017-NLR-NLR-V-28-GOONERATNE-NAYAKE-THERO-v.-PUNCHI-BANDA-KORALA.pdf
( 145 )
Present: Lyall Grant J. and Alaartcnsz A.J.
GOONEBATNE NAYAKE THEBO r. PTOCHIBANDA KOBALA.359—D. tym Kandy, 32,557.
Buddhist Temporalities Ordinance—Jurisdictionr-The extent of the powersof a trustee—The chief priest's control of buildings necessary forthe performance of religious services—The appointment and dis*missal of ministerial officers—Ordinance No..If of 1.905, s. 20.
An action by the chief priest of a vihare for a declaration ofhis right to the custody and possession of ihe gabadage and the1 nnltenge may be maintained in a Civil Court.
While the trustee is vested with legal title to the gabadage andmultenge, the high priest is entitled to the unhampered use" ofthe same for the purpose of maintaining Die religious rites andceremonies of the vihare.
A trustee is not entitled to appoint or dismiss the ministerialofficers attached to the temple.
^^PPEAL from a judgment of the District Judge of Kandy.
Ilayley, for defendant, appellant.
V. Patera (with Canaheratne), for plaintiff, respondent.
July 30, 1926. Lyall Grant J.—
The plaintiff-respondent in this case is the “ Nayake Unnanseor chief priest of the Dambulla vihare, and the defendant-appellant is the trustee thereof appointed under the BuddhistTemporalities Ordinance of 190o.
As chief pi'iest of the said vihare the plaintiff claimed to beentitled to the custody and possession of the 41 gabadage ” orstore-room where the rice and other articles required for the dailyofferings are kept, and the “ multenge ” or kitchen where th9 foodofferings are cooked.
He complained that on December 5, 1924, the defendant tookpossession of the utensiles of the multenge, and thereafter onJanuary 8, 192'). entire and complete possession of the gabadageand multenge.
He further complained that the defendant refused and failedto supply rice and other requirements for the daily offerings, andthat he had by his wrongful acts made it impracticable for theplaintiff to perform his duties at the vihare.
The plaintiff asked for an injunction to restrain the defendantfrom continuing in wrongful possession of the gabadage andmultenge and the articles and utensils therein and to grant him thedaily offerings.
1926.
( 146 )
1926.
LyaxlGrant J.
Cooneralnt
Nayak-c
Thsro
Punchi
Banda
Korala
The defendant took a preliminary objectiop that the disputereferred purely to religious ceremonial and therefore could notbe the subject of litigation. That objection was dealt with bythe District Judge on April 6, 1925.
The learned District Judge decided that the case did nob referpurely to matters of religious rites and ceremonials.
In appeal it was argued that the Court had no jurisdiction asthe matter was of a purely religious nature, and various cases werecited hi support of and against this contention.
In ihe case cl Iivrukel v. Kurukel 1 there was a dispute betweentwo Hindu priests as to which of them was entitled to the in-cumbency of a certain temple. The Court there held that- it hadno power to interfere as it was a purely religious matter.
In Plfche Tamby v. Cassim Mar Hear 2 there was a dispute between.Muhammadans and Hindus with regard to pagoda processions .within the precincts of a mosque. Wood Benton G'.J. laid downthe principle in that case, that while no secular tribunal will takecognizance of or adjudicate on controversies between rival religioussects as to doctrine or ceremonial where nothing else is in issue,no such tribunal will refuse to take cognizance of or to adjudicateon such controversies where civil rights are at stake, een thoughsuch decision involves pronouncing an opinion upon what would. otherwise be purely an. ecclesiastical question.
The Indian cases cited appear to be to the same effect. In VV_ mdev v. Va'Mna'Ji 3 and in Subbaraya Mudaliar v. Vedantachariar 1the disputes were of a purely religious nature.
In Fazl Karim v. Maula Baksh 5 the dispute related to theinterpretation of Muhammadan law, and the question whether theintroduction of certain ceremonies into a mosque by an “ Imam ’’would justify his exclusion from the mosque.
In the lower Court the objection was taken and uphold that thematter was not one for decision by a secular Court.
This decision was over-ruled in appeal, and finally the PrivyCouncil decided the case on the assumption that the Courts hadjurisdiction.
In Brown v, Lcs Cure ct MarguilUers de L’Oeuvre ct Fabriquvdo Notre Dame de Montreal 6 the Privy Council held that where amember of the Boman Catholic Church liad been injured as to his
rights In a matter of a mixed spiritual and temporal nature. Courtsof justice were bound to inquire into the orders and rules of theauthority which had inflicted the alleged injury and to ascertainwhether the act complained of was in accordance with the lawsand rules of the discipline of the Roman Catholic Church.
1 (1892) 1 S. 6*. Reports 354.4/. L. R. Mad., vol. 28. p. 23.
* (1914) 18 N. L. R. 1U.6 (1891) 18 I. L. R. Cal. 448.
(1880) I. L. R. Bom., vol. 5, p. 80.* (1874) 0 Privji Council Appeal
Casts 157.
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The present case appeals to us much easier and clearer thanany of these eases. What we have to decide is, not a religiousdispute, but the extent of the powers with which the Legislaturehas vested its own statutory creature—the trustee under theOrdinance.
We are satisfied that on this point the District Judge was right.The dispute concerns the possession and the management of certainproperty and is therefore one with which a Civil Court is bothentitled and bound to deal. It also involves the interpretation-of the statutory powers given to the trustee; apart from thepowers given to him by • the Ordinance, he possesses na powerwhatsoever. The intention of the Legislature as expressed byOrdinance must be interpreted by the Courts.
The case went to trial on the following issues: —
Is the plaintiff entitled to the custody and possession of the
gabadage, inultenge, and the utensils thereof as alleged ?
Is the appointment of the servient officers attached to the
gabadage and multenge vested in the plaintiff?
Counsel for the trustee-appellant objected that the second issuedid no arise out of the proceedings, and there is no doubt thatthis is the case. No objection, however, appears to have beentaken before the District Judge to the trial of this issue.
It is one which could be appropriately dealt with in the sameaction, and we think it is teto late for the defendant now to raisethe point that it was wrongfully admitted.
The District Judge decided on both issues in favour of theplaintiff, and the defendant appeals.
The defendant relies on the provisions of section 20 of the Bud-dhist Temporalities Ordinance, 1905, which vests in him “ allproperty, movable and immovable, belonging to or in anywiseappertaining to or appropriated to <t*ho use of any temple,together with all the issues, rents, and profits of the same, and allofferings made for the use of such temple other than the pudgalikaofferings, which are offered for the exclusive personal use of anyindividual priest, ..-
He contends that this entrusts to him the gabadage and* multenge with all their contents, and that he is responsible forthe distribution of rice and the safe custody of the utensils.
In order to understand the position, one has to inquire intothe precise functions which the gabadage and the multenge servein the temple economy. The gabadage is the store-roomcontaining rice set apart for the temple offerings and for themaintenance d£ the priests. It also contains same utensils usedin the handling of the rice. The multenge is the kitchen to whichthe rice is taken from the gabadage, and where it is prepared forthe purpose of “ puja ” and offerings in the temple.
1926.
LyaixGbant «T.
GooneratiuNayakeTherotu PunchiBandaKorala
( 14B )
1026.
X.YAU.
IrRANT J.
(loonoratncNayakoTheroa Punch i-Banda
Koretbt
It is clear from the evidence that this preparation o£ rice is partof religious ceremonial.
In order to ascertain how far the duties of the trustee extend,one has to consider the scope and intention of the Ordinance. It isdear that the main intention of the Ordinance is to remove from thepriesthood the general control and management- of the propertybelonging to a temple. Sucli property usually consists—apartfrom the temple buildings and ornaments—of lands which arc setaside for the maintenance of temple worship.
No intention is shown in the Ordinance, and it is inconceivablethat any such intention could exist, to interfere in any way withthe due performance of religious rites.
The general effect of section 20 appears to be that t)u; propertyis vested in the trustee for the purposes set out in sub-section (a),(6), (c), and (d).
Sub-section (h) relates to the maintenance of the priesthood andministerial officers attached to such temple, and sub-scction (c)relates to the “ due performance of religious services and ceremoniesas heretofore carried on, in. by, or in connection with, suchtemple. *’
Bice brought * into the gabadage is rice which lias cither beengrown on temple lands, and is therefore an issue or the profit ofimmovable property, or it is an offering for the use of the temple,or it is rice bought by the trustee from the rents and profits of thetemple. In any case, it is rice vested in the trustee which he hasplaced in this building.
But the general store of riceof whichthe trustee' is in charge
is kept in a buildingcalled the“ attuwa," and when heremoves
any of this rice to the gabadage he makes fm appropriation forthe purposes set out in sub-sections (b) and (c), us contemplatedby section 20 of the Ordinance. Once he has made such anappropriation, it appears to us that he has nothing further to dowith the disposal ofthe rice.He hashanded it overfor the
special purposes of religious worship, and the manner in which itis so used is entirelyn matterfor the Nayakc lTnnanseor high
priest.
We think the District Judge has correctly decided that thetrustee is vested with the legal title to the gabadage andinultenge (which implies a certain responsibility in connectionwith the maintenance of these buildings), but that the NayakeUnnansc or high priest is entitled 'to the unhampered use of the*,same for the purposes of maintaining the customary religious rites -and ceremonies of the vihare.
The second issue is as to the appointment of ministerial officersattached to the temple. We can find nothing in * the Ordinancewhich entitles a trustee to appoint or dismiss such officers.
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Their duties arc religious or quasi-religious, connected withthe rites and ceremonies of the temple, and they are officers whomost appropriately come under the jurisdiction of the high priest.That this is so appears clearly from the appellant's own evidence.Be admits that .the account given by the plaintiff of the duties ofthe Kattiyana Rains is correct, and that after the Padaviya Vidauelias removed rice from the sto,re he (the appellant) has nothingfurther to do wi.th it. He cannot point to any duties which theofficials perform which are of a purely secular nature and whichpertain to duties entrusted to the trustee.
We think, however, that the form of the order dealing withthis issue ought to be varied. All that the Court needed to decidewas whether the defendant was entitled to appoint or dismiss theofficers mentioned. The decree will be varied accordingly.
The District Judge has awarded damages to the plaintiff, but wedo not think the case is a proper one for .the award of damages.There appears to have been some precedent in the history of thisvihare for the line taken by the trustee, and the matter is not apersonal one, but one relating to the government of the vihare andthe interpretation of the Ordinance. Accordingly the appealagainst the order of damages is allowed.
Witli regard to costs, we consider, for the same reasons, that thedefendant should not he personally liable for .the costs of theplaintiff.
We think a fair order will be that the defendant pay out of thevihare funds in his hands the plaintiff's costs in this Court and inthe Court below, and it is so ordered.
1926.
JUntl.Gbant .1.
CbonsratucNayakfTherov. PuncttiBandaKnrala
As the litigation has arisen from the mistaken view held bythe defendant of his rights and duties with regard to the temple,wc think he must- bear his own costs, and in respept of them therewill be no order.
I'lAAiyriiNsz A-1.—
V
This action is the result of a dispute between the plaintiff whois tlic Xayake Unnanse of the Dnmbulla vihare, and the defendant,who • is the trustee appointed under the Buddhist TemporalitiesOrdinance, 1905, as to who should possess she rnultenge and gabadageattached to the vihare and appoint the servient officers of thernultenge and gabadage.
The plaint is restricted to the question of the possession andcustody of the. multengc and gabadage, but an issue was framedand tried with regard to the appointment of the servient officers,aud, it is in my opinion too late to object to the procedure.
The defendant appeals from a decree against him on bothissues and declaring him liable in damages amounting to Rs. 100ami to pay plaintiff’s costs personally.
{-150 ;
1986.
MaartenkzA. J.
GoonertUneNayakeThero•i. PunehiBandaKorala
The defendant in limine took the objection that this is a religiousdispute, regarding which a secular Court lias no jurisdiction to
’ adjudicate. The objection cannot in my opinion be sustained,
as the dispute involves a construction of the provisions of theBuddhist Temporalities Ordinance, particularly of section 20fand is therefore not a relgious dispute, which has to be determinedby a consideration of merely ecclesiastical laws and customs.
Section 20 of the Ordinance enacts as follows: —
“ All property, movable and immovable, belonging or in any-wise appertaining to or appropriated to the use of anytemple, together with all the issues, rents, and profits ofthe same, and all offerings made for the use of suchtemple, other than the pudgalika offerings, which areoffered for the exclusive personal use of any individualpriest, shall vest in the trustees of such temple, subject,however, to any leases and other tenancies, charges, andencumbrances affecting any such immovable property:and such issues, rents, profits, and offerings shall beappropriated by such trustees for the following purposesand no other.*'
The relevant purposes mentioned in the section are:(1) the
maintenance of the priesthood and ministerial officers attachedto such temple; (2) the due performance of religious services andceremonies as heretofore carried on, in, or by. or in connectionwith, such temple.
The scope of the trustee's powers with regard to a vihare aredefined in the case of Davaral/lnta v. Dhammaratne et al.1
The control of the priesthood must necessarily extend to suchbuildings attached to the vihare as are necessary for the perform-ance of the religious services and ceremonies subject to the dutyof the trustee to keep them in proper repair.
The question arises whether the gabadage and multenge an-buildings necessary for the performance of the religious service-and ceremotaies.
According to the evidence of the trustee himself the produce ofthe temple lands are stored in a store-house called the attua.from which the trustee issues fortnightly a sufficient quantity ofpaddy for the religious offerings for that period. This paddy,after being converted into rice, is handed to the Padaviya Vidane,
.who keeps it in the gabadage.
The Kattiyana Balas cook the rice for the offerings in themultenge and take it to the several vihares, observing a certainceremonial in the performance of these duties.
1 (1919) 21 N. L. R. 255.
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The defendant's witness, Gunaratne Unause, stated that thePadaviya Vidane and Kattiyana Balas are appointed purely to assistin the religious ceremonies and rites.
The trustee himself said that he has nothing to do with the riceonoe it is in charge of the Padaviya Vidano. I do not attach anyweight to his earlier statement that he is responsible for the riceif it disappears from the gabadage. He also stated that he didnot take charge of the articles in the list PI which were in themultenge, as the committee told him it was not necessary for himto take charge of what was being used for the service.
The evidence, in my opinion, clearly establishes that thegabadage and multenge are used for the performance of the religiousservices, and that the officers referred to are the servient officersof the gabadage and multenge.
I would accordingly affirm the finding of the District Judge>n the first and second issues.
I agree that the order directing the defendant to pay damagesshould be set aside.
I agree with the order proposed by my brother Lyall Grantregarding the variation of the decree and as to costs.
Set aside.
1926.
Maaktenw
A.J.
Gooneratnf-Nayake-Therov. PvnchiBandaK or ala