Wijewardena V. The Public Trustee

1954 Present : Sansoni, J., and Fernando, A.J.

D. C. WIJEWARDENA, Appellant, and THE PUBLIC TRUSTEE,
Respondent

S. C. 318-D.C. Colombo, 246/Special

Buddhist Ecclesiastical Law-Sripadasthana-Nomination of Trustee by Viharadhipathi-Public Trustee's refusal to issue letter of appointment to Trustees -Dispute as to person entitled to be Viharadhipathi-Remedy of Trustee-Mandamus or regular action ?-Procedure for election of Viharadhipathi - Buddhist Temporalities Ordinance (Cap. 222), ss. 2, 10 (1), 11, 33, 41-Public Trustee Ordinance (Cap. 73), s. 3-Civil Procedure Code (Cap. 86), s. 217 (E) and (G).

Sub-section 2 of section 11 of the Buddhist Temporalities Ordinance Provides:-

Whenever a nomination is duly made under sections 9 or 10 and reported to the Public Trustee it shall be the duty of the Public Trustee to forthwith issue a letter of appointment to the person so nominated unless such appointment would contravene the provisions of this Ordinance.

Sub-section 3 (b) further provides :-

Whenever by reason of any disputes as to the person entitled to make such nomination more than one person is reported to the Public Trustee as having been duly nominated trustee of any temple, the Public Trustee shall, pending a legal nomination, . . . . if he thinks fit provisionally appoint as trustee any person duly qualified.

Defendant, the Public Trustee, refused to issue a letter of appointment to -the plaintiff when the latter was nominated as Trustee of Sripadasthana by D. who was duly elected on February 18, 1934, as Viharadhipathi of Sripadasthana. He alleged, on clearly untenable ground, that the office of Viharadhipathi had been duly filled by the election of one R. on February 14, 1934, and that R. had made his own nomination to the trusteeship. In these circumstances plaintiff sued the Public Trustee asking (1) for a declaration that he was the duly appointed Trustee of Sripadasthana, and (2) that the Public Trustee be directed to issue to him a letter of appointment as such Trustee.

Held, (FERNANDO, A.J., dubitante), that it was wrong to refuse the plaintiff relief on the ground that he should have applied for a writ of Mandamus ; the District Court had jurisdiction to grant in a regular action the relief for which the plaintiff prayed, if it found that D. was the properly elected Viharadhipathi.

Custom and procedure relating to the election of the Viharadhipathi of Sripadasthana in the Ratnapura District of the Province of Sabaragamuwa reviewed.

APPEAL from a judgment of the District Court, Colombo.

H. W. Jayewardene, Q.C., with W. D. Gunasekera, M. L. de Silva and C. E. Jayewardene, for the plaintiff appellant.

H. A. Wijemanne, Crown Counsel, with V. Tennekoon, Crown Counsel, for the defendant respondent.

Cur. adv. vult.

December 15, 1954. SANSONI, J.-

The plaintiff-appellant sued the Public Trustee (the defendant-respondent) asking (1) for a declaration that he is the duly appointed Trustee of Sripadasthana in the Ratnapura District of Sabaragamuwa Province and (2) that the Public Trustee be directed to issue to him a letter of appointment as such Trustee. The plaintiff claimed that on the 9th March, 1947, he was nominated as Trustee by Morontuduwe Sri Dhammananda Nayaka Thera, the duly appointed Nayaka Thera of Sripadasthana, who reported such nomination to the Public Trustee but the Public Trustee refused to issue

a letter of appointment to him. The Public Trustee in his answer denied that Dhammananda Thera had any legal right to the office of Nayaka. Thera of Sripadasthana, and the legal capacity to nominate the plaintiff as Trustee. He denied that the refusal by him to issue a letter of appointment was wrongful. Another defence raised was that the District Court had no jurisdiction to entertain this action in the absence of any provision in the Buddhist Temporalities Ordinance (Cap. 222), conferring juris-diction on such Cou