022-SLLR-SLLR-1985-V2-PAVISTHINAHAMY-v.-REV.-AKURALA-SEELAWANSA-THERO.pdf
CA
Pavisthinahamy v. Seelawansa Thero
197
PAVISTHINAHAMY
v.REV. AKURALA SEELAWANSA THERO
COURT OF APPEAL.
G. P. S. DE SILVA. J. AND MOONEMALLE. J.
C. A. 426/74 (F) – D. C. GALLE 8134/L.
MAY 13. 14 AND 15, 1985.
Buddhist Ecclesiastical Law – Donation – Is Buddhist temple a juristic person ? – IsBuddhist temple an institution capable of receiving property as a fideicommissary ?-
Buddhist Temporalities Ordinance – Property belonging to a temple – Sanghikaproperty.
Appeal – Can question of mixed fact and law be raised for the first time in appeal ?
The plaintiff as Viharadhipathy of Abhinavaramaya Temple sued the defendant fordeclaration of title to three lands which had befcn donated to one Pemawathie subject tothe condition that should she die without children the lands should devolveautomatically on the Abhinavaramaya. Pemawathie died without children and theplaintiff claimed the lands on the basis of the donation.
Held –
Our law recognises only two categories of persons who are capable of receiving orowning property – natural persons and legal persons. A temple not being a juristicperson cannot receive property as a fideicommissary.
The concept of property belonging to a temple found in several sections of theBuddhist Temporalities Ordinance is confined to sanghika property which the landsin suit were not.
The question whether the deed of donation created a trust being a question ofmixed fact and law and not having been raised at all in the District Court cannot beraised for the first time in appeal.
Cases referred to :
Silva v. Fonseka (1912) 15NLR239.
Wimatasuriya v. Wickramaratne (1917)20 NLR 140.
{3} Sudhananda Tenjnnanse v. Sumanatissa et al (1934) 36 NLR 422, 423
Rathanapala Unnanse v. Kewitigala Unnanse et al (1879) 2 SCC 26, 27.
Pramatha Nath Mullick v. Pradyumna Kumar Mullick 1925 L.R.'lnd. App. 245.
J 98
Sri Lanka Law Repons
(1985) 2 Sri L.R.
Wijewardena v. Buddharakkrta Thero (1957) 59 NLR 121.
Buddharakkita Thero v. Wijewardena (1960) 62 NLR 49.
Dharmakeerthi Thero v. Kevitiyagala Jmasiri Thero (1978) 79 (2) NLR 86.
(9} Setha v. Weerakoon (1948) 49 NLR 225.
110) Maiyawe Saddhananda Thero v Ratnayake [ 1984) 2 Sri LR 375
APPEAL from the District Court of Galle.
Nimat Senanayake. P C. with Kithsiri Gunaratne. Miss. S. M. Senaratne and SahyaMathew tor defendant-appellant.
Nf R. M. Daluwatte, P C. with Bimal Rajapaksa and Miss S. Nandadasa forplaintiff-respondent
Cur. adv. vult
June 28, 1985.
G. P. S. DE SILVA, J.
The plaintiff as the Viharadhipathi of the Abinavaramaya templeinstituted this action against the defendant for a declaration of title tothe three lands described in the schedule to the plaint, for ejectment,and damages. In his plaint he averred that the Abinavaramaya templewas exempt from the provisions of section 4 (1) of the BuddhistTemporalities Ordinance (Chap. 318) ; that the original owner of thelands in suit was Somapala Jayaratne who by deed of gift No. 7361dated 24th December 1959 (P 1) donated the lands to his adopteddaughter Pemawathie. and to his brother Saumiel Jayaratne subject tothe several conditions set out therein ; that Somapala Jayaratne diedon 17th February 1960 and that Pemawathie died on 17th February1971 ; that upon the death of Pemawathie her rights passed to theAbinavaramaya temple in accordance with the terms and conditionsset out in the deed of gift, PI ; and that since the death ofPemawathie, the defendant has been in unlawful possession of thelands.
The defendant in her answer denied that the Abinavaramaya templeacquired any rights on P 1 and further pleaded that Pemawathie diedleaving as her heirs the defendant, her sister, two brothers andanother sister who became entitled to the lands in dispute . and thatthe defendant was presently in possession on behalf of herself as wellas her brothel's and sisters
CA
Pavisthinahamy v. Seelawansa Thero (G. P. S. De Silva. J.)
199
Admittedly, the claim of the plaintiff was based entirely on the deedof gift PI. It was not disputed that Somapala Jayaratne was theowner. At the trial the main defence to the plaintiff's claim was thatthere was no valid acceptance of the gift P 1. The trial Judge heldagainst the defendant on this issue, and it was his view that the mainquestion which arose for decision was whether P 1 created, a validfideicommissum. The District Judge held that P 1 created a validfideicommissum and that in accordance with its terms, upon the deathof Pemawathie without issue, title to the lands in suit passed to theAbinavaramaya temple. Accordingly, judgment was entered in favourof the plaintiff and the defendant has now preferred this appeal.
At the hearing before us, Mr. Guneratne, Counsel for thedefendant-appellant, did not canvass the finding that there was a valid•acceptance of the gift. Counsel, however, strongly urged that P 1 didnot create a valid fideicommissum and that upon the death ofPemawathie, the temple did not acquire title to the lands in suit. Theprincipal submission of Counsel was that a Buddhist temple, not beinga juristic person, does not possess the requisite capacity to receiveproperty as a fideicommissary.
,P 1 is a deed of gift. The donor was Somapala Jayaratne who gifted5 lands to Pemawathie, his adopted daughter and Saumiel Jayaratne.his brother. The present action relates to lands Nos. 1.3 and 4 in P 1.The entirety of land No. 1 was gifted to Pemawathie and a 3/4 shareof the other 4 lands was also gifted to her. Saumiel Jayaratne wasgiven 1/4 share of lands Nos. 2 to 5 in P 1. The gift was subject to thedonor's life interest and to six “special conditions". The conditionsmaterial for the purposes of the appeal read as follows : –
o>t® C[g|®ts»cJ®®e>D*«8®,;®. ea>d a(S® (pi? q>oSo«$ O;®
iSftqcsOej>0 £0ooscffliSOa g«$a.
(1. The above said two donees should not do any act to subject thesaid properties to any transfer, donation or mortgage butshould possess during their lifetime.)
(jjSjSrSo} 6® *<;*<;a»4ai Oi3®o© <d[OaiO 6>90 iigoid sn
<s>® oSma e(0«da ®isuOcS aigsmigid c®»<3
®<(3>0 O0aS ffig,OlJ L2t?3.
(2. After the death of those two, the properties should aevolve ontheir lawful children and they and their heirs should be able tosubject their respective shares of the properties to transfer etc.,among themselves.)
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Sri Ldnka Law Reports
[1985] 2 Sri L.R.
3. fffJsS on® c<§®ia«dc3t5j«i>eJ Add® ®®®s>aO Oj®«>©© <jd;Coi sfi»®tA £)£>*#»oi 0®*<06 ®a>0o D,<jcac3 oo$a*0<?®©0)d>So0 Se^Ao!® fiSOa g@3.
(3. In the event of any one of the donees not having children thesaid properties should devolve automatically on Abinavaramayain Akurala in Wellaboda Pattu.)
(4)
(5)6. e»0{ c<<3»oud etfSb&A a{&6d Soda ottocS <n«rf ®t«flao5 Os oc&otns«dais®«d <Jt£dd 0® «<oc •aiOfia! »;eaid o<><$0al §AA 0^®O<. 9&OOeqQ dadaSttO §rfA 0^®0<. BjA So gt$S. ©Q<; &®seJ <jflA odgtri «<oc 6®seJqSAttd ^®O 3^AG Ao9)@@c 30 cr,A SOq. 0® «<oc Scsc® <J,S® GfitsS A^od301;, 0® wfog St*® Ct^ftoidosO OjCgdOcS cJOd Sogq> £oOg s» ®dg €f)?oo»dqjoO $<}<*) S©d«B)d SO) oi^cb «<s SOq. 0^4 ^®tt)S)d ®® ®> 60@00 os®sd cdi®ria>d so)^Sto)d)^A «3@00^ SA ra,® Ct§®a)dasl os 5)GcJ«alCd(®As)d)^eS s0@00<; OA S)® Cipl®a)d<asS os ®§d«st cc5i®do)d)?d o®s^6#®A OiOgdOS go>s 6S»0 ®So *0®.
(6. Further, if donee Pemawathie were to die suddenly her motherAlawatta Kankanamge Alice should be able to possess 1/2share of the said share of property and the balance 1 /2 share byJayaratne. Further I declare that I have a good and lawful titleto convey this property and that the same is free from allencumbrances and if the said donees reasonably require anywritings and deeds for further assurance I the donor and for myheirs and executors shall cause to prepare such deeds andwritings.)
It is condition No. 3 in PI which is of critical importance in thisappeal. Admittedly Pemawathie died without issue, andMr. Daluwatte, Counsel for the plaintiff-respondent contends thatupon her death title passed to the Abhinavaramaya temple. Mr.Daluwatte did not submit that a temple was a juristic person. Hissubmission vJas that a temple is an institution capable of owning
CAPavisthinehamy v. Seelawansa Them (G. P. S. Oe Sitva, J.)201
property. In support of his submission, counsel relied on severalprovisions of the Buddhist Temporalities Ordinance – Sections 4,15(1). 15(2), 20. 26, 28(1), 29(1), 30, 31 (1), 32(1), and34 – in all of which the phrase “property belonging to any temple' or"property of any temple' occurs. In short Counsel’s contention wasthat under our law there is a concept known as 'property belonging toa temple' and that it is a concept sui generis and unknown to Westernjurisprudence. Mr. Daluwatte maintained that it was precisely becausethere existed property which belonged to temples that legislation wasenacted to protect, manage and control such property. Mr. Daluwattefurther cited certain decisions, in particular, Silva v. Fonseka (1) andWimalasuriya v. Wickremaratne (2) which speak of a temple acquiringproperty by prescription. As regards these two cases, 1 might state atonce that the question whether a temple as such has the capacity inlaw to receive and own property was not considered. See also theobservations of Dalton. J. in Sadhananda Terunnanse v. Sumanatissa
that the term "temple" has 'in some of the earlier authorities beensomewhat loosely used".
As far back as 1879, Phear, C.J. in Rathanapala Unnanse v.Kewitigala Unnanse et at (4) stated
'it is important to remember that the incumbent of a vihara
or pansala in this Island is not a body corporate with perpetualsuccession, as is the case with the parson (persona) of an Englishparish …. Neither does the vihara or pansala cover any legal entityresembling the deity of a Hindu family or temple, in which case thededicated property belongs by law to the deity, who is recognised inthe civil courts as a perpetual corporation ….'.
It may be stated here that the Privy Council in Pramatha Nath Mullick v.Pradyumna Kumar Mullick (5) recognised that in Hindu Law idols arelegal persons.
Wijewardena v. Buddharakkita Thero (6) cited by Mr. Guneratne is acase where the question whether a temple was capable of receivingproperty directly arose for consideration. In that case the courtconsidered clause 5 of the Last Will of the testatrix. The clause was inthese terms'I give 250 acres out of all that paddy field calledKalawewa Farm …. to the Raja Maha Vihara, Kelaniya. The selectionof the 250 acres I leave to my Executors and the management of the
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{1985} 2 SriL.R.
same for the benefit of the said Vihare I entrust to my Trusteeshereinafter named". The District Judge held that the gift made by thetestatrix was a bequest to the Raja Maha Vihare which was capable ofreceiving property. In the course of his judgment Basnayake, C. J.referred to the submission of Mr. H. V Perera that "a Buddhist Vihareor temple which is an inanimate thing, is not a juristic person andcannot therefore receive or hold property" and unequivocallyexpressed his agreement with that submission. Indeed Counsel for therespondent, Mr. E. B. Wikremanayake, adopted the view of the trialJudge and argued that the property was given to the vihare which wasa juristic person capable of taking property – a contention which didnot find acceptance with the learned Chief Justice. I am therefore ofthe opinion that this case is an authority for the proposition that aBuddhist temple, not being a juristic person, cannot under our lawreceive or hold property.
BuddharSkkita Thero appealed to the Privy Council and the judgmentis reported in 62 NLR 49 Buddharakkita Thero v. Wtjewardene (7).Before the Privy Council too, the contention was advanced on behalfof Buddharakkita Thero that a Buddhist temple is capable of owningproperty. This argument was firmly rejected by Lord Denning whoexpressed himself thus
"The Viharadhipathi sought in his case before their Lordships tosay that a vihara (Buddhist temple) is a juristic person and as suchentitled to accept and own property , and that accordingly when the
testatrix said 'I give two hundred and fifty acresto the Raja
Maha Vihare, KelaniyaL this operated as an outright gift to thetemple. Their Lordships cannot accept this view. There is a long lineof authority to show that a BtSddhist temple is not a juristic person. Itis not like the deity of a Hindu temple It is not a corporation. It hasno legal personality ….'( at page 5.1 }. . . "But a vihare is not ajuristic person A place of Buddhist worship is not a juristic person. Itcannot have property belonging to it' ( at page 52 ) ( The emphasisis mine ).
Thus it is clear that the Privy Council affirmed the view expressed byBasnayake, C. J. that a temple not being a juristic person cannotreceive or hold property. It is right to add that no case was citedbefore us where this precise question actually arose for decision, wasconsidered by the court, and a different view taken.
CAPavisthinahamy v. Seetawansa Them (G. P. S. De Silva, J.)203
As stated earlier, Mr. Daluwatte contended that a Buddhist templewas an institution sui generis, capable of holding property. Counselsubmitted that the concept of "property belonging to a templet is, as itwere, the golden thread that runs through the provisions of theBuddhist Temporalities Ordinance. The answer to this contention istwofold. In the first place, ' The Buddhist Temporalities Ordinancedeals with Sanghika property which has been dedicated to the Sanghaof a particular vihare . … The main object of the BuddhistTemporalities Ordinance is to regulate the management and control ofthe vast temporalities granted by the Sinhalese Kings to the Sangha ofthe ancient temples of the Island, as the Sangha being mendicantswho have given up all worldly interests were unable to protect andmanage themj per Basnayake, G. J. in Wijewardena v. BuddharakkithaThem (supra). Thus it is seen that the'expression "property belongingto any temple" in many of the sections of the Buddhist TemporalitiesOrdinance refers to Sangika property and "the vast endowments madeby the Sinhalese Kings to the cause of the Buddhist religion". I did hotunderstand Mr. Daluwatte to seriously contend that the lands whichform the subject of the present action constituted "sanghika property".In any event, such a view seems untenable since there is no evidencewhatever in this case of a formal act. of dedication in the mannerprescribed by the Vjnaya-vide Dharmakeerthi Them v. KevitiyagalaJinasiri Thpro (8) Secondly, as held by Basnayake, C. J. inBuddharakkita's case (supra) the Buddhist Temporalities Ordinancehas neither expressly nor impliedly given a corporate status to aBuddhist temple. To describe a Buddhist temple as an "institution", asMr. Daluwatte did, is of no avail to the plaintiff, for our law recognisesonly two categories of "persons" who are capable of receiving orowning property – natural persons and legal persons. A Buddhisttemple has not been incorporated by statute nor have our courtsrecognised it as a "person" in the eye of the law. In English law too,ownership can only vest in a "person" – vide Jurisprudence, by Diasand Hughes 1951 Edn. page 339.
As an alternative submission, Mr. Daluwatte urged that conditionNo. 3 in P 1 created a trust in favour of the Abhinavaramaya, temple.This position was not pleaded nor put in issue at the trial. The casewas not presented on that basis. A trust was not suggested even atthe stage of addresses in the District Court. It involves mixedquestions of fact and law and such a question cannot be permitted tobe raised for the first time in appeal – Setha v. Weerakqon (9). It was
204Sri Lanka Law Reports(1985] 2 SriL.R.
the contention of Mr. Daluwatte that the properties would vest in theVihardhipathi for the time being as trustee by operation of section 20of the Buddhist Temporalities Ordinance. This submission is not wellfounded for the reason that section 20 applies to Sanghika property aswas held both by the Supreme Court and the Privy Council inBuddharakkita Thero's case (supra). In Maiyave Saddhananda Thero v.Ratnayake (10) the decision fumed on the true meaning and .effect ofsection 23 of the Buddhist Temporalities Ordinance.
In the result I hold that no rights to the lands in dispute passed onP 1 to the Abhinavaramaya temple upon the death of Pemawathie. Iaccordingly allow the appeal, set aside the judgment and decree of theDistrict Court and dismiss the plaintiff's action. In all thecircumstances, I make no order as to costs both in the District Courtand in appeal.
MOONEMALLE, J. – I agree.
Appeal allowed.