070-NLR-NLR-V-39-SUMANATISSA-v.-GUNERATNE.pdf
Sumanatissa v. Guneratne.
251
1937
Present: Moseley J. and Fernando A. J.
SUMANATISSA v. GUNERATNE.
158—D. C. Matara, 8,777.
Buddhist law—Succession to incumbency of vihare—Terms of original dedica-tion—Proof of special rules—Insufficient to displace general vale ofsuccession—Sisyanu sisya paramparawa—Prescription.
The rule of succession to 'the incumbency of a Buddhist vihare is-governed by the terms of the original dedication.
If the terms of the original dedication cannot be proved either bydirect evidence or by the evidence of usage, then it must be presumed,that the rule of Sisyanu sisya paramparawa applies, unless it can beestablished that the succession is governed by Siwuru paramparawa.Ratnapala Unnanse v. Kevitiagala Unnanse (2 S. C. C. p. 26) followed..
252
FERNANDO A.J.—Sumanatissa v. Guneratne.
PPEAL, from a judgment of the District Judge of Matara.
H. V. Perera, K.C., (with him N. E. Weerasooria), for plaintiff, appellant.Hayley, K.C. (with him L. A. Rajapakse), for defendant, respondent.
Cur. adv. vult.
June 7, 1937. Fernando A.J.—
The plaintiff-appellant filed this action for a declaration that he is theincumbent of the temple in question, named the Welihinda Temple, andhe claimed -to be so entitled through his tutor priest, Sudassi who died in1928. Sudassi had two pupils : Meerupe Gunananda and the pjamtiff.During his lifetime, Sudassi appointed Gunananda to be his fjudeessorby the document P2 of 1928. In 1930 Gunananda by document P3appointed the plaintiff as incumbent in his place. Plaintiff, however,claims the incumbency not on the strength of the document P3, butas a pupil of Sudassi, and as entitled by the rule of succession known asSisyanu sisya paramparawa.
The case for the defendant as placed before the District Court wasthat the succession to the incumbency of the temple was not governed bythe rule of Sisyanu sisya paramparawa, but by a special set of rulesagreed upon in 1872 and referred to as a Katikawa.
The learned District Judge held that according to the rule laid down inthe Katikawa the incumbency should have gone after Sudassi’s deathto the defendant who was the senior resident pupil of Attanikata Suman-gala, and that the rule of Sisyanu sisya paramparawa did not applybecause 'of this special rule that appeared to have prevailed in thistemple for over 50 years. He accordingly dismissed plaintiff’s action anddeclared that the defendant was the lawful incumbent.
' The plaintiff appeals against this order, and it was argued for him thatthe general rule must apply. Counsel referred to the judgment of thisCourt in Unnanse v. Unnanse1 where De Sampayo J. stated that, “therewere only two rules of succession known to the Buddhist law, namely :Sisyanu sisya paramparawa, or pupillary succession-, and Siwuru Param-parawa which is also a form of pupillary succession, but with the specialcharacteristic that the .pupil is a blood relation of the original priestlyincumbent, and that in the absence of any evidence to the contrary, thepresumption is that the incumbency is subject to the Sisyanu sisya ruleof succession ”. Reference was also made to the case of GoonaratneUnnanse v. Daramaananda ° where it was held that according to theSisyanu sisya rule, there was ho failure in the succession so long as thereremain direct pupillary successors to any previous incumbent.
Counsel for the respondent argued that it was open to a party claimingan incumbency to prove the existence of a rule of succession other thanthe Sisyanu sisya or the Siwuru paramparawa. He referred to thejudgment of the Full Court in Ratnapala Unnanse v. Kevitiagala Unnanse *"where Phear C.J. laid down certain principles which he had gathered
1 22 N. L. R. 323.* 22 N. L. R. 276.
* 2 S.C. C. 26
FERNANDO A.J.—Sumanatissa v. Guneratne.253
from the earlier cases. Those principles are as follows : (1) The generalrule of succession has two branches, namely, Sisya peramparawa andSiwuru paramparawa, and it is the first branch of the rule which is to-be presumed in the absence of evidence that it is the other. (2) There areexceptional cases in which the succession to the temple property is in theappointment of Government or of private individuals. (3) It is theterms of the original dedication that primarily impose the rule ofsuccession. (4) In the absence of direct evidence of these terms (ofdedication) usage may be looked to, and accepted as evidence thereof.If 1 may venture to formulate the position as governed by these principlesas applying to the present case, the law is that the rule of succession isgoverned by the terms of the original dedication, or by one of the tworules of succession, and if the terms of the original dedication cannot beproved by direct evidence, the Court may accept evidence of usage asproving the terms of the original dedication. If the terms of the originaldedication cannot be proved either by direct evidence or by the evidenceof usage, then it must be presumed that the Sisyanu sisya paramparawarule of succession applies unless it can be established that the successionis governed by the Siwuru paramparawa.
iMow the contention for the defendant is that the Sisyanu sisya param-parawa rule did not apply and that the rule of succession was governedby the Katikawa or the set of rules adopted in 1872, and there was nosuggestion that those rules had any reference to or derivation from theterms of the original dedication. D3 purports, to be a copy of thisKatikawa, and an examination of it shows that there were 10 rulesconcerning the duties to be performed by the person accepting the chiefincumbency. Rule 7 of these rules provides that in the event of thechief ’ncumbent being unable to perform his duties the next seniorresident priest shall act on his behalf, and perform the duties of theformer. Rule 10 provides that if the chief incumbent does not do hisduty and if information of his failure to act carefully is given to the SangaSabaWa, the priests and laymen shall meet in the temple and investigatethe complaint, and if the complaint is found true, the chief incumbentmay be removed and the next senior priest of the temple appointed chiefincumbent, and the document ends by a statement- of the signatory that,he was asked to form a mode of rules for the use of younger priests, thathe had delayed in the compilation of these rules, and that the code ofregulation-contained in D3 is framed at the request of the younger priests.There was some question in the Court below as to whether the documentwas admissible, inasmuch as there is nothing to show that it is a true andcorrect copy of the original and the original itself has not been produced.In these circumstances, I think, the -document was inadmissible, but Ipropose to deal with the case on the footing that the document wasproperly before the Court. If the document was properly before theCourt, the question arises as to whether it contains any evidence of theterms of the original dedication and it is obvious that the document doesnot contain any reference to the original dedication, and according tothe principles laid down by the Full Court in Ratnapala Unnanse v.Kevitiagala Unnanse (supra) that document is of no assistance in deter-mining the rule of succession that applies to this Vihare.
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FERNANDO A.J.—Sumanatissa v. Guneratne.
Counsel for the respondent also referred to the case of Sangharatne v.Weerasekera1 where Layard C.J. after stating that “the simple questionto determine is whether any definite rule of succession other than theSisya paramparawa had been established in respect to the succession ofthe Vihare in question in that case held that there was absolutely noevidence to establish the terms of the original dedication that primarilyimposed the rule which is to govern the case. Having come to thisconclusion, Layard C.J. proceeds, “ of course in the absence of suchdirect evidence, we are at liberty to see if any usage has been established,and if such usage has been clearly proved, it may be accepted as evidence ofthe terms of the original dedication.” I do not think this judgment helpsthe respondent either. Layard C.J. thought that evidence of usage maybe accepted but it was only to be used as evidence of the terms of theoriginal dedication. In other words, if it had been proved in that casethat a particular rule of succession has prevailed continuously in thatparticular temple, then he might have presumed that that rule which hadapplied continuously, was the rule laid down in the terms of the originaldedication. In the case before me, however, the evidence is to the effectthat in 1872 at a meeting held at the temple some new rules of successionwas adopted, and that that new rule must govern the succession from thatdate, and as I have already said, there is no authority that lends supportto this argument.
Counsel for the appellant also contended that the defendant in thisactioft was barred from maintaining the action by Ordinance No. 22 of 1871.It has been held by this Court that a claim to an incumbency is barredafter the expiration of a period of three years. He further argued that-if the defendant was entitled to the incumbency by the rule of Sisyanusisya paramparawa then he was entitled to put forward that claim on thedeath of Attanikata Sumangala. Now it is clear from the evidence thatSudassi was incumbent of this temple for 35 years and Sudassi died in1928, so that the previous incumbent of this temple died about the year1893. Assuming then that the defendant was entitled to succeed to histutor Sumangala a cause of action accrued to him when Sudassi tookpossession of the Vihare in 1893. It is true that the right to an incum-bency is not one that a person can acquire by prescriptive possession,but the claim of the defendant to succeed to his tutor Sumangala is nowbarred by the provisions of the Prescription Ordinance.
The appeal must, therefore, be allowed and decree will be entered infavour of the plaintiff with costs in this Court and in the Court below.
Moseley J.—I agree.
> 6 x. L. R. 313.
Appeal, allowed.