090-NLR-NLR-V-36-SADHANANDA-TERUNANSE-v.-SUMANATISSA-et-al.pdf
422
DALTON J.—Sadhananda Terunanse v. Sumanatissa.
1934Present: Garvin S.PJ. and Dalton J.
SADHANANDA TERUNANSE v. SUMANATISSA et al.
■ 285—D. C. Tangalld, 3,375.
Buddhist temple—Juristic person—Prescription.
Semble, a Buddhist temple is not a juristic person.
A PPEALfrom a judgment of the District Judge of Tangalla.
Li A. Rajapakse (with him Kariapper), for plaintiff, appellant.
C. V. Ranawake (with him 5. Alles) „ for defendants, respondents.
September 7, 1934. Dalton J.—
This is a matter which, at the termination of the argument, we statedshould be settled. Judgment was then postponed to the first day ofthe next term to give the parties an opportunity of settling the matter, butwe are now informed no settlement has been arrived at.
The first issue that has .been answered in favour of the first and seconddefendants is – ambiguously worded, but whether one takes it to be afinding that defendants have acquired a prescriptive title to the land,or a finding that the “ temple ” has done so, it cannot be supported,and plaintiff’s appeal must succeed.
The action relates to an allotment of land nearly 2J acres in extent.One H. Punchibaba obtained a Crown grant for the land in 1911. In1918 Punchibabd; by an informal document (exhibit D 2) purported todonate to and dedicate to a Buddhist priest Gnananda Tissa “and thepriests of the Ariyawansa. ;Saddamma Uttika Nikaya … . and
to the. Buddha Sasana” an undivided half share of the allotment inquestion with the plantation and “ the uncompleted Viharaya Tapoda-ramaya ”, subject to certain conditions, in order “ to pave the way forconverting this land to a Buddhist temple
Gnananda, who was of the Amarapura sect, is stated to have possessedthe whole property for four years, when he disrobed himself. After hima priest named Pannadara wag in possession for a year or so, when he isstated to have left, and Pananda was then incumbent for six or sevenyears. The first defendant then became incumbent and was stated 'lohe sp for about two years, when this action was. brought. It is foundby the trial Judge that there were short spells of time when there wasno priest in residence at the temple, whilst it is conceded that none of thepriests named, who were not all of the same sect, succeeded each otherby any rights of pupillary succession, or by any other right derivedfrom the others. The second defendant was appointed trustee in June,1931, Before him there was no trustee, whilst even the legality of hisappointment is questioned by plaintiff.
Trouble seems to have arisen between Punchibaba and the firstdefendant because the latter refused to robe a son of Punchibaba. Thelatter, who was of Wahumpura caste, thereupon executed a deed of
DALTON J.—Sadhananda Terunanse v. Sunumatissa.423
transfer (exhibit P 2), dated September 11, 1930, for the whole" of theallotment of land to N. Saddhananda Terunnanse, the present plaintiff.Punchibaba’s son is now a pupil of the plaintiff and has now been robedby him. The alleged possession of the first defendant is said to havebeen disputed in November, 1930,
With regard to the question of the temple itself, it is very doubtfulfrom the evidence when the temple came into existence. Templfe isdefined in the Buddhist Temporalities Ordinance, No. 8 of 1905, as“vihare, dagoba, and dewala . – .<■ . There seems to have’ beenan incomplete vihare on the land in 1918, but the evidence establishesthat it was not put up or completed until five years after the dedicationin 1918. The' dagoba was hot erected until 1924, and then on aneighbouring piece of land, for the foundation stone was only laid in May,1924. It is conceded there was no dewala at ahy time. L
The trial Judge seems to have been of opinion that the temple cameinto existence in 1918, because the evidence showed that a date“21.10.18” had been engraved on the seemawa which is now attachedto the temple. There is no doubt about the informal donation of theland and the dedication of it in 1918 to Gnananda, but the evidenceleads one to conclude that the temple did not come into existence untilseveral years later. Assuming for the moment that a temple is a juristicperson, the evidence does not entitle one to conclude that here it hadbeen in existence for a period of ten years prior to the date of the allegedouster by plaintiff. The evidence is opposed to any such conclusion.
It is not necessary therefore for the purpose of this case to deal withthe question whether in Ceylon a Buddhist temple is a juristic person.The term “ temple ” has, I think, in some of the earlier authorities, beensomewhat loosely used, just as it has been in the argument before us,and it may equally apply to the incumbent or to some other authorityof the temple, such as the trustee (e.g., Silva v. Fonseka'). Where,however, the question has come up for consideration in a more definiteform in such cases as Karthigasu Ambalavanar v. Subramaniar Kathira-velu *, Maraliya v. Gunasekera *, and Kurukal v. Kartigasu and another *;it has been held that the personification of what is sometimes known as a“ foundation ” is foreign to the law in Ceylon. The view expressed byProfesser Lee, Introduction to Roman-Dutch Law (2 ed.), p. 114, has beenapproved : —
“ We no longer attribute any kind of personality to an unincorporatedcharity, the only personality which comes in question beingthat of the trustees in whom the trust property is vested ”.
Nothing in any Buddhist Temporalities Ordinance has been citedthat is contrary to that conclusion. If it were necessary, the decree mustlc think, be set aside on this ground also (c/. also Civil Law of Ceylon byP. Arunachalam, Vol. I., pp. 36-38, and Rathanapala Unnanse v. Kowitia-gala Unnanse, 2 S. C. C. 26).
With regard to the alleged possession of the land in dispute by thefirst defendant, he has only been in possession for two years at the most.The priests alleged to have been in possession before him were in possession*
» 15 N. L. R. 239.3 23 N. L. R. 261.
a 27 N. L. R. 15.* 2 Times of Ceylon l. R. 120.
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DALTON J.—Sadhananda Terunanse v. Sumanatissa.
at intervals, and defendant cannot claim the benefit of their possession,since he does not claim under them. There has been no proof of undis-turbed and uninterrupted possession, within the provisions of section 3of the Prescription Ordinance, 1871, for ten years by the defendants.Hence, taking the first issue to refer to the defendants and not to thetemple, the issue must be answered in the negative.
Plaintiff is therefore entitled upon the evidence to succeed in his claimto be declared entitled to the land, and his appeal must be allowed.Subject -to the finding on the second issue being in favour of the plaintiff,he will also be entitled to the damages which were agreed upon in the sumof Rs. 20 per annum. The trial Judge has not dealt with the defendants'claim to compensation for improvements. The case must thereforego back to the lower Court for that question as raised in the second issueto be decided. The question of costs in the lower Court will be dealtwith by the trial Judge on the conclusion of the further hearing. Theplaintiff is entitled to his costs of the appeal.
Sent back.
Garvin J.—I agree.