WIJEYEWARDENE J.—Peter Singho v. Appuhamy.
1940Present: Moseley S.P.J. and Wijeyewardene J.
PETER SINGHO et al. v. . APPUHAMY. .
Devale—Exempted -from operation—Buddhist Temporalities—Outside scope ofOrdinance—Buddhist Temporalities ■ Ordinance, s. 4(I) and (2)
A devale, which has not been brought under the operation of section4 (1) of the Buddhist Temporalities Ordinance, falls outside the provisionsof the Ordinance. '
^^PPEAL from a judgment of the District Judge of Chilaw.
C. S. Barr-Kumarakulasingham., for appellant.
N. Nadarajah (with him G. E. Chitty), for respondent.
' t. -Cur. adv. vv.lt.
July 12, 1940. Wijeyewardene J.—
The five plaintiff-appellants instituted this action under section 102 (1)of the Trusts Ordinance against the defendant respondent in respect ofAiyanayake Devale.
Several issues were framed at the trial, three of which were as follows: —Issue No. 3—Are the plaintiffs persons interested in the said trust withinthe meaning of section 102 of the Trusts Ordinance ?
Issue No. 10—Is the Aiyanayake Devale a devale within the meaningof Ordinance No. 19 of 1931.
Issue No. 11—If so, can the plaintiff maintain the action ?
The District Judge answered issues Nos. 3 and 11 in the negative andissue No. 10 in the affirmative and dismissed the plaintiff’s action.
WIJEYEWARDENE J.—Peter Singho v. Appuhamy.
It is not possible to say that the finding of the District Judge on issueNo. 3 is incorrect and the appeal must therefore be disallowed.
The observations of the learned District Judge "on issue No. 10 withregard to the scope of the Buddhist Temporalities Ordinance, No. 19 of1931, appear to me based on a misconception of the provisions of thatOrdinance. By section 3 the provisions of the Ordinance are madeapplicable to every temple in the Island but the Governor is given thepower to exempt any temple other than the Dalada Maligawa, the Sri-padasthana and the Atamasthana from the operation of all or any of itsprovisions. As it was found that the number of temples to be exemptedwas far in excess of the number of temples to be regulated by the Ordi-nance the various proclamations published under section 3 stated that alltemples other than those mentioned in the respective schedules annexed tothe proclamations were exempted from the operation of section 4 (1) of theOrdinance. Section 4 (1) vests the management of the property belongingto a temple not exempted from the operation of that sub-section in thetrustee duly appointed under the provisions of the Ordinance. Section4 (2) vests the management of the property belonging to a templeexempted from the operation of section 4 (1) in the Viharadipati of thetemple referred to in the Ordinance as the Controlling Viharadipati.
It is admitted that the particular devale is a temple within the meaningof the Ordinance (wide section 2) and also that it is a temple exemptedfrom the operation of section 4 (1). This devale should therefore comeunder section 4 (2) if it is regulated by the Ordinance. But section 4 (2)as indicated by me earlier vests the management of the property of sucha “temple” in a “Viharadipati”. This term “Viharadipati” isdefined in the Ordinance as “ the principal Bhikkhu of a temple otherthan a devale or kovila whether resident or not It is clear from aconsideration of these sections that a devale which is not brought undersection 4 (1) does not fall under section 4 (2) as there is no Viharadipatifor a devale. It is only in a case of a devale not exempted from theoperation of section 4 (1) that the Ordinance authorizes the appointmentof a trustee who may in' certain circumstances be called a BasnayakeNilame. Section 5 of the Ordinance subjects only trustees appointedunder the Ordinance and the controlling Viharadipatis to the generalsupervision of the Public Trustee.
As the devale in this case has not been brought under the operation ofsection 4 (1) of the Ordinance it falls entirely outside the Ordinance andnone of its provisions is applicable to the devale in question.
The case of Ratwatte v. The Public Trustee' referred to in the judgmentof the learned District Judge has -no bearing on the question, as thedevale in question in that case was the Kataragam Devale, Kandy,which was brought under the operation of section 4 (1) of the BuddhistTemporalities Ordinance by a proclamation published in the CeylonGovernment Gazette No. 7,896 of December 4, 1931.
The appeal is dismissed with costs.
Moseley S.P.J.—I agree.
(197.3) 12 C. L. Rec. 208.
PETER SINGHO et al. v. APPUHAMY