RANASINGHE et al v. DHAMMANANDA et al

005-NLR-NLR-V-37-RANASINGHE-et-al-v.-DHAMMANANDA-et-al.pdf


MACDONELL C.J.—Ranasinghe v. Dhammananda.
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1935Present: Macdonell C.J. and Koch A.J.
RANASINGHE et al. v. DHAMMANANDA et al.
279—D. C. Colombo, 34,424.
Buddhist temporalities—Incumbent of vihare in possession of lands—Defacto trustee for vihare—Prescription for benefit of vihare—OrdinanceNo. 22 of 1871, s. 3, and Ordinance No. 8 of 1905, s. 20.
Where the incumbent of a vihare, to which trustees have not beenappointed, possesses lands not expressly gifted or dedicated to thevihare, he is in the position of a de facto trustee for the vihare and,as such, he can acquire title by prescription for the benefit 6f the Vihare.
A PPEAL from a judgment of the District Judge of Colombo.
H. V. Perera (with him Rajapakse), for defendants, appellants.
De Zoysa, K.C. (with him N. E. Weerasooria), for plaintiffs, respondents.
Cur. adv. vult.
March 11, 1935. Macdonell C.J.—
In this case the plaintiffs as duly appointed trustees, under OrdinanceNo. 8 of 1905, of the Pilikuttuwa Purana Vihare sued the defendantsfor a declaration of title to certain lands which the plaintiffs allegedwere the property of that vihare. The defendants claimed the landsunder a deed of March 30, 1928, executed in their favour by oneSonuttara who, they said, had been in possession of these lands by atitle adverse to and independent of the vihare for some thirty years.The plaintiffs obtained judgment in the District Court from which thedefendants bring the present appeal.
The first question is the identity of the lands in dispute. Thedefendants admit that they are in possession of the lands claimed by theplaintiff-trustees and they maintain that these lands were possessedand owned by one Attadasi who died in 1872 and had been incumbentof this vihare for an uncertain number of years before that date. Theselands can be traced in the documents of about that date which were putin at the trial, and the learned District Judge after a careful examinationof the evidence concludes that the lands now claimed by the plaintifftrustees and possessed by the defendants under their deed of 1928,
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MACDONELi. C.J.—Ranasinghe v. Dhammananda.
are identical with the lands named in the documents put in as ownedby Attadasi the incumbent who died in 1872. I did not understandthat these findings of 'the learned District Judge were challenged in theappeal and there is certainly sufficient evidence to support them. Itmay be takeh then that the lands claimed by the plaintiff trustees areidentical with those possessed by the defendants on their deed of 1928and also identical with those owned by Attadasi the incumbent who diedin 1872.
The next question is the title by which Attadasi possessed these lands,was it in his own right or on behalf of the vihare. The learned District -Judge has found that Attadasi possessed them on behalf of the templearid there is certainly evidence—documentary and oral—to supportthis finding. The events following Attadasis death in 1872 are importantin this connection. The lands in question had been conveyed to him—setting out his name followed by the “ terunnanse ”—and to his heirs.On his death on July 5, 1872, his brother Haramanis de Silva applied forletters of administration to his estate and obtained an appraisement list,P 15, of his properties, the lands in which list include or are identicalwith the lands now in dispute ; as I understand it, the defendant’s caseis that the lands in dispute are included in the lands set out in P 15.In December, 1872, a petition, P 16, in the testamentary suit thusinstituted by Haramanis de Silva, the brother of Attadasi, was filedby three priests, Seelavansa, Kondana, and Sonuttara (the latter beingthe same Sonuttara from whom the defendants obtained their deed of1928) in which they say that Attadasi was the pupil of one Sobita “ andas such was the incumbent of all temple property belonging to theestablishment called ‘ Pilikuttuwa vihare ’ and that he died possessedof no property which belonged to him personally and which can beadministered in the legal acceptation of that word. That the petitionersare the rightful incumbants of all the property belonging to the saidtemple ”. In June, 1875, the first of these petitioners, Seelawansaaffirmed to an affidavit in which he states that Induruwe Sree DharmabhiDhane—whom the learned District Judge identifies clearly correctly withthe “ Sobita ” of the petition of December, 1872—died leaving four pupils,namely, Kondana, the deceased Attadasi, the deponent Seelawansa,and Sonuttara, and he goes on to aver that he the deponent “ is one of thepupils of the said Sobita chief priest residing in the said Pilikuttuwavihare and to the best of his knowledge and belief that the propertiesso inventorized are all of them sanghika properties of the said templeeither originally dedicated to the said temple or subsequently purchasedby the said deceased priest out of the revenue of the said temple ”. Thepetition of 1872 and the affidavit of 1875 seem to have come beforeBerwick D.J. in March, 1876, when he refused to set aside the adminis-tration granted to Haramanis de Silva but said that the question of titlecould be tried either summarily in the then administration suit or in asubsequent action. The matter seems to have remained dormant tillSeptember, 1879, when a. journal entry occurs “ Case called. It isordered that this case do lie over.” It would seem that Haramanisde Silva took no further steps in this suit, for Seelawanse on the admissionof both sides became, or rather was already, incumbent x>i the vihare in
MACDONELL, CJ.—Ranasinghe v. Dhammananda.
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the room of Attadasi deceased, and remained in possession of the landsin dispute till his death in 1900, an incumbency of some twenty-eightyears. As to this the observations of the learned District Judge seemin point, If these properties were not temple properties but had beengifted by Attadasi to Seelawansa and Sonuttara why did Seelawansaand Sonuttara object to their inclusion on the ground that they weretemple properties ? If these properties had been gifted to them, theirclaim would have been that the properties had been gifted to thembut they made no such claim I respectfully concur. The defendantsin their answer say “ These defendants plead that Sumanagala AttadasiUnanse who was lawfully seized and possessed of the said lands ….gifted the same by an instrument not in the possession of these defendantsat present to Seelawansa Therunnanse and- Sonuttara Therunnanseto be held by them with benefit of survivorship No such deed of gifthas been forthcoming in this case nor has any credible evidence beengiven as to its terms, date or even existence. As to it, I would againrespectfully concur with the learned District Judge when he says thatthe evidence clearly shows that Seelawansa and Sonuttara were taking upthe position that all the properties belonged to the temple and thatthey were certainly not claiming any of them under any deed of giftfrom Attadasi and according to them Attadasi had no personal propertywhatever, and the learned District Judge dismisses the alleged giftas a “ myth
There is a conflict of evidence as to what happened to the incumbencyafter Seelawanse’s death in 1900. According to the plaintiffs he wassucceeded in the incumbency by his pupil Saranapala, incumbent from1900 to his death in 1910 when Sonuttara was fetched from a neighbour-ing vihare to reside at Pilikuttuwa vihare and look after the twoyoung priests there, pupils of the deceased Saranapala. According tothe defendants Saranapala died in 1900 and Sonuttara succeededin that year as incumbent. The learned District Judge says it isimmaterial which version is correct but, in other parts of the judgment,he accepts the plaintiffs’ witnesses generally, and these witnesses areclear that Saranapala succeeded as incumbent in 1900 and remainedso till his death in 1910. It seems to be common cause that at leastin 1910 Sonuttara was holding the incumbency. He lived on till 1929,the year after he granted to defendants the deed of March, 1928, and issaid to have been 87 or 88 when he died ; he will therefore have beena very old man when he granted the lands in dispute to the defendants.
The Buddhist Temporalities Ordinance, No. 8 of 1905, which becamelaw on August 25, 1905, vested (section 20) in elected trustees all property“ movable and immovable, belonging or in anywise appertaining to orappropriated to the use of any temple, together with all the issues, rents,and profits of the same ”, Prior to its enactment the landed propertyof each temple was from an ecclesiastical point of view sanghika, that is,dedicated to the whole body of Buddhist priests at large, but for thepractical purposes of municipal law it was possessed by the incumbentfor the time being of the vihare to which the landed property“ appertained or was appropriated ”. Seelawansa at his death in 1900
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MACDONELL C.J.—Ranasinghe v. Dhammananda.
had been incumbent of this vihare for twenty-eight years and would,therefore, if there was any documentary flaw in the title of this viharehave acquired prescriptive title to all the lands of this vihare. Theincumbent entering on Seelawansa’s death in 1900, were it Saranapalaor Sonuttara, would not have had time to acquire himself a prescriptivetitle at the date when Ordinance No. 8 of 1905 was enacted. On itsenactment trustees should have been appointed but were not, untilthe appointment as trustees of the present plaintiffs, doubtless for thepurpose of bringing this action. Wanting such trustees no doubtSonuttara would have acquired between 1900 and 1928 or between1910 and 1928 a prescriptive title to these lands ‘ adverse to andindependent of ’ any other claim, and so could have acquired them for hisown personal use and benefit. The evidence, however, whicl> is acceptedby the learned trial Judge is that throughout his incumbency he usedthese lands for the use and benefit of the vihare and that he at no timeclaimed to possess them adversely to the vihare—if that institutionmay be personified for a moment—or his own use and benefit.Certainly there is no proof of an original dedication of these landsor even that they were paid for with temple money ; on the contrarythey seem to have been acquired by grant or certificate from the Crown.But the evidence of how they were used showed that the persons inpossession, Seelawansa and his successors Saranapala and Sonuttara,treated them as temple property and never suggested that they wereanything else.
The parol evidence is ample to support the finding of the learned Judgeto this effect and I did not understand that on appeal to this Courtsuch finding on fact was challenged.
The appeal was argued to us on a different ground, which as Iunderstand it was this. Where, as here, lands have come to a viharenot on some original gift to pious uses or on an admitted dedication butat a known time and on documents that make no mention of the dedi-cation, the incumbent possessing them prescribes for himself only andnot for the vihare. It was put to us this way. Title under prescriptioncan only be acquired by a persona and a temple is no persona, actualor fictitious. So if an incumbent acquires, he acquires for himself.After such incumbent dies the possession of the lands passes to his naturalheirs, not to his pupils. It may be admitted that the incumbent will bein possession of these lands, but an incumbent is not a trustee for thevihare at all. The person who succeeds to the incumbency is not asuccessor in title to him and the previous incumbent is not “ a personunder whom he (the succeeding incumbent) claims ”—section 3, OrdinanceNo. 22 of 1871.
We must examine this argument. Property belonging or in anywiseappertaining to or appropriated to the use of a temple—this is theterminology of section 20 of Ordinance No. 8 of 1905, so may be usedwithout necessarily asserting that a vihare is a legal persona—is propertysubject to a religious trust. Hayley, Sinhalese Customs, pp. 558-559:“ Sanghika property …. is property dedicated for the useof a temple or the priests even when the first incumbent is mentioned
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MACDONECL C.J.—Ranasinghe v. Dhammananda.
by name and the grant made to his pupils This was so even beforethe passing of Ordinance No. 8 of 1905 and is certainly the case sinceits enactment. In whom, before the Ordinance, did the property vest ?Clearly in the incumbent. Hayley, at p. 547, “ The essence of thistenure is described by the usual form of words by which it is createdwhen embodied in a sannas or other deed of dedication, namely, ‘to Xand his pupils in their generations There results a sort of entail,based upon the sacerdotal relationship of pupil and master, or tutoras he is commonly called ” and the same author at p. 546 describes itas an “ uninterrupted succession of pupils ”. The essence of this tenure,that is by the incumbent, is described in Rathanapala Unanse v. Kewitia-gala Unanse' as follows, per Phear C.J., “ In this Island ….
the property dedicated to the vihare or pansala appears to be theproperty of the individual priest, who is the incumbent of the foundation,for the purposes of his office, including his own support and the mainte-nance of the temple and its services, and on his death it passes byinheritance to an heir, who is ascertained by a peculiar rule of succession,or special law of inheritance, and is not generally the person who wouldbe by general law the deceased priest’s heir in respect to secular pro-perty ”. See also Heneya v. Ratnapala Unnanse 3 where Phear C.J. says,“ I think it is well settled that although the incumbent of a vihareis in a sense the personal owner of the vihare property, yet he is limitedin the exercise of the rights of property to the purposes and benefit ofthe vihare, and he can only alienate or incumber the property when thenecessities of the vihare compel him to do so or justify him in doing so ”.Both cases just quoted are Full Bench decisions and therefore bindingupon us. The possession of the incumbent is that of a de facto trustee.Sidharta Unnanse v. Udayara3 per de Sampayo J., “The priest becomesin the course of years a trust de facto of the dagoba, or as the learnedCommissioner puts it, caretaker of the dagoba property ….
The de facto trustee who has proved his actual possession for a greatmany years and the recent ouster, is entitled to maintain such an actionas he has brought ”, that is an action to recover possession. Such atrustee is recognized in English law, and since trusts have been receivedinto our law from English law it is necessary to use the terminologyof that law. Lewin on Trusts (13 ed.), p. 222, “We may add in con-clusion, that if a person by mistake or otherwise assumes the characterof trustee, when it really does not belong to. him, and so becomes atrustee de son tort, he may be called to account by the cestuis que trustfor the moneys he received under colour of the trust ”, and the sameauthority refers to Lyell v. Kennedy where the House of Lords heldthat a person who had assumed to act as agent and receiver for heirswho were unascertained remained, so long as he continued to act,chargeable in a fiduciary character. The incumbent of the vihare,prior to the passing of Ordinance No. 8 of 1905 and even since its passingif no trustees have actually been appointed, is therefore in the positionof a de facto trustee, and as such he can acquire for the temple byprescription in spite of section 41 of the Ordinance (now repealed) which,
' 2 s. C. C. 26.3 2 S. C. C. 38.
3 6 C. W. R._ 29.
* 14 App. Cases 437.
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MACDONELL C.J.—RanaMnghe v. Dhammananda.
while in force, enacted a species of prohibition in mortmain on theacquisition of new properties for a vihare. As to this, see Silva v. Fonseka where it was held that the prohibition continued in section 41 of theOrdinance was limited to acquisition by devises, grants and conveyancesand did not apply to the acquisition of title by prescription. This casewas followed in Kiri Duraya v. Kuda Duraya *. See also the case,Saddhananda Terunnanse v. Suman Atissa, where it was held that sincein that case it had been proved that there were intervals when the viharehad no incumbent, during which the incumbents did not succeed eachother by pupillary or other succession, there had not been uninterruptedpossession as required by section 3 of Ordinance No. 22 of 1871, fromwhich one infers that if there had been a regular succession of incumbentsthey could have acquired by prescription under section 3 of thatOrdinance.
Authority then is against the argument raised to us on appeal andreason no less. How do certain lands come to be in possession of anincumbent ? Because he is the incumbent of the vihare claiming them.•If he were not its incumbent he would never come to the possessionof those lands at all. No doubt if he took all the profits of the landto himself for his private benefit, if he openly refused to allow the otherinmates of the vihare to participate and manifested by words or conductor both that he claimed these lands as his own private property, and ifhe was allowed to persist in this course of successful assertion for tenyears, then at the end of that time the lands might have become hisas his private property. If however, as here, he uses the lands as and fortemple purposes, then his possession enures to the benefit of the vihareand he is prescribing, if a prescriptive title is needed, for the vihare.Suppose he dies before he has been in possession for ten years and issucceeded by someone in pupillary succession, as was the case here.He the deceased incumbent with less than ten years possession is “aperson under whom ” the next incumbent “ claims ”, for what otherright to the incumbency can the latter have save that of succeeding toit in pupillary succession ? He claims the incumbency itself “ under ”the previous incumbent; can it seriously be suggested that he claimsthe lands that go with the incumbency “ under someone else ” ? Theargument adduced to us on appeal is far fetched and contrary both toreason and authority ?
In this case Attadasi prescribed for these lands for the use and benefitof this vihare during his incumbency of twenty-eight years. Hissuccessors whether they were Saranapala and Sonuttara, or Sonuttaraalone, succeeded to his possession—he was the person under whom theyclaimed—and on the evidence neither of them did anything to asserta possession “ adverse to or independent of ” the right of their predecessorwhich was the right of the vihare until Sonuttara in the last year of hislife, and doubtless in his dotage, made this conveyance under whichthe defendants claim. That was a claim to possess adverse to andindependent of the rights of the vihare, but it came too late since it wasonly made in 1928 and this action was started on September 5, 1929.
■ In N. L. R. S39.2 3 C. w. R. 188.
*14 C. L. R. 18.
DALTON J.—Safenaumma v. Siddick.
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Certainly, it was an irregularity that all through the years from 1905onwards no trustees were appointed under the Ordinance, but all thattime the successive incumbents were holding as de facto trustees a prop-erty for which this particular religious trust, the vihare, had prescribedover and over again.
In the Court below the regularity of the appointment of the trustees,plaintiffs in this action, was contested, but the learned trial Judge foundthat their appointment had been quite regular, and this finding was notcontested before us on appeal.
The judgment below was clearly right and must be affirmed, and thisappeal dismissed with costs.
Koch A.J.—I agree.
Appeal dismissed.