Okandeyaye Wangeesa Thera V. Mulgirigala Sunanda Thera

1962 Present : H. N. G. Fernando, J., and T. S. Fernando, J.

OKANDEYAYE WANGEESA THERA, Appellant, and
MULGIRIGALA SUNANDA THERA, Respondent

S. C. 520 of 1959-D. C. Tangalle, 631/L

Buddhist ecclesiastical law-Ancient temple-Succession to incumbency thereof- Absence of evidence of terms of original dedication-Mode of succession then- Applicability of sisyanu sisya paramparawa rule.

In a dispute between the appellant and the respondent as to which of them was entitled to be incumbent or viharadhipati of the ancient Buddhist temple Mulgirigala Raja Maha Vihare there was no evidence, in view of the lapse of time and the absence of records, of the terms by which the succession to the incumbency was regulated by the original dedication.

Held, that, in the circumstances, it was necessary to fall back upon such evidence as was available relating to the mode of succession upon and after the death of the first incumbent. In the present case it was indisputably established by the evidence that the rule of sisyanu sisya paramparawa did not apply to the temple and that the traditional and customary mode of appointment was for the Maha Sangha Sabha to make the appointment from among the Mulgirigala paramparawa, a suitable monk being elected irrespective of whether he was a pupil of the last incumbent,

APPEAL from a judgment of the District Court, Tangalle.

H. W. Jayawardene, Q. C., with A. F. Wijemanne, G. P. Fernando and L. C. Seneviratne, for the defendant-appellant.

A. C. Gooneratne, with N. S. A. Goonetilleke, for the plaintiff-respondent.

Cur. adv. vult.

September 14, 1962.   T. S. FERNANDO, J.-

This appeal arises out of a lengthy contest in the District Court of Tangalle over the incumbency of an ancient and venerated Buddhist temple in the Southern Province, Mulgirigala Raja Maha Vihare, which is said to have first come into existence not long after the introduction of Buddhism into this country in the third century B.C. This temple appears to have lost, probably as a result of invasions of this country by foreign Powers, its importance as a centre of religious activity until about the year 1778 A.D. when something in the nature of a Restoration was brought about by the efforts of a monk of the name of Wataraggoda Dhammapala. This monk appears to have taken the initiative in establishing a sect of monks now known as SiamNiJcaya and re-introducing the Upasampada or higher ordination of monks. Dhammapala Thera himself then became the first incumbent of this temple after the Restoration.

It is now settled law that succession to an incumbency is regulated by the terms of the original dedication-see Gunananda Unnanse v. Dewarakkita Unnanse[ 1 (1924) 26 N. L. R. at 274. ]. In view of the lapse of time and the absence of records since the original dedication of this temple there is no evidence of these terms, and one is compelled to fall back upon such evidence as is available in regard to the mode of succession upon and after the death of Dhammapala Thera who will hereinafter for the purpose of this judgment be referred to as the first incumbent.

After the death of this first incumbent there appear to have been some thirteen incumbents, and it is common ground that the last of such in­cumbents was Moderawane Somananda Thera who died on 26th March 1957. The contest in the case under appeal arose as a result of the dispute between the appellant and the respondent as to who was entitled to be incumbent or viharadhipati upon the death of Somananda Thera.

It will be useful if I set down some of the events, as found by the learned District Judge to have taken place, after the death of Somananda Thera in connection with the vacant incumbency.

The body of Somananda Thera was cremated a few days after his death and, in accordance with custom, the ashes were enshrined on April 10, 1957. The plaintiff issued a notice dated April

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