1937   Present: Moseley J. and Fernando A.J.

SUMANATISSA v. GUNERATNE.

158-D. C. Matara, 8,777.

Buddhist law Succession to incumbency of vihare-Terms of original dedication Proof of special rules-Insufficient to displace general rule of succession-Sisyanu sisya paramparawa-Prescription.

The rule of succession to the incumbency of a Buddhist vihare is governed by the terms of the original dedication.

If the terms of the original dedication cannot be proved either by direct evidence or by the evidence of usage, then it must be presumed that the rule of Sisyanu sisya paramparawa applies, unless it can be established that the succession is governed by Siwuru paramparawa.

Ratnapala Unnanse v. Kevitiagala Unnanse (2 S. C. C. p. 26) followed..

APPEAL from a judgment of the District Judge of Matara.

H. V. Perera, K.C., (with him N. E. Weerasooria), for plaintiff, appellant. Hayley, K.C. (with him L. A. Rajapakse), for defendant, respondent.

Cur. adv. vult.

June 7,1937.. FERNANDO A.J.-

The plaintiff-appellant filed this action for a declaration that he is the incumbent of the temple in question, named the Welihinda Temple, and he claimed to be so entitled through his tutor priest, Sudassi who died in 1928. Sudassi had two pupils : Meerupe Gunananda and the plaintiff. During his lifetime, Sudassi appointed Gunananda to be his successor by the document P2 of 1928. In 1930 Gunananda by document P3 appointed the plaintiff as incumbent in his place. Plaintiff, however, claims the incumbency not on the strength of the document P3, but as a pupil of Sudassi, and as entitled by the rule of succession known as Sisyanu sisya paramparawa.

The case for the defendant as placed before the District Court was that the succession to the incumbency of the temple was not governed by the rule of Sisyanu sisya paramparawa, but by a special set of rules agreed upon in 1872 and referred to as a Katikawa.

The learned District Judge held that according to the rule laid down in the Katikawa. the incumbency should have gone after Sudassi's death to the defendant who was the senior resident pupil of Attanikata Suman-gala, and that the rule of Sisyanu sisya paramparawa did not apply because of this special rule that appeared to have prevailed in this temple for over 50 years. He accordingly dismissed plaintiff's action and declared that the defendant was the lawful incumbent.

The plaintiff appeals against this order, and it was argued for him that the general rule must apply. Counsel referred to the judgment of this Court in Unnanse v. Unnanse [122 N. L. R. 323.]' where De Sampayo J. stated that, " there were only two rules of succession known to the Buddhist law, namely: Sisyanu sisya paramparawa, or pupillary succession, and Siwuru Paramparawa which is also a form of pupillary succession, but with the special characteristic that the, pupil is a blood relation of the original priestly incumbent, and that in the absence of any evidence to the contrary, the presumption is that the incumbency is subject to the Sisyanu sisya rule of succession". Reference was also made to the case of Goonaratne Unnanse v. Daramaananda [ 2 22 N. L. R. 276.]' where it was held that according to the Sisyanu sisya rule, there was no failure in the succession so long as there remain direct pupillary successors to any previous incumbent.

Counsel for the respondent argued that it was open to a party claiming an incumbency to prove the existence of a rule of succession other than the Sisyanu sisya or the Siwuru paramparawa. He referred to the judgment of the Full Court in Ratnapala Unnanse v. Kevitiagala Unnanse [3 2 S.C. C. 26] where Phear C.J. laid down certain principles which he had gathered

from the earlier cases. Those principles are as follows : (1) The general rule of succession has two branches, namely, Sisya paramparawa and Siwuru paramparawa, and it is the first branch of the rule which is to be pre