084-NLR-NLR-V-67-U.-DHEERANANDA-THERO-Applicant-and-D.-RATNASARA-THERO-Respondent.pdf
Present:Sirimane, J., and Manicavasagar, J.U.DHEERANANDA THERO, Appellant, and D. RATNASARA
THERO, Respondent
S.C. 622/60—D. C. Anuradhapura, 5369
Buddhist ecclesiastical law—Action for declaration of title to incumbency of a tetnple—Prescription—Abandonment of incumbency—Requirement of clear evidence ofintention—Pupilage—Proof.
The claim of a plaintiff to be declared that he is the Viharadhipathi of aBuddhist temple is an action for declaration to a status and is, therefore,barred unless it is brought within three years of the accrual of the cause ofaction.
During the pendency of action No. 3760 for declaration of title to theincumbency of a Buddhist temple the defendant died and his pupil wassubstituted as defendant. Judgment was given by the District Court in sfavour of the plaintiff. Pending the appeal filed by the defendant, the plaintiffsought execution of that part of the decree which was executable, and thffdefendant left the temple in obedience to the decree. Subsequentlydefendant succeeded in the appeal and got himself placed in the temple premisesagain on the 19th February 1958. Thereafter the plaintiff brought the presentaction against the same defendant, claiming title to the incumbency. It washis case that his present cause of action arose only on the 19th February 1958.
Held, that the running of prescription in favour of the defendant was notarrested merely because he had left the temple in obedience to the decree ofCourt in action No. 3760. It is the duty of the Courts to see that no partyis placed at a disadvantage by an act of Court.
Held further, (i) that the incumbency of a temple cannot be held to havebeen abandoned by the Viharadhipathi unless the proof of his intention torenounce his rights is clear and unambiguous.
(ii) that there was sufficient evidence in the present case that the plaintiffwas a pupil of his tutor.
.A.PPEAL from a judgment of the District Court, Anuradhapura.
H. W. Jayewardene, Q.C., with V. Jonklaas and L. C. Seneviratne,for defendant-appellant.
H. V. Perera, Q.C., with T. B. Dissanayake and D. C. Amerasinghe,for plaintiff-respondent.
Cur. adv. vult.
December 21, 1964. Sirimane, J.—
The plaintiff-respondent (hereinafter called the respondent) filedthis action against the defendant-appellant (hereinafter called theappellant) on 14.7.58 for a declaration that he (respondent) was theViharadhipathi of the temple known as Panikkankulama alias Manik-kankulama Purana Raja Maha Vihare described in the schedule to theplaint. He also prayed that the appellant be ejected from the temple.
It was common ground that Rev. Sidhartha was the Viharadhipathiof four temples of which the temple in dispute was one. He had twopupils Ratnapala and Piyadassi. By agreement there was a division ofincumbencies between these two pupils, and admittedly Piyadassibecame the Viharadhipathi of the temple in dispute. The respondentclaimed the incumbency as a pupil of Piyadassi, who had two otherpupils, Daswatte Gunaratne, who disrobed in 1938 and died in 1942,and Ratnasara, who disrobed in 1939. It is also relevant to note thatRatnapala, the co-pupil of Piyadassi mentioned above, had three pupilsSumangala (who in turn had three pupils Seelananda, Gunaratna andanother), Sumanatissa, who left no pupils, and Piyaratana, whose pupilis the appellant.
The appellant resisted the respondent’s claim on three grounds, which,in the order they were urged at the hearing of this appeal were—
that the respondent’s claim, if any, against the appellant was
prescribed in law ;
that Piyadassi abandoned the incumbency of this temple so that
his pupils (assuming that respondent was his pupil) could not
claim through him ; and
that the respondent had failed to prove that he was in fact a
pupil of Piyadassi.
The learned District Judge has found in favour of the respondenton all three points.
To deal with the question of prescription. It is conceded that a claimof this nature has to be brought into Court within three years of the causeof action arising. Piyadassi (the admitted Viharadhipathi) died on22.2.52. So that the respondent’s right to claim the Viharadhipathi -ship against the then disputant (Piyaratane) arose on that day. Hefiled District Court, Anuradhapura, case No. 3760 against Piyarataneon 18.5.53 praying for a declaration as Viharadhipathi of this temple,and the ejectment of Piyaratane from its premises. Piyaratane died on31.1.54 during the pendency of that action. The right to sue theappellant, who was also disputing his claims arose on that day : andprescription started running against the respondent as from that day.It is true that the appellant could never have acquired a “ right ” tothe incumbency by the mere efflux of time, but I do not think that thatfact affects the position of the respondent who had to bring his claimproperly before a Court of Law within three years of 31.1.54.
The respondent did not file action ; instead he moved to substitutethe appellant in the room of the deceased, Piyaratane, in D. C. 3760. Theappellant consented to the substitution, and continued the dispute.A Divisional Bench of this Court has held that the respondent’s right tosue did not survive against the appellant. (See Dheerananda Therov. Batnasara Thero.)1 So that the cause of action against the appellantwhich arose on 31.1.54 was properly brought before Court only when thepresent action was filed, namely on 14.7.58—well after the period ofthree years had elapsed.
Now, D. C. 3760 was decided in favour of the respondent in theDistrict Court. The decree is really in two parts, (a) a declaration thatrespondent was the incumbent, (b) an order for ejectment against theappellant on the ground that he was disobedient and disrespectful.(Ordinarily, being a priest he would have had a right of residence inthe temple even though he claimed the Viharadhipathiship himself.)But the decree did not end the dispute, for the appellant appealed againstit. Pending the appeal the respondent sought execution of that part ofthe decree which was executable, and the appellant left the temple inobedience to the decree. But he continued to dispute the entirety of thedefendant’s claim by prosecuting his appeal, and as soon as he succeededgot himself placed in the temple premises again on 19.2.58. It is therespondent’s case that his present cause of action arose only on that day,and it was argued on his behalf that when the appellant left the templehe (respondent) regained “ his right, and the full enjoyment thereof ”,and that his cause of action against the appellant was extinguished.I have carefully considered this argument but I do not think that it istenable. The respondent’s cause of action was the denial of his rightas Viharadhipathi to exercise control, not only over the temple premisesbut over all its temporalities. (See para. 10 of the plaint.) There isthe respondent’s evidence that there are fields and highlands belonging tothis temple. The mere fact that the appellant left the temple premisesdid not restore to the respondent the “ full enjoyment of his rights ”.The denial of his rights continued, and, in my view, the running ofprescription was not arrested merely because the appellant left the templein obedience to a decree of Court. If the respondent’s argument is tobe accepted, the appellant, in order to conserve an advantage he hadgained, should have resisted the decree before it was set aside in appeal.1 think it is the duty of the Courts to see that no party is placed at adisadvantage by an act of Court (see Jai Berham and others v. Marwariand others)2. I am of the view that the appellant is entitled to succeedon the plea of prescription.
In view of this finding in favour of the appellant, it is unnecessaryto decide the two other grounds urged on his behalf; but, since thesetwo grounds were also fully argued before us I would like to state myviews. I am of opinion that the appellant must fail on both thesegrounds.
To deal with the question of abandonment. The basis of abandon-ment is the intention to renounce one’s rights ; and this intention mustbe clear and unambiguous. If there is any doubt on this matter the
1 (1958) 60 N. L. R. 7.
* 1922 A. I. R. Privy Council 269.
inference drawn must be against an abandonment. (See JinarataneThero v. Dharmaratana Thero1.) The appellant relied very strongly oncertain documents : e.g. P20, D16, D15 and in particular the NotarialDeed P(£>) which was later referred to in D7.
In 1933 Piyadassi went to reside in a temple at Aluwihare in theMatale District (the temple in dispute is in the District of Anuradhapura)and before he left he obtained the writing P20 dated 8.9.33 from hispupil Dawatte Gunaratana. On the face of it P20 is an agreement bywhich Gunaratana promises to “safeguard” certain properties and toreturn them to Piyadassi “ on his demand ”. The translation reads,“ Movable, immovable and personal properties ”. It was pointed outby learned Counsel for the appellant that the word “ and ” does notappear in the original, but 1 do not think that the learned District JudgeAras misled thereby. The document entrusts the movable, immovable,personal property to Gunaratana (some of the movable property isenumerated in the document itself) to be looked after and handed backon demand to Piyadassi. One could hardly infer an abandonment fromsuch a Avriting.
D16 is a letter written by Piyadassi to Gunaratana from Almvihareabout a month after P20, on matters not relevant to this case, in whichPiyadassi describes himself as resident priest (ViharadiAmsi) of Alu-wihare, but also as “ Piyadassi Thero of Sandagalpaya, Manikkankulama ”(that is the temple in question). It shows that Piyadassi was at thattime living at Aluwihare, but it does not indicate that he had abandonedthis temple.
D15 is a waiting granted by Gunaratana (who had agreed to safeguardPiyadassi’s property by P20) to Piyaratana by which he purports totransfer to Piyaratana all his right, title and interest in this templewhich he inherited from Piyadassi. Piyadassi Avas still alive at that timebut the most important fact about this document is that Piyadassi wasnot a party to it, and Dio is therefore of A-ery little value as an indicationof any intention on the part of Piyadassi to abandon this temple. P(6)is a deed in English, notarially executed, in 1936. It follows the generalform adopted in conveyances of immovable property.
According to its terms Pijmdassi, who describes himself as “IncumbentPriest ” of this temple, appoints Seelananda Thero (referred toearlier) as the Incumbent and empowers him “ To take, receive andcollect rents, profits and advantages …. belonging to the saidVihare. …” It goes on to say, “ I delegate unto him the full
management and control of the said Vihare absolutely and for overIt Avas argued for the appellant that the deed shoAvs a clear indicationon Piyadassi’s part to abandon his rights.
One must bear in mind the distinction between abandonment orrenunciation of one’s rights, and a conveyance of those rights to another.When rights are abandoned they disappear, and cease to exist, and there
1 {1055) 57 N. L. Ii. 372.
is no person to whom those rights accrue. In the case of a conveyancethe transferor asserts his rights, and then transmits them to the transfereeso that the rights continue in the transferee. It may turn out thatthe act of transfer is ineffective (as in this case) but then the rights of thetransferor do not disappear (for he never renounced them) but continueto remain in him.
Seelananda, as stated earlier, is the pupil of Sumangala who was theeldest pupil of Ratnapala, the co-pupil of Piyadassi. It was admittedthat succession to the temple was governed by the rule of Sisyanu SisyaParamparawa and since Seelananda was not a pupil of Piyadassi the deedwould be ineffective as an appointment. Our Courts have held that aViharadhipathiship cannot be transferred during a Bhikku’s life timebut the deed which purports to do so may, in certain circumstances,be effective as an appointment of a successor. In fact the deed P (6)is headed “ Deed of Appointment ”. One has also to remember that suchdeeds are revocable.
I have carefully examined the terms of the deed P (6) and I am unableto infer from them any intention on the part of Piyadassi to abandon hisrights. On the contrary, his assertion in this deed of 1936 that he isthe Viharadhipathi of the temple negatives the suggestion that he hadabandoned this temple in 1933.
The oral evidence of Rev. Dhaminapala that Piyadassi, on his returnfrom Aluwihare, went to his village Malawa and associated with laymenuntil Piyaratane called him to this temple, was relied on as favouringthe inference of abandonment. I do not agree. Piyaratane, accordingto Piyadassi’s complaints, e.g. D3, was an influential priest, and Piyadassiwould have found some difficulty in entering the temple immediatelyafter his return. Perhaps Piyaratane later thought that it would beprudent to let Piyadassi occupy a part of the temple in the hope of keepinghim satisfied. Piyadassi, therefore, was in fact in occupation of a partof the temple premises, and D3, D4 and P28 are complaints he had madein 1936 to the Sangha against Piyaratane alleging that he (Piyaratane)was usurping the complainant’s rights. These documents are againstthe suggestion that there was an abandonment by Piyadassi.
The appellant also relied on the evidence of Rev. Revatha who hadstated that when Piyadassi complained to him, he informed Piyadassithat he had already appointed Piyaratane as the Incumbent. The learnedDistrict Judge has not accepted this evidence, which the document P30does not support. P30 is a letter written to Piyadassi by Rev. Revathaon 2.10.46 in which he addresses Piyadassi as the Viharadhipathi ofthe temple in dispute.
On the other hand, there are a number of documents which supportthe respondent’s contention that there was no abandonment of his rightsby Piyadassi. Apart from D3, D4 and P28 referred to above there are,in chronological order, P9 of 1935 a deed of gift of certain lands (thoughsubject to a life interest) to Piyadassi as the Viharadhipathi of this temple ;D7 of 1938 in which Piyadassi refers to P (b) and informs the HighPriest that he had appointed Seelananda to render him assistance andsign his correspondence as Viharadhipathi of this temple ; P17 of 1942which Piyadassi signs as the Viharadhipathi of this temple complainingagainst Piyaratane.
P18 shows that Piyaratane, when summoned before the Chief Priestand a committee, obtained a date to show cause against the complaint(P17) but avoided attending meetings thereafter on one excuse or another(P19 is one of them). P {yl) of 1951 is a census return in which Piyadassistill describes himself as the Viharadhipathi of the temple in dispute.There is also P16 of 1952 when Piyaratane wrote to the GovernmentAgent to get his name entered on a list as the owner of certain paddyfields in order to obtain some benefits for purposes of cultivation. Hedescribes the fields as those of Piyadassi and the fact that he made theapplication only after Piyadassi’s death indicates that the latter possessedthese fields during his life time. It was suggested that the fields werethe “ Puthgalika property ” of Piyadassi, but the only evidence on thepoint—that of the respondent—that it was “ Sangika ” property wasnot contradicted.
On a review of all the evidence on this point there is, at least, a greatdeal of doubt as to whether Piyadassi abandoned his rights or not, andthe learned District Judge was right in holding that there was no proofof abandonment.
The last point raised on behalf of the appellant was the question ofpupilage. It was submitted that the District Judge was wrong in holdingthat the respondent had established that he was a pupil of Piyadassi.The respondent was robed as a pupil of Gunaratana in 1938 (Gunaratanabeing the second pupil of Seelananada the grantee on P (6)). Admittedlythe respondnent was ordained on 11.6.46 and his robing tutor Gunaratanawas one of his ordaining tutors. The only question is whether Piyadassiwas the other.
Three witnesses Rev. Gunaratana, Rev. Dhammapala and Carolis Appu-hamy (who was Rev. Ratanasara before he disrobed) had given evidenceto the effect that they were present at the ordination ceremony ; thatPiyadassi too was present at the commencement of the ceremony butwas taken ill when the ceremony was in progress and had left before itwas completed. So that the “ Declaration ” under section 41 of theBuddhist Temporalities Ordinance (P3) was signed by Piyadassi on alater occasion at another temple.
There are certain discrepancies in the evidence of these witnesseswhich, in my view, is not surprising. When witnesses try to describean incident which had taken place about eight years before they werecalled upon to testify, their recollection on every detail cannot be relied
on. The learned District Judge has addressed his mind to theseinfirmities and has accepted their evidence. He has not said so, in somany words, but this is obvious from the reasoning in his judgment.
Apart from this evidence there is the document PI—The UpasampadaSeettu. It is prepared in foil and counter-foil immediately after theordination takes place and one part of it is issued to the Bhikku whohas just been ordained. The serrated edge in Pi indicates that is thefoil. In its body the robing tutors ^re set out as Gunaratana andPiyadassi.
According to the evidence of Rev. Amunugama Vipassi, the thenAnunayake Priest, such an entry is possible only if Piyadassi was present,or if he had left earlier, on his signifying his assent (usually by a letter)to be named as the tutor. Rev. Gunaratane when questioned on thispoint had stated that he did write out a letter to the Maha Nayaka whenPiyadassi left. It was pointed out that he had not said so when hegave evidence in D. C. 3760 ; but that is not a matter of importance ;probably he was not questioned on the point. There is also evidenceto show that letters of that nature were not preserved at that time.Pi therefore is a very strong bit of evidence which supports the respon-dent’s claim to be the pupil of Piyadassi.
Then there is the form P3, already referred to, which on the face of itshows that Rev. Piyadassi is the respondent’s tutor. The evidenceof Rev. Dhammapala relating to the circumstances in which Rev. Piya-dassi signed it has been accepted by the learned District Judge. Theseforms are sent in duplicate to the Registrar-General who retains onecopy (which forms his register) and forwards the other to the Maha-nayake of the Nikaya.
It was submitted for the appellant that the learned District Judge hadmisdirected himself when he held that the entries in P3 were primafacie evidence of the facts contained therein. The relevant portion ofsection 41 (6) of Cap. 318 reads as follows :—
“ Such registers kept by the Registrar-General shall for the purposesof this Ordinance be prima facie evidence of the facts contained thereinin all Courts and for all purposes. ”
As pointed out by learned Counsel for the respondent the words “Forpurposes of this Ordinance ” is not the same as “ For proceedings underthis Ordinance ”, and I am in agreement with learned Counsel’s sub-mission that the registers provide prima facie evidence for purposes ofadministering the law laid down by the Ordinance, in all Courts andfor all purposes. The respondent filed this action to establish a rightto the performance of certain functions under this Ordinance. (Videsection 18.)
I see no reason to disturb the learned District Judge's finding on the
facts.
Since I am of the view that the respondent is the Viharadhipathi ofthis temple but that the appellant succeeds only because the actionis time-barred, I am not disposed to cast the respondent in costs.
The appeal is allowed.
Manicavasaoak, J.—-
I have considered the relevant evidence on the issues of abandonmentand pupillage, and I agree with the conclusion reached by Sirimaue J.on both matters. On the issue of prescription too I agree with hisdecision, but I desire to state my views.
The question for decision is whether the respondent’s cause of actionis the one which accrued to him on 1.2.54, that is the day followingPiyaratane’s death ; or, did a fresh cause of action accrue in June 1958,when, by the order of the District Court, the respondent was dispossessedand the appellant restored to possession.
An action for declaration to a status is barred unless it be broughtwithin three years of the accrual of the cause of action ; if the cause ofaction was not extinguished the respondent’s claim is undoubtedlybarred by time running against him.
The facts are set out in the main judgment. The respondent wason 14.12.58 put in possession of the Vihare and enjoyed the rightspertaining to the office of Viharadhipathi to which he had been declaredby the judgment of the District Court. His Counsel submitted thatsince he had the enjoyment of his rights, there was nothing more he needdo or ask as the wrong which he complained of was remedied to hissatisfaction ; therefore, his cause of action was extinguished and on thesubsequent restoration of possession to the appellant, a fresh cause ofaction accrued to the respondent. He cited a judgment of the High Courtof Lahore 1 which I think does not help him. The facts of the Lahorecase are briefly as follows : an agreement between the parties providedfor arbitration ; the arbitrator made an award on 25.7.09 ; on the applica-tion of the defendant the award was made a decree of Court, and thedefendant paid the decretal amount ; the decree was completely satisfied.The defendant in spite of his having set the Court in motion preferredan appeal to the Chief Court ; the decree was set aside, and the defendantobtained a refund of the money he had paid. The plaintiff then broughtan action for the recovery of the money aw'arded to him by the arbitrator ;the defendant contended that the claim was time-barred, as the causeof action accrued on the date of the award, viz 25.9.09 ; the argumentto the contrary was that it accrued from the date on which the ChiefCourt set aside the decree, namely, 4.8.13 ; the High Court held it was1 Kart a*' Singh v. Bhagat Singh A. I. R. (1921) Lahore 70.
sufficient in equity to say that the suit was within time, by holding thatthe earlier cause of action was extinguished and had given way to a freshcause of action. It appears to me that the principle underlying thisdecision was that the consequence of an erroneous order should fallon the party to blame, and the defendant in the case was to blame ;for after adopting the award and satisfying the decree he proceededto have it annulled ; the plaintiff therefore should not be made tosuffer.
In the present matter, counsel for the appellant contended that hisclient had perforce to obey the order of the District Court, and deliverpossession to the respondent ; he submitted that the respondent cannotmake use of a possession thus acquired to plead the extinguishmentof the cause of action ; for he had not the full enjoyment of all his rightsthough he functioned as Viharadhipathi ; the appellant continued todeny the respondent’s claim ; he had appealed from the judgment of theDistrict Court ; the matter at the time he got possession had not beenfinally adjudicated upon. It is also a relevant fact that when the respon-dent took possession of the Vihare on 14.12.58, his right to sue on thecause of action which accrued on 1.2.54 was barred by lapse of time.
I think there is considerable force in counsel’s submission; shouldthe respondent be permitted to make use of a possession which he wouldnot have had but for the erroneous decision of the District Court ? Whatshould the Court do in such a situation ? Should it enable the respon-dent to utilise the advantage he had acquired, or, should the Courtassist the appellant who was the victim of the wrong decision ? I thinkit is the inherent duty of the Court to be just, and the justice of thiscause demands, in my view, a decision in favour of the appellant. Wemust bear in mind that but for the erroneous order of the original Courtthe appellant would have continued in possession. The respondentcannot be heard to complain ; the decision of the Court was a result of thewrong procedural step he took ; the consequences of his own error mustfall on him ; had he been correctly advised he should have sued theappellant within three years of the death of Piyaratane. In my view,the appellant should not suffer. I am fortified in the view I have takenby these w ords of Cairns L.C. which wrere quoted with approval by LordCarson in the judgment of the Privy Council referred to in the judgmentof Sirimane, J.
" One of the first and hightest duties of all Courts is to take care
that the act of the Court does no injury to any of the suitors”
The cause of action which began on Piyaratane’s death was not, in
my opinion, extinguished.
1 agree that the appeal should be allowed without costs.
Appeal allowed.