Amarawanaa lelavira. v. Wimaladhamma Thero
1977Present: Rajaratnam, J., Weeraratne, J.and Sharvananda, J.
REV. GALLE AMARAWANSA ISTAVIRA,Defendant-AppelTant
REV. GALLE WIMALADHAMMA MAHA THERO,Plaintiff-Respondent
S. C. 264/68 (F) —D. C. Galle 7145/L
Buddhist Ecclesiastical Law—Devolution of Viharadhipathiship—Rulesof pupillary succession—Abandonment and surrender of rightsof incumbency—Execution of deed of appointment by priest whohad next claim for incumbency of a Buddhist temple—Whethera nullity.
In 1932, A who had the next claim for incumbency of a Buddhisttemple, executed during the life time of the then Viharadhipati, B,a deed Dl, purporting to appoint four of A’s pupils, one of whomwas the plaintiff-respondent as joint-incumbents of the temple. Thedeed also stated that the four priests so appointed purported torenounce the said joint-incumbency and that A thereafter appointedC as the incumbent of the said temple.
The plain tiff-respondent, along with other priests so appointed,consented to the said appointment and renounced in favour of andsurrendered to the said C, “ all rights, title and interest whatsoeverof, in, upon or out of the incumbency of the temple in anywisenow be'onging to him or to devolve on him hereafter on the deathof the said A B was not a party to the deed.
In 1963, at the age of 80, the plaintiff-respondent executed anotherdeed, D2, whereby he purported to assign all rights, title andinterest of the said temple vested in him as Adhikari, to his pupilX. The deed stated that by virtue of this appointment of adminis-tration, incumbency or Adhikariship, the said X was empoweredto protect the goods belonging to the temple and to appronnatethe income to the temporalities and to spend them in a fittingmanner according to Vinaya Rules. In 1965. another deed D4 wasexecuted whereby the plaintiff-respondent obtained a re-transfer ofthe rights purported to have been assigned by D2.
Held : (.1) That the deed Dl was a nullity as A who had himselfnever acted as Viharadhipathi, had no power to execute such a deedappointing incumbents during the lifetime of the Viharadhipathi.Consequently, any purported surrender of his rights by the plaintiff-respondent in the same deed was also ineffective.
(2) That the deed D2 by itself did not amount to a surrender,abandonment or renunciation of the plaintiff-respondent’s rights ofincumbenc3’, and could only be effective as an appointment of Xas his successor.
Cases referred to :
Worakapitiya Sangnnanda Terunnanse v. Meeruppe SumanatissaTerunnanse, 66 N.L.R. 394.
Jinaratna Thero v. Dhammaratna Thero, 57 N.L.R. 372.
Dheerananda Thero v. Ratnasara Thero, 67 N.L.R. 559.
Saranankara Unnanse v. Indajoti Vnnanse, 20 N.L.R. 385.
Jananda Therunnanse v. Ratnapala Therunnanse, 61 N.L.R. 273.Gunananda Unnanse v. Dewarakkita Unnanse, 26 N.L.R. 257.
440 SHARVANANDA, J.—Amarawansa Igtavira v. Wimaladhomma Thero
Punchirala v. Dharmananda Thero, 48 N.L.R. 11.
Algama v. tfuddharakitta, 52 N.L.R. 150.
Pemananda Thero v. Thomas Perera, 56 N.L.R. 413.
Baddegama Sri Ratanasara Thero v. M. H. M. Basheer, 66 N.L.R. 433.•
_^^PPEAL from a judgment of the District Court, Galle.
H. W. Jayewardene, Q.C. with N. R. M. Daluwatte and Miss S.Fernando, for the defendant-appellant.
H. A. Kottegoda, with D. H. Pandita Gunawardena and DayaPelpola, for the substituted plaintiff-respondent.
Cur. adv. vult.
October 20, 1977. Sharvananda, J.
The plaintiff-respondent instituted this action to be declaredthe Viharadhipati of Parama Vichitrananda Viharaya and thetemporalities thereof. The plaintiff complained that the defendantwas, from 28th July, 1964, wrongfully disputing the right of theplaintiff to function as the Viharadhipati of the aforesaid temple.The plaintiff averred in his plaint that the original Viharadhipatiof this temple was Weligama Dhammarakkita Thero, who diedleaving as his heir his chief pupil and successor Galle RatanasaraThero. The latter is stated to have functioned as the Viharadhi-pati of the said temple till he reverted to his lay status in theyear 1887. Whereupon, his senior pupil, Galle Ariyawansa Thero,succeeded him and held office till his death in 1933. The plaintiffhas averred that though he was the senior pupil of the Rev.Ariyawansa and was therefore entitled to succeed him, he hadpermitted the Rev. Pannaransi, tutor of the plaintiff and a juniorpupil of the Rev. Ratanasara, to function as the Viharadhipatiof this temple till his death in 1946. The plaintiff stated thatafter the death of the Rev. Pannaransi in 1946, he, as the lawfulincumbent, began to function as the Viharadhipati till his rightto the said office was disputed by the defendant in 1964.
The defendant, by his answer, admitted tfie devolution of theViharadhipatiship of this temple from the Rev. Dhammarakkita,who was followed by the Rev. Ratanasara, who in turn was suc-ceeded by Galle Ariyawansa Thero as stated by the plaintiff.But the defendant specifically denied that the plaintiff was tfliesenior pupil, or any pupil at all, of the said Galle AriyawansaThero. The defendant also denied that the Rev. Pannaransi atany time functioned as the Viharadhipati of the temple afterthe death of the Rev. Ariyawansa. According to the defendanton the death of the Rev. Ariyawansa in 1933, it was he whobecame the Viharadhipati of this temple as the senior pupil of
SHARVANANDA, J.—Amarawansa Istavira v. Wimaladhamma The.ro 441
the Rev. Ariyawansa. By way of further answer, the defendantBtated that even if the plaintiff had any right as the Viharadhi-pati of the said Vihara, he had renounced and abandoned thesaid rights and hence he was not entitled to maintain the presentaction. He further, in his answer, referred to the evidence givenby the plaintiff in case No. L./6725 D. C. Galle, wherein he (theplaintiff) had stated that he had transferred his right ofViharadhipatiship to one Tihagoda Piyatissa Thero. The defen-dant also admitted in his answer that the successor to theViharadhipatiship of the said Vihara is governed by the rule ofPupillary Succession called the ‘ Sisyanu Sisya Paramparawa
The case proceeded to trial on the eleven issues suggested bycounsel for both parties. Significantly, the defendant omitted toframe any issue on the question of abandonment of his rightsby the plaintiff as alleged by the defendant in his answer. Sincethe question of abandonment involves a question of law and fact,an issue should, have been framed on this disputed question ofabandonment, and the plaintiff should have had the opportunityof rebutting the allegation of abandonment of his rights. Mr.-Jayewardene’s argument that the plaintiff had, in any event,abandoned his rights of Viharadhipatiship loses much of its forceby the defendant-appellant’s omission to frame an issue on thisvital question. Since no such issue was framed at the trial, thetrial Judge was given no opportunity to ascertain whether theplaintiff *nad, in fact, renounced and/or abandoned his rightsby the execution of the two deeds, No. 410 dated 4th March, 1932(marked DI) and No. 12640 dated 28th December, 1963 (markedD2). Anyway, in the absence of an issue, it seems to have beensuggested in the lower Court that the plaintiff, by the executionof the said deeds Dl and D2, had renounced and/or abandonedhis rights, for the District Judge, in the course of his judgment,observes :
“ It is quite evident to Court that the defendant relied onthe document Dl and D2 to prove an abandonment of hisrights by the plaintiff. The Court is satisfied that these twodocuments do not deprive the plaintiff of his lawful right tothe Viharadhipatiship of this temple as the senior pupil ofthe Rev. Ariyawansa. ”
After a critical analysis of the evidence, the trial Judge heldwith the plaintiff and entered judgment declaring the plaintiff thelawful Viharadhipati of the temple in dispute. The evidence inthis case is overwhelming that Pannaransi Thero functioned asthe Viharadhipati of the temple in question up to 1946 as referredto by the plaintiff and that the plaintiff succeeded to the incum-
SHARVANANDA, J.—Amarawanaa Istavira v. Wimaladhamma Thero
bency on the death of the Rev. Pannaransi and that the defen-dant did not at any time function as the Viharadhipati of thetemple. In the face of the vast volume of evidence led by theplaintiff, it is surprising that the defendant did not choose togive evidence, though he was the best person to substantiatehis allegation that he had functioned as the Viharadhipati fromthe time of the death of the Rev. Ariyawansa in 1933. The findingof the trial Judge that the plaintiff is the senior pupil of the Rev.Ariyawansa by ordination and that the defendant never officiatedas the Viharadhipati of the temple after the death of the Rev.Ariyawansa in 1933 is supported by ample evidence on record,and no serious attempt was made to canvass this finding. But,Mr. Jayewardene, counsel for the defendant-appellant, pressedhis appeal on the ground that the plaintiff had abandoned hisrights, if any, to the incumbency of the Vihara by the executionof the two documents D1 and D2. He submitted that by deedNo. 410 dated 4th March, 1932 (Dl), the plaintiff renounced andabandoned his claim to the incumbency of this temple in favourof the Rev. Sumangala. By this deed, the Rev. Pannasara, callinghimself the Viharadhipati of the temple, purported to appoint, outof his twelve pupil-priests, four priests, one of whom is theplaintiff priest, as joint-incumbents of the temple. The deed statesthat the four priests who were so appointed purported to re-nounce the said joint-incumbency and that Pannaransi Thero,thereafter, appointed Sumangala Bhikku the Adhikari or incum-bent of the said temple and that in view of the said appointmentof Sumangala Bhikku as the incumbent, the plaintiff, along withthe other two priests, consented to the said appointment andrenounced in favour of and surrendered to the Sumangala Bhikku“ all rights, title and interest whatsoever of, in, upon or out ofthe incumbency of the temple in anywise now belonging to himor to devolve on him hereafter on the death of the said Panna-ransi Thero ”. It has been urged by Counsel for the appellantthat this act of the plaintiff amounted to an abandonment orrenunciation of his future rights to incumbency. Tt is to be notedhowever that Rev. Ariyawansa, who was admittedly the Vihara-dhipafi of this temple, was still living at the time of the execut-ion of Dl and that he died in the following year 1933 and that hewas not a party to Dl. Therefore, the Rev. Pannasara had noright whatever in 1932 to designate himself as the Viharadhipatiof this tempie and convey the status that he did not have atthat time to the Rev. Sumangala, and hence whatever right thatthe plaintiff is alleged to have renounced by tha execution of thedeed Dl was the right that devolved on him through the Rev.Pannaransi and, as stated earlier, this renunciation amounted tonothing as the Rev. Pannasara had no right whatever, in the year
SHARVANANDA, J.—Amarawonaa latavira v. Wimaladhamma Thero 443
1932 when D1 was executed, to the Viharadhipatiship of thistemple. It is to be noted that according to the defendant,the Rev. Pannasara had never acted as the Viharadhipati of thistemple. Further, no evidence has been led in this case to showthat the Rev. Sumangala, in pursuance of Dl, ever functionedas the Viharadhipati. In the circumstances, this deed Dl was anullity and has rightly never been acted upon. The fact thatthe plaintiff had been a party to such a deed does not in any wayprejudice his rights. In the circumstances, it cannot be claimedthat by the execution of Dl in 1932, the plaintiff had renouncedand/or abandoned any of his rights or claims to the incumbencyof the temple.
The next deed on which the defendant’s plea of abandonmentis based is Deed No. 12,640 dated 28th December, 1963 (D2). Therecital in the deed states :
“ Now as I have exceeded the age of 80 years and althoughI am getting the work of the temple done by the fourpupils, yet it is my desire to appoint someone for theadministration and general welfare of the said valuabletemple”
By this deed, the plaintiff “ assigned, set over all rights, titleand interest of Parama Vichitrananda Maha Viharaya vestedin me as Adhikari to my pupil Pandita Tihagoda Piyatissa.Therefore, by virtue of this appointment of administration,incumbency or Adhikariship, the said Pandita Tihagoda PiyatissaBhikku is hereby empowered to protect the goods belongingto the temple and to appropriate the income to the temporalitiesand to spend them in a fitting manner according to the VinayaRules. ” Counsel for the appellant vehemently contended that bythis deed D2, the plaintiff has surrendered and/or abandonedhis rights to incumbency.
“ The law is clear that although renunciation by a monk ofhis right to be Viharadhipati may be inferred from the facts andcircumstances, such an inference will not be drawn if the matteris left in a state of doubt.”—Warakapitiya Sangananda Terun-nanse v. Meeruppe Sumanatissa Terunnanse, 66 N.B.R. 394. Inmy view, one cannot spell out an intention to renounce orabandon the rights of incumbency on the part of the plaintifffrom the terms of the deed D2. The terms of D2 are suggestiveof the appointment of a manager of the temple to look afterand manage it on behalf of the plaintiff, as the plaintiff wastoo old to attend to its administration. “ The basis of abandon-
444SHARVANANDA, J.—Amarawansa Istavira v. Wimaladhammo Thero
ment is the intention to renounce one’s rights, and this intentionmust be clear and unambiguous. If there is any doubt onthis matter, the inference drawn must be against an abandon-ment.” (See Jinaratana Thero v. Dhammaratna Thero, 57N.L.R. 372). It has been observed in Dheerananda Thero v.Ratanasara Thero, 67 N.L.R. 559, that there is a distinctionbetween abandonment and renunciation of one’s rights, and aconveyance of those rights to another. “ When rights areabandoned, they disappear and cease to exist and there is noperson to whom those rights accrue. In the case of a conveyancethe transferor asserts his rights and then transmits them to thetransferee, so that the rights continue in the transferee. It mayturn out that the act of transfer is ineffective (as in this case),but then the rights of the transferor do not disappear (for he
never renounced them), but continue to remain in himOur
Courts have held that a Viharadhipatiship cannot be transferredduring a Bhikku’s life-time. But the deed which purports todo so may, in certain circumstances, be effective as an appoint-ment of a successor.”—per Sirimane, J. at pp. 562 and 63. Theobservation of Sirimane, J. applies appropriately to the terms ofthe deed D2. It is quite clear from the provisions of the deed D2that the plaintiff never intended to abandon his rights—in fact,abandonment was the last thought in his mind. He assertshis rights and then makes provision for their transmission,whereby those rights could be exercised by the transferee. Fromthe mere execution of the deed D2, one cannot spell out anabandonment of his rights of incumbency by the plaintiff. Theexecution of such a deed constitutes only an item of evidencewhich, along with other evidence of conduct on the part ofthe executant, might establish such abandonment. But, by itselfit does not amount to abandonment. The ultimate question iswhether the plaintiff has, in fact, abandoned his rights—inthe sense that, by executing such a deed as D2, he not onlyintended never to function as incumbent in the future, but alsohas, thereafter, in fact, ceased to function as incumbent. Theonus lies fairly and squarely on those who assert that the righthas been abandoned. The onus is a heavy one.
The deed D2, instead of operating as an immediate transfer ofthe Viharadhipatiship to the Rev. Piyatissa, can be effective asan appointment of Rev. Piyatissa as plaintiff’s successor to theViharadhipatiship on his death. Hence, the plaintiff could, evenafter the execution of the deed D2, continue to hold this officetill his death. The deed No. 14766 dated 2nd July, 1965 (D4),by which the plaintiff got a re-transfer of the rights purportedto have been assigned on D2, seems to have been executed out of
Weeraratne v. Perera
an abundance of caution, since the Rev. Piyatissa had no presentrights to the incumbency that he could re-transfer to theplaintiff. The execution of such a deed of revocation as D4,reinforces the submission that the plaintiff never intended toabandon his rights of incumbency.
Counsel for the plaintiff, at one stage of the argument, statedthat by the deed D2 the plaintiff sought to appoint PiyatissaThero as Adhikari of the temple only and not as Viharadhipatior incumbent of the temple. This submission was made on thebasis that the office of Adhikari is different from that of aViharadhipati or incumbent. Reference was made to the judgmentof Basnayake, C.J. in Janananda Therunnanse v. RatnapalaUnnanse (61 N.L.R. at 275). Mr. Jayewardene, however, referredus to the judgments in 20 N.L.R. 385, 26 N.L.R. 257, 48 N.L.R.11, 52 N.L.R. 150, 56 N.L.R. 413 and 66 N.L.R. 433, which tendto show that this distinction is not well-founded and that thereis only one office : Viharadhipati, Adhikari, or incumbent, andthat these expressions refer to one and the same office. Theobservation of Basnayake, C.J. that “ it is well established thatthe offices of Viharadhipati and Viharadhikari are not the same nis not supported by any authority and cannot be sustained.
However, I agree with the view of the District Judge thatthe two deeds marked D1 and D2 cannot be regarded as acts ofabandonment or renunciation of the Viharadhipatiship by theplaintiff.
The appeal is dismissed with costs.
Rajaratnam, J.—I agree.
Weeraratne, J.—I agree.
REV. GALLE AMARAWANSA ISTAVIRA, Defendant-Appellant and REV. GALLE WIMALADHAMM