DHAMMAVISUDDHI THERO et al ,Appellants, and DHAMMADASSI THERO , Respondent

117-NLR-NLR-V-57-DHAMMAVISUDDHI-THERO-et-al-Appellants-and-DHAMMADASSI-THERO-Respondent.pdf

^955Present .*. Basnayake, AX'.J., and Pulle, J.DHAMMAVISUDDHI THERO el cl., Appellants, andDHAMMADASSI THERO, Respondent .S. C. 3iS—D. C. Colombo, 5,517/L_
.Buddhist Ecclesiastical Law—Dedication of temple— Yiharadhipan—-appomtmen.need not be in writing—Bhikkhu—Residence in temple—Right to claim
■ incumbency thereby.'
When a B.ucldb is (^temple is built for the first time .by laymen and offered tothe Sanghg,. thero, no requirement of law or custom that the.viharadhipatishould bo appointed by a written document..
W'horo a bhikkhu who is a viharadhipnti of more than one templo places-bhikklius in whom ho has confidence, not necessarily his pupils, in charge of the' different temples of which he is viharadhfpnfi, whilo adopting for liis usualresidence only one of them, the performance of their duties by tho bliikkhusso appointed docs not have tho effect of making them viharadhipntis of therespective temples. There being no particular duties, spiritual or temporal,which a viharadhipati need perform for the purpose of keeping alive his rights,such rights cannot be said to be lost because another bhikkhu who is actuallyresiding in the temple manages its affairs and prevents the temple from fallinginto decay.. .
A bhikkhu residing at a Snngliika templo who, by virtue of his residencetherein, asserts in a Court of haw tho right of tho temple to its property does not.
I hereby acquire a right to he its viharadhipnti.
j^^-PPEAL. from a judgment of the District Court, Colombo.
If. V. Perera, Q.C., with II. A. Kottegoda, for Defendants-Appellants.
II. IF. Jayeicardene, Q.O., with Daya Perera, for Plaint iff-Respondent _
Cur. ado. vitU.
October 2S, 1955. Basxayake, A.C.J.—
This apx^eal has had an unusual course. It was first argued before-a Bench consisting of my brothers Gratiaen and Fernando. At thathearing on 12th and 13th July, 195-1, the plaintiff-respondent, KalawancDhammadassi Thero (hereinafter referred to as the respondent), wasunrepresented. After the arguments of Counsel for the defendants-,appellants, Mawella Dhammavisuddhi Thero and TissamaharamaGunaruchi (hereinafter referred to as the first appellant and tho seeondappellant respectively and collectively as the appellants), the Courtmade order allowing the appeal and dismissing tho respondent's actionwith costs in both Courts ; but reserving the reasons to be delivered ona later date. Thereafter on 19th July, 1954, the reasons were delivered 1.
On 2nd June, 1955, an application For Peslilutio in Integrum made bythe respondent to this Court was entertained by the very Judges tlintheard the appeal.
It would appear that the respondent had as his Proctors a firm carryingon business under the name of" Perera and Senaratne ” to whom lie gavea joint proxy appointing them to represent him at the trial and also in theappeal. In October and November, 1952, at Mr. Senaratne’s request, hepaid sums aggregating to Rs. 735 to Mr. Senaratne as fees for seniorand junior Counsel, The respondent was later informed by Mr. Senaratnethat the advocates concerned had been duly briefed, and he assumed thathe would be represented at the hearing.
j SC .Y. L. if. 2SJ.
After the appeal had been disposed of, the respondent became aware-that Counsel had not appeared for him at the argument as their fees hadnot been paid by 3Ir. Senaratne. He’ also discovered that Mr. Senaratnehad, in terms of an order of the Supremo Court dated 23rd October 1953,been suspended from the practice of his profession for a period of threeyears on the ground of misconduct.
The Court was satisfied that, in the circumstances, the proper course-to take was to order are-hearing under section 771 of the Civil Procedure-Code and accordingly on 7th June 1955 vacated the judgment of theCourt dated 19th July 1954, and directed that the .appeal be re-heardbefore another Bench. It was also ordered that the costs of the applicationfor Restitutio in Integrum be costs in the cause.
The appeal has accordingly come up for hearing before us. The mainquestion that arises for decision is whether the late Kodagoda UpasenaThero (hereinafter referred to as Upasena), a member of the KamanuaNlkaya who later became its head, was, at all material times, viharadhipatiof the temple known as Baja Pushparama Yihare also known as MalwatteTemple at Mount Lavinia (hereinafter referred to as the Temple).
In my opinion, the evidence clearly establishes that Upasena was theviharadhipati of the Temple from its inception till his death in 1939, andthat the respondent, as his pupil, has succeeded to that office and isentitled to hold it. The absence of a deed gifting the Temple to Upasenadoes not matter, as it has been established by other evidence, that, infact, he was viharadhipati.-
Before stating the reasons which have led to the above decision, itwould be useful to state briefly the relevant facts. According to theevidence of the respondent, who was at the date of the trial 77 years and isnow past 81, the Temple in dispute was built by a group of Buddhistlaymen, chief of whom was Margins Fernando. They built a shrine room,a preaching hall, a dining hall, and an avasa. Upasena, who lived at atemple in Walpola in Panadura, was invited by Margins Fernando andother dayakayas to perform religious ceremonies at this Temple. Onthose occasions, the respondent was in the habit of accompanying histeacher, Upasena.
The date on which the Temple came into existence docs not transpirebut- it was not till 1904 that it was offered to the Sangha. In that yearat a formal ceremony, the Temple was offered to the Sangha under thepresidency of Matara Gnaninda Sabha, the most senior of the bhikkhuspresent.
The evidence indicates that even before the Temple was made Sanghika,Upasena was regarded as the viharadhipati. After the Sanghika ceremonyhe appears to have continued in that office, a fact which appears to havebeen recognised by' both the Sangha and the laity not only on the dayof the ceremony' but ever afterwards till.Upasena’s death. ..
When a temple is built for the first time by devout laymen and offeredtothe Sangha, there is no requirement of law or custom that the viharadhi-pati should be appointed bv a written document. In the instant case
*3
■it would appeal; that the laymen concerned, inspired by.-their religiouszeal, .built a .temple .with all the.buildings that are associated with a.Buddhist place .of worship and invited Upasena to assume charge of it.
As Upasena u as already viharadhipati of a temple at Walpola in■Panadura, where he conducted a pirivena, he entrusted the care of theTeniple to the respondent and Matara Ananda (hereinafter referred to asAnanda). The latter, though not a pupil of Upasena b}' robing, was•a pupil in the sense that he obtained instructions from him at the pirivena.at Walpola. He lived in the Temple till 1934 when he died' but the•respondent appears to have lived for the most part in a temple at Kandy.
It is not uncommon in this countrj' for a bhikkliu to be viharadhipatiof more than one temple, as in this instance. Such a viharadhipatiusually places bbikkhus in whom he has confidence, not necessarily hispupils, in charge of the different temples of which he is viharadhipati whileadopting for his usual residence only one of them. Such a charge wasAnanda’s. It has not the effect of making him viharadhipati.
It was not till 1939 when Upasena died, that the respondent becameentitled to the office of viharadhipati as pupil of Upasena both by•succession and nomination. The fact that Ananda and after himDhammaruchi always resided in this Temple gave neither of themany right to be viharadhipati. The residence of a bhikkliu for whateverlength of time in a Sangliika temple gives him no right to be viharadhipati,for every bhikkliu is entitled, as a member of the Sangha, to reside andparticipate in the religious activities of a temple subject- to the consent• express or implied of the viharadhipati. The right to an incumbencycannot be acquired by residence merely because the rightful incumbent-docs not visit the temple often enough or resides elsewhere for the roostpart. There being no particular duties, spiritual or temporal, whicha viharadhipati need perform for the purpose of keeping alive his rights,it cannot be said to be lost because another bhikkliu who is actuallyresiding in the temple manages its affairs and prevents the temple fromfalling into decaj'. Those are obligations which a»3r bhikkhu residentin a viharc may properly perform for the sake of preserving the propertyof the Sangha. It will be contrary to the Yinaya to hold that the per-formance of such duties gives to the performer rights in the temple and isprejudicial to the rights of the lawful viharadhipati.
It is clear from the documents produced by the respondent thatAnanda resided at the Temple only as Upasena’s agent. In his letters toUpasena, Ananda unreservedly recognised Upasena as the adhipati of theTeniple. The relevant portions of some of the documents produced atthe trial arc reproduced below :—.
In the first of these documents written on 18th March, 1905, and.marked PI, Ananda says :
“ This Galkissa property is not one (hat should be' abandoned.Even according td the shaping of things it is imperative that the placeshould bo accrued (preserved) with every possible effort. Agonis here.also went away displeased with the Upasnkamnia. If there is any
– income of the place all that is in the custody of Upasakamma. ‘ We gotnot a cent of benefit from the Upasakamma. The dayakayas » havingdedicated the place to the Sangha stay at home. – Your Reverend §elfhaving obtained rights over it slay at the temple. How can thingiget on here.Here Upasakamma is having her own’ way7 It is not proper that everybody should stand aloof leaving power in the hands of a woman who;does neither search or inquire into anything. It is imperative that youshould get the dayalcas together and make arrangements for the convenienceof priests who stay here. It is absolutely necessary that the place shouldbe looked after since enemies are preparing to attack us.- Since it isa completed temple and built for us. This must be seriously considered-It is inadvisable to rely on the dayakayas ”.0
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In the second, marked P2 and dated 23rd March, 1905, he says —
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In the third, marked P3, sent from Kandy where he had gone for■treatment for his eye, after referring to his eye trouble and his difficulty-of getting on at the Galkissa, he says :
“ How am I to get on at Galkissa if even a single davaka pays noattention.' I have not even the railway fare to come. DhamniadassiTJnnanse came to IJdawatte yesterday ”.
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In the fourth, marked P4 and dated 23rd 3lay, 1907, he says :
“ As directed I informed the da3rakas that you will be coming for theBana on Monday by the 3 o'clock train. They are very much pleased.Again I beg that you should come by that train without fail ”.
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Jii the fifth, marked Po and dated 26th March, 1908, he says :
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– About 1909,’there .appears to have been some litigation affecting t he?Temple. In that connexion Ananda wrote as follows on 10th June, 1909,to Kodagoda Upasena :—
" Proctor Munasinghe of Ivollupitiya has sent a message requestingyou to come up without delay and he has asked me also to come. ‘ Whatam I for without you. You must come pretty soon (to-day or tomorrow).No news about the case as yet. That the victory is for the temple isall that is learnt. The teacher priest also visited us here recently ”.
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After tlio case had been concluded lie wrote on September 2. 1910, asfollows :—
“ The judgment of the case relating to this temple wasdelivered 3'esterda3*. The essence of the judgment is that land shouldgo to the relations. The remaining cash should go to the temple:The
trustees are attempting to get the money into their hands because wearc tying Ion-. If that happens there will be no benefit to the temple.Their trusteeship is also not a permanent one. 1 think it u-ould be.advisable if you uoald come here even on a Sunday, call up the dayahayasand apply for the money through even a petition. Haramanis Appu’sidea is ‘ let a lathing happen that may ’. Davith Singho Gunmanse’sidea is the same. Both of them are ill-disposed towards 3'ou and me.Gure is alwa3's on the side of Haramanis. All that Gure wants is to putthe mone3' into the hands of Haramanis. It is hard to rule in that wa\It must be noted, that Glire’s former qualities arc now, absent. .Haramanis* present idea is to deposit the mone3* in Court, show accountsand go to his village. You must come here even on a Sunday, call ttj>Malahamy and other dayalayas. Yes and decide on a satisfactory courseof action ”«•
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It is not necessary to quote the contents of the post card P10 of 11thJuly, 1912, in which Arianda described the disputes between the daya-kayas and the trustees. In the post card of 15th September, 1921, Pll,lie wrote—
“ For my illness I took several decoctions and am taking a medicineprepared at great expense. By this I have lost the previous improve-ments I have had. Present illness in my body are slight cough, upsetphlegm, want of sleep through loss of appetite and exhaustion. It isnot advisable to wait. The vedaralas are also of the opinion that I amgetting worse. As it is inconvenient to get things done here, let me have
your permission to go to a suitable place and gel treatment. Of the twopriests now here one is leaving to his own place. The other goes to Maliga-kanda at 6 a.m. and returns at 6 pan. If you want this place send somebody
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The fact that Upasena, though not actually resident in the Temple, wasthe viharadhipati and that Ananda was a mere locum lenens placed incharge of the place by him, gains support from a letter sent b}' 22 daya-kayas of the Temple to Upasena in September, 1035' in which theysay—
■ " Mai watte Rajapushparama vihare of Galkissa which was dedicatedto the Malia Sanglia of the-Eamanna Sect by Upasakas and Upasikas of. the neighbouring villages with Muliandiram M. Margins Fernando aschief and the incumbency whereof teas conferred on your'Honoured Selfon the day of the dedication and managed since the demise of the lateReverend Ananda by Hakmana Gunananda Thero Principal of SriSunanda Pirivena of Beliatla is left without any improvement.
We therefore hereby write to you, honoured Nay aka Thero, tosympathise with us and restore the Arama into an improved state sothat we neighbours could hear bana and do meritorious acts
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The appellants’ case is that Ananda was the first viharadhipati of the.Temple, that it vas offered to him in 1904,' dndthat on the death ofAnanda in’December 1934, Talgaspitiya Dhammaruchi (hereinafterreferred to as Dhammaruchi), his pupil, succeeded him. Dhammaruchi,having been viharadhipati till 29th June 1948, disrobed on'that day.Before disrobing, he appointed the first appellant to be the guardian ofhis pupil, the second appellant, who was a sanianera and a minor.
The appellants rely almost entirely on a petition 1D1, presented byDhammaruchi, in March, 1935, in a partition action filed by Anandapra3'ing that he be substituted in place of the plaintiff, Ananda, who haddied intestate while the action was pending..
That document lends no support to his claim. There is no evidencethat Ananda claimed the land to be partitioned qua viharadhipati of theTemple, nor docs anything said or done by Ananda support the claim thathe was viharadhipati.'
In those proceedings Ananda is described as “ Rev. Matara AnandaThero of Mount Lavinia ” and not as viharadhijjat-i of the Temple. Afterinvestigating the petition of Dhammaruchi for substitution, the DistrictJudge held (1D7) that Ananda’s interests in the land sought to bepartitioned accrued to the Temple by virtue of section 23 of the BuddhistTemporalities Ordinance, as Ananda had lived in the Temple for a longtime. The learned District Judge construed the words " the Temple towhich such bhikkhu belonged ”, in that section, as meaning the Templein which the bhikkhu was robed or ordained, or the Temple which thepriest had made his own as it were by residing for a long time.
Applying the latter test he concluded as follows :—
“ The priest, Matara Ananda belonged, in one sense, to theRa japushpa ram ay a as even according to Manana Dhewa hehad been duelling there for more than 15 years ”,
The District Judge did say—
” The only priest who seems to be residing in the Temple is thepriest Dhammaruchi who claims to be the 2JupiI of Matara Ananda andto be the incumbent of that Temple ”.
But those words cannot have the effect of making Dhammaruchi theviharadhipati having regard to the circumstances in which they wereused. In the partition action, the question of who was the rightfulviharadhipati was not in issue, a3 the action was instituted by Anandain his individual capacity in respect of his private interests in the landand not qua viharadhipati.. .
It is common ground that Dhammaruchi was a pupil of Ananda andthat he was in the Temple at the time of Ananda’s death. Dhammaruchi,as Ananda’s pupil, cannot have greater rights than Ananda himself whowas never viharadhipati of the Temple. The fact that the District Judgeallowed Dbammaruchi’s application to represent the Temple to which
Ananda’s interests', in the partition action had.' accrued by .virtue, jbfsection 23 of the. Buddhist Temporalities Ordinance cannot have th6'effect of conferring .on him the. viliaradhipatiship of .the Temple.
A bliikkhu residing at a Sanghika temple who, by virtue of hisresidence therein, asserts the right of the temple to its property, does hotthereby acquire a right to be its viharadhipati.
It would be contrary to Buddhist Ecclesiastical Law by which allbhikkhus are'governed to recognise such a right.
The Secular Courts when dealing with problems affecting the Sangliashould view them against the background of the Vinaya and should becautious in applying to the Sangha the rules that govern relations andtransactions between laymen.' This approach to problems of BuddhistEcclesiastical Law. was laid down by Sir Anton Bertram over a quarterof a century ago, and bears repetition . He said
“But when we are dealing with ecclesiastical property, a region inwhich we are enforcing simply the ecclesiastical law.based upon theoriginal authoritative texts developed by religious customs, we oughtnot to recognize claims and transactions which are in their terms or intheir nature inconsistent with the fundamental principles of thosetexts and those customs ”
For the above reasons, we dismiss the appeal with costs in both Courts.For the purpose of dispelling any doubts, we repeat that the respondentwould, in terms of the order in the proceedings for Restitutio in Integrum,be entitled to the costs of those proceedings as welb
PULLE, J.
I agree.
Appeal dismissed.