028-SLLR-SLLR-1995-2-THALAWATUGODA-SIRIRATNA-THERO-V.-VEHERWATTE-ARIYAWANSA-THERO.pdf
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Thalawatugoda Siriratna Thero v. Veherewatte Ariyawansa Them
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THALAWATUGODA SIRIRATNA THERO
v.
VEHEREWATTE ARIYAWANSA THERO
SUPREME COURTG. P. S. DE SILVA, C.J.,
KULATUNGA, J.
RAMANATHAN, J.
S.C. APPEAL NO. 2/91
A. 84/81 (F)
C. HORANA 665/LMAY 23 AND 29, 1995.
Succession – Viharadhipathi – Sisyanu Sisya Paramparawa – Abandonment ofRights – First Pupil – Second Pupil – Defacto and dejure Viharadhipathi.
Plaintiff instituted these proceedings seeking a declaration that he is theViharadhipathi of the Pokunuwita Temple. His position was that Rewatha Therowas the Viharadhipathi of this temple and upon his death he was succeeded byhis Senior Pupil Indrajothi Thero. Indrajothi Thero gave up Robes in 1907 and hewas succeeded by his Senior Pupil – Saianatissa Thero who in turn appointed histhird pupil, the Plaintiff by Deed.
The Defendant whilst denying the Plaintiff’s claim, stated that, Kondanna Therowas the original Viharadhipathi and was succeeded by his junior pupil RewathaThero, Rewata Thero appointed his Senior Pupil Indrajothi Thero as theViharadhipathi and thereafter Indrajothi Thero and his successor SaranatissaThero abandoned their Rights to the temple, each of them functioned asViharadhipathi of Kumbuka Temple and that on the death of Rewatha Thero, hissecond pupil Sonuththara Thero succeeded him as Viharadhipathi of thePokunuvyila Temple, and that Sonuththara Thero was succeeded by his juniorpupil AttWasi Thero, who was succeeded by the Defendant. He further allegedthat he was appointed by the ’Sangha Sabha’ in 1970 and that the Plaintiff andSaranatissa Thero were present and acquiesced in the appointment, and thePlaintiff is therefore now estopped from denying the defendant's rights asViharadhipathi.
The District Court dismissed the Plaintiff's action; the Plaintiff however wassuccessful in the Court of Appeal.
Held:
In terms of the Sisyanu Sisya Paramparawa Rule, upon the death of theViharadhipathi, his senior pupil succeeds him; but the Senior pupil may beexcluded from succession if his tutor were to appoint a particular pupil in
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preference to the senior pupil. Such appointment may be by deed, by Will or byinformal writing.
As regards an oral appointment, there should be cogent and clear evidence.
Although documentary evidence indicated that, Sonuththara Thero has beendescribed as the Viharadhipathi, the facts and circumstances of this caseindicate only the defacto position, namely that Sonuththara Thero was resident atthat temple and that he was in charge of the affairs of the temple.
The documentary evidence in this case does not displace the line of lawfulsuccession to the Viharadhipathiship in accordance with the Sisyanu SisyaParamparawa Rule.
A plea of abandonment cannot be raised for the first time in appeal; the officeof Viharadhipathi is not one that can be abandoned by mere residence in anotherplace. “There is nothing in the Vinaya or the decisions of this court which requiresa Viharadhipathi to reside in the temple of which he is the Viharadhipathi.”
Cases referred to:
Dhammajothi v. Sobita -16 NLR 408.
Gunananda v. Deepalankara – 32 NLR 241.
Piyatissa Terunnance v. Saranapala Therunnanse 40 NLR 262.
Pandita Watugedera Amaraseeha Thero v. Tittagalle Sasanatilake Thero – 59NLR 289 at 290.
Jinaratna Thero v. Dharmaratna Thero – 57 NLR 372.
APPEAL from the Judgment of the Court of Appeal.
A. C. Gooneratne, Q.C. with C. Ladduwahetty and P. K. Rajapakse for SubstitutedDefendant-Appellant.
No appearance for the Substituted-Plaintiff-Respondent.
Cur. adv. vult.
June 14,1995.
P. S. DE SILVA, C.J.
The plaintiff instituted these proceedings seeking a declarationthat he is the lawful Viharadhipathi of the Pokunuwita SriKondannaramaya Raja Maha Viharaya (hereinafter referred to as thePokunuwita temple) and an order ejecting the defendant from thetemple. The plaintiffs' case was that:
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Thalawatugoda Siriratna Thero v. Veherewatte Ariyawansa Them
(G. P. S. de Silva, C.J.)
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(1) Warakagoda Rewatha Thero was the Viharadhipathi of thistemple and that upon his death he was succeeded by his seniorpupil Weragoda Indrajothi Thero;
(ii) Weragoda Indrajothi Thero gave up robes in 1907 and he wassucceeded by his senior pupil Raigama Saranatissa Thero whoin turn appointed his third pupil the plaintiff as Viharadhipathi byDeed No. 14948 of 1973 (P10).
The defendant, however, denied the plaintiff’s claim and took upthe position (a) that Ratanagoda Kondanna Thero was the originalViharadhipathi; (b) that Ratanagoda Kondanna Thero was succeededby his junior pupil Warakagoda Rewatha Thero; (c) that RewathaThero during his life time appointed his senior pupil WeragodaIndrajothi Thero as the Viharadhipathi of another temple atKumbuke founded by Rewatha Thero; (d) that thereafter IndrajothiThero and his successor Saranatissa thero abandoned their rightsto the Pokunuwita temple and each of them functioned asViharadhipathi of the Kumbuke temple; (e) that on the death ofRewatha Thero in 1903, his second pupil Okanduwe SonuththaraThero succeeded him as Viharadhipathi of the Pokunuwita temple; (f)that Sonuththara Thero was succeeded by his junior pupil AttadassiThero and Attadassi Thero was in turn succeeded by the defendant;
that the defendant was appointed Viharadhipathi by the “SanghaSabha” in 1970 and that the plaintiff and Saranatissa Thero werepresent and acquiesced in the appointment; the plaintiff is nowestopped from denying the defendant’s rights as Viharadhipathi ofthe temple.
After trial, the District Court held in favour of the defendant anddismissed the plaintiff’s action. The plaintiff preferred an appeal to theCourt of Appeal. The plaintiff’s appeal was successful in so far as hewas declared the lawful Viharadhipathi of the Pokunuwita temple, buthe was denied an order for ejectment of the defendant from thetemple as prayed for in the plaint. The defendant has now appealedto this court against the judgment of the Court of Appeal.
The main question that arises for decision on this appeal iswhether the admitted Viharadhipathi Warakagoda Rewatha Thero
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was succeeded by his senior pupil Weragoda Indrajothi Thero ascontended for by the plaintiff or by his second pupil OkanduweSonuththara Thero as claimed by the defendant. In considering thisquestion it is very relevant to bear in mind in the first place thatadmittedly the rule of succession applicable to the temple in disputeis the Sisyanu Sisya Paramparawa rule. Secondly, it is not disputedthat Weragoda Indrajothi Thero was the senior pupil of WarakagodaRewatha Thero and that Saranatissa Thero was the senior pupil ofIndrajothi Thero. It is well settled that in terms of the Sisyanu SisyaParamparawa rule, upon the death of the Viharadhipathi his seniorpupil succeeds him; but the senior pupil may be excluded fromsuccession if his tutor were to appoint a particular pupil in preferenceto the senior pupil. Such an appointment may be made by deed, orby will or even by an informal writing. (Dhammajothi v. Sobita,<1)Gunananda v. Deepalankara <2), Piyatissa Terunnanse v. SaranapalaTerunnanse(3).)
What needs to be stressed is that there is nothing in the evidencein this case to show that Rewatha Thero appointed in writing hissecond pupil Sonuththara Thero as the Viharadhipathi of thePokunuwita temple. Mr. Gooneratne for the defendant-appellantsubmitted that an oral appointment would suffice; but in such a casethere must be clear and cogent evidence of an oral appointment.There is no such evidence on record. The position then is that there isno evidence of an appointment either in writing or orally to support,the defendant’s case that Sonuththara Thero succeeded RewathaThero as the Viharadhipathi.
At the hearing before us Mr. Gooneratne placed strong relianceon a number of documents marked in evidence to prove thatSonuththara Thero had dealt with the lands belonging to thePokunuwita temple. It is correct that in each of these documentsSonuththara Thero has been described as the Viharadhipathi of thePokunuwita temple. The defendant had also produced declarationsmade under the Buddhist Temporalities Ordinance whereSonuththara Thero was described as the Viharadhipathi of the templein dispute. It seems to me that, in the facts and circumstances of thiscase, these documents are indicative only of the de facto position,namely, that Sonuththara Thero was resident at that temple and that
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he was in charge of the affairs of the temple. On this point, the findingof the Court of Appeal is expressed in the following terms: “In theinstant case with the death of the Viharadhipathi WarakagodaRewatha in 1903, his senior pupil Weragoda indrajothi shouldsucceed and Okanduwe Sonuththara … in following the concept ofSisyanu Sisya Paramparawa could not have succeeded in (sic) theViharadhipathiship. His (i.e. Sonuththara) residence and carrying(sic) the duties and obligations to the betterment of the Vihara in noway confers a de jure Viharadhipathiship. Weragoda Indrajothiresiding in … Kumbuke and the performance of the duties bySonuththara at the Raja Maha Vihara does not have the effect ofmaking him Viharadhipathi … there being no particular duties,spiritual or temporal which a Viharadhipathi need perform for thepurpose of keeping alive his rights; such rights cannot be said to belost because Sonuththara was actually residing in the temple,managing its affairs, and preventing the temple from falling intodecay. He was only a de facto guardian.”
I am in entire agreement with the aforesaid finding of the Court ofAppeal, in the words of Basnayake C.J., in Panditha WatugederaAmaraseeha Thero v. Tittagalle Sasanatilake Thero w “The fact that aBhikku takes an active interest in the religious and other activities of atemple gives him no right to be Viharadhipathi even if his activitiesextend over a long period of time … a de jure Viharadhipathi doesnot lose his rights merely because he has expressly or impliedlypermitted another to occupy his temple and take an active interest inits maintenance and improvement.” I accordingly hold that thedocumentary evidence relied on by the defendant does not displacethe line of lawful succession to the Viharadhipathiship in accordancewith the Sisyanu Sisya Paramparawa rule.
Finally, it was urged that Indrajothi Thero and his successorSaranatissa thero abandoned their rights to the Pokunuwita temple.The plea of abandonment is, in my view, untenable; it was neitherpleaded nor put in issue at the trial. It cannot be raised for the firsttime in appeal. In any event, as found by the Court of Appeal, there isno evidence to support the plea of abandonment. The mortgagebond P17 and the lease bond P18 negative the claim of thedefendant that Saranatissa Thero had abandoned his rights as the
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lawful Viharadhipathi of the Pokunuwita temple. As observed byBasnayake C J., in Jinaratana Thero v. Dharmaratana Them(S>. “Theoffice of Viharadhipathi is not one that can be abandoned by mereresidence in another place. There is nothing in the Vinaya or thedecisions of this court which requires a Viharadhipathi to reside in thetemple of which he is the Viharadhipathi" (at page 374).
For these reasons, the judgment of the Court of Appeal is affirmedand the appeal is dismissed but without costs.
KULATUNGA, J. -1 agree.
RAMANATHAN, J. -1 agree.
Appeal dismissed.