087-NLR-NLR-V-60-R.-DHARMAWANSA-THERO-Appellant-and-R.-M.-UKKU-BANDA-et-al.-Respondents.pdf
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H. N. G. FERNANDO, J.—Dharmawansa Thero v. Vkku Band«
1959 Present: H. N. G. Fernando, J., and T. S. Fernando, J.R. DHARMAWANSA THERO, Appellant, and R. M. UKKU BANDAet al., RespondentsS. C. 97■—D. C. Ohavakachclu-ri, 9GJ
Buddhist ecclesiastical law—Dedication of land to Sangha—(’an donor subsequentlycontradict his right to dedicate the land —Is notarial transfer necessary ?—Prevention of Frauds Ordinance.
A donor who dedicated immovable property to tlio Buddhist X.mgha cannot-subsequently derogate from his own grunt by attempting to contradict therepresentation in the dedication that the property belonged to him. In sucha case the maxim allegans conlraria non est antliendnx is applicable.
Immovable property, when it is duly dedicated to the Xangha. becomesSanghika, although no notarial document is executed in accordance with thePrevention of Frauds Ordinance.
A
XA-PPEAL from a judgment of the District Court, Clmvnkuchcheri.
N.E. Wcem-sooria, Q.C.. with II. IF. Jaycwardcne.P. Rana-
singhe and M. L. de Silva, for the defendant-appellant.
■'Sir Lalita Rajapakse, Q.C., with T. B. Di**ana>jak<> and D. C. W,
Wickremasekera, for the plaintiffs-respondents.
Cur. adv. vult.
March 24, 1959. H. N. G. Ferxaxdo, J.—
The three plaintiffs instituted this action for a declaration that they areentitled to the possession of the land in dispute and for the ejectment ofthe defendant therefrom. It is clear that the land is the property of theCrown, and that in the year 1947 one Peduruappuhamy was the tenantof the land under a permit from the Crown.
It would appear that a Society called the Sri Sugatha SamodhayaSociety was formed in 1938 with the object of establishing a Buddhisttemple at Kilinochchi, and funds were gradually collected for that object.
H. N. G. FERNANDO, J.—Dharmawama Ttiero v. Vkku Banda
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In or before the year 1947, the Society commenced to put up temporarystructures on the lapd held by Peduruappuhamy under his Crown permit,the expectation being that the Society would obtain the consent of the-appropriate authority to a transfer of the rights under the permit. TheGovernment Agent was informed of these wishes of the Society by letterdated 22nd November 1947.
The trial Judge has held on the evidence that the land was dedicatedto the Sangha by the members of the Society “ under the presidency ofRandompc Somasiri' Tissa ”, and the documents make it clear that theceremony of dedication took place on 23rd November 1947. It is quitebeyond doubt that the Society intended Somasiri Tissa to be the Viharadi-pathi, and that the defendant monk was subsequently placed in chargeof the temple by Somasiri Tissa. Despite these circumstances the learnedJudge was constrained to hold that the property did not becomeSanghika, for in his view the donors “ did not have the neeessaryalienable interest in the land
The matter of the transfer of rights in the land from Peduruappuhamyappears to have involved the usual delays, and it was not until 1951 that alease was granted by the Crown to the three plaintiffs, “ as trustees of theSociety ”. In consequence of certain disputes between the defendant onthe one hand, and the plaintiffs or the Society on the other, the plaintiffsinstituted this action in 1955 relying on the right to possession conferredon them by the Crown lease, and averring that they do so “ as Trustees ”of the Society.
The writing dated 23rd November 1947, described as a “ deed of dedi-cation ” is signed by Peduruappuhamy and all the officers of the Society,It refers to the land in question as being land “ belonging to Peduruappu-hamy, …. having been purchased through the Society . . . ,for the purpose of erecting a Buddhist monastery ”. There is no repre-sentation here that the land is the property of the Crown, but on thecontrary a representation that it is held by Perduruappuhamy on behalfof the Society. A report subsequently presented to and adopted by ameeting of the Society confirms that the land was duly dedicatee! to theMaha Sangha of the Amarapura Sect. In effect therefore, the plaintiffs,who claim in this action to represent the Society, are now attempting tocontradict the representation made in 1947 that the land was held jn the-name of Peduruappuhamy for and on behalf of the Society. In myopinion, the simple answer to this claim is stated in the maxim allegans-contraria non est audiendus.
The matter is put in a slightly different form in the English Law,namely that “ a man shall not derogate from his own grant ”. TheSociety having in 1947 made a grant on the basis that it was owner,cannot now derogate from that grant by setting up the title of the Crownand its own leasehold interest under the Crown. In these circumstances,it is scarcely necessary for the defendant to rely on the decision in -Tissera v.WiUiam1 to the effect that a donee who is in possession of property 1
1 (1944) 45 N. L. B. $58.
362
Karunadasa v. Abdul Hctmeed
gifted to him may avail himself of the exceptio doli when he is sued by the■donor or a person claiming under the donor. 0
Another argument .raised at the appeal by counsel for the plaintiff hasto be dealt with briefly, namely that, although the ceremony of dedicationlias a religious significance, a dedication is in law ineffective unless it isaccompanied by a notarial document executed in accordance withthe Prevention of Frauds Ordinance. Counsel cited no precedentin support of this contention, and indeed there are numerous decisionsof this Court which negative it. In Saranankara Unnanse et al. v.Indajoti Unnanse et al.1 Bertram C. J. accepted the view that property■becomes Sanghika by virtue of the formal ceremony of dedication. InWiclcremesinghe et al. v. Unnanse et al.2 there was no evidence of anynotarial transfer, but the Court nevertheless considered whether theproperty had become Sanghika through dedication and decided that nodedication had taken place. In the very recent case of DhummavisuddhiThero et al. v. Dhammadassi Thero 3 the present Chief Justice -held thatproperty was Sanghika although no notarial document was producedin proof of a transfer to the Sangha or to a particular priest on behalf ofthe Sangha.
For the reasons set out above, the judgment of the District Courtdeclaring the plaintiffs entitled to possession of the land in dispute anddirecting the ejectment of the defendant must be set aside and ordermade that the plaintiffs’ action be dismissed with costs.
The defendant-appellant will be entitled to the costs of this appeal.
T. S. Fernando, J.—I agree.
Appeal allowed.