093-NLR-NLR-V-69-D.-M.-J.-WEERAMAN-Appellant-and-P.-SOMARATNA-THERO-Respondent.pdf
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Weeraman v. Somaratna Thero
1965Present: Sansoni, C.J., and Sirimane, J.M. J. WEERAMAN, Appellant, and P. SOMARATNATHERO, Respondent
S. C. 276/63—D. C. Tangalle, 28/L
Buddhist ecclesiastical law—Rei vindicatio action instituted by person claiming tobe controlling Viharadhipathi of a temple—Maintainability of action by plaintiffas trustee—Buddhist Temporalities Ordinance, ss. 4 (2), 10 (1).
Plaintiff brought this action for declaration of title to certain property claim-ing to be the controlling Viharadhipathi of a temple. He averred in the plaintthat the temple was exempted under section 4 (2) of the Buddhist TemporalitiesOrdinance. The evidence led at the trial showed that this was not an exemptedtemple and that, therefore, the plaintiff was not entitled to sue as controllingViharadhipathi.
Held, that the plaintiff was not entitled to maintain the action by havinghimself duly appointed trustee under the Buddhist Temporalities Ordinancent the present stage of the action.
A.PPEAL from a judgment of the District Court, Tangalle.
A. Abeywardene, with L. C. Seneviraine, for Defendant-Appellant.
H. W. Jayewardene, Q.C., with M. T. M. Sivardeen and I. S. de Silva,for Plaintiff-Respondent.
SANSONI, C.J.—Weeraman v. Somaralna Them
459
December 10, 1965. Sausoni, C.J.—
The plaintiff brought this action for declaration of title to a certainpaddy field claiming to be the controlling Viharadhipathi of the Kanu-ketiye Hathagala Purana Vihare. He averred in paragraph 2 of hisplaint that it was exempted under Section 4 (2) of the BuddhistTemporalities Ordinance. The defendant in his answer did not admitthis averment, and it therefore became necessary for plaintiff to provethat he was entitled to bring this action in that capacity.
At the trial the plaintiff’s counsel raised issue 2 “ Is the plaintiff thecontrolling Viharadhipathi of the said temple ? ” and the defendant’scounsel raised issue No. 12 “ In any event is the plaintiff entitled tomaintain this action 1 It is clear on the evidence that this is not anexempted temple, and it follows that the plaintiff was not entitled to sueas controlling Viharadhipathi, because the management of the templeproperty did not vest in him but in a person duly appointed trustee underthe ordinance. At a very early stage of the plaintiff’s cross-examinationit transpired that the Public Trustee was in fact controlling this templefrom 1948, and the plaintiff produced what he called his appointmentas its trustee, viz. P2 dated 29th December, 1959.
The production of P2 if it did anything, disproved the title underwhich the plaintiff claimed to bring this action. But he did not sue astrustee, so that whether P2 was valid or not really did not affect thequestion.
The defendant’s counsel raised a further issue No. 13 “ Can the plaintiffmaintain this action in view of his own evidence that since 1948 thePublic Trustee has taken over the management of the temporalities ofthis Viharaya ? ”. At that stage it should have become clear to thecounsel for the plaintiff at the trial that the capacity in which the plaintiffbrought the action was defective, and he might seriously have consideredwhether he should withdraw the action with liberty to file a fresh action.But he chose to continue with the action.
P2 does not help the plaintiff, because it recites that the plaintiff wasappointed trustee after he had nominated himself in his capacity asViharadhipathi. In fact at that date it was the plaintiff’s tutor whowas the Viharadhipathi, and he died only on the 4th of November, 1960.Under Section 10 (1) it is the Viharadhipathi who must nominate to thePublic Trustee whom the latter has to appoint a trustee.
It is therefore clear that plaintiff cannot sue for a declaration of titleeither as controlling Viharadhipathi or as trustee, and it is too late nowfor the plaintiff in this action to remedy these defects. No appointmentmade at this stage will help the plaintiff to maintain this action. Theplaintiff’s action must therefore fail and it should have been dismissed.Since the plaintiff’s action fails because he had no cause of actioninasmuch as his title was defective, it seems to us that the only remedyfor him is to file a fresh action. The appeal is allowed. In thecircumstances of this case, we make no order as to costs in either Court.
SnuMANE, J.—I agree.
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Appeal allowed.