from the judgment.
Cur. adv. vuU.
Vnnanee v.Vnncmae
( 324 )
that sisyanuaisya paramparauoa applies. In Sangaharatne TJnnansev, Weeresekera1 it was held that the terms of the original dedicationgoverned the method of succession as to its incumbency.
It was urged on appeal that the learned Judge had not dealt withthe evidence adduoed' by the defendant (appellant). The principalpiece of evidence adduced by the defendant was the document D 4,which is a copy of the proceedings in a case before the JudicialCommissioner at Kandy in 1823 sitting with two assessors. Inthat case a member of the Dehigama family successfully claimedthe incumbency of the Dantura Vihare. The assessors stated thatthere were certain temple estates in the country possessed by heredi-tary right, and that the proprietors of such estates were bound tokeep the temple in repair and “.to have the sacred duties dulyperformed.” They went on to say: “ . , . . Generally amember of the proprietary family is ordained priest with the viewof officiating, but if there be no members eligible to the priesthood,some other priest is selected to officiate. However, if the vihara-gama is divided amongst several branches of a family, and theywill not concur in the appointment of an incumbent, the sacredduty devolved upon, and is performed by, the several partnersin the estate according to their respective interests therein. Thispractice, however, was disapproved of by the deposed king, whoauthorized certain superior priests to take cognizance of the affairsof such vihares, and when the proprietary families neglected to have_priests to officiate and laymen assumed the sacred function toappoint priests to do the duties, the ‘ paraweni ’ proprietors ofthe viharagam being subject to furnish everything requisite for the-maintenance of such officiating priests. Since the accession of thisGovernment, however, some of these families have resumed thepraofcice of having the offices performed by laymen.
“ Under all the circumstances of the'case, they are unanimouslyof opinion that plaintiff has proved a hereditary right on the partof his family to the viharagam in question, subject to the rule laiddown by the deposed king, in the event of their family failing tohave a member of it in orders eligible to officiate at the temple orproving the duties to be performed by some other priests.”
What this means it is not clear; it is, however, a finding in 1823that, the Dehigama family had a hereditary right in the DanturaVihare subject to the observance of certain rules. In my opinion,it is evidence that the Dehigama family founded the vihare, but itdoes not afford clear evidence as to the rule of succession whichapplied. It seems to indicate that among the priests “ eligible toofficiate ” members of the Dehigama family had preference. There' is nothing to show that the Dehigama family had a, general right tonominate to the succession.
1 (1903) 6 N. L. B. 313.
( 325 )
The evidence in the present case shows that the vihare fell intodisuse and ruin. One Dehigama Loku Banda has given evidencethat his father-in-law (not a member of the Dehigama family),Giragama, repaired the temple and placed Indajoti in charge. OnIndajoti’s death his pupil Piyaratane succeeded, and it transpiresthat the defendant took the document P1 from Piyaratane conveyingthe vihare to him. The fact that such a dooument was taken seemsto refute the contention that the Dehigama family had the patronage.Further, the evidence of the defendant’s witness, Attipola, whoarranged for the execution of the deed P 1, is that they could notremove pupils who were robed by the incumbent.
In the circumstances, I am of opinion that it has not been provedthat succession to the incumbency is governed by any rule otherthan the sisyanusisya paramparawa, and that the learned Judge isright in holding that that rule applies. I would accordingly dismissthe appeal, with costs.
Unnanse v.Unnanse
De Sampayo J.—
This is a contest for the incumbency* of the historic Buddhisttemple known as the Dantura Vihare, situated in Medapalata ofYatinuwara. The plaintiffs claim to.be the pupils of MadadombeIndajoti Unnanse, and to be entitled to succeed to the incumbencyin that capacity. Indajoti Unnanse died many years ago, and was .^succeeded by his pupil Piyaratane Unnanse. The last nameddisrobed himself and died a few years before this action withoutleaving any pupils of his own. The defendant denied both thatthe incumbency was governed by the sisyanusisya paramparawaand that the plaintiffs were pupils of Indajoti Unnanse. There areonly two rules of succession known to the Buddhist law, namely,sisyanusisya paramparawa or pupillary -succession and sitouruparamparawa, which is also a form of pupillary succession, but withthe special characteristic that the pupil is a blood relation of the.original priestly incumbent. In the absence of any evidence to thecontrary, the presumption is that the incumbency is subject to thesisyanusisya paramparawa rule of succession.
Consequently, in the circumstances of this case, the plaintiffs hadonly to prove that they were pupils of Indajoti Unnanse anH co-pupils of the last incumbent, Pujaratna Unnanse. They were minorsat the date of Indajoti Unnanse’s death, but there is good evidencethat they resided with him during his life, and were entrusted at hisdeath to Galpiriyawa Budharahita Unnanse, who was the Maha– nayaka of Malwatta Vihare. Galpiriyawa is how dead, but in 1911,in a certain case between him and Piyaratane Unnanse, he swore anaffidavit, which has been put in and accepted in evidence in this cosewithout any objection, and in which he stated that two young.'priests, whom he named, and who have been sufficiently identifiedas the plaintiffs in this case, were pupils of Indajoti Unnanse, andwere given to his custody at Indajoti’s death. There is no doubt
( 328 )
£>b SampayoJ.
Unnanse v.Unname
that these young novices remained under the eare of Galpiriyawaat Malwatta Vihare. In 1914 the first plaintiff received v/pasampadaordination at the Malwatta Vihare, and was presented on thatoccasion by Galpiriyawa, and in the Ukam mitiya or the registerof Malwatta the first plaintiff’s tutors are stated to be Galpiriyawahimself and the deceased Indajoti Unnanse. The second plaintiffreceived upasampada ordination in 1917, and in his case the presentorappears to be one Embopama Piyaratane, and the tutors are stated.to be the deceased Indajoti and this Piyaratane. It is well knownthat, when a priest other than the tutor presents a novice for ordi-‘ nation, the register often refers to both as tutors, more especiallywhere the presentor has had some share in the education of thenovice. The entries produced in this case show further that whenthe tutor is dead, the custom is to enter his name along with that ofthe priest who actually presents the novice for ordination. In thisconnection it should be remembered that the robing of a person withthe intention of making him a pupil is sufficient to create the relationof tutor and pupil, though there may be other ways also. All thecircumstances in this case indicate that the plaintiffs were robed bythe deceased Indajoti Unnanse and became his pupils and remainedso until his death. There is in addition the evidence of Sri Dhira-nanda Unnanse, the Assistant Secretary of the Sangha Sabhawa ofMalwatta, who had personal knowledge of the facts, and he stated,that the plaintiffs were in fact pupils of Indajoti Unnanse. In myopinion .the District Judge rightly decided the issue as to pupillagein favour of the plaintiffs.
The defence, however, was that the incumbency of Dantura Viharewas not governed by either of the rules of succession above mentioned,but that it was in the gift of the.Dehigama and Giragama families,who were entitled to appoint a priest to the vihare on any vacancy,and that the defendant was so appointed on the death of PiyarataneUnnanse by Dehigama Basnayaka Nilame and Ettipola Korala ofthe Dehigama and Giragama families respectively. There are noinstances to be found in the books of this kindof patronage exercisedby private persons, but it is stated in the judgment of the Board ofCommissioners who tried the case of Erimisme Unnanse (see Vander,Rep.) Appendix D, at p. xlv) that the exceptions to the two rulesof succession above mentioned are those temples “ which are in thegift of Government or of private individuals.” There is no furtherexposition of the subject. In this case, however, it is unnecessaryto discover the true Buddhist law on this subject, as the DistrictJudge’s finding is that there is no foundation for the defendant’sallegation as to the right of appointment by the Dehigama andGiragama families. The defendant mainly reiies on the proceedingsof an old case relating to the Dantura Vihare of the year 1828. See1the copy of proceedings marked D 4 put in by the defendant. Thatwas a case brought by Dantura Unnanse against the Government
( 327 )
of Ceylon to establish his right to the Dantura Vihare as againstMalwattegama Nayaka Unnanse who obtained a deed of gift fromthe previous incumbent. The case was tried by the Judicial Com-missioner with three assessors, and in the course of their judgment. the assessors made the following observations: “ In regard to thediscussions which have taken place respecting the tenure of vihara-gama, there are numerous temple estates in the country possessedby hereditary right, such as Aludeniya, Durumpola, and Handessain the province of Udunuwara, Suriyagoda in Yatinuwara, Dodan-pastenne, Kalugamanna, and Medagoda in Harispattu. It isincumbent on the proprietors of such estates to keep in repair thetemples erected thereon and to have the sacred duties dulyperformed.Generally a member of the proprietary family is ordained priest withthe view of officiating, but if there be no member eligible to thepriesthood, some other priest is selected.” The assessors add thatif the viharagama is divided amongst several branches of a family,and they will not concur in the appointment of an incumbent, “ the.duty devolves upon, and is performed by, the several partners inthe estate according to their respective interests therein,” but thatthe deposed king (Sri Wickrama Rajasingha) disapproved of thispractice, and ordered that “ certain superior priests ” should makean appointment in such a case, “ the paraweni proprietors of theviharagama being subject to furnish everything for the maintenanceof such officiating priest.” The “ eupeiior priests ” referred to inthat judgment are no doubt the high priests of Malwatta andAsgiriya. The plaintiff in that case was a member of the Dehigamafamily, and his claim on that footing was upheld by the Court. TheDehigama family would appear to have Jjeen (to use the languageof the assessors) the “ paraweni proprietors ” of the Dantura Vihare.How the* Giragama family acquired any right is difficult to under-stand. All that is said on the subject is that Giragama Diva Nilamemarried a lady of the Dehigama family, and that in or about 1854 herebuilt the temple, which had fallen into disrepair, and made a giftof lands to his nephew Godagama Loku Banda, stipulating that thedonee keep the Dantura Vihare in good repair. It is said that itwas this Giragama that inducted Indajoti to the incumbency, butthe evidence on that point is not credited by the District Judge, andcertainly the right of patronage, so far as the Giragama family isconcerned, has not been well established. As regards the Dehigamafamily, which is said now to be extinct, except for the witness Dehi-gama Loku Banda, Basnayake Nilameof Weeriya Dewale andson-in-law of Giragama Diva Nilame. Even if they at any time had anyrights in respect of the Dantura Vihare, it is difficult to say that inthe present circumstances any such rights still survive. The saidwitness Dehigama Loku Banda, who is the last representative of theDehigama family, says that “ when the Dehigama family became3xtinct, Giragama assumed their privileges.” It should be noted-
Db SamvayoJ.
Unnetnte v.TJnnonse
Be SampayoJ.
Unname v.Unnanse
( 328 )
in this connection that the old ease decided was, not that the Dehi-gama family had the right of appointment to the incumbency of thevihare, but that the plaintiff, who was a member of that family, hadthe right to succeed in preference to the donee of the previousincumbent. The District Judge has on the evidence-held that it isnot at all proved that the vihare was founded by the Dehigamafamily, or that the members of that family ever exercised the rightof appointment, or that Indajoti Unnanse was inducted by anymembers of either family as alleged. Assuming, however, that theDehigama family had or has the right of appointment, the questionremains how far and when tliat right can be exercised ? In theabsence of any direct proof of the actual conditions, any opinionon this point must rest on what has taken place in the past. Ithink the pas,t history indicates at all events that when an appoint-ment is once made the rule of pupillary succession begins to operate.Dunuwila Gajanayaka Nilame was a witness in the old case. Hesaid that at the time of King Kirtisiri one Dantura Loku Unnansewas the incumbent, but could not say how he became incumbent.He went on to say that on the death of Dantura Loku Unnanse thevihare devolved upon his brother’s son, and that after the latter’sdeath three more of the same family successively held the living.This evidence suggests that the case was one of devolution andsuccession, and not of special appointment on each vacancy. In thepresent case, Dehigama Loku Banda, who with Ettipola Korala ofthe Giragama family is said to have appointed the defendant*, gaveevidence as follows: “ After Indajoti’s death one of his pupilscontinued there as incumbent …. if Indajoti left pupilsand they lived proper lives, we would have no authority to forcethem out.” When he wffs further pressed on this point, he gave* evasive and contradictory answers. But^ the most importantpiece.of evidence against the claim of these two families to appointan incumbent is furnished by a gift which Kyaratane'Unnanse, pupiland successor of Indajoti, made in favour of the defendant in 1911before he disrobed himself. It was Ettipola Korala himself whowas instrumental in procuring the deed of gift and was a witnessto its execution. In this deed Piyaratane Unnanse expresslyrecited that he “ inherited and possessed through my deceased tutorDedadombe Indajoti Unnanse.” This admission, to which EttipolaKorala was in effect a party, is entirely inconsistent with EttipolaKorala’s present assertion that the incumbency goes by appointmentby the members of his own and of the Dehigama family.
In view of these circumstances, I think the finding of the DistrictJudge that the succession to the incumbency was according to therule of pupillary succession, and not by particular appointment bythese families on each occasion of a- vacancy, is reasonable. Iaccordingly agree that this appeal should be dismissed, with costs.
Appeal dismissed.