Buddharakkitha Thero V. The Public Trustee Et Al.,

1948 Present : Dias J.
 
BUDDHARAKKITHA THERO, Petitioner, and THE PUBLIC TRUSTEE et al.,
Respondents.
 
S. C. 445-Application for a Writ of Mandamus on the Public

Trustee. Buddhist Temporalities-Nomination of trustee-Due nomination-Dispute as to right to nominate-Letter of Appointment-Provisional trustee Chapter 222-Sections 9, 10 and 11.
 
Where two rival claimants to an incumbency purport to nominate trustees, the Public Trustee is not called upon to decide which of the two claimants has the right to make the nomination. If he honestly has a doubt on this point he is entitled under section 11 (3) to appoint a provisional trustee until the point is decided.
 
A legal nomination is a nomination by a de jureviharadhipathi.
 
APPLICATION for a writ of Mandamus on the Public Trustee.
 
H. V. Perera, K.C., with E. B. Wikramanayake, B. H. Aluwihare, and Cyril Randunu, for the petitioner.
 
Boyd Jayasuriya, Crown Counsel, for the first respondent.
 
F. A. Hayley, K.C., with D. L. Edusuriya, for the second respondent.

Cur. adv. vult.

March 4, 1948. Dias J -
 
The late Mapitigama Dhammarakkita Nayaka Thero was the Viharadhipathi and Trustee of the Kelaniya Vihare also known as the Sri Kalyani Rajamaha Vihare. This monk had two pupils- Mapitigama Sangharakkita There (admittedly the senior pupil) and Mapitigama Buddharakitta There, who is the petitioner to this application. It was assumed at the argument that this temple was governed by the rules of papillary succession known as Sissyana-sissya-paramparawa. The succession to this famous Temple came before the Courts in 1908 in the case of Sumangala Vnnanse v. Dhammarakkita1 when Hutchinson C.J. said: " As to the prima facie right of the senior pupil to be the sole successor, that is what I should have expected the rule to be, and the evidence satisfies me that it is the rule". The general rule of succession to a Buddhist Temple is that known as Sissyana-sissya-paramparawa, i.e., on the death of the incumbent or Viharadhipathi, his senior pupil or the deceased senior pupil's senior pupil succeeds-Dhamma Joti v. Sobita 2; Ounaratne Vnnanse v. Dharmananda 3. Therefore, on the death of Mapitigama Dhammarikkita Nayaka Thero on July 17, 1947, following the rule of papillary succession, the senior pupil Sangharakkita would normally have become the Viharadhipathi of the Temple. It is, however, settled law that it is open to the viharadhipathi in his lifetime to appoint or nominate from amongst his pupils a junior monk to succeed him, to the exclusion of the
 
Foot Notes:

1 (1908) 11 N. L. R. 360.
2 (1913) 16 N. L. R.408.
3 (1921) 22 N. L. R. 276.

senior pupil-see Piyatissa Terunnanse v. Sarnapala Terunnanse.1 There is no legal requirement that such an appointment should be made by deed or will.
 
The Buddhist Temporalities Ordinance (Chap. 222) declares that the provisions of the Ordinance shall apply to every Buddhist Temple in the Island except such as have been exempted- Sec. 3. The Kelaniya Temple has not been exempted. The management of the property or temporalities belonging to every Temple which has not been exempted shall be vested in a person or persons "duly" appointed trustee under the provisions of the Ordinance-Section 4 (1). Section 10 (1) of the Ordinance provides that "the trustee of every temple which is not exempted from the operation of Section 4 (1) may, if no other special provision is made under this Ordinance for his appointment, be nominated by the viharadhipathi of such temple, who shall thereupon report such nomination forthwith to the Public Trustee. Whenever a vacancy occurs in the office of trustee for any such temple, a trustee shall be similarly nominated and reported within one month of the occurrence of the vacancy ". Section 11 (1) provides that " whenever a person is entitled to nominate a trustee under sections 9 or 10 it shall be lawful for him to nomina

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