075-NLR-NLR-V-06-SANGHARATANA-UNNANSE-v.-WEERASEKERA.pdf
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SANGHARATANA UNNANSE v. WEERASEKERA.
D. C., Oalle, 5,599.
Buddhistvitiate—Incumb ency—Ruleof ^succession—Temple property in
Kandyan Province and Southern Province—Evidence.
The terms of the original dedication of a Buddhist vihare mustgovern the method of succession as to its incumbency.
In the absence of definite terms attached to the dedication, sisya•parampardtoa must be presumed to be the rule of succession, in not onlythe Kandyan Provinces, but also the Maritime Provinces.
Proof of any exception to this rule lies on the party who alleges it.
I
T appeared in this case that one Dharmarama Terunnanse, the in-cumbent of the Ahangama Vihare, was succeeded by his eldest
pupil Wimalasara Terunnanse, who died in 1896. Wimalasara’s onlypupil was the plaintiff, who, at the time of his teacher’s death, wasa minor. Being now of full age,- he came into Court complainingof possession being withheld from him by the defendants, andprayed that he be declared entitled to the vihare and its adjuncts.
The defendants, admitting that Dharmarama Terunnanse was theincumbent of the vihare, pleaded that he was succeeded byWimalasara Terunnanse, and the third defendant (Ratnapala Ter-unnanse) by election at a duly convened assembly of the priestsbelonging to the Amarapura Dharmayuktika Nikaya, and thatthe rule of pupilary succession was never recognized by thepriests of that Nikaya, to which Dharmarama Terunnansebelonged.
1903.
June9andl0
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1903. The District Judge (Mr. F. J. de Livera), after hearing evidence,
June 9 found as follows: —and 10.
“ I consider it proved that this vihare was held by pupilarysuccession, and that on the death of Dharmarama, Wimalasara, assenior pupil, succeeded to the incumbency, and that plaintiff wasthe only pupil of Wimalasara.
“ ‘ If a Buddhist priest be the incumbent of a vihare held by thepupilary succession, the incumbency on his death passes by lawto the priest or priests who are next in the line of succession.’So observed Lawrie, A.O.J., in D. C., Kalutara, 205, reported in3 N. L. B. 383. I therefore hold plaintiff is now the lawful in-cumbent of the vihare.
“ My verdict on the issues is: —
“ (1) Wimalasara succeeded Dharmarama. Wimalasara and thirddefendant were not appointed joint incumbents on the death ofDharmarama. There is nothing in writing to show who succeededDharmarama upon the oral evidence adduced. I hold that Wima-lasara alone succeeded Dharmarama.
“ (2) Plaintiff was the only pupil of Wimalasara.
“ (3) Sumangala was in charge of the incumbency for plaintiffsince the date of Wimalasara’s death.
" (4) First defendant is a legally constituted trustee of this vihareunder Ordinance No. 3 of 1889. His appointment has been pro-duced (dated 4th September, 1897).
“ (5) Defendants kept plaintiff out of possession.
" (6) Second defendant was appointed joint incumbent with thirddefendant of this vihare at an assembly of priests convened atDodanduwa some time after Wimalasara’s death, but that appoint-ment is of no force in law.’
“ It would seem shortly before Wimalasara’s death there was asplit resulting in the formation of two parties, one party supportingSumangala, who was also a pupil of Dharmarama, and the otherparty supporting third defendant. When Wimalasara died anattempt was made to elect a successor to Wimalasara at Ahangama,and this was frustrated by Sumangala. An assembly was thenconvened by the party opposed to Sumangala at Dodanduwa, andsecond defendant was appointed joint incumbent with thirddefendant in place of Wimalasara.
“ (7) The Provincial Committee did not dismiss the second andthird defendants, and uphold the plaintiff’s right to the incumbency.(See document W for the judgment of the Provincial Committee.)The Committee held the chief power was in Sumangala, and orderedsecond defendant to quit, and third defendant to remain, but beobedient to Sumangala.
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“ Document Z is a transition of £he rules that were in operation i608.when the Provincial Committee met in July, 1898. The rules in June 9 <b10.
oepration .then were those published in the Oaaette dated 7th .
October, 1892. I find no authority given by any of these rules totiie Provincial Committee to deoide who the lawful incumbentof a vihare may be.
'* Let a decree be entered declaring plaintiff entitled .to theincumbency of the Ahangama Vihare, and that defendants do payplaintiff costs. ”
The defendants appealed. The case was argued on the 9thJune, 1903.
Petris, for appellants.
Domhorat, K.O. (with Samdrawikrama), for respondent.
Cut. adv. vvlt.
10th June, 1903. LayArd, C.J.—
The main question argued in .this appeal is whether the viharein question was held by pupilary succession.
In the case Ratnapala Unnanae «. Kewitiogdla Unnanae(2 S. C. C. 26), Sir John Phear laid down the following rule withregard to the law of succession to Buddhist .temple property, viz.,.that in the absence of any other definite rule of succession theSiaya paramparawa must be presumed to be the rule applicableto the succession to a Buddhist temple. I .think it would bedangerous to depart from that rule, which appears to have governedthe judgments of this Court from tire year 1897 to tire present time.The appellant’s counsel has tried to persuade us that another ruleof succession is applicable to temple properties situated . in tireSouthern Province. I can find no authority to that effect, andnone has been cited to us. The simple question for us todetermine on this appeal is whether any definite rule of successionother than the Siaya-paramparawa has been established in respectto the succession of this vihare. There is absolutely no evidenceto establish the terms of tire original dedication of this viharethat primarily impose the rule which is to govern the case. Ofcourse in .the absence of such direct evidence we are a liberty tosec if any usage has been established, and if such usage has beenclearly proved it may be accepted as evidence of the terms of theOriginal dedication.
The suggestion is made in this case .that tire succession wasgoverned by election. The evidence on this subject is vagueand indefinite. The witness are not agreed as to who theelectors are, and there is no material before us to show how orby whom a meeting .to carry out an election has to be convened,24-
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– 1903. and where it is to be held. It ie suggested that the temple wasjtmeOandlO. founded and dedicated by one Dharmarama in modem tames; andr.ifAHTi c.J. if that is the case, there ought To be no difficulty in ascertainingthe actual terms of dedication, if there were any definite termsattached to such dedication. On the other hand, it is not dearthat the temple was so founded in modem times, and the evidenceof usage is very meagre and scanty, and the evidence that hasbeen called to prove such usage does not clearly established thatthere were any definite rules either written or unwritten inexistence.
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There was some attempt to prove that, according to the rules, ofthe Amarapura sect and some “ Buddhist works " the rule ofsuccession is governed by other principles than those laid downby Sir John Phear. I would merely point out that those principlesenunciated by Sir John Phear in 1879 were not new ones, butbased on the authorities cited by him, which date back to theyears 1827 and 1B32, and it is too late now to depart from theprinciples which governed the judgments of this Court, for so longa period without demur. W.tih reference to the Buddhist worksreferred to in .the evidence of some of the witnesses, there is nomention of the particular books to which they refer, andsecondary evidence of the contents of those books was clearlyinadmissible.
In 1882, in the case of Weligama Dhammajoti Unnanse v-Sarananda Unnanse, reported in 5. b. C. 0. 8, Justices Clarenceand/ Dias followed, with regard to temple property situated atMa.tara, .the rule of Phear, C.J., in .the judgment above quoted:thus clearly showing that those Judges thought that no distinction,should be drawn between temple property in the SouthernProvince and in the Kandyan Provinces. Under these circum-stances 1 am not prepared .to interfere with the judgment of theDistrict Judge, and to hold that he was wrong in deciding thatthere was no definite rule of succession to take the case out of thegeneral presumption, and that the Sisyanusisya-paramparawawas consequently the rule of succession applicable to the viharein question. I would affirm the judgment of .the District Judgeand dismiss the defendants' appeal with costs.
Wendt, J.—
I am of the same opinion. So far as I am aware, this is thefirst case in which it has been suggested that a different ruleof succession applies td Buddhist temples situated in theMaritime Provinces from that which governs temples in theKandyan Provinces. The latter recognize the authority of the
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colleges of Malwatta and Asgiriya, while the former, it is said, 1903,
owe them no allegiance. But it has not been shown that this June 9$ 10
contention is sound, and the only case which has been cited
to us as touching the point, viz., that reported in 6 8. 0. C. 8,'
was a case where the previous decisions of this Court
relating to temples in the Kandyan Provinces were held to
apply to and were made to regulate the Succession to a temple
in tiie Matara District. If those long-established principles
be applied to the present case as well, the burden lies on the
defendant to show that succession to the incumbency of this
temple did not go in the pupilary line, but depended upon
election or appointment by some electoral body, which the evidence
has in but a very meagre manner indicated. Not only is the
electoral body unascertained, but the mode in which it is to
be summoned, and the rules which are to govern its action, have
not been proved, and it would therefore be impossible for this
Court, upon the materials now before it, to declare how the
next vacancy in the incumbency of this temple is to be filled.
Proof of any exception failing, the general rule must prevail,and that is in favour of the plaintiff, the sole pupil of thelast incumbent, succeeding his tutor.