009-SLLR-SLLR-1985-V2-SIRINIWASA-THERO-v.-WIMALADHAMMA-THERO.pdf
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Sri Lanka Law Reports
[1985] 2 Sri L. R.
SIRINIVASA THERO
v.
WIMALADHAMMA THERO
COURT OF APPEAL., .
G. P. S. OE siLVA.’j. ANDMOONEMALLE, JC.A. 255/79 (F),
D C. CHILAW 19707.'
MAY 20. .1985.
8uddhist Ecclessiastical Law – Succession to Viharadhipathlship – Oral nomination ofsuccessor.
A Viharadhipeithi may nominate hits successor from among his pupils. No particular formof nomination is necessary;' Neither custom nor the law requires the appointment ornomination by a tutor of hispupil as Viharadhipathi of a temple to be in writing. An oralappointment or nomination is valid.
CA
Sirinivasa Them v. .Wimaladhamma Thero
41
Cases referred.to .:
Sumangata Unnanse v. Dhammaraldota (1908) 11 NLR 360.
Dhammajoti v. Sobita (1913) 16 NLR 408.
|3) Terunanse v. T&runanse (1929).31 NLR 161.
(4) Punnananda Thero v. Wekwitiye Soratha (1950) 51 NLR 372.
|5) Rewata Unnanse v. Ratanajothi Unnanse (1916) 3 CWR 1913.
Dhammasiri Therunnanse v. Sudiranando Therunanse (1937) 39 NLR 430.
Piyatissa Terunnanse v. Saranapala Terunnanse (1938) 40 NLR 262.
18) Saddhananda Tissa Therunnanse v. Gunananda Therunnanse (1938) 11 CLW 42.(9) Dhammavisuddhi Thero v. Dhammadassi Thero (1955) 57 NLR 469
APPEAL from the District Court of Chilaw. •
,f‘.■'• 1
A.
T.
July 12. 1985.
P. S. DE SILVA. J.
The plaintiff brought this action for a declaration that he was theViharadhipathi of Sri Sunandaramaya temple, for ejectment of thedefendant and for damages. At the trial it was admitted that prior tothe dates material to the action, Saranankara Thero was’theViharadhipathi and that he died on 25th July 1,960 leaving two pupils,namely Seelananda Thero and Saranapala Thero. It was furtheradmitted that the succession to the Viharadhipathiship was governedby the rule of succession known as Sisyanu Sisya Paramparawa. Thecase for the plaintiff briefly was that upon the death of SaranankaraThero, his senior pupil, Seelananda Thero, succeeded him asViharadhipathi and that uppn the death of the said Seelananda Theroon 1 st February, 1970, the plaintiff as the senior pupil of SeelanandaThero succeeded him as .Viharadhipathi. On the other hand, thedefendant claimed that upon the death, of Saranankara Thero it wasSaranapala Thero who succeeded him as Viharadhipathi on the basisof an oral appointment by Saranankara Thero in or about July 1960.The defendant-further averred that upon the death of SaranapalaThero on 13th March, 1972, he as the senior pupil of SaranapalaThero succeeded as Viharadhipathi..
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– At the trial several issues were raised, but for present purposes itwould suffice to refer to issue No. 10 which reads thus .
‘Did Saranankara Thero on or about July 1960 orally appoint
Saranapala Thero to the Adipathiship of Sri Sunandaramaya
temple ?'
This issue as well as the other issues were answered in favour of thedefendant and the plaintiff's action was dismissed. The appeal isagainst the dismissal of the action.
The learned District Judge answered issue No. 10 in the affirmative.Mr. A. C. Gooneratne, Q.C., Counsel for the plaintiff-appellant, did notcanvass the finding of the District Judge on this issue. In other words,that there has been an oral appointment in fact as found by the DistrictJudge was not challenged. Indeed Mr. Gooneratne did not challengeany of the findings of the District Judge which were against theplaintiff or which were in favour of the defendant. The one and onlysubmission made by Mr..Gooneratne was that an oral appointment ornomination of a pupil by his tutor to succeed the tutor asViharadhipathi is invalid in law and that such-an appointment ornomination must.necessarily be in a writing. Mr. Gooneratne furthersubmitted that this question has come up for decision for the first timein this appeal since most of the reported decisions deal with anappointment by deed or will. It is right to add that at the trial no issuewas framed in regard to the validity of an oral appointment ornomination of a pupil by a tutor. Since this was a pure question of law,we permitted Mr. Gooneratne to argue the point.
Mr. Gooneratne‘cited several decisions including SumangalaUnnansev. Dhammarakkita {1), Dhammajoti v. Sobita(2), Terunansev. Terunanse ,(3), Punnananda Thero v. Weliwitiye Soratha (4) andsubmitted that in practically all the reported cases the appointmenthas been made by will, or deed or by some writing signed by the tutorand that in not a single reported case was there an appointment byword of mouth. Counsel therefore urged’thanhe absence of a singleinstance of an oral appointment in the reported cases tends to showthat the law requires that the appointment must be in writing and thatan oral appointment is of no force or avail in law.
CASirinivasa Thero v. Wimaiadhamma Thero (G. P. S. De Silva, J.)43
■ Mr. Gooneratne drew our attention to the statement of Pereira, J. inDhammajoti v: Sobita (supra) which reads thus : –
'Now, the general rule of succession to the incumbency of aBuddhist temple is that involved' in the line of succession known asthe Sisyanu Sisya Paramparawa ; but it is clear that it is open to anincumbent to appoint by deed or wilt any particular pupil as hissuccessor."
Mr Gooneratne also cited the following passage from Hayley'sTreatise on the Laws and Customs of the Sinhalese :
"An incumbent with the'right to appoint a successor may do so bydeed or will. It has been held that'a deed for this purpose is in thenature of a testamentary disposition and is revocable" (at page552).
Mr. Gooneratne conceded that in the subsequent cases, this view ofHayley has, to use his own words "been watered down" but hemaintained that the appointment must be in writing though it need notbe in a formal document such as a deed or will. It may be noted that inany event Dr. Hayley has not in that passage examined the questionwhether the appointment could be made only by deed or will.
,, t»
(shall now turn to the other decisions cited by both Mr. Gooneratneand Mr. T. B. DiSsanayake, Counsel for the defendant-respondent. Butbefore I do so, it is right to add that Mr. Dissanayake stated, from theBar that in his experience there were numerous cases in which partieshave relied on oral appintments or nominations of a pupil by his tutorand that our courts have over, the years proceeded on the basis thatsuch oral appointments or nominations were valid in law. I did notunderstand Mr. Gooneratne to state that his experience wasotherwise, but he maintained that in these cases the validity of theappointment was not challenged and that this was the first case inwhich the issue has directly arisen for decision. It would thereforeappear that for a long period of time the original courts in particularhave acted on the basis that such appointments were regular andvalid, since both Mr. Gooneratne and Mr. Dissanayake are counselwho have had considerable experience in this area of the law.
One of the earliest decisions cited- before us is Rewata Unnanse v.Ratanajothi Unnanse (5), a case decidedr-in 1916. This was an actionwhere the plaintiff- claimed a declaration that he was the lawfulincumbent of the temple in suit on the.basis that he was the senior
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[1985] 2 SriL . R.
pupil of tiie last incumbent, succession being governed by the SisyanuSisya Paramparawa rule. The defendant denied the plaintiff's claimand relied inter alia on a ‘deed* executed by the last incumbentappointing him "to the succession'of the incumbency of the Vihara’.Referring to this "deed1! Schneider, A. J, in the course of his judgmentmade the following observations which, no doubt, were obiter:
“It cannot operate as a deed of donation or a conveyance intervivos of title to immovable property because the property is notdefinitely described. It cannot operate as a will because it has noneof the attributes or characteristics of a will. It appears to follow aform commonly used in days anterior to legislation as regardsBuddhist Temporalities when the succession was not only to thestatus, from a purely religious point of view, of the incumbent- butalso to the management and control of the temporalities of thetemple. I regard this instrument as only a pure act of appointment ornomination or selection to the successsion to the incumbency. Inthis view the instrument may be in any form. As at present advisedthe act of appointment may be done even by word of mouth, it neednot be in writing(The emphasis is mine)
The next case cited was Dhammasiri Therunnanse v. SudiranandoTherunnanse (6) decided in 1937. Fernando, A. J. while observing inthe course of his judgment, that 'it would appear that in most of thecases that have come before the court, the appointment has in factbeen by last will or by deed* held that the appointment need not be bya notarial instrument. The court accepted the contention of Mr. N. E.Weerasooriya, Counsel for the plaintiff-respondent that 'there is noprovision of law that requires such appointment to be by a notarialinstrument*. It is also relevant to note that the dicta of Schneider. A. J.in Rewata Unnanse v. Ratanajothi Unnanse (supra) were cited.'
In March 1938, de Kretser, A. J. jn Piyatissa Terunnanse v.Saranapaia Terunnanse (7) considered the question of the form ofnomination or appointment of a pupil. De Kretser. A. J. rejected theview expressed by the District Judge that a tutor could appoint one ofhis pupils to be his successor only by means of a deed or by last will.Said the learned Judge : 'As I understand the law a priest always has
the right to nominate his successor from among his pupils'.
Prior to the time when trustees were appointed under the provisions ofthe BuddhistTemporalities Ordinance the Adikari was vested with thecontrol of the temporalities and it therefore was common for a priest
CASirinivasa Them v. Wimaladhomma Them (G. P. S. De Silva, J j 45
to convey to his successor these temporalities by deed or will, but theappointment to the incumbency rested on the .selection,or nominationand not on the form in which that selection .or nomination wasexpressed. The authorities quoted by the learned Judge do not laydown that the appointment can be made by deed or will only. In thesecases the appointment has been so made.!,. . . TJie cases only insiston npmination'. Indeed this must.be so for,notarial documents wouldhave been unknown.in-the times of the Sinhalese. Kings. The opinionexpressed by Schneider, A.,J. in.Rewata Unnanse v. RatanajothiUnnanse commends itself to me and I have always.understood the lawto.be that a priest may nominate his successor from among his pupils.The more solemn the form in which he nominates the easier will be theproof of the nomination, but there,is no particular form of nomination.'Thus it,is seen that,this case deait with a nomination made by a writingand the principle was clearly laid down that the writing itself.need notbe in any particular form.
In the subsequent case of Saddhananda Tissa Therunnanse v.Gunananda Therunnanse and others. (8) Maartensz, J, followed theruling of de Kretser, A .J. in the case cited above. There .tooMaartensz, j. cited, with approval the dicta of Schneider, A. j. inRewata Unnanse's case (supra) "
Mr. Dissanayake. cited Dhammavisuddhi Thero v. DhammadassiThem (9) where Basnayake, A. C. J. stated :
t t/
"When a temple is built for the first time by devout laymen and
offered to the Sangha, there is no requirement of law or custom that■ the Viharadhipathi should be appointed by a written document".
It is true that this statement refers to the situation of a temple beingbuilt for the first time, but I cannot see any objection in principle to itsextension to a case of an appointment by a Viharadhipathi of a pupil ofhis as his successor.
..Thus it is,seen that there is no decision where it has been held thatamoral appointment is not.valid in.law. Nor.,is there.a single authoritythat lays down that an apppintment can onlyrbe made by,a.writing.,Wehave not been referred to a case which contains even an obiter dictumto,that effect. Nor is there any provision of law which requires such anappointment to' be,,in writing, On the other hand, it is not withoutsignificance that the obiter dicta of Schneider, A. J. were cited in the
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three cases referred to above and not disapproved of. As statedearlier, Mr.'Dissanayake informed us that oral appointments are notuncommon and that parties have acted on that basis over a longperiod of time. This'may well be on the footing that the opinionexpressed by Schneider,. A. J. as far back as 1916 was correct,particularly in the absence of judicial disapproval of it. Nor has therebeen any legislationwhicH has affected that opinion. Needless to say,a court would naturally view an alleged oral appointment withcircumspection and as d matter of prudence, may well look forcorroboration before acting upon it. But this is a matter which affectsonly the weight to be attached to a claim based on an oralappointment. It seems to me that neither custom nor the law requiresthe appointment or nomination by a tutor of his pupil as Viharadhipathiof a temple to be in writing-1 accordingly hold that an oral appointmentor nomination is valid.
In the result, the judgment of the District Judge is affirmed and theappeal is dismissed with costs fixed at.Rs. 315.
MOONEMALLE, J. -1 agree.
'Appeal dismissed.