SANGAPALA THERO V. TELWATTE NAGITHA THERO

007-SLLR-SLLR-1983-2-SANGAPALA-THERO-V.-TELWATTE-NAGITHA-THERO.pdf


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11983] 2 SnL. R.
SANGAPALA THEROV.
TELWATTE NAGITHA THERO
SUPREME COURT
WIMALARATNE, J.. VICTOR PERERA. J. AND COLIN THOME, J,
S.C. APPEAL NO, 37/82; C.A. APPEAL NO. 633/76 (S.C.) ANDD.C. COLOMBO NO 13788/LJANUARY 26, 1983.
Buddhist Ecclesiastical Law – Succession to the Viharadhipathiship of a temple.
The Rev. Piyaratana Tissa Thero. who was the first incumbent of theAbinawaramaya (now known as the Gothami Viharaya) as well as theSailabimbaramaya in Paramparawa rule, robed and ordained two pupils. Rev.Ariyawansa and Rev. Amarawansa, the former of whom was admittedly thesenior.
The plaintiff claimed that the said Rev. Piyaratana by an ola leaf writing (P 17A)nominated Rev. Amarawansa to succeed him as incumbent of Abinawaramaya,and that according to the Sissyanusisya Paramparawa rule of succession, he,the plaintiff, has succeeded as Viharadhipathi of the said temple.
The defendant stated that P17A is not a nomination of Rev. Amarawansa assuccessor and that Rev. Ariyawansa, as the senior pupil of Rev. Piyaratanasucceeded him and the said Ariyawansa by a deed of 1951 appointed Rev.Seelawimala to succeed him, and that on the death of the said Rev. Seelawimalain 1972, the defendant became the rightful Viharadhipathi.
Whether P17A was a valid nomination of a successor or merely the expressionof a wish, was the main deciding factor of the case —
Held —
P17A is only an arrangement for the better management of the temples duringRev. Piyaratana's lifetime, and Rev. Ariyawansa as the senior pupil whosucceeded Rev. Piyaratane as Viharadhipathi of the Abinawaramaya resided atthe said temple and functioned as Viharadhipathi after Rev. Amarawansa's deathand appointed Rev. Seelavimala to succeed him. and from Rev. Seelawimala theoffice has devolved on the defendant.
Case referred to:
(1) Baddegama Ratnasara Thero v. Basheer( 1964) N.L.R. 433.
APPEAL from an order of the Court of Appeal
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Sangapala Thero v. Telwatte Nagnha Thero (Wimalaratne. J.)
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AC. Gooneratne Q.C. with C. Ganesh and Mrs. H. Jayalath for the Plaintiff—Appellant.
J. W. Subasinghe S. A. with W. Rajapaksa and Miss E.M.S. Edirisinghe for theDefendant-Respondent.
Cur. adv. vult
February 16. 1983WIMALARATNE, J.
The Abhinawaramaya in Borella (now known as the GofhamiViharaya) was founded in the year 1 905 by a pious and devoutBuddhist lady, the late Appolonia Soysa. It has been decided bythe Supreme Court in S.C. 159/61 D.C. Colombo 8741/L thatthere had been a dedication of this temple to the Sangha on theWesak full moon day, 1905. Admittedly the Rev. Piyaratana TissaThero was the first incumbent of the temple as well as of theSailabimbaramaya in Dodanduwa and the rule of succession isthe Sissyanusisya paramparawa rule. He and his co-pupil Rev.Saralankara, who was the resident priest at Mangalaramaya inBeruwela, jointly robed and ordained two pupils. Rev. TelwatteAriyawansa and Rev. Telvyatte Amarawansa. the former of whomwas admittedly the senior. At the time of dedication both thesepriests resided with Rev. Saralankara at Beruwela. whilst Rev.Piyaratane resided at Dodanduwa.
It is the case of the Plaintiff that Rev. Piyaratana by an ola leafwriting dated 15.1.1907(P17A) nominated the Rev.
Amarawansa to succeed him as incumbent of Abhinawaramaya,and that according to the Sissyanusisya Paramparawa rule ofsuccession he. the Plaintiff, has succeeded as Viharadhipathi ofthe Abhinawaramaya:
The case for the Defendant is that P17A is not a nomination ofRev. Amarawansa as successor, and that Rev. Ariyawansa, as theSenior pupil of Rev. Piyaratana succeeded him on his death inMay 1907. The Defendant claims that Rev. Ariyawansa by a deedof 1951 appointed Rev. Seelawimala to succeed him. and-thaton the death of Rev. Seelawimala in 1972 the Defendant becamethe rightful Viharadhipathi.
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[1983] 2 Sri L. R.
The case therefore revolves around the interpretation of P17A.If it is a valid nomination of a successor, the Plaintiff hasestablished his case. If it is not a nomination of a successor, thePlaintiff's case fails. P17A consists of the last two pages in abook P17 known as the "Prathi Mokshaya" written by Rev.Piyaratana at Dodanduwa. The book consists of a sheaf of looseola leaves bound together between two thin strips of wood with acord. The writing is in the Pali language by a process ofinscribing with a panhinda (a pointed object). The book had beensent by Rev. Piyaratana to Rev. Saralankara, and preserved in thelibrary of the Mangalaramaya. It was produced in court by apriest of that temple, and a presumption of its genuineness hadbeen drawn by the District Judge. P1 7A was translated from Palito the Sinhala language by an erudite bhikkhu. the Rev.Dambulumeye Gnanarathana, a lecturer in Pali at theVidyalankara University. The authenticity of P17, and theparticular translation which has been marked as P17B has notbeen challenged before us. P1 7B reads as follows:—
§gdd>©6d ©coded© ©Sdood ®8©)".
Cera gjSe©>a®sod gd e® eon© eSeari^ad <& eO© 3o: cpgdSqjd© Co s<S<S0agrao f© Qjgeg cfOddxs©® dO®. ©©<; e®SSJ® ©©d ©dj«6d <^d3®©©j®ide©@. <3® qb! cjg Cod §ed ddbeQd t,daod> Qed edernSd ®®db> caSS®©eeacfyde©®. ®tao©S ©cod© @0© Ojg©© ©®d <?5i©o sosqecaS qSoeodb® a® ©and©Cfo 3Bd SAana eft© o© @®©dj«6 cpgdSead© g©©©. 6® cfo e©ed eabeari ©q©SO OjCD^ So© tfoegfcSca ecod® ©®i© ®eaK»&3»©edd ecag <poa©deefld ®eod •
q^> ®bkS 0peoc3©c) opfee6d©3 So®. ®eaaco6©o©<; ©® gSa»G SegQd gdo©e©©)S® Oraeod cped©) ©d3; cfaed §c3 a®B© ©nd© g&&Q cf®d©ws fiog© dcf®©Q>d>®ed qSa© an©e©d 36®© oSeS e3©o®© ©jOso. decoSd ®eoi ee©e©dcf®d©o© Stag© d cpdb®© ooqsxp &&SO o©d®; ©6d d (pdxSO eaoectf ©G&dOacSca© 0djOc3© SgQsO©© odOg cftca. {feed §© <3®b Q cob© OoS© Q cfddOo©&&£) e® eea^S®© oaaded e©eo®d ©go® e; o°3©>®o dd®© gogd ©6d ®®a>3© d^nd© caeog ed 3d®© a^eS ©d@si§. deeoSd cfSbOog flog© @®fi d®©@®@eo©Odra.
e®a <aekSfi)Q ®oeoQ)c3b® 3a»dsd eOea© QodSg ox5)Oo©x5 cpgaSesd© coxasOd©®§gd ©coded 8Sa©d c^eSd ®© eqqeod cod6© os6d ©a ©oedScoegidOd gd fSp egOa^g© eeca^ SSabdbeeod <pOx5a Scad©® ddea <36ddO©c£."
<S®ra o^cod Cfo© 1 gd© c»g eaded dOfd? Qocdg CfgQx;© Cfo© 2 gdeS oddead
e®©©.
gg«§®i®d «;o«6d©© ddSd (o«83©, <f{®.d),ge©gjdj®ed <j3ofi>, 3pD0oo»d ®«3©aed eato^Dcfduoauucoed eraaxDidd
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Sangapala Thero v. Telwatte Nagitha Thero (Wimalaraine. J.)
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The translation of P17B from Sinhala to English, as acceptedby the Court of Appeal, is as follows :—
'This book containing 'Prathi Mokshya' has been with me fora long time and I was unable to send it to you until I got thisopportunity. I would also like to mention another matterhere. I am now 80 years of age and am infirm and feebleand cannot get about. You are well aware that we haveaccepted Abhinawaramaya Vihara at Welikade Colombo.The Chief laywoman Appolina Soysa and the other'Dayakayas' have shown us great devotion for a long time.They take a keen interest (in the temple). I think that they willbe greatly benefited if they get a prudent resident Bhikkhu.The chief laywoman wishes to have an efficient priest as thechief resident Bhikkhu. I think that our dear pupilAmarawansa Bhikkhu who is learned, efficient and eloquentwill be suited to reside as the Viharadhipathi ofAbhinawaramaya. Therefore take my word and sendAmarawansa Bhikkhu to manage that temple. By doing sothe temple will be improved in no time. Our dear pupil, theefficient and erudite Bhikkhu Ariyawansa is suited to resideat this Sailabimbaramaya Temple and to organise what hasto be done there. By doing this, I will be free of burdens andcould lead a peaceful life. Therefore make arrangements tosend Bhikkhu Ariyawansa here. This is sent by PiyaratanaTissa Thero the tutor priest at Sailabimbaramaya ViharaDodanduwa to Saralankara Residing at MangalaramayaTemple, Beruwela. This Sunday Duruthu Full Moon Day inthe year 2450 after the Parinibbana of Lord Buddha".
Both the District Judge and the Court of Appeal haveinterpreted this document to be a mere expression of a wish byRev. Piyaratana in regard to the management of theAbhinawaramaya (and of Sailabimbaramaya) and not as apermanent appointment of Rev. Amarawansa to succeed him asViharadhipathy of Abhinawaramaya.
Mr. Gooneratne for the Plaintiff-Appellant has posed thequestion as to why a mere temporary arrangement regarding themanagement of a temple for a short period of time
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[1983] 2 Sri L. 8.
(Rev. Piyaratana was then 80 years of aQe) should have beenincorporated in a formal document such as an ola leaf "PrathiMokshaya". He also emphasises the significance of the wordsused such as cpSasOSs) (Adipachchena) in reference to Rev.Amarawansa in the original Pali; and of the words Cf3es6!> ernOscssS(Adhipathi Bhawayen Visimata) in the Sinhala translation.
Mr. Subasinghe for the Defendant-Respondent hasemphasised the background to the writing of P17A. It waswritten at a time, soon after the dedication in 1905. and thedesire of Rev. Piyaratana would have been to see that an efficientpriest acted as incumbent during his old age. It would thereforehave been natural for him to have made a temporaryarrangement in respect of Abhinawaramaya. and at the sametime he directed that his senior pupil should assist him atSailabimbaramaya. He expressed his wish in these terms :—'Therefore take my words and send Amarawansa Bhikkhu tomanage that temple (Abhinawaramaya)". This, contends counsel,was by no means a nomination by Piyaratana of Amarawansa tosucceed him after his death. If it was meant to be a nomination itis more likely that it would have been communicated directly toAmarawansa and would also have been couched inunambiguous terms.
It has not been the Plaintiff's case that by P1 7A Rev. Piyaratanarenounced his right to officiate as Vi ha rad hi path i ofAbhinawaramaya. The office of Viharadhipathi is inalienable, anda priest on whom this office has devolved, whether according tothe rule of Sissyanu Sisya Paramparawa or by appointment,holds it in his lifetime to pass it according to law to his seniorpupil or to such other pupil as he may select.
It is quite usual however for a Viharadhipathi to appointanother pupil to manage the temple during his absence orillness. By such an appointment the Viharadhipathi does notabandon his rights as de jure Viharadhipathi. His rights enure forthe benefit of his successor. Such an arrangement for themanagement of a temple during the incapacity of aViharadhipathi is quite different from the nomination of a
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Sangapala Thero v. Telwatte Nagitha Thero (Wimalaratne. J.)
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successor. When an incumbent or Viharadhipathi wishes todeviate from the normal rule of pupillary succession bynominating a priest who would not otherwise have succeededhim. the intention to nominate must be clear and unambiguous.There should be no room to doubt that the nomination is that ofa successor. It is not necessary to use words such as "I nominatemy pupil to succeed me as Viharadhipathi" if a clear intentioncould be gathered that the nomination was to be of a person tobe the Viharadhipathi. The case of Baddegama Ratanasara Therov. BasheeH1' is a good illustration of the intention to nominate asuccessor being gathered although direct words of nominationwere not used. The Rev. Baddegama Dharmaratana NayakaThero appointed his obedient pupil the Rev. BaddegamaRatanasara Thero as Adhikari of the Kovilkanda Purana Viharayain Matara, with power of management of the temple and with anorder that he should not assign or hand over the viharaya toanyone "who does not belong to our succession". T. S. Fernando.J. took the view that "such an injunction had no place in a deedof appointment of a mere manager. It was more appropriate in adeed appointing a person to perform all the functionscustomarily informed by the monk who is now commonly knownas the Viharadhipathi" at 436.
Can an intention to appoint or nominate Rev. Amarawansa "assuccessor" be gathered from P17A ? They are the last two pagesof the 'Prathi Mokshaya'. which is generally not meant forrecording such nominations. Rev. Piyaratana wants to inform(<rfS50®d) a certain matter which he says he has not recordedearlier. It contains no order or direction (<p@6tS2>®eS).The dayakayas would, he says, benefit if they get a prudentresident bhikkhu; and also the donor Mrs. Soysa wished to havean efficient priest as Chief resident bhikkhu. Rev. Piayratanathinks that Rev. Amarawansa is suitable to reside asViharadhipathi, and therefore requests Rev. Saralankara to sendRev. Amarawansa from Beruwela to manage Abhinawaramaya, asby doing that the temple would be improved in no time. At thesame time he requested that Rev. Ariyawansa be sent toSailabimbaramaya to organise what has to be done there. Ifthose two requests were fulfilled he would be free of burdensand could lead a peaceful life.
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It seems to me that Rev. Piyaratana. realising his incapacitythrough age to manage the two temples, desired that he shouldbe assisted by his two pupils to manage them during his life-time. It would be quite unsafe to infer from the wording of thedocument, and from the surrounding circumstances a selectionof a successor. This writing is only an arrangement for the bettermanagement of his temples during his lifetime; whicharrangement he communicated to his co-pupil with whom histwo pupils were residing at Beruwela. The Rev. Piyaratanaremained Viharadhipathi until the time of his death; and on hisdeath according to the rule of succession his senior pupil Rev.Ariyawansa succeeded him as Viharadhipathi of theAbhinawaramaya.
Rev. Ariyawansa as the senior pupil did not forfeit his right tothe incumbency by residing at Sailabimbaramaya after the deathof Rev. Piyaratana. for that temple was a temple of the sameparamparawa. He resided there in deference to the wishes of histutor. No sooner Rev. Amarawansa died he started functioning asViharadhipathi, notwithstanding the fact that there were otherpupils of Rev. Amarawansa. Not only did he reside at the GothamiViharaya, but he also nominated Rev. Seelawimala to succeedhim, and from Rev. Seelawimala the office has devolved on thedefendant.
I am therefore of the view that the District Judge and the Courtof Appeal were correct in dismissing the plaintiffs action. Thisappeal is accordingly dismissed with costs.
VICTOR PERERA. J. – I agreeCOUN THOME. J. – I agree
Appeal dismissed.