WIJEWARDENE and another, Appellant., and BUDDHARAKKITA THERA, Respondent

037-NLR-NLR-V-59-WIJEWARDENE-and-another-Appellant.-and-BUDDHARAKKITA-THERA-Respondent.pdf

121
B.ASNAYAKE, Cl,J-—Wijewardene a. liuddharakki'ln Thera
1957Prese.nl :Basnayake, C.J., and Pulle, J.WIJEWARDENE and another, Appellants; and BUhhHAKAICKITATHER-A, Respondent
S. G. 1S3—D. C. Colombo’ (Inly.) 7,338JL
Buddhist ecclesiastical law—Vihare—2dot a juristic person—Sanghika property—acquirement of customary inode of dedication—Will—Creation of a trust forthe benefit of a Vihare—Status of official trustee of the temple in relation to thetrust property—Trusts Ordinance, s. 100—Buddhist Temporalities Ordinance,s. 20.■
■ A Buddhist Vihare or templo Is not a juristic person and cannot therefore*receive or hold property. Tho Buddhist Temporalities Ordinance does notgive, either expressly or by implication, corporate status to a Buddhist temple.
Any property given to the Sangha must be dedicated in the manner proscribedin the Vinaya. Then and then only con it become sanghika property.
Although property can be given to tho Sangha only as sanghika proporty andin accordance with the customary mode of dedicat ion, a person is not preventedfrom creating a trust for the advancement of the Buddhist religion or for thebenefit of a Vihare in accordance with the Trusts Ordinance. Such propertywould be governed by the trust created by the author of the trust and not
• by the provisions of the Buddhist Temporalities Ordinance. Accordingly, ifa tcslator leaves property to certain trustees for the use of a specified Buddhisttemplo, the property, and the management and disposal'of the income thereof,would vest in the trustee appointed by the will and not in the trusteo of thotemple appointed in terms of the Buddhist Temporalities Ordinance.
j^^PPEAL from a judgment of the District Court, Colombo.
V. Perera-, Q.G., with K. Herat, for 1st and 3rd Defendant-
Appellants.
E. 13. Wikramanayakc, Q.C., with S. Nadesan, Q.C., G. T.
Samarawickrema and Prins Guna.sekera, for Plaintiff-Respondent.
-Our. adv. vult.
June IS. 1957. Basnayase, C.J.—.-
By her Last Will, Helena Wijewardene, widow of Tudugallegc DonPhilip Wijewardene, Mohandiram, made a bequest of 250 acres of paddyland situate at Kalawewa for the benefit of the Raja Maha Vihare atHe]aniya. The bequest which was made in Clause 5 is in these'terms :
*-1 give two hundred and fifty acres out of all tha't paddy field calleH
Kalawewa Farm situate in the North Central Province Ceylon to theRaja Maha Vihare, Kelaniya. The selection of the 250 acres I leaveto my Executors and the management of the same for the. benefitof the said Vihare I entrust to my Trustees hereinafter named.”
By clause 7 of the same Will she created a charitable trust forreligiousas well as other purposes and made bequests of her property both movable
.6BUC":—
122BASNAYAJKE, C.j.—Wijcu-ardcne v. Buddhafahhita-Thera .•'
and immovable to . her children. • The following religious purposes arespecially mentioned :—' '‘'.'
…‘*.* '*.**I*
•' (a) to continue gradually the restoration work now being carried on' by me at the Kelaniya temple. '- .-
; ‘ (b) to support in such manner'and to such extent as my trustees maythink fit such Buddhist charitable institutions and temples'; . as my trustees may from time to time select.
In the final clause of the Will the testatrix gave her trustees povcr tosell any of the trust property and to invest the proceeds in otherimmovable property. That clause reads as follows ;—*
“ I give my Trustee under this my Will full power and authority tosell and convert into money by Public Auction or private contractany property of mine if according to the circumstances at the time itbecomes necessary or expedient so to do and to invest the proceeds' of such sale and conversion in other immovable property.”
After the administration was over, on 27th November 1942,- theExecutors of Helena Wijewardene’s estate transferred to the trusteeof the Baja Maha -Vihare, Mapitigama "Dhammarakkita, the paddyfields bequeathed for the benefit of that Vihare. The habendum in theExecutors’ conveyance is to the following effect :—-
“ To have and to hold the said property .and premises herebyconveyed unto the said Reverend Mapitigama Dharmarakkhita HighPriest .and his successors in Office as aforesaid subject always to theconditions in the said will expressly contained namely that manage-ment of the said property for the benefit of the said Vihare shall bein the Trustees in the said Will named or provided for and theirsuccessors duly appointed in terms of the said Will such Trustees being
. at present the said Don Richard Wijeywardene,. Don EdmundWijeywardene and Don Louis Wijeywardene.”■.
Mapitigama Dhammarakkita died on 19th July 1947 and he wassucceeded by the plaintiff Mapitigama Buddharakkita, who institutedthis action on 15th October 1954, against the three defendants oneif whom is a trustee designated in the Will and the other two are theuccessors of the other original trustees who are dead. He prayed—
(а)that the defendants be ordered to account for the income from the
said lands more fully described in the schedule and that judgmentbe entered in favour of the plaintiff for such sum as may.bofound due to him on such accounting.'.
(б)in default of such accounting judgment be entered in favour of the
plaintiff ordering the defendants jointly and severally to pay.. .to the plaintiff the sum of Rs. 350,000.;-.
for .interest at the rate of six per centum per annum on all sums■ 'found due from the time they became due till date of action
— -and thereafter at the legal rate on the aggregate amount of the
^decree till payment in full..' ' ~.-
BASNAYAKE, C.J—Wijewardene v. Buddharahkita Thera
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(rf) for a declaration that the plaintiff is entitled to possess the lands■more fully described in the schedule hereto and for ejectment of
the defendants and all those holding under the defendants fromthe said lands.'
(e) for costs of suit.«
The defendants pleaded that the last Will created a charitable trust
over the land for the benefit of the Vihare and that the power to use the
income of the trust property for its benefit was vested in them as trustees
in the last Will, and they asked that the action be dismissed..
The following issues were framed at the trial ;—
Is the plaintiff entitled—
to an accounting in respect of the income from the 250acres depicted in Plan No. 278 of 10th Maj' 1947, referredto in the schedule to the plaint ;..' .
.(b) to be paid the said income.
If issue (1) is answered in the affirmative, what sum is the plaintiff
entitled to on the accounting ?
In'default of proper accounting, to what sum is plaintiff entitled ?
Is the plaintiff entitled to be placed in possession of the'said 250
acres ?.
Did the Last Will referred to in paragraph 3 of the plaint create a■ charitable trust in respect of the land referred to in the schedule
to the plaint for the benefit of the Rajamaha Vihare, Itelaniya ?
Is the power to use the income of the said property for the benefit
of the said Vihare vested in the 1st and 3rd defendants and.Mr. P. It. Wijewardene as trustees of the said Last Will ?
If issues 5 and 6 or either of them is answered in the affirmative,
is the plaintiff entitled—
(а)to maintain this action ;
(б)to be paid the income derived from the said property ?
It was agreed that issues (1), (4), (5), (0) and (7) should be tried first.
Tire plaintiff gave evidence and stated that the trustees have been and
are still in possession of the paddy fields, that they are managing it, andthat they use the income for certain purposes connected with the Vihare,such as making improvements to the Vihare, paying the tom-tom beaterstheir salaries and making donations to the Vihai’e whenever the Sabhais in need of money. He made no allegation that the trustees weremismanaging the property or misappropriating the funds.
The defendants led no evidence and after hearing the arguments thelearned Judge held that the gift made by the deceased testatrix was abequest to the Temple which according to Iris view of the Buddhist Tem-poralities Ordinance was capable of receiving property. He read theWill "as conferring on the trustees the management of the property onlyand not the control of the income, but held that the plaintiff wasnot entitled to possession. He did not refer to the execution of the >conveyance by the Executors as of any consequence and attached noimportance to it, and he held that the plaintiff was entitled to receivethe income from the paddy fields while the defendants, were entitled to
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BASNAYAKE, C.J.—IVijexcardene v. Suddh arakktta- {Thera •
manage’ them and possess them. He answered the first issue in theaffirmative, the fourth, fifth and sixth in the negative, and held thatthe seventh did not arise for decision. '’ •.'
– Beamed. counsel for the appellants submits that the learned DistrictJudge has failed to read the Will as a u hole for the purpose" of ascertainingthe intention' of the testatrix, and that it is wrong to base the constructionof. the Will on any one clause/ He contends that a Buddhist Vihare ortemple, which Is an inanimate thing, is not a juristic person and cannottherefore receive or hold property. c ; ' – ' ■.',
' I am in agreement with the submissions of learned counsel for theappellants. Clause 5 purports to'create a trust for the benefit of theTemple and for that purpose the 250 acres of paddy field at Kalawewaare given to the trustees who are required to manage the same for thebenefit of the Vihare. No case has been cited in which it lias been heldthat a Buddhist Temple is a juristic person. _ The question appears tohave been raised in the case of Sadhan-anda Termuinse v. Sumana Tissaet al.1 but not decided.'-
Learned counsel for the respondent argued that by implication theBuddhist Temporalities Ordinance has given corporate status to aBuddhipt Temple. I am unable to agree with that contention. Thepresent Ordinance does not declare a temple to be a juristic person nordid any of the previous Buddhist Temporalities Ordinances do so. Theproperty of a temple was vested in a trustee on behalf of the Sangha and• it was the trustee that was always empowered to sue and be sued. Toconstitute a corporation it is not necessary that any particular form ofwords should be used in the statute. It is sufficient if the intention toincorporate appear clearly therefrom. There is no such intentionexpressed in the Buddhist Temporalities Ordinance nor is such an inten-tion implied in the statute. In fact the scheme of the Ordinance can beregarded as negativing such an intention.
Learned counsel for the respondent also argued that Clause 5 of the Will- did not create a trust but merely made provision for management of theproperty that was given to the Vihare, which was a juristic person capableof taking property. I have already expressed the view that a temple isnot a juristic person. I am also unable to agree with counsel’s contentionthat Clause 5 does not create a Trust.
It would appear from the case of Wickremesinghe v. Unnanse 2, thatfor a dedication to the Sangha there must be a. donor, a donee, and a gift-.There must be an assembly of four or more bhikkhus. The propertymust be shown ; the donor and donee must appear before the assembly,and recite three times the formula generally used in giving property tothe Sangha with the necessary variation according as it is a gift to oneor more.. Water must be poured into the hands of the donee or hisrepresentative. The Sangha is entitled to possess the property fromthat time onwards. . No property can become sanghika without such aceremony. Sometimes there is a stone inscription recording the grantor a deed is given. …"
The procedure laid down in the^bove case for giving property to theSangha is in accord with the Vinaya (Kullawagga Sixth Khandhaka,sections 2, 4, and 5). A temple does not, by the mere fact that it is a1 {1034) 36 A L. R. 422.1 {1921) 22 Ar. L. R. 23G.’
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BASXAYAKE, C.J.—Wijewardene v. Buddharakkita Thera
place of worship, become the property of the Sangha. . A private indivi-dual can have on his property a temple and it would be his privateproperty. A temple or any other property given to the Sangha mustbe dedicated in the manner prescribed in the Vinaya. Then and thenonly can it become sanghika property. In order to perfect the papertitle and complete the entries in the Register of Documents kept underany law for the time being regulating the registration of documents ithas been the practice after the formal dedication is over for the donorto execute a deed conveying the property for the use of the Sangha to atrustee named in the deed. He is at times entrusted with theadministration of the gift subject to the terms specified in the grant.
Learned counsel for the respondent also argued that even if theproperty had been given to the trustees for the benefit of the Vihare, byvirtue of section 20 of the Buddhist Temporalities Ordinance it vestedin the trustee appointed under the Buddhist Temporalities Ordinance!
I am miable to uphold that submission. The Buddhist TemporalitiesOrdinance deals -with sanghika property which has geen dedicated to theSangha of a particular Vihare. It declares that such property is vested inthe trustee or controlling Viharadhipati of the Vihare. Property canbe given to the Sangha only as sanghika property and in accordance withthe customary mode of dedication, but a person is not prevented fromcreating a trust for the benefit of a Vihare in accordance w’ith the TrustsOrdinance. Such trust property does not become sanghika or ptidgalikaproperty. Nor does such property vest in the trustee of the templeappointed in terms of the Buddhist Temporalities Ordinance. Suchproperty would be governed by the trust created by the author of thetrust. Section 109 of the Trusts. Ordinance which provides thatChapter 10 of that Ordinance shall not apply to religious trusts regulatedby the Buddhist Temporalities Ordinance, does not have the effectof bringing within the category of religious trusts regulated by theBuddhist Temporalities Ordinance every trust -which a person may createfor the benefit of a Buddhist temple or for any Buddhist religiouspurpose. It excludes the application of that Chapter to such trusts asare governed by the Buddhist Temporalities Ordinance. The main objectof the Buddhist Temporalities Ordinance is to regulate the manage-ment and control of the vast temporalities granted by the Sinhalese. ICings to the Sangha of the ancient temples of the Island, as the Sanghabeing mendicants who have given up all worldly interests were unableto protect and manage them. The history of the legislation on thissubject goes beyond 1889. When the Kandyan Provinces were cededto the British Government and after it gave up its active participationin the protection of the Buddhist religion, from time to time, effortswere made to regulate by law the vast endowments made by the SinhaleseKings to the cause of the Buddhist religion. Till 1931 the trustees werolaymen but in that year the Buddhist Temporalities Ordinance intro-duced a departure from the practice of excluding bhikkhus from theoffice of trustee on account of the abuse of their trust by the lay trustees.
That Ordinance permitted a Viharadhijpati to nominate himself as trustee •instead of appointing a lay trustee. I see no justification for enlargingthe scope of the Buddhist Temporalities Ordinance by holding that it
2*J. X. B 70999 (11/57)';.
.-126
, BASNAYAKE, C. JV—Wtjetcardene v. Buddharakkita Thera ' * –
.governs every trust designed for the advancement of the Buddhist religion -. or the maintenance and welfare of a temple. A question similar to the .one that arose in this case arose in the case of Wijewardene Nilame v.~Naina. JPulle 1. In that case the Government of Ceylon transferred,..certain lands to the Dewe Nilame of the Dalada Maligawa and theNayakas of Malwatta and Asgiriya in trust for the" use of the Vihares- .and Dewales of the. Kandyan Province which had been in receipt'■of allowances from the Government up to about the year 1847. The.chief question for decision in that case was whether the trustees underthe Buddhist Temporalities Ordinance superseded the trustees appointedt>y the Crown grant. The provisions of that Ordinance (No. 8 of 1.905)in regard to the vesting of property in a trustee were the same as thosein the present‘Ordinance and this Court held that the property granted by' the Crown did not fall within the terms of 'the Ordinance.- Ennis-J.stated in the course of his judgment:
“ If, for example, a testator- left property to a trustee for the use-of a specified Buddhist temple and a specified philanthropic institution,"the official trustees of the temple could not interfere in the manage-mcnfc of the property by the trustees appointed by the will ; the same, position occurs when the property is vested in trustees for the benefit. of a number of different Vihares. The Ordinance, in my opinion,provides only for the vesting and administration of property, whichBelongs etc. exclusively to a particular temple, in the trustees ,■ -appointed under the Ordinance. ”
De Sampayo J. agreed with the judgment of Ennis J. and stated that—7“ Although the property is granted for the use of the Vihares andDewalas, I think, and if it were necessary to decide it I should hold,that a special trust of the above kind can subsist with the trusts createdBy the Ordinance and that the trustees’ rights are not merged in-• the powers of the trustees under the Ordinance. It seems to me thatthe Ordinance substitutes the trustees thereunder appointed for thepriestly incumbents under the Buddhist ecclesiastical law and that the' subject matter of the trusts created by the Ordinance are the tempo-ralities which were or would have been administered by such priestlyincumbents. It is true that in this case the trustees under the Crown
Grant happen to be the Dewe Nilame and the High Priests of Malwatte
and Asgiriya, but that circumstance is in the nature of an accident and. does not affect the general question whether the Ordinance is intended
' to draw in property which is already legally vested in trustees' appointed by an instrument of trust independently of the ordinary,
• administration of temple property. The income, when divided and .given over, may, if at all, be said to belong to' the respective temples,*??
– but the management and possession of the property itself and thedisposal of the income would surely remain with such trustees.
I am in respectful agreement with the view cited above. -•'
The order of the learned District Judge is wrong. We therefore set.,it aside and allow the appeal with costs both here and below.. • .. ''
Puixe, J.—I agree.–.- –
-Appeal alloiced.
.> 1 C. Jl'. R. 107.. ..