092-NLR-NLR-V-51-PUNNANANDA-Appellant-and-WELIWITIYE-SORATHA-Respondent.pdf
372
WINDHAM J.—Punnananda v. Weliwitiye Soraiha
1950Present: Windham J. and Gunasekam J.
PUNNAKAXDA, Appellant, and WEMWmv'J-;SORATHA, Respondent
S. C. 396—D. C. OaUe, 736
Buddhist ecclesiastical law—Abandonment by priest of his rights to an incumbency—Question of fact-^Such atarwioHttwni deprives pupils of tkeir pupillary rights ofsuccession—Pupillage by adoption not recognized in Ceylon—Right of :?etimbf.nito appoint o particular pupil as his successor.
Tho abandonment by n priest of his rights to tho incumbency of n Buddhisttemple dtMw not inquire any notarial deed or other prescribed formality, huti» a question of fact, and the intention to abandon may be inferred from thecircumstances. Tho abandonment of an incmm-oncy by a priest operates todeprive his pupils of their rights of pupillary succession.
Under the ecclesiastical law observed by Ibtddhiats in Ceylon there ore onlytwo forms of pupillage which will confer rights :>f pupillary succession, narnoly,pupillage by robing and pupillage* by ordin^i-ion. Tcoro is :i~. form o* pupillagerecognized ju pupillage by adoption.
In accordance with the sUiyarc< srsiya pjrnmparaiua rule of ikucont theincumbent of a templo is entitled to appoint iy deed r. particular pupil as hissuccessor in preference to the senior pupil.
./^PPEAL from a judgment of the District Court, Gallo.
A. Hayley, K.C.. with H. W. Jayewardcnc and .7. If. Subasinghe,for defendant appellant.
V. Perera, K.C., with N. R. Wwrasooria, K.C., and W. D.Gunasekera, for plaintiff respondent.
Cur. adv. wit.
March 22, 1950. Windham J.—
The plaintiff-respondent brought an action for a declaration that hewas entitled to tho incumbency of a Buddhist temple, namely the SriNagaramaya temple situated in tho village of Xalagasdeniya in the GalleDistrict, and for tho ejection of the defendant-appellant from the temple.
It is common ground that the original incumbent was one ArugamuwaRewata, and that he died in 1894 leaving fouT pupils, Hikkaduwo SriSumangala, Habarakade Sonuttara, Mabotuwana Siddhartha, and Maju-wano Ananda. Sumangala, the senior pupil, had two pupils dinaratna(his senior pupil, who is still alive) and Gnaniawara. Jinaratna has a pupilWachiswara. While the plaintiff claimed to be a pupil of Gnaniswara,his claim to the incumbency was based not on that pupilshlp, but on thecontention, upon which the learned trial judge found in his favour, thatSumangala surrendered and abandoned his rights to the incumbency,thereby depriving his own pupils of such rights as they could otherwise
WINDHAM J.—Punnananda v. WdivAtiye Soratha
876
have claimed through him. coupled with the contention that he the plain-tiff was (a) the sole pupil of one Pcmaratnn, who was the sole pupil ofSonuttara, and (b) a pupil of one Pemananda who was the senior pupilof Ananda.
The learned trial judge found in the plaintiff’s favour on the groundthat Sumangala had forfeited all claims for himself and his pupils, andthat the plaintiff’ was the “ adopted ” pupil of Pemananda, who hail infact been tho incumbent until his death in 1942.
Now 1 will consider presently the finding that Sumangala hadabandoned for himself and his pupils all rights to the incumbency.But the dt facto position, which the learned judge found upon sufficientevidence, was that Sumangala never functioned as incumbent, but thataccording to the wishes of Rewata the original incumbent, Sonuttarabecame incumbent of another temple, while Siddhartha and Anandabecame joint incumbents of the Sri Nagararaaya temple until Siddhartha’sdeath in 190(1, when Ananda continued to function as sole incumbentuntil he died in 1922 leaving as sole pupil Pemananda.
The defendant-appellant was admittedly not a member of Rewata’sparatnparawa, but he had for many years been officiating in the temple,having gone there upon the invitation of the dayakavas at a time whenthere was ill fact nobody residing in the temple. Upon the conclusionof the evidence, however, his counsel was forced, in the face of strongevidence against him, to abandon his original position that Pemanandahad never been the incumbent after Ananda.’s death in 1922, and to admitthat Pemananda had been the incumbent from that time until his deathin 1942, and that the defendant hud been functioning at the templewith Pemananda's permission.
That being so, and subject to the question whether Sumangala canbe held to have abandoned his rights for himself and his pupils, theplaintiff’s claim to be declared the lawful incumbent of the temple mustsucceed if it can be shown that the plaintiff was the senior or the preferredpupil of Pemananda: Gunananda Unnanse v. Deuardkkita Unnanse1.Now admittedly he was not the senior pupil, for one Wachiswara (alreadymentioned as being also a pupil of Sumangala’s senior pupil Jinaratna)was Pemananda’e senior pupil. The plaintiff, however, produced adeed P 17 of 17th February, 1942, whereby Pemananda appointedthe plaintiff as his successor in preference to Waohiswara. Thishe was clearly entitled to do in accordance with the sisiyanu sisiyaparamparawa rule of descent, (and see Dhammajoti v. Sobita 2, Terunanse v.Terunanse3) provided that- the plaintiff himself was a pupil of Pema-nanda and had become his pupil either by robing or by ordination.For after the exhaustive statement of the position as expounded inSaranankara Unnanse v. Indajoti Unnanse '", followed in Somaratna v.Jinaratna 5, it must now' be taken as settled law upon which this courtwill act, that under the ecclesiastical law observed by Buddhists in Ceylonthere are only two forms of pupillage which will confer rights ofpupillary succession, namely pupillage by robing and pupillage byordination.
*{1924) 26 N.L. R. 257.
(1913) 16 N. L. It. 408.
» no
(1929) 31 N L. R. 161.
(1918) 20 X. L. R. 385.
(1811) 42 N. L. R. 361.
374
WINDHAM J.—Purmananda v. Weliwitiye Soratho
Now in the present case it was sot claimed by the plaintiff that Pema-nanda was his robing tutor. But it was his contention that Pemanandawas one of his three ordaining tutors, the other two being Pemaratne(who was also his robing tutor) and Onaniswara. The learned DistrictJudge, however, found on the evidence that the plaintiff had failedto prove that Pemananda was one of his ordaining tutors. But he foundthat the plaintiff was “ adopted ” by Pemananda as his pupil after hisordination by those other two priests, and that this subsequent adoptionconstituted a reoognized form of pupillage upon which the deed P 17could operate so as to entitle him to the incumbency upon Pomananda’sdeath in 1942. In holding that there was any such recognized formof pupillage as pupillage by adoption, conferring rights of succession,the learned judge had no legal authority to support him, and in viewof the position set out in the authorities to whioh I have referred I considerthat he was wrong. But it has been strenuously contended for theplaintiff that, while the learned judge may have been wrong in his con-clusion that the plaintiff was Pemananda’s pupil by adoption, and asto the legal effect if he was, his ultimate conclusion that the plaintiffwas entitled to the incumbency was correct, because his finding thatthe plaintiff was not a pupil of Pemananda by ordination was anunreasonable one on all the evidence and ought to be reversed.
Upon careful consideration I have reached the conclusion that thisfinding was against the weight of evidence, and that in particular it wasrooted in a failure by the learned judge to appreciate the evidentiaryvalue of an original ola entry which was made in the lekammitiya keptat Malwatte where the ordination took place in 1917. This ola wasproduced not by the plaintiff but by the defendant, as D 11, and inmy view its effect was convincingly to corroborate the oral evidenoeof the plaintiff and other witnesses that Pemananda, as well as Pemaratneand Onaniswara, had been one of his ordaining tutors.
The evidence of the plaintiff on tins point, briefly, was that all threepriests had ordained him in 1917. With regard to the entry of Pema-nanda's name on the ola leaf as one of his ordaining tutors, his evidencewas that at the ordination Pemananda’s name was so entered, alongwith those of his other two ordaining tutors Pemaratne and Gnaniswara,but that thereafter Pemaratne and Pemananda had a quarrel as a result ofwhich Pemaratne caused the name of Pemananda to be deleted fromthe entry, and that upon Pemaratne’s death in 1931 Pemananda hadhis own name inserted again.
Now the learned trial judge held that this story of the plaintiff wasnot borne out by an examination of the ola leaf iteelf, wherein, he observed,the name and description of Pemananda,—“ Hikkaduwe PemanandaIstavira the incumbent of Nalagasdeniya Sri Nagaramaya at Hikkaduwa ”appear as an interpolation, while there was nothing (he thought) to showthat what was earlier deleted from the ola was the name of Pemananda,but merely an indication that some unidentifiable word or name hadbeen scraped out with a penknife. But a careful scrutiny of the originalola leaf shows that, while the learned judge was quite right in holdingthat the above-quoted long description of Pemananda was an inter-polation, in the sense of something inserted later, he entirely failed
WINDHAM 3.—Punnananda v. Wclitetiipe Soratha
875
y observe that, next to the unidentifiable word which had been scrapedut to make room for the first word of the interpolation, there appearsleariy visible the name “ Femananda ” in the original part of the olaAtry between the descriptions of the other two ordaining priests Pema-•atne and Gnaniswara, and that this name, which could not have beeninterpolated, has been crossed out by criss-cross lines. This cuts theground from under the learned judge’s finding that it is “ most unlikely ”that the Chapter would have permitted the deletion of Pemananda’sname. For the name was in fact patently deleted. And if furtherreal evidence were needed in corroboration of there having been threeand not two ordaining priests, there appear in the ola entry, after thedescription of the priest Gnaniswara, the words—' ‘ the three (“fcunnama”)priests bring the tutors ofWehwitiye Samanera priest ” (i.e., the plaintiff)*
The learned judge, in rejecting the plaintiff’s evidence on this point,was clearly misled by his erroneous reading of the ola leaf P 11. Nordid the plaintiff lack other corroboration. One Dheerananda, Secretaryof the Malwatte Chapter, who had been present at the ordination, testifiedthat Pemananda bad been one of the ordaining priests. So also didanother witness, Abraham Goonewardene. The learned judge rejectedthe evidence of the latter for no stated reason, and that of the formeron the ground that he was unable to rely on the witness’s memory andthat he was “ prejudiced against the defendant ”. But it is again clearthat his rejection of their evidence on the point sprang from his inabilityto reconcile it with what he mistakenly took to be the effect of the olaentry Pll. Lastly, no witness testified that Pemananda was not oneof the plaintiff’s ordaining tutors.
For these reasons I hold that the learned judge’s finding that theplaintiff had failed to prove that he was a pupil of Pemananda by ordi-nation was unreasonable and against the weight of evidence, and mustbe reversed. I bold that the plaintiff has established that he wasPemananda's ordained pupil.
This fact, coupled with the deed P 17 whereby Pemananda, shortlybefore bis death, appointed the plaintiff as his successor in preferenceto his senior pupil Wachiswara, is sufficient to establish the plaintiff’sclaim to the incumbency, unless it can be shown that the learned trialjudge was wrong in holding that Sumangala, the senior pupil of theoriginal incumbent Rewata, had abandoned his claims to the incumbencyand that this abandonment operated to deprive bis pupils of any similarclaims.
Now it is undisputed that Sumangala in fact never exercised the rightsof an incumbent over the Sri Nag&ramaya temple. That alone wouldnot necessarily constitute an abandonment of such rights. But Suman-g&la, from the death of his tutor Rewata in 1894 until his own deathmany years later, officiated as incumbent neither personaUy nor througha deputy, for as I have observed earlier, his co-pupils Siddhartha andAnanda functioned as joint inoumbents upon Rewata’s death until 1906,when Siddhartha died and Ananda functioned as sole incumbent untilhis death in 1922. Furthermore, in a letter P9, written to one Goonewar-dene as early as July, 1893, the year before Rewate’e death, Sumangala
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WINDHAM J.—Punnananda ». Weliuntiye So rat ha
wrote. with regard to what the defendant’s advocate admitted to bethe Sri Nagaramaya temple among others—“ 1 do not want those templesnow, nor did I want them in the past either. Further. I do not wantthem at all at present This expression of his desire not to be burdenedwith the temple, coupled with his failure at any time to exercise anyrights or functions of an inc umbent in respect of it. either personallyor through any deputy, may in my view rightly ho taken as havingconstituted an abandonment of those rights. Abandonment of suchrights clues not require any notarial deed or other prescribed formality,but ie a question of fact, and the intention to abandon may be inferredfrom the circumstances, as’it was in my view rightly inferiod by thelearned District .Judge in the present case.
With regard to the question whother such an abandonment by Surnan-gala operated to deprive his pupils of such rights to the incumbencyas they might otherwise have claimed, I think the learned District Judgewas right in holding that it did so operate. The question appears notto be covered by authority. It has been held in Dammaratna Unnanse o.Sumangala Unnanne 1that when a tutor disrobes himself for
immorality, this docs not deprive his pupils of their rightsof pupillary succession. But I think the ease is different where thetutor abandons his rights to an incumbency. Disrobing, with theintention of giving up the priesthood, is the equivalent, ecclesiastically,of personal demise, and it does not entail, any more than death entails,an abandonment of rights, but merely a personal incapacity to exercisethem. These rights can accordingly descend to a pupillary successor.The abandonment of an incumbency by a priest, on the other hand,constitutes the forfeiture of that to which his pupils rights of successionare attached, namely the incumbency itself. The priest remains a priest,but abandons his rights to the incumbency, upon which the pupillaryrights of succession arc dependent. There accordingly remain no rightsfor the pupil to inherit,
I am accordingly of the opinion that, upon the evidence led in thepresent case, the plaintiff has shown that lie, rather than Sumangala’ssenior pupil Jinaratna or anyone eise, is the person entitled to the incuin*.bency in dispute, and that his action for a declaration that he is entitledto the incumbency must succeed. No doubt, since Jinaratna is nota party to this action, this finding would not bind him, in the eventof his bringing an action against the plaintiff for a declaration that he,Jinaratna, was the lawful incumbent. But so far as concerns the presentaction the plaintiff has successfully established, nob merely that hehas a better right to the incumbency than the defendant has—for that isnot the declaration he asks for in his prayer—but that he is the lawfulcontrolling incumbent of the temple.
For these reasons the appeal is dismissed with costs.
Gukasbbaiu J.—I agree.
Appeal dismissed.
‘ {1910) 14N. L. R. 400.