004-SLLR-SLLR-1997-2-BALAPITIYA-GUNANANDA-THERO-v.-TALALLE-METHANANDA-THERO.pdf
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Balapitiya Gunananda Them v. Talalle Methananda Them
101
BALAPITIYA GUNANANDA THERO
v.
TALALLE METHANANDA THERO
SUPREME COURT.
G. P. S. DE SILVA, C.J.,
RAMANATHAN, J. ANDDR. BANDARANAYAKE, J.
S.C. APPEAL NO. 12/96.
A. NO. 571/89(F).
C. PANADURA 18331/L.
MARCH 4, 18 AND 26 AND APRIL 4, 1997.
Buddhist Temporalities – Claim to be Viharadhipathi – Sisyanu SisyaParamparawa rule of successbrt – Seniority by robing – Expulsion – Admission ofdocuments – Cursus curiae.
The priest who was robed first where the robing was on the same day, is seniorand is entitled to succeed to the Viharadhipathyship.
Where a document is admitted subject to proof but when tendered and read inevidence at the close of the case is accepted without objection, it becomesevidence in the case. This is the cursus curiae.
As it was proved that the plaintiff was robed first, he is entitled to succeed to theViharadhipathiship.
Expulsion of a priest from the Nikaya and priesthood cannot be proved by themere entries in registers. It was alleged that the priest was unaware of hisexpulsion. Expulsion can never be a unilateral act in view of the consequences itentails. Expulsion means nothing less than the immediate termination of thepriest's life as a Bhikku.
Where there is no proof of charges being preferred, of an inquiry and theobservance of the audi alteram rule, there can be no valid expulsion.
Cases referred to:
Somaratne v. Jinaratna 42 N.L.R. 361.
Amaraseeha Thero v. Sasanatilleke Thero 59 N.L.R. 289, 290 (Last paragraph).
Sri Lanka Ports Authority and Another v. Jugolinija – Boat East [1981] 1 Sri LR.18, 23, 24.
Mahanayake Thero, Malwatte Vihare v. Registrar General39 N.L.R. 186.
Sumangala Mahanayake Thero v. Registrar General 42 N.L.R. 251.
Janananda Therunnanse v. Ratanapala Therunnanse 61, N.L.R. 273.
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APPEAL from judgment of Court of Appeal.
L. C. Seneviratne, P.C. with Jayantha de Almeida Gunaratne, D. P. M.Gunawardena, H. V. S. Situge and Upu! Ranjan Hewage for defendant-appellant.
T. 8. Dissanayake, P.C. with P. M. B. Peramune for the plaintiff-respondent.
Cur. adv. vult.
May 02, 1997.
G. P. S. DE SILVA, C.J.
The plaintiff instituted these proceedings against the defendantseeking inter alia a declaration that he is the Viharadhipathi of theKettarama Viharaya and the Sudharmakara Pirivena, Pinwatta,Panadura. In the plaint he averred that Devananda Thero was the lastViharadhipathi of this viharaya and that he died on 13.2.83; that hebeing the senior pupil of Devananda Thero he succeeded to theViharadhipathiship; that the defendant denies the seniority of theplaintiff and is disputing the plaintiff's right to be the Viharadhipathi.The defendant in his answer denied the plaintiff's claim and pleadedthat he is the senior pupil of Devananda Thero and was entitled to adeclaration that he is the lawful Viharadhipathi of the KettaramaViharaya.
After trial, the District Court dismissed the plaintiff’s action, andupheld the claim of the defendant that he is the lawful Viharadhipathiof the temple and Pirivena. The plaintiff preferred an appeal to theCourt of Appeal which reversed the judgment of the District Courtand granted the declaration that the plaintiff is the lawfulViharadhipathi. The present appeal is by the defendant to this court.
The following facts are not in dispute between the parties:
Devananda Thero was the Viharadhipathi till his death on13.02.1983;
Both the plaintiff and the defendant are pupils of DevanandaThero;
Succession to the Viharadhipathiship is governed by the rule ofSisyanu Sisya Paramparawa;
Both the plaintiff and the defendant were robed by DevanandaThero on the same day, namely 27.06.1968;
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Balapitiya Gunananda Thero v. Talalle Methananda Them
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103
The two principal matters which arise for consideration on thisappeal are first, whether it is the plaintiff or the defendant who is thesenior pupil of Devananda Thero, and secondly whether thedefendant was lawfully expelled from the Amarapura Nikaya and thepriesthood by the Mahanayake and the Mahasangha Sabhawa of theNikaya as claimed by the plaintiff (Issues 13 and 14). I wish to addthat issues 13 and 14 were answered in favour of the defendant bythe District Court but the Court of Appeal reversed this finding andheld against the defendant.
I shall deal first with the question of seniority. Since both theplaintiff and the defendant were robed on the same day the truequestion that arises for decision is whether it was the plaintiff or thedefendant who was robed first on 27.06.1968. The party who wasrobed first will be entitled to succeed to the Viharadhipathiship. (SeeSomaratne v. Jinaratna ').
The plaintiff in his evidence claimed that at the robing ceremonyheld on 27.06.1968 he was robed first and that the defendant wasrobed thereafter. Plaintiff's oral evidence was supported by the oraltestimony of Dadalle Gnanaloka Thero who was the Parivenadhipathiand a member of the Karaka Sangha Sabha. Likewise the defendantgave evidence and asserted that it was he who was robed first andnot the plaintiff. The claim of the defendant was supported by the oralevidence of an ex-priest named Rupasiri. Both Mr. L. C. Seneviratne,for the defendant-appellant and Mr. T. B. Dissanayake for the plaintiff-respondent addressed us at length on the contradictions and otherinfirmities in the oral evidence adduced by each party. Had the caserested solely on the oral testimony placed before the District Courtthere would have been much force in the submission ofMr. Seneviratne that the Court of Appeal should not have interferedwith the finding of fact arrived at by the trial judge.
There are however other relevant considerations, namely, thedocumentary evidence relied on by each party in support of his case.Apart from the oral evidence, the District Judge has found support forhis finding that the defendant was the senior pupil on the documentsV16 and V29. VI6 is the report of the accounts relating to theexpenses incurred and donations received for the funeral ofDevananda Thero. V29 is also a similar document. On aconsideration of these documents the District Judge has found thatthe defendant has functioned as the Viharadhipathi after the death of
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Devananda Thero. It seems to me, however, that V16 and V29 aredocuments of an equivocal nature, since the defendant admittedlywas the pupil resident at the Viharaya and in the normal course ofevents he would have kept the accounts in respect of the funeralexpenses. It is not a circumstance which even tends to support hisclaim to be the senior pupil of Devananda Thero (see AmaraseehaThero v. Sasanatilleke Therom).
Mr. Seneviratne placejd much reliance on the writing (last will)marked V27 upon which the defendant claimed that he wasappointed by Devananda Thero to be his successor to theViharadhipathiship of the temple. This was a document which wasvery much in controversy at the trial but the Court of Appeal has notgranted leave to appeal to this court on the question of anappointment upon V27. The relevance of V27 as corroboration of thedefendant's claim to be the senior pupil would not in my view arise forconsideration in this appeal. It would then appear that the case forthe defendant rests largely, if not entirely, on the oral testimony.
On the other hand, it is contended on behalf of the plaintiff that hisoral evidence is supported by the documents P3, P4 and P5. P3 andP4 are obituary notices in respect of the funeral of Devananda Thero.Both P3 and P4 have been signed by the plaintiff and defendant as“pupils" but the point relied on is that the plaintiff's name appearsfirst and the defendant’s name appears thereafter. Mr. T. B.Dissanayake submitted that the order in which the names appear inP3 and P4 is a pointer to the fact that the plaintiff is the senior pupilof Devananda Thero. Mr. Seneviratne, however, strenuouslycontended that the order in which the names appear in P3 and P4 isaccording to seniority by ordination (Upasampada). It is to be notedthat there was no suggestion put to the plaintiff with reference to P3and P4 that the order in which the names appeared was accordingto seniority by Ordination. It is true that the plaintiff when questionedas to how the priests take their seats at various ceremonies did saythat it was in the order in which they were ordained but this was notwith reference to P3 and P4. As pointed out by Mr. Dissanayake, if thenames in P3 and P4 were according to seniority by ordination, thename of Dadalle Gnanaloka should have appeared first for he wouldhave been ordained much earlier than either the plaintiff or thedefendant. Moreover, it is upon the death of the Viharadhipathi thatthe question of succession to the Viharadhipathiship arises and
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therefore the publication of the obituary notices is an occasion ofsignificance; it is an occasion on which the question of seniorityassumes importance. I hold that the order in which the names of theplaintiff and the defendant appears in P3 and P4 is a circumstancewhich tends to support the plaintiff’s claim that he is the senior pupil.
P5 is the other document relied on by the plaintiff. P5 is a handbillprinted by the Dayaka Sabha giving notice of the robing ceremony ofthe plaintiff and the defendant. The point of relevance is that theplaintiff's lay name appears first and the defendant’s lay name appearthereafter. Mr. Dissanayake's submission that the order in which thenames are set out in P5 is an indication of the order in which the“novices" are to be robed seems to be well founded. P5, however,was marked in evidence subject to proof and the District Court heldthat the document was not proved, although P5 was read in evidenceat the close of the plaintiff’s case without objection. This finding of theDistrict Court was reversed by the Court of Appeal on the basis of thedecision in Sri Lanka Ports Authority and another v. Jugolinija – BoatEasPl). In that case when P1 was marked in the course of the trialobjection was taken but when the case for the plaintiff was closedreading in evidence P1, no objection was taken by the opposingcounsel. Chief Justice Samarakoon, expressed himself in thefollowing terms. “If no objection is taken when at the close of a casedocuments are read in evidence they are evidence for all purposes ofthe law. This is the cursus curiae of the original courts. The contentsof P1 were therefore in evidence as to facts therein (vide section 457of the Administration of Justice Law No. 25 of 1975) and it is too latenow in appeal to object to its contents being accepted as evidenceof facts". Mr. Seneviratne argued that the Court of Appeal was in errorin holding that P5 was a part of the evidence in the case because thelearned Chief Justice based his decision on the provisions of section457 of the Administration of Justice Law which was repealed manyyears ago. I do not agree. The cursus curiae of the original courts (amatter on which the learned Chief Justice was eminently qualified toexpress an opinion) is independent of the reference to the provisionsof section 457 of the Administration of Justice Law which appears inparenthesis. I accordingly hold that the ruling of the Court of Appealin regard to P5 is correct and P5 must be considered as part of theevidence in the case.
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On a consideration of the totality of the evidence, I hold that P3, P4and P5 tend to corroborate the evidence of the plaintiff that it was hewho was robed first at the robing ceremony and that the plaintiff istherefore entitled to the declaration that he is the lawfulViharadhipathi of the Viharaya and Pirivena which are the subject-matter of this action (paragraph (a) of the prayer to the plaint).
The aforesaid finding is sufficient to dispose of the appeal.However, since both counsel made submissions at length (orally andin writing) on the question of the expulsion of the defendant, I think itis right and proper to consider that matter as well. It is commonground that the expulsion of the defendant from the Nikaya and thepriesthood took place after the action was filed on 13.6.83. Therelevant issues (13 and 14) were raised by counsel for the plaintiffafter the plaintiff’s case was closed and while the defendant wasunder cross examination. The first question for consideration iswhether there is evidence of the alleged “expulsion". The plaintiffrelies on the documents P10, P6 and P7. P10 is a letter dated 18.8.83addressed to the Commissioner of Buddhist Affairs by theMahanayake of the Nikaya informing him that the defendant hadbeen expelled from the Nikaya and the priesthood. P6 and P7 arecertified copies of the defendant's Samanera Bhikku Register and hisUpasampada Bhikku Register respectively. In the relevant cages inP6 and P7 there is an entry which reads "expelled from the Nikayaand priesthood in terms of the request of the Mahanayake Thero byhis letter dated 16.8.83." This clearly is a reference to P10.
The defendant in his evidence denied that he was ever informed ofthe alleged expulsion. He testified that no charges were framedagainst him, no inquiry was ever held and no opportunity was evergiven to him to explain the alleged misconduct. Having regard to (a)the defendant's evidence and (b) the fact that the alleged expulsionvery scrim.;:; y e’fccts the rights of the defendant and (c) the wordingin the issues 13 and 14, the burden was undoubtedly on the plaintiffto establish the fact of expulsion and the validity of the expulsion.This the plaintiff failed to do; no evidence whatever was led ofcharges being framed against the defendant, of an inquiry that washeld, and the defendant being heard in his defence. The defendant’sdenial of charges being served on him, of an inquiry being held andan opportunity of being heard in his defence stands uncontradicted. Iam in entire agreement with Mr. Seneviratne’s submission that none ofthe documents relied on by the plaintiff prove even the decision to
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expel the defendant from the Nikaya and the priesthood, much less avalid decision to expel him. Expulsion can never be a unilateral act inview of the consequences it entails. Expulsion means nothing lessthan the immediate termination of the defendant’s life as a Bhikku.
Mr. Dissanayake cited the case of Mahanayake Thero, MalwatteVihare v. Registrar Generali4 That was a case where theMahanayake Thero wrote to the Registrar General that he hadremoved Ratnajoti Thero’s name from his register and requested theRegistrar General to make the necessary modification in terms ofsection 41(5) of the Buddhist Temporalities Ordinance. The RegistrarGeneral did not comply with the request and the Mahanayake Therosought a writ of Mandamus on the Registrar General. Ratnajoti Therowas allowed to intervene in the proceedings and he, by way of anaffidavit questioned the motives underlying the application of theMahanayake Thero. Soertsz J„ while expressing the view that “aclear case has been made out for the issue of a writ directing theRegistrar General to modify his registers” yet did not ultimately issuethe writ in view of the “special circumstances" of the case. Said thelearned Judge “Suffice it to say that I am satisfied on the materialbefore me that there is a substantial dispute between the intervenient(i.e. Ratnajoti Thero) on the one side and MorontuduweDhammananda Thero and the Mahanayake Thero on the other, foradjudication and determination by a proper tribunal in a regularaction. In this state of things were I to make the order for a writ ofMandamus absolute, I feel I should be placing the intervenient in aposition of great disadvantage and even of great danger”(emphasis added at page 192). Keuneman J., in SumangalaMahanayake Thero v. the Registrar General‘5) took a similar view.While refusing to issue a writ of Mandamus on the Registrar-Generalin the exercise of his discretion, Keuneman, J„ observed “I am notsatisfied that the real motive of the Mahanayake Thero and of theother members of the Sabha in pressing for a writ of Mandamus is notto obtain a bloodless victory in the matter of the appointment to theoffice of Viharadhipathi of Sripadasthana. for. as Soertsz, J.. pointedout in the previous case, once the intervenient’s name is taken off theregister, he is liable to prosecution. His position becomes one ofgreat embarrassment and even danger." (at page 256).
Basnayake, C.J., (with Sansoni J., agreeing) in JananandaTherunnanse v. Ratnapala Therunnansei6) considered the scope ofsection 41(5) of the Buddhist Temporalities Ordinance and stated
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“The absence in section 41(5) of any machinery for affording anopportunity of being heard to any person adversely affected by anycorrection, addition or alteration is a further indication that thecorrections etc., which fall within its ambit are only such as are of aroutine nature and are undisputed and do not prejudice the rightsof others …" at pages 276 and 277 (emphasis added).
Mr. Dissanayake further argued that once the entries in P6 and P7were made, then in terms of section 41(6) of the BuddhistTemporalities Ordinance those entries are prima facie evidence “ofthe facts contained therein in all courts and for all purposes." Havingregard to the facts and circumstances of this case, I do not agreewith this submission. It is of the utmost relevance to note that theentries in P6 and P7 were made not only after the dispute as to thesuccession to the Viharadhipathiship had arisen but also after it hadculminated in the present action. In other words, the letter P10 waswritten and the entries in P6 and P7 were made at a time when thedispute was before court. The defendant has denied any knowledgeof the expulsion and has challenged its validity. The plaintiff has notadduced proof of the expulsion: P10 is not a letter of expulsion; noevidence was led of charges being preferred, of an inquiry, and theobservance of the audi alteram partem rule. In this state of theevidence, I entirely agree with the submission of Mr. Seneviratne thatthe amendments to P6 and P7 do not constitute prima facie evidence"of the facts contained therein" within the meaning of section 41(6) ofthe Buddhist Temporalities Ordinance.
The Court of Appeal has not correctly addressed itself to theserelevant matters. I accordingly hold that the Court of Appeal was inerror in concluding that “the defendant had been expelled from theNikaya after due inquiry in which he participated…" There is a totalwant of evidence of a "due inquiry."
In view of my finding in favour of the plaintiff on the question of"seniority", the appeal fails and is dismissed, but in all thecircumstances, without costs.
RAMANATHAN, J. -1 agree.
DR. BANDARANAYAKE, J. -1 agree.Appeal dismissed.