013-NLR-NLR-V-62-REV.-MAPITIGAMA-BUDDHARAKKITA-THERO-Appellant-and-D.-E.-WIJEWARDENA-and-other.pdf
Buddharakkila 'l'l^ero v. IV ijeivurtlenn
40
[In thb Privy Council]
Present: Viscount Simonds, Lord Reid, Lord Tucker, LordDenningREV. MAPITIGAMA BUDDHARAKKITA THERO, Appellant, andD. E. WIJEWABDENA and others, Respondents
Privy Council Appeal No. 10 op 1959J3. C. 183—D. G. Colombo (Inly.) 7338{L
Bu/Ulhist ecclesiastical laio—Vihare—Not a juristic person—Will—Creation of atrust for the benefit of a Vihare—Rights of the trustee, as against the Viharadi-pathi, in respect of the trust property—Buddhist Temporalities Ordinance{Cap. 222), ss. 2, 4 (1), 20, 25 (rf) (e).
A Buddhist Temple is not a juristic person and has no legal personality.
The Buddhist Temporalities Ordinance does not apply at all to propertywhich is vested, either by will or deed, in private trustees for the benefit of atemple as a charitable trust. Section 20 of that Ordinance, which vests allproperty belonging to a temple in the trustee or controlling viharadipathi ofthat temple, applies only to sanghika property which has been dedicated to thepriesthood as a whole, with all the ceremonies and forms necessary to effectdedication, but with special attention to the priests of a particular temple.
A testatrix devised a paddy field of 250 acres to the Raja Vihare ICelaniyaand entrusted to certain named trustees “ the management of the same for thobenefit of the said Vihare ”. Her executors assumed that it was their duty toconvey the land to the Viharadipathi and on 27th November 1942 they executeda deed by which they conveyed the land to the Viharadipathi and his successorsin office “ subject always to the conditions in the said will expressly contained,namely, that the management of the said property for the said Vihare shall boin the Trustees in the said will
Held, that the land did not vest in the Viharadipathi by virtue of soction 20of the Buddhist Temporalities Ordinance.
Held further, that the effect of the word “ management ” in the will was thattho trustees of the will wore the persons to doeido how tho incomo shoxild beapplied for the purposes of the Temple.
.A.PPEAT, from a judgment of tho Supremo Court reported in(1957) 59 N. L. R. 121. Special leave to appeal was obtained fromthe Privy Council in view of the order made by the Supreme Courtdismissing the appeal for non-prosecution. (59 N. L. R. 409.)
John Pennycvick, Q.C., with S. Bernstein, for the Plaintiff-Appellant.
Walter Jayawardene, for the Respondents.
3—LX IT
2J. X. R 10805—2,345 (7/60)
Cur. ado. valt
60
LORD DENNING-—Buddharakkita Thero v. Wijeivardena,
April 26, 1960. [Delivered by Lord Denning]—
This case arises out of the will of Mrs. Helena Wijewardena, a widowwho died on 10th November, 1940. She tcok a great interest in a famousBuddhist temple at 'Kelaniya called the Raja Maha Vihare (Great RoyalTemple) and by her will she gave 250 acres of land to it. Since her deaththe land has been managed by the trustees of her will. They have hadpossession of it and collected the rents and profits from it. They haveused the income for the purpose of the temple, as for instance, in makingimprovements to it, paying the tom-tom beaters, and so forth. Thiswent on for many years. But in 1954 the Viharadipathi (the HighPriest or chief incumbent) of the temple claimed that he was entitledto have from the trustees an account of the income they had receivedand to have them pay to him the moneys in their hands, and furthermorethat he was entitled to possession of the land itself.
On 6th July, 1955, the Judge of the District Court (Sirimanne, A. D. J.)held that the Viharadipathi was entitled to an account of the incomeand payment of it but that he was not entitled to possession of the land.The trustees of the will appealed to the Supreme Court of Ceylon(Basnayake, C.J. and Pulle, J.) who on 18th June, 1957, allowed theappeal and set aside the order of the. District Court. The Viharadipathinow appeals to Her Majesty in Council. He accepts the decision thathe is not entitled to possession of the land, but he claims that he is entitledto have the income paid over to him.
Their Lordships must point out that there is no suggestion that thetrustees of the will have mismanaged the property or misappropriated thefunds. They have applied the income for the purpose of the temple ;and in so far as this has been done with his consent or concurrence, theViharadipathi does not seek to disturb it. But he seeks to obtain pay-ment of any sums which were not paid out ’with his concurrence : andhe does seek to have the income paid over to him for the future. Heclaims that it is for him to apply it as he thinks fit for the purposesof the temple : and not for the trustees of the will to do it. TheDistrict Court decided in favour of the Viharadipathi on this point, butthe Supreme Court decided it in favour of the trustees of the will.
This issue depends largely on the true interpretation of the will. Mrs.Helena Wijewardena died on 10th November, 1940. By her will sheappointed her three sons to be her executors. The material gift wasin clause 5 :
“ I give two hundred and fifty acres out of all that paddy fieldcalled Kalawewa Farm situate in the North Central Province Ceylonto the Rajamal Vihare Kelaniya. The selection of the 250 acresI leave to my executors and the management of the same for thebenefit of the said Vihare I entrust to my Trustees hereinafter named. ”
She afterwards, in clause. 7, gave considerable property to her samethree sons as trustees for certain charitable purposes which she specified,including restoration work at the Kelaniya Temple, aiding her poorrelations and supporting Buddhist charitable institutions.
LORD DENNING—Btiddharalcfcita Thero v. Wijewardena
r> 1
The executors seem to have assumed that, under the provisions con-tained in clause 5, it was their duty to convey the land to ’ theViharadipathi. Accordingly they selected 250 acres out of the 1,000 acresof paddy fields : and on 27th November, 1942, they executed a deed bywhich they conveyed it to the then Viharadipathi, the ReverendMapitigama Dharmmarkkita High Priest and his successors in office“ subject always to the conditions in the said will expressly contained,namely, that the management of the said property for the said Vihareshall be in the Trustees in the said will. ”
A serious question has now arisen as to the meaning of the word“ management ” in the will and in the deed : but their Lordships observethat for many years after the execution of that deed, the trustees managedthe 250 acres in this sense, that they not only collected the income fromthe 250 acres, but they also applied it as they thought fit for the purposesof the Vihare. The then Viharadipathi, the Reverend MapitigamaDharmmarkkita died on 19th July, 1947, and was succeeded by theReverend Mapitigama Buddharakkita Thero, the plaintiff in this action.The trustees of the 'will continued to collect and apply the incomeas before. No complaint was made by the Viharadipathi until February1954, when his solicitor claimed the money in the hands of the trusteesas income of the 250 acres.
Have the trustees of the will been doing wrong all these years inapplying the income themselves for the purposes of the Vihare ? Thatdepends on the true interpretation of clause 5 of the will.
The Viharadipathi sought in Ills case before their Lordships to saythat a Vihare (Buddhist Temple) is a juristic person and as such entitledto accept and own property :and that accordingly when the testatrix
said :“ I give two hundred and fifty acres. … to the Rajamal
Vihare Kelaniya ” this operated as an outright gift to the Temple. TheirLordships cannot accept this view. There is a long line of authority toshow that a Buddhist Temple is not a juristic person. It is not like thedeity of a Hindu Temple. It is not a corporation. It has no legal per-sonality. The authorities to this effect are so numerous and so weightythat Mr. Pennycuick before their Lordships did not feel able to controvertthem.
The Viharadipathi next sought to say that, even though a Vihare isnot a juristic person, nevertheless the 250 acres were vested in him theViharadipathi by virtue of the Buddhist Temporalities Ordinance(chapter 222 of the legislative enactments of Ceylon). The materialprovisions of this Ordinance are as follows : —
“ 2. “ temple ” means vihare …. or any place of Buddhistworship.
4. (1) The management of the property belonging to everytemple …. shall be vested in a person …. dulyappointed trustee under the provisions of this Ordinance.
20. All property movable, and immovable, belonging or in anywise appertaining to or appropriated to the use of any temple,shall vest in the trustee …. for the time being of such tcmplo.
62
X.OR3D DENNINGBtiddhara kktta. 'I'hero v. Wijewardena
25. All issues rents moneys profits and offerings received by anytrustee for or on behalf of a temple shall with the sanction of thepublic trustee be appropriated by such trustee for the following pur-poses :
(here are set out several purposes directly connected with thetemple, but also)
the promotion of education.
…. the customary hospitality to bhikkhus and others
> y
The Viharadipatlii is himself the trustee of the Raja Muha Viliare dulyappointed under the provisions of the Ordinance.
At first sight sections 4 and 20 do seem wide enough to cover propertywhich is given by will to a temple such as is contained in the firstsentence of clause 5 of the will. Such property would seem to be*“ property belonging to ” a temple. But their Lordships have come tothe conclusion that this is not correct. If the definition of “ temple **is written into clause 20, we find that it says that all property belongingto a Vihare or any place of Buddhist worship shall vest in the trustee.But a vihare is not a juristic person. A place of Buddhist worship isnot a juristic person. It cannot have property belonging to it. Someinterpretation must be sought beyond the literal words. To what thendoes section 20 apply ? The answer given by the Supreme Court ofCeylon was that it deals only with sanghika property which has beendedicated to the Sangha, that is, it deals only with property which hasbeen dedicated to the priesthood as a whole, with all the ceremonies andforms necessary to effect a dedication, but with special attention to thepriests of a particular temple. Viewing the object and intent of theOrdinance, their Lordships think this is correct. Vast temporalities weregranted in olden days by the Sinhalese kings to the Sangha (priesthood)of the ancient temples. These priests had renounced all worldlypossessions and were unable adequately to protect and manage theirproperties. The Buddhist Temporalities Ordinance was passed so thattrustees could be appointed to manage such properties. It did notapply at all to property which was vested in private trustees for thebenefit of the temple as a charitable trust.
Mr. Pennycuick seemed disposed to concede that, so far as dispositionsinter vivos were concerned, the Ordinance only applied to property whichhad been dedicated to the sangha with all the ceremonies and formalitiesnecessary to effect a dedication, see W ickremcsinghe v. Unnanse 1 :but he submitted that, so far as dispositions by will were concerned,there was no need for any ceremonies or formalities. No gift by willcould ever take effect, he said, if such ceremonies or formalities wereneeded : because of necessity the donor was not able to be present tocomply with them. Their Lordships realise the force of this contention,but they do not feel able to give effect to it. It must be remembered
1 (1921) 22 N. L. B. 236.
LORD DENNING—BxiddharaJcJcita Thero v. Wijeioardena
53
that it is only in comparatively recent times that a person in Ceylonhas been permitted to dispose of property by will : and the legislaturemay well be presumed to have intended that gifts by will should takeeffect only under the Ordinances regulating wills and trusts and not underthe Buddhist Temporalities Ordinance.
Their Lordships think that this can be tested by taking this very case tUnder clause 5 of the will, the testatrix clearly intended that the 250 acresshould be managed by the trustees of the will: and that it should beapplied for the purposes of this particular temple only. But if section 20of the Ordinance applies so as to vest the 250 acres in the Viharadipathi,it would mean that the management of the property would be vestedin him, see section 4 of the Ordinance ; and the income could be applied,not only for the purposes of this particular temple, but also for the variouspurposes of section 25 of the Ordinance. Thus the provisions of clause 5of the will would be overridden by the terms of the Ordinance. TheirLordships cannot agree to an interpretation of the Ordinance which wouldlead to this result.
Their Lordships are of opinion therefore that the 250 acres of land didnot vest in the Viharadipathi by virtue of section 20 of the BuddhistTemporalities Ordinance.
There remains a further point which was taken on behalf of theViharadipathi. Even if the 250 acres did not come within the Ordinance,nevertheless the trust in the will must be given effect. On its properconstruction it was, said Mr. Pennycuick, a gift for the general purposesof the Temple. The Temple was not merely a building. It was acharitable institution. A gift to it must be construed as a gift for thepurposes of the institution which can and should be carried out bypaying the income to the governing body of the institution. It wasa valid charitable trust. The income should therefore, he said, be paidover to the Viharadipathi as the trustee of the Temple.
Their Lordships feel the force of this argument but they do not thinkit should be given effect. The effect of the first sentence in clause 5of the will is cut down by the second sentence : “ The management ofthe same for the benefit of the said Vihare I entrust to my TrusteesTheir Lordships think that the word “ management ” in this sentenceis not to be confined to management of the property strictly so called,that is, to the cultivation and letting of the land and the collection ofthe income. It extends also to the management of the income. Thewords “for the benefit of the said Vihare” connote that the trusteesare to consider the ways in which the Vihare should benefit. In shortthat they should decide on the particular purposes to which the incomeshould be applied. And their Lordships are the more disposed to acceptthis interpretation when they remember that for 12 years or more theparties have acted on that footing.
True it is that this means that there is no great distinction between theposition of the trustees of the will under clause 5 and their positionunder clause 7, except that the purposes are different. But their
2*J. *T. It 10S05 (7/60)
64
Kanagaaabai v. Kimpamoorthy
Hardships feel it unnecessary to search for any further distinction.The intention of the testatrix may well have been to effect a distinctionas to the purposes and nothing more.
In the result their l«ordships are of opinion that the trustees of the willare the persons to decide how the income should be applied for thepurposes of the Temple. They find themselves in agreement with thejudgment of the Supreme Court of Ceylon. They will humbly adviseHer Majesty that this appeal should be dismissed. The appellant mustpay the costs.
Appeal dismissed.