SILVA v. VIPULASENASABHA et al

140-NLR-NLR-V-24-SILVA-v.-VIPULASENASABHA-et-al.pdf


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Present: Bertram C.J. and De Sampayo J.
i
SILVA v. VIPULASENASABHA et al.
$43—D. C. Colombo, 37,671.
Buddhist Temporalities Ordinance, No. 8 of 1905, s. 41—Must licensebe obtained from, Governor before gift is madef—Interest trans-ferred not in land, but in proceeds of sale—Is it repugnant tosection t
By a deed plaintiff made an offering of a property for the useof the great 8angha, and transferred the possession to the greatBangha of the Bamanna sect for the nse of the great 8angka of thefour quarters of the Ramanna sect, tinder the presidency of thefirst defendant, and appointed four trustees. If any difficultyarose in regard to the holding of the property, the trustees for thetime being were authorised to sell it with the consent of the ChiefTerunnanse, and with the proceeds to improve Sri Lankaramaya,where first defendant resided.
Held, that the deed was not obnoxious to the provisions ofsection 41 of Ordinance No. 8 of 1905'.
Under section 41 a license may be taken out from the Governorin respect of a devise, grant, or conveyance already made.
** The object of the section is not to control gifts of money, butto control the permanent tying up of land. The interest conferredin this case is not in the land, bnt in the proceeds of its •sale.”
The plaint was as follows: —
(4) The plaintiff was induced to execute the deed No. 940 by the falserepresentation of the defendants that the same was a donation of thesaid land, subject to certain reservations to trustees to be .held by tliamperpetually for the benefit of the entire priesthood of the Buddhistreligion, whereas, and in point of fact, the said deed purports to be a
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transfer only of the possession to ft certain sect of the Buddhist priests 1998.known ss the Bsmannft sect, and is not a transfer of the dflmfwfum SHo9 9in perpetuity to trustees for the benefit of the entire Buddhist priest* VipyJmoma-hood.
The said Bamanna sect is& body ofBuddhist priests whohave no
ooiporate existence in law.
The, plaintiff pleads that the said deed No. 940 is liable to beset aside on the grounds and for the reasons following:—
Thatthesaid deed isinconsistent with and repugnant tothe
B&id intention of the plaintiff.
That the said deed is bad in law, inasmuch as it is vague, indefinite,
and inconclusive as to the transfer of the dominium.
(e) That the said deed in effect creates a donation of the said landfor the benefit of a Buddhist temple without the license ofHis Excellency theGovernor, and is thereforevoidas
repugnant to the provisions ofsection41of theBuddhist
Temporalities Ordinance, 1905.
The second, third, and fourth defendants have entered Into posses*sion of the said land, and they and the first defendant refuse to give uppossession of the said land and to cancel the said deed though there*unto requested to the plaintiff’s damage of Bs. 600.
The plaintiff prays—
Thatthesaid deed No.940 be declared nulland void.
(9) Thattheplaintiff be declared to be the ownerof the saidland.
(9a) That the defendantsbe ejectedfromthesaid land, and
the plaintiff be placed in possession thereof.
(3) That the defendants becondemnedjointlyandseverallyto pay
to the plaintiff the said sum of Bs. 500.
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The case went to trial on the following issues-: —
Is the deed No. 940 of October 25, 1913, bad in law because it
purports to be a transfer for the benefit of the Buddhisttemple known as Sri Lankaramaya, and the license of theGovernor for snch transfer has not been obtained in termsof section 41 of the Ordinance No. 8 of 1906 ?
lb the said deed null and void on the ground that it purports to-
be a transfer to the Sangha of the Bamanna sect who are •-body of priests having no corporate existence in law ?
Is the deed in favour of any Buddhist temple ?
If Sri Lankaramaya was not a temple, or not held in sanghika,
is the deed void as a gift for the benefit of an institutionwhich did not at the time exist.
/
The learned District Judge (W. S. de Saram, Esq.) delivered thejollowing judgment: —
Two translations of this deed have been filed; one by the plaintiffmarked B and one by the defendants marked D 1. There is onedifference to which my attention has been drawn by either Bide. In D 1the property is donated to first defendant bb sanghika property for thebenefit of the priests, inolnding the prieBts of the Bamanna sect under theincumbency of the first defendant. According to translation B it isnot clear in the corresponding passage to whom the property is directlydonated, though the persons for whose use it was donated is similarlyindicated. According to plaintiff’s translation B, the gift is accepted
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by first defendant, who accepts itasa Sanghagift forsupervising it
for the benefit of the great Sangha and the sect in accordance with thesaid covenants and terms prescribed for Sanghika property. It issimilarly accepted according to defendants' translation. It has beencontended for the plaintiff that there is no donee directly named inthe deed. In view of the abovefacts I amunable to accept that
contention. It would appearthatthedoneewas the first defendant
who accepted the property as sanghika property for the benefit of theclass designated. Therefore, in my opinion, the gift cannot fail forwant of a donee. It is agiftto first defendant in trust for the
designated class of persons.Thenextpointfor consideration is for
whom he really holds the propertyintrust. Ithas beencontended for
plaintiff that if this is not a gift tothetemple, itis, at allevents, a gift
to a person in trust for the benefit of the temple, and, therefore, it isobnoxious to section 41 of Ordinance No. 8 of 1005. Mr. Hay ley hascontended that the description of the property gifted as sanghikaproperty would indicate the intention on the part of the donor* to giftit to the temple; that sanghika property cannot be held except fora temple, and therefore, this was nothing more nor less than a giftof sanghika property, either to the temple or to somebody in trust forthe temple. Nowhere in thetranslationis itstated that the property
is gifted to the temple or in trust for the temple. On the first olauseof the deed it is recited to be donated for the use of the “ modest, well-conducted, and precept-living great Sangha coming from the fourquarters including the great Sangha of the Bamanna et" ; ” on thenext clause “ the great Sangha of the Bamanna sect for the nse of thegreat Sangha of the four quarters of the Bamanna sect,” and it is providedthat at the termination of the two life interests reserved, the trusteesmentioned in the deed should include such life interest as the propertyof the- religion as mentioned above, and that on the demise of the lifeholders their life interests in the two rooms should become the propertyof the religion for the benefit of the above-mentioned great Sangha ofthe Bamanna sect. If this were really intended as a gift to thetemple, or to a trustee in trust for the temple, the donor must, in orderto avoid the requirements of a license under section 41 of the Ordi-nance, have used these phrases to hide his true object.
Much reliance has been placed by plaintiff on the description of theproperty as sanghika property. I see no reason to suppose that thewords havebeenused as a cloak to the intention to giftthe property
to the temple or for the benefit of the temple.
Therefore the deed has to be interpreted as it stands. I at onetime during the course of the argument was inclined to think that thethree trustees appointed under the deed may have been intended to bethree donees holding the property in trust, but I do not think thatthat would be a correct interpretation of the deed.
Moreover, the three trustees have not accepted the gift, but onlythe trust. Therefore, in my opinion, the only donee is the first defend-ant as dearly indicated in defendants' translation. Therefore it isnot a gift to the temple. It has been contended by' plaintiff that tbeSriLankaramayais a temple. It seems tome,therefore,that, in the
absence of any evidence for the plaintiff, I must accept the evidence forthedefencethatthe Sri Lankaramaya wasnota templeat the time
material to this case. If that be so, then it follows that the propertyis not held in trust for a temple, and that, therefore, the gift is notobnoxious to the Ordinance. Now, a clue may be obtained as to theuseof thewords sanghika by the donor.Forthis wasnot truly a
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temple, and he wished to provide that the gilt should,- as far as possible,be applied like temple property, and used the word aanghika propertyin describing the property donated. It does not follow that by usingthe word sanghika in describing the property that the Sri Dankaxamayawas a temple. The property was clearly not intended to be a personalgift to first defendant, but was intended for the use of the designatedclass of persons, and the Sri Lankaramaya not being a temple, and thedonor desiring to preserve the property as much as possible on thelines of sanghika. property, has, in my opinion, for that reason used theterm sanghika property.
SUoa v•ViviOasana-sahke
The District Judgeafter discussingotherquestions heldas
follows: —
That the deed is not a transfer for the benefit of a Buddhist
temple, andtherefore it ia notbad inlaw because ofthe
absence of a license.
That the deed ia not a transfer to the Sangha of the Bamanna
sect, but to a person in trust for the sect, and that it is notnull and void.
In the negative.
The gift was for the benefit of adefiniteclass and not ofan
institution. Itherefore hold thatthe deed No. 040 of 1013
is a good and valid one. Plaintiff’s action is dismissed, with
costs.
The translation of deed No. 940 filed by plaintiff was as follows:—
No. 040 B.
Snow all Men by thbsb Pbesunts—
Whereas under and by virtue of a deed of conveyance No. 3,610dated November 10, 1905, and attested by Charles Peris of Colombo,Notary Public, I, Wijesunderage Harmanis de Silva Appuhamy of ThirdDivision, Maradana, within the gravets of Colombo, in the Districtof Colombo, Western Province, am seized and possessed of all thatallotment of land with the houses, buildings, and plantations standingthereon, bearing assessment No. 7, situate in Dematagoda on theKolonnawa road, within the gravets aforesaid, containing in extent1 rood .and 26 perches, and of the value of Bs. 10,000, which propertyis. fully described in the schedule below. I, moved by my strongheartfelt faith in the religion of the Buddha, have made offering (ofthe said property) reserving life interest in two rooms only of theaforesaid houses to the two persons indicated, subject to the conditionshereinafter mentioned for the use of the modest, well-conducted, andprecept-living great Sangha coming from the four quarters, including' the great Sangha of the Bamanna sect under the supervision ofMedaduvs Sugata Vinayalankara Xavidaja Vipulasenasabha Sthaviraof the Bamanna sect, residing at the Sri Isankaramaya belonging tothe Bamanna sect, .and situated at Dean’s Passage road, Maradana,.within the gravets aforesaid, so that it (the said gift) may continue toexist so long as the religion of the Buddha last, subject to 8anghikarules.
I have offered and transferred the possession hereafter as sanghikaproperty of this whole land and the houses, save and except the twozooms hereinafter mentioned and the plantations and the wholeincome arising therefrom, to the great Sangha of the Bamanna sect
1968.Aba «.
ipuJasena-
mMo
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lor the use of the great Sangha of the four quarters of the Bamannasect under the supervision of the aforesaid Vipnlasenasabha Swamin*vahanse; upon the demise of the Vipnlasenasabha 8 waminvahansewho has full power for the supervision of this property, it is herebydirected and authorised that a competent Terunnanse to undertakethe supervision should be caused to be elected by the Sangha Sabhaof the Bamanna sect.
In order that the income, ftc., of this property may be taken goodcare of, and that (such) income, to., may in a proper manner and withdue accounts be bestowed on the great Sangha under the supervisionof Vipulasenasabha Swaminvahanse, and that everything that oughtto he done in connection therewith may be done, the following threepersons, namely, Mr. Watutantrige Simon de Allis of Barley road,within the gravets of Colombo; Mr. Totewatte Don Manuelge GabrielSilva of Second Division, Maradana, within the aforesaid gravets;and Mr. Ambepitiya Waduge William Gunawardene of Maligakanda,within the aforesaid gravets, are hereby appointed as trustees.
Should any one of the three trustees aforesaid neglect to take propercare of this property, or conduct himself in an unbecoming manner indisobedience to the Sangha of the Bamanna sect, or fail to performthose duties which ought to be performed in connection therewith,Vipulasenasabha Swaminvahanse is hereby empowered to remove suchtrustee immediately at his discretion and appoint another in his steadby writing; upon the death of any one of these three trustees aforesaid,the Terunnanse haying the controlling authority for the time being isempowered to appoint a successor.
If any difficulty arise in regard to the holding of the property bb itis, the trustees forthetime being arehereby authorized upon awritten
consent of the Chief Terunnane thenholding the (controlling)power,
to put up the property to public auction, and sell it to the highest bidder,and with the proceeds to improve, due accounts being kept, the SriLankaramaya situated in Dean’s passage, Maradana, Colombo, andbelonging to the Bamanna sect for the benefit of the Sangha residing(therein).
In the event oftheproperty beingsold, should the trusteesact as
they like without utilizing it for the purpose of improving the SriLankaramaya keeping accounts (of the same), Sri Lankarama SadhakaSamitiya is hereby authorized to recover the funds by process of law.
Should the saidSriLankakrama Sadhaka Samitiya be thennot in
existence, anyone of the dayakayat is hereby empowered to act asaforesaid.
Out of the property thuB o fife red, life interest in one of the roomsmentioned above is reserved to me, Wijesunderage Harmanis de SilvaAppuhamy, the donor, and life interest in the other to MunssingheArachchige James Appuhamy, who lives in the said premises, and hasrendered assistance to me.
Should the said Munssinghe Arachchige James Appuhamy duringthe time he remains here do any act in opposition to me, Harmanis^Appuhamy, or to the aforesaid Sangha who belong to the religion, orto the trustees, or should he act disobediently and prejudicially, thetrustees mentioned above in this deed are .hereby empowered to removehim at their discretion, and terminate his life interest in the said room,and include it aa the property of the religion as mentioned above.
It is also hereby directed that upon the demise of each one of us,namely, aforesaid Wijesunderage Harmanis de Silva Appuhamy and
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Munaainghe Arachchige James Appubamy, the said two roams alsoshould become the property of the religion for the benefit of the above*mentioned great Sangha of the Ramanna sect.
I declare that I have not heretofore committed any acts wherebyanother is or may become entitled to the property hereby donatedor to any person of it, or to any interest or estate in it, and I covenantfor myself, and my heirs, executors, and administrators to warrantand defend this donation in the case of all disputes that may arise inconnection therewith, and to give any deed or instrument that mayhereafter be required for the purpose of further confirming the premises,I, the aforesaid Vipulasexmsabha Bhikshn, do hereby accept thesangkika gift for supervising it for the benefit of the great Sangha ofour sect in accordance with the said covenants and directions prescribedfor sanghika (property).
We, the trustees aforesaid, do hereby declare that we consent toact in accordance with the trusteeship and directions and covenantsprescribed above, and that we accept (the trusteeship).
Pereira, K. C. (with him H. V. Perera), for the appellant.
Jayawardene, K.G. (with him C. D. Silva), for the respondents.
Goonesehera, for the intervenient, respondent.
hfarch 15, 1922. Bertram C.J.—
This is an action, instituted with reference to a deed of trustdedicating certain property for Buddhist religious purposes,praying that the deed be declared null and void, and that theplaintiff, the original donor, should be declared to be the owner ofthe land so dedicated. The plaintiff is now dead, and the action isbeing carried on by his administrator. The deed of trust referredto was executed on October 25, 1913. The subject of the dedi-cation was a valuable property situated in Dean’s Passage, and saidto be worth Bs. 10,000. The donor recites that “ moved bv mvstrong heartfelt faith in the religion of the Buddha, he had madeoffering of the said property,” subject- to certain reservation ” forthe use of the modest, well-conducted, and precept-living greatSangha coming from the four quarters, including the great Sanghaof the Bamanna sect.” It was further recited that the sect referredto was under the presidency of the first defendant, who residedat an institution described as Sri Lankaramaya belonging to theBamanna sect. The donor proceeded to say that he had offeredand transferred the possession of the property to the great Sanghaof the Bamanna sect for the use of the great Sangha of the fourquarters of the Bamanna sect under the presidency of the firstdefendant. The deed provided for the management of the propertyby the first defendant, and for the election of persons to succeedhim in the management. It further appointed four trustees.Later, the deed proceeds as follows: “ If any difficulty arise inregard to the holding of the property as it is, the trustees for the
1MB.
89a* v.
adbha
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fftftf,time being are hereby authorized upon a written consent of the Chief
_Terunnanse then holding the controlling power, to put up the
O. J.property to public auction and sell it to the highest bidder, and with
— uthe proceeds to improve, due accounts being kept, the Sri Lanka-
rfjTftfcimn'rr'ramaya, situated in Dean’s Passage, Maradana, Colombo, and
belonging to the Bamanna sect for the benefit of the Sittgharesiding therein.’*
Mr. H. J. C. Pereira, who appears for the appellant, maintainsthat this deed is void, on the ground that it is obnoxious to theprovisions of section 41 of the Buddhist Temporalities Ordinance,No. 8 of 1905, inasmuch as in substance and intention it is a giftof property for the use of a temple. Further, he says that, if thatis not the real object of the gift, the gift does contain a provisionwhich is of itself obnoxious to that section. He refers to thecontingent direction that in the event of difficulties arising, thetrustees, upon the assent of the Chief Terunnanse, may sell theproperty and devote the proceeds of the sale for the improvementof the institution above described as Sri Lankaramaya.
I do not think that there is any substance in either of thesecontentions. With regard to the claim that the deeds comewithin section 41 of the Buddhist Temporalities Ordinance, itseems to me that it is a perfectly straightforward honest deed,and that its intention is correctly described by the words of dedi-cation. It is a gift of property for the benefit of the Sangha, andit follows the ordinary formula of such dedications. All gifts ofproperty of this description, according to Buddhist ecclesiasticallaw, are made for the benefit of the Sangha as a whole. It is'byan exception of this principle, which was developed in the courseof time, that such a gift may be made to a specified class of persons.This is precisely what is done here. The dedication is made toa specified class of the Sangha, namely, the Bamanna sect. Theseprinciples are explained in a previous judgment, of my own in thecase of Saranankara Unnanee v. Indajoti Unnanae.1 The dedicationis perfectly general. It puts the property in the hands of thetrustees, who are to act under the direction of the manager, andthey have full discretion to use the property for the benefit of thesect referred to. It is not suggested by the donor that they are. todevote the proceeds of the property so dedicated to any particulartemple. Nor can I see any such direction latent in the words ofthe deed.
Mr. Pereira, however, presses the point that in the latter partof the deed there is a clause which he says gives a temple a contin-gent interest in the property. It is not necessary for us to discusswhether the institution referred to is in fact a temple. Evidencehas been taken on the subject, and the learned Judge has found aaa fact that at the date of the deed this institution could not be
1 (1918) 20 N. L. B. 394 and 390.
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described as a temple. As I have said, it, is not necessary to express 1982.
an opinion on- that point, because I think Mr. Pereira's contention
is fundamentally erroneous. It is said that this clause vests an CJ.
interest in immovable property in this institution. Now, what9
precisely does this clause direct ? It empowers the trustees, if they Vipukuena-
experience difficulties, to take a particular course, viz., with the
consent of the Chief Terunnanse, that is to say, the manager for
the time being, to sell the property and to devote the proceeds to
the institution in question. Mr. Pereira suggests that the power
given to the trustees so to act with this consent gives the trustees
of the institution referred to–said to be a temple—a right of
action, calling upon the Court to order a sale of the property, and
the application of the proceeds of the sale for the benefit of the
institution.
I confess I cannot recognize that the words give any such rightof action to the trustees of the supposed temple. The wordssimply empower the trustees in their discretion, if they experienceany difficulty, and if they get the consent of the Chief Terunnanse,to sell the property, and to devote the proceeds to the institutionreferred to. I fail to see how, within the meaning of the section,this can be described as giving an interest in the property to theinstitution which would be entitled to the proceeds of the sale.
The object of the section is not to control gifts of money, but tocontrol the permanent tying up of land/. The interest conferredin this case is not in the land, but in the proceeds of its sale.
But even if these words could be construed as conferring an interestin land, is that interest nullified by the effect of section 41? Section41 is a re-enactment, with very important modifications of an oldlegislative provision, namely, the Proclamation of September 18, 1819.
That Proclamation referred to the Kandyan Provinces only. Itexpressly recited that no donation or bequest to a temple could bythe existing customary law be made without the previous consentor license of the sovereign authority in those provinces; and itdeclared that it should not be lawful for anyone in those provincesto make a donation or bequest of any land to a- vihare withouthaving first signified through the Resident or the GovernmentAgent his or her desire to make such bequest or donation, andwithout having received a license to give or bequest the property.
That Proclamation was thus in very explicit terms. But in section41 of Ordinance No. 8 of 1905 (which is in precisely the same termsas the corresponding section in the Ordinance No. 3 of 1869), thephraseology of that original enactment seems to me to have beendeliberate^’ and extensively modified. There is no requirementthat the consent shall first be obtained. The words are verygreatly relaxed. The formula now adopted appears to contem-plate the possibility of a gift confirmed by a subsequent license.
The words are, “ unless a license by the Governor under the public
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seal of the Island be obtained,” and, again, " if such license is notBonus obtained.** It seems to me that these words were so relaxed withG&the express intention of allowing in appropriate cases that a license
BUm r, should be taken out in respect of a devise, grant, or conveyanceVipvkuena* already made. In the present case the supposed right of iihe templeonly arises upon a contingency. It does not vest until the eon*tingency occurs. In my opinion the license in such a case neednot be taken out until the event contemplated actually happens.
The point on which I think that the case must be decided is thatit has not been mode out that the deed in question does confer anyinterest, or even vest any contingent interest in the propertyreferred to. But even apart from this, the present- plaintiff has nolocus standi. The action must be brought by the heirs; not bythe donor or administrator representing the donor.
The plaint asks that the deed should be declared null and void,and that the plaintiff should be declared to be the owner (whichI take to mean the beneficial owner) of the said land. I do notthink that that claim has been made out. I would uphold thejudgment of the learned Judge, and dismiss the appeal, withcosts…..
Db Sampayo J.—I agree.
Appeal dismissed