118-NLR-NLR-V-39-DHAMMASIRI-THERUNNANSE-v.-SUDIRANANDO-THERUNNANSE.pdf
430 FERNANDO A.J.—Dhammasiri Therunnanse v. Sudiranando Therunnanse.
1937Present: Moseley J. and Fernando A.J.
57—D. C. Kalutara, 18,108.
DHAMMASIRI THERUNNANSE v. SUDIRANANDOTHERUNNANSE.Buddhist Temporalities—Appointment by incumbent of a successor—Notarialinstrument not essential.
Where the incumbent of a Buddhist vihare appoints one of his pupilsas his successor, the appointment need not be by a notarial instrument.Terunnanse v. Terunnanse (28 N. L. R. 477) referred to.
i^LPPEAL from a judgment of the District Judge of Kalutara.
H. V. Perera, K.C(with him Ranawake and Koattegoda), for defendant,appellant.
N. E. Weerasooria (with him A. E. R. Corea), for plaintiff, respondent.
June 10, 1937. Fernando A.J.—
The plaintiff filed this action for a declaration that he is entitled to theincumbency of the Poojaramaya temple and to have the defendantejected therefrom.
It is common .ground that the previous incumbent was Seelaratne whowas the tutor of the plaintiff as well as of the defendant. Admittedlythe incumbent has the right to select his successor to the incumbencyfrom among the pupils, and in the absence of any such appointment, thesenior pupil is entitled to succeed. It is also admitted that the defendantwas the senior pupil of Seelaratne, while the plaintiff claims to be entitledto the incumbency on the ground that he was appointed by Seelaratne tosucceed him.
The learned District Judge held that on the documentary evidencethere was no room for doubt that the plaintiff had been selected bySeelaratne as his successor from among his pupils. He, therefore, heldon issue 5, that the plaintiff had in fact been nominated by Seelaratne.This conclusion is amply supported by the evidence in the case, and I seeno reason to interfere with that finding.
Counsel for the appellant, however, contended that the appomtment of.one of th.e pupils to the incumbency must be by deed or by last will, andit would appear that in most of the cases that have come before the Court,the appointment has in fact been by last will or by deed.
Counsel for the respondent, however, contends that there is no provi-sion of law that require^such appointment to be by a notarial instrument.
In the case of Rewata Unnanse v. Ratnajothi Unnanse1, Shaw J. did notthink it necessary to discuss the question whether a deed within themeaning of our common law was necessary for the purpose of appointinga successor to an incumbency, because in that case there was a notarial
1 3 C.W. R. J93.
FERNANDO A.J.—Dhammasiri Therunnanse v. Sudiranando Therunnanse. 431
document entitled a “ testament ” executed for the purpose. Schneider J.fhowever, held that the document there produced was not a last will“ It cannot operate as a will ”, he said, “ because it has none of theattributes of the characteristics of a will. It appears to follow a formcommonly used in days anterior to legislation as regards Buddhisttemporalities, when the succession was not only to the status, from areligious point of view of the incumbent, but also to the management andcontrol of the temporalities of the temple. I regard this instrument asonly a pure act of appointment or nomination or selection to the successionto the incumbency. In this view the instrument may be in any form.As at present advised, the act of appointment may be done even by wordof mouth ”.
In the case of Terunnanse v. Terunnanse Garvin J. said that, “ by theBuddhist Temporalities Ordinance, the property of the Vihare bothmovable and immovable is vested in the trustee, who in that case was thesecond defendant. An incumbent clearly has no title to the immovableproperty of the temple, nor a right to the possession thereof. Apart fromhis ecclesiastical duties an incumbent of a vihare has certain rights ofadministration and control of the vihare itself, but these are not such• rights as are contemplated by section 3 of Ordinance No. 22 of 1871 ”.This decision appears to lend support to the argument of Counsel for therespondent that no notarial document is necessary in a case where anincumbent appoints one of his pupils as his successor to the incumbency,inasmuch as such appointment does not effect or convey any title to theimmovable property belonging to the vihare which vests in the trustee ofthe vihare. I think, therefore, the respondent’s contention must succeed.
Mr. Weerasooria also argued that the will P 6 did in fact appoint theplaintiff as the successor of Seelaratne to the incumbency. In P 6Seelaratne did “ nominate and appoint ” the plaintiff being his “ chiefpupil”, to be “the sole and universal heir of all the estate and effectswhich shall be left me after my death whether movable or immovableand of what nature or kind soever. I am not satisfied, however, that bythis document Seelaratne did convey the right to succeed him in theincumbency, inasmuch as there is no specific reference to the office, andthe property covered by the will was only property which would be leftby Seelaratne after his death. It is clear, however, from the evidenceboth oral and documentary that Seelaratne did nominate the plaintiff ashis succesor out of his pupils, and although the petition P 7 in whichSeelaratne states that he bequeathed all his rights including his eccle-siastical position in the temple to the plaintiff that statement cannot inmy opinion be accepted as sufficient to enable me to hold that the lastwill had this effect. Still there can be little doubt that it was the inten-tion of Seelaratne to do so, at least at the time he wrote the petition P 7.It follows, therefore, that the appointment of the plaintiff by Seelaratneneed not have been a notarial instrument and that he was in fact appointedby Seelaratne.
In view of these conclusions, the appeal must f-ail on the principal pointsin the case. Counsel for the appellant, however, also referred to the fact,that the learned District Judge in his judgment ordered that the defendant
» 28 N. L. B. 477.
432 FERNANDO AJ.—Dhammasiri Therunnanse v. Sudiranando Therunnanse.
be ejected from the temple premises. It is true as the learned Judgestates that the state of feelings between the parties appear to be suchthat to use the defendant’s own words, “ both of us cannot live in the sametemple”, but the defendant is himself one of the pupils of Seelaratne,and has been residing in this temple for some years. The contest betweenthe parties is with regard to the incumbency and it is ^.obably that assenior pupil the defendant did resent the fact that the plaintiff who washis junior was claiming to be the incumbent. It may be that once it isheld that the plaintiff is entitled to the incumbency, the defendant willabide by that decision, and there appears to me no sufficient reason toanticipate any breach of the peace as the learned District Judge appearsto have done. The defendant may remain in the temple as one of thepriests attached to it if he so desires, but his residence in the temple willnot in any way affect the rights of the plaintiff as incumbent. If byreason of any future conduct on the part of the defendant, the plaintifffinds it difficult to allow him to remain in the temple, plaintiff will havethe right as incumbent to have the defendant ejected on good causeshown. In all the circumstances, I would affirm the judgment of thelearned District Judge, but omit from the decree that portion of it whichorders the ejectment of the defendant from temple. The defendant-appellant will pay to the plaintiff-respondent his costs of this appeal.
Moseley J.—I agree.
Appeal dismissed.