128-NLR-NLR-V-57-U.-DHAMMALOKA-THERO-Appellant-and-P.-SARANAPALA-THERO-Respondent.pdf
1956 Present: de Silva, J., and H. N. G. Fernando, J,U.DHAMMALOKA THERO, Appellant, and P. SARANAPAEATHERO, Respondent
S. C. 482—D. C. Kandy, 3,220jL
Buddhist Ecclesiastical Lau>—Sisyanu sisya paramparawa—Extinction oj line of
succession—Appointment of newViharadhipathi—Proper procedure
Prescription.
Upon tlxo extinction of tho lino of pupillary succession to a Buddhist tomplogovomod by tho rule of succession known as sisyanu sisya paramparawa, thetemplo vests in tho Snngha and tho right of appointing a new Viharadhipathivests in tho Mahanayake of tho fraternity which lias jurisdiction ovor it. Thofact that a stranger has functioned ns Viharadhipathi for a long period docsnot ontitlo him to defeat tho Mahanayako’s right of appointmont-, which is a rightthat cannot bo lost by proscription.
A
XAPPEAL. from a judgment of tho District Court, Kandy.
H. W. Jayeivardene, Q.C., with P. Ranasinghe, for tho defondantappollant.
Sir Lalita Rajapakse, Q.G., with M. L. de Silva, for tho plaintiffrespondent.
Cur. adv. vult.
April 30, 1956. de Silva, J.—
Tho Rov. Saranapala Thero, tho plaintiff, instituted this action againstthe defendant Rev. Dhammaloka Thero praying for a declaration that hois the controlling Viharadhipathi of tho Buddhist tomplo called Illupen-deniya Viharo and as such, ho is ontitlod to tho full control and manage-ment of the said Vihare and its temporalities and for tho cjoctmont of thodefendant thorofrom. Tho defendant rosistod tho claim of tho plaintiffand assorted that ho was tho lawful Viharadhipathi of this temple by rightof appointmont to that office by the Mahanayake of tho Asgiriya fraternityof Buddhist monks on deed D 1 of November 4 of 1946. Tho learnedDistrict Judgo ontorod judgment for plaintiff as prayed for. This appoalis from that judgmont.
Admittedly, this tomplo is within tho jurisdiction of the Asgiriyafraternity and it is govorned by tho rulo of succession known as SisyanuSisya Paramparawa. It is also common ground that ono PallodeniyoRatanapala Thero was at ono time tho Viharadhipathi of this templeand ho by dcod P 1 in tho year 1S97 giftod this temple together with itstemporalities to his only pupil Rov. Wana rat-ana Thoro and Rov. Sobitawho was not in the lino of pupillary succession. Wanaratana Thorogavo up his robes in tho year 1902. Thereafter, in tho samo year, Rov.Sobitha by deed P 2 purported to gift this templo and tho lands belongingto it to Rov. Randowella Piyadassi Thero who died in tho year 1937.
No rights passccl on this dood P 2 as neiThor the donor nor tho doneo wasin tho pupillary succession of Rat-anapala Thero. The dcod P1 also didnot confer any rights on Sobita Thero as ho was not in this lino of succes-sion. Piyadassi Tliero, howovor, functioned as tho Viharadhipathi of thistemple without let or hindrance from anyone. He had two pupils namelytho plaintiff.and tho defondant of whom the former is admittedly thesenior. Shortly boforo his death Piyadassi Thero by deed P 6 dated2.7.37 gifted this -temple and its tomporalitie3 to his two pupils, thoplaintiff and the defendant in equal sharos. This deed would not passany title as tho property dealt with by it is Sangika. Neither party restshis claim on this document. In or about tho year 1938 tho plaintiffbegan to roceivo his education in a Pirivona at Gampola while tho defen-dant continued to rosido in this templo. Tho plaintiff howovor used tovisit this temple about once a wook. Tho tomplo appeal's to be a fairlyvaluablo ono. It owns paddy fields and tea lands. According to theplaintiff tho defendant began to dispute his right only in the year 1950but it appears from tho evidenco t-Iiat the dofendant made up his mindto set up a claim to the incumbency as far back as 1946.
It is not doniod that whon Rev. Wanaratana Thoro gave up his robosin tho j-oar 1902 tho pupillary succession which existed so far camo to anend. On the extinction of that line of succession tho temple vested in thoSangha of tho Asgiriya fraternity and tho right of appointing a nowViharadhipathi vested in tho Mahanayake of that fraternity—Dharnvapala,Unnanse v. Mcdagama Sumana Unnanse 1. It is truo that tho Maha-nayako exorcises this right with tho concurrence of tho Asgiriya Chapter.Tho defendant in order to resist the claim of tho plaintiff appeal’s to havoapproached tho Mahanayake with tho object of gotting himself appointedas tho incumbent. Ho was successful in this venture, for, the thenMahanayake by deod D 1 dated 4.11.46 appointed him as tho Viharadhi-pathi together with the right of transmitting tho succession to his pupils.The plaintiff’s claim is based on the fact that ho is tho senior pupil ofPiyadassi Tliero. If, howovor, Piyadassi Thero was not tho lawfulViharadhipathi tho plaintiff cannot successfully assert a claim to the offleoof Viharadhipathi although he is admittedly tho senior pupil of PiyadassiThero. In the original plaint the plaintiff did not set out how his tutorbocamo ontitlod to this templo. Ho later amended tho plaint by settingup an averment that Piyadassi Tliero had been appointed Viharadhipathiby tho Mahanayake of Asgiriya. The plaint was once more amended.
In tho second amended plaint the plaintiff averred that his tutor had beenvorbally appointed Viharadhipathi by tho Mahanayake. Tho quostionfor decision therefore is whether Rov. Piyadassi Tliero was vorballyappointed Viharadhipathi by the Mahanayako and if sowhethor tho tormsof appointment included tlio right of transmitting tho succession—Dhammaratna Unnanse v. Summangala Unnanse3. Tho Maha-myako who is alleged to have made this appointment is now dead. Hedied in the year 1914. No witness has been called who was present atthis allegod appointment. The plaintiff stated that ho had a witnessnamely Rov. Silanauda his co-tutor to provo this appointment-. Butthis witness was not callod. The plaintiff also stated that about two
1 2 Current Laic Reports S3.* 14 _V. L. R. 40.
yoars before the deed P 6 was executed Rev. Piyadassi Thero had toldhim that the Mahanayako had appointed him ns Viharadhipathi of thistemple -with the-right of pupillary succession. This is hoarsay evidence■which is cloarly inadmissible. This evidence was given by tho plaintiff inexaminat ion-in-chief. Although no objection was taken this ovidencoshould havo been disallowed. Tho loarncd District Judge statod that“ the probabilities of the case ” supported the theory that Rev. Piyadassihad been appointed Viharadhipathi by the Mahanayake. Whilo it istrue that Rev. Piyadassi Thero functioned as Viharadhipathi for thirty-fivo years and that thereafter tho Mahanayako did not make any appoint-ment for a period of nearly nino years the story that- Piyadassi Thero hadboen appointed to this office by tho Mahanayake with the right of trans-mitting the succession is negatived by tho recitals in the dood P 6 by whichPiyadassi Thoro donated this templo and its temporalities to his two pupils.In that deed Piyadassi Thero sets out his title as follows :—
“ Which said premises have been held and possessed by me the saiddonor since a period of over thirty years past for and on boholf of thosaid Illupodoniya Viharo undor and by virtue of a deed wliich is notforthcoming at present. ”
Tho deed referred to here could bo no othor than P 2 by which SobitaThero gifted this temple and its lands to Piyadassi Thero in tho year 1902.Surely, if his title was based on the verbal appoint mont by the Mahanayakehe would havo referred to it in this deed. Tho presont Mahanayake hasstated that whon a vacant incumbency such as this is filled a deed iscxecutod by tho Mahanayako in favour of the now incumbent. Thatwould be particularly so whon the incumbency is a valuable one. Thatthe temple and its tomporalitios in question are of fairly considerable valuecannot be denied. Although this temple was a valuable one, probably,the successive Mahanayakes did not realise that Rev. Piyadassi was notthe rightful incumbent according to the rules of pupillary succession.There is strong reason to think that it was only when the defendantbrought to the notice of the then Mahanayake Thero that the pupillarysuccession to this tomple had come to an end with the departure ofRev. Wanaratana from the priesthood and that the temple had vestedin the Asgiriya Chapter that the Mahanayake became aware that he wasentitled to appoint a new Viharadhipathi to it. It was on such realizationthat the Mahanayake appears to have appointed the defendant by deedP 1 as the Viharadhipathi. There is no doubt that in obtaining this deedthe defendant secured an undue advantage over the plaintiff. TheMahanayake’s right to appoint, however, cannot be denied. It is not aright which is lost by prescription. I would therefore hold that Rev.Piyadassi Thero was not appointed Viharadhipathi by the Mahanayake.Consequently' the plaintiff is not ontitlcd to the office of Viharadhipathi.His action must fail. I would therefore allow the appeal and dismissthe plaintiff’s action with costs in both Courts.
H. N. G. Ferxaxdo, J.—I agree.
Appeal allotted.