C.A Independent Newspapers of Ceylon l.lil. r. W u kramastnghr (Ahihil Cader. J.)525
TELWATTA NAGITHA THERO
COURT OF APPEAL
ABDUL CADER. J.. AND L.H. DE ALWIS. J.
A. NO. 635/96.
C. COLOMBO NO. 13788/L.
MAY 3 AND 4. 1982
Buddhist Ecclesiastical Law – Pupillary succession to Viharadhipathy – Act ofappointment – Is informal writing sufficient?
Rev. Piyaratne There was the Viharadhipathy of Gothami Vihare and of twoother Viharas, namely Mangala Ramaya and Sila Saila Bimha Ramaya. ReverendPiyaratne and his co-pupil Rev. Saralankara robed Telwatte Ariyawansa andTelwatla Amarawansa. Reverends Ariyawansa and Amarawansa rolled BuddhaprivaSangapalii (appellant) and Scclawimala.
On Reverend Piyaratne’s death in 1907 Rev. Ariyawansa succeeded to theViharadhipathyship in accordance with Sisvanu Sisya Paramparawa. But thoughRev. Ariyawansa was de jure Viharadhipathy he resided at Mangala Ramayawhile Rev. Amarawansa managed affairs at Gothami Vihare as de factoViharadhipathy. On Rev. Ariyawaiisa’s death Rev. Seclawimata succeeded himas Viharadhipathy of Gothamf Vihare hv virtue of Deed No. 432 of 18.1:51.-
On Rev. Seelawimala's death in 1972 the respondent a senior pupil should havesucceeded as Viharadhipathy of Gothami Vihare. On the other hand appellantclaimed that on the death of Rev. Piyaratne Rev. Amarawnnsjt.succeeded asViharadhipathy by virtue of an appointment dated' 15.1.1907 which was recordedon an ola leaf. The appellant' states that on Rev. Amarawansa'S death in 1949Rev. Buddhapriya succeeded to the Viharadhipathyship and on Rev. Buddhapriya^sdeath in 1955 the appellant as senior pupil succeeded him.
The District Judge held that the ola leaf writing of 15.1.1907 was not a permanentor proper act of appointment but only an expression of a wish by Rev. Piyaratne. .
On appeal to Court of Appeal.
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That the District Judge was correct in his finding and that all the circumstancesof the case show that appellant, had no right to succeed as Viharadhipathy ofGothami Vihare.
Cases referred to:
Dhammadaja Thero v. Wimalajothi Thero (1977) 79 (l) N.L.R. 145
Saranapala Therunnartse v. Piyatissa Therunnanse (1938) II C.L.W. 145
Rewata Unnanse v. Ratnajothi Unnartse (1916) 3 C.W.R. 193
Dhammajothi v. Sobitha (1913) 16 N.L.R. 408
(5> Saddananda Tissa Therunnanse v. Gunananda Therunnanse (1938) II C.L.W. 142
Dhammananda Thero v. Dharmapala Thero (1939) 41 N.L.R. 285
Dhammasiri Therunnanse v. Sudiranando Therunnanse (1937)39N.L.R. 430
APPEAL from judgment of the District Judge of Colombo.
A.C. Gooneratne, Q.C. with N.S.A. Gunatilleke, S.S. Ratnayake and Miss Jayalath,for the appellant.
G.G. Mendis with Mrs. Kalyanasundaram for the respondent.
June 29. 1982.
L.H. DE ALW1S, J.
The plaintiff-appellant, Rev. Sangapala, instituted this action for adeclaration that he is the controlling Viharadhipathy of GothanfiVihare, Borella and for the ejectment therefrom of the defendant-respondent priest. Rev. Nagitha Thero. The Temple in question isexempted from the provision of Section 4(1) of the BuddhistTemporalities Ordinance of 1931.
It is common ground that Rev. Piyaratne Tissa Nayake Thero wasduring his lifetime the controlling Viharadhipathy of Gothami Vihareand two other temples, Saila Bimbaramaya at Dodanduwa andMangalaramaya at Beruwela; that he and his co-pupii Rev. Saralankarajointly robed and ordained two pupils, namely Rev. Telwatte Ariyawansaand Rev. Telwatte Amarawansa, of whom the first was the senior pupil;that these two pries’s jonit’y robed and ordained Rev. Buddhapriy^
CASangapala Thero Telwatla Nagilha Them ll. H. de Aheis. J.!527
Rev. Sangapala (the appellant) and Rev. Seelawimala (the tutor ofthe respondent), in that order of seniority; and that the rule ofsuccession to the Viharadhipathiship of these temples was by/rightof pupillary succession (Sisyanu Sisya Paramparawa).
The appellant's case briefly is that Rev. Piyaratne Tissa NayakaThero appointed Rev. Amarawansa as the Viharadhipathy of pothamiVihare by an ola leaf writing dated 15.1.1907 (P 17A). shortly before,his death in the same year. On Rev. Piyaratne Tissa Thero’s deathin May that year, Rev. Amarawansa thus became the Viharadhipathyof Gothami Vihare, while Rev. Ariyawansa, as senior pupil, succeededto the Viharadhipathiship of the other two temples.
Rev. Amarawansa died in 1949 and his senior pupil Rev. Buddhapriyadied in 1955 without any pupils, so that the appellant claims to^havesucceeded to the Viharadhipathiship of the Gothami Vihare, as thenext senior pupil.
The respondent denies the appointment of Rev. Amarawansa asthe Viharadhipathy of Gothami Vihare on the ola leaf writing (P17A)and takes up the position that Rev. Ariyawansa as the senior pupilof Rev. Piyaratne Tissa Thero succeeded to the Viharadhipathishipin 1907 on the death of Rev. Piyaratne Tissa Thero. Thereafter heappointed Rev. Telwatte Seelawimala Thero to succeed him as theViharadhipathy of Gothami Vihare by deed No.482 dated 18.1.51(D6). Rev. Seelawimala took over the Viharadhipathiship of GothamiVihare in 1951 and died in November 1972. The respondent statesthat he, as the senior pupil of Rev. Seelawimala, succeeded to theViharadhipathiship of Gothami Vihare from that date.
The learned District Judge took the view that the ola leaf writing(P 17A) did not constitute a proper and permanent appointment ofRev. Amarawansa as Viharadhipathy of Gothami Vihare but wasonly an expression of a wish by Rev. Piyaratne Tissa Thero andheld with the respondent. He consequently dismissed the appellant'saction and it is from that judgment that the appellant now appeals.;
The whole case turns, in my view, on the interpretation of P 17A,which is in Pali but written in Sinhalese characters. Learned Counselfor the respondent also attacked the genuineness of the documentitself. The learned District Judge has himself given his mind to thisaspect of the matter. He has commented that by 1907 when thedocument was alleged to have been written, , the ola leaf era ofcommunication had long since died out and that the two ola leaves
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attached to the book called ‘Prathi Mokshaya’ kept in all temples,were the last two leaves. The book consists of a sheaf of loose olaleaves bound together between two thin strips of wood with a cord,and left room for suspicion of a subsequent introduction of thesetwo leaves. Rev. Dharamapala purported to identify the writing onthe ola leaf (P 17A) as that of Rev. Piyaratna Tissa Thero but sincewriting oh an ola leaf was by a process of inscribing with a pointedobject called a ‘panhinda’ which is different from writing on a paperwith a pen, and as Rev. Dharamapala had not seen Rev. PiyaratnaTissa Thero, the learned District Judge was not inclined to accepthis evidence that it was written by Rev. Piyaratna Tissa Thero. Thebook was produced in evidence by Rev. Dharamapala who was thepriest in charge of the library at the Mangala Pirivena where it waskept. As it was produced from proper custody and purported to beover thirty years old, the learned Judge drew the presumption of itsgenuineness under Section 90 of the Evidence Ordinance, but added,quite rightly, that it was a presumption that was rebuttable by otherevidence. This book was alleged to have been-sent by Rev. PiyaratnaTissa Thero to his co-pupil Rev. Saralankara who was at the timeresiding at Mangalaramaya in Beruwela. The learned Judge observesthat the writer of P 17A could not have expected Rev. Saralankarato read it unless his attention was drawn to it. and he further statesthat if it was meant to be an important document like an appointment,it should have been sent direct to Rev. Amdrawansa. But Rev.Amarawansa and Rev. Ariyawansa were both residing in Mangalaramayaof which Rev/ Saralankara- was the . chief priest. It was thereforequite natural that Rev. Piyaratna Tissa Thero should have communicatedthis information to Rev. Saralankara the chief priest, of the Temple,who was also the co-tutor.
Another circumstance that the learned District Judge has takeninto consideration is that Rev. Ariyawansa was a very pious andrenowned monk who had been accorded a public funeral at theIndependence Square ahd who according to both the appellant himselfand Rev. Vissudhi was not a person who would lie ahd cheat. Hewould therefore not have executed D6, if P 17A was in existence.The appellant stated that Rev. Ariyawansa was aware of its existence.But at the same time Rev. Ariyawansa’s conduct in executing D6 isconsistent with the defendant’s version that P 17A was not meantto be an act of appointment. P 17A was in the custody of Rev.iriyawansa and if P17A was a fabrication introduced subsequentlyat the instance of the appellant, it could at least have been couched
CASangapala Thero v. Telwaiia Ntivitha Them II..H. dc Alu’is. i 529
in clearer language without leaving its interpretation in doubt. Thelearned Judge has certainly entertained suspicions regarding thegenuineness of P17A but in the final analysis he has accepted thedocument and has held that it was only an expression of a wish ofRev. Piyaratna Tissa Thero and did not constitute a proper andpermanent appointment of Rev. Amarawansa to the Viharadhipathishipof Gothami Vihare.' Indeed the fact that Rev. Amarawansa did goto reside in Gothami Vihare as Viharadhipathy on the aged priest'sdeath in 1907, confirms the existence of P17A at the time. I thereforedo not propose to differ from the learned District Judge’s finding inthis respect.
1 snail now deal with the interpretation of P 17A. The documentis written in the Pali language in Sinhalese characters. It has beentranslated by Dambulumaye Gnanarathana Thero. a lecturer in Paliat the Vidyalankara University and the translation is marked P17B.Gnanarathana Thero also gave evidence in Court in regard to it.Gothami Vihare was formerly known as Abinawaramaya Vihare.
Dharamapala Thero who produced the document P17A in Courtfrom his custody was asked if he knew Pali and on his saying thathe did, was requested to translate it in Court. In view of the certainmaterial discrepancies between his translation and that of Rev.Gnanarathana’s, I shall reproduce both. This is how Rev. Dharamapalatranslated the document: “This book contains ‘Prathi Mokshaya’.This book was with me for many.days. Now I am sending this bookwhen I got the opportunity to do so. I am now about 80 years oldand am weak and feeble and unable to walk about here and there.It is a well known fact that the temple called Abhinawaramaya(Gothami Vihare) at Welikade,-in Colombo, has been accepted byus. The chief lay-woman Appolina de Soysa has faith and understandingin us and is- held in high religious esteem by the other laymen. Theyexpect to get a learned and competent resident Bhikku to look afterthis place. The Bhikku Sasana will get all the assistance and support.The chief lay-woman hopes that a Buddhist Bhikku will be the chiefresident of the Viharaya or the incumbent of the Viharaya. Now, ifAmarawansa Thero is sent to manage that temple, it may be improvedin a few days’ time. Bhikku Ariyawansa is efficient and a pundit.He is fit to reside at our Sailabimbaramaya and to organize the workthere. If that is done, I can be relieved of my burdens and livepeacefully. Hence ask Ariyawansa Thero to come to Sailabimbaramaya.Deliver this to Saralankera Thero of Beruwela Mangala Pirivena. Or
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this Sunday the Duruthu Full Moon Day in the year 2450 (15.1.70)after the parinibbana of the Lord Buddha. I am sending this to. dearSaralankera Jhero from Sailabimbararnaya.” The translation P17Brendered by Qnanarathana Thero is as folows: “This book containing‘Prathi Mokshaya’ has been with me for a long time and I wasunable to send it to you until I got this opportunity. I would alsolike to mention another matter here. I am now 80 years of age andam infirm and feeble and cannot get about. You are well aware thatwe»have accepted Abhinawaramaya Vihare at Welikade, Colombo.The chief lay-woman Appolina Soysa and the other ‘Dayakayas’ haveshown us great devotion for a long time. They take a keen interest(in..,the temple). 1 think ..that . they will be greatly benefited if theyget a prudent resident.Bhikku. The chief lay-woman wishes to havean efficient priest as the chief resident Bhikku. I think that our dearpupil Amarawansa. Bhikku who is learned, efficient and eloquent willbe suited to reside as the Yjharadhipathi of Abhinawaramaya. Thereforetake my word and send Amarawansa Bhikku to manage that temple.By doing so the temple will be improved in no time. Our dear pupil,the efficient and erudite Bhikku Ariyawansa is suited, to reside atthis Sailabimbararnaya Temple and to organize what has to be donethere. By doing this, 1 will be free of burdens and could lead apeaceful life. Therefore make arrangements to send Bhikku Ariyawansahere. This is sent by Piyaratne Tissa Thero the tutor priest atSailabimbararnaya Vihare Dodanduwa to Saralankara residing atMangalaramaya Temple, Beruwela. This Sunday Duruthu Full MoonDay in the year 2450 after the “Parinibbana of Lord Buddha.“(i.e.15.1.70)
In my view the more accurate translation is that of. Rev. Giinarathanawho is a lecturer in Pali at the Vidyalankara University and hadmade his translation (P 17B) as an expert after careful study of theoriginal text, before he.gave his evidence, unlike Rev. Dharamapalawho translated the document cursorily as he was reading it in thewitness box. I shall come back to the translation later in the judgment.
Learned Counsel for the respondent contended that if P 17A wasintended to be an .appointment of Rev. Amarawansa as theViharadhipathy of Gothami Vihare.it should have been effected bya formal instrument like a notarially attested deed or by a last will,although all the authorities were against him. He relied' on thedecision in Dhammadaja Thero v. Wimalajothi Thero (1) where amajority of four out of five Judges held that after the Buddhist
Siingapulo Them i. Teltvana Nofiiilui Them II..11. tie .-1/iWv J.l
Temporalities Ordinance No. 19 .of 1931 (cap 318) came into operationthe temporalities of a Vihare which have been exempted from theprovisions of 4(1) of the Ordinance vest in the Viharadhipathy andan action for a declaration that a Bhikku is Viharadhipathy of atemple in which he also asks for possession of the temporalitieswhich are in the main rights to immovable property, involves titleto such property, and is not one for a mere declaration of a status.As such section 3 and not section 10 of the Prescription Ordinanceapplied and the period of limitation is 10 years. It was thereforeargued by learned Counsel that inasmuch as the office of Viharadhipathyof a temple is held to involve title to immovable property, section2 of the Prevention of Frauds Ordinance is applicable and theappointment of a Bhikku as Viharadhipathy consequently made byan informal writing like P 17A, is of no force or avail in law. Thisis a very attractive argument. But as presently advised, the authoritiesto the contrary are overwhelming, and this point must await thedecision of the Supreme Court in an appropriate case.
in Saranapala Therunnanse v Hiy a tissa Therunnanse (2). anothercase on which learned Counsel for the respondent relied, de Kretser.A.J. said “the more solemn the form in which he nominates theeasier will be the proof of the nomination, but there is no particularform of nomination’’. He however approved of the view taken bySchneider, J. in Remita Unnanse vsRatnajothi Unnan-
se (3) that “the appointment of a successor to an incumbency neednot be in writing.”
In Dhammajothi v Sobita (4) Pereira, J. said “Now, the generalrule of succession to the incumbency of a Buddhist temple is thatinvolved in the line of succession known as the ‘Sisyanu SisyaParamparawa’; but is clear that it is open to an incumbent to appointby deed or will any particular pupil as his successor.". .This case isno authority for the proposition that appointment-must be by deedor will. Maartensz, J. in Saddananda Tissa Therunnanse. v Guniv.iandaTherunnanse (5) referring to this dictum of Pereira, J., said, "It isclear from this passage in Mr. Walter Pereira’s judgement that hedid not think that the power of appointment should necessarily beexercised by a notarial instrument or by will. In Saddhananda TissaTherunnanse's case it was held that where the . right of nominationof the successor to an incumbency exists, a. -notarially executedinstrument is not necessary to create a valid nomination. Thai wasa case decided after the Buddhist Temporalities Ordinance No. 19of 1931 had come into operation and Maartensz, J. said “I am.of
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opinion that the Buddhist Temporalities Ordinance of 1931 has nothad the effect of placing Viharadhipathis in the position they wereprior to the coming into operation of the Buddhist TemporalitiesOrdinances of 1889 and 1905.” He was of the view that the act ofappointment may be done even by word of mouth and that it neednot be in writing. This case was not considered by'the Bench offive Judges in. Dhammadaja Thero v. Wimalajothi Thero (1).
The case of Dharmananda Thero V Dharamapala Thero (6), citedby counsel for the Respondent, is not relevant except for the. dictumreferred to in the two cases cited in 11 CLW that the writing shouldclearly indicate that a selection for appointment had been made.
in Dhammasiri Therunnanse v Sudiranando Therunnanse (7) it washeld that where the incumbent of a Buddhist Vihare appoints oneof his pupils as his successor, the appointment need not be by anotarial appointment.
On these authorities I am of the view that the appointment of aBhikku to the office of controlling Viharadhipathy bf a Temple canbe made by an informal writing.
The question now is whether the informal writing P 17A is capableof being interpreted as-an appointment of Rev Amarawansa as theViharadhipathy of Gothami Vihare. For that we have to turn to thetranslation P17B. It is true, the words ‘‘Abinavaramaya Adipathibavayen viseemata” appear in P17B… In the original Pali writingP17A the word ‘Adipachchena’ is used in reference to AmarawansaBhikku. But they must heredd in the context in which they appear.Rev. Piyaratne TissaThero'rtefers to the desire of the chief lay-womanApollonia Soysa -to have an efficient priest as ’the chief residentBhikku at Abinawaramaya. and accordingly the aged Bhikku seemedto think that Rev. Amarawansa would do welL.as Viharadhipathy ofthe temple. He therefore-expressed the view that if Rev. Amarawansais sent to manage that temple, the temple would be improved in notime. But this is not an appointment of Rev. Amarawansa asViharadhipathy of the temple. He was to be sent there to functionas the Viharadhipathy as a temporary measure, since Rev. PiyaratneTissa Thero was too old and feeble to manage that temple. Thatthis arrangement was not to operate as an appointment but was onlymeant to relieve that aged priest of his functions as the Viharadhipathyis made manifest by the fact that the other Bhikku, Rev. Ariyawansawas to be sent to Sailabimbaramaya, where the aged priest washimself residing "s* • c j ^ .r tin •;j",'~?ticr: there. In that !Po‘.
(71Saneapala Them i TchvatM Ntigithti Them ll II ,h .i.t. / ;533
Rev. Ariyawansa was not to take charge of the Temple as Viharadipathy.because the old priest was himself there as the Viharadhipathy Thiswas an arrangement made for the purpose of relieving the agedpriest of his duties, during his lifetime. In fact he says that if thisis done he could lead a peaceful life. No definite appointment ismade.' It must further be noted that the Rev. Piyaratne Tissa Therois writing to his co-pupil Rev. Saralankara and is only expressing hiswish that the arrangement, be given effect to, for one thing becauseit would benefit Abiriawaramaya Temple and for (mother because itWould relieve him of his burdens. Indeed the argument employedby'the‘learned Judge in testing the genuineness of the document,namely that a pious Bhikku like Rev. Ariyawansa would not havestooped to deceit by executing D6, only confirms the view that PI7Awas never understood to be an appointment of Rev. ■ Amarawansaas the lawful Viharadhipathy of Gothami Vihare. Before thuarrangementcould be put into effect the aged priest apparently died and on hisdeath, Rev. Ariyawansa, as the senior pupil, succeeded to thecontrolling Viharadhipathiship. of Gothami Vihare. But no doubt indeference to the aged priest’s wishes Rev. Amarawansa was permitted..to reside in Gothami Vihare as its Viharadhipathy. while Rev.Ariyawansa came over to Sailabimbaramaya. In D. C. Colombo easeNo. 8741/L filed by Harold Peiris and others against Rev. Ariyawansaand others, Rev. Ariyawansa at para 28 of his answer ( P 20)expressly states that he succeeded to the Viharadhipathiship ofGothami Temple- and requested Rev. Amarawansa. to reside inGothami Temple and administer it on his behalf, while admittingthe averments in para 13 of the plaint: that Rev. Amarawansa tookup residence in the temple on Rev. Piyaratna Tissa Nayake Sthivira’sdeath in 1907, until December 1949.
In my view the learned District judge was right’in construing thewriting P17A not as a permanent or proper act of appointment butonly as an expression of-Rev. Piyaratna Tissa Them's wishes inregard to the' management of the two temples.
A volume of documentary evidence was led by the appellant toprove that Rev. Amarawansa resided at Gothami Vihare as theViharadhipathy while Rev. Ariyawansa resided at SailabimbaramayaTemple. Rev. Ariyawansa has acknowledged this fact in the Upasampadadeclaration of Rev. Seelawimala PI dated 5.8.42. which he himselfhas signed, and in P10, P18, P25 and P26. Several books P23 toP28 were also produced where reference is made to Rev. Amarawansaas being the Viharadhipathy of Gothami Vihare. A similar description
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of Rev. Amarawansa also appears in the notices published of variousfunctions held at the Vihare and produced as P6 to P13. PI6 andP18. Rev. Amarawansa has made an application in 1930 to build apreaching hall at Gothami. Vihare which was then known asGautamaramaya Tertiple and the road where it was situated wascalled. Yakbedda Road. The correspondence that took place betweenhim and the Municipal Council is produced marked P14 to P16. Itis not necessary to refer to every single document because there isample evidence to establish that Rev. Amarawansa resided at GothamiVihare as the Viharadhipathy.
Learned Counsel for the appellant submitted that once it is establishedthat Rev. Amarawansa resided as the Viharadhipathy of GothamiVihare from 1907 till 1949 he cannot be regarded as having lost hisrights to the Temple. Dharamadaja Thero Wimalajothi Thero (1).But residence in the Temple as Viharadhipathy does not necessarilymean that he was there as the lawful or de jure Viharadhipathy.That he was the de facto Viharadhipathi of the temple from 1907till 1949 is not disputed. But there is a vast difference between the•rights of a ‘de facto’ Viharadhipathy and ‘a de jure” Viharadhipathy.In the five Judge Bench case of Dhammadaja Thero v. WimalajothiThero (1), Pathirana, J. discussed the concept of a ‘de facto’ and a‘de jure’ Viharadhipathy. After discussing several cases on the subject,he says at page 160 “I am therefore, of the view that the judgmentof Dias, S.P.J. in 52 NLR 150 read with his judgment in 49 NLR325 makes it quite clear that a ‘de facto’ Viharadhipathy has nolegal title or rights to a temple under the Ordinance of 1931” A ‘dejure' Viharadhipathy is a Bhikku who has lawfully assumed thatoffice either by appointment or by' pupillary succession.
In the present case the document PI 7A and the subsequent eventsthat occurred after Rev. Amarawansa’s death in 1949 clearly establishthat Rev. Amarawansa had not been appointed to the office ofViharadhipathy. He could not have obtained any rights by pupillarysuccession as he was not the senior pupil. He resided at GothamiVihare during his lifetime only as the ‘de facto’ Viharadhipathy.Consequently, he .had no legal title or right to the Viharadhipathishipwhich could have accrued to his senior pupil by right of pupillarysuccession, that is, to the appellant, as Rev. Buddhapriya died in1955 without any pupils.
I have already dealt with P17A and have demonstrated that itdoes not constitute an act of appointment by Rev. Piyaratne TissaThero. If indeed Rev. Amarawansa had been appointed the lawful
Sangupula 'them i Tetwaita Sagitha Them II..II. <lc .-WiW*. J.)
Viharadhipathy of Gothami Temple, on his death in 1949 his seniorpupil Rev. BuddHapriya, should have succeeded to the office ofViharadhipathy of that Temple. There is no evidence that he did sohut on the contrary, it was Rev. Ariyawansa who came over fromMangalaramaya Temple and took over the Viharadhipathiship ofGothami Temple without any protest from the appellant. On Rev.Amarawansa’s death in 1949. Rev. Ariyawansa. took over theViharadhipathiship of Gothami Viharc and appointed one of hispupils, Rev. Seelawimala, to succeed him as controlling Viharadhipathyof Gothami Viharc by deed No. 482 of 18.1.51 (D6).
The appellant alleges in his plaint that since Rev. Ariyawansa wastheir tutor, the pupils wanted him to take charge of the Temple ontheir behalf. But if that was the case, he would not within two yearsof taking over its management, have ha.nded over the Viharadhipathishipof the. Temple fp Rev. Seelawimala.
When Rev. Buddhapriya died in 1955 without any pupils it issignificant that the appellant who was the next senior pupil of Rev.Amarawansa made no claim to the Viharadhipathiship of GothamiVihare.
On 23.1.59 Harold Peiris and certain others claiming to be th'e:trustees of the Gothami Temple filed action in l).C. Colombo No.8741/L (P 19) against Rev. Ariyawansa, Rev. Seelawimala and anotherpriest for a declaration that the plaintiffs are entitled to the managementand control of Gothami Vihare and for the ejectment of the defendantstherefrom. If the plainfiffs succeeded in that action it would haveresulted in the Kalyanawansa Nikaya, to which the appellant belonged,losing its rights to the Temple. In fact the plaintiffs succeeded inthe Djstrict Court but lost the case in appeal. One would haveexpected the appellant to have intervened in the action if he hadany. legal right to the Viharadhipathiship of the Temple. His lack ofinterest in the action is only explicable on the basis that he was notthe lawful Viharadhipathi of the Temple.
On the other hand, the respondent produced a series of documentsto prove that his tutor Rev. Seelawimala was the lawful Viharadhipathiof Gothami. Vihare on his appointment by D6. When a portion ofthe Temple land was acquired by the Municipal Council for roadwidening in 1967, it Was Rev. Seelawimala who claimed compensationfor it. (D1 and D2). He also applied to the Municipal Council byD3 in-1972 for the installation of drainage in the Temple and madepayment for it (D4‘); The appellant never resided at Gothami Vihare
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as the Viharadhipathy as he claimed he did. He resided atMangalaramaya. In the invitation D5 issued on the occasion of Rev.Rahula’s Ordination, the appellant Rev. Sangapala, is described asthe Viharadhipathy of Mangalaramaya and not of Gothami Vihare.That was in 1966. (vide D II)
In 1957 a party of Buddhist priests had come to Gothami Vihareto meet Rev. Ariyawansa, who had made one of his visits to theTemple, and had attempted to force him to sign a document, duringthe ^bsence of Rev.! Seelawimala. On learning of the incident Rev.Seelawimala'cdrriplained about it to the Kalyanawansa Nikaya Sangain a printed dbcument dated 15.11.57 (D 12) in which'he describeshimself as the Viharadhipathy of Gothami Vihare.
The appellant stated in evidence that Rev. Ariyawansa managedGothami Vihare on his behalf till 1962 and the latter before hisdeath, requested him to permit Rev. Seelawimala, who was Rev.Ariyawansa’s brother, to administer the Temple till his death. Thelearned District Judge has rejected this evidence in view of theoverwhelming documentary evidence against it and I see no reasonto disturb that finding.
Rev. Ariyawansa died in 1962 at Mangalaramaya, where theappellant was also residing but the latter made no effort to claimthe Viharadhipathiship of Gothami Vihare, as the senior pupil, byright of pupillary succession. His conduct shows that he had no lawfulright of succession to the Viharadhipathiship either from Rev.Arrftrawansa by virtue of P17A or from Rev. Ariyawansa, becauseof the appointment of Rev. Seelawimala by D6.
Rev. Seelawimala died on 5.11.72 and in a notice D14 publishedon that occassion, it is stated that he was appointed Viharadhipathyof Gothami Vihare by Rev. Ariyawansa in 1951 and functioned assuch till his death on 5.11.72. His obituary notice D13 was publishedby his senior pupil, the respondent,, of Gothami Vihare.
What finally knocks the bottom off the appellant's case is theincident that occurred in 1972, after Rev. Seelawimala’s death andits sequel in the Magistrate’s Court.
On Rev. Seelawimala's death on 5.11.72 the respondent, as hissenior pupil, succeeded to the Viharadhipathiship of Gothami Vihare.About two weeks later, on 22.11.72, a party of about 30 Buddhistpriests entered Gothami Vihare and attempted to forcibly takepossession of it. The party included Rev. Rahula. who was a pupil
CASangapala Them r. Tclwattu Nagilhti Them (/..//. Je Alteis. J.)537
of the appellant. The respondent thereafter filed a private plaint inthe Magistrate’s Court of Colombo in case No. 02542/C (D9) chargingfive priests with inter alia, unlawful assembly, criminal tresspass andcriminal intimidation. The first accused in the case was Rev. Rahulaand the third accused was the appellant. The case came up beforeCourt on 24.2.73 and on that day Rev. Rahula Thcro. the pupil ofthe appellant conceded that the respondent ‘ has been duly appointed-'as the Viharadipathy of Gothami Vihare. The appellant for his part,claimed only the right to enter the temple since it belonged to theparamparawa.
Counsel for the appellant submitted that the matter in issue inthat case was criminal tresspass and it was unnecessary for theappellant to have asserted in Court his right to the Viharadhipathishipof the Temple. But the appellant did assert his right to enter thetemple dn the basis that it belonged to the paramparawa and if hewas also the lawful Viharadhipathy of the Temple, would not thathave been the stronger right to rely on in Court? His failure tomention his right to the Viharadhipathiship of the Temple on thatoccasion is an implied admission that he had 'no such right and isconsistent with the position that Rev. Amarawansa had been residingin Gothami Vihare during his life only as the ‘de facto- Viharadhipathy!
The Magistrate’s Court case was compounded on the undertakinggiven by the appellant, not to enter the temple until he had vindicatedhis rights if any, in a civil Court. The present action has been filedin accordance with that undertaking.
I am pf the opinion that the learned District Judge’s conclusionthat the appellant has no lawful right to the Viharadhipathiship ofGothami Vihare is correct.
I dismiss the appeal with costs.
ABDUL CADER, J. — I agreeAppeal dismissed.
SANGAPALA THERO v. TELWATTA NAGITHA THERO