Buddhist vihares-their temporalities.pdf

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Vidyodaya (..) Golden Jubilee Issue pp

69 - 88

Buddhist Vihares Their Temporalities Modes of

Succession to the Office of Viharadhipathi:

A Review of Buddhist Ecclesiastical Law.

S.

Saratlt Mathilal Silva

Dept. ofConunerce, University ofSri Jayewardenepura, Nugegoda, Sri Lanka

Abstract

This study examines the Buddhist Ecclesiastical Law in its historical

perspective and the current law in relation to Buddhist

Vihares

and the mode

of succession

10

the of lice of Viharadhipathi. In this exercise relevant

legislation and the case law are analvzed.

Buddhist Ecclesiastical /a11' in Sri Lanka has evolved through the pas:

centuries /() nccotnc

0

i

1\'/I1i . force. 11'/7

ich reveals through examination t h:

inextricabte link between Sinhalese .iure and Buddhism and the role playet:

by the relisnon in the growth or/he taws and customs of/he countrv.

On account

ofthe

enormous service rendered

bv

the Buddhist monks towar:

the vtooititv ana nrogress of the countrv. the e ducat ional and 1)11;'

eniivntenmen. r,i'j,',epeoulc prosncritv ana hanniness otthe societv 1


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de Silva

The infiltration made by the English law of Trust into Sanghika property has

hindered the growth of the Sasana and made the Buddhist priest a trustee

which subsumes the lay concept of 'possession '.Since a temple exists for the

spiritual 'welfare of the community, it is imperative that the temple becomes

a corporate entity so that endowments be

madefor

the benefit of the Sangha

and not to an individual bhikkhu .

Doubts, difficulties and impediments may have been encountered by

Viharadhipathis, Trustees and the Commissioner of Buddhist affairs in the

working of an Ordinance which has- been in existence for more than 75

years. Therefore, it is recommended that the subject

befully

examined either

by a Commission of Inquiry appointed under the Commissions

ofInquiry

Act

or a Presidential Committee.

KeyWords

Buddhist temporalities, Sanshist temporalities, Eccleriastical Law

Introduction

This study examines the Buddhist Ecclesiastical Law in its historical perspective

and the current law in relation to Buddhist

Vihares

and the mode of succession to

the office of

Viharadhipathi.

In this exercise relevant legislation and the case law

are analyzed.

The Buddhist Ecclesiastical law in Sri Lanka has evolved through the past centuries

to become a living force, which reveals through examination the inextricable link

between Sinhalese Culture and Buddhism, and the role played by the religion in

the growth of the customs of the country. The original source governing the Buddhist

Ecclesiastical law are the Buddhist scriptures, which contain a composite body of

rules and regulations with reference to the conduct of a Sangha known as Vinaya

rules (Books of the Discipline) and succession to ecclesiastical property.

(Nandasena Ratnapala 2005.1). But the Vinaya rules and the rules relating to the

administration of ecclesiastical property have been subject to general modifications

in keeping with the actual practice of the

sanghika

in Sri Lanka (Buddhist

Commission Report 1959). Thus, in several instances it is necessary to look to the

actual practice and customs and rather than to the ancient scriptures.

The Lord Buddha's system of controlling bhikkhus was purely democratic.(Ven.

Walpola Rahula 2003.p7). According to the Vinayarules of discipline, a bhikkhu

is entitled to four requisites. Cheevara, P indapa tha ,

Senasana and Gilanapathi.

From the advent of Buddha Sasana there were famous monasteries so that from

the beginning of the

Sasana

there was a monastic life in which the enjoyment of

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lucld/1/ tihares - Th('I/' Tetnporalittes. slodcs of Succession to the ..

endow ments w ere regulated. F rom the tim e of the establishm ent ofthe Sasana in

Sri Lanka during the tim e of K ing D evanam piyatissa in the ] d century B .c. the

residence of the

bhikkhu

becam e the centre of the learning and the m onastery

w as th e c en tra l fo cu s arou nd w hic h rev olve d th e re ligio us. so cia l a nd c ultural life of

the comm unity . W ith the evolution of the m onastery. the basic residence of the

lena (cave) grew institutional proportions as a corporate personality , to play its

role in the substances of the

Sasana.

The m onastery enjoyed corporate status

during the period of the Sinhala kings up to B ritish rule and the State m achinery

was used to prevent violation of the rules framed by the

bhikkhus

in the

Katikavata. In a scenario such as this the property of monastery was always

considered Sanghika (property of the bhikkhu com munity) and even pudgalika

(private property) of a

bhikkhu

as enjoyed by the

Vinaya

became known as

Sanghika.

w hich concept is fortunately still retained in section 23 of the B uddhist

T em pora litie s O rd ina nc e of 1 93 1.

A lm ost from the inspection of the establishm ent ofthe

Sasana

in S ri Lanka there

w ere endow ments m ade for the benefit of the

Sasana.

based on the

Dana

principle

- a b asic ten et o f B udd hism . D espite the u nd ertak in g o f the B ritish ad ministration ,

encapsulated in A rticle 4 of the K andyan C onvention of 1815, w hich guaranteed

to all classes in the K andyan province the safety of their persons and property w ith

c iv il r ig hts a nd immunit ie s a cc or di ng t o th e l aws , in stit ut io ns a nd cus tom s e st ab lis he d

and enforced among them , they did not accept the concept and machinery that

g uid ed th e m on astery a nd im porte d m an y o f th eir la ws. T he B ritish a dm in istra tio n

interpreted endow ments to m onasteries as charitable trust property, vested in a

trustee. U nder the E nglish law of trusts grafted on to B uddhist ecclesiastical law s,

the standard w as that of a holder of a private property. T he B ritish adm inistration

so ug ht to m ak e th e re sid en t bhikkhu th e h old er o f su ch p ro pe rty , w hic h r an c on tra ry to

t he r ul es o f th e

Vinaya,

which d isa l lowed

bhikkhus

f rom ho ld ing p roper ty . Th is anoma ly

w ould not have arisen if the concept of corporate personality of a m onastery w as

ret ai ned by the Br it is h admin is tr at ion .

T he title to the offic e o f a Viharadhipathi of a B uddhist tem ple or the right to control a

B ud dh ist tem po ra litie s is a n in te re stin g a re a o f stu dy .A Bud dh ist T emp le is g en era lly

under the control of a

Vihiaradhipathi

who is the p rin ciple

bhikkhu

o f th e temple

w hether resident or not. He has the full control of the fabric of the tem ple and the

res id ent monks

The rule of succession to the office of Viharadhipathi is the Sisyanu Sisya

Paramparawa

ru le - w h ere su cc es sio n d ev olv es from p up il to p up il. T his ru le a pp lie s

w hen it h as been so laid dow n at the original dedication and is presum ed to apply

w here th ere is n o e vid en ce of th e o rig in al d ed ica tion . T his c an h ow eve r, b e re fu ted b y

direct evidence or by evidence oflong custom that another m ode of succession had

been adopted. A different m ode of succession is the

Gnat hi S is ya

rule w hich m ea ns

e lect ion by the D a y a k a y a s or by the M aha N ayake alone or with the Chapter of

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de Silva

th e Nikaya to w hich the tem ple belonged. T he law regarding succession is still not

settled and is in a state o f flux. M o st of the u ncertainty in the law is due to the fact that

th e early dispu tes w hich cam e b efore the courts w ere often decided by the judges to

w hom the concepts on B uddhist Ecclesiastical law . w ere unknow n and parallels

w ere d raw n fro m v iew s in o th er co un tries.

Buddhist Temporalities -A Historical

Perspective

In the 3

rd

century B .C during the tim e of K ing Devanam piyatissa (247-207 B .C)

B uddhism w as introduced to C eylon by the A rahant M a hinda, the son of Em peror

A soka. H e brought not only the B uddhist religion but also the com plete B uddhist

culture, (V en. W alpo la R ah ula 2003.p 1 1).

O n a cc ou nt o f th e e no rmo us se rv ic es r en de re d b y Bud dh ist m o nk s tow ard s th e sta bility

a nd th e p ro gre ss o f th e c ou ntry , th e e du ca tio na l a nd mo ra l e nlig hte nm en t o f th e p eo ple ,

the prosperity and h appiness of society, kings bestow ed exten sive tracts of lands,

in clu din g la rg e a nd sm all v illa ge s, o n mo na ste rie s fo r th eir m ain te na nc e a nd u pk ee p. It

is evident from the M i hintale slab inscription of K ing M a hinda IV a nd th e S an sk rit

i ns cr ip ti on i n Jetavana t ha t s pe c ia l depa rtmen ts we re e st ab li shed for t he admin is tr at ion

o flarg e m on asteries. W ith in creasin g w ea lth an d lan ded p ro perty th e eco no my o fth e

m onasteries changed , and along w ith it the w ay oflife of bhikkhus b eg an to ch an ge

further.

(Ep ig raph ia Zeyl an ica

1,

pp 84-94J B y the

IO'

century

A,

C ., th e w ealth an d

th e tem po ralities o f m on asteries h ad fu rth er in creased .(V en . W alp ola R ah ula 2 00 3 p .

1 2). T he a dm in istra tio n o f p rin cip al m o na ste rie s w as c arrie d o n b y S ta te d ep artm e nts

e sta blish ed fo r th e p urp ose . O ff ic ia ls w ere a pp oin te d in c ha rg e o f d if fe re nt fu nc tio ns ,

as well as m inor servants to attend to even very sm all duties. B ut w ith changing

e nv iro nm en t c ir cum sta nc es a nd . e co nom ic c on ditio ns, c ha ng in g id eo lo gie s amo ng th e

laym en as w ell as the m onks, a n ew m onastic w ay oflife develo ped in C eylon.

B ud dh ist a ctiv ities w ere w ell co nd ucted d urin g th e tim e o f th e an cien t S in hala k in gs,

because Buddhist tem poralities were properly m anaged and adm inistrated by a

d ep artm en t e sta blish ed w ith in th e g ov ernm en t. In k ee pin g w ith th is a nc ie nt tra ditio n,

according to A rticle 5 of th e K andyan C onventio n of 1815, the B ritish G overnm en t

u nd erto ok to m ain tain an d p ro tect B ud dh ism an d B ud dh ist tem ples.

A new P roclam ation w as issued on the 21

SI

N o vem ber 1 81 8, w here certain m easu re s

o f a dm in istra tio n a nd p olic y w ere mo difie d o r m a de e xp lic it. T o a sc erta in w hic h la nd s

were the property of tem ples, the Government issued a proclamation on the 18

1 h

Sep tem ber 1819, req uiring the registration o f all lands w hich belonged to tem ples

and, by P roclam ation dated 21

st

M a y 1 82 2, th e last d ate o f su ch reg istratio n w as fix ed

at

I

S ep tem ber 1 82 2. N o lan d n ot reg istered b y th at d ate w ou ld b e g ran ted ex em ptio n

from ta xa tio n a s temp le la nd s. B y e nfo rc in g re gistr atio n, th e G o ve rnm en t a lso d esire d

to check the dang er of spu rious dedications o fland to tem ple to avo id taxation. T he

P ro clam atio n o f t he 1 4 J an ua ry 1 82 6 w en t fu rth er a nd la id d ow n laws a ga in st fic titio us

transfers of land to persons in officia l em ployed for the purpose of evading taxes

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Buddhist l ihares - Their Temporalities .. \lodes of Succession to the ...

and duties upon such lands . W hen it w as brought to the notice ofG ovenunent that

m any land s of Vihare s and deva le s h ad s till n o t b ee n r eg is te re d, a f ur th er P ro clamatio n

was issued on the 11 th D ecem ber 1827, allow ing tim e till 1

SI

D ecem ber 182 8, for th e

re ce ip t o f a pp lic atio ns fo r re gistra tio n. It w as a lso d ec la re d th at a ll la nd s b elo ng in g to

th e

Vihares

an d

de vales

w hich had not been registered on or before 31

51

December

1 82 8, w ou ld fo rfeit th e p riv ileg e o f b ein g ex em pt fro m th e p ay men t o f ta xes an d titles

to Government .

In April 1829, M ajor W .M G . Colebrook arrived in Ceylon being appointed by a

C om mission of the king G eorge IV under the great seal to exam ine into all laws,

re gu la tio ns a nd u sa ge s o fth e se ttleme nts in th e Isla nd a nd in to e ve ry o th er m atte r in a ny

w ay co nn ected w ith th e ad min istratio n o f th e civ il g ov ern men t H e w as fo llo wed b y

a no th er ro ya l c omm issio ne r, C h arle s H ay C am ero n, lik ew ise c omm is sio ne d to re po rt

u po n th e j ud ic ia l e sta blishm en t a nd p ro ce du re in C ey lo n. A fte r a n e xh au stiv e in qu iry ,

th ey p resen ted th eir re po rts in 1 83 2. am on g th e far-reac hin g reco mm en datio ns th ey

m ade, one w as the to tal abolition of rajakariya of com pulsory service and the o ther

the rem oval of distinctions betw een the co urts o flaw in th e K andyan and M a ritim e

P ro vin ces. B ut w hat co ncern s u s n ow are th eir p ro po sals reg ard in g th e co nn ec tio n o f

the G ovem ment w ith B uddhism . O ne recom mendation of the R oyal C om mission of

1829 com prising W .M .G . Colebrook and C . M . Cam eron, in particular affected

Buddhi sm adv er se ly . T h ey d is ap pr ov ed o fth e in te rf er en ce o f g ov er nment in th e Buddhis t

affairs of the country. T his later, am on g others, led to the w ithdraw al of the B ritish

G o ve rnm en t from Bud dh ist a ffa irs w hic h v io la te d A rtic le 5 o f th e K an dy an Con ve ntio n

o f 1 81 5 an d an cie nt trad itio n o f th e k in gs in th e co un try . T he B ud dh ist C om m issio n

R ep ort (1 95 9.C hap ter 5 ) claim s th at v ast ex ten ts o f tem ple lan ds w ere co nfiscated b y

the British G ovenunent betw een 1819 and 1853. and after the w ithdrawal of the

G o vemme nt from a ctiv e p artic ip atio n in th e a dm in istra tio n o f B ud dh ism , th is p ro ce ss

of spoilation and im poverishm ent w as

carried

still further by the T em ple Lands

R eg istra tio n O rd in an ce o f 1 85 6.

From 1840, the year in w hich G ovem or M ackenzie refused to sign the warrants

appointing

priests

to th e c hie f tem ple s, th e a dm in istra tio n o f B ud dh ist temp ora litie s

b ec am e m ore an d m ore co nfu sed .(V en , W a lp ola R ah ula p .6 9). F ro m th attim e ten an ts

liv in g o n temp le la nd s ig no re d p ay in g th e sh are o f re ve nu e th at b elo ng ed to th e temp le s.

In the absence of any legal pow er either to appoint or to d ism iss a lay trustee, som e

lay men m isa pp ro priate d an d e njo yed rev en ues th at b elo ng ed to th e tem ple. C ou rts o f

L aw we re r elu cta nt to e nte rta in a co mp lain t fro m a bhikkhu until h e c ou ld le ga lly p ro ve

that he w as the chief incum bent of the tem ple-often a difficult task. A s there w as no

le ga l me an s o f c olle ctin g a nd c on tr ollin g th e r ev enue s o f th e t emp le la nd s, th e c on fu sio n

in B ud dh ist activ ities w as d ou bly c on fo un ded . O n th e o ne h an d th e lay tru stees a nd th e

tenants m isappropriated m onastic revenue, and on the other hand the

bhikkhus

them selves began to use tem poralities im properly according to their individual

w h im s a nd fa nc ie s. (V e n. Wa lp ola R ah ula p .6 9). B ut a lo ng w ith th e c on fu sio n b ro ug ht

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de S i/1 .1

a bo ut b y th e a dm in istra tio n o f B ud dh ist tem po ra litie s. th e c on du ct o f th e

bhikkhus

to o

b ecam e rep reh en sib le. T his cau sed g rea t d am ag e to th e p eace fu l h arm ony an d u nity

that existed between laym en and bhikkhus. in ev itably paying the way for the

de te ri or at ion o f Buddhi st a ct iv it ie s and t he decl ine o fBuddhi sm ,(Ven. Walpola Rahula.

p69).

W h en B ud dh ism an d th e S in ha la n atio n h ad su nk in to th e p iteo usly helpless situation

under a non-B uddhist alien governm ent. once again th ere a pp eared on the scen e,

during the 19

1 h

century, a few B ud dh ist m on ks o f h eroi c char ac ter intent on revi v i ng the

na ti on and i ts r el ig ion . T I le Yen .Va lane S r iS i ddar tha M aha Thera r eg ar de d a s a Buddhist

sc holar a t th at tim e in C ey lo n .. esta blish ed in 1 84 1 a mo nastery nam ed Paramadhamma-

cetiyar am a at R atm alan a, a su bu rb o f C o lo mb o, an d fo un ded there th e P a ramadhamma-

cetiya Pirive na (m o na stic c olle ge). b oth o f w h ic h s till flo urish , Among the

bhikkhus

who studied at th e Param adhanuna - c etiy a P iriv en a, th e ce nter where t he p re se nt

reviv al of B ud dhist learnin g and cu lture originated, w ere the Yen. H ikkaduve Sri

Sum angala N ayhaka Thera who established , in 1873, the V idyodaya P irivena at

M aligakanda, C olom bo, and the Y en. R atm alane Sri D harmaloka M aha Thera who

established , in 1 87 5, th e V id aya la nk ara P irive na a t P a liyagoda nea r C o lombo. Through

th es e tw o

pirivenas-

Y id yo day a an d Y id aya la nk ara -S in ha la lite ra tu re a nd Bud dh ist

cultu re and o nce again receiv ed a new lease of life.

The Buddhist Temporalities Ordinances, 1889,1905

(a) The Buddhist Temporalities Ordinance No.3 ofl889.

The B r itis h Gover nment, p asse d an O rdinan ce in 1889 known a s Buddh is t T empo ra litie s

O rd inance N o.3 of 1889, tr an sf en in g th e c on tr ol o f Buddhis t p ro pe rti es in e ac h d is tr ic t

to a co mm ittee o f B ud dh ist lay men elec ted b y th e B ud dh ist

bhikkhus

and laymen of

th e area, em po werin g it to elect th e tru stees o f th e Vihare s and deva le s i n the di st ri ct s.

In addit ion, a P rovincial C om m ittee w as appointed to act as a check on these district

com mittee. Such as arrangem ent m ig ht h ave w ork ed w ell, bu t the K andyan of that

tim e found it too com plicated to m ake it succeed. M any provisions , therefore, of

the O rdinance rem ained a dead letter.

Under t hi s O rdi nance, t he I sl and was d iv ided i nt o P rov inc es, D i st ri c ts and Sub-Dis tr ic t s.

E ach S ub - D istric t elec ted a rep resen ta tiv e to serv e o n a D istrict C on un ittee w hich

e le cte d its own P re sid en t. T he D istric t C omm itte e a pp oin te d o ne o r th re e T ru ste es fo r

each tem ple. T he m ov ab le an d in un ov ab le p ro perties o f th e relev an t tem ple to geth er

w it h a ll is su es, rents, profits and all offerings m ade for th e use of th e tem ple (but not

pudgalika o ffe rin gs ) v este d in th e T ru ste e's. The Trustee had to keep com plete and

d etailed acco un ts o f th e o fferin gs an d th e re nt, issu es and profits from m ovable and

in un ov ab le p ro pe rty a nd th e d isb urseme nts m ad e. T he c om m utatio n o f serv ice d ue to

a temple ( incJudingthe

Dalada M aligawa)

u nd er th e S erv ice T en ures O rd in an ce ,

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Buddhist I ihares - Their Temporalities .. \lodes of Succession 10 the ..

1870 had to be paid to the Trustee, T he accounts Trustee w ere to be audited and the

auditor was required to send a copy of this report to the Provincial Council and a

d uplicate to th e relevan t D istrict C ourt. T he C ourt w as em pow ered to entertain an

a pp lic atio n b y th e P ro vin cia l C o un cilo r a ny in te re ste d p erso n in re ga rd to th e a cc ou nts

and to m ake an order which it thought proper. The Court w as also em powered to

p rescrib e th e fo rm in w hich T ru ste es sh ou ld k ee p a cco un ts. T he T ru ste es w ere b ou nd

to fo llow th e R u le s m ad e b y th e D istric t C omm itte e w ith th e a pp ro va l o f th e P ro vin cia l

Commit tee .

The D istrict C om mittee w as required to m ain tain a R egister in w hich prescribed

particulars had to be entered and the G overnor was empowered to appoin t

Commis si on er s ( nom in ate d by t he P ro v in cia l Committe e) t o a id th e D is tr ic t Commit te e

in m ak in g in qu iry in to m atte rs to be e nte re d in th e R e gis te r. T h e P rov in cia l Commit te e

o fth e p ro vin ce in w hich th e d istric t o fK an dy w as in clu de d w as re qu ired to m ak e ru les

fo r reg ulatin g th e p ro ced ure to b e fo llo wed in th e ele ctio n o f t he

D iyawa da na N ilame

an d h is rem oval from office . If any property belonging to a tem ple had been sold,

m ortgaged or o therw ise alienated to the detrim ent of such tem ple, a Provincial

C omm itte e w as emp ow ered to in stitu te le ga l p ro ce ed in g s to s et a sid e s uc h a t ra ns ac tio n

and to reco ver p ossessio n o f such property.

S ectio n 48 m ade it u nlaw ful fo r any tem ple and any person in trust, or o n its behalf or

for its benefit to acquire any land or im movable property of the value ofR s. 50/= or

u pwa rd s w ith out o b ta in in g a lic en se f rom th e Govemo r. I t a ls o p ro v id ed th at a ny d ev is e,

g ran t e tc, m ad e in co ntrav en tio n o f th is sectio n w ou ld resu lt in th e p ro perty v estin g in

the law fu l heir/s o f th e person m akin g such dev ise etc.

(b) The Buddhist Temporalities Ordinance, No.8 of 1905.

Th is O r din an ce wa s e na cte d to amend a nd c on so lid ate th e law r ela tin g to th e r eg u la ti on

a nd m a na geme nt o f th e B u dd hist T emp or alitie s o f th is Is la nd a nd c am e in to o pe ra tio n

on 0 1.0 2.19 07. M o st of the provisions of th e O rdinance of 18 89 w ere reprod uced in

th is s ta tu t e. T he m ore im portant ad ditions w ere as follow s:

(a) th e establish men t ofthe

Atamasthana

Commi tt ee f o r t he

Atamasthana

of

A nu rad hap ura. It w as re qu ired to p erfo rm w ith reg ard to th e Atamasthana t he du ti es

assig ned b y th e O rd in an ce to a d istrict C om m ittee a nd w as d eem ed to b e a C om m ittee

elected u nd er th is O rd in an ce. T he m em bers o f th e C om m ittee w ere sp ecified ex ce pt

th at th e h ig h p rie st o f Adam

s

Peak? 'w as e mp ow ere d to n om in ate a B ud dh ist lay man

to serve on the Com mittee (Section 5).

(b) the G overnor was empowered to appoint one or more Comm issioners for

t he pur po se o f c on tr ollin g a nd a ss is tin g d is tr ic t Committe es in th e a dm in is tr atio n o f th e

funds an d p rop erly of their tem ples and to invest in them w ith all or any of th e po wers

set forth in the C om missions oflnquiry O rdinance (Section 15).

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de Silva

(c) the trustee of the Dalada Maligawa w as to continue to be styled and called by

th e title o f Diyawadana Nilame . T he p erso n h old in g o ffic e a nd h is su cc esso rs

w e re to c on tin ue h old in g th at o ff ic e d urin g th eir r es pe ctiv e liv es o r u ntil su sp en de d o r

d ism isse d u nd er se ctio n 16 (1 ). If th e o ffic e b ec om es v ac an t, th e su cc esso r w as to b e

elected by the m em bers of the D istrict C om mittees of the province and district of

Kandy,

the M ahanayakes of A sgiriya and M alw atte tem ples, th e B ud dh ist

Ratemahathmayas as holding office w ithin the revenue district ofK andy and the

Basnayake Nilames o f th e same d istric t, (S ec tio n 1 7).

Present legal framework relating to Vihares and their Temporalities: Buddhist

Temporalities Ordinance, No.19 of1931 and its Amendments.

The sta tu te n ow in o pe ra tio n is C ha pte r 3 96 - B ud dh ist T em po ra litie s O rd in an ce N o .

1 9 o f 1 93 1 w hich c am e in to o pe ra tio n in 0 1.1 1.1 93 1. T he O rd in an ce in its p re am ble

states that it is an O rdinance to am end and consolidate the law relating to

B ud dh ist T em po ralitie s in S ri L an ka . The O rdinance w as am ended from

t ime

to

tim e by Ordinance N o. 19 of 1931 N o.9 of 1940, N o. 14 of 1941. N o. 32

of

1947, N o. 22 of 1955. N o. II of 1968 . N o. 34 of 1973 and N o. 22 of 1930.

The nrevious Ordinances were ~:jm in is te re d d ir ec tly by the Governor. But. tk:;

instant O rdinance w as to he adm inis tered by th e Pub lic Trustee-an

off ice origin rllv

created

by

Ordinance 1\.0.

I

of :

92 2

and continued

by

The Pu~.;:c

T

rT,;~:

Ortiilld nce N o. j 1 c)f~. 931. The functions and duties of th e Public Tru ste e ;,t'; ~;',;::

P.CE;;;t:'lr

I

in '::g:~n1


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Buddhist hares - Their Temporalities.. vlodes of Succession to the ..

v. in the case of an exem pted temple, the m anagem ent of the property of that

temp le s ha ll

v est in th e

Viharadhipathi

who is r efe rre d to a s C o ntro llin g

Viharadhipathi.

(S ec tio n 4 (2 .

VI.

in ce rta in circu mstan ces, th e C om m issio ne r o f B ud dh ist A ffairs is e mp ow ered

to m ake any arrangem ent for the safe custody of the property ofa tem ple or to

ap po int a prov isional T ru stee. (Section 11 (2 .

v ii. a tru stee ca n h old o ffice fo r 5 y ears, b ut is e lig ib le fo r re ap po in tm en t. (S ec tio n

12).

In reg ard to te mp le p ro pe rty , so me sig nifica nt featu re s are as fo llo ws:

i. in a claim fo r recov ery o f a ny m ov able o r im m ov able pro perty or fo r t he assertio n

o f title to any su ch pro perty , the plea o f prescrip tio n un der th e P rescri ption

O rdinance is not available except in regard to righ ts acquired prior to the

enactm en t o f th e O rd in ance. (S ectio n 3 4.).

1 1 . no prohib ition has been imposed against a tem ple acquiring any land or

im m ovable pro perty as w as prov ided fo r in th e tw o previou s sta tutes.

I would at this stage express a perso ... il view in regard to one provision in the

O rdinance of 1931. I d o not favour the appoin tm ent of a

Viharadhipathi

or an y

other

bhikkhu

or

samanera

as a trustee . A person who has decided to go forth

from the Hom e to the H om eless Life of a

bhikkhu ,.

sh ou ld n ot b e in vo lved in such

world ly m atters as the m anagem ent of plan tations and in the m ain tenance of

accounts. It w ould be an im pedim ent to realizing the goal of final deliverance as

poin ted out by the B uddha.

T he c on tro l o f th e tem po rality h ad b ee n reg ulate d b y su cc essiv e O rd in an ces p asse d

in 1 88 9, 1 90 5 an d 1 93 1. U nd er th e leg isla tio n o f 1 88 9 th e c on tro l o f T em po ra lities

w as m ore or less in the hands of the

Viharadhipathi.

T he statu te o f 1 90 5 re place d

h im b y a lay tru stee un der th e sup erv ision of D istrict C om m ittee. T he O rdin an ce o f

1 931 , h oweve r, gave him the option of nom ination of h im self or a lay trustee and

replaced the D istric t C om m ittee b y the P ublic T rustee and A dv isory C om m ittee.

T here are how ever, a few temples such as the

Temple of the Tooth

and the

Atamasthana

of A nuradapura to w hich special provisions applied. W here the

nom ination has not been m ade or there are d isputes as to the person who may

m ake a n om in ation , th e P ub lic T rustee - n ow C om m issio ner B udd hist A ffairs can

m a ke a p ro visio na l n om in atio n.

T he te mp oralities o f all tem p les n ot ex em pte d fro m its p ro visio ns v ests in th e tru ste e

or contro ll ing

Viharadhipathi

in w hom the properties vest and w ho receives the

incom e which has to be applied in term s of the O rdinance. Leases of tem ple

property cannot be made except as provided and the Court m ay set aside

im provident leases. One of

the gravest abuses in the adm inistration of the

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de Silva

temporalities was the grant oflong leases made by the

Viharadhipathis

or trustees

to individuals or foreign companies upon terms which Were to the prejudice ofthe

temples. Legal provision was made both in the Ordinance of 1905 and that of

1931 to cancel such leases even where they were made before the enactments. In

many cases such leases have been cancelled or reviewed. Sale or other al ienation

of immovable property is valid unless it is the sale ofa Paraveni pangu or a sale

in execution after notice to the Public Trustee. Another check and balance is the

provision that a claim for the recovery of any property movable or immovable is

not barred by the Prescription Ordinance.

The property which belongs to a temple is

Sanghika

property. That is property

dedicated to Sangha. Of the dedication there may be direct evidence hut more

often it is presumed from long use or custom to be temple property. Dedication is

a religious ceremony and the form which the ceremony takes has been reproduced

in certain cases.

The property which a priest owns in his own rights is called

pudgalika

property,

This ownership was in its origin confined to requirements needed for his personal

use. But in actual fact, some priests acquire property for their exclusive personal

use. Such property unless alienated by them during their lifetime is deemed to be

the property of the temple to which they belonged. This provision does not apply

to his inherited property, and applies even when .there has been a disposition by

Last Will or Testament.

The legislation of 1931 introduced an important change when it provided for the

registration of

bhikkhus

and the maintenance of registers. There was no earlier

statutory requirements to this effect. The ecclesiastical practice has been to keep a

register

{lekam mitiya)

in loose leaf of the ordination or

Upasampada

ceremony

of

hhikkhus

for the information of the Chapter of the

Nikaya

of which they were

members. The Act was enacted that a bhikkhu whether or robbing or on ordination

should make a declaration in a presented form in duplicate and duly countersigned

and forward the two forms to the Register General. This officer kept one for his

own file and forwarded the other to the Maha Nayaka of the

Nikaya

to which the

bhikkhu belonged. In the event of any change or modification of the particulars, it

is the duty of the Maha Nayake to inform the Registrar General so that he may

make the same entry in his own register. A

bhikkhu

whose name does not appear

in the Registrar General's register but passes off as a

bhikkhu

is guilty of a criminal

offence. The register kept by the Registrar General is prima facie evidence of the

facts contained in the register in all courts for all purposes.

A temple up to 1815 enjoyed corporate status and enjoyed independent existence

under State patronage and protection. The British administration was concerned

with problems of endowments of temples. According to English Law concepts of

trust property, these endowments were charitable trust property vested in a trustee.

This concept which was grafted on to the Sanghika property of the temple sought

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Buddhist l iharcs - Their Temporalities .. \Iodes of SucceSSIOIl 10 the ..

to make the resident

bhikkhu

the holder of such property of the temple as trustee

and designated him incumbent . If a bhikkhu is to be saved from the need to

administer the temporalities of the temple, which violates the tenets of the

Vinaya

a temple must be given corporate personality and the concept of an individual

trustee must be done away with, so that the trustee is vested in the corporation

sole which is the temple, with the right to sue and be sued in any cOUl1oflaw. Once

the concept of individual trustee disappears, the temple will be free of the

encumbrances of the law and be strong enough to give spiritual guidance to the lay

community which is its paramount duty.

Case Law

The principles applicable to Buddhist temporalities and succession to the office

Viharadhipathi

have been to a considerable extent investigated an analyzed by

the superior courts in Sri Lanka, namely the Supreme Court and the Court of

Appeal. Therefore it is advisable that they all be collected with a -view to formulating

a Code on the subject. It is useful at this stage to record some of the important

judgment by our superior courts.

Ven. Omalpe Dhammapala Thero

1:

Rajapakshage Peiris and Others (2004)

case decided by the Supreme Court concerned a declaration of title to a land as

temple property, The plaintiff instituted action in the District Court for a declaration

of title to the land in dispute viz, an undivided 2/3 of the land as the Trustee of Sri

Nagarama temple. Kandebedda and for the ejectment of the original

1

f defendant.

The said land had been sold by a Crown Grant dated

06.02.1921

to the then

incumbent of the temple Medhanakara Therunanse in trust for the Kandebedda

temple. The original 1

f

defendant claimed the land by prescription. The plaint was

filed on the basis that the said land was temple property. Section

20

of the Buddhist

Temporalities Ordinance ( the Ordinance ') provides that all property appertaining

to or appropriated to the land use of any temple and all offerings made other than

pudgalika

property offered to the exclusive use of an individual

bhikkhu

shall

vest in the Trustee or controlling

Viharadhpathi

for the time being, of such temple.

Section 23 of the Ordinance provides that pudgalika property ifnot alienated by

the owning

bhikkhu

during his life time be deemed to be property of the temple to

which and bhikkhu belonged unless such property has been inherited by such

bhikkhu.

The District Judge dismissed the action on the ground that the land in suit

was not

Sanghika

property i.e. a gifted after a ceremony according to the

Vinaya.

After hearing the case the Supreme Court held as follows:

1.

A temple could possess

Sanghika

property,

pudgalika

property and property

which is neither

Sanghika

nor

pudgalika

property but could be treated as

temple property.

2. A temple is an institution

sui generis

which is capable in law of receiving and

holding property. It has the attribute of a corporation for the purpose of acquiring

and holding property.

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de Silva

3. A tem ple could acquire property by the ordinary civil m odes of acquisition

w ithout a cerem ony conducted according to the Vinaya

4. The property in su it w as in any event tem ple property purchased or gran ted for

and on behalf of the tem ple and the title to the said property devolved and

vested in the tem ple on the death ofV en. O witigam a D ham mananda ..

T he c on cep t o f Sanghika .p ro p er ty a nd g ih i santhaka . ( la y p rope rt y) wa s consi de red

from the beginning of the 20

th

ce ntu ry in Wickramasinghe v . Unna nse. ( 1 92 1) In

this case it was decided that it is by a gift that a tem ple or any other property can

became Sanghika and the very con cep tio n o f a g ift requ ires th at there sho uld be an

o fferin g o r d ed ica tio n. U ntil a d ed ic atio n tak es p lac e, th e te mp le p ro perty re ma in s

g ih i santhaka

(la y p ro perty ). T his d ed icatio n m ay tak e th e fo rm o f a w ritin g o r m ay

b e v er ba l, but in eith er case it is a fo rm al act, acco mp an ied b y a solem n cerem ony in

the p resen ce o f fou r or m ore p riests w ho represent the s oma sa ng ha . o r th e e ntire

priesthood. A dedication m ay be presum ed in the case of a tem ple w hose origin is

lost in the dim past. This view was accepted and fo llowed in

Wijewardana v

Buddharakkita

Thero (19 57 ) w here it w as held that a B udd hist Virhara o r temp le

is n ot a j uristic p erso n an d c an no t th ere fo re rece iv e o r h old p ro perty , A ny p ro pe rty

g iv en to th e

Sangha

m u st b e d ed ica ted in th e m an ner p re scrib ed in th e

Vinaya.

Then

an d th en on ly can it beco me Sanghika p ro perty, A ltho ug h pro perty can be g iven to

th e Sangha it w ould be done only as Sanghika p ro perty a nd also in a cco rd an ce

w ith t he c us toma ry mode o f d ed ic at io n . I n t he P riv y Coun ci l d ec is io n i n R ? 1 ,

Mapitigama

B ud dha ra kkita T hero v Wijewardana,

(1960) it w as held that section 20 of the

B u dd hist T emp ora litie s O rd in an ce , w h ic h v ests a ll p ro pe rty b elo ng in g to a tem ple in

th e t ru ste e o r c on tr oll in g Viharadhipathi of th at tem ple, applies on ly to

Sanghika

p ro pe rty w h ic h h as b ee n d ed ic ate d to th e p rie sth co d a s a w h ole w ith a ll th e c er emo nie s

an d forms n ec essa ry to e ffe ct d ed ic atio n.

A sim ilar v iew w as taken in the case of

K am pane G unaratne T hero

v

Mawadawila

Pannasena

77 ze ro .( 1 998 ) I n th at c as e t he p la in ti ff s ue d th e d ef end an ts f or a d ec la ra ti on

th at h e is th e law fu l Viharadhipathi o f th e tem ple k no wn a s M a ha ga ma R aia rarn ay a,

fo r th e e jec tm en t o f th e d efen dan ts

from

the tem ple prem ises and for recovery of

po ssession of th e sam e. T he tem ple w as con stituted on an allotm ent o f C row n land

w hich had been leased to the trustees of a B uddhist A ssociation for the purpose of

con structing a B uddh ist tem ple and d ed icatin g it to the Sangha after w hich it w as

stip ula ted th at th e lesso r w ill issu e a fresh le ase o f t he lan d fo r 9 9 y ears in fav ou r o f th e

t ru s te e s o r t he con tr o ll ing

Viharadhipathi

o f th e tem ple . T he temple w as c on stru cte d

and a deed' of dedication ' w as executed w ith the approval of the G overnm ent

A gen t an d th e C om m issio ner o f B ud dh ist A ffairs. T he d eed a pp oin ted th e p la in tiff

a s th e Viharadhipathi o f th e temp le. I t w as h eld th at th e fa ct th at a d ee d' o f d ed ic atio n'

w as execu ted w ith the fu ll au tho rity o f t he state did no t b y itself, rend er the tem ple a

S an gh ik a V ih ara ya w hich w as th e b asis o fth e plain tiffs actio n. T he C ou rt to ok the

v iew th at a m ere claim to th e o ffice of Viharadhipathi in de pe nd en tly o f th e title to th e

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Buddhist hares - Their Temporalities .. \lodes of Succession to the

tem ple and tem poralities is untenable. M oreover it w as held that as the deed 'of

dedication ' had not been accom panied by a solem n cerem ony in the presence of four

o r m ore m on ks re prese ntin g th e 'Sarva Sangha' o r . en tire p rie sth oo d' a s p re sc ribed

in th e Vinaya, the tem ple and its property did not becom e Sanghika p rop erty a nd

that the title to the property rem ained w ith the S tate. In other w ords the property

remains 'gihi santhaka'. GP .S d e S ilv a, C . 1 . a fte r c on sid erin g th e a fo rem en tio ne d

a sp ec ts s ta te d t ha t, 'T he e sse nc e o f a v alid d ed ic atio n is th at th e p ro pe rty m u st c ea se

to be 'gihi santhaka '. the dedication m ust be in term s of the Vinayas

In Rev. Oluwawatte Dharmakeethi Thero \~ Rev . Kevitiyagala Jinasir i Thera

(19 78 ) it w a s h eld , th at, th e p la in tiff c ou ld n ot su cc ee d in th at c ase u nle ss h e p ro ve d

that the prem ises in question was sanghika as he could not claim to be the

Viharadhipathi of gihi santhaka

lands. It w as also held that the dedication is a

sine

qua non fo r p remises to b ec om e Sanghika and the m ere fact that a tem ple has been

g iv en to th e Sangha does not m ake it Sanghika. It m ust be dedicated in the m anner

p re sc rib ed b y th e Vinaya to b ec ome Sanghika.

The Suprem e C ourt in Charles vAppu ( 19 14 ) d is cu ss ed th e le ga l a sp ec ts p er ta in in g

to Sanghika property in detail. D iscussing the position of Sanghika property , De

Sampayo , J. s ta te d th at

.. S a n g h i k a

'p ro pe rty is in alien ab le in th e se nse th at th e tru stee h as n o po we r

to dispose of it 'Sanghika' m eans no m ore than property b elo ng in g to

t he e nt ir e p rie sth oo d, that is to say, to th e temp le, as distinguished from the

pr iva te p roper ty o f th e p ri es tl y i nc umb en t. I n t h is c on ne ct io n itm ay b e r emember ed

th at a tem ple is a c or po ra tio n, a nd o fte n a cq uires p ro pe rty b y th e o rd in ary c iv il

mode s o f a cqui sit io n.

R eferring to the decision in

Wickremesinghe

v.

Buddharakkita There-

(19 57 ) it

w a s s ta te d th at,

It would appear from the case of

Wickremesinghe v Unnanse

that for a

d ed ic atio n to th e Sangha there m ust be a doner, a donee, and a gift. T here m ust

be an assem bly of four or m ore bhikkhus. The property m ust be show n, the

donor and donee m ust appear before the assem bly and recite three tim es the

form ula generally used in giving property to the

Sangha

w ith th e n ec es sa ry

v ariatio n a cc ord in gly a s it is a g ift to o ne o r m ore . W a te r m ust b e p ou re d in to th e

hands of the donee or his representative. The Sangha is e ntitle d to p oss es s

the property from that tim e onw ards. N o property can becom e Sanghika

w ith ou t su ch a c eremon y.

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de Silva

It was stated that the procedure laid down in Wick remas in gh e S ea se (1921) for

giving property to the Sangha is in accord with the Vinaya (Ku ll awagga , Sixth

Khandhaka sections 2.4 and 5). However, although repetitively ithas been mentioned

that the property acquired by a temple must be

Sanghika

property and that essentially

there should be a dedication to the Sangha with a ceremony which included pouring

water, this ritual seems to be flawed in certain instances.

Refening to such instances. Dr. Il.W'Ihambiah stated that:

In the Sinhalese inscription as Periya Pul li yankulam a dedication to the Sangha

is recorded. There is no mention of the ceremony of po wing water. although it is

mentioned in later inscriptions. such as the one atDimbulagala, where King Abaya.

grandson of the King Devanampiya Tissa dedicated a canal to the

Sangha

by

pouring water from a golden vase Much later,inthe time ofKing Kirti Sri Rajasinghe

the Asgiri Vihara, which is the second largest of the Buddhist establishments in

the Kandyan Kingdom, was dedicated bythe King and this dedication isinscribed

on a stone. In 1766Adigar Pilimatalawa dedicated the Parana Vihara in the Asgiri

Vihare premises to the priesthood and the inscription there sets out the ceremony

that was performed by the King. All that it says isthat the King caused Ehelepola

to read the contents of an ala dedicating Kahawala and Udasgiri to the new

Vihara

and he offered the

writing

by laying it on the table before the image. In

both these grants, there is no mention ofthe pouring of water at these ceremonies,

Much earlier than that the Mahavamsa records the ceremony of planting a

branch of the original Bo tree under which the Buddha sat and achieved

enlightenment, which is illustrated by a stone sculpture on the lower and middle

architraves of the East Gate of the

Sanchi

Tope . The sculptures do not depict,

and the Mahawansa does not refer to. the pouring of any water.

The Supreme Court in

V en. O malpe D ham mapala thero S c as e (2 00 -1 )

referring

to the above quotation stated that there are two methods of making a dedication

to the Sangha one with a ceremony which includes pouring of water and the other

without such a ceremony. It is also worthy of note that the Buddhist Temporalities

Ordinance refers to pudgalika property belonging to a priest, which could later

become the property of the temple. Section 23 of the Ordinance, which refers to

pudgalika property acquired by a bhikkhu for own use, reads as follows:

All pudgalika property that is acquired by any individual bhikku for his

exclusive personal use, shall, if not alienated by such bhikku during Ius lifetime,

be deemed to be the property of the temple to which such bhikku belonged

unless such property had been inherited by such

bhikku .

There is no reference made in the Buddhist Temporalities Ordinance, that the

pudgalika property, of a bhikkhu must be acquired, in terms of the Vinaya. This

clearly enunciates the principle that the property dedicated with a ceremony to

make the offering Sanghika 'is not the only way for a temple to acquire property.

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Buddhist l i hores - Their Temporalities .. \lodes of Succession

10

the ...

The decision in

Kosgoda Pangnaseela Thero and another v. Gamage

Pavisthinaharmy (1986) had clearly analyzed the position w ith regard to a tem ple

in ownin g p ro pe rty . A fte r a n in te ns iv e e xam in atio n o f th e p as t a nd p re se nt e na ctm e nts

d ea lin g w ith B ud dhist te mp ora litie s, th e re le van t p rov isio ns a nd th e d ec id ed c ase s

w ith specific reference to the requisite capacity of a tem ple to receive property .

Atukorale, J. w as of the view that,

'T here is therefore legislative sanction for the proposition that a tem ple

can acq uire property otherw ise than by w ay of a Sanghika dedication.

I am therefore w ith respect, unable to subscribe to the view taken by the

Privy Council in Rev. Mapitigama Buddharakkita Thera v.

Wijewardene (1960) that section 20 of the B uddhist Tem poralities

O rdin an ce d eals o nly w ith

Sanghika

p ro pe rty , t ha t is , p ro pe rty d ed ic at ed

to the priesthood as a w hole w ith the custom ary cerem onies appurtenant

to s uc h a d ed ic atio n.

There are decisions w here there are certain dicta to the effect that a temple is a

corporation and can acquire property , In Charles v.Appu (1914), De S am pa yo ,

J,

stated that, it m ay be rem embered that a temple is a corporation, and often

acq uires property by the ordinary civil m odes of acq uisition . T his view w as cited

w ith approval by

Atukorale, J.

in

Kosgoda Pangnaseela Thera and another v.

Ganage Pavisthinaharmy (1986).

In that case, it w as further stated that,

O n a Consideration there appears to m e .... that a Buddhist Vihara or

tem ple is a n in stitu tio n sui generis w hich is capable in law of receiving

and holding property . The view I have formed is that in the context of

past legislation the B uddhist Tem poralities O rdinance recognizes a

Budd his ttempl e o r Vihara a s an ins ti tu ti on wi th t he a tt ri bu te s o f a co rpo ra ti on

for the purpose of acquiring and holding property , both m ovable and

immovable

On a c on sid era tio n o f th e to ta lity o f th e m a te ria l a va ila ble , w h ic h in clu de s n ot o nly th e

case law , but the relevant past and present legislation, the Suprem e C ourt in

~ e n .

Omalpe Dhammapala Thero s case (200-1)was of the view that the present

B ud dh ist T emp or alitie s O rd in an ce re co gn iz es a B ud dh is t tem ple a s a n in stitu tio n w ith

t he charact er is ti cs o f a co rpo ra ti on wh ich could acqui re and ho ld movabl e and immovab le

pro pe rty b y th e o rd in ary c ivil m od es o f a cq uisitio n.

A t emp le , a cc or din g to th e Budd his t T empo ra lit ie s O rdi na nc e, me an s a p la ce o fBudd his t

w orship and w ould include the com m unity of the Sangha, v iz . t he en ti re p r ie s thood .

T he o ffe rin gs to a temp le c ou ld in clu de a ru pe e c oin p ut in to a till b ox o r o ffe rin gs suc h

a s b ed sh ee ts, p late s, c up s e tc . fo r th e u se o f t he p rie sts. In e ac h o f th ese in sta nc es, th e

dedication m ay not be accom panied by a solem n cerem ony in the presence of four or

more priests who r ep res en t t he 'sarvasangha' o r e ntir e p rie sth oo d w ith th e c erem on y

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de Silva

of p ouring w ater. In term s of section 20 of the B ud dhist T em poralities O rdinan ce

a ll o ffe rin gs m a de f or th e u se o f s uc h tem ple s ha ll v es t in th e tr us te e o r th e c on tr ollin g

Viharadhipathi for the tim e being of such tem ple.. F urtherm ore, t he Budd h is t

T emp or alitie s O r din an ce p ro vid es f or s itu atio ns wh er e a n in div id ua l bhikkhu could

a cqu ir e p ro pe rt y f or h is e x clu siv e p er so na l u se . Howeve r, a s r ef er re d to e a rl ie r, s ec tio n

23 o f the O rdinan ce provides that such pudgal ika p ro pe rty if n ot a lie na te d b y su ch

bhikkhu dw ing his life tim e be deem ed to be th e p ro pe rty o fth e temp le to w hic h su ch

bhikkhu b elo ng ed u nle ss su ch p ro pe rty h as b ee n in he rite d b y su ch bhikkhu. I n t erm s

o f s ec tio n 2 3 o f th e O r din an ce . in a s itu atio n wh er e a n in div id ua l

bhikku

d ep ar ts f rom

t hi s wo rl d. w i th o ut a li en at in g h is pudgalika p ro pe rty ' a cq uire d b y h im d urin g h is lite

tim e ..such property w ould deem to be the property o f the tem ple even tho ugh such

p ro perty w ould had been acq uired w ithou t cere mo ny an d d edic ation in the m anne r

p rescribed in the

Vinaya.

Therefore the Suprem e Court in

V en. O malpe

Dhammapala

T 7 1 C r o

s c as e ( 20 04 ) h eld th at it is a c on clu siv e swm is e th at in a dd itio n

to Sanghika and pudgalika property belonging to a tem ple. there could be other

p ro pe rty wh ic h b elo ng s to th e tem ple b ut a cq uir ed w ith ou t a c erem on y a nd a d ed ic atio n

in th e m a nn er p re sc ribed in t he Vinaya.

The C ourt of A ppeal in Bala pitiya Gun an an da T her a v. T ala lle M e th an an da T her a

f1 99 7) h eld th at th e p rie st w ho w as ro be d first w he re th e ro bb in g w as o n th e same d ay,

is senior and is entitled to succeed to th e Viharadhipathiship. W here a docw nent is

adm itted subject to proof but w hen tendered and read in evidence at the close of

the case is accepted w itho ut ob jec tion, it becom es ev id ence in the case. T his is the

c ur su s c ur ia e. A s it w as proved that the p laintiff w as robed first. he is en titled to

succeed to the Viharadhipathiship. Expulsion of a priest from the Nikaya and

p riesthood cannot be proved by the m ere entries in registers. It w as alle ged th at the

p rie st w as u nawa re o f h is e xp ulsio n. E xp ulsio n c an n ev er b e a u nila te ra l a ct in v ie w o f

t he con sequences i t en ta il s. Expu ls ion mean s no th ing l es s t han the immed ia te t erm ina ti on

o fth e p rie st's life a s a bhikkhu . W h ere th ere is n o p ro of o f c ha rg es b ein g p re fe rre d, of

a n in qu iry a nd th e o bse rv an ce o f t he

aud a lterant

rule,

th er e c an b e n o v alid e xp uls io n.

In the case o f J ay ananda Ther unnans e v.Ra tnapa la Therunnanse ( 19 61) Ba sn ayake

C .J. observed that it is w ell-established that the offices o f Viharadhipathi and

Viharadhikari are no t the sam e. In the unreported case of We liv it iy e Sob it ha Ther a

v. W erapitiye A nom adassi T hera (1995) G P.S . de S ilva C .J. observed that the

question w hether the term s of Viharadhipathi and Adikari re fer to tw o d istinct

officers or to one and the sam e officer has to be determ ined on an interpretation of

th e d oc um e nt its elf .

Punnaananda Thera v. Welivitiya Soratha (1951) it w as held that the

abandonm ent by a priest of his right to the incum bency of a B uddhist tem ple does

n ot re qu ire a ny n ota ria l d ee d o r o th er p re sc rib ed fo rm ality , b ut is a q uestion offact

a nd th e in te ntio n to a ba nd on m ay b e in fe rre d fro m th e c irc um sta nc es. Jinaratna

Thera v.

Dharmmaratana

Thero ( 19 57 ) it w a s o bs er ve d th at a n in te ntio n to re no un ce

84


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Buddhist ithares - Their Temporalities. slodes

0/

Succession

10

the

will not be inferred unless that intention clearly appears there from upon a strict

interpretation of the facts and circumstances of the case and if the facts and

circumstances leave the matter in doubt then the inference to be drawn is that there

is no renunciation. Thus. there being no presumption in favour of renunciation of a

right the onus is on the party who asserts it to prove facts and circumstances from

which it can be inferred. III Kalegania Ananda Them v. Makkule Gnanassara

Them ( 1999) it was held that there is strong presumption against abandonment of

the legal right of a lawful Viharadhipathi. Abandonment means desertion of the

temple coupled with a clear manifestation ofa decision not to attend to the functions

and duties of such office.

III Kusaiaguan There i: . Assaji Them and Others (2005) plaintiff Nandarama

Thero instituted action seeking a declaration that the be declared as the lawful

Vihardhipculti.

Subsequently the priest disrobed The person who sought to be

substituted was ordained by Nandararn a Thero on 12.06.1999. However, Nandarama

Thero had disrobed on 01.10.1998. the trial court allowed the substitution. The

Court of Appealed held that:

J )

the test to be applied in deciding whether a Buddhist priest discarded his robes

with the intention of renouncing the priesthood is whether the act of disrobing

was done (1) voluntarily and (2) with;' .: intention of permanently giving up robes.

Per Wimalachandra. J .

. It appears to me that when the said

Nandararna

Thero disrobed to obtain a

photograph as a layman, to apply for a National Identity Card, definitely his intention

would have been to give up robes permanently, it is a voluntary act with the

intention of permanently giving up robes

The Court held that:

(i) Having given up the intention ofleaving the priesthood, and declaring and affirming

an affidavit to that effect, he cannot thereafter claim to be a bhikkhu by putting

the robes again. He ought to go through the procedure of robbing and

higher ordination afresh to become a bhikkhu again,

ii) As Nandarama Thero had disrobed on 01.10.1998, Assaji Thero who was

ordained on 12.06.1999 by Rev.

Nandararna ,

cannot claim to be a pupil of the

said Thero.

Diets \, Ratnapala Terunnanse (1938) concerned a status of the plaintiff to maintain

a case for the declaration of title against defendant. Defendant 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 in his capacity of incumbent. The Ordinance that applies in this case is

8


18/20


19/20

Buddhist

i

ihares Their Temporalities .. vtodes of Succession to the .

tracts ofland. A system prevailed under w hich priests w ere alm ost released

from adm inistrative func tion s of the te mple pro perty . A cco rding to A rticle 5

ofthe K andy an C onven tio n of 18 15 , B ritish G ovem m ent un dertoo k to protect

a n d ma in ta in Buddh ism and Buddh is t t emp le s. Howeve r, w i th d rawa l o f t he B r it is h

Gov er nmen t f rom t emp le a ff ai rs t og et he r w i th s ub se quent p ro c lama tio n s a nd l aws

re quiring registratio n o f all land s includ in g te mple land s plu nged B uddh ist

tem ples into a deep crisis. P atrio tic citizens and B uddhist m onks of heroic

c ha ra te r in te nt o n r ev iv in g th e n atio n a nd its r elig io n a cte d a ga in st s uc h a cts .

3.

I t i s n o t p os sib le f or a n in div id ua l to d ec id e wh at f ur th er a ctio n s ho uld b e ta ke n to

safeguard Sanghika p ro pe rty . D o ub ts. d iffic ultie s a nd im pe dim en ts m a y h av e

been encountered by Viharadhipathi , Trustees and the C om missioner of

B uddh is t A ffairs in th e w orkin g of an O rd in ance w hic h has been in ex istence

for m ore than 75 years. Therefore I w ould recom mend tha t the subjec t be

fully exam ined either by a Comm ission of Inquiry appo inted under the

C om m issions oflnq uiry A ct o r b y a P residential C om m ittee.

4.

Incorporation of the Nikayas and the vesting of the tem poralities in the

incorporated body is one of the s' w g estions pu t forw ard fo r the protection of

the tem poralities of Vihares. 1,:i too is a m atter for consideration by a

C om m ission or P residen tial C om m ittee w ith a v iew to fo rm ulating a sch em e.

5. T he infiltra tion m ade by th e E ng lish L aw of T rust into Sanghika p ro pe rty h as

h indered the grow th of the Sasana and m ade the B uddhist p ries t a trustee

w hich subsum es the lay concept of , possession ' . T hus, it is im perative that

the tem ple becom es a corporate en tity so that endow ments be m ade for the

b enefit o f the Sangha a nd n ot to an ind iv id ual bhikkhu.

6.

The principles o f succession to the office o f

Viharadhipathi

have now been

to a c onsid erable ex te nt inv estig ated and a nalyzed by th e S uperior C ou rts of

S ri Lanka. T hey should a ll be collected w ith a view to form ulating a C ode on

t he s ub je ct .

References

Balapitiya Gunanada Thero v. Assaji Thero

Others (2005 SLLR Vo.l 1

281.

B ud dh ist C om m issio n R ep ort (1 95 9) b y B ud dh a S asa na C om m issio n x viii S essio na l

Report .

ChariesvAppu (1914) 19 N LR 242.

Dias

v.

Ratnapala Terunnanse (1938) 40 N LR 41.

87


20/20

de Silva

Jayananda Therunnanse

v.

Ratnapala Therunnanse

(1961) - 61 NLR 273,

275.

Jinaratne Thera v.Dhammaratana Thera (1957) 57 NLR 374.

Kampane Gunaratne Thera v. Mawadawila Pannasena Thera (1998) 2 Sri

LR 196

Kalegama Ananda Thera v.Makkula Gnanassara Thera - (1999) 2 SLR 218.

Kosgoda Pangnaseela Thera and Another v.Gamage Pagisthinahamy (1986)

3 CALR48.

Kusalagnana Thera v.Assagi Thera and Others

(2005) SLLR VI. 281

Punnaqnanda therq v. Welvitiaya Sortha Thera (1951) 51 NLR 372.

Ratnapala Unnanse ~Kevitigala Unnanse

(1879) 2 SCC 29.

Rev: Mapitigama Buddharakkita Thera v. Wijewardana (1960) 62 NLR 49.

Rev. Oluwawatte Dhamakeerthi Thera v. Rev. Kevitiyagala Jinasiri Thera

(1978) 79 (2) NLR 86.

Sedhananda Therunnanse

v.

Sumanatissa

(1934) 36 NLR 422.

Rahula alpola (2003). TheHeritage of the Bhikkhu Second edition 2003 Walpola

Rahula Foundation Trust, Colombo.

Ratnapala Nanadasena (2005),

Crime

Punishment in the Buddhist Tradition.

Second Edition. A Sarvodaya Vishavalekha Publication.

Thambiah H.W., 1972,Buddhist Ecclesiastical Law.

Journal of the Ceylon Branch

of the Royal Asiatic Society. New Series. Vol. vii, Part 1pp. 82 and 83.

Ven. Omalpe Dhammapala Thero }, Rajapashage Peris

Others

(2004) 1

SLLR 1.

Welivitiye Sobitha Thero v. Werapitiye Anomadasassi Thero

(1995) - SC 79/

94 - SCM 23.08.1995.

Wickramasinghe v. Unnanse (1921) 23 NLR 236.

Wijewardana

~

Buddharakkita Thero

(1957) 59 NLR 121.

88

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