Dias V. Ratnapala Terunnanse

1938 Present: Abrahams C. J. and Soertsz J.

DIAS v. RATNAPALA TERUNNANSE.

98-D. C. Galle, 34,685:

Buddhist temporalities-Temple not exempted from operation of Ordinance-Right of incumbent to vindicate title to temple land-Ordinance No. 19 of 1931, s. 4 (1).

The incumbent of a Buddhist temple, which is not exempted from the operation of section 4 (1) of Ordinance No. 19 of 1931, is not entitled to vindicate title to land belonging to the temple.

APPEAL from a judgment of the District Judge of Galle.

N. Nadarajah, for defendant, appellant.

M. T. de S. Amerasekere (with him Barr Kumarakulasingham and Jayasundara), for plaintiff, respondent.

Cur. adv. vult.

January 31, 1938. SOERTSZ J. -

It is with some regret that I reach the conclusion that this appeal must be allowed, for on the substantial question whether the land in suit belongs to the Andugoda Temple or to the defendant, the learned trial Judge has given very cogent reasons, for holding in favour of the temple. In fact, Counsel for the appellant admitted that it would be impossible for him to ask us to set aside the findings of the trial Judge on the questions of title and possession. But, he maintained that he was entitled to succeed in his appeal for the reason that the plaintiff has no status to maintain this action and that it should have been dismissed on that ground.

The plaintiff came into Court averring in paragraph 3 of his plaint that ?this land is Sanghika property belonging to the Andugoda Temple?. He sought to vindicate title to it in his capacity of incumbent. He has established satisfactorily that he is the incumbent. The sole question is whether the incumbent of this temple can maintain an action for declaration of title to ?property belonging to or in anywise appertaining to, or appropriated to the use of the temple?.

The Ordinance that applies in this case is No. 19 of 1931. That is an amending and consolidating Ordinance and applies to every temple in the Island other than those that may be exempted by the Governor by proclamation, either wholly or partially. In this instance, it is not claimed that there has been any exemption by proclamation.

The Ordinance proceeds to enact in section 4 (1) that the management of the property belonging to every temple ?shall be vested in a person or persons duly appointed trustee under the provisions of the Ordinance", unless any particular temple is exempted from that requirement, and in section 4 (2) that if a temple is exempted from the necessity to have the management of its property vested in a trustee or trustees, the management of the property of such a temple shall be vested in the Viharadhipathi, that is to say, in ?the principal Bhikshu of the temple? who in that capacity is known as the ?controlling Viharadhipathi".

There is nothing to show that this temple has been exempted from the operation of section 4(1) and consequently it is a temple, in regard to which the management of this property is to be vested in a trustee or trustees. Section 20 of the Ordinance takes the matter a stage further. It vests all property, movable and immovable, not merely the management of such property, in the trustee or trustees in those instances in which trustees are required to be appointed or nominated under the provisions of the Ordinance, and in instances in which there is exemption from section 4 (1) in the controlling Viharadhipathi.

In regard to the institution of actions for the recovery of any property belonging to a temple, section 18 of the Ordinance enacts that the trustee can sue as trustee where the law required a trustee, that is to say where exemption has not been obtained under section 4 (1), and that the controlling Viharadhipati can sue as trustee where exemption from section 4 (1) has resulted in the Viharadhipati being vested with the management of the property under 4 (2), and with the property itself u

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