092-NLR-NLR-V-39-PUNCHI-APPUHAMY-et-al.-v.-APPUHAMY-et-al.pdf
AKBAR J.—Punchi Appuhamy v. Appuhamy.
329
1936Present: Akbar J.
PUNCHI APPUHAMY et al. v. APPUHAMY et al.
205—C. R. Kegalla, 1,590.
Dewale—Appointment of trustee—Power of Pujblic Trustee to appoint one for adewale attached to a vi hare—Buddhist Temporalities Ordinance,No. 19 of 1931, ss. «, 10, 11 (2).
The Public Trustee has power under the Buddhist TemporalitiesOrdinance, No. 19 of 1931, to appoint a trustee for a dewale attached toa vihare.1
^ PPEAL from a judgment of the Commissioner of Requests, Kegalla.
L. A. Rajapakse (with him T. S. Fernando), for plaintiff, appellants.
H. E. Garvin, for defendant, respondents.
Cur. adv. vult.
January 30, 1936. Akbar J.—
The learned Commissioner dismissed the plaintiff’s action with costs,on an objection taken by the defendant’s Counsel, on issue No. 4, namely,whether the substituted plaintiff’s appointment as trustee was validin law. This letter of appointment was produced, namely, PI. It statesthat by virtue of powers vested in the Public Trustee by section 11 (2) ofOrdinance No. 19 of 1931, he (the Public Trustee) appoints the substitutedplaintiff as trustee of Mediliya Kataragama Dewale and Vihare in theDistrict of Kegalla.
In my opinion, the dismissal of the plaintiff’s action on the groundthat this appointment was bad, seems to be wrong for the followingreasons : Under section 2 of the Ordinance, a “ temple” includes a
vihare, dagoba, dewale, kovila, &cand a “ Viharadhipati ”
means “ the principal Bhikshu of a temple other than a dewale or kovilawhether resident or not ”. “ Trustee ” means “ a trustee of a templeappointed under the provisions of this Ordinance ….” so that
it will be seen that the word “ temple ” is wide enough to include a dewalestanding by itself, or a vihare, or a dewale attached to a vihare.
By section 7 of the Ordinance, provision is made for the appoint-ment of a trustee for the Dalada Maligawa. Section 8 relates to theappointment of a trustee for a dewale, where it is customary to appoint aBasnayake Nilame as a trustee ; in the case of every other dewale the trustee
is to be appointed by the Public Trustee.
Then section 9 provides-for the appointment of a trustee for the Ata-masthana. Section 10 refers to a trustee of a temple where no specialprovision is made in the Ordinance ; he is to be nominated by the Vihara-dhipati of such temple, who shall report such nomination to the PublicTrustee. Under section 11 it is provided that it will be lawful for theViharadhipati to nominate himself as such trustee. By sub-section (2)the Public Trustee is bound to issue a letter of appointment to the personso nominated.
I
330ABBAHAMS C.J.—Police Sergeant v. Chiang Fong Ching.
So that it will be seen that there is ample provision for the appointmentpf a trustee by the Public Trustee under section 8 for a dewale whichstands by itself. If it happens to be a dewale attached to a temple, as itappears to be in this case, the procedure indicated in sections 10 and 11would apply. In either event, in the case of a dewale it is the letter ofappointment by the Public Trustee which is legally binding.
Document PI mentions that the Public Trustee has appointed the•substituted plaintiff as the trustee, not only of the vihare, but also of thedewale. In my opinion section 11 (2) is recited by the Public Trustee fora good reason, namely, probably because the dewala was attached to thevihare..' I
In any event, even if a dewale was not attached to the temple, the letter.of appointment appointing the substituted plaintiff could be made undersection 8 and I fail to see why the appointment can be said t.o be illegalor invalid.
As it is a mistake partly of the trial Judge, I think I should makecosts in this appeal costs in the cause.
The appeal is allowed, the decree being set aside and the case is sentback for trial on the other issues. Costs of this appeal to be costs in thecause.
Appeal allowed.