( 216 )
Present: Schneider J. and Dalton J.
SEYADU LEBBE v. LOKU BANDA.
240—D. C. Kandy, 33,727.
Buddhist Temporalities—Lease of temple land by incumbent—No appoint-ment of trustees—Dismissal of trustee—Ordinance No. 8 cf1905t ss. 27 and 34.
The proviso to section 27 of the Buddhist TemporalitiesOrdinanceunder which temple lands maybe demisedbythe
incumbent with the sanction of the District Committee applies onlyto cases where no trustee h&B been appointed to the templeat any time under the Ordinance.
Per Dalton J.—The District Committee has no power to appointa priestas a provisional trustee undersection 34ofthe
LAINTIFF sought to recover from the defendant possessionof a land which belonged to the Udamudune vihare. Plain-
tiff claimed upona lease of the land given tohim for aterm of
threeyears fromSeptember, 1925, by the Adikari Bhikshuofthe
vihare under the provisions of section 27 of the Buddhist tem-poralities. It was contended by the defendant that the lease wasbad as there was a duly appointed trustee of the vihare, and thatthe Adikari Bhikshu had no right to giant a lease. The defendantclaimed to be in possession by virtue of an informal lease enteredinto in 1912 between the then trustee and himself under which hehad planted and improved the land.
The learned District Judge held that at the time the plaintilfobtained the lease there was a duly appointed trustee of the vihareand that the lease in his favour was bad. He dismissed theplaintiff’s action.
N. E. Weerasooriya, for plaintiff, appellant.—The dismissal ofthe plaintiff’s action is based on the finding that the DistrictCommittee’s order of dismissal of the trustee was not properlymade. The defendant has no right to raise an issue challengingthe decision of the District Committee. For under section 16of the Ordinance the only person entitled to question thepropriety of his dismissal is the trustee himself; and a third partyis clearly precluded from initiating an inquiry into the validityof a decision relating to the dismissal of a trustee—a decisionwhich is deemed to be final and conclusive for all purposes. This
( 217 )
being the true legal position—the sole question for consideration 1927*is the validity of the lease granted by the incumbent to the plaintiff. Seyadu LebbcWith the sanction of the Committee an incumbent has powerunder section 27 to demise lands. Besides this, when a trustee isdismissed the Committee has power under section 84 to appointany person to act provisionally as trustee. The incumbent havingexecuted the lease in compliance with the directions of the Com-mittee should be deemed to be a duly appointed provisional trustee.
In these circumstances full legal effect should have been given tothe plaintiff’s formal lease.
Navaratnam, for defendant, respondent.—The procedure followedby the Committee in dismissing the trustee was in defiance ofthe letter and spirit of the Ordinance. The dismissal was effectedwithout the' formulation of a charge or notice to the trusteeconcerned. That, in such circumstances, the defendant is barredfrom questioning the propriety of the dismissal of the trusteeis a proposition which cannot be accepted without demur.
The validity of the lease in favour of the plaintiff, however,can be considered apart from the question of the dismissal ofthe trustee. For it is clear law that once a temple is broughtwithin the operation of the Ordinance an incumbent cannot havecontrol over its temporalities even with the sanction of the DistrictCommittee. The true construction of section 27 of the Ordinanceis to be found in the Gonameruwewa Case,1 where, on the refusalof a trustee to act, the incumbent sought to maintain an actionin respect of temple property, it was held that the incumbenthad no status in the action; and that a duly appointed new trusteealone could maintain the action. It is therefore submitted thattfie incumbent could not execute the lease in question even withthe sanction of the Committee.
Further, the argument that the incumbent was a duly appointedprovisional trustee does not bear examination. The evidence isthat although the incumbent was authorized to execute the lease,he was not appointed to act as provisional trustee. In fact suchan appointment could not be made, as th.e appointment of a priestas a provisional trustee would be an infringement of the Ordinance.
Sections 17 and 8 of the Ordinance set out the qualifications of aperson seeking election as a trustee or aspiring to serve as. a trustee.
Such a candidate must be a Buddhist layman. The conclusionis thus irresistible that the incumbent having no legal estate inthe land could not grant a valid lease thereof.
Weerasooriya, in reply.
1 19 N. L. R. 36.
( 218 )
^ November 24, 1927. Schneider J.—
SeyaduLebbe On February 28, 1928, the defendant was appointed the trusteeBamfo* the Nathegoda vihare and Kiri Banda of the Palipane Uda-mudune vihare for a period of three years from the date of theappointment. The incumbency of both these vihares is usuallyheld by one and the same priest as the succession is in the sameline of priests.
In proceedings taken upon a complaint made in writing by Seela-nanda, the incumbent of both the vihares, the Kandy DistrictCommittee dismissed both the trustees on September 5, 1928.In their evidence in this action instituted in February, 1926, bothtrustees say that they had no notice of the proceedings against,them or of the order dismissing them from office. The Secretaryof the Committee, who has given evidence when called by theplaintiff, says that the Committee has not appointed a provisionaltrustee or taken steps for the election of trustees to take the placeof those the Committee had dismissed, but that on September 7,1925, the Committee sanctioned a “ lease by the incumbent of thePalipane Udamudune vihare of the land called Galkotuwa Illumbe-wella for a period of three years at Bs. 50 per annum ” upon certainconditions. In pursuance of this sanction the incumbent granteda lease to the plaintiff on September 18, 1925, of the land, it beingone of the temporalities belonging to the Palipane vihare. Thedefendant resisted the plaintiff from taking possession under thislease, and by this action the plaintiff sought to enforce hisright of possession under the lease in his favour and to recover
The defendant pleaded that he was entitled to the possessionof the land demised, because in 1912 the then trustee and incumbentgranted him an informal lease of the land in question for twentyyears for the purpose of planting the land, and that he has madeplantations under that lease and improvements to the value ofBs. 1,250. He denied the plaintiff's right to possession and prayedthat if the Court held that the plaintiff was entitled to possessionunder the lease that he (the defendant) was entitled to receive com-pensation for the improvements he had effected, and to a jus retenthnistill payment of such compensation.
In his judgment the District Judge states that it was concededthat .the defendant had effected the improvements pleaded andwas in the position of a bona fid& purchaser and, in consequence,entitled to receive compensation and to jus retentionis till it waspaid. The District Judge states that in those circumstances hewas called upon only to decide whether the plaintiff was entitledto pay or tender the compensation claimed by the defendant andto demand a surrender of the possession to him. At the instance
( 219 )
of the defendant he entertained and tried an issue as to whether *****the order of dismissal was rightly made. The issue was objected 8ckneh>bbto by the plaintiff's counsel. The Judge held on that issue thattiie order of dismissal was not lawfully made. It followed upon Seyadu Lebbethat holding that Kiri Banda was a trustee at the time of thegranting of the lease in favour of the plaintiff and that thereforethat lease was not valid as it was not granted by the trustee whowas in office. For that reason he dismissed the plaintiff’s action.
This appeal by the plaintiff is from that order. It is obviousthat if the lease in favour of the plaintiff be invalid for the reasongiven by the District Judge, or for any other reason, this actionby him must fail. The reason given by the District Judge for hisholding that the dismissal was not lawful is that no specific chargeswere formulated after evidence had been recorded, and the trusteeallowed an opportunity of defending himself as required by section16 of the Buddhist Temporalities Ordinance (No. 8 of 1905).
The evidence regarding the proceedings which resulted in thedismissal of the trustees is the following: —The incumbent ofthe two vihares complained in writing to the Secretary of theDistrict Committee that the trustees were not paying him hisexpenses and asked that an inquiry should be held. The Secretarythereupon sent a notice in writing to the. trustees informing themof the complaint having been made by the incumbent and biddingthem appear before the Committee on a day and hour named inthe notice with their books of accounts showing the income andexpenditure of the vihares, and also calling upon them for anexplanation of their failure to submit to the District Court accountsonce in six months as required by law. The extract from theminutes is to the effect that on the day fixed for their appearancethe trustees were in default of appearance, the notice to appearhaving been served, and that the complaint was inquired intoex parte and the trustees removed from office. The Secretary ofthe Committee gave evidence in this case and stated that no chargeswere framed after the evidence had been recorded. If it hadbeen necessary for me to express an opinion whether there hadbeen a substantial compliance with the requirements of section 16in this case I would have held in the affirmative. A substantialcompliance with those requirements is sufficient to sustain anorder of dismissal. The letter of complaint by the incumbent tothe Secretary might be regarded as “ recorded evidence " showingthat the trustees had been guilty of gross negligence or misconduct,and the Secretary’s notice to the trustees might be regarded ascalling upon the trustees to answer to formulated charges. Thenotice distinctly specifies what the charges are-against the trustees.
But for the reasons which I shall presently state, it is not necessaryto consider whether the requirements of the proviso in section 16
( 220 )
1927.(3) have been complied with. I regard that proviso as intended.
Schneider entirely for the protection and benefit of a trustee, and I think theJ*Legislature intended that it is only a trustee who should have the
Seyadu Lebbe right to bring before a Court of Law the validity of his dismissal. To1 Bandaa different view might result in startling situations. A trustee
might accept his dismissal and yet it would be open to a thirdparty to impeach the validity of the dismissal for some incidentalpurpose. The Ordinance No. 8 of 1905 repealed three previousOrdinances dealing with Buddhist temporalities and was itselfamended by the Ordinance No. 27 of 1912. The preamble to thelatter Ordinance says that doubts had arisen as to the true inter-pretation of the Ordinance of 1905, and that it had become expedientalso to amend that Ordinance. Its provisions distinctly indicatethat mistakes had been committed in the administration of theprevious Ordinances, and it was sought to validate acts which mighthave been regarded as invalid. The earlier Ordinances containthe provision which is to be found in the present Ordinance thatthe decision of the Commissioner or the District Committee inregard to the dismissal of a trustee shall be final and conclusive,and instances of grave injustice must have been brought to lightin regard to such dismissals because the Ordinance No. 27 of 1912contains an express provision granting jurisdiction to Courts, inwhich actions were pending at the commencement of the Ordinance,by trustees with respect to their dismissal or suspension, “ toinquire into the justice, equity, and reasonableness of the dismissalor suspension notwithstanding anything contained in the OrdinanceNo. 8 of 1905." There is also a proviso in that Ordinance that" except in the case of pending actions, nothing in this sectionshall be deemed to affect the finality and conclusiveness of anydecision of a District Committeeunder section 16 ofthe principal
Ordinance."It is fairly obviousthatthe meaning ofthe provision
in section 16 (3) is that a Court has no jurisdiction to inquire intothe validity of a decision of a Commissioner, or of a DistrictCommittee,regarding the dismissalof a trusteeprovided the
trustee had been given an opportunity of meeting specific charges,and that the only question competent for a Court to try would bewhether the proviso had been complied with or not. In one ofthe provisos in section 2 of Ordinance No. 27 of 1912 it is enacted" that in the event of the Court ordering the reinstatement ofany dismissed trustee, nothing in any such order shall be deemedto affect the validity of any act, otherwise valid, done by anyperson discharging or purporting to discharge the duties of thetrusteeshipin question priortosuch reinstatement." That
proviso undoubtedly applies to the pending actions referred to inthat section, but it would also appear that it merely enacts aprinciple applicable to other cases of dismissal of trustees. Between
( 221 )
the date of the dismissal of a trustee and the final decision of an MM*
action in which he challenges the validity of his dismissal there Schnbxdbr
must elapse an appreciable period of time, and it is not to be con-
ceived that during such period the office of trustee is to remain SeyaduLMe
vacant and the duties of the office to remain suspended. It appears
to me that a reasonable view to take of such a situation is that
the order of dismissal stands effective until it is properly set aside,
and therefore acts done by a trustee who takes the place of the
dismissed trustee or by some person under the provisions of section
34 of the Ordinance before the reinstatement of the dismissed
trustee must be regarded as valid. For these reasons I think
that the District Judge had no jurisdiction in this case to inquire
into the validity* of the dismissal of the Udamudune vihare trustee
at the instance of the defendant, and that it was only that trustee
who had the right to question the validity of that dismissal. The
order dismissing him has not been challenged or set aside, and I
would regard that order as having been effective from the day it
was made, namely, September 5, 1925. Accordingly, at the date
of the granting of the lease in favour of the plaintiff there was no
trustee functioning. If the Committee had made “ provisional
arrangements for the performance of the duties of the office pending
the election of a successor/' and the lease in favour of the'plaintiff
had been granted under arrangements so made it would have
been a good lease by virtue of the provisions of section 34, but we
have the direct evidence of the Secretary that no such provisional
arrangements had been made. It follows that the incumbent,
in granting the lease in favour of the plaintiff, was not acting in
pursuance of powers derived under the provisions of section 84.
The District Committee purported to act under the provisions ofsection 27, which contains a proviso that where no trustees havebeen appointed the incumbent may demise lands belonging to thetemple with the sanction in writing of the District Committee.
That proviso does not apply to the present case, and the DistrictCommittee appear to have been wrong in considering that it hadany application. That proviso refers to those cases where notrustee had been appointed at any time under the provisions ofthe Ordinance.
I must, therefore, hold that the lease in favour of the plaintiffwas invalid because the District Committee had no power to sanctionthat lease. I would affirm the judgment of the District Judgeand dismiss the appeal, with costs.
The plaintiff sought to recover from the' defendant possessionof a land which belongs to the Udamudune vihare. Defendantclaims to have been in possession of the land since 1912 on an
( 222 )
Seyadu L'ebbev. LoknBanda
informal agreement for a period of twenty years entered intobetween him and the then trustee. At the end of the trial thelearned Judge states it was no longer contended by the plaintiffthat the defendant was not a bona fide possessor and that he wasentitled to compensation for improvements. Plaintiff's claimwas based upon a lease of the land to him for a term of three yearsfrom September 18, 1925. This lease was entered into betweenhim and Seelananda Unnanse of Udamudune vihare, AdikariBhikshu of the vihare, who is described therein as the lessor.The lease sets out that sanction thereto had been given by thePresident of the District Committee, Kandy, under the provisionsof section 27 of the Buddhist Temporalities Ordinance, 1905. Itwas pleaded for the defendant that that lease was bad, inasmuchas there was a duly appointed trustee of the vihare, and that theAdikari Bhikshu had no right to execute the deed.
The only issues it is necessary to refer to, for the purposes ofthis appeal, are two: —
10. If a trustee had been duly elected at any time under theOrdinance in respect of the temporalities of this vihare,had the Adikari Bhikshu the right to give such a leaseeven with the consent of the Committee ?
14. At the date of the execution of the lease had the trusteeAttanillegedera Kiri Banda been legally deprived of hisauthority as trustee ?
The latter issue was framed after some evidence had been led,and was objected to by plaintiff's counsel as being irrelevant.The learned Judge, however, dismissed the objection holding thatthis issue went to the root of the whole matter, heard evidenceupon it. and found that the alleged dismissal of the trustee KiriBanda was entirely irregular and invalid, and that at the date ofthe execution of the lease in 1925 the trustee was still in officeand alpne had the power to grant a lease. He accordingly dis-missed plaintiff's claim, from which dismissal plaintiff nowappeals.
With respect to issue 10, it is clear from the lease PI that thelessor purported to act on the sanction of the District Committeegiven under section 27 of the Ordinance. The section, however,only provides for that sanction to be given in cases in which notrustees had ever been appointed under the Ordinance. It isadmitted here on both sides that trustees had been appointed ^and therefore section 27 has no application on the facts. TheCommittee do not appear to have understood their powers, for itcannot be doubted that, having regard to the terms of PI, theywere relying on section 27. It is urged for the appellant that
( 223 )
they were really using the powers given them by section 84.J
Assuming that the dismissal of the trustee Kiri Banda on. September Damon J.
5 was in order, it was the duty of the Committee to see that another Seyadu Lebbe
trustee was “forthwith elected" in his place. Taking the
Ordinance as a whole; nothing is more clear than the intention
that, except in certain specific cases, there shall be a trustee or
trustees in whom the property is to vest, and upon whom are to
fall the numerous duties and powers set out. It was also their
duty to make provisional arrangements for the performance of
the duties of the office, pending the election, by provisionally
appointing someone to apt as trustee. They neither appointed
a provisional trustee to act, nor have they at any time proceeded
to hold any election of a fresh trustee or trustees in place of the
one they say they have dismissed. I am unable to agree that the
sanction given to the Adikari Bhikshu was ever intended to be or
is in any way an exercise of the powers given by section 34. Even
if it were so, the Committee is prohibited from appointing anyone
to serve provisionally as a trustee who has not the qualifications
set out in section 8 of the Ordinance. One of the first essentials
is that he must be a layman, and not a priest. I am of opinion
that the lease upon which plaintiff bases his case is bad, inasmuch
as the lessor had no right to give a lease. Issue 10, being answered
in favour of the defendant, decides the case.
The learned Judge has preferred to decide the action on issue14. That raises a more difficult question as to the interpretationof section 16 (3) of the Trustee Ordinance. I am in entire agree-ment with the learned Judge’s remarks as to the conduct of theSecretary of the District Committee in bringing about the allegeddismissal of the trustee, as disclosed by the evidence, assumingthat it is open to a third party as the defendant to question thatdismissal as he has done in these proceedings. It was urged forthe appellant that that dismissal was final and conclusive, andthat it was open to the trustee or to the District Committee aloneto question it under the proviso to section 16 (3). Here the trusteehas not questioned his dismissal in any proceedings legal or other-wise, although there may be special reasons for that in this case,inasmuch as his three years of service expired early in 1926 andnot long after the time at which he was dismissed. There is evidencealso to show that he performed the duties of trustee to the end ofhis term of service and even beyond that period. I have greatdifficulty in limiting the application of section 16, as Mr. Weera-sooriya argues it should be limited, by reference to section 30a.
That the usual person to question his dismissal, if anyone questionsit, would be a trustee, one can well understand. That a District
( 224 )
1927.Committee would question its own act, however, seems most
Dalton J,improbable. That no other person is entitled to do so, as at present
advised, I should have considerable difficulty in holding. However,
T^Lohu 6ft ft n°t now necessary, in view of the answer to issue 10f to come
Bandato a definite conclusion on this point. For the reasons given by
me when dealing with that issue, the judgment appealed frommust be affirmed, and this appeal be dismissed with costs.
SEYADU LEBBE v. LOKU BANDA