinion that the institution that wascarried on in the premises at the time of the filing of the action was not a“ temple ” within the meaning of the Buddhist Temporalities Ordinance.
It was next contended that the dedication, whatever its purpose mayhave been, was by way of a sangika gift and, therefore, according to theBuddhist ecclesiastical law as accepted by our courts over a fairly longperiod, the title to the property conveyed by P 2 passed to the granteewho would hold it- for the benefit- of the entire sangka, and that on thegrantee’s death the title passed to the grantee’s pupils according to thecustomary rule of succession. The plaintiff does not dispute that thesisyanu sisyn par am par area rules will apply in regard to succession if (a)the premises had been dedicated to establish a place of worship and (0)such dedication was unqualified. I have already expressed the opinion *that- there was no “ temple ” in existence at the time of dedication
422 T. S. FJERJf AN”DO, JT.—Xforonluduwe Sri Xaneswara Dhainmananda ''
' Xayaha Thero v. Raddegamn JPiyaralani Xayaba Therp "
It will therefore he convenient now to consider whether the dedicationwas what might be called, for want of a better expression, a pure sangikcudedication.-' '''
In an old case of 1879, JRathanapala Unnanse v. Keudtiagala Unnanse1 rPhear C.J. (with Stowart J. and Clarence J. agreeing) stated the following;principles after an examination of certain authorities :—.
That tho general rule of succession to temple property has twobranches, viz. the si-sya paramparaua and the si-wuru paramparaua,and that it is tho first branch of the rule which is to be presumed toapply to a given case in the absence of evidence that it is the other ;
That there are exceptional cases in which the succession totemple property is in the appointment of the Government or evenof private individuals ;
That it is the terms of the original dedication that primarilyimpose the rule which is to govern the case ;
That in the absence of direct evidence of those terms, usagemay be looked to and accepted as evidence thereof.
These principles have been consistently followed by our courts andI might with advantage here refer to the following observations ofFernando A.J. in the case of Snmanalissa v. CJunaratne3 in regard tothem :—
“ If I may venture to formulate the position as governed by theseprinciples as applying to the present ease, the law' is that the rule ofsuccession is governed by the terms of the original dedication, or byone of the two rules of succession, and if the terms of the originaldedication cannot be proved either by direct evidence or by the evidenceof usage, then it must be presumed that the sisyanu sisya paramparaua.rule of succession applies unless it can be established that the successionis governed by the situuru paramparaica ”…
I might also refer to the observations of Pereira A .J. in DharmapalaUnnanse v. Medcgama Sumana Unnanse3 that “it is undoubtedly opento a person who at his own expense founds and endows a vihare to makeprovision by deed or otherwise regulating the succession to the insti-tution, but when it is not shown that a particular vihare has been sofounded or endowed, or that the succession to the incumbency has beenso provided for, it has been laid down by this Court in unmistakableterms that the succession should be presumed to be in accordance withthe rule of descent known as sisyanu sisya paramparaica ”. Again,Jayawardeno A.J., in the course of his judgment in O'unananda Unnanse.v. Deicarakkila Unnanse1 in summarising the rules regulating the successionto temples as laid down in the authorities stated, inter alia, that successionto an incumbency is regulated by the terms of the original dedication,
1 (IS79) 2 S. C. G. 20.
1 {1937) 39 X. R. R. 253.
3 {1910) 2 Carr. R. R. S2.1 (1924) 20 X. L. R. 27-1.
T. S. 1'ERXASDO, J.—Jferonluduwe Sri SYan cswara Dhammananda 4:23
2!ayaka T/icro v. Baddegama JPiyaralana Nayaka CT/tero
and that, if the original dedication is silent as to the mode of succession,then the succession is presumed to be in accordance with the rule ofsisyanu sisya paramparaica. Even on the assumption that there is a“ temple ” constituted in the premises, the terms of P 2 show that thededication, although expressed to be absolute and irrevocable and assangika property, is nevertheless subject to the directions, stipulationsand conditions laid down therein. One of these conditions is that theappointment of a principal of the pirivena is reserved to the Sabha andthe removal of a principal is also similarly reserved, except that in thelatter case there is a requirement that the approval of a Sangha Sabha-should be obtained. Sangika property means property belonging to thoentire priesthood, that is to say, to the temple as distinguished from theprivate property of the priestly incumbent,—per Sampayo J. in Charles tnApgiu1; but it must bo remembered that these observations were madeby that learned judge in reference to an institution which was indis-putably and admittedly a temple. Mr. Jayewardene referred us alsoto the case of Dhammajoty Unnanse v. Saranamla Unnanse2 where Dias J.stated that “ when a pansala or other property is dedicated in sangika,the dedicators or grantors cease to have any right or control over it,and the right to the property so granted is regulated by a well-knowntenure called sisyanu sisya paramparawa ”. This is also a case in whichthe instrument of dedication contained no conditions or restrictionsgoverning succession to the title and, therefore, is distinguishable fromthe present case. No authority has been quoted for the proposition oflaw that there cannot be a sangika gift where the succession to the title- has been specifically provided for, nor has any ride of the Vinaya beenadvanced in support of such a proposition. On the contrary, theauthorities, some of which I have referred to above contain specificreferences to the rule that succession is regulated by the terms of theoriginal dedication.. Mr. Jayewa-rdene argued that a donation to theSangha in the sense of general sangika cannot be accepted subject tocondition that the dedicator retains the right to regulate the succession.The oral and presumably " expert ” evidence bearing on this argumentvaried according as the witness was one called for the plaintiff or onecalled for the appellant. The best answer to the argument is, in myopinion, found in the circumstance that Sri Sumangala Nayaka Thcro-aecepted the donation subject to the condition. As the appellant’s ownwitness, Sri Deelananda Nayaka Thero, who was incidentally one of theexpert witnesses examined in the case of Dhammaraiana Unnanse v.Sumangala Unnanse3, himself stated under cross-examination in thepresent case, “ Sri Sumangala was a very great scholar. In fact, ho wasa world-famous scholar. He was a “ shining light particularly inregard to Vinaya rules. Apart from his eminence in learning he wasalso a very pious priest.' It is not at all likely that he would have doneanytliing during his lifetime against the Vinaya rules”. This samewitness, when questioned by the trial judge towards the conclusion of his-evidence, stated that, “ if a land is to be dedicated to the Sangha and
10 N. L. Ji. 212…"-(ISSJ) 5 S. C. C. S. ''
3(1010) 11 N. L. B. 100.-
424 T, S. FERNAI0, J.—jllorontudaure Sri 2daneswara Dhammananda
'2d ay aka Thero v. JBaddegnma Piyaratana 2d a yak-a Thera.
the right to appoint a Yiharadhipati to succeed the original Yiharadhipati■ is reserved to the dedicator, such a dedication is not accepted. If such adedication is accepted by a monk, the property is not sangika If thishe a true assessment of the legal position in Buddhist ecclesiastical lav,the appellant’s case to he Yiharadhipati of a temple in these premises,as the trial judge has observed, ceases to have any foundation. I amunable to agree with Mr. Jayewardene’s argument- that the conditionl-cgarding the appointment by the Sablia of a successor to Sri SumangalaNay ale a Thero has to be ignored because the gift has been declared to beby way of sangika. The Sabha had the right, in my opinion, to appointthe plaintiff as principal in 193G in the same way as it had appointedNanissara Nayaka Thero in 1911 and Ratanasara Nayaka Thero in 1922.Booked at in another way, the existence of this very condition is indi-cative of the absence of an intention by the dedicator to establish atemple or other place of worship. A letter ID 67 written by Sri Suman-gala Nayaka. Thero a short time.before the latter’s death in 1909 toSiddhartha Thero in whom was vested the title to the property known as“ Palm House ” and described in Schedule B to the plaint serves to throwsome light on the opinion held by Sri Sumangala himself in regard tothe nature of the gift made by P 2. There had apparent^ been asuggestion that Siddhartha should convey the premises to Sri Sumangalain such a way that title would descend according to pupillary succession.Sri Sumangala in ID 67 cautioned his pupil against transferring theproperty to the Sabha and indicated that that should be done only afterthe pirivena is included within the temple. Por what it may be worthhere was an opinion by a person who should have been in a good positionto understand the nature of the dedication in P 2 that the sisyanu sisyaparamparaica rules’ did not apply at that time to the property and thatthe pirivena was something quite distinct from the temple.
Another argument advanced for the appellant, was that-, even if theplaintiff is the principal of a pirivena established by the Sabha, he (theappellant) was the Yiharadhipati of a temple established in the same- premises. It was pointed out that Sri Sumangala in a letter writtento a monk in Siam had described himself as the Yiharadhipati of thePirivena Vihare and that there are other references to Sri Sumangala asYiharadhipati of Maligakandc Temple. I do not think that suchreferences in letters and laudatory addresses and the like can carry anyserious weight in determining whether there was in law an office ofYiharadhipati in the institution established in the premises in questionin the year 1876. It is not without point that nearly a quarter of acentury later, Sri Sumangala Nayaka Thero, giving evidence hi the case ofIialanapala Unnanse. v. Appuhamyx described himself as the “ ChiefHigh Priest of the Adam’s Peak Temple (Sripadasthanaya) and Najmkaof the Colombo District and Principal of the Vidyodaya College”.Referring in that ease to the premises in question, he said “ the bulk ofthe property of this College is sangika.' The deeds for the land are inmy name as manager”. Sri Sumangala died in 3911. It is claimed
’(1500) 11 2d. L. li. 107.'
T. S. FERJf.AXDO, J.—yioronluduwe Sri Kanesicara Dhammanajula425
Kayaka Thero i>. Baddcgama Piyaratana Kay aka 2'kero
that Jinaratana Kayaks Thero succeeded him as Viharadiiipati of theMaligakande Temple. There is no reliable evidence that Jinaratana didanything at all to evidence his right of control. While the appellant’scase is that principals have to be approved by the Viharadiiipati beforetheir appointment, there is nothing to show that Jinaratana’s approvalwas sought at the time Kanissara and. Katanasara were appointed .in1911 and 1922 respectively. The minutes of the Sabha between 1911and 1922 are not available. It has been stated that during the riotsin 1915, when Buddhist leaders were imprisoned and when Martial Lawwas in force, all the papers belonging to the Sabha were removed bymilitary officials and were never traceable thereafter. Certainly in 1936—the minutes of the Sabha of this year are available—no approval wassought from Jinaratana before the plaintiff was appointed as principal.It is surprising that, if the appellant’s argument on this point is correct,the appellant who is a learned monk and who was a candidate for theoffice of principal himself raised no doubts as to the legalit}' of the plain-tiff’s appointment. – Far from questioning the plaintiff’s status, thoevidence shows that he accepted the validity of tho appointment andrepeatedly requested the plaintiff to assign him work as a teacher at thepirivena. He did not see fit to offer a challenge to plaintiff’s authorityuntil after Jiuie 1041 when P 7 was obtained by him from Jinaratana.At the time of execution of P 7 Jinaratana was SO years old. He is stillalive, but has not been called as witness at the trial. The appellanthimself was not a witness in this case. The inference is somewhatstrong that the execution of P 7 was a step in an attempt to create somesort of title for the appellant at a time when he was desperate to find .himself, if I may so term it, a place with honour at the pirivena. It is,,no doubt, true that tho Malwatte Chapter at Ivandy has in certain docu-ment? referred to Jinaratana Thero as the Viharadiiipati of the Maliga-kandc Temple. There is no evidence that the Sabha ever acceptedthe tenuous claim of the Malwatte Chapter to exercise some measure ofcontrol over the Vidyoda-ya Pirivena. A summons, or an invitation(if that word be considered more polite) to the Sabha to attend a meetingof tho Executive Committee of the Malwatte Chapter at Kandy todiscuss the situation created in 1P33 bj' the first of some lour fasts under-taken by the appellant was ignored by the Sabha. As counsel for theplaintiff appeavs to have submitted at the trial, an appearance at Kandybefore tho Malwatte Chapter by or on behalf of the Sabha in responseto this invitation would have gone some way in placing the MalwatteChapter in a position of authority over the Sabha.
Support for tho appellant's case was also sought to bo based on tliofact that one Pcmananda Thero had functioned in the office of fcurlhi-adhikari or manager at Vidyodaya Pirivena. It is not disputed that thismonk had been – appointed kurth.iadhikari by Sri Sumangala KayakaThero. The evidence is that a kurthiadhikari is an agent for tho principalwho appoints him. It was argued, that an appointment like that of a-kurthiadhikari is appropriate only to a Vihare. There was no evidencejustifying tho inference that’a like appointment in respect of a pirivena -is inappropriate and no good reason appears or has been urged why a .
-42 GT. S. FERNANDO, J.—Morontuduice Sri 2 anesw'ara Dhammananda –
2’ayaka. U'ltcro v. Baddegamei' Piyaratana 'Kayaka Thero
right to appoint a manager should be denied to a parivenadhipati orprincipal. Pemananda Thero ivas kitrlhiadhikari not only under SriSumangala Nay aka Thero ; he functioned in that capacity during theprincipalsliip of Nanissara and Ratnasara Nayaka Theros and continuedto perform the same function even after the appointment of the plaintiff.It. was urged for the appellant that the continuation of Pemananda inthis office ivas made possible .by reason of his appointment as kurthi-■adhikari by Jinaratna in 1911. There is ho documentary evidence of suchan appointment; Jinaratna, as I have said already, was not called as awitness in this case ; and Pemananda himself had died by the time thecase came to be tried. That Pemananda himself did not acquiesce in'-Jinaratnna’s claim, if any, to the Viharadhipatiship is evidenced by deedID 12 whereby, on 16th. Januarj’ 19-10, Pemananda claiming to be Viliara-dhipati of Vidyodaya Pirivena Viliare nominated one Sorata Thero ashis successor in that office. The appellant sought to make out at the trialthat this deed ID 12 came to be executed as a result of a conspiracy onthe part of Sorata, Pemananda and the plaintiff himself. The trial judgehad found that the plaintiff was no party to any such conspiracy. Thereis no reason to disturb this finding, and one possible inference is thatSorata Thero who is now a Vice-Principal of Vidyodaya Pirivena ispreparing the ground for a claim the cxactnature of which he may himselffind it difficult to formulate at the moment.
It was also contended that even if the right to appoint a principal orparivenadhipati is in the laitr, such a right cannot be interpreted asgiving to the laity a right to appoint a vibaradhipati as well. The trueanswer to this contention appears to me to be that there was no office-of viharadhipati contemplated for the institution established on thepremises in question.-. •
I have examined above the appellant’s contentions in support of his■claim to be viharadhipati of the institution established in the premisesin suit and indicated my reasons for rejecting that claim. I have now toconsider the validity of the plaintiff’s claim to be the trustee of a chari-table trust created by P 2. Counsel for the plaintiff contended that (a)what has been created is not a religious trust regulated by the BuddhistTemporalities Ordinance and (b) even if it was such a trust, and there was. -a sangika gift in the narrow sense of the word, there was no bar, accordingto the Buddhist ecclesiastical law as administered by our Courts, to thededicator (Andris Pcrera) laying down the mode, of devolution of title tothe property. He argued also that there was no reason why a Buddhistshould bo precluded from making a valid charitable trust for a religiouspirpose withoiit recourse to a gift in the strict sangika tradition, andsubmitted that the fallacy of the argument on behalf1 of the appellantwas that it assumed that if there is a sangika gift there must perforce be aviharadhipati. Other contentions advanced for the plaintiff were (1) thatit was quite open to the dedicator to create a parivenadhipati line ofsuccession to the property inasmuch as he could lay down the mode of•devolution and (2) that, if the premises were sangika property, the title
T. H. I'ERXAXnO, J.—J1Icronludtnce Sri Xttneswarct Dhammanandciyayaka 'Thcro v. liaddtgn-.na Tigaralana tSayuka Thcro
427
thereto would have become vested in the pari vena dhipnti on the execu-tion of P2 in 1S76 and ifc was not competent to the parivenadhipati todivest himself of title in favour of la}' heirs whicli appears to have been•one of the purposes of deed 5193 of Sth May 1907 (P 25 A).-
At the time P2 was executed the Trusts Ordinance (Cap. 72) had notbeen enacted and the law of trusts in force was the English law. Accordingto that law Andris Perera or the Sabha or both could have created acharitable trust. I can find no good reason for concluding that a BuddhistMas excluded from exercising tlie right to create such a trust. P2 in myopinion created a valid charitable trust for the advancement of religionor religious education. The devolution of the office of trustee of this trustbeing regulated by section 113(1) of the Trusts Ordinance, the personappointed by the Sabha as Principal in place of Sri Sumangala MayakaThcro succeeded to. the office of trustee on Sri Sumangala’s death. I amin agreement with the main contention advanced by Mr. Herat for theplaintiff and hold that the trial judge reached a correct finding that P2created a valid charitable trust and that the office of trustee devolves ontlie person appointed from time to time by the Sabha. In view of theopinion I have formed on this main contention it is liardiy necessary todeal with the alternative argument of Mr. Herat that, if there was nocharitable trust created, there Mas a- valid sangUca gift although not onein respect of which the Buddhist Temporalities Ordinance had any•application inasmuch as that Ordinance applied only to temples andtemple property strictly so called. I have earlier in this judgment advertedto the fact that religious education Mas the primary purpose for Mhiehthe institution established on the premises in question came into t xis-tcncc, and that worship M*as merely incidental to such purpose. I-mayadd however that-, in my opinion, this alternative argument is also sound.
It may perhaps be convenient at this stage to consider the legal posi-tion that arises in regard to the title to the premises described in ScheduleB to the plaint, i.e. to “ Palm House”. The title to these premisespassed absolutely to Siddhartha Thero in 1S8I, and all the evidence goesto show that the premises n_ere used from that date onwards up to thetime of the present suit for no purpose other than that of the YidyodayaPirivcna. The trial judge has stated that the reasonable conclusion is thatthe Sabha supplied the money for the purpose in 1SS-1. However thatmay be, the trustee on P2 has possessed “ Palm House ” as a part of thoPirivcna property since 1S84, i.e. for a period of nearly CO years. In thesecircumstances the trustee has clearly obtained a prescriptive title to thepremises. I may in this connection refer to the case of Jtanasinghe v.Dhammananda1 (affirmed by the Privy Council—see 39. N.L.R. GG9)where it was held that even a de facto trustee for a vrharo can acquiretitle by prescription for the benefit of a viliare. The plaintiff has thereforelegal title as trustee to the premises described in both Schedules " A ’and B ”.
The plaintiff’s claim to maintain this action against the appellant wasfinally attacked on the ground that the Sabha that appointed him at a
'(1936) 37 y. L. R. 19.
– 42S X. S. FERJfAXDO, J.—Aloronluduwe Sri jS’anesicara Dhamrnananda
Nayaka Thero v. Baddegama Piyaratana Nayaka Thero – -.
meeting held on 6th April 1936 was not validly constituted, and thispoint formed one of the issues at the trial. The learned trial judge' in his'consideration of the issue which he has answered against the appellanthas pointed out that the validity of the constitution of the Sabha in1936 was not attacked by anyone, not even by the appellant until he didso in this very case. He thought that if there had been anything wrong in. the election of members there would have been protest meetings anddemonstrations held, particularly as there was such a meeting over ashortage of funds collected in connection with the funeral of one of theprincipals of the privena. As only 9 persons were present at the meeting -of 6th April 1936, it has been argued that the appointment of the plain-tiff was bad for want of a quorum for a meeting of the Sabha. Mr. Jaye-wardene for the appellant contends that the quorum necessary was 13members, while Mr. Herat claims that a quorum of 7 was sufficient.Mr. Jayewardene has contended that, even of the nine present at themeeting in question, 4 persons have not been themselves validly elected asmembers, thereby reducing the number of members present to 5. DeedP 2makes no mention of the manner in which the Sabha should set aboutthe appointment of a principal, and even if the earlier deed PI be re-garded as indicating that manner, it seems to me that a quorum of 7 issufficient. Mr. Jayewardene relies on clause o of PI which recites that theSabha should always consist of a full complement of 13 persons, and thata Sabha consisting of any number less than that shall not be regarded asperfect, and that such imperfect Sabha shall not do or cause to do at theSabha’s expense any important work other than that of supplying “ the.fotir needs ” of monks. It seems to me however that clause 12 is theclause more relevant to the point in issue, viz., the clause which embodiesthe agreement that if out of the 13 members of the Sabha 7 or moreattend a meeting, those present shall exercise the power of the wholeSablia. I am therefore of opinion that- a quorum of 7 was sufficient toconstitute a valid meeting. It has however been pointed out that on 12th[December 1SS7 a further agreement—ID 16—was entered into by theSabha whereby the quorum for a meeting purports to be fixed by clause 9thereof at 13. This document lias been executed not only by 13 personsreferred to as members of the Sablia but also by some 32 others referredto as ‘ advisers’. It is not easy to apprehend the role of these advisers andclause 9 (assuming that ID 16 was a valid agreement) may well meanthat a quorum of less than 7 members of the Sabha was sufficient if therewere present office bearers and e advisers ’ making altogether a total of 13persons. In these circumstances I am unable to hold that a quorum ofmore than 7 members was necessary for a valid decision on the questionof the appointment of a principal. In regard to the argument- that-, out ofthe 9 persons present at the meeting in question, 4 were persons not-validly elected, it is right to add that a good deal of evidence in the formof minutes of meetings etc. was led at the trial. The trial judge upon aconsideration of this evidence has found that the meeting was validlyconstituted and I do not consider that the evidence on the point and theagruments placed before us are of sufficient weight as to justify us,sitting in appeal, in disturbing this finding of fact.
420
T. f>. I'KRXAXDO, J.—3lorouludutcc Sri yancsirara Ilham icrintuiday ay'll; a Thero v. Iladdeynma Riyaralanu y<iyaka T/tero
There remains for consideration the last matter that arises on thisappeal, viz., the claim of the plaintiff that the appellant was liable to beejected from the premises of the Pirivena. This matter has received myvery anxious consideration, particularly because of the appellant’s posi-tion among the Buddhist monks in the Island today and of his longassociation with tins very institution. Counsel for him has referred us tothe legal principles governing the expulsion or ejectment of a monk froma vihare. ■ Jayawardeno A.J. in Clvnananda Unnanse v. Dcuarakkit aUnnanse1 (supra)—vide page 275—in summarising the rules regulatingthe succession to temples and vihares as laid down, in the authoritiesstates :—“ (1) all priests who arc pupils of a previous incumbent andpupils of such priests are entitled to reside in the viharc and to bemaintained from the income This right is, however, lost if the i>upilhas been guilty of parajika or contumacious conduct ; sec DkammajolyUnnanse v. Parcnlhale- ; Saranankara Unnanse v. Jndajoti Unnanse3 :Siriniuca.se v. Sarananda'.'
In th c case before us there is a'body of unimpeachable evidence, to alarge extent unchallenged, that the appellant has made a portion of theteaching halls of the pirivena living quarters for himself, has wronglyobtained the kc3'S of the teaching hall and the library from a monk whowas a temporary substitute for the kurthiadhikari who had fallen ill, haswithheld these keys from the principal who requested that they bedelivered back to him, has prevented the use of the dining hall by jmpilsand tutors, has diverted to himself letters (including a packet of certificatesof pupils forwarded by the Department of Education) addressed to theplaintiff as principal, has locked up the library preventing its use byothers, removed the collection tills or boxes and generally disrupted thework of the teaching institution to such an extent that teaching hasbecome impossible for the principal and his staff. To complete hisc: vietorj- ” over the plaintiff lie appears now to be conducting classes atthese premises himself, including classes in English ! The appellant’srecord of conduct has been such that, even if this institution had been aviharc proper and the plaintiff had been the incumbent, a case had beenmade out for his ejectment on the ground of Parajika conduct. It isapparent, however, that it is quite unnecessary to consider the Buddhistecclesiastical law in regard to expulsion from a temple of monks who areguilty of Parajika conduct- where the finding reached by the Court is thatthe- plaintiff is the legal title holder of premises subject to a charitabletrust, not being a religious trust governed by the Buddhist TemporalitiesOrdinance. It lias been amply demonstrated that the trustee is unable toperform his duties and exercise his powers by reason of the acts ofusurpation of office—the conduct of the appellant amounts to no lessthan that—. and" the duty of the Court to order the ejectment- of theappellant in this case is therefore clear.‘
Eor the reasons which I have endeavoured to set out above and whichare substantially the same reasons as those that found favour with thelearned trial judge, I would dismiss the appeal with costs.
* {1021) 20 y. n. -271.
– (issi) i s. a. o. i2i.
3.{101S) 20 y. L. n. 39S.
4 {1021) 22 -V. h. R. 320."
430
H. N. G. FERNANDO, J.—Mayaivalh'ie v. de Silva
– In the result Ilnal Appeal No. 26 of 1952 is dismissed with costs, andthe Interlocutory Appeals Nos. 73 and 192 of 1956 are dismissed withoutcosts. Neither party will be entitled to the costs of the inquiries in thecourt below relating to the substitution of parties.
H. N. G. Febxasdo, J.—
I am in full agreement with the conclusions reached by my brother,and cannot add anything useful to the reasons he has given. I wish onlyto state that the delay in the preparation of the judgment in this appealwas due to a misunderstanding for which I was responsible.
– Appeals dism is serf.