045-SLLR-SLLR-1983-2-PANNALOKA-THERO-v.-SARANANKARA-THERO.pdf
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Pannaloka Them v. Saranankara Them
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PANNALOKATHERO
v.SARANANKARA THERO
SUPREME COURT
SHARVANANDA. J. RATWATTE. J. AND COLIN-THOME. J.
S.C. NO. 17/81CA NO. 353/72 (F)
C. COLOMBO NO. 1150/ZL
16 SEPTEMBER 1982 AND 14 AND 15 OCTOBER 1982.
Buddhist Ecclesiastical Law — Succession to Viharadhipathyship — Nominationby writing — Seniority — Res judicata — Civil Procedure Code Ss. 33, 34,207 — Estopped by statutory bar under S 406(2) on abandonment.
In case D.C. Colombo 9357/L the plaintiff along with seven others had sued thedefendant for a declaration of title to the land on which the temple was built, thebuildings, the furniture and other articles within the buildings on the land andfor ejectment of the defendant and damages on the basis that the subject-matters was the "Pudgalika Property" of Rev. Saranatissa Maha Thero and thathe had gifted it to the plaintiffs. The defendant filed answer claiming the propertyas sangika and that he was the senior pupil of Rev. Saranatissa and hadsucceeded to the Viharadhipathyship. Though the defendant had by way of aclaim in reconvention sought a declaration that he was the Viharadhipathy. hedid not raise or put in issue his claim that he was the senior pupil and that hehad succeeded to the Viharadhipathyship. The plaintiff's action was dismissed asthe property was sangika.
The defendant-respondent contends that owing to the failure of the plaintiff toclaim in case No. 9357/L that he was the senior pupil of Saranatissa Thero andthe lawful Viharadhipathy of the temple, the judgment and decree in that caseoperated as res judicata against his present claim (Ss. 33. 34 and 207 C.P.C).So alao the plaintiff-appellant contended that by his failure to raise in issue thathe was the senior pupil of Rev. Saranatissa and the lawful Viharadhipathy, hehad abandoned his claim and he was barred by S. 406(2) C.P.C.
Held —
The judgment and decree in D.C. 9357/L did not operate as res judicataagainst the plaintiff, because his claim (along with 7 others) was on the footingthat the property was pudgalika property of Rev. Saranatissa. whereas theplaintiff's claims are based on the property being sanghika. The rights claimedby the palintiff and the facta probanda in that case and this were different. Theearlier action was based on ownership of property, while this is based on
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entitlement to an office. A person is not bound to sue on an alternative cause ofaction. Further the palintiff could not have joined his claim to theViharadhipathyship along with the claims of the other plaintiffs.
On the other hand too res judicata will not operate against the defendant forthere had been no adjudication on his claim in the earlier action.
But the failure of the defendant to put in issue his claim to the incumbencyamounts to an abandonment and S. 406(2) operates as a statutory bar to hispreferring the same claim now. This bar to a fresh suit in respect of the subjectmatter of the former action which had been withdrawn without the permission ofCourt is not based on the principle of res judicata but is attributable to theprovisions in S. 406(2) of the C.P.C.
Yet although defendant is barred from making a claim no rule of res judicataestops him from setting up the plea as a defence. Section 406(2) does notextinguish a party's right. It only bars his remedy. He is not precluded fromresisting the plaintiff's claim on the basis of the right in which he founded hisclaim in reconvention. The prohibition enacted by S. 406(2) applies to actionsand not to defences.
Robing precedes ordination and the pupil who is the first to be robed is thesenior pupil who is entitled to succeed his predecessor.
A Viharadhipathy has the right to nominate his successor from amongst hispupils, even a junior pupil over the head of the senior pupil.
A writing by which an incumbent of a Buddhist temple nominates a person tosucceed him on his death is in the nature of a testamentary disposition. Wheresuch writing is relied on to support nomination to incumbency the burden lieson the party who relies on such document to establish to the satisfaction ofcourt that the document is the act and deed of the deceased and ifcircumstances exist which arouse the suspicion of the court, as to thegenuineness of the document or as to the circumstances in which the documentis alleged to have been executed, the Court should be vigilant and jealous inexamining the evidence in support of the writing which it should not accept andact upon unless the suspicion is removed and it is judicially satisfied, as in thecase of a last will, that the writing represents the true disposition of thedeceased.
The very legitimate suspicions expecting the execution of the document ofnomination and its belated disclosure by the defendant, taken together, conduceto a high degree of improbability that the writing is authentic.
The defendant is liable in damages until the plaintiff is restored to and quietedin possession. But the defendant being a pupil of Rev. Saranatissa is entitled toreside at the vihare and cannot be evicted
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Cases referred to :
Senaratne v. Jinaratne 42 NLR 361
Chand Koer v. Pratab Singh 16 Col. 98 (F.C.)
Samichi v. Peiris 16 NLR 257, 2261
Ranhott v. Singhe (1935) 14 C.L.Rec. 91
Krishna v. Thevarajah 62 NLR 511
Punnirulapillai v. Western India Oil Distribution Co. Ltd. AIR 1948Madras 270
Jayawardena v. Aranolishamy 69 NLR 497
Fernando v. Perera 25 NLR 197
Radheyshian v. Nazir Khan AIR 1937 Ondh 394
Dhammajothi v. Sobitha 16 NLR 408
Piyatissa Terunnanse v. Saranapala Terrunnanse 40 NLR 262APPEAL from judgment of Court of Appeal.
Amerasinghe. S.A. with L. C. Seneviratne, Lakshman Peiris and Miss D.Guniyangoda for plaintiff-appellant.
H. L. de Silva. S.A. with S. Mahenthiran for defendant-respondent.
Cur. adv. vult
March 24. 1983SHARVANANDA, J.
The Plaintiff-Appellant instituted this action on 23rd August1963 against the Defendant-Respondent praying inter alia for adeclaration that the Plaintiff-Appellant is the lawfulViharadhipathi of the temple called 'Wijayawardan.a Aramaya"situated at Skinner's Road North. Kotahena and that as thecontrolling Viharadhipathi of the said temple and itstemporalities he is entitled to control and administer the same.
It is admitted that the founder and the first Viharadhipathi ofthis temple was Gangulwitigama Saranatissa Thero and that the
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temple is exempted from the operation of section 4(1) of theBuddhist Temporalities Ordinance, but is governed by section4(2). The said Gangulawitiya Saranatissa Maha Thero died on the27th August 1960. This dispute that has arisen in this case is inrespect of the succession to the Viharadhipathyship of the saidtemple with the death of the said Saranatissa Thero.
The Plaintiff-Appel I ant based his claim to theViharadhipathyship on two grounds. He stated that according todeed No. 11 25 dated 27.9.1958 (P6) the said Saranatissa MahaThero created a line of succession to the Viharadhipathyship ofthe said temple, according to the rule known as 'GnathisisyaParamparawa' and appointed the Plaintiff-Appellant, who is ablood relative of the said Saranatissa Maha Thero to succeedhim as Viharadhipathi. The Plaintiff claimed that the said deed P6constitutes a valid nomination and appointment of the Plaintiff tothe office of Viharadhipathi of the said temple in succession tothe said Saranatissa Maha Thero and that he was therefore alawful Viharadhipathi of the said Wijewardena Aramaya. ThePlaintiff further claimed that, in any event, he being the seniorpupil of Saranatissa Maha Thero he had succeeded the latterpriest as Viharadhipathi of the said temple.
The Defendant-Respondent denied plaintiffs claim to theViharadhipathyship of the said temple and in turn claimed adeclaration that he is entitled to the incumbency of the saidtemple on the following grounds :—
That he is a senior pupil of Saranatissa Maha Thero and is
thus lawful Viharadhipathi of this temple.
That the said Saranatissa Maha Thero had by writing dated
14.9.1959 (P6) nominated and appointed him to succeedto the incumbency of this temple on his death, thedefendant had by virtue of the said document D2.succeeded as the lawful Viharadhipathi of this temple.
– That, on the day following the nomination of Saranatissa
Maha Thero. the Sanga Sabha together with the Plaintiff-
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Appellant and other pupils of the deceased priest electedand nominated the Defendant as the Viharadhipathi of thistemple.
The Plaintiff-Appellant has by his conduct and consent to thesaid election and/or nomination renounced and/orabandoned any right of the plaintiff to the incumbency andthat the plaintiff was thereby estopped from making thepresent claim and cannot have and maintain this action.
The Plaintiff-Appellant by his application denied that thedefendant was a senior pupil of Saranatissa Maha Thero or thatthe writing dated 14.9.1959—D2 was the act and deed of thedeceased Saranatissa Maha Thero. He also denied (a) that theSanga Sabha nominated or elected the Defendant-Respondentas the Viharadhipathi or (b) that the Plaintiff or other pupils of thesaid Saranatissa Maha Thero at any time acquiesced in orconsented to the appointment of the Defendant as an incumbentor (c) that he renounced or abandoned any of his rights to theincumbency of this temple as alleged by the Defendant.
The trial Judge has held against Plaintiff's claims based ondeed No. 1 125 dated 27.9.1958 to the Viharadhipathyship ofthe temple. This finding has been affirmed by the Court ofAppeal. I am in agreement with the conclusion of the Courtsbelow that the Plaintiff's claim to Viharadhipathyship of thetemple based on deed P6 cannot be sustained.
On the issue of the seniority, the trial Judge has accepted theevidence of the Plaintiff which was supported by the'Upasampada' Register (P2) and documents P6 and P21, that heis the senior pupil of Rev. Saranatissa Maha Thero by robing andordination. The Defendant was a pupil of Saranatissa MahaThero only by ordination. Under the Buddhist Ecclesiastical lawpupilage is conferred by robing or by ordination and a robedpupil is entitled to succeed to the incumbency of the tutor,whether he has been ordained or not. Robing precedesordination and the pupil who is the first to be robed is the senior
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pupil, who is entitled to succeed his predecessor. (Senaratne v.Jinaratne (1). On the basis of the dates and the names of therobing and ordaining tutors given in the declaration PI, P2 andP3, the District Judge concluded that the Plaintiff was the seniorpupil of Saranatissa Maha Thero. The Court of Appeal hasaffirmed this finding. No valid reason to differ from thisconclusion has been advanced and I hold that the Plaintiff is thesenior pupil of Rev. Saranatissa Maha Thero.
The evidence and contention of the Defendant that he wasappointed as Viharadhipathi of the temple by the Sanga Sabha ata meeting held on the day after the cremation of SaranatissaMaha Thero and that the Plaintiff had consented to andacquiesced in his election has been rejected by the trial Judge.On the evidence on record the ffndings of the trial Judge on thisissue cannot be faulted.
The main argument in this appeal related to the issue of resjudicata. Both Plaintiff and Defendant contended that the otherparty was precluded by the earlier Judgment and Decree in case
C. Colombo 9357/L from maintaining his claim to theincumbency of the temple. In the earlier action 9357/L institutedon the 14th day of December 1960, the Plaintiff-Appellant, alongwith seven other Plaintiffs had sued this Defendant for adeclaration of title to the said land on which the temple was built,the buildings, the furniture and other articles within the buildingson the land and for ejectment of the Defendant priest and fordamages, on the basis that the subject-matter was 'PudgalikaProperty' of Rev. Saranatissa Maha Thero and that he had giftedthe property to the Plaintiffs by Deed No. 1125 dated 27thSeptember 1 958 (P1) subject to the terms thereof. In that actionthe Defendant had filed answer stating that the said land andpremises constituted 'sangika' property and that the deed P6 wasinvalid and had no effect in law. The Defendant has further statedthat he was the senior pupil of Rev. Saranatisssa Maha Thero andhad as such succeeded to the Viharadhipathiship of the templeon the death of the Saranatissa Maha Thero and further prayedfor a declaration that he was the lawful Viharadhipathi of the said
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temple and entitled to the premises. The said case No. 9357/Lwent to trial on eleven issues all touching on Plaintiffs claim. TheDefendant-Respondent raised the decisive issue whether the saidtemple property was Sangika property and if so whether theplaintiff could maintain his action. The defendant-respondent,though in his answer, had by way of a claim in reconventionprayed for a declaration that he was the lawful Viharadhipathi ofthe temple, did not raise or put in issue his claim whether he wasthe senior pupil and if so he had succeeded the said SaranatissaMaha Thero as Viharadhipathi of the temple. By its judgmentdated 3rd June 1963 the trial Court held that the property wassangika property and dismissed the Plaintiffs action in case No.9357/L. This judgment was affirmed in appeal on 20th July1966 by the Supreme Court.
On the basis of the judgment and decree in case No. 9357/Lthe Defendant-Respondent contends that due to the failure ofthe Plaintiff to claim in case No. 9357/L that he was the seniorpupil of Saranatissa Thero and was the lawful Viharadhipathi ofthe temple, the judgment and decree in the'said case operated asres judicata against the plaintiff and that sections 33, 34 and207 of the Civil Procedure Code taken together barred him frommaking the present claim. On the other hand the Plaintiff-Appellant contends, on the.basis of the pleadings, judgmentsand decree in case No. 9357/L, that though the defendant hadpleaded in case No. 9357/L that he was the senior pupil of Rev.Saranatissa Maha Thero and had become the lawfulViharadhipathi of the temple on the death of Saranatissa MahaThero and had prayed for a declaration that he was the lawfulViharadhipathi of this temple, he had failed to put these mattersin issue in case No. 9357/L and had thereby abandoned hisclaim, and was barred by the provisions of section 406(2) of theCivil Procedure Code from agitating the said issues in this caseand make a claim that he was the senior pupil of SaranatissaMaha Thero and is the lawful Viharadhipathi of the said temple.
The trial Judge upheld the argument of res judicata set up byboth parties and dismissed the plaintiffs action and the claim in
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reconvention of the defendant. Both parties appealed from thejudgment of the District Judge dismissing their claims to theCourt of Appeal. The Court of Appeal by its judgment dated
1.1979 set aside the District Judge's determination on thepleas of res judicata raised by both parties to the case and heldthat the judgment and decree in case No. 9357/L did notoperate as res judicata or as an estoppel against the claims ofthe Plaintiff and Defendant in this Case.
Though the Court of Appeal affirmed the findings of theDistrict Judge that the Plaintiff was a senior pupil of Rev.Saranatissa Maha Thero and that he had not abandoned theclaim for incumbency, it however held that Rev. SaranatissaMaha Thero had by writing dated 14.9.1959—D2 nominatedand appointed the Defendant-Respondent to the incumbency ofthe temple and temporalities and it set aside the findings of thetrial Judge that the said writing D2 was not the act and deed ofSaranatissa Maha Thero. In the result the Plaintiff's action hasbeen dismissed with costs and the claim in reconvention of thedefendant has been upheld and the defendant-respondentdeclared the Viharadhipathi of the temple and its temporalities bythe Court of Appeal. The Plaintiff has preferred this appealagainst the judgment of the Court of Appeal.
In my view the District Judge misdirected himself in law inholding that the judgment and decree in case No. 9357/Loperated as res judicata against the Plaintiff and precluded himfrom maintaining this action. The Plaintiff-Appellant had alongwith seven others claimed in action No. 9357/L title to the landon which the temple is built and the buildings thereon on thefooting that they constituted 'pudgalika property’ of SaranatissaMaha Thero which were actually disposed of by him by Deed No.1125-P6 in their favour and that the entirety to the said propertyhad devolved on them according to P6. On the other hand theclaim of the Plaintiff-Appellant in this action is founded on thepremise that the temple and its temporalities constitute 'sangikaproperty' and that as senior pupil of the last incumbent he hassucceeded as the Viharadhipathi. In this action the Plaintiff prays
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for a declaration that he is the lawful Viharadhipathi of thetemple and entitled as controlling Viharadhipathi of the saidtemple and temporalities, to control and administer the same.The District Judge has fallen into the error of assuming that thecause of action in the present case is identical with the cause ofaction in case No. 9357/L. The cause of action pleaded in theearlier case No. 9357/L was defendant's denial of plaintiffs titleto the land and premises described in the schedule to the plaintin that case, namely the land on which the temple is built withthe buildings standing thereon together with the furniture andother articles on the said building. The cause of action pleadedby plaintiff in the present action is defendant's denial of plaintiff'sstatus and office of Viharadhipathi of the temple. The factaprobanda to establish the ingredients of the cause of action ineach case are different and the rights claimed in the two actionsare not the-same. The earlier action is based on ownership of theproperty on which the temple is built, while the present actionseeks to establish entitlement to the office of the Viharadhipathiwhich carries with it the right to the possession and control ofthe temple and its temporalities : The rights claimed are differentin nature and content, the grounds of title to the respective rightsare different and the causes of action are distinct. True that thedefendant had in the earlier action resisted the plaintiff's claimon the ground that the land and the temple are 'sangika property'and that he was the lawful Viharadhipathi of the temple andentitled, as such to be in possession of the said premises andtemple. But. as observed by Lord Watson in Chand Koer v. PratabSingh (2) 16 Cal.98 (P.C.) " the cause of action has no relationwhatever to the defence which may be set up by the defendant,nor does it depend upon the character of the relief prayed for theplaintiff. It refers entirely to the grounds set forth in the plaint asthe causes of action or in other words, to the media upon whichthe plaintiff asks the Court to arrive at a conclusion in his favour".This principle has been accepted and adopted by our Courts(Vide Samichi v. Peiris (3) Ranhoti v. Singho (4) Krishna v.Thevarajah (5) ). The plaintiff, though he could have set up, wasnot bound to have set up, in the earlier action No. 9357/L, his
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rights to the incumbency of the temple on the ground that hewas the senior pupil of Rev. Saranatissa Maha Thero; a person isnot bound to sue on an alternative cause of action; his failure todo so in the former action does not bar the present action fordeclaration that as the senior pupil of Saranatissa Maha Thero,he is the lawful Viharadhipathi of the temple in suit: The bar doesnot operate when the cause of action in the subsequent suit isnot the same as in the previous action. The defendant's pleaof res judicata based on sections 34 and 207 of the CivilProcedure Code is misconceived for, what would be res judicatain terms of those sections are rights and reliefs which could havebeen claimed or put in issue between the parties upon the causeof action for which action No. 9357/L was brought. Further thePlaintiff in the present case could not have joined in action No.9357/L his personal claim to the Viharadhipathyship of thetemple with the clairps of other plaintiffs in that action, to theland on whch the temple was built, which was the subject-matterof that action — there would have been misjoinder of parties andcauses of action.
i shall now deal with the plaintiffs contention that since thederfendant had failed to put in issue in case No. 9357/L his claimto be declared as the senior pupil of Rev. Saranatissa, thepresent Viharadhipathi of the temple, the judgment and decree inthe said case No. 9357/L operate as res judicata in repect of thesaid claim (issues 7 and 8 raised by plaintiff).
In my view no question of res judicata is involved in respect ofthe defendant's claims; for there has been no adjudication on thesaid claims in the earlier action; the claims were not put in issue.Counsel for the plaintiff however contended that what precludesthe defendant from maintaining his claims in this action is notany rule of res judicata but the statutory bar created by section406(2) of the Civil Procedure Code. He urged that the defendanthad in his answer in case No. 9357/L not only denied andresisted the plaintiff's claim but had in fact made a claim inreconvention that he be declared the lawful Viharadhipathi of thetemple in suit and entitled to the premises. He submitted that
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since the defendant had however refrained from framing anyissue with respect to his claim in reconvention and seekingadjudication on such claim in case No. 9357/L, the defendant isconsequently, precluded by the said provisions of section 406(2)from reagitating that claim in the present action.
Counsel submitted that where a defendant makes a claim inreconvention, he is presumed to be in the position of plaintiff inso far as the said claim for reconvention is concerned. He basedhis submission on section 75(E) of the Civil Procedure Code. TheDefendant having put forward his claim in reconvention wasbound to put in issue and have decided all matters on which hefounded his claim in reconvention. The section provides that aclaim in reconvention duly set up in the answer has the sameeffect as a plaint in a cross action. Counsel cited in support of hissubmission the case of the Punnirulapillai v. Western India OilDistribution Co. Ltd.. (6) where it was held that since a defendantwho prefers a counter claim is in the position of a plaintiff inrespect of his claim in reconvention. Order 23 Rule 1(3) of theIndian Civil Procedure Code which corresponds to section406(2) of our Civil Procedure Code would operate to precludehim from bringing a fresh action for the same matter, the subjectof his claim in reconvention, if he withdraws or abandons hisclaim in reconvention without the permission of Court.
The Court of Appeal has said that the defendant had in caseNo. 9357/L only pleaded a defence and not set up a claim inreconvention and has reasoned that sections 34, 207 and 406of the Civil Procedure Code apply in the case of a defendant onlywhen a claim in reconvention is made by the defendant and notwhere the defendant has only pleaded to the Plaint. In my viewthe Court of Appeal is in error in holding that what the defendanthad pleaded in his answer in case No. 9357/L was by way ofdefence and not by way of counter claim. In his answer in thatcase the defendant had in paragraph 8 not only pleaded by wayof defence that he was the senior pupil of Rev. Saranatissa MahaThero and the lawful Viharadhipathi of the said temple andentitled to the premises and place of worship, but had in his
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prayer asked not only that the plaintiff's action be dismissed butthat he (the defendant) be declared the lawful Viharadhipathi ofthe temple and entitled to the said premises. The defendant hadthus sought not only to justify his possession of the temple andthe premises on the ground that he is the lawful Viharadhipathiof the temple, but had proceeded to pray for a declaration thathe is the lawful Viharadhipathi and entitled to the premises insuit, on the grounds set out in the body of the answer. Theplaintiff, in fact had filed his replication dated 4th May 1961.denying defendant's claim in reconvention and prayed for itsdismissal.
In my view the failure of the defendant in case No. 9357/L toput in issue his claim to the incumbency amounts to anabandonment of his claim by the defendant. The Court had notgranted him permission for such abandonment. Section 406(2)provides that if the plaintiff withdraws from the action orabandons part of his claim without the permission of Court, heshall be precluded from bringing a fresh action for the samematter or in respect of the same part. The 'matter' referred to insection 406(2) does not mean the property in respect of whichan action is brought. It means the cause of action in respect ofwhich the action is brought. It includes the facts andcircumstances upon which the right to relief claimed by the partywho withdraws or abandons his claim depends. (Jayawardena v.Aranolishamy)(7). As stated earlier, this bar to a fresh suit inrespect of the subject-matter of the former action which hadbeen withdrawn without the permission of Court is not based onthe principle of res judicata but is attributable to the provisionenacted in section 406(2). The stringency of this section is such,that the fact that an action was withdrawn before the service ofsummons does not take the case out of the provisions of section406; an action is instituted when a plaint is presented. Fernandov. Per era (8).
On the above view of the matter I agree with the contention ofCounsel for the plaintiff that the defendant in the present actionis precluded by the statutory bar created by section 406(2) of theCivil Procedure Code from resurrecting his claim in reconvention
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viz. that he be declared entitled to the incumbency of the templeon the grounds which could have been put in issue in the earlieraction 9357/L by way of fresh action or fresh claim inreconvention against the plaintiff.
But defendant's claim is not irrelevant or purposeless inplaintiff's present action. Since there had been no adjudication,no rule of res judicata estops the defendant from setting up theplea as defence. Section 406(2) does not extinguish a party’sright; it only bars his remedy ; it does not operate to precludethe party from resisting the plaintiff's claim on the basis of theright in which he founded his claim in reconvention. Theprohibition enacted by section 406(2) of the Civil ProcedureCode applies to actions and not to defences. Where a defendantraises a plea of set off but withdraws it without the permission ofthe Court, he will not be precluded from raising the same plea byway of a defence in a subsequent suit against him. Radheyshianv. Nazir Khan (9).
On the above analysis of the question of res judicata orestoppel by statutory bar, raised by the parties. I am of the viewthat the defendant is barred from maintaining his present claimin reconvention to have him self declared Viharadhipathi of thetemple, but he is not precluded or estopped from resisting ordefending plaintiffs claim on the grounds which support hisclaim to Viharadhipathiship. For the purposes of his defence thedefendant can reagitate the issue of his Viharadhipathishipwhich he abandoned in action No. 9357/L. Hence if thedefendant establishes in this case that either that he is the seniorpupil of Saranatissa Maha Thero or that he had been appointedand nominated by writing dated 14.9.1953—D2 SaranatissaMaha Thero to succeed him as incumbent of the temple, thoughthe defendant wil not be entitled to any declaration that he is thelawful incumbent of the temple he can negate the plaintiff's claimand have the plaintiff's action dismissed.
Finally there is the defence of the defendant that SaranatissaMaha Thero appointed the defendant by writing dated 14th
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September 1959 marked D2, to succeed him as Viharadhipathiof the temple. The defendant is admittedly a pupil of SaranatissaMaha Thero. though not the senior pupil. A Viharadhipathi hasthe right to nominate his successor from amongst his pupils,even a junior pupil over the head of the senior pupil.Dhammajotihi v. Sobitha. (10), Piyatissa Terunnanse v.Saranapala Terunnanse (11). The Plaintiff has challenged thegenuineness of the said writing and has averred that it is not theact and deed of the deceased Saranatissa Thero. The burden ofestablishing that the writing D2 was the act and deed of thedeceased lay on the defendant. The trial Judge has. on theanalysis of the evidence and the probabilities of the case, heldthat the writing D2 is not the act and deed of Saranatissa Theroand that it conveyed no right to the incumbency of the temple tothe defendant. The Court of Appeal has disagreed with thefinding of the trial Judge and has held that the writing D2 is avalid and authentic document and that it constitutes anomination of the defendant to succeed the writer to theincumbency of the temple and its temporalities. Counsel for theplaintiff-appellant has relevantly urged that the Court of Appealwas not justified in reversing the trial Judge’s finding of primaryfact. The question whether D2 is the act and deed of thedeceased is essentially a question of fact and a Court sitting-in-appeal over the judgment of a trial Judge should to be slow tointerfere with the findings of fact reached by a trial Judge, unlessit is satisfied that such finding is against the weight of evidenceor that no person acting juducially and properly instructed as tothe relevant law could have come to such conclusion.
Apart from the signature appearing in D2 which, according tothe evidence and report of the handwriting expert was that ofRev. Saranatissa, the body of the document is not in hishandwriting ; it is typed. The Court of Appeal has observed that"there is complete absence of any suspicious features on theface of the document itself. I regret that I cannot share thisperception of the document. I note an unexplained spacebetween the body of the document and the signature. Thecircumstances in which the document D2 was alleged to havebeen executed and the probabilities of the case further cautionagainst accepting it at its face value.
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Pannaloka Thero v. Saranankara Thero (Sharsananda. J.)
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According to the defendant, the deceased priest had. on hisreturn from the funeral of his brother from Ratnapura on1 2.9.1 959, that very night came to his room at about 1 2.30 a.m.and indicated to him that he was going to devise theViharadhipathiship of the temple to the defendant and on thefollowing night at about 12.30 a.m. had bought the typeddocument D2 and read it to him and Rev. Walana Ananda andhanded over the document to Rev. Walana Ananda for safekeeping, a little after midnight on that day. Defendant at onestage said he identified Rev. Saranatissa's signature on D2,but later, in cross-examination tried to make out that the priestsigned the document in his presence. The trial Judge has quitejustifiably pointed out that there are several circumstancesrelating to the execution of the document. D2, which aresuspicious and which militate against its acceptance. I agree withthe observation of the trial Judge that "it seems most unlikely thatthe Nayake priest could have come to the defendant's room atabout 12.30 a.m on the very night that he returned fromRatnapura in order to tell the defendant that he had decided tochange his mind in regard to the deed of gift of the Kotahenatemple to the plaintiff . . . Moreover one would ordinarily haveexpected the Nayake priest to have summoned the junior priestto his room if he wished to speak to him. The defendant'sevidence that he came again the following night at about thesame time and read D2 to him and Rev. Walana Ananda. whohad been got down by the defendant on the instructions of theNayake priest sound too artificial to be believed—D2 is a typeddocument, there is no typewriter in the temple, it would havebeen typed elsewhere. It must necessarily have been done on the13th. since the document was handed over to Rev. Ananda forsafe keeping a little after midnight on that day, but the documentstrangely bears the date of 14th September." I agree with theDistrict Judge that the circumstances surrounding the executionof the document D2 as deposed to by the defendant are highlysuspicious and questionable. It is a telling circumstance thatthough the defendant was well aware of the execution andexistence of the document D2, by which the incumbency wasdevised to him, he had not. in the earlier case No. 9357/L based
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his claim to the incumbency on the writing D2 dated 14.9.59.nor was the said writing referred to in the defendant's pleadingsin that case. This document surfaced only in the defendant's listof documents dated 5th July 1961. As the trial Judge has quiterightly observed "there is no reason why the defendant shouldhave concealed the existence of D2. if it was a genuine anduntainted document until after the trial in the earlier casecommenced." Further the defendant had not produced thisdocument before the Sanga Saba which he said was convenedimmediatly after the funeral at Ratnapura in order to decide thesuccession to the Viharadhipathiship of the two temples atPelmadulla and Kotahena. The defendant did not produce D2even when the plaintiff came to Kotahena temple to assert hisrights to the Viharadhipathiship. shortly after the funeral of Rev.Saranatissa Maha Thero. He has also not mentioned theexistence of the writing in his complaint to the Police dated18.9.60.—The trial Judge's observation "all thesecircumstances confirm the suspicious and questionablecharacter of the writing D2 "is. in the perspective of the case, aptand well-founded.
A writing such as D2 by which an incumbent of a Buddhisttemple nominates a person to succeed him on his death is in thenature of a testamentary disposition. Where such writing is reliedon to support nomination to incumbency the burden lies on theparty who relies on such document to establish to thesatisfaction of Court that the document is the act and deed of thedeceased and if circumstances exist which arouse the suspicionsof the Court, as to the genuineness of the document or as to thecircumstances in which the document is alleged to have beenexecuted, the Court should be vigilant and jealous in examinigthe evidence in support of the writing which it should not acceptand act upon unless the suspicion is removed and it is judiciallysatisfied, as in the case of a Last Will, that the writing representsthe true disposition of the deceased.
In my view the very legitimate suspicions respecting theexecution of the document D2. and its belated disclosure bydefendant, taken together, conduce to a high degree of
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Pannaloka Thero v. Saranankara Thero (Sharvananda. JJ
539
improbability that the writing is authentic. The acceptance of theauthenticity of the writing depends on defendant's evidence. It isto be noted that the defendant's evidence on a number ofmatters had rightly been rejected by the District Judge. In thecircumstances one cannot, with confidence act on defendant'sevidence and accept the document as the act and deed of thedeceased priest which it purports to be.
The Court of Appeal was not justified in reversing the findingrespecting the validity and genuineness of the document D2 bythe trial Judge.
I therefore set aside the judgment of the Court of Appealdismissing the plaintiff's action and allowing the defendant'sclaim in reconvention. I also set aside the judgment of theDistrict Judge dismissing the plaintiff's action with costs. I allowthe appeal of the plaintiff-appellant with costs and enterjudgment for the plaintiff-appellant declaring him the lawfulViharadhipathi of the Wijewardana Aramaya. Skinner's RoadNorth. Kotahena. entitled as controlling Viharadhipathi of thesaid temple and its temporalities, to control, administer andmanage the same; dismiss the defendant's claim inreconvention. The Plaintiff as Viharadhipathi is entitled to be inpossession of the temple and the temporalities. The defendant-respondent had wrongfully denied the plaintiff's rights of theViharadhipathiship of the temple and its temporalities and hasbeen wrongfully in possession of the temple and its temporalitiesand collecting the rents therefrom. The plaintiff in his evidencehas assessed the damage that he has suffered by defendant'swrongful possesion at Rs. 450/- a month. The defendant has notsuggested that this amount is excessive. I direct the defendant topay the plaintiff-appellant a sum of Rs. 400/- per month, fromthe date of the plaint i.e. 23rd August 1 963 until the plaintiff isrestored to and quieted in possession of the said temple and itstemporalities. Since the defendant is admittedly a pupil ofSaranatissa Thero and as such entitled to reside at the Vihare. Ido not order the ejectment of the Defendant and I direct thedefendant to put the Plaintiff in quiet possession of the temple
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and its temporalities. The defendant respondent will pay theplaintiff-appellant the latter's costs in this Court, in the Court ofAppeal and in the District Court.
RATWATTE, J. — I agree.
COLIN-THOME, J. — I agree.
Appeal allowed.
Defendant's claim in reconvention dismissed.