071-NLR-NLR-V-56-MAWELLE-DHAMMAVISUDDHI-THERO-et-al-Appellants-and-KALAWANEE-DHAMMADASSI-THERO.pdf
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FERNANDO A.J.—MaweUe Dhammavisuddhi Tkero v. Kalnwane
Dhammadassi Thero
1954Present: Gratlaen J. and Fernando A.J.MAWELLE DHAMMAVISUDDHI THERO et al., Appellants, andKALAWANE DHAMMADASSI THERO, Respondent
,9. C. 348—D. C. Colombo, 5,517
Buddhist ecclesiastical law—Vihara—Dedication—Failure of donors to nomtmilefirst incumbent—Resulting position in regard to incumbency—Right oj incumbentto appoint successor.
A Vihara wag dedicated in 1904 in the presence of a number of priestsbelonging to the Ramanna Nikaya. G, the most senior of the priests, acceptedthe dedication on behalf of the Sangha. At the time of the dedication no-Viharadhipathy was expressly nominated by the donors.
Held, that, in the absence of an express nomination of a Viharadhipathv bythe donors, thero was nothing to counter the inference that the intention wasto constitute G himself as the first incumbent. Even if G could not be regardedos the incumbent, the legal position was that the incumbency was vacant and,in that circumstance, the right to appoint to the vacant incumbency vestedin tho Chapter on whose behalf the Vihara was accepted, as in a case whero thechain of pupilary succession was broken.
Held further, that a Viharadhipathy was notentitled to appoint as his successora priest who was not his pupil.
./^PPEAL from a judgment of the District Court, Colombo.
H. V. Perera, Q.C., with D. S. Jayaiviclcreme, for the defendantsappellants.
No appearance for the plaintiff respondent.
Cur. nth:, mil.
July 19, 1954. Fbrnanoo A.J.—
Plaintiff instituted this action for a declaration that he is the Viharadhi-pathy of the Rajapushparama Vihara at Galkissa. He alleged that theVihara was dedicated in 1904 in the presence of a number of priestsbelonging to the Ramanna Nikaya, the most senior of whom was MataraGnaninda Sabha who accepted the dedication on behalf of the .Sangha.The plaintiff further alleged that one Kodagoda Upasena was the originalViharadhipathy and his own claim is based on'pupilary succession toUpasena.
FERNANDO A.J—Mawelle Dhatntnaviamldhi Thero v. Kalnwane
Dhaininathuwi Thero
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The first questions for determination were whether Upasena was infact appointed to be Viharadhipathy and if so whether the appointmentwas a lawful one. The learned District Judge has decided these questionsin the plaintiff’s favour and the present appeal is against thatdecision.
The evidence regarding the fact of Upasena’s appointment isinconclusive and unsubstantial. The plaintiff who was present at thededication ceremony in 1904 alleged that the appointment of Upasenaas Viharadhipathy was made on the occasion of the dedicationimmediately after Gnaninda Sabha had accepted the gift of the Viharaon behalf of the Sangha. Plaintiff said in evidence “ Matara GnanindaSabha asked my tutor priest to attend to all the religious ceremonies inthis temple as he was staying close to this temple and therefore heappointed him as the Viharadhipathy of this temple. For the sake of thewelfare of this temple he asked my tutor priest to attend to all thereligious ceremonies ”. The construction which the learned Judge hasplaced upon Gnaninda Sabha’s conduct at the dedication is that he hadno intention of himself becoming Viharadhipathy ; that his acceptancewas symbolic both on behalf of the Sangha and of Upasena (who hadattended to religious ceremonies at the Vihara before its dedication) ;aftd that it was therefore quite natural for Gnaninda Sabha immediatelyto call Upasena to the office of Viharadhipathy. This constructionwas in my opinion not justifiable. The dedication by the donor and theacceptance on behalf of the Sangha is one thing ; the nomination of thefirst incumbent is quite another. If the intention of the donors was thatUpasena should be the first incumbent the nomination could well havecome from them and not from Gnaninda Sabha, and in the absence ofany evidence of nomination of Upasena (who was admittedly present atthe ceremony) there is nothing to counter the inference that the intentionwas to constitute Gnaninda Sabha himself as the first incumbent. Thepassage from the plaintiff’s evidence which I have cited above is itselfmore consistent with the view that Gnaninda Sabha immediately uponassumption of office authorised Upasena to act on his behalf. If the actof acceptance by Gnaninda Sabha did not also involve an acceptanceby him of the office of Viharadhipathy, then, having regard to the absenceof an express nomination by the donors, the legal position would in myopinion have been that there was yet no inpumbent. That being so,the right to appoint to the vacant incumbency would have vested in theChapter on whose behalf the Vihara was accepted as in a case where thechain of pupilary succession is broken. (Dammaratna Unnanse v.Sumangala Unnanse1). That right could have been exercised only bythe Chapter after the observance of due formality and not by GnanindaSabha personally. All that can be assumed with safety is that GnanindaSabha must, in purporting to confer some authority on Upasena, havedone so in the exercise of a lawful right. If he was himself the Viharadhi-pathy, he did have a right to delegate functions of management toUpasena ; if he was not, he had neither the right to appoint a Viliaradhi-
1 (1910) 14 N. L. R. 400.
28flFERNANDO A..T.— Mator-Ue. lihamtnavisuddhi Them i*. Knlawnnr.
Dhatmnatlasri Thtro
pathy nor the right to appoint an Adhikari. His act therefore waseffective anti lawful only on the basis that he had already accepted theincumbency for himself.
Tho plaintiff produ< od a document executed in 1014 by Upasena inwhich reference is mado to several temples in which Upasena wasinterested and it is significant that he describes himself in the documentas the Adhikari of those temples and not as the Viharadhipathy. Theplaintiff’s explanation that Upasena was opposed to the use of the term“ Viharadhipathy ” is unacceptable. "He alleged that Upasena thoughtit an unbecoming title for a Mahanayake (as he then was), but I shouldhave thought the expression “Adhikari” which merely means Managerto be even less becoming. It may have been possible for the plaintiff tocontend that Gnaninda Sabha, having assumed the incumbency,immediately thereafter appointed a successor, but this contention wasnot available because Upasena was admittedly not a pupil of GnaniqdaSabha and was not therefore eligible to succeed. (Dhammajoti iSobita 1).
For these reasons I am of opinion that the plaintiff has failed to provethat his alleged tutor Upasena lawfully became the incumbent of theViharo, and the plaintiff’s own claim through Upasena must thereforenecessarily fail.
Even assuming however tho correctness of the finding of the learnedJudge that Upasena was the lawful incumbent, it is doubtful whetherthe plaintiff has successfully proved his right of succession to Upasena.The only sentence in his evidence relevant to this question was “ 1 becamethe pupil of Kodagoda Upasena by my being ordained as an Upasampadaabout 57 years ago ”. His claim that Upasena was his tutor has not beensubstantiated by any documents. He refers to a declaration made byhim for the purposes of the Buddhist Temporalities Ordinance of 1931in which the name of his tutor is alleged to have been specified, but madeno attempt to produce a copy of the declaration. Nor did he producohis ordination certificate from the Nikaya which would have been valuableevidence in support of bis claim. Moreover, he admitted that he had beenin Kandy for about 15 years prior to the Japanese raid in 1942 and thereis little or no evidence of actual acts of management on his part.
Having regard to the failure of the plaintiff to establish his right inlaw to the incumbency and to the admitted fact that the Vihara is now-possessed on behalf of the 1st defendant (who is a minor), it is unnecessaryto consider the evidence led for the defence for the purpose of establishingtho rights of the 1st defendant.
The appeal must be allowed and the plaintiff’s action dismissed withcosts in both Courts.
Gratiabn J.—I agree.-
[191-1) 16 A L. R. 40S.
Appeal allou'fd.