PREMARATNE v. INDASARA

062-NLR-NLR-V-40-PREMARATNE-v.-INDASARA.pdf


Premaratne v. Indasara.
235
1938
Present: Maartensz and Koch JJ.
PREMARATNE v. INDASARA.
338—D. C. Tangalla, 3,768.
Buddhist ecclesiastical law—Right to incumbency—Deprivation of incumbencyby misconduct—Expulsion by tribunal—Prescription.
A Bhikku does not cease to be a member of the Order by reason ofimmoral conduct until he is expelled for the offence by a tribunal havingjurisdiction in that behalf.
A claim to an incumbency of a temple is prescribed' in three years.
236
MAARTENSZ Jj—Premaratne v. Indasara.
PPEAL from a judgment of the-District Judge of Tangalla.
H. V. Perera, K.C., (with him N. E. Weerasooria and A. W. H. Abey-sundera), for defendant, appellant.
A. Hayley, K.C. (with him L. A. Rajapakse and C. J. Ranatunga),for plaintiff, respondent.
Cur. adv. vult.
June 3, 1938: Maabtensz J.—
The defendant in this action who was officiating as the incumbent ofthe Tissamaharama Temple, situated in Tissa, appeals from a judgmentof the District Judge of Tangalla declaring the plaintiff entitled to theincumbency of the temple and to eject him, the defendant, therefrom.
The Tissamaharama Vihare, according .to the evidence, was built byKing Kavantissa. At some period of time the temple was abandonedand was discovered about the year 1853 by a Samanera. named Sumana.What he found was a dilapidated dagoba. Sumana commenced the work. of restoration which was carried on after his death by Galpita Medankara.In 1882 by a letter dated July 4 (D 1) the then Governor confirmed thepermission granted to Walpita Medankara Terunnanse and his brethrenpriests of the Siam ordination of Buddhists to occupy the Great Dagobaof Tissamaharama now under restoration with ten .acres of land surround-ing it free of rent or service. A similar grant of another Dagoba isreferred to in the case of Malalankara Thero et al. v. Simaitanda Thero Walpita Medankara gave evidence in case No. 700 (D 2 is a copy of hisevidence) and described himself as the incumbent of,the TissamaharamaDagoba by virtue of a grant from Sir James Longden.
In 1897 a society called the Tissamaharama Kariya Sadhaka Sabhawas inaugurated to assist in the restoration of the temple. It appears tohave consisted of a president, Medankara, and two members, Messrs.Jayawickreme and Amarasinghe.
The latter were succeeded by Messrs. Jayawickreme and Amarasinghe,the witnesses. It was suggested in appeal that there were other members.In D 2, Medankara stated that three members form the society, and I canfind no evidence that there were other members.
Medankara Terunanse died in 1916 and was succeeded in the incum-bency by his pupil Hikkaduwa Dhammananda Thero who, the plaintiffalleges, was also the pupil of Upatissa, the senior pupil of MedankaraUnnanse. Upatissa predeceased Medankara.
The plaintiff claimed the incumbency as a pupil of Upatissa andDhammananda the latter having disrobed himself in May, 1931.
. The defendant put the plaintiff to the proof that Dhammananda wasa pupil of Upatissa Thero, that Dhammananda disrobed himself in May,1931, and denied that plaintiff was a pupil of Dhammananda Thero andsucceeded him as incumbent of the temple. He pleaded that Dhamma-nanda in January or February, 1931, informed the Kariya Sabha of hisinability to perform the functions of incumbent of the Maha Vihare (this1 D. C. Tangalla, No. 700— (1908) 31 N. L. B. 259.
MAARTENSZ J.—Premaratne v. Indasara.
237
letter dated February 16, 1931, is marked D 16) and the Sabha inFebruary, 1931, • appointed him, the defendant, Adikari Bikshu of theMaha Vihare.
I need not decide whether by letter D 16 Dhammananda desired toresign from the presidentship of the society or from the incumbency orwhether he asked the Sabha to appoint another incumbent or anotherpresident for it was conceded in appeal that the society had no authorityto appoint an incumbent. It was also conceded that the rule of successionto the temple is that known as Sisyanu Sisya Paramparawa. It was soheld in the case of Malalankara Thero et al. v. Simananda Thero (ubi sup.).The grant considered in that case was, as I have already said, similar tothe grant D 1.
The action was tried on 17 issues. But the only questions argued beforeus and which fall for decision are : —
whether the plaintiff is a pupil of Dhammananda;
whether Dhammananda disrobed himself, and if so, when;
whether plaintiff’s action was brought within three years from the
date the cause of action accrued to the plaintiff;
whether Dhammananda was the senior surviving pupil of Medan-
kara Terunanse.
The District Judge held that plaintiff’s evidence that he was a pupil ofDhammananda and Upatissa is corroborated by the extract P 4 from theMalwatte Vihare register, the declaration P 3 sent to the Registrar-Generaland the photograph P 12 of the plaintiff taken on the occasion of hisordination in which Dhammananda appears standing on one side of theplaintiff.
P 4 sets out that “ The ordination ceremony took place of GodapitiyaPemeratana Samanera living as a pupil of the four tutors WalpitaMedankara, Incumbent of Tissamaharama in Magampura and Murutha-mura Subaddararama in Hakmana and of his pupil Beragama UpatissaMahasthavira, and Polwatte Dhammaratana presently residing in thesaid temple, and similarly, Hikkaduwa Dhammananda
In P 3 the names of the Robing Tutors are: “ Walpita Medankara andBeragama Upatissa, Incumbents, Magampura Tissamaharama Vihara-sthana and Denagama Sri Vijerama Viharasthana and the names of thetutors presenting for ordination are: “ Walpita Medankara Maha Istha-wirayanwahanse, Incumbent of Magampura Tissamaha Vihara,Subaddararama Vihara of Murutamure and pupil Beragama UpatissaMaha Isthawirayanwahanse; Polwatte Dhammaratane and HikkaduweDhammananda were the tutors of Godapitiye Pemeratane at theordination
It was contended that this finding of fact was erroneous as theplaintiff had stated in his evidence that Dhammaratane was named as atutor because he was a well-wisher and Dhammananda because he was arelative and that Dhammananda did not instruct him, but he said lateron (at cage 120 of the record), “ From the day of ordination he (Dhamma-nanda) became my tutor
Medankara and Upatissa were dead at the' time the plaintiff wasordained. Dhammananda and Dhammaratane must have been namedas tutors because they presented the plaintiff for ordination as stated in
238'MAARTENSZ J.—Premaratne v. Indasara.
P 3, and whatever may have been the reasons for their presenting him forordination, they became his tutors. It was held in the case ofSaranankara Unnanse et al. v. Indajoti Unnanse et al'. that it is notessential that the pupil should have received instruction from the tutbrwhom he claims to succeed, also that it is not necessary that the priestwho robed the pupil should present him for ordination.
I am accordingly of opinion that the learned District Judge’s findingthat the plaintiff was a pupil of Dhammananda cannot be disturbed.
On the second question the District Judge held that Dhammanandahad disrobed himself on May 19, 1931. He also held that on that dayDhammananda ceased to be a priest because he had sexual intercoursewith a woman. On the night of May 19, 1931, Dhammananda wasfound in the house occupied by a woman named Dingirihamy and herdaughter Nonohamy. He was lying on a mat under a bed without hisrobes, which were in a trunk with some clothes worn by women.
The District Judge holds that because Dhammananda took off hisrobes to have sexual intercourse with, I presume, Nonohamy, he musthave done so with the intention of giving up his priestly office. Thismight have been a fair inference if Dhammananda had not resumed hisrobes but the evidence is that he has; and I am of opinion that in thecircumstances it does not follow that Dhammananda discarded his robeswith the intention of disrobing himself. The fact that there is evidencein proceedings between other parties that Dhammananda had sexualintercourse with a woman that night is insufficient to establish that hehad ceased to be a priest, particularly because Dhammananda has notgiven evidence. There must be evidence that he had been expelled fromthe priesthood for the offence by a tribunal having jurisdiction to makean order of expulsion.
Dingirihamy’s evidence that Dhammananda had not visited her housebefore is contradicted by her daughter who said Dhammananda came tothe house when they were living in Murutamure and Batuduwe. Dingiri-hamy’s evidence that Dhammananda threw off his robes saying that hewas disrobing himself and spent the night with her daughter cannottherefore be accepted.
Dam of opinion that the plaintiff has failed to establish that Dhamma-nanda had disrobed himself. '
As regards the plea that plaintiff’s action was barred by lapse of time-the District Judge held that the defendant had been officiating asincumbent since February, 1931, but that plaintiff’s action was notprescribed as he had no cause of action until Dhammananda disrobedhimself on May 19, 1931. "He was of opinion that plaintiff’s position wasanalogous to that of a fide commissarius whose right to the propertywhich is the subject of the fidei commissum does not arise until the rightof the fiduciarius to the property is extinguished by death or otherwise.This proposition, appellant’s Counsel argued, was even if sound notapplicable to the case of the plaintiff as Dhammananda was not thesenior pupil of Medankara.
This argument is based on plaintiff’s admissions (1) that the seniorpupil at the time of Medankara to act was Dhammaratane and that
• (1918) 20 N. L. R. 385.t
MAARTENSZ J.—Premaratne v. 1ndasara.239
Dhammaratane was still alive (page 74 of Record). This admission wasmade after he had said that he claimed the incumbency on the testamentP 7 and on P 6; (2) that if succession is direct from Medankara, Dhamma-ratane has the better right. The order of seniority of the pupils ofMedankara is Dhammaratane, then Dhammananda and lastly myself(pages 114 and 120).
The contention that Dhammananda was not entitled to succeedMedankara does not appear to have been raised in the Court below, forthere is no such plea in the pleadings or issues, but issues 15 and 16, whichread as follows:—
Is the succession to the incumbency in question governed by the
rules of Sisyanu Sisya Paramparawa ?
If so, is plaintiff the lawful successor to the said incumbency ?
•are wide enough to enable the defendant to raise the plea in appeal.According to the rules of Sisyanu sisya paramparawa succession the seniorsurviving pupil is by custom entitled to succeed him as tutor in theincumbency unless the tutor had appointed another pupil to succeed him.Bertram C.J. observed in the case of Saranankara Unnanse et al. v.Indajoti Unnanse et al. (ubi sup.) at page 397, that “ it would appear fromthe evidence recorded in the case of Dhammaratane Unnanse v. SumangalaUnnansethat the right attaching to seniority is not so unqualified assome of our decisions appear to suggest”. But in the present case theplaintiff admits that Dhammaratane as senior pupil was entitled tosucceed to the incumbency.
Dhammaratane is therefore the lawful, successor of Medankara unlessMedankara appointed another pupil. According to plaintiff’s evidencehe claims the incumbency by virtue of the deed of gift P 6 and the will P 7executed by Medankara.
P 6 is a deed of gift of certain parcels of land owned by Medankarapersonally to Upatissa and his pupillary successors who were to spend acertain part of the income on the Tissamaha Dagoba. There is no-appointment of Dhammananda as incumbent of the temple in place ofDhammaratane, and the deed, does not help the plaintiff.
Nor does the will P 7 which is a disposition of Medankara’s temporalproperty. The executors of the will and the devisees are Dhammaratane,Dhammananda and the plaintiff. One of the clauses—3 (6)—provides,that in the event of the disrobing of or of the death of any one of mysaid pupils or of their succeeding pupils the said property shall not at anytime devolve on any one of their lay heirs but the same shall devolve onthe surviving pupil or pupils and on the death of the last surviving pupilintestate the same shall devolve on his pupil or pupils subject always tothe same condition, to wit (here follows a prohibition against alienation): ”
I cannot by any process of reasoning construe this will into a dispositionof the incumbency of the temple in question.
I do not think the plaintiff was able to really formulate a legal right, forat page 118 he said, “ I don’t know by what right I am claiming ”.
It follows from the fact that Dhammananda was not the senior pupil ofMedankara that plaintiff cannot claim the incumbency as his pupillarysuccessor. Whatever rights he.may have—I confess I cannot say what
* 14 N. L. R. 400.
240
MAARTENSZ J.—Premaratne v. Indasara.
they are—did not depend on Dhammananda ceasing to be a priest. Hiscause of action is therefore barred by the lapse of three years after thedefendant became incumbent in January or February, 1931.
The passage in the defendant’s evidence (at page 185) which reads, “ inJune, 1931, Dhammananda gave up his incumbency and I took charge"should obviously read “ in January, 1931…. ”
I have incidentally dealt with the last questiori in dealing with thequestion of prescription. On plaintiff’s own evidence Dhammanandawas not the senior pupil of Medankara and had no legal right to theincumbency of Tissamaharama, neither has the plaintiff. His actiontherefore fails and must be dismissed with costs in both Courts.
Koch J.—J agree.
Appeal allowed.