WICKREMESINGHE et al. v. UNNANSE et al

071-NLR-NLR-V-22-WICKREMESINGHE-et-al.-v.-UNNANSE-et-al.pdf


( 236 )
1921*
Present: Shaw A.C. J. and Be Sampayo J.WIQKREMESINGHB et ah v. UNNANSE et ah83—D. C. GaUe, 16,667.
Buddhist ecclesiastical law—Sanghika property—Dedication necessary—
Dismissal of priest by trustee—Buddhist Temporalities Ordinance.
It is by a gift that a temple or any other property can becomesanghika, and the very conception of a gift requires that thereshould be an offering or dedication. Until a dedication takesplace the temple remains gihi santaka (lay property). This dedi-cation may take the form of a writing or may be verbal, but ineither case it is a formal act, accompanied by a solemn ceremonyin the presence of four or more priests who represent the SarvaSangha, or the entire priesthood. A dedication may be presumedin the case of a temple whose origin is lost in the dim past.
Shaw A.C. J.— I do not think that the Buddhist TemporalitiesOrdinance is intended to apply to premises that are private property.
Shaw. A.C. J.—The first defendant having to show that his tutorSeelananda was incumbent of sanghika property is not entitledto succeed him under the rule of pupillary, succession, and ashe himself was admitted to the temple at the invitation of thelegal owner of the property, he is liable to be removed by them atwill.
r pHE facts ap|>ear from the Judgment.
The plaintiff called the following witness as an expert witness :—
Oonagala Siddharta, affirmed:—I am Principal of a pirivena—ofBentara Sudharmodaya. I have the title Sudharma Wagistoara Vinaya •charya and Kannacharya oi Poyage in Kandy. I am entitled toofficiate, and have officiated, at an upasampadawa ceremony. Theseare titles conferred to priesthood of Kandy. I am sixty-three yearsold. I know this temple in the Fort. I did not come to know that thistemple has been dedicated. For a dedication there must be a donor,donee, and a gift. There are formalities required. There must be an
( 237 )
assembly of priests—four and more. The property must be shown.The donor and donee must appear before the assembly. Certain wordsare uttered acoording as it is a gift to one or more. Uttered threetimes. Water is poured into the donees’ hands. The donees thenmust possess the property from the time without damage.
No property can become sanghika without such a ceremony.Sometimes there is a stone inscription recording the grant, or a deed isgiven, or a pinpatraya. Most are given on some sort of document*Cross-examined—The Chula Wagga lays it down that, even withouta document, if property is given to the priesthood, it is given. This isone of the five books of the Vinaya. Bowls and umbrellas are givenevery day. I live at Bentota.
The Adhipati is the high priest.
The Adhikari is priest officiating under the high priest.
The Adhiwasi, who comes from some place, and is there for some time,he is Adhiwasi. There can be all these in the temple at one and the sametime.
To Court:—
Question.—Who is the man who rules and governs the temple andorders ?
Answer.—The Adhikari.
To counsel:—
He acts under the Adhipati.
In temples there may be only one Adhipati or one Adhikari. Incases where there are both, the Adikhari consults the Adhipati. TheAdhiwasi aots on the advice of members of a society.
If this temple were sanghika, the plaintiff could not eject the defendant.I never even thought of getting a nominee of mine into the temple.
I am known as Gonagala priest. I did suggest about a year ago toHikkaduwa Pemananda that Saranapala, co-pupil of Sarananda, shouldbe appointed to Galle Fort, as they had fallen out over the Bogahawattaincumbency (Adhipathi Kama).
L. W. C. Sohbadeb,Distriot Judge.
E. W. Jayawardene (with him It. L. Pereira and M. de Silva), forappellants.
A. St. V. Jayawardene and H. V. Perera, for respondents.
Cur. adv. wilt.
December 15, 1920. Shaw A.C.J.—’
This is an action claiming a declaration that certain premisesin the Fort of Galle, which have for some years been used as a Bud-dhist temple and called Sudharmalaya, are not sanghika property,and that the plaintiffs and the second defendant, or alternativelythe first plaintiff, are entitled thereto as trustees, and for an orderejecting the first defendant therefrom, and directing that the plain-tiffs and the second defendant, or alternatively the first defendant,be placed in quiet possession. The Distriot Judge has made thedeclaration claimed, and has doclared the "plaintiffs and second
1920.
Wiekrtme-
singhev.
Unnanse
( 238 )
1920.
Shaw A.C.J.
Wiclcreme-
wngtev.
Utmanee
defendant to be entitled to possession of the premises, and hasdirected that they should be plaoed in quiet possession. Fromthis judgment and order the first defendant appeals.
The plaintiffs and the second defendant are the surviving trus-tees of a’ society formed in the year 1887 under the name of theSudharmarand Samagama, for the purposes of the promotion ofBuddhism generally, and in particular for the establishment of aplace of worship in the Fort of Galle.
The first plaintiff, who is an extensive landowner and a leadingmember of .the Buddhist community in the Fort of Galle, took a lead-ing part in th6 formation of the society, and he was appointedtreasurer of the sooiety, and appears to have provided most of thefunds of the society from the time of its inception.
The development of the premises, the subject-matter of thisdispute, into the character of a temple appears to have been amatter of gradual evolution; a building was acquired by the trusteesin their own names for the purposes of the society, which buildingforms part of the premises in dispute in the present case.
For some years after its acquisition the building appears to havebeen used merely as a preaching hall, where priests were invitedby the society from time to time for bana preaching. At firstthere was no resident priest, but afterwards it became usual toinvite a priest from time to time to reside on the premises. In1895 a priest named Seelananda Terunnanse of Gandara, of theAmarapura sect, was invited to reside, and he remained in residencefor five years. After he left there was an interval, and the societythen invited a priest named Ratanajoti, of the Siamese sect, whoalso remained for about four or five years. This priest had adisagreement with the trustees about money matters, and wasrequested by the first plaintiff to leave. After that another priest,Seelananda of Bogahawatta, was asked to reside. He was a pupilof a priest, Seelawanse, who seems to have taken an interest in thesociety and to have assisted the trustee. This Seelananda was ofthe Siamese sect, and resided at the Sudarhamalaya for about two ortwo and a half years. The first defendant is a pupil of this priest.
Seelananda left in consequence of a disagreement with the firstplaintiff, who complained to Seelananda’s tutor Seelawanse, whoturned him out and installed the first defendant in his place.
The first defendant has remained in residence since that date,about twelve or fifteen years ago, until the present dispute arose.During recent years the original building has been added to, and hasconsiderably increased in importance. A dagoba was built ten ortwelve years ago, and a building was acquired for a vihare some yearsafter. The dagoba was erected by money obtained by subscriptionamong the members of the society, and the building for the viherewas purchased in the name of the first plaintiff, and an appeal forsubscriptions was issued by him to the Buddhist public to assist in
( 239 )
defraying the cost. Most of the money for the purchase, however,appears to have been found by him.
Much reliance is placed by the first defendant on the wordingof this appeal, to which I shall refer later.
Early in the year 1918 disputes arose between the first .plaintiffand the appellant, and the first plaintiff requested him to leave.This the appellant refused to do, with the result that he was charged° in the Police Court of Galle with having committed criminal trespassby remaining in the temple and thereby causing annoyance to thecontrollers, the dayakayas.
The Magistrate having heard the evidence dismiqged the case onthe ground that the dispute was one that should be settled by actionin a civil court.
The first plaintiff then complained of the appellant’s conduct tothe local Sanga Sabawa, which held an inquiry and made someorder against the appellant, which is not in evidence in this case.The appellant objected to the constitution of this tribunal, and tookno part in the proceedings before it, and appealed to the Chief Priestat Kandy, who reversed the decision of the Sangha Sabawa. Wedo not know the merits of this dispute, and they are not relevant tothe present case, and 1 only mention them as part of the history ofthe dispute leading up to the present litigation.
After the Police Court proceedings the first plaintiff took stepsto get himself appointed trustee of the temple under the BuddhistTemporalities Ordinance, 1905, and a document was put in evidenceat the trial signed by the President of the Galle District Committee,which purports to be a certificate of his appointment as trustee.The certificate on the face of it appears to show that the appointmentwas invalid, it being expressed to have been made by the GalleDistrict Committee, and not by election by the majority of the votersas required by section 17 of the Ordinance. In view of the findingof the Judge that the premises are not sanghilca property, whichfinding I shall subsequently refer to, and with yhich I am in accord,the validity of the appointment is not a matter of much moment,as I do not think that the Ordinance is intended to apply to premisesthat are private property. The case for the appellant is that theSudharmalaya is sanghika property, and that, in the absence ofproof of another form of succession attaching ter the temple, theright of succession must be presumed to be in accordance withthe rule of succession known as sisyanusisya pwamparawa, andthat he, as senior pupil of Seelananda of Bogahawatta, is entitledto be incumbent or adikhari or, alternatively, that this beingsanghika property, the founders or trustees of the temple haveno right to remove him.
The District Judge has found, and I think his finding is correct,that the premises in dispute are not sanghika property, and havenever, in fact, been dedicated formally to the Sangha or priesthood.
1920.
Shaw A.C.J.
Wickmne-singhe v.Unnanee
( 240 )
1980.
ShaW A.C.J.
WieJerems-ainghe «.C/nnonse
The evidence called by the plaintiff appears to show that beforeproperty can become sanghika it must be formerly dedicated tothe Sangha by a ceremony, the formalities of which are detailedin the evidence of the witness Gonagala Siddharta, Principal ofBentala Sudharmadaya Pirivena. That such a ceremony is neces-sary is hardly denied by the defendant’s witnesses, whose evidencewas mainly directed to establish that a formal dedication had beenmade. The Judge has found in the evidence that such dedicationhas not, in fact, been made, and I think the evidence justifies hisfinding; the gradual development of the premises into a templeappears to mak«it likely that no dedication to the Sangha was made.The conduct both of the trustees and the officiating priests up tothe time of the first defendant going into residence seems to showthat up to that time the property was never treated as sanghika,but rather as the property of the sooiety, whose managers appointedpriests at will.
The defence has not attempted to show that there has been anyformal dedication in the time of the first defendant.
On behalf of the appellant, great reliance %as placed on the word-ing of the document issued by the first plaintiff appealing’ forsubscriptions towards the cost of the additional biiilding to be usedasa vihare.
It commences as follows :—
“ In order to enlarge or extend the viharestana called Sud-harmalaya within the Fort of Galle, it is essential thatthe house- adjoining thereto should be purchased to bededicated to the priesthood, hence I have agreed tobuy the same for a sum of Bs. 2,000, with the assistanceof E. R. Gooneratne, Esq., Gate Mudaliyar of Galle,and that of several other Buddhists. Therefore, towardsthis meritorious act (of buying the said house) the assist-ance of the Buddhist public is solicited. Our LordBuddha has preached that those who take part in themeritorious act of providing accommodation for thepriesthood (Sangha) bring to them eternal happinessafter life,” &c.
The form for Sending subscriptions attached to the appeal saysthat they are “ in aid of the meritorious act of dedicating a templeto the priesthood.”
It may well be that the building so acquired is held by the'firstplaintiff in trust for the Sangha, but no formal dedication havingbeen made, the evidence in the case shows that it has not becomesanghika property. The legal title to the building is still vestedin the first plaintiff. The first defendant, having failed to showthat his tutor Seelananda was incumbent of sanghika property, isnot entitled to succeed him under the rule of pupillary succession,
( 241 )
and as he himself was admitted to the temple at the invitationof the legal owners of the property, he is liable to be removed bythem at will.
The judgment in favour of the plaintiffs and the second defendantis, therefore, in my opinion, correct.
A point was taken on behalf of the appellant on the hearing ofthe appeal that was not taken in the Court below, namely, that bythe rules of the sooiety the management, and therefore the powerof admitting and removing priests, was vested in the committeeof the society, and not in the trustees. It is now too late to takethis point. It may well be the fact that as we are informed onbehalf of the plaintiffs, they are members of the original committeeas well as trustees. In any case they and the second defendantare the legal owners of the premises, and therefore are entitled topossession.
I would dismiss the appeal, with costB.
1920.
Bsaw A.C.J.
Wickrtme-singhe v.Untumse
De Sampato J.—
I also think that this appeal fails, and should be dismissed. Withwhose money and* under what circumstances the original building,which subsequently developed into a vihare, was acquired is notvery dear. It is certain, however, that its origin was due to theSudharmarana Samagama, a society which was established for thepromotion of Buddhism, and of which the plaintiffs and the seconddefendant are the surviving trustees, and that the property waspurchased in the names of the trustees between the yearn 1890 and1893. A dagoba and a house for the residence of a priest wereadded in 1908 or 1909. To make those additions an appeal wasmade by the trustees to the Buddhist public, but the responseappears to have been poor, most of the money required beingfurnished by the trustees themselves, more especially by the firstplaintiff, who is a gentleman of position and influence in the com-munity. For the purpose of a certain argument on behalf of thefirst defendant-appellant, however, I shall assume that the originalbuilding was also acquired partly or wholly with .subscriptionsfrom the Buddhists of the place. The main question arising inthis case is, whether the temple was, or at any time before this actionbecame, sanghika, that is to say, belonged to the priesthood orSangha, with all the incidents applicable to ecclesiastical propertyof that description. The contention on behalf of the appellantsis that, being acquired andestablished at the expense of the Buddhistpublic for the purpose of a place of worship to be dedicated to thepriesthood, it was from the beginning sanghika, and that the plain-tiffs as trustees or otherwise have no title to it or to its possession,'and cannot eject the appellant, who is one of the priesthood, thejurisdiction in that respect being vested in the local Sangha Sabawaalone, and in tha last resort in the Asgiriya and Malwatta Colleges
21
( 242 )
1920.
Da SampayoX
Wickreme-eingfie v.Unnanae
in Kandy. No authority has been cited from the Buddhist scrip-tures or from past judicial decisions in support of the propositionthat a building intended to be appropriated to religious worshipand built or acquired with the contributions of the faithful becomesat once sanghikawithout anyfurther act. This appears to be opposedto principle, and is contradicted by the expert evidence given inthis case. It is by a gift that a temple or any other property canbecome sanghika, and the very conception of a gift requires that thereshould be ah offering or dedication. Accordingly, we find that theexpert evidence is to the effect that until a dedication takes placethe temple remains gihi santaka (lay property). This dedicationmay take the form of a writing or may be verbal, but in either caseit is a formal act, accompanied by a solemn ceremony in the presenceof four or more priests, who apparently represent the Sarva Sanghaor entire priesthood. There is no proof of any such dedicationin the present case. It was argued that after a lapse of many yearsa dedication could be presumed. That undoubtedly would be soin the case of a temple whose origin is lost in the dim past. Butnot only the origin of this temple, but every event in connectionwith its subsequent history, is known, and the fccts are such thatthe presumption can have no place. The trustees continued tohave complete control and management of the temple as thoughit was a private concern, and even appointed priests from time totime according to them will and pleasure. I think that the plaintiffsare entitled to send away the appellant, with whom they have hada serious disagreement.
If, as I find, the temple is not sanghika, it is hardly necessaryto consider the appellant’s claim that he is entitled to the incumbencyof the temple by pupillary succession to the priest who precededhim, inasmuch as such a claim can only be made on the basis thatthe temple is sanghika. But as the point was strongly pressedupon us, a word may be said thereon. The principle no doubtis that unless the founders of a temple are shown to have settled aparticular rule of succession to the incumbency, there is a presump-tion that the incumbency is governed by sisyanusisya paramparawaor pupillary succession. Here, again, the facts allow no room forthe presumption. The first priest who resided in the temple wasGandara Seelananda, who was a priest of the Amarapura sect.He came there in 1895 at the invitation of the trustees. He leftafter about five years’ residence. He was not succeeded by anypupil. After an interval of time one Ratanajoti resided in thetemple at the invitation of the trustees. This priest was of theSiamese sect, so that there was a complete break in the order ofsuccession. After two or two and a half years he was sent away—in other words, dismissed—on account of a disagreement with thetrustees. He was not succeeded by any pupil of his own, but thetrustees requested one Seelawanse, a respected and influential
( 243 )
priest and incumbent of Bogahawatta Temple, to select a priest,and he recommended Bogahawatta Seelananda, a pupil of his own.Seelananda also had some disagreement with the trustees, and ontheir complaint Seelawanse turned him out and put the first defend-ant-appellant in his place. This was about fifteen years ago. Theappellant happens to be a pupil of Bogahawatta Seelananda, buthe came in, not by virtue of that fact, but on the recommendationof Seelawanse. It will thus be seen that in the case of this templethere was no succession from pupil to pupil at any point of itsshort history, and that on the contrary priest oame after priest bycasual appointment, as occasion arose, at the instance of the trusteesthemselves. The accidental circumstance that the appellant wasa pupil of the last priest who was so appointed does not alter theeffect of the power of an appointment exercised all throughoutby the trustees as the founders and, so to say, the proprietors of thetemple. In my opinion the appellant’s claim to the incumbencyas the pupil of Bogahawatta Seelananda has no foundation.
Appeal dismissed.
•1930.
Ob SaupayoJ.
Wiokreme-
singhev.
Unnanse