SARANANKARA UNNANSE et al. v. INDAJOTI UNNANSE et al

083-NLR-NLR-V-20-SARANANKARA-UNNANSE-et-al.-v.-INDAJOTI-UNNANSE-et-al.pdf


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Present: Bertram C.J. and De Sampayo J.SARAN ANKARA UNNANSE et al. v. INDAJOTITJNNANSE et al.187—D. G. Kandy, 24,967.
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Buddhist ecclesiastical laic—What is necessary to constitute pupillage t—
Different kinds ofpupils—Presentationforordination—Robing—
Instruction—.Disrobement of-tutor does not offset pupilsClaim to a share
of an incumbency.
According to the ecclesiastical law observed among the Buddhistsof Ceylon, presentation for ordination, apart from robing, is in itselfsufficient to constitute pupillage.These functions mayvalidly be
performed by delegation
Semble, a priest presented for ordination by a priest other thanthe robing priest in his own name will be the pupil of both.
It is not essential that the pupil should have received instruction from thetutor whom he claims to succeed.
The disrobement of the tutor does not affect the status and rights of thepupil.
Per Bebtbam C.J.—According to the original theory of itsinstitution, a vihare is dedicated to the whole Sangha. This hasbeen modified by the religious custom known as “ pupillary success-ion,” under which a vihare is specially dedicated to– a particularpriest and hiB pupils. By virtue of this dedication the priest andhis pupils have a preferential right of residence and maintenanceat the vihare—but this appears to be subject to the . generaldedication to the Sangha as a whole, inasmuch as on the failure ofthe succession the vihare reverts to the Sangha. In Ceylon everyvihare is presumed to be dedicated in pupillary succession, unless the contraryis proved.
A vihare cannot be portioned out , in shares, whether divided orundivided.
The office of “ incumbent ” is a single office, and cannot be heldjointly, and consequently a claim to a “ share ” of an incumbency cannotbe sustained.
I and B were fellow-pupilsof P.Iwas thesenior pupil, and
became” incumbent ” of thevihareinquestion. Bpurported to
convey, his half share of the incumbency to his pupil, S, and there-after disrobed himself. The plaintiffs, as pupils of S, claimed “ ashare on the incumbency " and a declaration that they were entitled to theincumbency jointly with I.
Held, that the plaintiffs were not entitled to such a declaration.
Per Bebtbam C.J.—The first defendant, I, was the incumbent,and Bhad nothing but arightofresidenceandmaintenance.
The deed cannot be treated as conveying this interest to S, as theinterestis not. a transmissible interest.Moreover, Swas entitled
1918.
( 886 )
1918.
Saranan-
kara
Unnanse v.IndajotiUnnanse
to it without any transfer. Similarly, the plaintiffs, the pupils oiS, were entitled, like, 8, to a right of residence and maintenance atthevihare, and this isall they canat presentbe entitled to.As
pupils of the 'pupils of S, they may in dne course eventually beentitled to succeed to the incumbency.Whether either of them
ever will, in fact, becomes so entitled must depend upon the development ofevents.
The various forms of pupillage under Buddhist ecclesiastical lawdiscussed and explained.
Observations by De Sampayo J.on the importance in matters
of ecclesiastical administration of ' ascertaining by evidence thecustoms actually in force among the Buddhist priesthood in Ceylonasdistinguished fromthe ancient canonsenunciated inthe-
Buddhist scriptures. " Doctrine and beliefare, of course, im-mutable, but discipline and administrationare naturally subject to
modifications.”
rjiHE facts are set out in the judgment.
Bartholomeusz, for appellant.
O. Koch, for respondent.
Cur. adv. vuIt.
November 13, 1918. Bektbam C.J.—
This is a case in which the third plaintiff, a Buddhist priest, andthe fourth plaintiff, another Buddhist priest, as his pupil, claimedto be entitled, jointly .with the defendants, to the incumbency of avihare, to the right of residence in the vihare, and .to the right ofmaintenance out of the revenues of’the vihare derived from theendowments attached thereto. Various other contentions wereadvanced in the pleadings, but these were not insisted upon at thetrial, and in the result, the only question the Court had to determinewas whether the third plaintiff was in the line of pupillary successionfrom one Pinguwa Unnanse, who was at one time the incumbent ofthe vihare, and, if so, what rights belong to him by virtue of this fact.
The third plaintiff claimed through one Batnapala Unnanse. Thefirst defendant and Batnapala Unnanse were fellow-pupils of PinguwaUnnanse. Indajoti Unnanse was the senior pupil, and as such is nowwhat is known as the incumbent of the vihare. Batnapala Unnanse,his fellow-pupil, disrobed himself about thirty years ago. Beforehe left the priesthood, however, he had a pupil, Sri Sumana Unnanse,to whom he purported to convey certain rights by deed.. Thethird plaintiff, Sumangala Unnanse, claims to be the pupil of SriSumana Unnanse; and hy virtue of being his pupil he claims to beentitled to “ a share ” in the incumbency, and to be declared “ thejoint incumbent ” with Indajoti Unnanse.
The defendant, however, challenges his claim altogether. Heasserts that Sri Sumana Unnanse was not the pupil of BatnapalaUnnanse, and that the ~third plaintiff was not the pupil of Sri Sumana
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Unnanse. The first question which the Court has to determine,therefore, is as to this alleged line of pupillage, and the second is,what oqnstituteB pupillage for the purpose of pupillary succession.
First, let us take the case of Sri Sum ana Unnanse. WaB he the pupilof Batnapala Unnanse ? According to the evidence of Batnapala,Sri Sumana, though not actually robed by 'Batnapala, was robed byanother bhikkhv, Giddawa, “ at his instance.” Batnapala addsthat he “ taught ” Sri Sumana for about fifteen years, and that SriSumana was “ obedient ” to him. The records of the AsgiriyaVihare show that Sri Sumana Unnanse was presented for ordinationby Batnapala and this other bhikkhu, Giddawa, and his robing tutorsare recorded as having been Batnapala and Giddawa. The recordis thus entirely consistent with the evidence of Batnapala ; thereis no reason to think it inaccurate or fraudulent. It must beaccepted ; and it must be taken that Sri Sumana was robed byGiddawa at the instance of Batnapala, and was ordained on thepresentation of Batnapala and Giddawa. Mr. Bartholomeuszcontends that, even accepting these facts, Sri Sumana was not apupil of Batnapala to the extent necessary to establish pupillarysuccession. He contends, first of all, that actual robing by thetutor, from whom the succession is traced, is essential.
Next, as to the third and fourth plaintiffs, were they the pupils ofSri Sumana ? The evidence shows that they were both robed byBhammakanda, and presented for ordination by Sri Sumana, whois described as their “ second tutor. ” It is also said that both thethird and the fourth plaintiffs were “ obedient ” to Sri Sumana.On this Mr. Bartholomeusz contends, firstly, that neither of themis a pupil of Sri Sumana, as neither was robed by him; and in thesecond place, that, even assuming that ordination, coupled withobedience, is sufficient to constitute pupillage (which'Mr. Bartholo-meusz contests), there is a third requisite to pupillage, namely,instruction, which I understand him to contend is "in all casesessential. ” ; and there is no evidence that either of these bhikkhuawas instructed by Sri Sumana. He contends, therefore, thatneither of them can be considered his pupil for the purpose ofpupillary succession. He bases his contention on his interpretationof the judgment of Pereira J. in Dhammajoti v. Sobita.1
For the purpose of determining these contentions, I will examine,first of all, the local authorities on the subject; and secondly, thegeneral principles as laid down in such religious authorities as areaccessible to us.
The local authorities on the subject are extraordinarily meagre.They consists, in effect, of three cases only: Dhammajoti Unnanse v.Paranatale,2 Dhammajoti v. Sobita,1 and Ddmmaratana Unnanse v.Sumangala Unnanse.* In the first of these cases, the only questionto be determined was whether mere instruction without robing or
(1913) 16 N. L. R. 408.* (1881) 4 S. C. C. 121.
* (1910) 14 N. L. R. 400.
1918
Bertram
C.J.
Saranan-
Icara
Unnanse «.IndajotiUnnanse
( 388 )
1918.
Bertram
O.J.
Saranan.kara
Unnansev.
Indajoti
Unnanee
presentation for ordination was sufficient to create pupillage for thepurpose of pupillary succession. This question was determined inthe negative. There were two obiter dicta: one by Cayley C.J.,who says that he had always understood that it was robing thatconstituted pupillage for the purpose of succession to a tutor’sincumbency; and that he was not previously aware that ordinationmight also be considered sufficient for this purpose, as stated by theHigh Priest of Adam’s Peak in that case. The Chief Justice, it willbe observed, did not himself express any opinion. Dias, J., however,went.further and said: “ In my opinion robing is the only essentialrequirement to constitute pupillage, and that presentation for ordi-nation is not of itself sufficient for that purpose.” This observationwas, of course, purely obiter, and has no authority, except as beingthe opinion of a Judge of eminence and experience. With regardto the second case, Dhammajoti v. Sobita,1 Pereira J., for thepurposes of the case, simply adopted the evidence of the HighPriest called by the plaintiff. He said: “ The High Priest called bythe plaintiff says that robing, obedience, and ordination, or anytwo of them, would be sufficient to constitute pupillage. He men-tions instruction also as one of the essentials.” In the third case,Dhammaratana TJnnanee v. Sumangala TJnnanse,2 which was prior indate to Dhammajoti v. Sobita,1 the Supreme Court propounded aseries of questions, some of which went to the very point here in issue.Evidence was taken on these questions, and that evidence wasintended to be ‘‘a source of information for future reference onthe points inquired about.” Unfortunately that evidence was notprinted as an appendix to the report, and it does not appear tohave been made use of in the judgment of the subsequent case ofDhammajoti v. Sobita.1 It is desirable, in my opinion, that thatevidence should now be printed and published.®
It may be convenient at this point to summarize that evidencewith reference to the points under discussion. The materialquestions are as follows: —
(i.) How is the right of pupillary succession obtained?
(ii.) Can a pupil obtain the right of pupillary succession to histutor if he is not robed by him?
(iii.) Does every pupil obtain the right of pupillary succession tohis tutor; if so, in what order; if not, which pupil obtainsthe right?
Seven Mabanayakas were examined in pursuance of the directionof the Supreme Court- All agree that robing is, ordinarily speaking,essential to pupillary succession. Six of them also hold that ordina-tion without robing is sufficient to qualify for pupillary succession.One Mahanayaka of eminence declares that in order to entitle apupil, who only claims by ordination, to succeed to his ordaining
1 {1913) If N. L. B. 408.* (1910) 14 N. L. B. 400.
* See Appendix to this Volume.
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tutor, it is necessary that the ordination should have taken placewith that intention; another of the witnesses declares that thatintention must have been publicly declared before the chapter. Onestates that a pupil by ordination will only succeed his ordaining tutor,if that ordaining tutor has no other pupils whom he has himselfrobed.
The above appears to be the sum of the local authorities on thesubject. Mr. Bartholomeusz’s contention is based, in the firstplace, upon the obiter dictum of Dias J. in Dhammajoti Vnnansev. Paranatale;1 and, in the second place, upon the judgment ofPereira J. in Dhammajoti v. Sobita.a With regard-to the latter, hecontends that it must in all cases be affirmatively proved that thepupil received instruction from the tutor whom he is to succeed.The observations of Pereira J. were based upon the evidence of theHigh Priest called in the case. It is therefore necessary to see whatthat priest actually said. The material portion of his evidence is asfollows: “ Robing, obedience, and ordination, or any two of them,would be "sufficient to constitute pupillage. Robing alone is not
sufficient. Instruction is another matter….” (Cross-examined):
“ There is a pupil by robing; a pupil by instruction; a pupil byadoption; a pupil by ordination. Ordinarily, the pupil by robing isalso ordained by his tutor priest. He succeeds the tutor. If apriest has no such pupil, any pupil he has instructed and ordainedwould succeed him.”
As this theory of the system of a combination of two out ofthree or four requisites enunciated by the witness in that case hasgreatly affected the subsequent discussion of the matter, it may,perhaps, be advisable to discuss the nature and varieties of pupillagein the Buddhist religious system. The leading authorities on thissubject are the Vindy a, which is accessible to us in the form ofa translation, and the commentary by the great commentator,Buddhaghosa, which is unfortunately not yet so accessible.According to Buddhaghosa, whose commentary would appear to bepractically of the same authority as the Vinaya itself, there arefour classes of pupils, or antevasika .-—
(i.) Pabbajjantevasika.
(ii.) TJpasampadantevasika.
(iii.) Nissay antevasika.
(iv.) Dhammantevaeika.
These may be roughly translated as—
(i.) Pupil by robing.
(ii.) Pupil by ordination.
(iii.) Pupil by “ obedience ” (or dependence).
(iv.) Pupil by instruction.
1918.
Bebtram
C.J.
Saranan-
Icara
Unnanse t>.IndajotiVnnanse
1 (1881)4 S. C. C. 121.
* (1913) 6 N. L. R. 408,
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1918.
Bbbxbax
C.J.
Saranan-
kara
Utmanse v.IndajoliVnnanee
The word antevasika (or pupil) is equivalent to the Sinhalese8i8riya. It occurs in the Vinaya more particularly in connectionwith the . third variety of pupillage; but it appears to be synony-mousi or practically synonymous, with the other word ;ior pupil,dkariya. (See Dr. Rhys Davids’ note on the Mahavagga 1.
(i.) Pabbajjantevasika is a pupil who has been admitted hy robing"to tiie pabbajja (or samanera) ordination by his preceptor, •upagghaya. From Mr. Woodhouse’s pamphlet (page IS) it wouldappear that the candidate must undergo a period of three yearn’,preliminary training under the preceptor. The duly of every youi^gbhikkhu to submit himself to a preceptor is ordained in these ternjtfl“ I prescribe, 0 bhikkhus, an upagghaya ” (Mahavagga 1, 25, 6). Atfirst no- bhikkhu could ordain more than one novice {Mahavagga1, 52); but afterwards this rule was enlarged {Mahavagga, X, 55).“I allow, 0 bhikkhus, a learned, competent bhikkhu. to ordain twonovices, or to ordain as many novices as he is able to administerexhortation and instruction to.”
(ii.) With regard to the second class of pupil, Upasampadante-vasika, this'is a pupil who receives the uposampada ordination fromhis preceptor. No person under twenty years of age can receivethis ordination {Mahavagga 1, 46), and it can only Be' c<aferr|®jrby a full priest of ten years’ standing {Mahavagga. X,"'32.. .1); ‘•f?prescribe, 0 bhikkhus, that only a learned, competent •bhikkhu-,-who has completed ten years, or more than ten years, may conferthe upa8ampada ordination.”. It is essential that there should bepresent at this ordination a priest who holds the position ofpreceptor, or upagghaya, to the person to be ordained; and it musttake place before a chapter of ten priests by a formal act of theorder. The ordinance of the Buddha for this purpose is as follows{Mahavagga 1, 28, 4) :—
“ And you ought, 0 bhikkhus, to confer the upasampada ordina-tion in this way: Let a learned, competent bhikkhu proclaim-thefollwoing natti (resolution) before the Sangha : ‘Let the Sangha,reverend sirs, hear me. This person, N. N., desires to receive ’the'upasampada ordination from the venerable N. N. (t'.e., with thevenerable N. N. as his upagghaya). If the Sangha is ready, "letthe Sangha confer on N. N. the upasampada ordination with N. N.as upagghaya. This is the natti." "
It is nowhere said that the priest who confers the upasampadaordination as upagghaya should be the same priest who admittedthe person ordained to the pabbajja ordination; but it is customaryin the records of ordination to record the name of the robing preceptoras well as that of the ordaining preceptor.
(iii.) The third class of pupil is the Nissayantevasikd. Theprinciples of this institution are described in the Mahavagga 1, 32, 1.After the upasampada ordination, every priest so ordained mustundergo a period of dependence or nissaya. His period was at
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first ten years {Mahavagga 1, 32, 1):“I prescribe, 0 bhikkhus,
that you live ten years in dependence; he who has completed histenth year may give a niaaaya himself." – This was afterwardsreduced to five years {Mahavagga 1, S3, 4) in the oase of “ learned,competent bhikkhus.” Niaaaya is explained by Dr. Bhys Davidsas follows: “ Ni8aaya {i.e., dependence) is the relation betweenakariya and antevaaika. The antevaaika lives niaaaya with regardto the akariya, i.e., dependent on him; the akariya gives hisniaaaya to the antevaaika, i.e., he receives him into his protectionand care/' The rules governing the relations between an ordainedpriest and his preceptor are precisely the same as those governingthe relations between a pupil before ordination and his upagghaya.The upagghaya, however, appears to have a higher relation tothe pupil than the akariya, who has given him a niaaaya. Thus,when the akariya and the upagghaya have come together at thesame place, the dependence-of the pupil upon the akariya ipeo factoceases (Mahavagga 1, 36, 1). It is this state of dependence whichappears to be referred to by the witnesses in several cases underthe name of “ obedience.”
(iv.) The fourth class of pupillage is Dhammantevaaika. I havenot been able to find any special institution of this class of pupillagebut the necessity for learning and instruction is everywhere impliedin the Vinaya, as, for example, in such language as “ Let noignorant, unlearned bhikkhu, 0 bhikkhus, confer the upaaampadaordination ”(Mahavagga 1, 31, 8); and “ Let no. ignorant,
unlearned bhikkhu, 0 bhikkhus, give a niaaaya ”(Mahavagga
35, 2). I understand that there is nothing to prevent a priestchoosing for his instructor a priest other than those who have robedor ordained him, or given Him a niaaaya. Indeed, this fact is visibleto all from the existence of such institutions as the Vidyodaya Collegeand similar institutions in our midst..
All the four classes of pupils are alike pupils under idle Buddhistsacred law, i.e., they rank as pupils of the priests who have robed,ordained, instructed them, or given them a niaaaya. But, forpurposes of the pupillary succession, unless a distinction has beenmade in the instrument of dedication, I understand that the firsttwo forms of pupillage are alone regarded. This is natural, as theseestablish a permanent relationship; whereas the last two imply onlya temporay and transient relationship.
We are now in a position to apply the principles to the localauthorities summarized above. To take the first case of Dhammajotiv. Sobita.1 It is now plain that the witness whose evidence' wasadopted by the Court in that case did not mean to say that itwas essential that the pupil should have received instruction fromthe preceptor whom he claims to succeed. The witness was clearlyreferring to Buddhaghosa’s classification of pupils. By a “ pupil
1918.
Bbbtbak
O.J.
Saranan-
Kara
Vnnanae v.IndofoRUnnanat
1 (J913) 16 N. L. R. 408.
1918.
Bertram
C.J.
Saranan-
kara
Unnanaev.
Indajoti
Unnanse
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by adoption ” he probably means a pupil by niasaya. His viewappears to be that robing alone is not sufficient to qualify a priestfor succession. (Here he appears to be in conflict with certain decidedcases in this Court, but in harmony with the general ecclesiasticalview*) Ordinarily, in the view of this witnessr to entitle a priestto succession, he should be both robed and ordained by his.preceptor, but if he has either not been robed or not ordained byhim, the deficiency in either case may be made good, by showingthat he was the Nissayantevasika or Dhammantevasika of the priestwhom he claims to succeed. This appears to be an individual view,and is not supported by any other evidence that has been laidbefore our Courts.. At any rate, it is not material to the presentcase, because it appears from the evidence, firstly, with regard toSri Sumana, that he was robed “ at the instance of ” Ratnapalaand ordained by Ratnapala, and that in the record pf his ordinationRatnapala appears as one of his robing and one of his ordainingtutors; and secondly, with regard to the ^hird and fourth plaintiffs,that they were ordained by Sri Sumana,. and were “ obedient ” tohim.
With regard to Sri Sumana, the evidence, it is true, is to theeffect that he was not actually robed by Ratnapala, but as “ at hisinstance,” Ratnapala not having completed the ten years necessaryto qualify him for the purpose of conferring an upasampada ordi-nation. Robing by delegation is justified by a very high precedent•n the Vinaya itself, namely, the case of the robing of Prince Rahula,the son of the Buddha himself. It is recorded that he approachedthe Buddha and asked for his inheritence. Then the BlessedOne said to the venerable Sariputta:* Well, Sariputta, confer the
pabbajja ordination on young Rahula/ ” It appears that the wordtranslated ” confer ” is a casual verb, and means more exactlyM cause to confer ” the pabbajja ordination on young Rahula. Andit is explained by Buddhaghosa, in his commentary on the Vinaya,that -Sariputta did not himself confer the ordination, but that itwas conferred by Moggallana at the instance of Sariputta. Rahula,nevertheless, ranks as the pupil of Sariputta.
It might possibly be questioned whether a priest who had notcompleted the ten years necessary to qualify for the conferment ofan ordination is entitled even to ordain him indirectly through themedium of another. We have no ecclesiastical authority onthis point, but even if this were so, I think it is clear from theevidence in the case of Dhammajoti v. Sobita1 that ordination itselfis sufficient to entitle a pupil to succession. It is true that one ofthe witnesses in that case expressed the opinion that the ordinationmust have taken place with that intention, and another that theintention must have been publicly declared before the chapter..But no record is made of any such declaration in the records of
1 (1913) 16 N. L. R. 408.
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ordinations as they are at present kept; and as the other witnessesdid not endorse this opinion, it would probably be best to considerthat any such ordination should be deemed to have taken placewith the required intention, unless the contrary is proved. Itappears to tne, therefore, that there can be no question that SriSumana was the pupil of Batnapala, and that the third and fourthplaintiffs were the pupils of Sumangala for the purposes of pupillarysuccess.
1918.
Bbbtkahc
C.J.
SaranankataUnnanse t>,IndajotiUnnanse
Accepting the position, therefore, that the third and fourthplaintiffs are in the line of pupillary succession from Batnapala,what is it they ask for on the basis of this finding? They demandthat they should be declared entitled, not only to the right ofresidence in the said vihare and to the right of maintenance fromthe revenues derived from the endowments attaohed thereto, butalso that they may be declared entitled jointly with the defendantsto the incumbency; and the District Judge has given a decreein this form. This claim to a “ share in an incumbency (inthe sense in which the word is used in the case) cannot, in myopinion, be sustained. The claim to a “ share ” is raised in itsbaldest form; and the extent to which this theory of a “share”in an incumbency has been carried is shown by the fact that thepriests on both sides of the case have purported to dispose of“ shares ” in this incumbency as though they were dealing withordinary interests in immovable property. Thus, it is pleaded inthe plaint that Batnapala Unnanse by deed dated June 25, 1884,gifted his “ half share ” to his pupil Sri Sumana Unnanse. This deedis on record in the case, and is a bare gift of “ an exact half share ofland, pansala, vihare, plantations, and everything there on out ofViharawatta belonging to Karalliyadda Vihare,” &c., and purportsto declare that “ from this day the produce of the said lands andeverything thereon shall be possessed and enjoyed by the said SriSumana Unnanse.” Similarly, it is stated that the third and fourthplaintiffs, by a deed of November 30, 1915, “ gifted their said halfshare to the first and second plaintiffs, and put and placed themin possession thereof,” though the claim of the first and secondplaintiffs appears not to be insisted on. Again, it is said thatthe first defendant, the actual incumbent in possession, IndajotiUnnanse, by a deed of gift executed in or about the month ofSeptember, 1915, purported to convey to his pupils, the second andthird defendants, “ the entirety of the said Karalliyadda Vihare andits endowments.” This deed is less crude in form than Batnapala’sdeed. It conveys the vihares, pansalas, and endowments to' thethree pupils of Indajothi Unnanse, “to be held- and possessed bythem in common, in order that they may carry out the rites andceremonies of our Buddhists religion and'officiate in the said vihares,and posses the endowments thereof, taking to their own use andbenefits the produce and profits of the said lands for the daily,” &c.;
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1918.
BerthamOJ.
Saranan-lean
TJnnanae v.IndajotiUnnanae
and it authorizes empowers the- “ senior pupil to exercise fullpower end authority over the said temples, vihares, and pansalasand also over my said junior pupils."
Later, in paragraph 8 of the plaint, the conception of a 41 share "it still further developed, and the “ share " is spoken of as a “ halfshare of the vihare and its endowments," it being alleged that theplaintiff and their predecessors in title have been in the undisturbedand uninterrupted possession of the said vihare and its endowmentsfor over ten years by a title adverse to and independant of thedefendant and all others. The plaint contains a schedule enumer-ating the various immovable properties said to be the endowmentsof the vihare.
In the view I take of the subject, as the result of such imperfectstudies I have been able to make, all these claims and transactionsare misconceived, and are expressed in terms contrary to the'fundamental institutions of the Buddhist religion. In regard tomatters of personal property, these Courts have been compelledto accord to Buddhists priests rights which are inconsistent withtheir own ecclesiastical law. We have thus recognized their rightto acquire, dispose of, and transmit property which, according totheir religious law, they are incapable of possessing (see the casescited by Mr. Woodhouse on pages 23 and 24 of his pamphlet);although in the Kandyan Province we still recognize this principleof the Buddhist law to this extent, that we refuse to a Buddhistpriest the ordinary rights of inheritance in intestacy (see Sowers 7and Marshall 337, section 77). But when we are dealing withecclesiastical property, a region in which we are enforcing simplythe ecclesiastical law based upon the original authoritative textsdeveloped by religious customs, we ought not to recognize claims .and transactions which are in their terms or in their nature incon-sistent with the fundamental principles of those texts and those'customs.
Let us, therefore, in the first place, consider the essential natureof a vihare and the rights of the Buddhist clergy in connectiontherewith according to the principles laid down in the Vinaya, andafterwards consider how those principles have been affected by thereligious customs known as pupillary succession.
A vihare, the dedication of which was sanctioned by the Buddhain the Kulavagga 6, 1, 5, is conceived of as being dedicated to thewhole order of the Sangha, present and future, throughout theworld, in all directions, north, .south, east, and west:—
"I have had, Lord, these, Bixty dwelling-places made for thesake of merit, and for the sake of heaven. What' am I to do,Lord, with respect to them?
“ Then, O householder, dedicate these sixty dwelling-places tothe Sangha of the four directions, whether now present or. hereafter to arrive.
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Even so, Lord! said the Setthi of Bajagaha, in assent to theBlessed One, and he dedicated those sixty dwelling-places tothe'use of the Sangha of the four directions, whether presentor-to come.”
.Dr.' Bhys Davids explains that this formula of dedication has Leenconstantly found in rock inscriptions in Ceylon.
Tn the nature of things a vihare is untransferable and unappor- 1tionable. This is laid down in chapter 15 of the 6th Khandaka ofthe Kulavagga. Certain bhikkhus, to avoid -being worried to providesleeping accommodation for travelling bhikkhus who came in fromcountry places, transferred the. sleeping accommodation of theirresidence'to one of their number and used them as belonging to him.The.ruling of the Buddha on this case was as follows:—
These things are untransferable, and are not to be disposedof either by the Sangha, or by a company of two or threebtii&hus {d gana), or by a single individual. And what are the.fivei’ A monastery (ara«ia), or the site for a monastery. Thisis the first untransferable thing that cannot be disposed of bythe’ Sangha, or by a gana, or by an individual. If it be disposedof, such disposal is void; and whosoever has disposed of it isguilty of a thullakkaya (serious transgression). A vihare, or thesite fqr a vihare. . This is the second untransferable thing thatcannot be disposed of by the Sangha, or by a gana, or by anindividual.. If it be disposed of, such disposal is void; andwhosoever has disposed of it is guilty of a thullakkaya
‘Similarly, a vihare is unapportionable (see Kulavagga 6, 16, 2): —
. ” These five things, 0 bhikkhus, are unapportionable, and are.hot to be'diyided- either by the Sangha, or by a gana, or by an.individual, jf divided, the division is void; and whosoever doesso, shall be guilty of a thullakkaya. And what are the five?
A monastery {arama) or the site for a monastery. This is thefirst.–.., … A vihare, or the site for a vihare. This is th°second . . . .
■ There • are Tihmerous passages which illustrate the same principle.Thus, the allotment of permanent lodging places is prohibited{Kulavagga 6, 11, 3); and the allotment of a plurality of. lodging‘places ia-also prohibited {Kulavagga 6, 12, 1). To speak of a “ share ”Igi a vihare.;® thus a contradiction in terms. Every vihare belongsfo. the Whole Sangha to the full extent of the accommodation which^ afio^ls. . ahd. cannot be portioned out in sharies, whetherdivided-ot undivided.
r. Subject, therefore, to the effect of .the principle of pupillarysuccession, the beneficial interest of every vihare and its- endow-ments is in the Sangha as a whole. This principle is not affectedby the Buddhist Temporalities. Ordinance, No. 8 of 1905, whichvests the legal title to temple endowments in a trustee, and commits
IMS.,
BbbtramC. J.
Saranan-
kara
Vnnanm v.' IndajotiUnnanse
( 396 )
1918.
Bbbtbam0. J.
JSaranan-
ka/ra
Unnanse v.IndajotiUnnanse
to hi™ the management and administration of these endowments.The beneficial interest still remains in the persons who are theobject of the original trust. This general principle of the dedicationof every vihare to the Sangha as a whole is afEected by the religiouscustom under which temples have been from time to time dedicatedfor the use of a particular priest and his pupils and the pupils ofthose pupils in perpetual succession. Strictly speaking, the rightof pupillary succession should be proved and determined by theoriginal instrument of dedication; but it is only in exceptionalcases, such as that of the Kelaniya Vihare, that we are in possessionof this original instrument (see Mr. Woodhouse’s pamphlet, footnoteto page 12). But our Courts have, in effect, held that in Ceylonevery vihare is presumed to. be dedicated in pupillary successionunless the contrary is proved (Ratnapala Unnanse v. KewitigalaUnnanse a).
The history of this custom is obscure, and has not yet receivedadequate investigation, but it has been suggested to me by a veryhigh authority that its origin is to be traced to certain passages inthe Vinaya, which sanction “ a gift by determination ” (adissadeti) (or, as it is put in Rhys Davids’ translation, “ a gift to aspecified number ”). The'passages in question occur in the GivaraKhandaka,i.e.t the Robing Khandaka of the Mahavagga, No. VIII.A gift of robes was, strictly speaking, made to the whole order.“No bhikkku had a separate personal ownership over his robes;though nominally given to him for his own use, and really his own,subject to the rules, they were, technically speaking, the propertyof his Sangha ” (Rhys Davids’ Vinaya Texts, vol. 7., p. IS).Modifications of the rule appear to have been developed, andsection 32 of the 8th Khandaka of the Mahavagga enumerates eightmethods in which a gift of robes can be made. The eighth of theseis “ when he gives it to a specified number.”( Of. also VIII., 30, 4-6.)On this passage Buddhaghosa makes the following comment:“ If a householder were to offer, saying ‘ This is for you and yourpupils, ’ it so reaches the Thera and the pupils. ” The Pali textis as follows: “ Sace pana idham tumkaham ca tumhakam anti-vdsikanam ca dammiti enam vadati; therassa ca anteva&ikanam capapunati. ”'
The passage in the text relates to a gift of robes only, 'out Buddha-ghosa’s comment is understood to be of general application, andas embracing a gift of any property capable of being given to theSangha, including, therefore, a vihare. It is clear, however, thatthis special form of dedication is, in the case of a vihare, subjectto the general dedication to the whole Sangha, inasmuch as itis recognized that the "vihare reverts to the Sangha upon thepupillary succession being exhausted. (See Sumana Terunnanse
v. Kandappuhamy2)
1 {1879) 2 S. C. C. 2C.
* {1893) 3 C. L. R. 14.
( 397 )
If I rightly understand the principle, pupillary succession affectsthe matter in two ways: firstly, in giving a special right of residenceand maintenance to the pupils of the original priest; and secondly,in establishing a special office in connection with the vihare—thatof a presiding officer—and in regulating the succession to this office.
It would, perhaps, be more convenient that we should considerthe question of this special office first. It is an office unknown tothe Vinaya. The Vinaya makes provision for the appointment ofa great number of special officers of vihares. Among the specialofficers provided for are those of “ regulator of lodging places-,”“ apportioner of rations,” “ superintendent of building operations,”‘‘ overseer of stores,” " receiver of robes,” and many others (SeeKulavagga 4, 4; 6, 5; 6, 11; and 6, 21.) The ” superintendent ofbuilding operations ” by virtue of his office was entitled to specialaccommodation, but this and the duration of his office was rigidlylimited. There is nothing in the Vinaya which provides for theappointment of a general presiding or superintending officer.Buddhaghosa refers in one passage in the Dhammapadatthakatha,to which my attention has been drawn, to the Mahathera (orchief elder) of a vihare. ‘‘ Bhikkhus who frequent a cemetery for-purposes of meditation must notify the dwelling in the cemetery tothe cemetery keeper, the chief elder of the vihare (Mahathera), andthe officer in charge of the village.” This may possibly be theorigin of the officer referred to in Ceylon as the “ incumbent.”
All the special officers above referred to are officers of the Sanghaitself, appc'nted by a formal resolution (natti), in accordance withthe p (?ec’ ve prescribed for formal acts of the Order, at a meetingof thicalled for the purpose, at which the attendance of four
priests constitutes a quorum (see Mahavaggat 9th Khandaka). Theofficer who in Ceylon decisions and ordinances is referred to as the“ incumbent, ” is an officer of a different nature. The term bywhich he is described is “ adikhari ” (“ a person in authority ”)—a word derived from the Sanskrit word “ adikara,” meaningauthority. Where there are several persons in the line of pupillarysuccession, the adikhari is appointed from among these persons,either by nomination of his predecessor or by selection of thesepersons. This selection, in such cases, is not made by a formal actof the Sangha, as in the case of the officers created by the Vinaya;but it is, nevertheless, the formal choice of the other persons entitledto the succession. By custom the right to succeed is determinedby seniority (though it would appear from the evidence recorded inthe case of Dammaratana Unnanse-v. Sumangdla TJnnanse 1 that theright attaching to seniority is not so unqualified as some of ourdecisions appear to suggest. See Sumana Terunnanse v. Kandappu-hamy *). When, therefore, in such cases, our Courts declare thatany person is entitled to succeed to an “ incumbency, ” what they, in1 (1910) 14 N L. R. 400.* (1893) 3 C. L. R. U.
30
1818.
BebtbauC. J.
SaranankaraUnnarue t>.IndajoHVnnanat
( 898 )
1918.
BbbtramC. J.
Saranan*
kara
Unnanae v.IndajotiUnnanae
effect, .decide is that idle person in question, by virtue of seniority(or such other qualification as the Court may determine to governthe matter), is by custom entitled to be selected for the office by theother priests in the line of pupillary succession.
The office of adikhari is, however, single and indivisible. He is,indeed, primus inter pares, but his rule is monarchical. The officecannot be held jointly, and, consequently, there is no such thing asa " share in an incumbency/* As was said by Pereira J. in Dham-majoti v. 8obitat1 “ the idea of a joint incumbency can hardly beentertained/' An adikhari may, it is true, nominate all the pupilsto succeed him, but they can only succeed one at a time. See theresponse of the priests of the Malwatta College in Dantura JJnnanssv. The Government of Ceylon 2;—
" Should the priest, the original proprietor, declare his bequestcommon to all his five pupils, they will all become entitledthereto, and one of them being elected to the superiority,the other four may participate in the benefits. The saidsuperior being dead, the next in rank 'will succeed to thesuperiority, and along with the rest (of the survivors) willenjoythe benefit andhave the power tomake a gift in
favour of any other person "
I do not find any authority for the statement in Mr. Woodhouse'spamphlet that in such a case there would be a sort of committee ofmanagement (page 80). Similarly, if the adikhari makes no nomi-nation, they would all succeed him, but they would succeed himsingly in rotation.
I am disposed to think that a certain confusion has been
introduced into the subject by the adoption of a somewhat
unfortunate word as the equivalent for the word adikhari; the
term in use for this purpose is the English word “ incumbent." In
onesenseall the resident priests of a vihareunder pupillary
succession may be described as " incumbents," in that they are
entitled to reside at the vihare and to be maintained out of its
/
endowments. The phrase " joint incumbent " appears to havebeen used in some of the previous cases, but this is probably due toa confusion between the right of presidency and the right of main-tenance.That this is so isindicated by the factthat very often
thephrase used is “ chiefincumbent." If weused the word
“ incumbent " as the equivalent of the Sinhalese word adikhari, then,in my opinion, there could no more be a joint incumbency of avihare than there could be a joint incumbency of an English living.
This brings us to the second way in which the right of pupillarysuccession affects the general principle that all vihares are vestedin the Sangha as a whole. It would apppear that priests who arein the line of pupillary succession of a vihare have, by religious
1 (1913) 16 N. L. R. 408.
Vand. App. D. p xli,
( 899 )
custom, a special right to reside at the vihare and to Be maintainedout of its endowments. This special right may be due either to theoriginal dedication, where such dedication left the temple to aparticular priest and his pupils and the pupils of those pupils in-perpetual succession, or it may be due to the fact that each of thesepupils has a spes successionis to the incumbency. I understandthat, as regards other members of the Sangha who do not belongto the pupillary succession of the vihare, this right is not anexclusive right, but a preferential right, accorded, as I say, byreligious custom. It is not a right to a determined share, nor isit transmissible by deed. The question as to the. order in whichpersons belonging to the pupillary succession may be eventuallyentitled to succeed to the incumbency is an extremely obscure one.It has not yet been properly elucidated; I doubt myself whetherit is capable of full elucidation. The question, however, does notarise here; it is sufficient to say that the pupils of an adikhari andthe pupils of those pupils are entitled to maintenance and residenceat the vihare of which he is or was the adikhari.
It is hardly necessary to add that, while on the one hand thegeneral right of the Sangha and the preferential right of thosepriests who are in the pupillary succession of a vihare must belimited by the extent of the revenue of the vihare, the right ofenjoyment of these revenues on the part of any particular priestis strictly limited by the rigid rules of the Vinaya discipline. ABuddhist priest, out of the revenues of property dedicated to pioususes, is by the Buddhist religious law entitled to bare personalmaintenance, and to bare personal maintenance alone. In sayingthis I do not mean to suggest that he is not entitled to use suchrevenues few the purpose of procuring books for study, for travellingexpenses, or for other things incidental to his function as a priest,but only that he is not entitled to use them for personal luxuries,or indulgences, or for the support of members of his family.
Let us now apply these principles to the facts of the present case.Batnapala purported to convey to Sri Sumana his half share, of theincumbency. In the first place, he was not incumbent at all.The first defendant, Indajoti Unnanse, was the incumbent, andBatnapala had nothing but a right of residence and maintenance.The deed cannot be treated as conveying this interest to- SriSumana, as the interest is not a transmissible interest. Moreover,Sri Sumana was entitled to it without any transfer. Similarly, thethird and fourth plaintiffs, the pupils of Sri Sumana, were entitled,like Sri Sumana, to a right of residence and maintenance at thevihare; and this is all they can at present be entitled to. Aspupils of the pupils of Sri Sumana, they may in due course eventuallybe entitled to succeed to the incumbency. "Whether either of themever will, in fact, become so entitled must depend upon the develop-ment of events.
1018.
BertramC. J.
Saranan-
kara
Unnanse v.IndtyoUUnnanse
( 400 )
1918.
Bhrtabm0. J.
Saranan•kata
Unnanse v.IndajotiUnnanse
I would, therefore, amend the decree of the learned DistrictJudge by eliminating the declaration that “ the third and fourthplaintiffs are entitled jointly with the first defendant to theincumbency of Karalliyadda Vihare,” and would declare that thethird and fourth plaintiffs are the pupils of Sri Sumana Unnanse,and that the said Sri Sumana Unnanse was the pupil of EatnapalaUnnanse, who was himself one of the pupils of Pinguwe Unnanse,some time incumbent of the Karalliyadda Vihare; and that the saidthird and fourth plaintiffs are entitled to the right of residence atthe said vihare and of maintenance out of its endowments, togetherwith such right of eventual succession to the incumbency of thesaid vihare as may accrue to them or either of them in* course oflaw. As the appellants have failed on the substantial pointscontested, in spite of this amendment of the decree, I would directthat the costs of the respondents should be borne by the appellants.The order as to costs in the Court below should, in my opinion,stand.
/
De Sampayo J.—
The claim of the first and second plaintiffs on the strength of thedeed of gift granted in their favour by the third and fourth plaintiffswas not pressed at the trial, for the sufficient reason that they arenot in the line of sacerdotal pupils of Eatnapala Unnanse, and thegift is therefore repugnant to the sisyanusisya rule of succession.D. C., Kurunegala, 19,413;1 Agent's Court, Kurunegala, 366; 2Dhammajothi v. Paranatale, 3 Sumangala Unnanse v. Sobita Unnanse. 4The case thus turns upon the rights of the third and fourth plaintiffs,and with regard to them, the questions for determination are (1)whether they are the pupils of Sri Sumana Unnanse, and (2) whetherSri Sumana Unnanse, to whom Eatnapala Unnanse gave a deedof gift, was a pupil of the latter. These deeds take the form of atransfer of the property belonging to the temple, and not of nomi-nation of the grantor’s pupil or pupils as his successor or successors.But no dispute has been raised on that score. Such deeds are notuncommon, as witness the deed of gift put forward by the defendantsthemselves. In most cases the defect is due to want of appreciationof the nature of the transaction or of professional skill on the partof the notary, and I think the deeds pleaded by the plaintiffs maybe taken as being really intended to gift the right of succession. Itis within the power of an incumbent to make such a gift to one ormore of his pupils. Moreover, even if the deeds are considered tobe invalid by reason of their form, the plaintiffs’ action will notnecessarily fail, because, independantly of the deeds, their claimsmay be maintained if the fact of pupillage is established.
1 Qren. Rep. (1874 D. C.) 66
8 Vand. App. D,
8 (188X) 4 S. C. <7. 121.* 5 S.C. C. 255.
( 401 )
What, then, constitutes pupillage? This depends on the lawobserved and practised among the Buddhist priesthood in Ceylon.The original source of that law is undoubtedly the Buddhist scrip-tures; but I doubt whether the law found in these scriptures inregard to such questions as arise in this case is applicable at thepresent day in its pristine rigour. In Sumangala XJnname v. SobitaUnnanse (supra), Bias J., referring to certain expert evidence givenby Buddhist priests, who had quoted from the Pittakes in support of
their opinion, said: “ These Pittakescontain a large body of
rules and regulations with reference to the conduct of the priesthood,succession to ecclesiastical property, and so forth, brut the Buddhistsof Ceylon have not adopted all these rules, and our Courts have onlygiven effect to such rules as have been adopted in this countryand again: “It is a mistake to suppose that all Idle Buddhist lawwhich is to be found in the. three Pittakes is in force in this country.They are of no more force than all the Muhammadan law which isto be found in the Koran.” This view is confirmed by the numberof departures from the strict Buddhist law and the creation of newprecedents. For instance, notwithstanding the rule of absolutepoverty, priests generally hold considerable private property whichis at their own disposal, and on their death descends to their layheirs, Ratnapala Unnanse v. Abdul Gader,1 Mahattayo v. Eumari-hamy.2 This, I think, is the accepted custom, though there arepassages in Marshall's Judgments and Morgan’s Digest whichreproduce the old Buddhist rule. Again, a priest may acquire pro-perty by special gift or bequest, and he may inherit his brother’s orsister’s estate, or if he be the only child, he has a right to his father’slands in preference to collaterals. Kande v. Kiri Naide.3 He wasalso entitled, before the enactment of the Buddhist TemporalitiesOrdinance, to the savings out of the revenue of the temple. SeeRatnapala v. Abdul Coder (supra) and the authorities therein cited.Another instance of modification is found in Sumangala Unnanse v.Sobita Unnanse (supra), where it has been held, notwithstanding theauthority of the Buddhist scriptures to the contrary, that a deed ofgift conferring the incumbency on a pupil may be revoked by thegrantor and a new appointment made. Without referring to allthe examples of this kind, I may mention that the jurisdictionexercised without any question by the Asgiriya and MalwattaColleges in appointing incumbents to Vacant temples where theline of succession has been broken, appears to have no support inthe Buddhist scriptures, which confer that power upon the entirepriesthood. Nor is there any warrant in the books for thedistinction between the Siamese and the Amarapura sects, and forthe incapacity of a priest of one sect to succeed to an incumbencyheld by a priest of the other sect. I wish, however, to make It clearthat these changes should be regarded, not as lapses, but as necessary1 5 S. C. C. 61.*7 S.G. C. 84.2 Ram. (1843-1855) 51.
1918.
Da SampavoJ.
Sartman-
hara
Unnanse v.IndajotiUnnanse
1918.
Db SampaYoJ.
Saranan-
hara
' Unnanse v.IndajotiUnnanse
( 402 )
developments in the course of centuries. Doctrine and beliefare, of course, immutable, but discipline and administration suenaturally subject to modifications. Accordingly, it becomesnecessary, in matters of the latter kind, to look , to actual practiceand custom rather than to the ancient canons. I have been inducedto make these remarks, because there is a tendency among learnedpriests who give expert evidence to content themselves withpassages from the books and their own interpretation of them.To a civil court the question, What is the law governing a religiousbody? is a question of fact to be gathered from evidence, and Ishould value more highly any evidence which learned priests maybe able to give from their experience and knowledge with regard tothe actual custom, or even what may be called the " sense ” of theBuddhist priesthood, though, of course, they are quite entitled, ifthere is no particular usage ' discoverable, to found themselves ontexts from the sacred books. This tendency is not absent from theexpert evidence recorded in D. C. Kandy, 18,982 (Dammaratana v.Sumangala1) and D. C. Matara, 5,605 (Dhammajoti v. Sobita 2), towhich we have been able to refer. In this connection it is interestingto note the evidence of Sri Sumana Gahagoda, the Nayaka Unnanseof Dambulla, who spoke of the right of the High Priest of Asgiriyaor Malwatta to nominate an incumbent to a derelict temple. Forhe said: “ What I have now stated does not appear in any books,but it is the custom handed down for ages. Buddha did not createsisyansusisya paramparawa succession, but the kings did,-who inancient times dedicated temples to the worship of Buddha byroyal sannas.” I think, however, that we may safely adopt suchpropositions as are supported by a consensus of opinion, or areapproved by a majority of the learned and eminent priests whoseevidence is available to us. The evidence in the Kandy case is themost important, because it was given, not in the interests of theparties concerned, but with a view of assisting this Court, which hadformulated certain questions and had sent the record back for thepurpose of answers from learned priests as experts.
It is only necessary to consider so much of the evidence abovereferred to as is relevant to the questions involved in the presentcase. It is the opinion of the witnesses, Heramitigala Dhirananda(member of the Chapter of Malwatta), Sri Dharmarama (HighPriest of Colombo and Chilaw Districts and Principal of the PaliCollege at Peliyagoda), Sri Nanissara (Principal of the VidyodayaCollege, Colombo), and Wataraka Ratnajoti (Anu Nayaka of Mal-watta), that the right of pupillary succession is acquired by the act.of robing or by the act of ordination, that is to say, either robing orpresentation for ordination is sufficient to constitute the priest whois robed or ordained the pupil of the priest who so robes or presents.The witnesses to the contrary are Ratnajoti (the Nayaka Unnanse1 (29X0) 24 N. L. R. 400.8 (2923) 26 N. L. R. 408.
( 403 )
of Mayangana Vihare of Binterma), Saranankara "(High Priest ofTopawewa), and Sri Sumana (High Priest of Dambulla Vihare),according to whom robing is essential to pupillage. I have so farreferred to the evidence in the Kandy case. The expert evidencein the Matara case is that of Bedigama Batnapala, High Priest ofthe Southern Province, who said that pupillage was constituted byrobing or by ordination. He also spoke of pupillage by adoption,and tins is well recognized; but his further statement that pupillagemay also be constituted by instruction receives no support fromany source, and is contradicted by the decision in Dhammajotiv. Paranatale (supra). This brings me to the evidence in the casejust mentioned. There the late Sri Sumangala,' the distinguishedscholar and High Priest of Adam’s Peak, in his evidence statedthat presentation for ordination without robing. was sufficient toconstitute pupillage, but that there must be either robing orpresentation for ordination. The learned Judges who took part inthe decision treated the opinion of the High Priest with respect,though the view at least of Dias J. was that robing was essential.But it was not necessary to decide the point, because in that casethere had been neither robing nor ordination. The conclusion, then,to be drawn from the evidence of the most competent and authori-tative witnesses is that, according to the ecclesiastical law observedamong the Buddhists of Ceylon, presentation for ordination, apartfrom robing, is in itself sufficient to constitute pupillage. It may beadded that these functions may validly be performed by delegation,and it would seem that a priest presented for ordination by a priestother than the robing priest in his own name will.be the pupil ofboth. This probably is an instance of pupillage by adoption spokenof by the High Priest in the Matara case.
1918.
Ds SahpatoJ.
Saranan-
kara
Unnanse v.IndajotiUnnanse
We- are now in a position to consider the facts of this case. Thereis not much difficulty with regard to the status of Sri Sumana.The evidence with which the' learned District Judge was satisfiedis that Sri Sumana was robed by Giddawa Unnanse, but in thepresence and at the request of Batnapala, who explains that this<irrangp.Tnp.nf; was due to the fact that he, having himself beenordained less than ten years before, was not a senior priest. TheLekammitiya, or Hegister of Ordinations of Asgiriya, states that thetutors by whom Sri Sumana was robed and also presented forordination were Welletota, Karalliyadda, and Giddawa. Welletotais another name for Batnapala, and Karalliyadda is Dhammakandaof Karalliyadda Temple. It is not very clear how Karalliyadda’sname came to be associated with those of Welletota and Giddawa.The reason probably was that Sri Sumana, as it appears, residedsometimes with Dhammakanda, and no doubt received instructionfrom him also. It is sufficient to note, however, that Welletotaalias Batnapala was one of the presenters for' ordination. Conse-quently, according to the principles above stated, Sri Sumana
( 404 )
1018,
Db SamfayoJ,
Saranan-
kara
Utmanse v.IndajotiUnnanse
must be considered the pupil of Batnapala. There is one otherfact which should be mentioned, namely, that after the date of thedeed of gift in Sri Sumana's favour Batnapala disrobed himself;but it is agreed on all hands that the disrobement of the tutor doesnot affect the status and rights of the pupil, but that the pupilwould succeed at once, as if the tutor had died.
With regard to the third and fourth plaintiffs, Eatnapala'sevidence is that they were presented for ordination by KaralliyaddaDhammakanda and Sri Sumana. This is borne out by the Lekam-mitiya, which describes Sri Sumana as “ second tutor.” Presenta-tion for ordination being itself sufficient for purposes of pupillage,it follows that the third and fourth plaintiffs have established theirclaim to succeed as the pupils of Sri Sumana, who is now dead.
The present rights of the third and fourth plaintiffs in and to thetemple are not so extensive as they appear to think. For instance,they ask. among other things, for a declaration that they areentitled jointly with the defendants to the incumbency of thetemple. If by ” incumbency ” they mean a right to the presidency,it is clear that their claim is mistaken, because the first defendant,who is the pupil of the original incumbent Pinguwa, and is senioreven to the first defendant's fellow-pupil’ Batnapala, has legal rightto such presidency. I therefore agree to the modification of thedecree proposed by the Chief Justice.
Varied.