001-SLLR-SLLR-2004-V-1-VEN.-OMARE-DAMMAPALA-THERO-v.-RAJAPAKSHAGE-PEIRIS-AND-OTHERS.pdf
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Ven. Omare Dhammapala Thero v Rajapakshage Peiris
and others (Bandaranavake, J.),
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VEN. OMARE DHAMMAPALA THEROvRAJAPAKSHAGE PEIRIS AND OTHERSSUPREME COURTBANDARANAYAKE, J.
ISMAIL, J. ANDYAPA, J.
SC APPEAL NO 41/1999CA NO 321/88(F)
D.C.TANGALLE CASE NO 1818/L
20 JUNE, 11 JULY,13 NOVEMBER AND 03 DECEMBER, 2002 AND 04APRIL, 2003
Buddhist Ecclesiastical Law – Acquisition of property by a temple – Sangikaproperty, temple property and pudgalika property – Buddhist TemporalitiesOrdinance, sections 20 and 23.
The plaintiff instituted action in the District Court for a declaration of title to theland in dispute viz, an undivided 2/3 of the land as the Trustee of Sri Nagaramatemple, Kandebedda and for the ejectment of the original 1st defendant. Thesaid land had been sold by a Crown Grant dated 06.02.1921 to the thenincumbent of the temple Medhankara Therunnanse in trust for theKandebedda temple. The original 1st defendant claimed the land by prescrip-tion.
By a deed dated 1.2.1923 Medhankara Therrunnanse sold the land to oneHanifa. After getting the land planted with coconut, the said Hanifa sold it toOwitigama Dhammananda Therunnanse by deed dated 06.01.1941.
The plaint was filed on the basis that the said land was temple property.Section 20 of the Buddhist Temporalities Ordinance (“the Ordinance”) providesthat all property appertaining to or appropriated to the use of any temple andall offerings made other than pudgalika property offered to the exclusive useof an individual Bhikku shall vest in the Trustee or controlling Viharadhpathi forthe time being, of such temple.
Section 23 of the Ordinance provides that pudgalika property if not alienatedby the owning Bhikku during his life time be deemed to be property of the tem-ple to which and Bhikku belonged unless such property has been inherited bysuch Bhikku.
The District Judge dismissed the action on the ground that the land in suit wasnot sangika property i.e. gifted after a ceremony according to Vinaya.
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Held:
A temple could possess sangika property, pudgalika property and proper-ty which is neither sangika nor pudgalika property but could be treated astemple property.
A temple is an institution sui generis which is capable in law of receivingand holding property. It has the attributes of a corporation for the purposeof acquiring and holding property.
A temple could acquire property by the ordinary civil modes of acquisitionwithout a ceremony conducted according to Vinaya..
The property in suit was in any event temple property purchased or grant-
ed for and on behalf of the temple and the title to the said propertydevolved and vested in the temple on the death of OwitigamaDhammananda.
Cases referred to:
Wickramasinghe v Unnanse (1921)23 NLR 236
Wijewardane v Buddharakkita Thero (1957) 59 NLR 121
Rev. Mapitigama Buddharakkita Thero v Wijewardane (1960) 62 NLR 49
Kampane Gunaratne Thero v Mawadawila Pannasena Thero (1998) 2 SriLR 196
Rev. Oluwawatte Dharmakeerthi Thero v Rev. Keviitiyagala Jinasiri Thero(1978) 79 (2) NLR 86
Charles v Appu (1914) 19 NLR 242
Ratnapala Unnanse v Kevitigala Unnanse (1879) 2 SCC 29
Sedhananda Therunnanse v Sumanatissa (1934) 36 NLR 422
Pavisthinahamyv Akurala Seelawansa Thero (1985) 2 Sri LR 197
Kosgoda Pangnaseela and Another v Gamage Pavisthinahamy (1986) 3CALR 48
APPEAL from the judgment of the Court of Appeal.
P.A.D. Samarasekera. P.C. with J.C.Boange and Kumudini Wijetunga forappellant
L.C.Seneviratne.P.C. with N.H.K.Wickramasinghe and A. Dharmaratne for 1stsubstituted-respondent.
Cur.adv.vult
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Ven. Omare Dhammapala Them v Rajapakshage Peiris
and others (Bandaranavake. J.)
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September 17,2003BANDARANAYAKE, J.
This is an appeal from the judgment of the Court of Appeal dated 01
By that judgment the Court of Appeal dismissed theappellant's appeal and affirmed the judgment of the learned DistrictJudge, Tangalle. The appellant appealed to this Court and theSupreme Court granted special leave to appeal on the followingquestions.
Were the learned District Judge's answers to issues 2 and 6erroneous?
Were the said answers inconsistent with his answer to issue
No.1?10
In any event is the property described in paragraph 2 of theplaint temple property because –
it was property purchased or granted for and on behalfof the temple;
title to the said property devolved and vested in the tem-ple on the death of rtev.Ovitigamuwe Dammanande.
The facts of this case are briefly as follows:^
The plaintiff-appellant-appellant (hereinafter referred to as theappellant) instituted action in the District Court of Tangalle seekingfor a declaration of title to a 2/3 share of the land known as 20“Parahena” alias “Kekunahena" as the Trustee of the Sri NagaramaTemple and the ejectment of the deceased 1st defendant-respon-dent-respondent (hereinafter referred to as the 1st respondent).
The 1st respondent claimed prescriptive rights to the said land. Theappellant submitted that 2/3 shares of the land was obtained for theTemple by the then Trustee of the Sri Nagarama Temple,Ven.Medhankara Thero and the balance 1/3 share was given toone Dona Ciciliyana Abeywardane. The 2nd and 3rd defendants-respondents- respondents (hereinafter referred to as the 2nd and3rd respondents) are co-owners of the balance 1/3 share of the 30land in suit and the 1st respondent and the appellant have no dis-pute with the 2nd and 3rd respondents in respect of the undivided1/3 share claimed by them.
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The 1st respondent submitted that the said 2/3 share claimed bythe appellant has been prescribed by him and that the appellantcannot have any claim on that land. The appellant however basedhis case on the ground that the said land was the property of theSri Nagarama Viharaya of Kandabedda.
The question at issue therefore is whether the undivided 2/3
share of the said land was temple property or 'pudgalika' property(private property) as claimed by the 1st respondent.
Learned District Judge dismissed the plaintiff's action on theground that the appellant had failed to prove that the said land wassanghika property. It would appear that in the Court of Appeal, theappellant, for the first time contended that the original deed P1 con-stituted a trust in respect of the property in question and the Courtof Appeal held that the question of whether there was a trust creat-ed by the said deed P1 was a question of mixed fact and law andcannot be raised for the first time in appeal and dismissed theappellant's appeal. Admittedly, the claim of the appellant was basedentirely on a crown grant dated 06.02.1921 marked P1, which con-veyed a 2/3 share of the property to Rev.Medhankara and the bal-ance 1/3 to one Dona Ciciliyana Abeywardane Wickramasinghe.The said deed P1 clearly recited that,
“Whereas it has been represented to us by (1)Medhankara Therunnanse as incumbent ofKandebedda Temple and (2) Dona CiciliyanaAbeywardane Wickramasinghe both of Karumuldeniyathat the said (1) Medhankara Therunnanse and (2)
Dona Ciciliyana Abeywardane Wickramasinghe areentitled to a grant in the following shares and propor-tions, to wit the said, (1) Medhankara Therunnanse intrust for Kandebedda Temple to an undivided 2/3 shareand the said Dona Ciciliyana AbeywardaneWickramasinghe to an undivided 1/3 share of the prop-erty belonging to His Majesty…”
Learned President's Counsel for the respondent contended thatalthough there is no dispute as to the purchase of the property fromthe crown, there is no evidence that the said deed P1 was accom-panied by a sanghika dedication. Moreover, learned President’s
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Counsel further contended that the said Medhankara Therunnanseby deed No.16171 dated 01.02.1923(P7) had sold the said undi-vided 2/3 share of the said land to one Mohommadu Hanifa. Thesaid Mohommadu Hanifa had given this land to 3 persons for thepurpose of planting coconut within a period of 9 years from the dateof the agreement No.1679 dated 20.11.1930. However, in 1941, bydeed No. 11770 dated 16.01.1941, Mohommadu Hanifa sold thesaid property to Ovitigamuwe Dhammananda Therunnanse.Referring to the aforementioned events, relating to the land inquestion, learned President's Counsel for the'respondent submit- soted that it is important to examine the said transfer deed marked asP7. According to the learned President's Counsel for the respon-dent, there are 3 important points that should be taken into consid-eration regarding the transfer deed P7. Firstly, the learnedPresident's Counsel submitted that, there is no reference to thesaid land being subject to a trust and the endorsement made by theNotary in deed marked as P7 is that the title of MedhankaraTherunnanse to the said property has been sold by deed No.16171(P7). Secondly, in deed No.16171(P7) Medhankara Therunnanseis described as “Viharavas/’ and not as “Viharadhipathi". Learned 9°President's Counsel further submitted that in this particular deed(P7), there is specific mention that Medhankara Therunnanse orthe temple did not become entitled to the said property on the deedgiven by the crown dated 06.02.1921 (P1). Thirdly, and more impor-tantly, learned President's Counsel contended that, the contents ofthe aforesaid deed (P7) indicate that Medhankara Therunnansehad accepted the property and acted on the basis that the proper-ty was not sanghika, but property that belonged to him.
Considering the contention of the learned President's Counselfor the respondent, the question at issue is that whether the undi- 100vided 2/3 share given by the crown grant to MedhankaraTherunnanse in 1921, is to be treated as property belonging to thesaid temple or whether it was given to Medhankara Therunnansefor his personal benefit. Learned President's Counsel for therespondent took up the position that, it is necessary for the proper-ty to be sanghika property, for it to become property belonging tothe temple.
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It is therefore relevant and necessary to examine firstly the con-cept of sanghika property.
During the course of hearing, learned President's Counsel for nothe appellant as well as the learned President's Counsel for therespondent referred to temple property, and sanghika property.Whereas the learned President’s Counsel for the appellant con-tended that the plaint in this case had not used the word ‘sanghi-ka’, the learned President's Counsel for the respondent submittedthat the deeds clearly indicate that the property in question was notsanghika, but property belonged to the priest (pudgalika property).
The concept of ‘sanghika’ property and 'gihi santhaka’ (lay prop-erty) was considered from the beginning of the 20th century inWickramasinghe v UnnanseW. In this case it was decided that it is 120by a gift that a temple or any other property can become sanghikaand the very conception of a gift requires that there should be anoffering or dedication. Until a dedication takes place, the templeproperty remains ‘gihi santhaka’ (lay property). This dedication maytake the form of a writing or may be verbal, but in either case it is aformal act, accompanied by a solemn ceremony in the presence offour or more priests who represent the ‘sarva sangha’, or the entirepriesthood. A dedication may be presumed in the case of a templewhose origin is lost in the dim past. This view was accepted and fol-lowed in Wijewardane v Buddharakkita Thero <2> where it was held 130that a Buddhist Vihara or temple is not a juristic person and cannottherefore receive or hold property. Any property given to the sang-ha must be dedicated in the manner prescribed in the Vinaya. Thenand then only can it become sanghika property. Although propertycan be given to the sangha it would be done only as sanghika prop-erty and also in accordance with the customary mode of dedication.
In the Privy Council decision in Rev.Mapitigama BuddharakkitaThero v Wijewardane (3>, it was held that section 20 of the BuddhistTemporalities Ordinance, which vests all property belonging to atemple in the trustee or controlling Viharadhipathi of that temple, 140applies only to sanghika property which has been dedicated to thepriesthood as a whole with all the ceremonies and forms necessaryto effect dedication. A similar view was taken in the case ofKampane Gunaratne Thero v Mawadawila Pannasena Thero (4>.
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In that case the plaintiff sued the defendants for a declarationthat he is the lawful Viharadhipathi of the temple known asMahagama Rajaramaya, for ejectment of the defendants from thetemple premises and for recovery of possession of the same. Thetemple was constituted on an allotment of crown land which hadbeen leased to the trustees of a Buddhist Association for the pur-pose of constructing a Buddhist temple and dedicating it to thesangha after which it was stipulated that the lessor will issue a freshlease of the land for 99 years in favour of the trustee or the con-trolling Viharadhipathi of the temple. The temple was constructedand a deed “of dedication" was executed with the approval of theGovernment Agent and the Commissioner of Buddhist Affairs. Thedeed appointed the plaintiff as the Viharadhipathi of the temple. Itwas held that the fact that a deed ‘of dedication’ was executed withthe full authority of the state did not by itself, render the temple asanghika viharaya which was the basis of the plaintiff's action. TheCourt took the view that a mere claim to the office of Viharadhipathiindependently of the title to the temple and temporalities is unten-able. Moreover it was held that as the deed ‘of dedication’ had notbeen accompanied by a solemn ceremony in the presence of fouror more monks representing the 'sarva sangha' or ‘entire priest-hood’ as prescribed in Vinaya, the temple and its property did notbecome sanghika property and that the title to the propertyremained with the state. In other words the property remains ‘gihisanthaka'. G.P.S. De Silva, CJ. after considering the aforemen-tioned aspects stated that,
“The essence of a valid dedication is that the propertymust cease to be ‘gihi santhaka’, the dedication must bein terms of the vinaya".
Learned President's Counsel for the respondent placed heavyreliance on the decision in Rev.Oluwawatte Dharmakeerthi TherovRev.Kevitiyagala Jinasiri Thero (5) where it was held that, the plain-tiff could not succeed in this case unless he proved that the premis-es in question was sanghika as he could not claim to be theViharadhipathi of gihi santhaka lands. It was also held that the ded-ication is a sine qua non for premises to become sanghika and themere fact that a temple has been given to the sangha does notmake it sanghika. It must be dedicated in the manner prescribed by
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the Vinaya to become sanghika. Learned President's Counsel forthe respondent drew our attention to the fact that in this case thepremises in question were first acquired by one SuriyagodaSonuththara Thero on a crown grant No.9503, of 30th March 1883for Rs.75/-.
Learned President's Counsel for the appellant submitted that thediscussion on sanghika property had brought about confusion inthis appeal. He submitted that the plaint did not use the word 190sanghika, but went entirely on the basis that it was property of thetemple.
In support of his contention, learned President's Counsel for therespondent drew our attention to the provisions in the BuddhistTemporalities Ordinance. His contention was that, the BuddhistTemporalities Ordinance did not make any reference to sanghikaproperty, but it refers only to temple property. Learned President'sCounsel submitted that the word sanghika refers to a broader con-cept which includes property of all sangha from the times of ArahatSariputta and Moggallana and is virtually still continuing.200
The Buddhist Temporalities Ordinance, which came into force in1931 was an Ordinance to amend and consolidate the law relatingto Buddhist Temporalities in Sri Lanka. Part III of the presentOrdinance deals with the subject of property. Section 20, whichrefers to all temple property and all offerings reads as follows:
“All property, movable and immovable, belonging or inanywise appertaining to or appropriated to the use of anytemple, together with all the issues, rents, moneys andprofits of the same, and all offerings made for the use ofsuch temple other than the pudgalika offerings which are 210offered for the exclusive personal use of any individualbhikku, shall vest in the trustee or the controllingViharadhipathi for the time being of such temple, subject,however, to any leases and other tenancies, charges andencumbrances already affecting any such immovableproperty.”
A close examination of this section reveals that although refer-ence is made to pudgalika property belonging to a bhikku, there isno mention of sanghika property of a temple. Also it should be
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in the negative, stating that there is no evidence to hold that theproperty in question is sanghika property. On a consideration of thetotality of the aforementioned circumstances, I am of the view that,a temple could possess sanghika property, pudglika property andproperty which is neither sanghika nor pudgalika property, but couldbe termed as temple property for the following reasons.
In Charles v Appu <6) the legal aspects pertaining to sanghikaproperty was discussed in detail. Discussing the position of sanghi-ka property, De Sampayo, J. stated that,
“‘Sanghika’ property is inalienable in the sense that the
trustee has no power to dispose of it‘Sanghika’ means
no more than property belonging to the entire priesthood,that is to say, to the temple, as distinguished from the pri-vate property of the priestly incumbent. In this connectionit may be remembered that a temple is a corporation, andoften acquires property by the ordinary civil modes ofacquisition, subject only as regards immovables to a cer-tain rule of mortmain."
According to the Concise Oxford Dictionary mortmain means“(condition of) lands or tenements held inalienably by ecclesiasticalor other corporation”.
Taking into consideration the meaning given to property in theBuddhist Temporalities Ordinance and the position taken up by De
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However, notwithstanding the said answer given to issue No.1,learned District Judge had answered issue No.6, namely,
noted that the said section refers to the property, movable andimmovable belonging or in anywise appertaining to or appropriatedfor the use of any temple. In fact according to issue No.1 the ques-tion was whether the property referred to in the plaint came underthe administration of the trustee of the temple.
issue in the affirmative.
It is to be noted that learned District Judge had answered this
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Sampayo, J., in Charles v Appu (supra) that sanghika’ means nomore than property belonging to the entire priesthood, that is to say,to the temple”, I am in agreement with the submission made bylearned President's Counsel for the appellant that a temple couldacquire property by the ordinary civil modes of acquisition.
Considering the submissions made by both learned President'sCounsel for the appellant and the respondent it is apparent that thequestion to be decided here is whether the 2/3 share given by agrant to Medhankara Therunnanse as incumbent of KandebeddeTemple could be treated as sanghika property, temple property orpudgalika property.
In Wickremesinghe v Unnanse (supra), it was held that it is by agift that a temple or any other property can become sanghika, andthe very conception of a gift requires that there should be an offer-ing or dedication. Referring to the decision in Wickremesinghe vUnnanse (supra) in Wijewardene v Buddharakkita Thero <2> it wasstated that,
“It would appear from the case of Wickremesinghe vUnnanse that for a dedication to the sangha there mustbe a donor, a donee, and a gift. There must be an assem-bly of four or more bhikkus. The property must be shown;the donor and donee must appear before the assemblyand recite three times the formula generally used in giv-ing property to the sangha with the necessary variationaccordingly as it is a gift to one or more. Water must bepoured into the hands of the donee or his representative.
The sangha is entitled to possess the property from thattime onwards. No property can become sanghika withoutsuch a ceremony.”
It was stated that the procedure laid down in Wickremesinghe'scase for giving property to the sangha is in accord with the Vinaya(Kullawagga, Sixth Khandhaka sections 2,4 and 5).
However, although repetitively it has been mentioned that, theproperty acquired by a temple must be sanghika property and thatessentially there should be a dedication to the sangha with a cere-mony which included pouring water, this ritual seems to be flawedin certain instances. Referring to such instances, Dr.H.W.Thambiah
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(Buddhist Ecclesiastical Law, Reprinted from the Journal of theCeylon Branch of the Royal Asiatic Society, New Series, Vol.VII,Part I pp.82-83) stated that,
“in the Sinhalese inscription at Periya Pulliyankulam adedication to the sangha is recorded. There is no mentionof the ceremony of pouring water, although it is men-tioned in later inscriptions, such as the one atDimbulagala, where King Abaya, grandson of the KingDevanampiya Tissa dedicated a canal to the sangha bypouring water from a golden vase….
Much later, in the time of King Kirti Sri, the Asgiri Vihara,which is the second largest of the Buddhist establish-ments in the Kandyan Kingdom, was dedicated by theKing and this dedication is inscribed on a stone. In 1766Adigar Pilimatalawa dedicated the Parana Vihara in theAsgiri Vihare premises to the priesthood and the inscrip-tion there sets out the ceremony that was performed bythe King. All that it says is that the King caused Ehelepolato read the contents of an ola dedicating Kahawala andUdasgiri to the new vihara and he offered the writing bylaying it on the table before the image. In both thesegrants, there is no mention of the pouring of water atthese ceremonies. Much earlier than that, theMahavamsa records the ceremony of planting a branchof the original Bo tree under which the Buddha sat andachieved enlightenment, which is illustrated by a stonesculpture on the lower and middle architraves of the EastGate of the Sanchi Tope. The sculptures do not depict,and the Mahawamsa does not refer to, the pouring ofany water, (emphasis added)”
The aforementioned description depicts that there are two meth-ods of making a dedication to the sangha one with a ceremonywhich includes pouring of water and the other without such a cere-mony.
It is also worthy of note that the Buddhist TemporalitiesOrdinance refers to pudgalika property belonging to a priest, whichcould later become the property of the temple. Section 23 of the
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Ordinance, which refers to pudgalika property acquired by a bhikkufor own use, reads as follows:330
“All pudgalika property that is acquired by any individualbhikku for his exclusive personal use, shall, if not alienat-ed by such bhikku during his lifetime, be deemed to bethe property of the temple to which such bhikku belongedunless such property had been inherited by such bhikkd’.
There is no reference made in the Buddhist TemporalitiesOrdinance, that the pudgalika property, of a bhikku must beacquired, in terms of the Vinaya.
This clearly enunciates the principle that the property dedicatedwith a ceremony to make the offering ‘sanghika’ is not the only way 340for a temple to acquire property.
Learned President's Counsel for the respondent strenuouslyargued that there cannot be a category known as temple propertyas opposed to sanghika property because that would reduce theconcept of sanghika property to a nullity. On the basis of that sub-mission it is necessary to examine, whether there is a category ofproperty known as ‘temple property’ which a temple can own with-out such property being termed 'sanghika’. The contention of thelearned President's Counsel for the respondent was that, aBuddhist temple is not a juristic person that can receive or hold 350property and has no legal personality. Several decisions datingfrom 1879 were cited to demonstrate that although a Buddhist tem-ple may be an institution, that it cannot be regarded as a juristicperson. This position had been accepted by the Supreme Court forover a hundred years and that now it is well settled law. [RatnapaiaUnnanse v Kewitigala Unnanse Sedhananda Therunnanse vSumanatissa <8)' Wijewardane v Buddharakkita Thero (supra)Buddharakkita Thero v Wijewardane (supra), Pavisthinahamy vAkurala Seelawansa Thero (9>.
Much emphasis was placed on the decision in Kampane 360Gunaratne Thero v Mawadawila Pannasena Thero (supra) by thelearned President's Counsel for the respondent to show that thedecision in Kosgoda Pangnaseela and another v GamagePavisthinahamy (1°) was not followed by the Supreme Court in
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Kampane Gunaratne Thero's case (supra). Learned President'sCounsel contended that the Supreme Court in the KampaneGunaratne Thero's case expressly rejected the submission that atemple can own property without a dedication as prescribed in theVinaya. In Kampane Gunaratna Thero's case the plaintiff sued thedefendants for a declaration that he is the lawful Viharadhipathi ofthe temple known as Mahagama Rajaramaya, for ejectment of thedefendants from the temple premises and for recovery of posses-sion of the same. The temple was constructed on an allotment ofcrown land which had been leased to the trustees of a BuddhistAssociation for the purpose of constructing a Buddhist Temple anddedicating it to the sangha after which it was stipulated that thelessor will issue a fresh lease of the land for 99 years in favour ofthe trustee or the controlling Viharadhipathi of the temple. The tem-ple was constructed and a deed ‘of dedication’ was executed with
the approval of the Govenment Agent and the Commissioner ofBuddhist Affairs. The deed appointed the plaintiff as theViharadhipathi of the temple. The Supreme Court held that the factthat a deed ‘of dedication’ was executed with the full authority of theState did not by itself, render the temple a sanghika viharaya whichwas the basis of the plaintiff's action and a mere claim to the officeof Viharadhipathi independently of the title to the temple and tem-proralities is untenable. It also held that as the deed ‘of dedication’had not been accompanied by a solemn ceremony in the presenceof four or more monks representing the ‘sarva sangha’ or ‘entirepriesthood’ as prescribed in vinaya, the temple and its property didnot become sanghika property. Therefore, it was decided that thetitle to the property remained with the State. In other words theproperty remained ‘gihi santhaka'.
The decision taken in Kampane Gunaratne Thero's case couldbe clearly distinguished form the present appeal, for the foilowningreasons. It is to be noted that in Kampane Gunaratne Thero's casethe land in which the temple was built was on a lease agreementwhere the lessees were to hold the property until the dedication ofthe temple in the manner provided in clause 11 of the 6th scheduleto the agreement. According to clause 14 of the lease agreement,upon dedication of the temple in the manner provided in clause 11the lessor was to issue a fresh lease of the land for 99 years in
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favour of the trustee or the controlling Viharadhipathi, in time for thetemple so dedicated. These clauses expressly disclose that the titleto the temple in question was to remain in the State. Furthermore,as described in the preceding paragraphs, I am unable to agreewith the view that the only mode of dedicating a property to a tem-ple is through the procedure described in the Vinaya. I am there-fore, with respect, unable to subscribe to the view taken inKampane Gunaratne Thero's case that a temple can own property 410only if such property is dedicated in the manner prescribed in theVinaya. The decision in Kosgoda Pangnaseela and another vGamage Pavisthinahamy (supra) on the other hand, has clearlyanalysed the position with regard to a temple in owning property.
After an intensive examination of the past and present enactmentsdealing with Buddhist Temporalities, the relevant provisions and thedecided cases with specific reference to the requisite capacity of atemple to receive property, Atukorale, J. was of the view that,
“There is therefore legislative sanction for the propositionthat a temple can acquire property otherwise than by way 420of a sanghika dedication. I am therefore with respect,unable to subscribe to the view taken by the Privy Councilin Buddharakkita Thero v Wijewardene (62 NLR 49) thatsection 20 of the Buddhist Temporalities Ordinance (Cap.
318) deals only with sanghika property, that is, propertydedicated to the priesthood as a whole with the custom-ary ceremonies appurtenant to such a dedication.
Contrary to the position taken by the learned President'sCounsel for the respondent, there are other decisions where thereare certain dicta to the effect that a temple is a corporation and can 430:acquire property. If I may reiterate, the position in Charles v Appu(supra), a case decided in 1914, De Sampayo, J. stated that,
“…. it may be remembered that a temple is a corporation,and often acquires property by the ordinary civil mode ofacquistion.”
This view was cited with approval by Atukorale, J. in KosgodaPangnaseela and another v Gamage Pavisthinahamy (supra). Inthat case, it was further stated that,
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“On a consideration…. there appears to me…. that aBuddhist Vihara or temple is an institution sui generiswhich is capable in law of receiving and holding property.
The view I have formed is that in the context of past leg-islation the Buddhist Temporalities Ordinance (Cap. 318)recognises a Buddhist temple or vihara as an institutionwith the attributes of a corporation for the purpose ofacquiring and holding property, both movable and immov-able".
On a consideration of the totality of the material available, whichincludes not only the case law, but the relevant past and presentlegislation, I am of the view that the present Buddhist TemporalitesOrdinance recognises a Buddhist temple as an institution with thecharacteristics of a corporation which could acquire and holdmovable and immovable property by the ordinary civil modesof acquisition.
A temple, according to the Buddhist Temporalities Ordinance,means a place of Buddhist worship and would include the commu-nity of the sangha, viz. the entire priesthood. As contended bylearned President's Counsel for the appellant, offerings to a templecould include a rupee coin put into a till box or offerings such as bedsheets, plates, cups etc. for the use of the priests. In each of theseinstances, the dedication may not be accompanied by a solemnceremony in the presence of four or more priests who represent the‘sarva sangha’ or entire priesthood with the ceremony of pouringwater. Does this mean that, purely because of the absence of sucha ceremony, the dedication to the temple by a devotee wouldremain as ‘gihi santhaka', depriving him of his devotion and acquir-ing the merits of his benefaction? I do not think so. Such an inter-pretation would deprive the good intentions of a devotee who hasno intention of retaining the ownership of what he has alreadydonated to the temple. In terms of section 20 of the BuddhistTemporalities Ordinance “all offerings made for the use of suchtemple…. shall vest in the trustee or the controlling Viharadhipathifor the time being of such temple”. Furthermore, the BuddhistTemporalities Ordinance provides for situations where an individualbhikku could acquire property for his exclusive personal use.However, as referred to earlier, section 23 of the Ordinance pro-
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vides that, such pudgalika property if not alienated by such bhikkuduring his life time be deemed to be the property of the temple towhich such bhikku belonged unless such property has been inher-ited by such bhikku. In terms of section 23 of the Ordinance, in a 480situation where an individual bhikku departs from this world, with-out alienating his ‘pudgalika property’ acquired by him during his lifetime, such property would deem to be the property of the templeeven though such property had been acquired without ceremonyand dedication in the manner prescribed in the Vinaya. Therefore itis a conclusive surmise that in addition to sanghika and pudgalikaproperty belonging to a temple, there could be other property whichbelongs to the temple, but acquired without a ceremony and a ded-ication in the manner prescribed in the vinaya.
In the present case, it is common ground that the land in ques- 490tion was purchased on a crown grant dated 06.02.1921 which con-veyed a 2/3 share to Medhankara Therunnanse. On a careful con-sideration of the said grant, it is abundantly clear that the crowngrant (P1) given to Rev.Medhankara is not a personal grant allottedto him, but a grant given to him as the trustee of the temple knownas Kandebedde Viharaya. When this case is examined in the lightof the aforementioned facts and circumstances, it is clear that thereis no material to indicate that at the time the property was pur-chased on behalf of the temple, there was no such ceremony todedicate the said property to the ‘sarva sangha’ according to the sooVinaya. However, sanghika dedication is not the only mode ofacquisition of property by a temple. A temple could acquire proper-ty by the ordinary civil modes of acquisition without a ceremonyconducted according to the Vinaya as happened in this case. On aconsideration of the circumstances of the instant case, the proper-ty in question becomes temple property belonging to the templeknown as Kandebedde Viharaya. Hence, the questions on whichspecial leave to appeal was granted should be answered in the fol-lowing terms:
the answer of the learned District Judge to issue No.2 is erro- 510neous and the answer to issue No.6 is incomplete.
the answers of the learned District Judge to issues No.2 and6 are inconsistent with his answer to issue No.1.
sc
fen. Omare Dhammapala Them v Rajapakshage Peiris
and others (Bandaranavake. J.)
17
The property described in paragraph 2 of the plaint in anyevent is temple property as it was property purchased orgranted for and on behalf of the temple and title to the saidproperty devolved and vested in the temple on the death ofRev.Ovitigamuve Dammananda.
For the aforementioned reasons this appeal is allowed and thejudgment of the Court of Appeal dated 17.08.1998 and the judg- 520ment of the District Court dated 25.08.1988 are set aside. TheDistrict Court is directed to enter judgment in favour of the appel-lant.
On a consideration of the totality of the circumstances in thiscase, there will be no costs in this Court.
ISMAIL, J. – I agree.YAPA, J. – I agree.
Appeal allowed.