020-SLLR-SLLR-1991-V2-PANNALOKA-THERO-V.-SANGANANDA-THERO.pdf
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PANNALOKA THEROV.
SANGANANDA THERO
SUPREM^ COURT.
BANDARAN^YAKE. J., FERNANDO, J. AND KULATUNGA, J.,
S.C. APPEAL'NO. 19/87.
A. NO. 207/76 (F).
C. KALUTARA NO. 1886/L.
MARCH 12, 13, 1991.
Buddhist Ecclesiastical Law – .Succession to Viharadhipathiship by virtueof oral appointment-Evidence of ora! nomination – Burden and standard ofproof.
The appellant contended that Rev. Sumanatissa Thero in or about 1929orally nominated and appointed Rev. Saddhatissa Thero to the Viharadhi-pathiship of the Duwe Decparamaya Temple, that by virtue of the saidappointment Rev. Saddhatissa Thero became the Viharadhipathi of the tem-ple upon the demise of Rev. Sumanatissa Thero in 1953; that he functionedin that office and died in 1969 having in 1967 made his Last Will which wasadmitted to probate in the District Court of Colombo.
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Held:
There is no legal fetter against Sumanatissa Thero orally appointinghis junior pupil to succeed him. There was no basis to disturb the DistrictJudge's Finding that the appointment had been so made.
The evidence of an oral nomination need not in every respect be asprecise as in the case of a written nomination but the Court should assessthe evidence carefully and if necessary look for corroboration before actingon it. However there is no rule of evidenced which requires a witness givingevidence long after the event to-go into the ‘form’ and ‘manner’ of the nom-ination with absolute precision.
The burden of proof is on the claimant to establish the nominationby a balance of evidence.
The conduct of the plaintiff challenging the nomination is relevantwhere it suggests that there was such an oral appointment.
3. While pupillary succession according to seniority is the rule, a Viha-radhipathy has the right to appoint any particular pupil as his successor.
Cases referred to:
Pemananda Thero v. Thomas Perera 36 NLR 413.
Amerasekera Thero v. Tittagala Sasanatillcke Thero 59 NLR 289.
Dhammadaja Thero v. Wimalajothi Thero 79 [1] NLR 145.
Jinaratne Thero v. Dhammaratana Thero 57 NLR 372.
Morootota Sobitha Thero v. Amunugama Ratnapaia Thero
[1981] 1 Sri LR 201.
Dhammajoti Thero v. Sobita 16 NLR 408.
Piyatissa Teruaaanse v. Saranapala Tcrunnanse 40 NLR 262.
Pannavasa Thero v. Sudassi Thero 68 NLR 512.
APPEAL from judgment of the Court of Appeal.
Eric Amerasinghe P.C. with T. B. Dissanayakc P.C., Raja Bandaranayakeand M. B. Peramuna for 1st defendant – respondent – appellant.
L. C. SeneWrame P.C. with Ms, T. Kcenawinna and Harsha Amerasekerafor substituted appellant – respondent.
Car.adv.vult.
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May 23, 1991.
KULATUNGA, J.
The original plaintiff Rev. Wattaddera Somaratne (nowdead) sued the 1st defendant-respondent-appellant and the 2ndto 4th defendants being pupils of late Rev. Benthara Saddha-tissa Thero. The plaintiff claimed to be the Controlling Viha-radhipathi of Duwe Deeparamaya Temple in the Kalutara dis-trict. He also claimed that by virtue of suchViharadhipathiship he is entitled to the custody and manage-ment of two other temples “Anandaramaya” and “Amara-singharamava” and to the ownership of certain properties asforming part of the temporalities of the said Deeparamayatemple. The 5th and 6th defendants were made parties to givenotice of the action as they are also pupils of the said Ben-thara Saddhatissa. In the answer filed on behalf of the defend-ants, the 1st defendant-respondent-appellant claimed the Viha-radhipathiship of the three temples. It was however stated inthe course of the trial that “Anandaramaya” and “Amara-singharamava” are not appurtenant to Deeparamaya but dis-tinct temples and the defendants would claim their rights tothem in a separate action and the trial proceeded only inregard to the plaintiffs claim in respect of Deeparamaya.
After a trial of the action on 25 dates from 11.10.72 to17.12.75, the learned District Judge upheld the 1st defendant’sclaim to the Viharadhipathiship of Deeparamaya and dis-missed the plaintiffs action whereupon the plaintiff appealedto the Court of Appeal. During the pendancy of the appeal theplaintiff died and his senior pupil' Rev. Omatte SanganandaThero (the respondent to this appeal) was made the substitutedplaintiff-appellant. The Court of Appeal determined that theplaintiff was the lawful Viharadhipathi of the temple and setaside the judgement of the District Court, and declared thesubstituted plaintiff-appellant to be the present Viharadhipathiof the temple and further ordered that the 1st to 4th defend-ants be ejected from the temple and the substituted plaintiff
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appellant (hereinafter referred to as the ‘respondent’) be res-tored to the possession thereof. The 1st defendant-respondent-appellant (hereinafter referred to as the ‘appellant’) appeals tothis Court from the judgement of the Court of Appeal.
The temple in dispute which is described in all the docu-ments as Deeparamaya Duwe Viharaya is a temple which isexempted from the operation of S.4(l) of the Buddhist Tem-poralities Ordinance (Cap. 318) but not being a temple exemp-ted from the operation of the entire Ordinance the manage-ment of the property belonging to it is, in terms of S.4(2),vested in its Viharadhipathi. Rev. Kalutara Ratanapala was theoriginal Controlling Viharadhipathi of this temple. On hisdeath his sole pupil Mahagoda Sumanatissa Thero succeededhim in office. He died in 1953 leaving only two pupils i.e. theoriginal plaintiff and Rev. Benthara Saddhatissa Thero. Theplaintiff was the senior pupil and according to the rule ofSisyanu Sisya Paramparawa he would have succeeded to theoffice of Viharadhipathi of the temple.
The appellant, however, contends that Rev. SumanatissaThero in or about 1929 orally nominated and appointed Rev.Saddhatissa Thero to the Viharadhipathiship of the DuweDeeparamaya Temple; that by virtue of the said appointmentRev. Saddhatissa Thero became the Viharadhipathi of thetemple upon the demise of Rev. Sumanatissa Thero in 1953;that he functioned in that office and died in 1969 having madehis last will in 1967 (6D18); and that the appellant succeededto the said office under the provisions of 6D18 admitted toprobate in D.C. Colombo (6D19).
Evidence of the alleged oral appointment was given by Rev.Sugathadecra Thero a monk of about 70 years of age. His tes-timony was assailed by Counsel for the plaintiff who urgedthat he was deliberately giving false evidence to help the appel-lant. It was submitted that his conduct and behaviourthroughout the years has been unbecoming of a monk and thathe is unworthy of credit. It was also submitted that at the time
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of the alleged nomination there was displeasure between Rev.Saddatissa Thero and his tutor Rev. Sumanatissa Thero andtherefore it is unlikely and improbable that Rev. SumanatissaThero would have nominated him. The learned District Judgeafter a careful consideration of the evidence rejected theseallegations and submissions but in view of the position takenup by the plaintiff regarding the character and credibility ofthis witness analysed the other evidence in order to ascertainwhether it tends to support the oral testimony of the witness;upon such analysis the learned Judge reached the conclusionthat the documentary evidence and the conduct of parties asdisclosed by the evidence support the evidence that theappointment spoken to by Rev. Sugathadeera had in fact beenmade.
Rev. Sugathadeera said that Rev. Sumanatissa made thealleged appointment at a meeting held at the conclusion of afoundation laying ceremony for the vihare in the presence of agathering consisting of monks and prominent representativesof the laity. The plaintiff and Rev. Saddatissa Thero were alsopresent. In the course of a lengthy cross-examination theCounsel for the plaintiff did not probe the details or themanner of the alleged appointment or the words used in mak-ing such appointment except what appears in Sinhala at page442 of the brief the English version of which is as follows:
Q. According to your evidence, you do not say that thisoral appointment is unequivocal?
A. I say that it is unequivocal.
Q. What you say is that he said so?
A. No the appointment was made.
Q. To what do you say this appointment was made?
A. I was present at that meeting.
The point was not pursued and in the cross-examinationthat followed Counsel only put questions suggesting that asthe witness belonged to the Amarapura Sect he would not
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have attended a function at the Duwe Temple which belongedto the Siamese Sect.
However, the plaintiffs Counsel developed the point dur-ing his submissions before the District Court when he said thatthe appointment must be proved unequivocally. It must beclear and specific. The burden is on the defendant to contro-vert the position that the plaintiff is the de jure Viharadhipa-thi. The appointment is proved only if that is the only infer-ence possible. If necessary, there must be corroboration. It wasthe Counsel’s submission that there is no evidence of anappointment to the Viharadhipathiship but that Rev. Saddha-tissa was only the resident monk carrying out the religiousfunctions. The fact that he was so resident for many years orthat he was addressed as Viharadhipathi means nothing. It wason the basis of a similar submission that the Court of Appealset aside the judgement of the District Court.
Now the learned District Judge’s approach in deciding thedispute differs from the approach advocated above on behalfof the plaintiff. He might have more usefully examined thesubmissions made but he did not consider them specificallyperhaps due to the paucity of cross-examination on the detailsof the alleged oral nomination. He decided the question of factwhether Rev. Saddhatissa had been nominated to succeed Rev.Sumanatissa as the Viharadhipathi of the Duwa Temple. Indoing so he acted on the “uncontradicted” evidence of Rev.Sugathadeera Thero for which he looked for support in theother evidence. He regarded the evidence on this point asuncontradicted because Rev. Sangananda who gave evidencefor the plaintiff was not in a position to say whether anappointment had in fact been made. He however, stated thatto his knowledge there was no appointment. The plaintiff whois said to have been present at the time of the allegedappointment did not give evidence. It was stated that theplaintiff was too ill to attend Court and give evidence.
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It seems to me that the question whether an appointmentof a successor to the Viharadhipathi&hip of the Duwe Templehad been proved is ordinarily a question of fact even wherethe sufficiency of evidence on such appointment is involved.Mr. L. C. Seneviratne P.C. for the respondent conceded that itis a mixed question of fact and law. However, the Court ofAppeal whilst mainly considering the question of sufficiency ofevidence concluded that it is “entirely a question of law”.According to that Court “the principal question before theDistrict Judge was as to the validity and efficacy of the allegedoral nomination in 1929”; the “bald statement” of Sugatha-deera Thero that such nomination was made without any“elaboration thereof’ is inadequate; thus the witness has notclarified whether the appointment was made to be effectiveupon the death of Rev. Sumanatissa or only as Adhikari or thechief resident monk for the time being. The Court observedthat the District Judge had failed to analyse the evidence; thatin holding that there was a valid nomination in 1929 upon thisevidence the Judge merely adopted the conclusions reached bySugathadeera Thero and in doing so surrendered his functionof deciding the effect of evidence. In the circumstances theCourt took the view that the question of corroboration doesnot arise because on the evidence of Sugathadeera Thero thecorrect decision is that either no such nomination was in factmade or that there is no valid nomination; and that in consid-ering that the documents produced supported the evidence ofSugathadeera Thero that there was a nomination in 1929 theDistrict Judge misdirected himself.
The Court of Appeal dismissed a submission by Counselfor the appellant that it would be unrealistic to expect the wit-ness after so many years to recollect the terms in which suchnomination was made. The Court said that if it is sought todeflect the succession away from the senior pupil so as to dis-turb the normal rule, a nomination must be in “clear andintelligible terms” which would be the case with respect to awritten document; and there is no logical basis Car saying that
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in the case of an oral nomination “It would suffice merely tosay that there was a nomination as in this case”. The Court,also thought that the rule that an appellate tribunal should beslow to interfere with findings of facts reached by a Court hasno application for the reason that whilst what Sumanatissasaid in 1929 is undoubtedly a question of fact, what isinvolved here is the legal effect of what he said which isentirely a question of law.
In the result, the Court of Appeal decided the entire caseconsisting of about 625 pages of evidence and submissionsbefore the District Judge primarily with reference to what ithad gathered to be the evidence of Sugathadeera Thero and onthe basis that there was no question of fact which requiredscrutiny. In so deciding the case that Court relied on certaindicta of the former Supreme Court in judgements regardingthe distinction between de facto and de jure Viharadhipathiand the statutory provisions before and after the BuddhistTemporalities Ordinance of 1931 as to the rights and privilegesof the incumbent or the Viharadhipathi of a temple. In thatbackground and on the basis that there is no evidence of avalid nomination, the Court expressed the view that Saddha-tissa Thero was only the de facto Viharadhipathi of the DuweTemple or the agent of the Viharadhipathi (SumanatissaThero) resident elsewhere; and that the evidence does not dis-close that anything took place upon the death of SumanatissaThero in 1953 other than the fact that his tenure ofViharadhipathi terminated with such death. Consequently, theCourt found that in 1953 the plaintiff as senior pupil ofSumanatissa Thero succeeded him as Viharadhipathi of thetemple in accordance with the Sisyanu Sisya Paramparawa ruleof succession. Our task is to determine the correctness of thedecision so reached.
As regards the distinction between de facto and de jureViharadhipathi, the Court cited Pemananda Thero v. ThomasPerera (1) Amarasekcra Thero v. Tittagala Sasanatilake Thero
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(2) and Dhammadaja Thcro v. Wimalajothi Thero (3). I mayadd to this Jinaratna Thero v. Dhammaratane Thero (4) citedby Mr. L.C. Seneviratne P.C. at the hearing of this appeal.The first of these cases held that a de facto Viharadhipathimerely residing in the temple and looking after its propertywith the permission of the Viharadhipathi had no right tolease the property belonging to the temple. The other casesheld that the de jure Viharadhipathi will not be deemed tohave renounced or abandoned a temple by reason of residencein another temple of which he is also Viharadhipathi or byreason of permitting another priest to occupy his temple; thata priest can be incumbent of more than one temple; that a pri-est cannot acquire Viharadhipathiship by residence in histutor’s Vihare whilst conducting a Pirivena and a school forany length of time, and that the fact that the de jure Viharad-hipathi looks on whilst another is described as Viharadhipathidoes not deprive him of his rights. None of these cases evenremotely deal with a question of succession to Viharadhipathi-ship by nomination. They would, however, be relevant if theCourt of Appeal is right in taking the view that the evidenceof Sugathadeera Thero fails and it was not open to the DistrictJudge to have acted on it subject to corroboration by otherevidence.
As regards the statutory provisions before and after 1931as to the rights and privileges of the incumbent or the Viha-radhipathi of a temple the Court cited Morontota SobithaThero v, Amunugama Ratnapala Thero (5) which held that“incumbent” under the Ordinance of 1905 which was in forcein 1929 (when the alleged appointment was made) include boththe Viharadhipathi if he was resident in the temple and thechief resident priest officiating in his behalf (if he was not) thelatter being known as Adhikari; under that Ordinance theproperty of a temple vested in lay trustees. Under the 1931Ordinance “Viharadhipathi” means the principal Bikkhu of a
temple whether resident or not and where S.4(2) applies
the property is vested in the Viharadhipathi who then is
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termed the Controlling Viharadhipathi. The Court thoughtthat at the time of the alleged nomination in 1929 the changeseffected in 1931 could not have been in the contemplation ofRev. Sumanatissa Thero, the nomination in 1929 had necessar-ily to be as an agent only and in the absence of a furtherstatement by him in 1931 Saddhatissa Thero could not haveacquired any greater right of succession to the Viharadhipathi-ship in 1953. The criticism of Mr. Eric Amerasinghe P.C. forthe appellant on this approach is twofold. Firstly it is highlylegalistic in that it requires the effect of the actions of ordinarypriests to be interpreted in the context of their appreciation oflaws; Secondly, it ignores the relevance of several judicial deci-sions which Samarakoon C.J. examined (pp 218-221) on thebasis of which he concluded.
“The above cases show clearly that the Buddhist Tempor-alities Ordinance of 1889 and 1905 left untouched anincumbent’s unalieanable customary rights and interestsin the temple and its endowments required to be exer-cised or used by him for the purpose of his office”.
If so, there was no legal fetter against Sumanatissa Theroappointing his junior pupil in 1929 to succeed him as Viharad-hipathi of the Duwe Temple upon his death whether suchpupil was immediately placed incharge of that temple or not;and that the appellant has proved the making of suchappointment.
Has the Court of Appeal properly exercised its appellatejurisdiction by reversing the judgement of the trial Court inthe way it did, resting its judgement on the evidence of Rev.Sugathadeera alone and on the basis that it is entirely a ques-tion of law? Is the Courts view that the trial Judge had merelyadopted the conclusions of Sugathadeera Thero tenable? Didthe District Judge misdirect himself in accepting documentaryevidence as supportive of the alleged nomination? In decidingthese questions one must bear in mind the fact that the Courtbelow did not exclude the evidence of Sugathadeera Thero on
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the ground of inadmissibility but on the ground that it isvague and unintelligible because the witness did not givedetails of the alleged appointment by Sumanatissa Thcro indi-cating that it was to enable Saddhatissa Thero to succeed himon his death. There is, therefore, admissible evidence regard-less of its evidentiary value. I shall presently refer to the rele-vant evidence on the point but before 1 do so I wish to repro-duce the main points urged on behalf of the respondent at thehearing before us.
Mr. L. C. Seneviratne P.C. made the following points insupport of the judgement of the Court of Appeal:
There must be acceptable evidence of nomination ofViharadhipathi,
The evidence presented to Court is insufficient in view ofthe fact that the alleged nomination was made in 1929without the necessity for succession. The evidence didnot disclose the form of nomination i.e. as successor oras Adhikari; hence the case is not proved.
Documents produced as corroborative evidence are cap-able of more than one meaning. They do not necessarilysupport the nomination of a successor and as such can-not be regarded as corroborative.
The Court of Appeal rightly laid stress on the form ofnomination and rightly acted with caution.
Sumanatissa being Viharadhipathi of three templesappointed Saddhatissa as caretaker of one of them.
There is only a bald statement of an oral appointment.The evidence is more compatible with Sumanatissa hav-ing appointed Saddhatissa as de facto Viharadhipathi ofthe temple and gone to another temple.
The essence of these submissions is that Sugathadeera The-ro’s evidence by itself is insufficient as proof of the alleged
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appointment; hence there is nothing to begin with and thequestion of corroboration does not arise; in any event the sup-porting documents are equivocal and hence not corroborative.Thus the learned President’s Counsel did not contend that it is“entirely a question of law” as was understood by the Courtbelow.
The record shows that Sugathadeera Thero’s evidence onthe point had been elicited not in the abstract but immediatelyin relation to document 6D49 dated March 1955 which is ajoint appeal to the electors of the Kalutara electoral districtregarding the impending General Election to Parliament. Ithad been prepared by the witness to be signed by the Viharad-h'ipathis of the area; the witness had included therein Saddha-tissa Thero as the Viharadhipathi of the Du we Temple; andthe latter had signed it.
This was subsequent to the death of Sumanatissa Thero.Asked by the examining Counsel how the witness knew thatSaddhatissa was the Viharadhipathi to so describe him, thewitness answered that he knew from his personal knowledgethat Saddhatissa had been appointed to Viharadhipathiship bySumanatissa Thero and proceeded to give the details as to theyear, the occasion etc. It is thus clear that the witness was tes-tifying regarding the status of Saddhatissa in 1955 whenSumanatissa had ceased to be Viharadhipathi and in effectstating that Saddhatissa was Viharadhipathi consequent upona nomination in 1929. In cross-examination the witness said(though subject to some confusion at one stage which I do notconsider as material) that Sumanatissa Thero remained theViharadhipathi of the Duwe Temple until his death; that hewas Viharadhipathi of all his temples when he died and hadnot lost such status of Viharadhipathi (pp 416, 417 of thebrief)- The witness was, therefore, testifying to an appointmentin 1929 which included the right of succession to the Viharad-hipathiship of the Duwe Temple at a later date.
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If Sugathadeera Thero’s evidence considered in its contextwas intrinsically in respect of a nomination leading to succes-sion to the Viharadhipathiship of the Duwe Temple, it cannotbe said that there is no evidence to begin with and that thetrial Judge misdirected himself in looking for corroboration. Iffurther details of the appointment were required on the suffi-ciency of such evidence the plaintiffs Counsel should haveadequately cross-examined the witness. In the.absence of suchcross-examination the trial Judge cannot be faulted for actingon such evidence subject to corroboration. It is then a ques-tion of fact for the trial Court and the Court of Appeal wasnot warranted in interfering with the findings of fact of thatCourt in the way it did.
In the context, I also have grave doubts as to the correct-ness of the view expressed by the Court of Appeal that theevidence of an oral nomination must in every respect be soprecise as in the case of a written nomination. No doubt theCourt should assess such evidence carefully and if necessarylook for corroboration before acting on it. However, there isno rule of evidence which requires a witness giving evidenceregarding an event that occurred 45 years ago to go into the“form” and “manner” of the nomination with absolute preci-sion. I do not think that the Counsel for the opposite partycan then refrain from testing such evidence and urge that theclaim of a nomination is “not proved”
The failure of the trial Judge to analyse the evidence ofSugathadeera Thero did not result in the adoption of a wrongapproach in deciding the case when he looked for corrobora-tion because the evidence of the witness properly examined issufficiently specific to be acted upon subject to corroboration.With great respect it is my view that the Court of Appeal byfailing to examine the actual evidence of the witness on recorderroneously assumed that the issue was one of law as to the“legal effect” of his evidence and on that assumption struckout the corroborative evidence and proceeded to reverse thejudgement of the District Judge. By this process, the Court hasunjustifiably interfered with the findings of fact.
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What is more, the Court has expressed the view that cor-roboration is “not met by the large volume of evidence led inthe case” because that evidence (which the Court has not pro-ceeded to discuss) merely suggests that Sugathadeera Therowas no more than de facto Viharadhipathi or the agent ofViharadhipathi resident elsewhere. This is one of the submis-sions urged by Mr. L.C. Seneviratne P.C.. The Court wentbeyond and said that the only evidence which could have beenthought to be corroborative is the evidence of the 6th defend-ant Sangarakkitha Thero who testified that according to theinformation he had from his tutor (Saddhatissa Thero) thenomination in 1929 was to all the three temples. The Courtmade the point that this evidence tends to have the oppositeeffect, meaning that it contradicts Rev. Sumanatissa. This evi-dence which was given under examination in chief was over-ruled by the Court on an objection by the plaintiff’s Counsel(p. 69 of the brief) and as such it was not competent to theCourt of Appeal to have used it to contradict SumanatissaThero. The Court has committed a serious error in so usingthe evidence. Further by purporting to review corroborativeevidence the Court has expressed views on facts without anydiscussion of the evidence or a critical examination of theviews of the original Court on the various items of evidence.This too is a serious error. The judgement appealed from can-not therefore stand and must be set aside.
What I have said is sufficient to dispose of this appeal.However, for the sake of completeness I wish to briefly com-ment on the merits as the Court of Appeal has made certainobservations thereon but without a proper examination of therelevant evidence. Firstly, in view of my ruling that the DistrictJudge was competent to act on Sugathadeera Thero’s evidencesubject to corroboration judicial decisions cited by the Courtof Appeal would lose much of their force in the instant case.Secondly, whilst pupillary succession according to seniority isthe rule, a Viharadhipathi has the right to appoint any par-ticular pupil as his successor. Dhammajoti v. Sobita (6) Piya-
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tissa Terunnanse v. Saranapala Terunnanse (7). It follows thatthe right to Viharadhipathiship by nomination is as much aright as in the case of pupillary succession except that theparty claiming to succeed by appointment must prove it. Ifnecessary, the Court may look for corroboration; but theburden on the claimant is to satisfy the Court on a balance ofevidence.
Thirdly, it would appear that Sumanatissa Thero who wasthe Viharadhipathi of three temples had as early as 1929entrusted the Duwe Temple where he was resident to Saddha-tissa. By 1932 he was resident at Anandaramaya and shifted toSri Dharmaramaya which was in-charge of the plaintiff, abouta month before his death in 1953. The documents clearly showthat until 1953 the plaintiff and Saddhatissa Thero functionedas ‘Viharavasis’ (resident monks) of their respective templesand that it was so understood by them and their tutor Suma-natissa (P13, P20, P31, P32, P32A, P34, P34A, P43, 6D28,6D29, 6D30). From 1953-1969 the plaintiff functioned as theViharadhipathi of Sri Dharmaramaya whilst SaddhatissaThero was publicly acknowledged at religious functions of SriDharmaramaya itself and in the media as Viharadhipathi ofthe Duwe Temple to the full knowledge of the plaintiff. Hepublished books under his name as such Viharadhipathi. Theplaintiff never objected to it. Instead the plaintiff and his pupilSangananda Thero addressed him letters describing him asViharadhipathi of the Duwe Temple in most respectful terms.Even in the notice on the occasion of Saddhatissa’s death pub-lished under the name of the plaintiff and the funeral commit-tee, Saddhatissa is described as such Viharadhipathi whilst theplaintiff is described as Viharadhipathi of Sri Dharmaramaya(6D9, 6D10, 6D12, 6D13, 6D14, 6D15, 6D16, 6D37A, 6D37,6D38A, 6D38, 6D39A, 6D39, 6D64, 6D64A, 6D65, 6D65A,6D66, 6D66A, 6D67). The explanation of Sangananda Therois that they addressed Saddhatissa Thero as Viharadhipathiout of respect; and that he functioned under that designationwith the plaintiffs permission. There is not a single document
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in support of the plaintiff and he relies on the bare assertionof Sangananda Thero to that effect; and the District Judgerejected this explanation being of the view that the plaintiffsconduct supports the evidence of Sugathadeera Thero that theappointment had in fact been made.
It is true that the fact that a person looks on whilst anotheris called Viharadhipathi for any period whatsoever will notdeprive him of rights; but here there is an admission by theplaintiff against his interests and the question is whether suchadmission tends to support the alleged nomination of Saddha-tissa Thero to succeed his tutor. The plaintiffs conduct for 16years is most unusual for a priest who claims the Viharadhi-pathiship of a temple. I am of the view that the DistrictJudge’s determination is correct.
The judgment of the District Court also derives some sup-port from the decision in Pannavasa Thero v. Sudassi Thero(8). There the plaintiff claimed the incumbency of a temple asa pupil of Saranapala Thero (The Viharadhipathi), by virtue ofan appointment to succeed him. The defendant claimed:
that the temple was never dedicated;
that the plaintiff had abandoned the temple;
that the defendant had been invited to the temple by theDayakayas.
It was held that the temple was sangika property, the alle-gation of abandonment was false and the plaintiff alone hadthe right to possess the temple and the Dayakayas had nopower to choose the incumbent. Though this decision is not_directly in point, there is a finding in respect of the plaintiffsclaim of succession which is relevant. It was held that anadmission by Gunaratana, a pupil of Saranapala who wassenior to the plaintiff in a declaration under s.41 of the Bud-dhist Temporalities Ordinance and in the plaintiff’s favourstrongly supported his claim. Another fact which supported itis that it was the plaintiff and no other pupil had resided inthe temple and administered its affairs from the time of Saran-
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apala’s death in 1913, until the dispute arose in 1949. Sansoni
J.(as he then was) also said this —
“Not a single document has been produced to show thateither Gunaratana or Ratanapala (both senior pupils)over exercised powers in respect of the temple, and Ithink the learned District Judge’s finding that the pre-vious incumbent Saranapala nominated the plaintiff ashis successor is the only possible one on the evidence”.
This judgment does not specifically state that the allegednomination was oral. However, the tenor of the judgment andthe fact that the plaintiff first came to Court as a senior pupilof Saranapala, and later amended his plaint and claimed theincumbency of the temple under an appointment suggests thatit was an oral appointment.
In the instant case, the dispute arose only after the death ofSaddhatissa Thero when his senior pupil the appellant soughtto exercise his right to the temple under Saddhatissa Thero’slast will. The Court of Appeal held that the conduct of theappellant and the 2nd to 4th defendants were contumaciousand made them liable to ejectment. In view of my findings thisdetermination has no merit.
For the foregoing reasons, I allow the appeal, set aside thejudgment of the Court of Appeal and affirm the judgement ofthe District Court with costs payable to the appellant in all thethree Courts.
Bandaranayake, J. — I agree.
Fernando, J. — I agree.
Appeal allowed.