081-NLR-NLR-V-65-OKANDEYAYE-WANGESSA-THERA-Appellant-and-MULGIRIGALA-SUNANDA-THERA-Respondent.pdf
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Okandeyaye Wangeesa Thar* v. Mvlgirigola Simanda Them
-ia.
1962 Present: H. N. G. Fernando, J., and T. S. Fernando, J.OKANDEYAYE WANGEESA THERA, Appellant, andMDLGIRIGALA SUN AND A THERA, Respondent8. O. 520 of 1959—D. G. TangaUe, 631 fLBuddhist ecclesiastical law—Ancient temple—Succession to incumbency thereof—Absence of evidence of terms of original dedication—Mode of succession then—Applicability of sisyanu sisya paramparawa rule.
In a dispute between the appellant and the respondent as to which of themwas entitled to be incumbent or viharadhipati of the ancient Buddhist templeMulgirigala Baja Maha Vihare there was no evidence, in view of the lapse of timeand the absence of records, of the terms by which the succession to theincumbency was regulated by the original dedication.
Held, that, in the circumstances, it was necessary to fall back upon suchevidence as was available relating to the mode of succession upon and afterthe death of the first incumbent. In the present case it was indisputablyestablished by the evidence that the rule of sisyanu sisya paramparawa didnot apply to the temple and that the traditional and customary mode ofappointment was for the Maha Sangha Sabha to make the appointment fromamong the Mulgirigala paramparawa, a suitable monk being elected irrespectiveof whether he waa a pupil of the last incumbent.
Appeal from a judgment of the District Court, T&ngalle.E. W. Jayawardene, Q.C., with. A. F. Wijemanne, G. P. Fernandoand L. C. Seneviraine, for the defendant-appellant.A. G. Gocmerabne, with N. 8. A. QoonetiUeke, for the plaintiff-respondent.Cur. adv. wit.
T. S. FERNANDO, J.—Okandeyaye Wangeesa Thera v. Mulgirigala 3B&'
Sunanda Thera
September 14, 1962. T. S. Fernando, J.—
This appeal arises out of a lengthy contest in the District Court ofTangalle over the incumbency of an ancient and venerated Buddhisttemple in the Southern Province, Mulgirigala Raja Maha Vihare, whichis said to have first come into existence not long after the introductionof Buddhism into this country in the third century b.o. This templeappears to have lost, probably as a result of invasions of this countryby foreign Powers, its importance as a centre of religious activity untilabout the year 1778 a.d. when something in the nature of a Restorationwas brought about by the efforts of a monk of the name of WataraggodaDhammapala. This monk appears to have taken the initiative inestablishing a sect of monks now known as SiamNilcaya and re-introducingthe TJpa&ada or higher ordination of monks. Dhammapala Therahimself then became the first incumbent of this temple after theRestoration.
It is now settled law that succession to an incumbency is regulatedby the terms of the original dedication—see Ounananda TJnnanse v.DewaraJeltita Unnanse1. In view of the lapse of time and the absenceof records since the original dedication of this temple there is no evidenceof these terms, and one is compelled to fall back upon such evidenceas is available in regard to the mode of succession upon and after thedeath of Dhammapala Thera who will hereinafter for the purpose ofthis judgment be referred to as the first incumbent.
After the death of this first incumbent there appear to have been somethirteen incumbents, and it is common ground that the last of such in-cumbents was Moderawane Somananda Thera who died on 26th March1957. The contest in the case under appeal arose as a result of thedispute between the appellant and the respondent as to who was entitledto be incumbent or viharadhipati upon the death of Somananda Thera.
It will be useful if I set down some of the events, as found by the learnedDistrict Judge to have taken place, after the death of Somananda Therain connection with the vacant incumbency.
The body of Somananda Thera was cremated a few days after hisdeath and, in accordance with custom, the ashes were enshrined onApril 10, 1957. The plaintiff issued a notice dated April 2, 1957 (Pi)which stated that a mass meeting for the appointment of an incumbentwill be held at 2 p.m. on April 10, 1957 at the Mulgirigala Raja MahaVihare. A meeting of monks and of dayalcayas was accordingly heldon April 10, 1957 at the temple, the assembly of monks being presidedover by the Sangha Nay aka of the Matara and Hambantota Districtsand that of dayakayas being presided over by Mr. George Rajapakse,Advocate. After one or two monks had addressed the combined gather-ing, the defendant informed the gathering that the last incumbent,Somananda Thera, had executed a deed (D3) on July 19, 1955 appointing
1 (1924) 2d N. L. R. at 274.
2»—R 14805 U2/631
49© T. 8. FERNANDO, J.—Okandeyay Wtmgoeta Thera v. Mvlgirigala
BunamdaThta
him to succeed the last incumbent '* in the office of controlling viharadhi-pati and chief incumbent of Mulgirigala Baja Maha Vihare ", A proposalwas moved that the deed be accepted and after several bad spokenfor and against the proposal, a vote was taken among the monks and37 monks voted for and 12 against acceptance. Among the 37 who votedfor the acceptance of the deed was the plaintiff himself. Polio wing thisvote, a letter of appointment Dll was issued by the Sangha Navaka who.presided at the meeting on April 10, 1957 purporting to “ bestow ” on thedefendant the incumbency of this temple. Thereafter an announcementappeared in the Sinhalese newspaper Dinamina on April 27,1957 that thedefendant had been appointed viharadhipati of this temple consequent uponthe death of Somananda Thera. It would also appear that after April 10,1957 the defendant began to perform the functions of viharadhipati atthis temple.
The nest event of any significance in connection with the incumbency.was the sending out of a notice dated June 18, 1957 by one BeligalleDharmalankara Thera who had opposed the acceptance of deed D3 atthe meeting held on April 10, 1957, himself not a resident bhikku ofMulgirigala Raja Maha Vihare. stating that as "the resident bhikkusof Mulgirigala have informed him that no suitable bhikku has yet beenappointed in the proper manner to fill the vacancy created by the deathof Somananda Thera ” a meeting will be held at the Ihaia BeligalleSudarsanaramaya on June 24, 1957 for the selection of a suitable bhikku.It would appear that a meeting was held at the said temple on the daystated and the monks there assembled purported to appoint the plaintiffas viharadhipati of Mulgirigala Raja Maha Vihare. Relying on thisappointment, the plaintiff shortly thereafter took possession of oneof the vihares (Patha-malu-rihare) of the Mulgirigala Raja Maha Vihareand of a strip of land also belonging to the Raja Maha Vihare containingsome 75 coconut trees. The defendant was not prepared to recognisethe purported appointment of the plaintiff made on June 24, 1957,and the plaintiff thereupon instituted the present suit in the DistrictCourt claiming (a) a declaration that he is the duly appointed viharadhi-pati of Mulgirigala Raja Maha Vihare and is entitled to function assuch and (b) damages from the defendant till such a declaration is.granted.
The defendant by his answer denied the validity of the purportedappointment of the plaintiff made on June 24, 1957, and claimed thathe ( the defendant) was by deed D3 of July 19, 1955, appointed by theprevious incumbent to the office of viharadhipati, which appointmentwas accepted and confirmed by the Maha Sangha Sabha at the meetingheld on April 10, 1957, and ratified by the Sangha Nayaka of the district.He claimed to have officiated as viharadhipati since April 10, 1957, andprayed for ejectment of the plaintiff from that portion of the templeknown as Patha-malu-vihare and the strip of land containing the 75coconut trees and for damages.
T. S. FERNA2TD0, J.—Okandeyaye Wangeeaa Thera v. Mulgirigala 391
Sunanda Thera
After a very lengthy trial upon a number of issues raised by counselfor the respective contenders for the incumbency, the learned DistrictJudge, upon an exhaustive survey and a very careful examination ofthe evidence led before him, reached the conclusion that the meetingheld at Beligalle Vihare on June 24, 1957 was neither properly convenednor constituted and that the plaintiff was not duly elected by the MahaSangha Sabha at the said meeting as viharadhipati of Mulgirigala BajaYihare. The claim made by the plaintiff was accordingly dismissed. Noappeal has been preferred to this Court against the judgment and decreeof the District Court in so far as it affects the plaintiff, and it thereforebecomes unnecessary for us to consider here the nature or validity ofthe plaintiff's claim.
The learned trial judge has also held that neither deed D3 nor thevote of the Sangha Sabha taken on April 10, 1957 accepting D3 operatesto confer the incumbency lawfully upon the defendant, and he has acord-ingly refused to order ejectment of the plaintiff as prayed for by thedefendant. The appeal before us is designed to canvass the findings ofthe trial judge in so far as they affect the position of the defendant.
The main dispute at the trial was whether the mode of appointment ofviharadhipati was election by the Maha Sangha Sabha from amongmembers of the Mulgirigala paramparawa as claimed by the plaintiff orwhether it was nomination by the last viharadhipati from among hispupillary successors and due acceptance and confirmation thereafter. Onthis main dispute the trial judge has definitely held against the defendant.Mr. Jayewardene for the defendant contended that where the rule ofsuccession as laid down at the time of the original dedication of thetemple is lost in the dim past there arises a presumption that the sisyanusisya paramparawa rule operates. He attempted to show that what hasbeen followed in respect of this temple since the death of the first incum-bent Dhammapala nearly two hundred years ago was the sisyanu sisyaparamparawa rule as then known and understood. In view of the knowndeviations from this rule as understood since 1924 (the date of the judg-ment in the case of Gunananda Unnanse v. Dewarakkita Unnanse (supra))in the case of many an incumbent who was obviously not a pupil of thelast incumbent before him, Mr. Jayewardene sought a way of escape bysuggesting that before 1924 it was accepted that a co-pupil of an incum-bent had a preferent right over a pupil to succeed to a vacancy in theincumbency of a Buddhist temple. It is apparent, however, upon areading of all three judgments in Gunananda Unnanse v. DewarakkitaUnnanse (supra) that the decision in Siriniwase v. Sarananda1 deliveredonly three years before these judgments was in conflict with a series ofearlier decisions which had up to that time been treated as authoritative.It is therefore not possible to accede to Mr. Jayewardene’s argument thatthe deviations from the sisyanu sisya paramparawa rule apparent in the 1
1 (1921) 22 N. L. S. at 318.
392
T. S. FERNANDO, J.—Ohcm&ayagt Wvmgtoen Thorn v. Mutgirigata
Sttnemda Tkara
appointments ft> the mcumbeney of this particular temple can beexplained upon the footing that they were made following upon thepupillary succession rule as then understood.
In a carefully reasoned judgment, the learned trial judge has statedthat it has been indisputably established by the evidence that the rule ofsisyanu sisya paramvparawa does not apply in the case of this temple andthat the traditional and customary mode of appointment was for theMaha Sangha Sabha to make the appointment from among the Mulgirigalaparamparawa. a suitable monk being elected irrespective of whether hewas a pupil of the last incumbent.
Moreover, in regard to the deed of appointment D3 relied on by thedefendant, the learned trial judge has found on the evidence that theprior consent of the resident monies of the Raja Maha Vihare was notobtained for its execution by the last incumbent. Tins is a failure tocomply with the requirement of the very Code of Rules of 1928 for theadministration of Mulgirigala Raja Maha Vihare (D1) which the defen-dant relied on as authorising his nomination for the incumbency. Theonly instance of a nomination by the previous incumbent is that of thedefendant himself. Nor can we lose sight of the force of the observationof the learned trial judge that the injunction in the Code of Rules of1878 (RIO) for the nomination by the previous incumbent of a successorfrom among his pupils appears to have been totally ignored in the caseof the very first and indeed of every subsequent appointment includingSomananda Thera’s after that Code was introduced.
Although the trial judge held that a vote was indeed taken among theSangha on April 10, 1957. he went on to hold that that vote went nofurther than to declare the opinion of the Sangha that the principleembodied in D3 was valid and that it was not regarded by those voting onthat occasion as conclusive. He concluded that neither deed R3 nor thevote taken accepting D 3 was sufficient to constitute the defendant theduly appointed viharadhipati. We were pressed for a reversal of thisfinding of the trial judge, but feel compelled to say that nothing we haveheard in argument on behalf of the defendant is cogent enough for us toset aside this finding. If is sufficient to add that upon the whole of theevidence relating to the purported appointment or election of the defen-dant as viharadhipati it is not possible for us to say that the findingsreached in the District Court are wrong.
There remains only to consider the question, of the ejectment of theplaintiff whose purported appointment as viharadhipati on June 24, 1957has been declared to be without authority, He is, of course, a monk whowas resident at Mulgirigala Raja Maha Vihara at all times material to thecase. The right to residence as such is not questioned even at this presentstage, the challenge being limited to the claim of the plaintiff to the ex-clusive possession of the Pahsta-malu-vihare and of the strip of coconutland. The learned District Judge has held that the fact that the plaintiffvoted for the acceptance of deed D3 does not estop him from now making a
Ram Iswara v. Commissioner of Inland Revenits-
393
claim to be viharadhipati. I think this finding is correct. It is a matterfor regret that the plaintiff has followed the course of taking possessionof a part of the temple and part of the land appertaining thereto. Atthe same time, as we are unable to reverse the finding of the DistrictJudge that the defendant himself has not been lawfully appointedmharadhvpati, it appears to follow that a decree for the ejectment of theplaintiff cannot be granted in favour of the defendant in this case.
I would dismiss the appeal with costs.
H. N. G. Febnaitdo, J.—I agree.
Appeal dismissed.