057-NLR-NLR-V-41-DHAMMAPALA-UNNANSE-v.-SUMANGALA-UNNANSE.pdf
1939
FOYSER S.PJ.—Dhammapala Unnanse v. Sumangala Unnanse. 235
Present : Poyser S.PJ. and Koch J.
DHAMMAPALA UNNANSE v. SUMANGALA UNNANSE.
31—D. C. Kandy, 41,714.
Buddhist ecclesiastical law—Senior pupil of incumbent deserting temjile—Forfeiture of rights.
A senior pupil who deserts a temple forfeits his rights to the incum-bency.
A PPEAL from a judgment of the District Judge of Kandy.
H. V. Perera, K.C. (with him L. A. Rajapakse and Cyril E. S. Perera),for defendant, appellant.
N. E. Weerasooria, K.C. (with him E. B. Wikremanayake and A. E. R.Corea), for plaintiff, respondent.
Cur. adv. vult.
March 2, 1939. Poyser S.P.J.—
In this action the plaintiff claimed as senior pupil of the late Seela-nanda Unnanse, to be declared the Adikari Bikshu of Palipane Viharealtos Naththagoda Vihare.
The following facts were admitted on appeal, namely, that successionto the temple in question is governed by the rules of pupillary succession,that Seelananda Unnanse who died on October 29, 1930, was the AdikariBikshu of these temples and had two pupils : Ratnapala (who was thesenior) and the plaintiff. It was also admitted that Ratnapala haddisrobed himself after this action was filed.
It was conceded on behalf of the appellant that the plaintiff was.entitled to residence and maintenance as claimed in paragraph 7 (b) ofthe plaint but it was argued that in this action he could not succeedin his claim to be declared entitled to any office as at the date he instituted,his action, Ratnapala was the senior pupil and had not disrobed himself.
In support of this argument the case of Silva v. Fernando' was cited inwhich the Privy Council laid down “ that the rights of the parties to anaction have to. be ascertained as at the commencement of the action ”.
Mr. Weerasooria on behalf of the respondent urged that as Ratnapaladeserted the temple on the death of Seelananda he had relinquished hisclaim, and having done so, the plaintiff as the next senior pupil succeeded.
There appears to be no doubt that the senior pupil can relinquish hisclaim, and if he does so, the next senior pupil will succeed.
In Dhammaratna Unnanse v. Sumangala Unnanse', Wood Renton J.having cited the following expert testimony “ If a pupil leaves a Viharewithout any intention of returning to it he would lose his rights altogethereven though he be the sole pupil of his tutor ”.. .. went on to
hold that “ the weight of the expert testimony decidedly supports the viewthat right of pupillary succession will be forfeited if the pupil desertshis tutor and the temple the incumbency of which he claims. There isample evidence in the present case, justifying the conclusion that such a
forfeiture has. been incurred by the appellant ”.
HJ912) Ahk L. R. 499.
(1910) 14 N. L. R. 400.
236
Dhammadara Thera v. Seder anhamy.
In Saranankara Unnanse v. Indrajoti Unnanse the following passageOccurs at page 397 in the judgment of Bertram C.J.—“ By custom theright to succeed is determined by seniority ” (though it would appear-from the evidence recorded in the case of Dhammaratne Unnanse v.Sumangala Unnanse (supra), that the right attaching to seniority is not sounqualified as some of our decisions appear to suggest).
In a later case, Gunananda Unnanse v. Devarakkita Unnanse *, Jaya-wardene J. at page 275 in summarizing the rules regulating the successionto temples and vihares stated:—“If an incumbent dies leaving severalpupils, the senior pupil succeeds. The selection of the incumbent howeverrests with the pupils, and the right of the senior pupil might in certaincircumstances be disregarded. Saranankara Unnanse v. IndrajotiUnnanse (supra) ”.
The point now taken in appeal was not raised in the lower Court andthe District Judge found for the plaintiff on the ground that he was apupil of Seelananda Unnanse and that Ratnapala had disrobed himself.There is however sufficient material before us to justify us in coming tothe conclusion that Ratnapala did on the death of Seelananda leave thetemple and relinquish his claim to his incumbency.
The plaintiff’s evidence is accepted by the District Judge and insuch evidence he stated “ Ratnapala left Palipane temple ten or twelvedays after Seelananda’s death. He bolted to Asgiriya Vihare ”.
Further it also appears from the evidence that Ratnapala neverreturned to Palipane temple and at no time made any claim to theincumbency.
In view of this evidence there can be no doubt in my opinion thatRatnapala’s rights were forfeited by his deserting the temple at Seela-nanda’s death.
I would dismiss the appeal with costs.
Koch J.—I agree.
Appeal dismissed.