Undugoda Jinawasa Thero Vs Yatawara Piyaratna Thero

027-SLLR-SLLR-1982-1-Undugoda-Jinawasa-Thero-Vs-Yatawara-Piyaratna-Thero.pdf


CA
. Fernando v. Ganilha (L.H. de Alwis J.)
273
SUPREME COURT
Undugoda Jinawansa TheroVs.
Yatawara Piyaratna Thero
5. C. Appeal 46/81 – CA /LA Appeal 15/81, – CA Appeal 152172(F)D.C. Kegalle.No. 91/L(S.C.)
Buddhist Ecclesiastical Law – Pupillary Succession – Buddhist TemporalitiesOrdinance Section 41 – Prima facie evidence of declarations to Registrar-.General – Rebuttal of prima facie evidence – S. 13 and 32 (7) EvidenceOrdinance.
Respondent and Appellant both claimed to be pupillary successors toone Hapugoda Siddhartha Thero.
Respondent relied on declarations made to Registrar General underSection 41 of the Buddhist Temporalities Ordinance and sought a declarationthat he was the Vihara Adipathi and also sought ejectment of the Appellantand two others.
Appellant Jed oral and documentary evidence to rebut the documentaryevidence of Respondent viz. declarations made under Section 41 ofBuddhist Temporalities Ordinance.
Held:that the prima facie evidence of the declarations made under
Section 41 of the Buddhist Temporalities Ordinance was rebuttedby the oral evidence and documentary evidence;
that section 13 of Evidence Ordinance enabled Appellant to leadin evidence a document in handwriting of' the Tutor admittedunder section 32(7) of Evidence Ordinance to deny the right
J.v :by the Rcspondept.
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Appeal from judgment of Court of Appeal
Before:
Counsel:
Argued on:
Decided on:
Samarakoon, Q.C..C.J.,
Wimalaratne, J., andColin-Thom6,J.
H.L.de Silva, Senior Attorney, with
Dayasiri and K. Balapatabendi for Appellant.
E. Amerasinghe, Senior Attorney, withL.C. Seneviratne, M.B. Peramuna andS.S. Ratnayake for Defendant.
23rd – 25th February, 1982 and on15th, 16th and 18th March, 1982.
5.4.82
Cur.adv.vult.
SAMARAKOON, C.J.
The Respondent instituted this action in the District Court ofKegalle against the Appellant seeking a declaration that he is thelawful Viharadhipathi of the Wattarama Vihare in the District ofKegalle and for the ejectment of the Appellant therefrom. Subsequentlyhe amended the plaint and sought an order of ejectment of twoother priests named therein. ‘ In both pleadings the Respondentdescribed himself as the sole pupil of Hapugoda Siddharatha Therowho died in April, 1966. The Appellant filed answer denying theallegations in the plaint and claimed that he was in possession inhis own right as sole pupil of Hapugoda Siddhartha Thero. TheAppellant succeeded in his contention that the Respondent was nota pupil of Hapugoda Siddhartha Thero. The Respondent appealedto the Court of Appeal which upheld the contention of the Respondentand allowed the appeal. Hence this appeal to this Court by the Appellant.
The admitted facts are these. Wattarama Vihare has not beenexempted under the provisions of section 4 (1) of the BuddhistTemporalities Ordinance No. 19 of 1931 (Chapter 318) and is thereforeadministered by a Trustee appointed by the Public Trustee. Thesuccession to the.dhipa»hiship is governed by the nsV: oi
SC Jinawansa Thero v. Piyaratna Thera. (Samarakoon C.J.) -275
Sisiyanu Sisya Paramparawa and it is traced from Pethiyagoda VipassiThero. He died leaving fiye pupils who in their order of seniority were –
Gammulle Sumana Thero,
Medagama Gunaratna Thero,
Polgahaange Dhammasiddi Thero.
■ 4. Ambanwela Summangala Thero, and
5. Ambuwangala Dhammapala Thero.
Gammulle Sumana Thero abandoned his rights to Wattarama Vihareand Dhammapala Thero disrobed. By Deed No. 9293 dated 12.2.1917Vipassi Thero appointed the other three priests as joint incumbentsbut it is stated that the Deed was never acted upon. On the deathof Vipassi Thero he was succeeded by Medagama Gunaratna Therowho functioned as Viharadhipathi of Wattarama Vihare till his deathin 1949. Hapugoda Siddhartha Thero succeeded him as Viharadhipathiand functioned as such till his death in April 1966. Here onwardsthere is a divergence of claims. The Respondent and Appellant eachclaimed to be the successor to Hapugoda Siddhartha Thero to theexclusion of the other. At the commencement of the trial theRespondent claimed as Senior Pupil of Siddhartha Thero and an,issue was framed accordingly. The Appellant ..maintained his claim,as the sole pupil of Siddhartha Thero.
The Respondent was robed on the 19th January. 1955, and ordainedon the 26th May, ,19.62. He claimed that Hapugoda Siddhartha wasone of his robing tutors and that he also presented him for ordination.The Appellant was robed on the 30th August 1963 by SiddharthaThero. The burden of proving robing and / or ordination by SiddharthaThero was on the Respondent. Robing alone would suffice for theRespondent’s case but if that fails then ordination by SiddharthaThero would suffice, if proved. The Respondent based his claimprimarily and mainly on two documents. They arc
Declaration (PI) dated 21.10.1955 which is the SamaneraDeclaration of the Respondent under section 41(2) of theBuddhist Temporalities Ordinance No. 19 of 1931, and
Declaration (P2) dated 18.2.63 which is the UpasampadaDeclaration of the Respondent under section 41(1) of theBuddhist Temporalities Ordinance 19 of 1931
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Photo copies of both documents were obtained by the DistrictJudge and are now part of the record. In cage 7 of PI and P2 thenames of the Robing Tutors are stated as “Ambanwela SumangalaSthavira” and “Hapugoda Siddhartha Sthavira”. There are threesignatories to PI at the end thereof. They read as follows:-
“Signatories to the correctness of the above particulars –
Signature of Samanera – Yatawara Piyaratne
Signature of Robing Tutor – Ambanwela Sumangala
Signature of Viharadhipathi of Temple, of residence -Hapugoda Siddhartha.”
In P2 the Respondent has signed as the Upasampada. Bhikku andAmbanwela Sumangala has signed as “Tutor presenting for Ordination.”Hapugoda Siddharatha has not signed this document though his nameappears in cage 19 as one of the Tutors presenting for ordinationalong with that of Ambanwela Sumangala. The particulars in PI(cage 1 – 14) have been written by Karaliadde Seelananda Therosyho at that time was resident at Muthiyangana Temple in Badulla.P2 was written by Ambanwela Sumangala who was resident at TalawaRaja Maha Vihare, Marassana. As stated earlier these are photocopies of two documents maintained in a Register kept by theRegistrar General in terms of section 41(3) of the Buddhist TemporalitiesOrdinance. Section 41(6) of the Buddhist Temporalities Ordinancestates that “such registers kept by the Registrar General shall forthe purposes of this Ordinance be prima facie evidence of the factscontained therein in all courts and for all purposes.” Counsel forthe Appellant argued that this rule is not applicable to PI and P2for the following reasons:-
Details in PI have not been entered by the Robing TutorAmbanwela Sumangala. (Vide section 41(2) (ii) of theOrdinance)
Details in P2 have not been entered by the UpasampadaBhikku who was the Respondent himself (Vide section41(2)(a)(i) of the Ordinance).
Both P1 and P2 have not been forwarded fo the RegistrarGeneral within one month as required by section 41(2)(b)of the Ordinance.
sc
Jinawansa Thero v. Piyaratna Thero (Samarakoon C.J.)
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Counsel contended that there must be strict compliance with theletter of the Statute and therefore the robing tutor and the UpasampadaBhikku should have entered PI and P2 respectively in their ownhandwriting. In case of failure to do so, he submitted, there is noroom for the operation of the rule that the document is prima facieevidence of its contents. Such a rigid interpretation of these provisionsis both impracticable and unwarranted. It is common knowledge thatthe, particulars required to be entered in each cage could well havebeen done by some mechanical process such as typewriting. Thewords “enter therein”. occurring in section 41 (2)(a)(i) and (ii) areused in reference to the “details" regarding the Upasampada Bhikkuor the Samanera as the case may be and do not refer to the. modeor the manner of setting out the details in each cage. Furthermorethese words do not preclude an agent from entering the details uponthe instructions of. the Upasampada Bhikku or the Robing Tutor -Qui facit peralienum facit per se. (“he who acts through another-isdeemed to act in person” – The Dictionary of English Law by EarlJowitt). The signatures certifying the correctness of the particularswould then be a ratification of the act of the Agent. The provisionsof section 41 of the Buddhist Temporalities Ordinance do not requirethat the Robing Tutor or the Upasampada Bhikku should enter theparticulars in their own hand. There is no doubt that the formscontaining the declarations were not sent within a month of therobing or ordination as required by the provisions of section 41 (2)(b)of the Ordinance. The declaration in. rcspect-of robing was madfentothe Registrar General on the. 6th August 1955 0 a-, period^of lover .7months) and the declaration in :resp.ect of. the ordination was-madeon the 26th December 1962 (exactly 7 months later). Each constitutesah offence punishable with: a fine in terms of the provisions of -section41(7) of the Ordinance. .The. documents .afford prima facie evidenceof the commission of an offence ^within the meaning of section 41(6)of the Ordinance. But it must be remembered that this is an offenceresulting from a failure to forward a declaration and is. strictly confinedto the duty imposed by the provisions of sectiori; 41 (2i)(b); of theOrdinance. The offence has no relevance, to the particulars enteredin .the declarations which have .been furnished in compliance^ withthe other provisions of section 41 of the Ordinance. I cariiiotthereforeaccede to the argument that the evidentiary value conferred by theprovisions of section 41(6) of the Ordinance is not: applicable, to thedeclarations- of which PI and P2 are copies.
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The Respondent sought to prove., the fact that he was robed bySiddhartha Thero from the fact that his name appears in cage 7 ofPI as Robing Tutor and from the fact that he has signed at the footof the document. It is argued that when he signed the document hecertified the correctness of all particulars in the document. It is asignificant fact that he has not signed as Robing Tutor but only as“Viharadhipathi of the Temple of Residence” of the Samanera. Bythat he is certifying the correctness of the particulars in cage 10 ofPI which requires the “Name of the Viharadhipathi of the Templeof Residence” of the Samanera to be set out. That residence. wasdeclared by the Robing Tutor in cage 11 of PI as the Samanera’s“Residence at time of declaration/’:In .this case it was Talawa RajaMaha Vihara of which also Siddhartha Thero was Viharadhipathi.Those are particulars which were within the personal knowledge ofSiddhartha Thero and he could therefore certify. The others he mayor may not have known. Indeed it is going too far to state that hemust have known or be taken to have known the other facts aswell. The Respondent stated in evidence that when the declarationwas to be entered he was called in by Sumangala Thero to. giveSeelananda Thero the details of his birth, parentage and lay name,which he gave and they were entered as stated- by him. EvenSumangala Thero was unable to give those particulars himself toSeelananda Thero. Therefore the findings of the Court of Appealthat the signature of Siddhartha Thero was an affirmative ratificationof all particular in PI cannot be upheld. The declaration P2 hasnot been signea by Siddharatha Thero in any capacity whatsoever.
Nevertheless it is argued that the particulars in Cage 7 of PI andCage 7 of P2 are prima facie evidence of the fact that SiddharthaThero was one of the Robing Tutors of the Respondent, and theparticulars in Cage 19 of P2 are prima facie evidence of the factthat Siddhartha Thero was one of the Tutors presenting the Respondentfor ordination. This is correct. The appearance of his name on theface of PI constitutes evidence that he was the Robing Tutor of theRespondent. “This only means there is ground for proceeding” (Sarkaron Evidence ’Ed. 10 page 27). It is only a starting point and by nomeans an end to the matter. Its evidentiary value can be lost bycontrary evidence in rebuttal. “Prima facie evidence means evidencewhich appears to be sufficient to establish- the fact unless rebuttedor overcotpe by other evidence. It is-unot conclusive.” (Sarkar onEvidence Ed. 10 page 27). “Prima facie evidence means evidence
SCJinawansa Thero v. Piyaratna Thero (Samarakoon C.J.)279
which if not balanced or outweighed by. pther evidence will- sufficeto establish a particular contention.” (Halsbury’s Laws of EnglandEd. 4 Vol. 17 page 22 section 28).. If after contrary evidence hasbeen led the scales are evenly balanced or tilted in favour of theopposing evidence that which initially stood as prbna facie evidenceis rebutted and is no longer of any value. Dricberg J. stated theproposition succinctly thus:-
“'Prima facie proof in effect means nothing more than sufficientproof – proof which should be accepted if there is nothing. established to the contrary; but it must be what the lawrecognizes as proof, that is to say, it must be something whicha prudent man in the circumstances of the particular case oughtto act upon – s. 3, Evidence Ordinance.” Velupillai vs. Sidembram(31 N.L.R. at 99).
Evidence in rebuttal may be either oral or documentary or both.The Register maintained by the Registrar. General is not the onlyevidence. Oral evidence may be given to prove the fact of robingor ordination. Saranajothi Thero vs. Dhammara'ma Thero (61 N.L.R.76 at 79). Nor is it conclusive of the fact of robing or ordination.Oral evidence may be led to disprove entries therein.
The Respondent sought to bolster the documents PI and P2 withthe oral evidence of three monks. They are Ambanwela SupiangalaThero, Chandananda Thero. Anunayake of Asgiriya Chapter, andSeelananda Thero of Mutiyangana Vihare in Badulla. The Appellantsought to nullify the evidentiary vajue of these two documents, firstly,by circumstantial evidence and secondly by oral as well as documentaryevidence. I will deal with the latter kind later. Counsel for theAppellant points to the fact that PI has not been signed by SiddharthaThero as Robing Tutor. Counsel for the Respondent contends thathe was not required to do. so as therewis provision in the documentfor only one Tutor to sign. He pointed, to the Cage 7 of PI whichprovided for the“Namesof Robing Tutor or Names of Robing Tutors”whereas the certificate at the foot thereof in item 2 makes provisionfpr only one Robing Tutor to sign. Similarly Cage 19 of P2 provides. fpr “Name or Names of Tutors presenting for ordination” whereasthe certificate at the foot thereof in item 2 makes provision for thesignature of only one Tutor. This is no doubt correct but it givesthe Appellant a clear advantage in that, slight evidence is sufficient
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to displace the presumption raised by these particulars. His burdenis a very light one. Counsel for the Appellant next pointed to factsconcerning the ceremonies of robing and ordination. The ceremonyof robing took place on the 19th January at about 5.30 a.m. atTalawa Raja Maha Vihare of which Sumangala Thero was Adhikari.Tne ceremony was over by 7.00 a.m. Siddhartha Thero who hadbeen informed of the ceremony arrived at Talawa in the evening ofthe 18th January, but left that same night for Narammala Raja MahaVihare to attend the funeral of one Gunaratne Thero which accordingto the evidence took place on the 20th January. Siddhartha Theiowas not present at the robing ceremony in the early hours of the19th January. Robing is a most important and solemn ceremony. Itis by robing that a person attains the first step in the priesthoodand becomes a Samanera. It constitutes pupillage. DhammajotyUnnanse vs. Welligama Somananda Unnanse (V. S.C.C. 8 at 9) andSaranankara Unnanse vs. Indajoti Unnanse (20 N.L.R. 385 at 389).Robing is done by the Robing Tutor himself or he may delegate itto another. (20 N.L.R. 385 at 392). Buddhist ecclesiastical law permitsho other method to constitute pupillage by robing. Siddhartha Therodid not take part in this most important ceremony personally. Atthe time he had no pupils. He could well have left Talawa after theceremony because the funeral of the dead priest at Narammala wasto take place two days later, viz., on the 20th January. Instead hechose to visit the dead. This is in my view a very significant fact inthis case. The upasampada ceremony took place at Asgiriya Templeon the 26th May 1962. Sumangala Thero took residence there 2 or3 months prior to that date. There was the examination of theRespondent by a Sangha Sabawa comprising about 20 Senior Bhikkusthat morning. He was presented to this assembly by SumangalaThero. Siddhartha Thero was not present at this important ceremony.He arrived at about 10.30 a.m. or 11.00 a.m. that day and by thattime the examination was over. The ordination ceremony commencedat 10.00 p.m. that night. Siddhartha Thero was not present at thisceremony. He had left Asgiriya that afternoon. The UpasampadaSeetuwa (P3) which has reference to the Respondent’s ordinationcontained the names of Ambanwela Sumangala Thero and SiddharthaThero. This in turn is compiled from the Satahanpotha (P3A) thatwas entered during the examination. This document too has the twonames as Tutors but neither is signed by Siddhartha. It is in evidencethat Siddhartha Thero was present at Asgiriya on the day of theordination for the Ohma and even thereafter at about 2.00 y.»r:
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but there is no evidence that the Satahanpotha was presented to himfor signature. In any event his name had been entered as Tutor onthe representation of the Respondent. Sumangala Thero stated’ toCourt that he informed Siddhartha Thero that his name had"beenso entered but the District Judge quite rightly refrained from actingon this evidence. There was a photograph taken that evening ofthose present at the ceremony. Siddhartha Thero has not sat for it.The Respondent and Sumangala both stated that the Respondentwas initially entrusted to Sumangala and Siddhartha by' VenerableChandananda for instruction and robing but Venerable Chandanandastated that he was entrusted to Siddhartha. He * said" this’:,:incross-examination. The District Judge refrained from accepting orplacing any reliance on this evidence of entrustment. It was probablyled to show that Respondent was a pupil by instruction but therewas no evidence that he received any instruction from Siddhartha.Summangala Thero stated that Siddhartha joined him in entering theRespondent to the Maliyadeva Pirivena and that Siddhartha alsocontributed towards the expenses of such education. It howevertranspired that only Sumangala had signed the Admission Registerof the Pirivena and the evidence of the representative of the PublicTrustee showed that the expenses of the Respondent at the Pirivenawere borne almost entirely from the income of Talawa Vihare andnot out of Wattarama Vihare. Siddhartha had approved this expenditure.After a careful analysis of the evidence of Sumangala Thero, VenerableChandananda, and Seelananda Thero the District Judge has chosennot to act on their testimony. Sumangala Thero was characterisedas an interested witness. He was a partisan witness and was notforthright in most of. his answers. Seelananda has made a very badimpression on the District Judge. He was evasive and the DistrictJudge states that at one stage he'found him to be “obstinate and adodger." This comment is not unjustified. Venerable Chandananda’sevidence is rejected in respectful terms. The District Judge had thepriceless advantage of seeing and hearing these witnesses and ofwatching their demeanour. After careful analysis and cogent reasoninghe has rejected their evidence. I can see no justification for holdingthat he was wrong.
It now remains to take stock of this evidence in rebuttal. Onesalient fact comes into focus – Siddhartha Thero has done nothingin respect of the robing and the orejination which a Viharadhipathiwould not have done. His fleeting presence at Talawa in the evening
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of the day before the robing ceremony, his all too brief stay atAsgirjya on the day of the ordination, and his failure to take partin either of these important ceremonies is not the conduct of aRobing Tutor who owes certain obligations towards his pupil. Rather,it is the attitude of a Viharadhipathi making his appearance inresponse to custom, or perhaps duty, on the occasion when a residentin his temple is being robed. The effect of this evidence in rebuttalis that Siddhartha Thero was not in fact the Robing Tutor of theRespondent as set out in PI and P2. That is a reasonable inferencewhich outweighs, or at the least, balances, the evidentiary value ofthe particulars in PI and P2.
But this is not all the evidence. There is more consisting of oraland documentary evidence. The oral evidence is that of Mr. Udalagamaa retired Crown Proctor of Kegalle, and of one Reggie Bandaranayakea brother of Siddhartha Thero. The documentary evidence is thewriting D4.
The Appellant’s allegation was that the name of Siddhartha Therowas inserted in cage 7 of PI after he had signed the documents asViharadhipathi. The learned District Judge has referred to somediscrepancies in the writing and letters in PI, but he came to noconclusion on his findings. The body of the document is in thehandwriting of Seelananda Thero and if the insertion of SiddharthaThera’s name was made after he signed the document it mustnecessarily have been made by Seelananda and no other. This wasnaked suggestion of fraud. Sumangaia Thero stated that when SiddharthaThero signed PI he was well aware that his name appeared as oneof the Tutors in cage 7 and with that knowledge he signed PI.Sumangaia Thera’s evidence has not been accepted as worthy ofcredit. We are then left with the documentary evidence of D4 andthe oral evidence of Bandaranayake and Udalagama. Bandaranayakewas a brother of Siddhartha Thero and seems to have had dosecontact with the priest until his death. The District Judge hascharacterised him as a truthful and intelligent witness. He stated thateither late in December 1965 or early in January 1966 he receivedinformation to the effect that Siddhartha Thera's name had beenentered as a Robing Tutor of the Respondent in the declaration infortn B. He conveyed this information to the priest and advised himto obtain a copy of the Respondent’s Samanera declaration when hevisits Colombo. The copy of that was obtained and it disclosed the
SCJinawansa Thero v. Tiyarutna Tlicro (Sumarukoon C.J.)283
name oi Siddhartha Thero in cage 7. He then advised the priest toconsult legal opinion and witness Udalagaina was consulted. Actingon his advice, states Bandaranayakc, Siddhartha Thero sent anapplication to the Mahanayake of Asgiriya the terms of which wereidentical with those contained in D4. He identified the writing inD4 as that of Siddhartha Thero. Before I deal with D4 I desin; todeal with the evidence of C.H. Udalagama.
Witness Udalagama was for 45 years a practitioner in the Courtsof Kegalle. He had known Siddhartha Thero for many years andhad represented him in litigation in the Courts. In fact he had filedhis proxy for the Defendant (Appellant) in this-case‘ but revoked itlater when he was required to testify on behalf of his client. In thecourse of his -evidence! he:'stated that he was showed’ copy of theSamanera declaration of the Respondent. He then'^fcYceedcd to'Statewhat Siddhartha Thero told him and the advice • given : by him toSiddhartha. The learned District Judge has acted upo‘r»< this ’evidence.This evidence should not have been permitted as it contravened theprovisions of section 126 of the Evidence Ordinanccl'-CoimSel forthe Appellant contended that there was nothing confidential in thecommunication. I do not agree. At that stage Siddhartha Thero wasseeking legal advice on an ecclesiastical matter that only concernedhim and the Mahanayake of Asgiriya and advice as to how he shouldact in the matter. He was seeking advice for his personal guidance.It was not-for disclosure to-others at that stage and was purely amatter between him and his legal adviser. Therein lies the confidentiality.In any event Siddhartha being dead at the relevant time, such evidencewas not admissible -undfer the provisions of section 32(7) of theEvidence Ordinance.
As stated earlier witness Bandaranayakc states that’ SiddharthaThero acting on the advice of Udalagama. addressed a communicationto the Mahanayake in terms set out in D4. H£ identified the writingon D4 to bethe handwriting of Siddhartha Thero. It purports to bean application to have his name expunged from the SamaneraDeclaration* df the Respondent. This conforms to the provisions ofsection 4!F(5) of the Ordinance. This writing was found by theAppellant' among the papers of Siddhartha Thero after his death.The District Judge compared the handwriting on D4 with the genuinehandwriting of Siddhartha on other documents that were producedin evidence and came to the conclusion that the writing on D4 was
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that ofSiddharatha Thero. He dispensed with the opinion of experts.This, he was entitled to do. He had to form his own opinion on thewriting. The opinion of an expert is only a relevant fact and not anindispensable one – Charles Percra vs. Motha (65 N.L.R. 294).Counsel for the Appellant sought to justify the production of thisDocument under the provisions of section 32(7) of the EvidenceOrdinance which permits written statements of relevant facts madeby a person who is dead. It reads
“(7) When the statement is contained in any Deed, Will orother Document which relates to any such transaction as ismentioned in section 13 paragraph (a).”
Counsel for the Respondent contended that this was not a Documentas there was nothing to indicate that it was intended to be usedwithin the meaning of section 3 of the Evidence Ordinance. Therecan be no doubt that it is a document within that definition bywhatever name it is called. Next, he referred to section 13(a) andsubmitted that for the purposes of that sub-section, the statementrelating to the transaction must be in the Document, which createdthe right.
Section 13(a) reads thus:-
‘1.3. Where the question is as to the existence of any right orcustom the following facts are rclcvant:-
any transaction by which that right or custom in questionwas created, claimed, modified, recognized, asserted, or denied,or which was inconsistent with its existence;”
The word “t/ansaction” is not defined in the Ordinance. In theordinary sense of the word “transaction” is some business or dealingwhich is transacted between two or more persons. In the realm oflaw it is given a liberal meaning to embrace a wider range of actsand bears the sense of “any act affecting legal rights.” per Rao J.in Periasami Kachirayar v.v. Varadappa Kachirayar (1950 A.I.R.Madras 486 at 487). “It would thus, it appears, include any seriesof acts of which it can be said that right is created claimed etc.thereby." (Sarkar on Evidence Ed. 10 Vol. I page 112). The rightclaimed in this case is the right of succession to the Viharadhipathiship
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of Wattarama Vihare. What then is the transaction by which it wascreated? That was the act of robing at the ceremony held on 19thJanuary, 1955 of which PI is merely evidence, PI is not the transaction— it is the record of it. It is the existence of this right of successionthat is in question and the transaction by which it was createdbecomes relevant. D4 relates to this transaction. It is a completedenial of the right alleged to have been created by the transaction.Indeed it is a denial of the very transaction itself which sought tomake Siddhartha Thero privy to it. (The relevant portions of D4 arereproduced in Sinhala)
These are relevant statements contained in a writing of the deceasedpriest. Section 32(7) merely calls in aid the provisions of section13(a) of the Evidence Ordinance. D4 has the ingredients necessaryfor the application of section 32(7). It is a written statement (theopening words “written” or “verbal" do not apply to sub-section 7).It is written by a dead person. It relates to a transaction within themeaning of section 13(a) of the Ordinance. It also rebuts the claimthat Siddhartha Thero robed the Respondent on the 19th January.1955. It is conduct relevant in terms of section 9 of the EvidenceOrdinance. I am therefore unable to agree with Pcrera. .1. who heldthat D4 was inadmissible in evidence. D4 gives the lie to PI andthereby to P2. The cumulative effect of the findings hereinbefore setout is that the Appellant has not only counter balanced the evidentiaryvalue of PI and P2, but has also overweighed or overcome thatevidence. There were other factors referred to by Counsel for theAppellant such as lack of publicity for the robing, delay in registrationof the declaration and other minor points. I do not need to discussthem. I allow the appeal with costs here and in the Court of Appeal.
Wimalaratne, J. – I agree.
Colin-Thomc, J.- I agree.
Appeal allowed