PANNALOKA THERO AND OTHERS
COURT OF APPEAL.
G. P. S. DE SILVA. J. (President. C/A) AND GOONEWARDENA. J.
C.A. 207/76 (F) SC.
D C. KALUTARANo. 1886/L.
NOVEMBER 17, 18. 19 AND 21. 1986.
Buddhist Ecclesiastical Law-Succession-Validity of oral nomination ofsuccessor-Contumacious conduct.
Although an oral nomination of a successor is valid yet the court must look forcorroborative evidence as a counsel of prudence.
A nomination, like any other declaration for which a legal effect is contended must be inclear and intelligible terms so that such terms are capable of being examined for theeffect claimed. The testimony available must be as clear and as precise as if they werecontained in a written document so that they could be examined to ascertain theintention of the author, else the Court would virtually be abdicating its function of beingthe ultimate interpreter. Construction is always a matter of law and for the Court.
A mere statement that there was a nomination far from meets the requirements of thecase.
The conduct of the 1 st to 4th defendants in the circumstances of the case was of acontumacious nature. Their very act of challenging the plaintiff’s title amounts tocontumacious conduct and they are therefore liable to be ejected from the temple.
Cases referred to:
Saranankara Unnanse v. Indajoti Unnanse-(1918) 20 NLR 385.
Dhammadaja Thero v. Wimalajothi Thero-(1977) 79 NLR 145.
Sobitha Unnanse v. Ra tnapala Unnanse -(1861) Beven and Siebels Reports 32.
Pemananda Thero v. Thomas Perera-(1955) 56 NLR 413.
Panditha Watugedera Amaraseeha Thero v. Tittagalle Sasanatilake Thero-(1957)59 NLR 289.
Waharaka alias Moratota Sobitha Thero v. Amunugama Ratnapala Thero-S.C. No.62/79-S.C. Minutes of 6.4.1981
Siriniwasa Thero v. Wimaladharma Thero- 2 S.L.R. 40.
Dhammananda Thero v. Saddananda Thero — (1977) 79(1) N.L.R. 289.
APPEAL from judgment of the District Court of Kalutara.
Dr. H. W. Jeyewardene, Q.C. with L. C. Seneviratne. P.C.. Miss T. Keenawinne andK. Wattage for plaintiff-appellant.
T. B. Dissanayake. P.C. with Raja Bandaranayake, U. C. D. Ratnayake and HiltonSeneviratne for defendant-respondents.
Cur. adv. vult.
January 29. 1987.
The claim in this action is to the Viharadhipathiship of a temple calledDuwe Deeparamaya situated in the Kalutara district.
The following facts emerge. One Kalutara Ratnapala Theroadmittedly was prior to times material the Viharadhipathy of thistemple and of two others in the paramparawa namely Anandaramayaand Dharmaramaya. Upon his death, in accordance with theapplicable mode, the sisyanu sisya paramparawa, his senior pupilMahagoda Sumanatissa Thero succeeded to the Viharadhipathyship ofall three temples. Mahagoda Sumanatissa Thero had two pupilsWataddara Somaratne the original plaintiff since deceased, admittedlythe senior of them, and Benthara Saddhatissa Thero. The templebeing exempt from the operation of section 4(1) of the BuddhistTemporalities Ordinance of 1931 but not exempt from the operationof the entire Ordinance and therefore governed by section 4(2), withthe coming into operation of such Ordinance the management and thetitle to the property of the temple became vested in the Controlling ,Viharadhipathy, Mahagoda Sumanatissa Thero.
The case of the plaintiff was that upon the death of MahagodaSumanatissa Thero in 1953 he as senior pupil succeeded him asControlling Viharadhipathy in terms of the applicable rule of PupillarySuccession. He contended that his co-pupil Benthara SaddhatissaThero was permitted to remain in the temple till his death in May 1969after which of his six pupils (i.e. the 1st to 6th defendants) the 1st to4th defendants denied and disputed his right as such Viharadhipathyto control and manage the temple and its temporalities, thus beingguilty of contumacious conduct. The plaintiff therefore asked that asControlling Viharadhipathy he be declared entitled to the custody and
management of the temple, for an order of ejectment of the 1 st to 4thdefendants and for damages. Upon his plaint the plaintiff in additionsought certain other reliefs in particular that some properties which
Benthara Saddhatissa Thero had allegedly acquired during his lifetimeconstituted a part of the temporalities of this temple and thatAnandaramaya constituted an appurtenant temple and formed part ofthe temporalities of Duwe Deeparamaya, but these were whittledaway by the District Judge in the course of the trial and need nottherefore concern us here.
The position of the defendants in the main was that BentharaSaddhatissa Thero had in the year 1929 been orally nominated andappointed as Controlling Viharadhipathy of the temple by MahagodaSumanatissa Thero and' that he therefore succeeded the latter in1953. They contended that Benthara Saddhatissa Thero died on17.5.1969 leaving a Last Will which was duly proved and in terms,thereof that the 1 st defendant is since such death the lawfulViharadhipathy of this temple and of Anandaramaya.
The principal question before the District Judge was as to thevalidity and efficacy of the alleged oral nomination of 1929 which hedecided in favour of the defendant and dismissed the plaintiffs action.Hence this appeal.
The case of the defendant-respondents as argued before us is notthat the nomination of Benthara Saddhatissa Thero which theyclaimed took place in 1929 had immediate effect (a position nottenable in law) but that such nomination became effective only uponthe death of his tutor Mahagoda Sumanatissa Thero in 1953. It mustbe pointed out here that according to the documents 6D4 and 6D5declarations made in March 1932 as required by section 41 of theBuddhist Temporalities Ordinance of 1931 by Mahagoda• Sumanatissa Thero and Benthara Saddhatissa Thero respectively,whereas the permanent residence of both are given as DuweDeeparamaya, the temple in question, the residence at the time ofdeclaration given by the latter is this sam'e temple but that given by theformer is Anandaramaya. This tends to show that MahagodaSumanatissa Thero was at that time not in residence at the DuweDeeparamaya temple, but in the Anandaramaya temple also belongingto this paramparawa. It would appear then that MahagodaSumanatissa Thero considered Duwe Deeparamaya as his place of
permanent residence, and though living at Anandaramaya in 1932,according to the case presented moved into Dharmaramaya where hefunctioned as Viharadhipathy till his death. Two questions arise then,firstly in what capacity did Benthara Saddhatissa Thero figure in theDuwe Deeparamaya temple and having regard to what I have alreadysaid secondly, whether anything took place in 1953 at SumanatissaThero's death which brought about a change in the capacity ofSaddhatissa Thero's residence. With respect to the first question, if asis the case of the defendants the nomination claimed did not becomeeffective till Mahagoda Sumanatissa Thero's death, necessarily up tothat time he (Sumanatissa Thero) was the lawful Viharadhipathy andSaddhatissa Thero was not, it not being possible for them to have heldthat office jointly (Saranankara Unnanse v. Indajoti Unnanse (1). Whatthen was the character of Saddhatissa Thero's residence up to thetime of Sumanatissa Thero's death? The evidence, documentary andotherwise, suggests that he had been performing all the functions ofViharadhipathy and was treated as such by others, both members ofthe public and members of the priesthood. But the question remainswhat did that make him. The answer in my view will form a guideline tothe correct evaluation of much of the evidence in the case.
In Dhammadaja Thero v. Wimalajothi Thero (2) upon an examinationof the judgment of Gunasekera, J. (at page 197) one finds that as farback as 1861 the distinction between de facto and de jure withrespect to trustees, seems to have been recognised. (SobithaUnnanse v. Ratnapala Unnanse (3)). A similar distinction with respectto incumbent is referred to by Gunasekera, J. (at page 188) in acitation from Woodhouse – Pupillary Succession as follows:
"A priest is entitled to be declared an incumbent de facto of aVihare, provided that his right thereto is superior, to the party orparties litigating with him and that the incumbent de jure does notintervene or otherwise assert his title to such incumbency."
Although these statements were with reference to a time prior tothe Buddhist Temporalities Ordinance of 1931 when the temporalitieswere vested in lay trustees, one finds that subsequent cases showthat this distinction has been recognised up to present times. Asexamples we find the cases of Pemananda Thero v. Thomas Perera(4) and Panditha Watugedera Amaraseeha Thero v. TittagalleSasanatilake Thero (5). Indeed in Pemananda Thero v. Thomas Perera(supra) (4) Sansoni, J. suggested (at page 416) as a probable
rationale for the change brought about by the Ordinance of 1931 inthe definition of 'Viharadhipathy' to the effect that he is the principalbhikku "whether resident or not", that "a priest can be an incumbent ofmore than one temple", a situation of relevance to the case before us.
It is possible then without much exertion to conclude upon theevidence that that was what Benthara Saddhatissa Thero was, a defacto Viharadhipathy of this temple while the de jure Viharadhipathy,Mahagoda Sumanatissa Thero was living and officiating asViharadhipathy at Dhammaramaya temple and if one keeps this inmind it becomes in my view unnecessary to deal with the aspect of theevidence pertaining to the period between the alleged nomination in1929 and the time of Saddhatissa Thero's death in 1953, all of whichbecomes compatible with this position. The evidence does not disclosethat anything took place upon Sumanatissa Thero's death in 1953other than the fact that his tenure of Viharadhipathyship terminatedwith such death, nor is such claim made. The pivot on which the caseof the defendants was made to rest is the nomination which they .claimed took place in 1929 regarding which if they fail, their case toomust necessarily fail. Since in the year 1929 what was in force wasthe Buddhist Temporalities Ordinance No. 8 of 1905, if in factSumanatissa Thero made a nomination as claimed, such nominationwould have been with respect to the position obtaining under suchOrdinance and his intention would then have been that SaddhatissaThero was to have the rights and privileges he himself was thenenjoying under that Ordinance. It would therefore be useful to refer tocertain aspects of the position under such earlier Ordinance and thechanges brought about by the Ordinance of 1931. Under the.Ordinance of 1905 by virtue of section 20, all property of temples wasvested in lay trustees of such temples to be held and used inaccordance with the provisions of that section. The presiding officer ofa temple (as the expression was sometimes used) was called an'incumbent' which term was defined in section 2 to mean the chiefresident priest of the temple. Samarakoon, C.J. in the case ofWaharaka alias Moratota Sobitha Thero v. Amunugama RatnapalaThero (6) S.C. No. 62/79 S.C. Minutes of 6.4.1981 a decision of aBench of 5 Judges of the Supreme Court, stated that this definitionwas wide enough to include both the Viharadhipathy if he was residentin the temple and the chief resident priest officiating on his behalf (if hewas not) the latter being known as Adhikari. The Ordinance of 1931brought about a change in the nomenclature of the presiding officerwho was thereafter called the 'Viharadhipathy' and defined to mean
(by section 2) the principal Bhikku of a temple whether resident or not.Samarakoon, C.J. in the same case said with respect to suchfunctionary that he carried with him all the powers accruing to thatoffice and that the chief resident monk (Adhikari) was in fact merely anagent of the Viharadhipathy resident elsewhere. He pointed out thatby section 20 of that Ordinance title to all temple property was vestedin the Viharadhipathy or trustees appointed by such Viharadhipathy.
Temples subject to this Ordinance are governed by section 4(1) or -section 4(2). If governed by section 4(2) the management of the‘property is vested in the Viharadhipathy who then is termed the'Controlling Viharadhipathy'. If governed by section 4(1) suchmanagement is vested in the trustee who is nominated by theViharadhipathy (section 10(1)) who had the power to nominatehimself (section 11 (1)). In the latter event where a Viharadhipathy of atemple subject to the provisions of section 4(1) nominates himself astrustee in my view he holds both offices of Viharadhipathy and Trusteerather than as has sometimes been suggested the office of theControlling Viharadhipathy (which can exist only in respect of templesgoverned by section 4(2)).
The legal positions before and after the 1931 Ordinance are set outto focus attention on the aspect that at the time of the allegednomination in 1929 the change brought about by such Ordinancecould not have been in the contemplation of Sumanatissa Thero. If infact such nomination took place in 1929 as claimed, it seems to me inthe highest degree probable that Sumanatissa Thero particularlyhaving regard to the important changes brought about by thelegislation of 1931 would have reiterated what he did in 1929.Instead, the evidence suggests a total silence by him up to the time ofhis death about 25 years later, a silence I find difficult to understandexcept upon a hypothesis that no nomination as claimed in fact tookplace in 1929.
Dr. Jayewardene for the appellant suggested at the hearing thatthere should be a rethinking on the question whether oral nominationsof the kind claimed, having regard to the development and presentstate of the law, are adequate to achieve the desired object whenexamined against the provisions of the Prevention of FraudsOrdinance. He contended that any such nomination when it becomeseffective involved a transfer of immovable property and thus nothingshort of a notarially attested document would suffice.
As I have pointed out already the nomination in question is said tohave taken place at a time when the old Ordinance of 1905 was inoperation and the temple property was vested in lay trustees. One cansee then that this contention need not be examined although if suchcontention be sound an obvious question arises whether even if therewas a nomination in 1929 as claimed, subsequent legislation in 1931(whereby the temporalities of the temple became vested in theViharadhipathy Sumanatissa Thero) had any and if so what effect onsuch nomination. However for reasons which will presently becomeclear I do not propose to go into this question here.
In the case of Siriniwasa Thero v. Wimaladharma Thero (7) G. P. S.de Silva, J. took the view that an oral nomination of the kind claimedhere is valid in law. I will now proceed to consider whether ascontended by Mr. Dissanayake for the respondents the evidence issufficient to support such a finding or whether on the contrary ascontended by Dr. Jayewardene for the appellant the inference drawnby the trial judge from the evidence available to him that there was avalid nomination was erroneous and showed clearly that hemisdirected himself. It would do well here to keep in mind the cautionsuggested by G. P. S. de Silva, J. when he said (at page 46):
"Needless to say, a court would naturally view an alleged oralappointment with circumspection and as a matter of prudence maywell look for corroboration before acting upon it".
The principal evidence relied on to establish such a nomination is thatof witness Kalamulle Sugathadeera Thero. His evidence was inessence a bare statement that at a foundation stone laying ceremonywhich in his recollection took place around 1929 MahagodaSumanatissa Thero made this nomination in the hearing of the personsassembled including himself. Apart from this bald statement I seenothing in the evidence in elaboration thereof and I find myself hardput to accept that this is the kind of evidence that G. P. S. de Silva, J.had in mind as being sufficient to establish such oral nomination. Ascan be seen from what I have just stated, even with respect to the yearin which this nomination is said to have been made the evidence isvague and the witnesses unsure and it is important to note that hisevidence suggested that such nomination was with respect to DuweDeeparamaya temple only and did not include Anandaramaya.Mr. Dissanayake contended that it would be unrealistic to expect thewitness after so many years to recollect the terms in which such
nomination was made but if that be so, to my mind it is equally so toexpect that evidence such as this would if properly examined bethought adequate to deflect the succession away from the senior pupilso as to disturb the normal rule. A nomination, like any otherdeclaration for which a legal effect is contended must be in clear andintelligible terms so that such terms are capable of being examined forthe effect claimed. That would be the case with respect to a writtendocument which by its nature becomes capable of being scrutinizedand interpreted and I can see no logical basis for saying that when anynomination is made orally it would suffice merely to say that there wasa nomination, as in this case. Indeed the danger then would be thatanyone testifying that he heard such oral nomination, even if speakingthe truth could well have misunderstood what was said and his mereassertion that there was such a nomination if accepted would thenlead to serious error. By way of illustration of the possibility of sucherror reference may be made to the aspect of Sugathadeera'sevidence which can be interpreted in different places to mean thatsuch nomination was to take effect immediately, as well as upon thedeath of Sumanatissa Thero. Such confusion (if confusion it be) theremay well have been, if for instance the statement alleged to have beenmade by Sumanatissa Thero was that he merely intended to nominate
Saadhatissa Thero in the future rather than that an immediatenomination was made to take effect upon his death. Again it couldwell have been the case that such nomination was one to take effectimmediately, only to the office of Adhikari (in the sense in which theword was used by Samarakoon, C.J.) as he (Sumanatissa Thero) wasintending to take up residence in another temple of the paramparawaas in the event he did. These possibilities are set out here not as anexercise in conjecture but rather to show the danger of permittingSugathadeera to be the interpreter of what Sumanatissa Therointended, without the Court being able to judge whetherSugathadeera's inference as to such intention was correct or not; hismere statement that there was a nomination being the only evidenceavailable. To my mind when an oral nomination is sought to be giveneffect to the terms of such nomination upon the testimony availablemust be as clear and as precise as if they were contained in a writtendocument, so that they could be examined to ascertain the intentionof the author, else the Court would virtually be abdicating its functionof being the ultimate interpreter. A mere statement as here that therewas a nomination in my view far from meets the requirements of thecase. G. P. S. de Silva, J. as I pointed out earlier referred to the
counsel of prudence that would call for corroboration before actingupon an oral nomination. In my view that corroboration, while not metby the large volume of evidence led in this case, had to be with respectto the fact that such nomination was in fact made. Apart from theevidence of the 6th defendant which I will be presently referring to theother evidence is capable of being interpreted as merely suggestingthat Saddhatissa Thero was de facto Viharadhipathy of the temple orwhat Samarakoon, C.J. in the case earlier referred to called the chiefresident monk or Adhikari who was merely the agent of theViharadhipathy (Sumanatissa Thero) resident elsewhere.
The evidence of Godamune Sangarakkitha Thero the 6th defendantwas that the information he had about the nomination in 1929 wasobtained by him from his tutor (Saddhatissa Thero). His testimony wasthat the nomination was made in 1929 in respect of all three templesa position at variance with the evidence of witness Sugathadeera andof the case set up by the defendant which did not include any claim tothe Viharadhipathyship of the Dharmaramaya temple. This is the onlyevidence which could have been thought to be corroborative, if in theevent it was, but to my mind having regard to its contents it tends tohave the opposite effect.
The District Judge has been strongly influenced by the testimony ofRev. Sugathadeera Thero who he states heard Sumanatissa Thero'sannouncement that he was nominating and appointing SaddhatissaThero as the Viharadhipathy of this temple. As I pointed out earlierthere are no clear and direct words on these lines in his evidence andwhat the District Judge has stated has to be an inference from whatthe witness stated, if inference it can correctly be called. It is my viewthat the District Judge should have analysed the evidence upon thismost important aspect of the case before coming to the conclusion hedid, something which I think he failed to do. Instead he has gone on toconsider the other evidence and decided that that evidence wascorroborative of the testimony relating to the nomination in 1929. Indoing so he appears to have lost sight of the fact that up to the time ofSumanatissa Thero’s death in 1953, Saddhatissa Thero was only thechief resident monk and in that capacity came to be handling theaffairs of the temple, a character that did not change subsequent to1953, whatever he or anyone else (including the plaintiff) did or saidor others thought or said of him. In considering that the documentsproduced supported the evidence of Rev. Sugathadeera Thero thatthere was a nomination in 1929, I am of the view that the District
Judge misdirected himself. I think that the evidence of SugathadeeraThero and of the 6th defendant, even if taken as true, is inadequate toestablish an oral nomination of Saddhatissa Thero in 1929 (theburden of which was on the defendants) and that the District Judgehas answered the relevant issues wrongly thus leading himself to theconclusion he reached. The relevant issues therefore must beanswered in favour of the plaintiff so that the finding will be that uponthe death of Sumanatissa Thero in 1953 the plaintiff as senior pupilsucceeded him as Viharadhipathy of the temple in accordance withthe sisyanu sisya paramparawa rule of succession.
One other matter may be adverted to. Mr. Dissanayake contendedthat an appellate tribunal should be slow to interfere with findings offact reached by a trial Court, a proposition which in general one cannotquarrel with, but in this case there is to that a short answer to begathered from what I have already said but may be re-stated althoughin somewhat different terms with respect to this contention. Whetherand if so what Benthara Saddhatissa Thero said in 1929 were nodoubt questions of fact to be decided by the District Judge upon theevidence and for that purpose the testimony of witness SugathadeeraThero was of the utmost importance. The legal effect of what wassaid by Benthara Saddhatissa Thero however is in my view entirely aquestion of law also to be decided by the Trial Judge, but unaided bythe witness. Construction is always a matter of law and for the Court.The evidence was no more than a bare assertion that there was anomination so that without further evidence as to what in fact wassaid on that occasion the District Judge had no material on which todecide this question of law as to such legal effect. In holding thereforethat there was a valid nomination in 1929 upon this evidence, theDistrict Judge merely adopted the conclusion reached by witnessSugathadeera Thero and in so doing in reality surrendered his functionof deciding such legal effect to the witness. The District Judge I thinkthen committed an error of law on this most vital aspect of the matterwhich clearly cannot be allowed to stand.
There is no evidence upon which the relief prayed for in paragraphsb, c and e of the prayer to the plaint can be granted but there can beno doubt that the conduct of the 1 st to 4th defendants in thecircumstances of the case was of a contumacious nature (their veryact of challenging the plaintiff's title in my view amounting to suchconduct) and that they are therefore liable to be ejected from thetemple.
The plaintiff-appellant died during the pendency of this appeal andthe order for substitution of the substituted plaintiff-appellant wasmade by this Court on 2.8.85 on the admitted basis that he was thesenior pupil of the deceased plaintiff-appellant. This was an ordermade in terms of section 404 of the Civil Procedure Code (videDhammananda Thero v. Saddananda Thero (8)).
The judgment and decree of the District Judge are therefore setaside and the substituted plaintiff-appellant is declared the controllingViharadhipathy of the Duwa Deeparamaya temple described in theplaint and thus entitled to the control and management thereof. The1st to 4th defendants will be ejected from this temple and thesubstituted plaintiff-appellant will be restored and quieted inpossession thereof. The 1 st to 4th defendants will pay the substitutedplaintiff-appellant costs both here and in the Court below.
G. P. S. DE SILVA, J. – I agree.
SOMARATNE THERO v. PANNALOKA THERO AND OTHERS