TERUNANSE v. TERUNANSE

041-NLR-NLR-V-31-TERUNANSE-v.-TERUNANSE.pdf


( 161 )
Present : Maartensz A. J.
TERUNANSE v. TERUNANSE.13—G. R. Matara, 1,475.
Buddhist law—Succession to incumbency—Right to appoint stranger—Decision of Maha Sangha Sabha—Irregularity.
Where a Buddhist priest was appointed incumbent of a templeby deed under which it was provided that in the event of his dyingwithout a pupil the incumbency shall pass to another temple,—
Held, that the incumbent had no right to appoint a stranger tosucceed him to the exclusion of his own pupils.
The decision of the Maha Sangha Sabha may be set aside on theground of irregularity.
A
PPEAL from a judgment of the Commissioner of Requests ofMatara.
Weerasooria, for defendant, appellant.
SoeTtsz, for plaintiff, respondent.
November 1, 1929. Maartensz A.J.—
The defendant in this action appeals from a decree of the Courtof Requests of Matara declaring the plaintiff entitled to the incum-bency of Nimalayawatte Vihare and to the enjoyment of all thelands, rights, and privileges appurtenant to the said incumbency.
The action was tried on the following issues: —
Is plaintiff entitled to the incumbency of NimalayawatteVihare ?
Did the Mahanayake of Malwatte Vihare hold an inquiryto which the defendant was a party and declare plaintiffincumbent of Nimalayawatte Vihare ?
If so, is such declaration valid ?
Prescription.
Damages.
Whether the deeds pleaded by plaintiff convey to him title tothe incumbency of Nimalayawatte Vihare ?
Are these deeds valid in law ?
The learned Commissioner answered all the issues in favour of theplaintiff, and the contention of the appellant was that the evidencedid not justify his findings on the issues.
It is clear from the evidence and the findings of fact arrived at bythe Commissioner that Rewatte Terunanse was the incumbent ofthe vihare in question and another called Pethangahawatte Vihare.
«J. N. B 11894 (10/51)
1029.
( 162 )
1929.
MAA3TEN6Z
AX
Terunansev.
Terunanse
Re'watte Terunanse by deed PI gifted PethangahawatteVihare to Aparekke Gooneratne, who was not his pupil, andNimalayawatte Vihare to Sunanda, his senior pupil.
As regards Nimalayawatte Vihare the deed provides thus: “ thatof these temples the Nimalayawatte temple shall be governed andpossessed by Nagahawatte Sunanda as sanghika during his life-time and in the event of his dying without a pupil the said templeshall pass over to Pethangahawatte temple. ”
In case No. 2,020 of the District Court of .Matara brought by.Sobita, Rewatte Terunanse’s pupil, against Aparekke Gooneratne.Sobita Terunanse was declared entitled by consent to the incum-bency of the .Sudamarama Viharesatana and immovable propertyappertaining thereto including, inter alia, the subsidiary templeknown as Nimalayawatte (P 2). Sunanda not being a party to thisaction was not bound by the decree, and the District Judge findsthat Sobita did not assert his claims against Sunanda but allowedhim to be the incumbent of the temple in dispute.
Sobita Terunanse by deed No. 2,127 (P 3) dated September 15, 1015,appointed the plaintiff “ Chief incumbent, principal, and trusteefor the management of the temple Pethangahawatte SudharmaramaVihare ” and the other subsidiary vihares.
In 1917 Sunanda sued the plaintiff to be declared entitled tothe Pethangahawatte Vihare. His action was dismissed and thedismissal was affirmed in appeal mainly on the ground thatthe defendant (the present plaintiff) had acquired a title to theincumbency by prescription.
Shaw J. observed in .his judgment that it was not necessary todiscuss the question “ whether or not Sobita's senior pupil whenfully qualified can claim the vihare from the defendant, as beingsuccessor to Sobita under the sisyanusisya paramparawa.
Sunanda on April 11, 1923, by deed No. 5,093 appointed the plaintiffcustodian of the Nimalayawatte Vihare (P 6). Sunanda died inNovember, 1923.
It is admitted that both Sobita and Sunanda left pupils. In factSunanda's pupil, Sudhananda, after Sobita’s death disputed plaintiff'sright to the incumbency of Nimalayawatte Vihare.
In my opinion the first question to be decided is whether Sobitaand Sunanda conveyed to the plaintiff a valid title to the incumbencyof Nimalayawatte by their deeds Nos. 2,127 and 5,093.
The learned Commissioner held that the deeds executed bySobita and Sunanda were voidable and not void and that thedefendant, who is not a pupil of either of them, cannot questiontheir validity.
I am unable to agree with the decision that the deeds were voidableand not void.
( 163 )
A deed conveying title to immovable property executed by aminor is voidable and not void because he has a title to convey,and it is only the minor who can plead that the deed is void owingto his minority. A deed executed by a person who has no titleto convey is void against all the world. As for example, a deedconveying title executed by a person who has only a life interest.
The plaintiff sued the defendant on the footing that the viharein question was sanghika property. It is settled law that in theabsence of evidence to the contrary the succession to sanghikaproperty must be presumed to be in accordance with the rule ofdescent known as sisyanusisya pammparawa. I need only referto the case of Dharmapala Unnanse v. Medagama Sumana Unnanseet al. * According to the sisyanusisya paramparaiva rule of descent,on the death of a priest the incumbency devolves by operation oflaw on his senior pupil unless he has by will or deed appointed anyparticular pupil as his successor (Dhammajoti v. Sobita 2).
As an incumbent's choice is limited to his pupils it follows that hemay not by will or deed transfer his right to the incumbency to astranger to the exclusion of the direct line of succession.
In this case not only is there no evidence that the succession hadbeen otherwise provided for, but by implication deed P 1 providedthat Sunanda’s successor should be his' pupil, for it provides that“ in the event of his dying without a pupil the said temple shall passover to Pethangahawatte temple.
I am of opinion that neither Sobita nor Sunnnda had any title toconvey to the plaintiff and that the deeds executed by them con-ferred no title on him. The sixth ist ie should therefore have beenanswered in the negative. The seventh issue, if it is intended to raisethe question whether Sobita and Sunanda had a title which theycould transfer by deed, must be answered in the negative. It neednot be answered if it is meant merely to raise the question whetherthe deeds had been duly executed.
As the plaintiff did not derive title from Sunanda, .lie is atrespasser, and Sunanda’s possession cannot be relied on by himin support of liis claim to have acquired a title by prescription.The plaintiff cannot- rely on his own possession, if any, as ten yearshave not elapsed since Sunanda’s death.
I accordingly hold that the plaintiff has not acquired a title byprescription.
There remains the issue whether the defendant is bound by thedecision of the Malwat-te Maha Sangha Sabha.
It was held in the case of Sumangala Unnanse v. DJia unyxciToJ-ulcitfi ®that the Maha Sanga Sabhawa, or the Great Council of Buddhists,is not a recognized tribunal and its decisions nave not the effect of> {1910) 2 Cur. L. R. 83.2 (1913) 10 N. L. If. 408.
2 (1908) 11 A. L. If: 300.
31/14 -1029.
Maartensz
A.J.
Terunansa
v.
Tertmanse
( 164 )
IMS.
.Maabtbnsz
A.J.
Terunanst
v.
Terunanse
res judicata. Even if the decision of the Maha Sangha Sabhawa beconsidered as the award of arbitrators, such decision is liable tobe set aside on the ground of irregularity or misconduct in theproceedings.”
I am of opinion that the defendant’s contention that the procedureobserved by the Maha Sanga Sabha was irregular must beupheld.
The inquiry in this case was held on a petition sent by the plaintiffto the Malwatte Maha Sangha Sabha against the defendant andothers, one of them was Sudhananda, Sunanda’s pupil. Thedispute was not referred to the Sabha by agreement, nor was thereany agreement at the inception' of the proceedings that the partiesshould be bound by the decision of the Sabha.
When a complaint of this nature is made to the Sabha either, aninquiry is held at Kandy, the headquarters of the Malwatte SanghaSabha, or if the place is distant from Kandy the high priest of thedistrict is delegated to hold an inquiry.
The plaintiff’s petition was sent to the Weligama Agra BodhiVihare for inquiry.
The high priest’s evidence is that he held the inquiiy in thepresence of plaintiff and defendant, who led evidence and agreed toabide by the result of the inquiry.
In cross-examination he said that he has held several suchinquiries and given decisions himself, but that in this case he couldnot come to a decision.
It. was clearly the duty of the high priest of the Agra Bodhi Vihareto give a decision. As he c^uld not give a decision the inquiryshould have been held by another priest or the Sabha should havereferred the plaintiff to his legal remedy.
I say it was clearly the duty of the high priest to give his decisionon the dispute referred to him for inquiry, because the chief highpriest who delivered judgment in the case after setting out that thepetition was inquired into by the high priest in an assembly of abouttwenty elderly priests on July 20, 1925, says that “ the said highpriest should have delivered judgment in the case.”
The decision of the Malwatte Sangha Sabha was arrived at mainlyon the notes of evidence recorded by the high priest and is thereforein my opinion irregular and invalid. I accordingly hold that thedefendant is not bound by the decision of the SaDgha Sabha.
The plaintiff’s action therefore fails. He cannot be declaredentitled to the incumbency merely because the Commissioner hasrejected the claim of title put forward by the defendant.
I am unable to accede to the suggestion made by Counsel for therespondent that the action should be treated as an action broughton behalf of Sobita’s pupils. There is nothing in our procedure tojustify it. It would in my opinion be unjust to the defendant to
( 165 )
treat a ease which has been brought and fought out by the plaintiff 1929.as a claim of title on his own behalf as an action brought on behalf Maabtbnszof the pupils of Sobita.A,J-
Other defences might have been raised against an action on behalf Temnanaaof Sobita’s pupils such as that they were not in Sunanda’s line ol Terunansesuccession. Nor am I prepared to accede to the suggestion that theplaintiff is entitled to hold the decree as the de facto incumbent.
I doubt very much whether the decision in the case of SobettaUnanse v. Batnapalle Unanse 1 could be justified under .the provisionsof the Civil Procedure Code.
I allow the appeal and dismiss plaintiff’s action with costs in bothCourts.
Appeal allowed.