Gunananda Unnanse V. Dewarakkita Unnanse

Present: Bertram C.J., Schneider J., and Jayewardene A.J.

GUNANANDA UNNANSE v. DEWARAKKITA UNNANSE.

500-D. C. Kandy, 30,403.

Buddhist ecclesiastical law-Sisya paramparawa-Succession to incumbency-Rights of a fellow-pupil.

Where the incumbent of a vihare dies leaving a pupil and a fellow-pupil, the pupil has the prior right of succession to the incumbency.

Siriniwase v. Sarananda [1 (1921) 22 N. L. R. 318. 9] overruled.

APPEAL from a judgment of the District Judge of Kandy. The plaintiff and the defendant are Buddhist priests, and each claimed to be the lawful incumbent of a vihare in Kandy. It was admitted that one Indasara Unnanse who died many years ago was the incumbent of this temple. He died leaving three pupils: (1) Gunaratne Unnanse, (2) Gunananda Unnanse, the plaintiff, and (3) Dhammarakkita Unnanse. Gunaratne Unnanse, as the senior pupil, succeeded to the incumbency, and died in September, 1922. Since then the defendant assumed the office of incumbent. The plaintiff, as one of the pupils of Indasara Unnanse, claimed the incumbency as the fellow-pupil of the last incumbent in preference to the defendant who was the pupil of the last incumbent. The District Judge held that the defendant was the rightful successor to the incumbency.

H. V. Perera (with him Navaratnam), for plaintiff, appellant.

Samarawickreme (with him D. B. Jayatileke and Chas. de Silva), for defendant, respondent.

October 27, 1924. Bertram C.J.-

This case raises an important question with regard to pupillary succession. The problem is shortly this: If an adikhari bhikshu, or, as we call him, an " incumbent " of a vihare, dies, leaving a pupil and a co-pupil of his own, which has the prior right to succeed ?

This question was considered in a very recent case (Siriniwase v. Sarananda (supra)), and there a Court of two Judges decided this question in favour of the collateral pupil and against the pupil in the direct line of succession. The learned District Judge in a very care-fully framed judgment has felt himself bound to follow this recent decision, but distinguishes the present case on the ground that the 

pupil who now claims the office does so not merely by virtue of succession, but also by virtue of a direct nomination by his tutor, the deceased adikhari, before his death. The learned Judge treats the above-mentioned decision as confined to a case in which the deceased adikhari has not appointed a successor. It is not necessary for us at this point to examine the soundness of the distinction, thus made by the learned District Judge, because doubts have arisen as to whether the decision in Siriniwase v. Sarananda (supra) is itself in accordance with established principles. That decision is, in fact, in conflict with a series of earlier decisions, which have hitherto been treated as authoritative. There is no report of the argument in Siriniwase v. Sarananda (supra). The decisions in question are not mentioned in the judgment, and it is difficult to believe that they were adequately brought to the notice of the Court.

The first of these decisions was in the year 1874 (D. C. Kurunegala, 19,413 1). There Cayley C.J. sitting with Stewart J., and upholding; the opinion of Mr. J. H. de Saram, then District Judge of Randy (an office which Cayley C.J. had himself formerly held), declared that " the enforced limitation of succession to a priest's own pupils has never been questioned previously to this." A curious attempt was made to procure the recall of that decision (quia improvide emanavit) on the ground of the subsequent discovery of an obiter dictum in a District Court judgment (D. C. Kurunegala, 15,057 2), which had been cited in another case (D. C. Ratnapura, 9,040 3). This, dictum was to the effect that it was competent to a priest to nominate as his successor a fellow-pupil in preference to his own pupil. Both cases went to appeal, and the judgments in bo

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