1950 Present . Dias S.P.J. and Swan J.

ALGAMA, Appellant, and BUDDHARAKKITA, Respondent

S.C. 5-D. C. (Inty.) Colombo, 59/Trust

Buddhist Temporalities Ordinance (Cap. 222)-Sections 11 (3) and 32 (1)-Right of provisional trustee to preserve a temple's temporalities-Meaning of " Viharadhipathi "-Section 2-Effect of the words " unless the context otherwise requires ".

Where a provisional trustee for the Kelaniya Temple was appointed by the Public Trustee under Section 11 (3) of the Buddhist Temporalities Ordinance, pending an action between two rival claimants to the incumbency of the Temple-

Held, that, until the status of the person legally entitled to the incumbency was decided by the Court, the temporalities of the Temple were lawfully vested! in the provisional trustee, who was, therefore, entitled, under section 32 (1) of the Buddhist Temporalities Ordinance, read with section 2, to call upon both the rival claimants to surrender to him all the temporalities which were in their possession. Section 32 is wide to include persons who are either functioning as de facto viharadhipathis or who claim to be viharodlipalhis.

APPEAL from an order of the District Court, Colombo.

 N. K. Choksy, K.C., with A. H. M. Ismail, for the petitioner appellant.

N. E. Weerasooria, K.C., with E. B. Wikramanayake, K.C., and L. Gunaratne, for the first respondent.

Cur. adv. vult.

June 27, 1950. DIAS S.P.J.-

This is an appeal by a provisional trustee appointed by the Public Trustee under section 11 (3) of the Buddhist Temporalities Ordinance ((Chapter 222), against an order made by the Additional District Judge of Colombo in a proceeding under section 32 of that Ordinance.

The matter arises in this way: The viharadhipathi and trustee of the Kelaniya Temple had two pupils who are the respondents to the petitioner's application. The second respondent admittedly is the senior pupil, and normally, in accordance with the rules of pupillary succession, should have succeeded to the incumbency on the death of his tutor. The first respondent, the junior pupil, however, claimed to he the viharadhipathi by virtue of a. nomination alleged to have been made in his favour by the tutor before his death. We have been told that an action in the District Court between these priestly litigants is now pending in appeal.. In that action the question as to who is the de jure viharadhipathi will be finally decided. It is admitted by counsel that when that desirable result is achieved the questions raised in the present appeal would probably be of academic interest only. In such circumstances, the obvious thing to do would be to lay this case by until that case is decided. Counsel, however, are pessimistic as to when that litigation will terminate. They take the gloomy view that it will be some months, at least, before that case may even be listed for hearing in appeal, and there is always the possibility that there may "be an appeal to the Privy Council thereafter. Even thereafter the Public Trustee will have to be moved to have the de jure viharadhipathi appointed trustee-section 11 (2). We, therefore, decided that this appeal should be heard and disposed of as soon as possible, because, during the interval which must exist before a trustee is appointed by the Public Trustee, the care and custody of the valuable temporalities of this famous Temple would be in jeopardy.

The earlier history of this dispute between these two monks will be found set out in Buddharakkitha Thero v. The Public Trustee 1.[1948) 49N. L .R. 325.]

Under the Buddhist Temporalities Ordinance, it is the duty of the viharadhipathi, i.e., the de jure viharadhipathi, to nominate a trustee for the temple, except in certain excepted cases-section 10 (1). It is open to the viharadhipathi to nominate himself as the trustee-section 11(1). In either case, the nomination must be first reported to the Public Trustee, whose duty