058-NLR-NLR-V-19-CHARLES-v.-APPU-et-al.pdf
( 242)
1914.
Present: Wood Renton C.J. and De Sampayo J.
CHARLES v. APPU et al.
287—D. C. Galle, 12,324.
" Sanghika '' property-—Is it res sacra?—Seizure and sale of “ sanghika *Fproperty for judgment debt of vihare.
“ Sanghika ” property is not res sacra. It may be seized andsold in execution of a writ for the recovery of costs against thetrustee of a vihare.
The property of a temple is liable to be sold in satisfaction of ajudgment debt, of the temple.
PJpHE facts are set out in the judgment.
. A. St. V. Jayewardene, for the defendants, appellants.
W. Jayewardene, for the plaintiff, respondent.
Cur. adv. vuLt.
October 15, 1914. Wood Renton C.J.—
This case raises an interesting question under the BuddhistTemporalities Ordinance, 1905 (No. 8 of 1905). The plaintiff, therespondent, as trustee of Galapatha Vihare in Bentota, sued thedefendants, the appellants, in D. C. Galle, No. 10,676, for a declara-tion of title to a certain land. The action was dismissed. Thedefendants thereupon issued a writ for the recovery of their costs,and seized in execution lands belonging to the vihare. The plaintiffclaimed the lands as ‘ ‘ sanghika ’ ’ property of the vihare. The claimwas dismissed. He brings this action accordingly under section 247of the Civil Procedure Code, to have the lands declared not liable to>seizure and sale, and the learned District Judge has given judgmentin his favour, on the ground that “ sanghika ” property is a res sacrawithin the meaning of Roman-Dutch law, and that it i6, therefore,not liable to be seized and sold in execution. I do not think that“ sanghika ’ ’ property can fairly be said to fall under the category ofres sacrtB. The passage in Voet,1 in which the matter is dealt with,
i Voet, 1, 8, B.
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seems to me to support this conclusion:‘‘ Inter res nullius sed 1914*
■dtvini juris, occurrunt primo loco sacra, qua rite per Pontificem vel WooJ>.Principem Deo consecrata sunt, atque ita auctoritate publica ab usu Renton C-J.pmfano ad pium translata. Sola proinde dedication e privata sacrum Charlesmon fit, multoque minus solo voventis voto. Talia erant donaria v. Appusacra, vestes, vasa, aliaque; ades quoque sacra; quibus tamen dirutisfundus sacer manet, religionis prorogation, licet aliud in littore post■casam illic positam iterumque destructam obtineat, deficients cultussacri favore. ’ ’
The property dealt with in the above citation is property directly-connected with religious worship. It does not afford any indicationhat property belonging to a religious corporation, even if it, andits '• nts and profits, were appropriated to corporate purposes—and“ sanghika ” property is nothing more than this—would be held tobe impressed with the character of a res sacra. There is ampleauthority both before 1 and under2 the Buddhist TemporalitiesOrdinance, 1905, showing that the powers of trustees in regard toalienating, and of otherwise dealing with, vihare property are limited.
It does not follow that such property cannot be reached by an■execution-creditor. What little authority there is, prior to modernlegislation on the subject, would seem to show that it could.3But the matter, in my opinion, is now set at rest by section 30 ofthe Buddhist Temporalities Ordinance, 1905. That section is asfollows:—“ It shall be lawful for the trustees to sue under the nameand style of ‘ trustees of (name temple)’ for the recovery of anyproperty vested in. them under this Ordinance or of the possessionthereof, and for any other purpose requisite for the carrying intoeffect of the objects of this Ordinance. They shall also be liable to besued under the same name and style, but shall not be personallyliable in costs for any act bona fide done by them' under any of thepowers or authorities vested in them under this Ordinance.
The plaintiff’s counsel contended, in the first place, that the lastclause) in this section applied only to cases in. which a trustee is adefendant; and, in the next place, that, even if its scope were wider,its sole effect was to exclude the ordinary law that a trustee ispersonally liable for costs where the trustee of a vihare could showthat he had acted bona fide under the Ordinance. I do not thinkthat either contention can prevail. The clause in question comes atthe end of a group of sections enumerating the powers and duties of
trustees, and the words “ any actdoneunder any
of the powers or authorities vested in them under this Ordinanceeannot receive their legitimate effect.unless we give to them a generalapplication. In my opinion the rules of law as to ordinary trustees
1 Cf. D. C. Matara, 22,946; (1869) Vend. Rep. 87; Piadaase Terunnanse9. Nambi Naide, (1872) Ram. 1872-76, p. 78.
* Cf. sections 20, 27, 35, 37 , 38.«
Cf. Ratnapala v. Revata, (1858) 3 Lor. 67; Rewate Terunnanse t. Jaya-mickreme, (1872) Ram. 1872-76, p. 13.
( 244 )
1914.
WoodRenton C..
Charlesv. Appu
give us little help iu determining the position, in such a matter as<this, of the trustees of a vihare. We have to look to the statute lawr. itself as our principal guide. It appears to me to result by necessaryimplication from section 30 of the Buddhist Temporalities Ordinance,1905, that temple property of the character with which we have hereto do, held by the trustee of a vihare, can be made executable forjudgment debts, except in cases in which a personal liability shouldbe imposed on the trustee himself. Vihares, as we all know, arelarge landowners. They can and do acquire property, not only inthe manner indicated in the Ordinance, but by prescription. It is,to my mind, inconceivable that the Legislature could have intendedto invest them, through their trustees, with power to sue, and at the'same time to leave their lands beyond the reach of the ordinary lawof execution. I would set aside the decree of the District Court, anddismiss the plaintiff’s action with the costs of the action and theappeal.
•r
De Sampayo J.— '
I entirely agree with the construction put by my Lord the ChiefJustice on section 30 of the Buddhist Temporalities Ordinance,No. 8 of 1905. As that section expressly exempts the trustee fromliability for costs, it will be doing manifest injustice to hold that the-temple on whose behalf an action is brought is not liable for thecosts of that litigation, for in that case the successful party wouldhave no remedy whatever. If, as I think, the temple is liable forsuch costs, it is equally just that the property of the temple shouldbe held liable to be sold in satisfaction of the judgment debt. Ishould require very strong grounds for holding that the law is other-wise. It is, of course, true that." sanghika " property is inalienablein the sense that the trustee has no power to dispose of it. But thatis a different thing from saying that the process of Court is notavailable against such property for recovery of the amount of adecree.
It seems to me that the opinion of the District Judge that" sanghika ’’ property is res sacra and therefore not liable to be seizedand sold is based on a misconception of both what "sanghika. property is and‘what res sacra is. " Sanghika ’’ means no more thanproperty belonging to the entire priesthood, that is to say, tothe temple, as distinguished from the private property of thepriestly incumbent. In this connection it may be rememberedthat a temple is a corporation, and often acquires property by theordinary civil modes of acquisition, subject only as regards immov-ables to a certain rule of mortmain. The property seized in this”case is not the temple itself, or even the land on which it stands,but- certain lands which form part of its temporalities. In myopinion no sacred character attaches to such property. Again,
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what is res sacra ? This expression belongs to the well-knownclassification of property in the Roman law. Res sacra is a sub-division of res divini juris, none of which can be the subject ofcommerce. It is thus described by Justinian (Dig., 1, 8, 6, 3):—“ sacrce res sunt hce quce publice consecrates sunt, non privatim; siquis ergo sibi sacrum constituent, sacrum non est sed profanum. ” Itwill be seen that it is not because a thing belongs to a temple that itis sacred, but because it is consecrated to religion by public authority.Voet, 1, 8, 5, commenting on this passage, speaks of res sacrce as thosewhich are consecrated by the pontiff or the sovereign to the service-of God, and adds, that, therefore, a thing cannot.be made sacra-byprivate dedication, and much less by the mere vow of the personoffering it. He then proceeds to enumerate res sacrce, viz., theedifice itself, the vestments, vessels,'and other things of the like kind.From this, it is clear that res sacrce are those things which arenecessary for, and immediately connected with, divine worship, andthat mere endowments or temporalities of a temple, not beingconsecrated by public authority in the above sense, nor speciallyconcerned with divine worship, are not res sacrce. I find, moreover,that even res sacrce are not wholly incapable of being sold. Voet,1, 8, 6, appears to me to be a direct authority on this point, for inthat passage Voet discusses the modes by which the sacred characterof a thing may cease, and gives this last instance: “ Vel deniquejust is esc causis alienabantur, puta ad redemptionem captivorum,alimoniam pauperum, ces alienum e.cclesice exsolvendum, aut ut rei,quee acclesue inutilis est, permutatio fiat cum alia utiliore. ” Thisshows that a res-sacra may be sold for the payment of any debt ofthe church or temple, and much more, I should say, may a meretemporality of the religious institution be sold, especially by judicialprocess, for the payment of a debt. Grotius, 2, 1, 15, says generally,” nothing is so entirely dedicated to God that it may not occasionallybe converted to other uses.” VI may also refer to Maasdorp'sInstitutes, vol. II., p. 9, where the author, referring to the Romanlaw, which considered res divini juris as not the subject of commerce,says, “ none of those things, however, are res nullius at the presentday, but are possessed in full ownership by the individuals orcommunities to whom they belong, and who may deal with them assuch, except in so far as this may be prohibited by any statutory orother legal provision to the contrary.” Nothing has been cited tous to show that there is any statutory or other legal provisionwhereby the ordinary property of a Buddhist temple is exemptedfrom liability for the debts of the temple.
For these reasons I am also of opinion that the plaintiff's actionshould be dismissed with costs in both Courts.
Appeal allowed.
1914.
De SampavctJ.
Charlesv. Appu
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