REV. KIRALAGAMA SUMANATISSA THERO
v.ALUWIHARE AND ANOTHER
COURT OF APPEAL.
ATUKORALE, J. (PRESIDENT) AND B. E. DE SILVA, J.
C. A. 585/76 (F) – D.C. MATALE 2027/L.
AUGUST 7, 1984.
Sanghika property – Mortgage of sanghika property – Bond put in suit and sold underhypothecary decree – Purchase at sale – Purchaser's title as against defendant inhypothecary action – Section 26 of the Buddhist Temporalities Ordinance – Section15 of the Mortgage Act – Admissibility of fresh evidence in appealThe plaintiff priest who was the Viharadhipathy of the Kalapitiya Parana Viharamortgaged a field belonging to the temple to the 1 st defendant who put the bond in suitagainst the plaintiff. Hypothecary decree was. entered and the field was sold inexecution and bought by the 2nd defendant. The Court confirmed the sale. The plaintiffthen sued the original mortgagee as the 1 st defendant and the purchaser at the sale asthe 2nd defendant contending that the mortgage decree and sale under it and purchasewere ab initio null and void and no title passed to the 2nd defendant to the said field.The District Judge held the property was pudgaiika and dismissed the action. Theplaintiff appealed.
At the hearing of the appeal Counsel for the appellant sought to mark two deeds but thiswas objected to.
The evidence from the documents and grain tax receipts showed that the field wasowned and possessed by the temple of which plaintiff was Viharadhipathy.
Although in view of section 26 of the Buddhist Temporalities Ordinance themortgage of temple land is not valid yet the decree was entered against the plaintiff onhis default by a Court of competent jurisdiction and it cannot be said that the decreeand consequent sale at which the 2nd defendant bought are a nullity. The plaintiff was dparty to the mortgage action and is bound by the decree and sale on it in view of theprovisions of section 15 of the Mortgage Act. If the plaintiff was aggrieved by thedecree in the mortgage bond action he should have taken action to have the decree setaside. No such action was taken.
Fresh evidence in appeal may be justified if it can be shown that such evidencecould not have been obtained with reasonable diligence at the trial. But this was not thecase here and the documents were inadmissible.
Cases referred to:
Sirinivasa Thero v. Sudassi Thero (1960) 63 NLR 31.
T. Christina and Three Others v. S. Cecilin Fernando (1962) 65 NLR 274, 279.
T. B. Dissanayake, P.C. with Mrs. A. Hegoda for the plaintiff-appellant.
Harsha Soza for 2nd defendant-respondent.
Cur. adv. vult.
October 5, 1984.
B. E. DE SILVA, J.
The plaintiff has filed this appeal from the judgment of the learnedDistrict Judge dismissing the plaintiff's action against the defendants.
The plaintiff filed this action as Viharadhipathy of the Kalapitiya. Purana Vihara which is a temple exempt from the provisions of section4 (1) of the Buddhist Temporalities Ordinance, for a declaration of titleand ejectment of the defendants from the land in suit in this action.
The plaintiff pleaded that one Madahapola Dhammadassi Thero wasthe Viharadhipathy of the said Vihara and on his death the incumbencydevolved on his senior pupil Hapugoda Piyadassa Thero on whosedeath the said office devolved on Kahawatta Saranatissa Thero. Thesaid Kahawatta Saranatissa Thero by P 1 appointed his senior pupilthe plaintiff to the office of Viharadhipathy of the said Vihara. Theplaintiff in the mistaken and erroneous belief that he was entitled infact and in law to do so purported to mortgage by deed 4161 dated23.6.69 (P 17) the premises in suit to the 1 st defendant for a sum ofRs. 2,500 with interest thereon at 18% per annum. The plaintiff statesthat the said property mortgaged is ab initio bad and void and of noforce in law for the following reasons :
That the said property is Sanghika.
That the said property is subject to a Buddhist CharitableTrust.
That the plaintiff as Viharadhipathy is precluded frommortgaging Sanghika or trust property by virtue of theprovisions of the Buddhist Temporalities Ordinance.
The plaintiff states that the aforesaid mortgage would create only anunsecured debt recoverable from the plaintiff in his personal capacity.The 1st defendant put the bond in suit in case No. MB 1031 of theDistrict Court of Matale and having obtained a hypothecary decreetook out an order to sell. At the execution sale the said mortgagedproperty was purchased by the highest bidder the 2nd defendant. Theplaintiff alleges that all proceedings in case No. MB 1031 are ab initiobad and of no force or consequence in law. In the circumstances notitie passed to the 2nd defendant. The plaintiff has prayed :
That the plaintiff be declared entitled to the said propertyas Viharadhipathy of Kalapitiya Purana Vihare and be placedin possession of the said land.
For a declaration that the Mortgage Bond No. 4161 dated23.6.69 was ab initio void and of no force or consequencein law to create any hypothecary rights in respect of thesaid property.
For a declaration that all proceedings in action No MB1031 are bad and ineffectual in law.
For a declaration that the 2nd defendant had no title to theland described either on the execution sale or theconveyance made in his favour.
The 2nd defendant filed answer and pleaded inter alia :
That the plaintiff being well aware of his rights to the land insuit hypothecated the same to the 1 st defendant inducing the '1st defendant to give the plaintiff a loan of Rs. 2,500 onMortgage Bond No. 4161 dated 23.6.69. The plaintiffneglected to repay the said loan to the 1 st defendant and the 1 stdefendant put the said bond in suit in D.C. Matale MB 1031 andobtained a hypothecary decree in the said action against theplaintiff. The 2nd defendant pleaded :
That the plaintiff is estopped from pleading in the presentaction that the hypothecation of the said property is bad inlaw.
That the plaintiff cannot reagitate in the present action therights of parties as the decree and orders entered in D.C.Matale action MB 1031 operate as res judicata betweenthe plaintiff and the defendants in the action.
In any event, the Fiscal's conveyance bearing No. 1132 of22.2.1973 upon which the defendant purchased the landin suit conveyed to the 2nd defendant whatever right orinterest the plaintiff had to the land in suit.
At the trial the plaintiff led in evidence P2 and P3 to show that thisproperty belonged to the Vihara and was Sanghika property. The graintax receipts P4 to P16 were led to show that the temple paid the graintax in respect of this field.
The defendant led in evidence 1D1 the Fiscal's conveyance 1D2order confirming the sale in D.C. Matale No. 1031, and 1D3 orderdelivering possession of the premises by the Fiscal to the 2nddefendant.
At the hearing of the appeal learned Counsel for the plaintiff movedto mark in evidence the deeds 15765 of 23.10.48 and 221 of11.9.48 marked 'A' and 'B' respectively^ The admission of thesedocuments in appeal was objected to by Counsel for the defendant.Reception of fresh evidence in appeal may be justified if it can beshown that this evidence could not have been obtained withreasonable diligence at the trial. It has not been shown that thisevidence could not have been , obtained with reasonable diligence atthe trial. In the circumstances this evidence cannot be received inevidence in appeal.
Learned Counsel for the appellant contended that upon aconsideration of the documents P2 and P3 and the grain tax receiptsthere was sufficient proof to establish that the field belonged to thetemple. He submitted that the learned District Judge had erred whenhe held that there was no definite evidence to establish this propertyto be the property of the temple. He drew the attention of Court to theprovisions of section 26 of the Buddhist Temporalities Ordinancewhich provided thus :
“No mortgage, sale, or other alienation of immovable property
belonging to any temple, shall be valid or of any effect in law."
It was submitted by Counsel for the appellant that the mortgagebond was void and unenforceable and that the decree entered in thecase was bad and of no force or avail in law. Consequently theconveyance in favour of the 2nd defendant conveyed no title to theplaintiff. The attention of Court was drawn to the decision in SirinivasaThero v. Sudassi Thero (1).
It would appear from a consideration of the documents P2 and P3and the grain tax receipts P4 to P16 that the premises in suit wereowned and possessed by the temple of which the plaintiff was theViharadhipathy. In view of the provisions of section 23 of the BuddhistTemporalities Ordinance a mortgage of temple land is not valid. In thiscase however a further question arises in view of the defence taken bythe 2nd defendant whether having regard to the judgment and decreeentered against the plaintiff in the Mortgage Bond action and sale ofthe premises to the 2nd defendant in pursuance of the mortgage
decree the plaintiff could have and maintain this action. The plaintiffhad mortgaged these premises to the 1st defendant. The 1stdefendant had put the mortgage bond in suit.
At the trial in the Mortgage Bond action the plaintiff who was thedefendant in the case was in default and judgment was enteredagainst him. Thereafter the property was sold by the Fiscal andpurchased by the 2nd defendant at the Fiscal's sale. Vide Fiscal'sconveyance 1D1 and order confirming the sale 1D2. The plaintiff hasasserted that the proceedings in the Mortgage Bond action are abinitio void and convey no title to the 2nd defendant. The question doesarise whether the Mortgage Bond decree is a nullity. The MortgageBond decree has been entered by a Court of competent jurisdictionand it cannot be said that the said decree and consequent sale to the2nd defendant are a nullity. Vide 7. Christine and Three others v. S.Cecilin Fernando (2). The plaintiff cannot seek to have the decree andsale in the Mortgage Bond action set aside on the ground that the saiddecree and sale are a nullity. Besides section 15 of the Mortgage Actprovides thus :
"Every party to a hypothecary action, and every person entitled to ’notice of the action and to whom notice of the action is issuedunder section 9 and in the manner provided by section 10, andevery person who is added as a party under section 12 or section13, shall be bound by the decree and sale in the hypothecaryaction."
The plaintiff was a party to the Mortgage action and is bound by thedecree. If the plaintiff was aggrieved by the decree in the MortgageBond action he should have taken action to have the decree in theMortgage Bond action and sale to 2nd defendant set aside by theAppellate Court. No such action was taken. Issues have been raised inthis case whether in view of the judgment and decree in the MortgageBond action the plaintiff could maintain this action. In view of theprovisions of section 15 of the Mortgage Act cited above the plaintiffis bound by the mortgage decree and sale to the 2nd defendant. Thelearned District Judge has correctly answered the issues that in viewof the judgment and decree in the Mortgage Bond action No. MB1031 the plaintiff cannot maintain this action as the said judgmentand decree operate as res judicata. The judgment and decree of thelearned District Judge are affirmed and the appeal is dismissed withcosts.
ATUKORALE, J. – I agree.