022-SLLR-SLLR-2002-V-2-UDUGODA-JINAWANSA-THERO-v.-GAMMULLE-SUMANASARA-THERO.pdf
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Udugoda Jinawansa Them v. Gammulle Sumanasara Them 141
UDUGODA JINAWANSA THERO
v.GAMMULLE SUMANASARA THERO
COURT OF APPEALWEERASURIYA, J.
DISSANAYAKE, J.
CA NO. 551/86 (F)
DC KEGALLE NO. 2620/LOCTOBER 04, 2000NOVEMBER 03 AND 24, 2000JANUARY 10 AND 29, 2001
Buddhist Temporalities Ordinance s. 4 (1) and s. 10 (1) Sisyanu sisya paramparawa- Abandonment of rigths – Question of fact – Office ofAdhikari and Viharadhipathy?
The plaintiff-respondent instituted action seeking a declaration that he is the lawfulViharadhipathy of 3 temples, and sought to eject the defendant-appellant. Thedefendant-appellant claimed that he is the Viharadhipathy, and prayed for thedismissal of the plaintiffs action.
The plaintiff-respondent contended that upon the death of Pethiyagoda Vipassi,Gammulle Sumana succeeded and upon his death the plaintiff-respondent thesenior most pupil became the Viharadhipathy.
The defendant-appellant claimed that Gammulle Sumana abandoned his rights tothe Viharadhipathiship and Medagama Gunaratana the next senior pupilsucceeded to the Viharadhipathiship and upon his death Hapugoda Siddharthasucceeded and after his death in 1966 the defendant-appellant became theViharadhipathy.
Held:
The principal decument relied upon by the defendant-appellant was aletter (04. 01. 1932) written by the pupils of Vipassi to the Public Trusteethat by their unanimous decision they have selected Medagama GunaratanaThero for the gSemO §0o0 asrasto goto cd@b> §0q0 of the vihares.
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One cannot say that word "qasoagdo” is one office and QSo‘ is adifferent office. It would be clear that the two terms mean one and thesame thing.
Therefore “cOojOQOo osdmsdos gStes oxso QOo" have been used in contradis-tinction to Viharadhipathy.
There is a strong presumption against abandonmeht, abandonment meansdesertion of the temple coupled with a clear manifestation of a decisionnot to attend to the functions and duties of such office. If the facts andcircumstances leave the matter in doubt then the inference to be drawnis that there is no renunciation.
The defendant-appellant had failed to prove that Gammulle Sumana/Gammulle Sumanasara had abandoned their rights to the Viharadhipathiship.
APPEAL from the judgment of the District Court of Kegalle.
Cases referred to:
Baddegama Sri Kalansuriya Thera v. M. H. M. Basheer – 66 NLR 433at 436.
Saranankara Unnanse v. Indrajothi Unnanse – 20 NLR 398.
Jayananda Therunnanse v. Ratnapala Therunnanse – 61 NLR 273, 275.
Welivltiye Sobitha Thero v. Werapitiye Anomadassi There – SC 79/94 -SCM 23. 08. 1995
Punnaananda v. Welivitiye Soratha – 51 NLR 372.
Jinaratane Thero v. Dhammaratana Thero – 57 NLR 374.
Kalegama Ananda Thero v. Makkula Gnanassara Thero – 1999 2 SLR 218.
Dhammadasa Thero v. Wimalajothi Thero – 79 NLR (1) at 162.
T. B. Dissanayake, PC with B. Coswatte and Nihal Samarasinghe for defendant-
appellant.
L C. Seneviratne, PC with M. B. Peramuna for plaintiff-respondent.
Cur. adv. vult.
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Udugoda Jinawansa Them v. Gammulle Sumanasara Them
(Weerasuriya, J.)
143
June 15. 2001WEERASURIYA, J.
The plaintiff-respondent instituted this action against the defendant- 1appellant seeking, a declaration that he is the lawful Viharadhipathyof Talawa Rajamaha Viharaya, Galmaduwe Rajamaha Viharaya andWattarama Rajamaha Viharaya, and ejectment of the defendant-appellant therefrom.
The defendant-appellant in his answer, whilst claiming that hewas the lawful Viharadhipathy as the sole pupil of HapugodaSiddartha, prayed for dismissal of the action.
This case proceeded to trial on 17 issues and the learnedDistrict Judge at the conclusion of the case, by his judgment dated 1018. 12. 1986, entered judgment for the plaintiff-respondent. It is fromthe aforesaid judgment that this appeal has been preferred.
The following admissions were recorded at the commencementof the trial :
That the dispute was in respect of Talawa Rajamaha Viharaya,Galmaduwe Rajamaha Viharaya and Wattarama Rajamaha
Viharaya;
That the succession to the Viharadhipathiship of these
three temples is governed by the rule of Sisyanu SisyaParamparawa;20
That Pethiyagoda Vipassi was the Viharadhipathy of thesethree temples in 1920's;
That Pethiyagoda Vipassi died in 1924;
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That Pethiyagoda Vipassi had five puplis namely, GammulleSumana, Medagama Gunaratana, Polgahaange Dammasiddi,Abanwela Sumangala and Abuwangala Dhammapala;
That Polgahaange Dammasiddi died leaving no pupils;
That Abuwangala Dammapala disrobed leaving no pupils;
That Gammulle Sumana, Medagama Gunaratana andHapugoda Siddartha died in 1938, 1949 and 1966, respec- 30tively;
That Hapugoda Siddartha was the pupil of MedagamaGunaratana; and
That Talawe Rajamaha Viharaya, Galmaduwe RajamahaViharaya and Wattarama Rajamaha Viharaya have not beenexempted under the provisions of section 4 (1) of the BuddhistTemporalities Ordinance and therefore administered by atrustee appointed by the Public Trustee.
In addition to the above admissions, it was also common groundthat Gammulle Sumana was the senior pupil of Pethiyagoda Vipassi. 40
The case of the plaintiff-respondent was that upon the death ofPethiyagoda Vipassi in 1924, Gammulle Sumana succeeded to theViharadhipathiship of the three temples and upon his death (GammulleSumana's) the plaintiff-respondent being the senior pupil became theViharadhipathy of the said temples.
On the other hand the defendant-appellant claimed that GammulleSumana abandoned or renounced his rights to the Viharadhipathishipand Medagama Gunaratana who was the next senior pupil succeededto the Viharadhipathiship and upon the death of Medagama Gunaratana,Hapugoda Siddartha succeeded to the Viharadhipathiship of the afore- 50
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said three temples. It was asserted that Hapugoda Siddartha died in1966, whereupon the defendant-appellant became the Viharadihipathy.
Thus, the main question that arose for consideration was as towho became the Viharadhipathy of the aforesaid three temples afterthe death of Pethiyagoda Vipassi. In terms of the rule of Sisyanu SisyaParamparawa succession, upon the death of Pethiyagoda Vipassi in1924, his senior pupil Gammulle Sumana should- succeed him as theViharadhipathy.
If the defendant-appellant is to succeed in this action, he mustestablish that Gammulle Sumana, the lawful Viharadhipathy had 60abandoned his rights to the Viharadhipathiship and therefore the nextsenior pupil of Pethiyagoda Vipassi namely, Medagama Gunaratanabecame Viharadhipathy of the three temples.
At the hearing of this appeal, the main submission of learnedPresident's Counsel for the defendant-appellant was that learnedDistrict Judge has erred in his perception and evaluation of themeaning and effect of the documents tendered by the defendant-appellant and thereby arrived at a wrong conclusion on the issuerelating to abandonment.
At the outset, it would be necessary to state that two stages could 70be identified when dealing with the question of abandonment. Theinitial stage of the purported abandonment of the incumbency is byGammulle Sumana and the second stage is the alleged abandonmentby Gammulle Sumanasara the senior pupil of Gammulle Sumana, theplaintiff-respondent.
In regard to the question of abandonment by Gammulle Sumana,the principal document relied upon by the defendant-appellant wasa letter written by pupils of Vipassi to the Public Trustee that by theirunanimous decision they have selected Medagama Gunaratana forthe qSsoS §do0 oaaosocfl goto ox§s> §0q0 of the Viharas therein mentioned. 80
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Learned President's Counsel for the defendant-appellant contendedthat the office referred to therein is the office of lawful Viharadhipathy.This document was produced in evidence by both the defendant-appellant and the plaintiff-respondent marked D8 and P6, respectively.
It would be appropriate at this stage to make reference to themeaning of the term qSs»3 §Oca with reference to case law.
In Baddegama Sri Kalansuriya Thera v. M. H. M. Bashee/<’• at436 T. S. Fernando, J. observed as follows :
"Bertram, CJ. in Saranankara Unnanse v. Indrajothi UnnanseP*in the course of discussing at great length the different kinds ofpupilage adverts also to the expression “Adikari" thus. The officer whoin Ceylon Decisions and Ordinances is referred to as the "incumbent"is an officer of a different nature. The term by which he is describedas "Adikari" (a person in authority) a word derived from the Sanskritword meaning "authority".
In the case of Jayananda Therurmanse v. Ratanapala TherunnansePat 275 Basnayake, CJ. observed that it is well-established that theoffices of Viharadhipathy and Viharadhikari are not the same.
In the unreported case of Welivitiye Sobitha Thera v. WerapitiyeAnomadassi Therein G. P. S. de Silva, CJ. observed that the questionwhether the terms of Viharadhipathy and Adikari refer to two distinctofficers or to one and the same officer has to be determined on aninterpretation of the document itself.
Before proceeding to examine this document, it would be usefulto ascertain the nature of relationship of the parties during the relevantperiod. The defendant-appellant admitted in his evidence that the fivepupils of Pethiyagoda Vipassi were closely attached to each other andhad no disputes among them. It was also common ground that even
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the next generation of the surviving three pupils were well-disposedtowards each other and had no disputes among them.110
It was also revealed that both Medagama Gunaratana and his pupilHapugoda Siddartha were the most educated priests.
Document marked D8 or P6 came to be executed on 04. 01. 1932signed by four pupils addressed to the Public Trustee. The 3rdparagraph of this letter states that four pupils by their unanimousconsent have appointed Medagama Gunaratana to the efSo»3 §0o0ocdxxmsS ga® OX5G) ejdtao of the three temples in question. The languageused is explicit and clear. It is to be noted that in construing the wordqSsaQ §cto the word od@® §0o must be taken into consideration. It isnot possible to separate one word from another. Thus, it is not open 120for one to say that word gSeaQ §6a is one office and ax§m Q6a isa different office, since the connecting word os>x>ssxl> clearly means 'or'and not 'and'. Therefore, it would be clear that the two terms gStsaa§6a and rag® mean one and the same thing. Therefore, theconclusion is irresistible that qSe»3 §60 reroosoai 0x9a §6o have beenused in contradistinction to SsxliSoa §0a.
Before I proceed to discuss the evidence relating to the questionof abandonment, it would be necessary to refer to the decisions inthe following cases to ascertain the principles that would beapplicable on the issue.130
In Punnaananda v. Welivitiye Sorathd5) it was held that the aban-donment by a priest of his right to the incumbency of a Buddhisttemple does not require any notarial deed or other prescribedformality, but is a question of fact and the intention to abandon maybe inferred from the circumstances.
In Jinaratana Thero v. Dhammaratana Therd61 at 374 it was ob-served that an intention to renounce will not be inferred unless thatintention clearly appears therefrom upon a strict interpretation of
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the facts and circumstances of the case and if the facts and circum-stances leave the matter in doubt then the inference to be drawn is 140that there is no renunciation. Thus, there being no presumption infavour of renunciation of a right the onus is on the party who assertit to prove facts and circumstances from which it can be inferred.
In Kalegama Ananda Thero v. Makkule Gnanassara There& it washeld that there is strong presumption against abandonment of thelegal right of a lawful Viharadhipathy. Abandonment means desertionof the temple coupled with a clear mainfestation of a decision notto attend to the functions and duties of such office.
The basis on which the defendant-appellant made his claim theabandonment of Vihardahipathiship by Gammulle Sumana, was isogrounded solely on writing marked D8 (P6) as referred to earlier. Thiswriting being effected on 04. 01. 1932 the question arose as to howit would be possible to claim to abandonment of the Viharadhipathishipas from the death of Vipassi in 1924. The defendant-appellant whenconfronted with this proposition came out with the incredible propo-sition that abandonment in 1924 could be inferred upon the writing(D8) effected in 1932. That this proposition is fanciful need not beemphasized.
Admittedly, letter D8 (P6) had been written in 1932 shortly aftercoming into force of the provisions of the Buddhist Temporalities 160 *Ordinance of 1931. Having considered the cordial relationship of thefour pupils and the expression used in the document, it would bejustifiable to come to the conclusion that Medagama Gunaratana wasappointed by other pupils, to be the person in charge of threetemples and not as Viharadhipathy by designedly using the wordqSEDS QOoO oeDMoxfl gQxa§0(30.
Much emphasis was laid on the document produced marked D14.This is a letter dated 08. 02.1932 by the Mahanayake Priest of Asgiriyato the public Trustee in reply to his letter dated 27. 01. 1930, inquiring
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whether Medagama Sri Gunaratana was the Viharadhipathy of TalaweViharaya. The Mahanayake of the Asgiriya Chapter by the aforesaidletter informed the Public Trustee that Medagama Gunaratana wasthe ej3oS ®ss§0 of the Talawe Viharaya. It is to be noted that, thisletter from the Public Trustee has come, immediately after the letterby the four pupils of Vipassi, addressed to the Public Tusteeconsenting to the appointment of Medagama Gunaratana to the qSsnSSJOQ0 or o3@a §Oca0 of three temples. Therefore, the reference to q?SofiSb§S must be understood to mean in the context of what was intendedin the letter marked D8 or P6. Since the office of de facto Viharadhipathyhas been recognized one may be justified in describing a priest asqSoS ®a§0 when the Public Trustee made inquiries as to who wasthe Viharadhathy of the temple.
The several documents produced by the defendant-appellantrelating to the appointment of trustees would reveal that trustees wereappointed by the Public Trustee to Talawa, Wattarama and Galmaduwatemples acting on nominations by Medagama Gunaratana andHapugoda Siddartha. Learned President's Counsel for the defendant-appellant stressed the significance of these nominations as amanifestation of exercise of the powers and functions of de jureViharadhipathy. It would be correct to state that nomination of trusteesin terms of section 10 (1) of the Buddhist Temporalities Ordinancewould be effected by a de jure Viharadhipathy*81 (vide 79 NLR vol.1-145 at page 162).
The documents marked D10, D17, D19 which cover a period from1932-1939, were letters by Medagama Gunaratana addresssed toPublic Tustee, requesting him to appoint the persons mentioned thereinas trustees of Talawe Viharaya. It would be interest to note that innone of these letters, has Medagama Gunaratana described himselfas Viharadhipathy of Talawa. In fact, in D10 he has described himselfas residing at Asgiriaya Viharaya; D17 he has described himself astrustee of Talawe Viharaya residing at Asgiriya; while in D19 whichhas been written in English merely gives his address as AsgiriyaViharaya.
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Despite Medagama Gunaratana describing himself as Viharadhipathyand Viharadhipathy (trustee) in statements of accounts of WattaramaViharaya (D47 – D51), it is inconceivable as to why he has chosen,in letters marked D56 and D57 addressed to the Public Trustee todescribe himself merely as trustee of Wattarama Viharaya. D56 andD57 were letters addressed to the Public Trustee tendering hisresignation from the office of trustee and requesting him to appoint 210Hapugoda Siddartha in his place as trustee.
Therefore, it would be appropriate to state that MedagamaGunaratana has acted within the scope of his nomination by the co-pupils of Gammulle Sumana as qQeoa os>) g£&a> oi&s> of the templesmentioned therein.
Hapugoda Siddartha who was said to have succeeded to theViharadhipathiship after the demise of Medagama Gunaratana, nomi-nated several individuals for appointment as trustees as evident fromletters marked D20, D22, D23, D44, D46 describing himself asViharadhipathy. However, in statements of accounts produced marked 220D52 and D53, he has been referred to as Viharadhipathy (trustee)of Wattarama Viharaya. The plaintiff-respondent sought to explain thisphenomenon that Hapugoda Siddartha as having been allowed tocontinue as trustee after the demise of Medagama Gunaratana, beingthe most educated of the second set of pupils.
Learned President's Counsel highlighted the absence of any docu-ment by the plaintiff-respondent making any nomination for theappointment of trustees to the temples in suit. It is vital to note thatapart from the nomination of trustees and the forwarding of statementsof accounts, which would establish the management of temporalities 230belonging to the temple by Medagama Gunaratana and HapugodaSiddartha, no document was tendered to establish that the said priestsperformed any acts pertaining to the religious activities of the temple.
It would be unnecessary to emphasise that indulgence in religiousactivities relating to the spiritual well-being of the Sangha and laymanfrom an essential and integral part of a temple.
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In the circumstances, it would be pertinent to note that it is onlyfrom the nomination of trustees and production of statements ofaccounts that the defendant-appellant is seeking to establish thatGammulle Sumana and thereafter Gammulle Sumanasara had aban- 240doned the rights of Viharadhipathiship of these temples. It is hardlynecessary to reiterate that management of temporalities belonging tothe temple is not the sole function of a lawful Viharadhipathy.
The defendant-appellant has conceded that Gammulle Sumana wasresident at the Galmaduwe Rajamaha Viharaya and the income ofthe temple was appropriated by him. It was also admitted that plaintiff-respondent was resident at Galmaduwe Rajamaha Viharaya from thetime he was robed and continued to appropriate the income fromthe temple.
The communication by the Public Trustee dated 24. 02. 1954 250marked P7 assumes much significance in the light of the above facts.
By this letter, Public Trustee had informed the plaintiff-respondent thatGalmaduwe Rajamaha Viharaya has been brought under the provi-sions of section 4 (1) of the Buddhist Temporalities Ordinance andrequested him to nominate a trustee in terms of section 10 (1) ofthe Ordinance. By letter dated 02. 04. 1954, the plaintiff-respondentnominated himself as the trustee, but later withdrew the nominationas evident from letter dated 11. 05. 1954, marked P9. In the circum-stances, the letter dated 02. 05. 1954, marked D7 purporting toinform that Hapugoda Siddartha is the lawful Viharadhipathy of260Galmaduwe Viharaya is open to doubt. The plaintiff-respondent deniedthe writing of this letter. In fact, this letter refers to a letter dated26. 04. 1954 bearing reference No. BT 144 KD. However, no suchletter had been produced by the officer who produced the documentswhich were in the custody of the Public Trustee. The contention oflearned President's Counsel that this letter was in reply to the letterdated 24. 02. 1954 marked P7 is therefore unacceptable.
Learned President's Counsel for the defendant-appellant contendedthat in documents D1-D6, the description of the plaintiff-respondent
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as residing at Asgiriya would counter his assertion that he was the 2?oViharadhipathy. It is no doubt correct that in documents D1 – D6,the plaintiff-respondent has not described himself as Viharadhipathy,but preferred to state as resident at Asgiriya. Inasmuch as thosedocuments do not afford any assistance to the plaintiff-respondent'scontention, the documents marked D10, D17, D19, D47, D48, D49,D50 and D51 do not lend any assistance to establish MedagamaGunaratana was the Viharadhipathy. In the same manner documentsmarked D52 and D53 would be of little or no assistance to assertthat Hapugoda Siddartha was the Viharadhipathy.
Learned President's Counsel for the defendant-appellant laid much 280emphasis on the significance of the decision of the case bearingNo. L/91 of the District Court of Kegalle on the issue of abandonment.The above case was instituted by Yatawara Piyaratana, a pupil ofAbanwala Sumangala (pupil of Pethiyagoda Vipassi) against thedefendant-appellant of Wattarama temple. The position taken up byboth parties in that case was that upon Vipassi's death, MedagamaGunaratana became Viharadhipathy as Gammulle Sumana hadabandoned his rights.
The plaintiff-respondent maintained that despite his presence inCourt once for the said case he did not intervene as a party in that290case on legal advice. Since the parties had admitted in that caseGammulle Sumana had abandoned his rights, it has no effect on theclaim of the plaintiff-respondent for the office of Viharadhipathy in thiscase.
For the foregoing reasons, it seems to me that defendant-appellanthad failed to prove that Gammulle Sumana or Gammulle Sumanasarahad abandoned their rights to the Viharadhipathiship of these threetemples.
In the circumstances, I dismiss this appeal with costs.DISSANAYAKE, J. – I agree.
Appeal dismissed.