: Wood Benton C.J. and Ennis J.
UNGA v. MENIKE et *1.
S0&—D. G. Ratnapum, 2,061.
Xandym marriag^Xntry in marriageregisterthatthe woman had
ehUAren by thehusbandand by anotherassociatedhusband—
Ic endorsementadmissiblem evidence toprove theassociated
marriage ^Evidence Ordinance, s. 3&.
A certificate at marriage (of August 15, 1871) bore the followingendorsement:—" Atthe timeof this marriagethis woman(Horatali
had by this Stan (Sarana)andby thisman's brother Sottana
the following children:
Held* that this endorsementwasadmissibleinevidence to prove
that the childrenwere thechildren of Horatali by anassociated
marriage, us the endorsementwasmade bythecertifying authority
m the coarse of hie official daty.
rjpHE facts ate set out in the judgment.
Bavmt K.C., for plaintiff, appellant.
Morgan, for defendants, respondents.
Cut. adv. vult.
November 18, 1914. Wood Benton G.J.—
This is an action for declaration of title to land claimed by theplaintiff through his father Balaya, whom he alleges .to have beenthe sole heir of one Sottana. The defendants, on the other hand,say that Sottana and his brother S&rana were the associated husbandsof a woman, Horatali, and that they, together with Balaya, are theoffspring of that union, and on that basis deny the plaintiff's titleto more than one-third of the land in suit.
The District-Judge (Mr. Beven) before whom the case originallycame practically discarded the vivd voce evidence on both sides asinconclusive, held on the documentary evidence .that Balaya wasthe sole heir of Sottana, and gave judgment for the plaintiff. Thedefendants appealed. On the hearing of the appeal they produced,verified by affidavit, what purported to be a certificate (D 4) ofthe marriage on August 15, 1871, of S&rana with Horatali- Thiscertificate bears the following endorsement:—
At the time of this marriage ibis woman had by this man and by this man'sbrother Wattemannannalaye Sottana the following children; (1) Balaya, ageseventeen, (9) Adari, age fifteen, (8) Monika, age thirteen, (4) Ukkn, age eleven,(5) Kira, age nine, (6) Kiribati, age seven. This woman had previously to this,by one Waduge Menika, a child, Tambiya, age ‘wenty-two years.
( 183 )
The Supreme Court seat the case back for further inquiry and 19*4.adjudication on this new evidence. The certificate was* proved, and3he District Judge, from whose decision the present appeal is brought Rbkiok qj.(Mr. Crossman), held that it turned the scale in the defendants*favour, and dismissed the plaintiff’s action .with costs. There is no Menik*reason to doubt the genuineness of the endorsement on the certificate,and as the learned District Judge says, it disposes of the plaintiff’s-case if it is admissible in evidence. It would be admissible undersection 86 of the .Evidence Ordinance, 1895 (No, 14 of 1895), if itwas made by the certifying authority in the course of his officialduty. There is no proof of that on the record as it stands. Butin view of the statement of Mr. Pieris, a clerk in the Registry ofBirths and Deaths, Ratnapura, at the further trial, that ” otherindorsements of a similar nature are found on other entries,” wethought it right to investigate the matter for ourselves. We havenow, through the kindness of the Registrar-General, been suppliedwith information which sets all doubt on the matter at rest, andwhich shows that, although these cannot actually be traced,instructions were issued to the Provincbi Registrars in theRatnapura District (but apparently not in the Randy District) toinsert the names of children already born in certificates of marriageunder the Kandyan Marriage Ordinance, 1870 (No. 3 of 1870), fromand after March, 1871, after the receipt of the following letter fromthe Queen’s Advocate. The “ clauses ” referred to are those ofthe Ordinance of 1870, which had come into force on January 1,
Clause 6 declares ail marriages ' contractedbeforetheG/diiranco
"No. 13 of 1S59 came intooperationvalid, iftheywere contracted
according tothe 1&wb*.inMirdtions. andcustom? inforceamongstfcho
Kandyans atthe timeof the contract.It st< opento the partiesto
register each marriages, and dense 9 imposes this duty on 'die Provincialor AssistantProvincialRegistrar. It istrue thatthefon>i tobo
observed is simply that of *' registering,” and that (here ia “ no notice,mo ceremony/' bvifc theRegistrar mesthe satisfiedthatthe marriage
had been contracted according to theKandyan laws,institutions, and
customs.Thepower toregister suchmarriages was formerly giver, to .
District Registrars^ hat -theyhad alsothe power(Ho.3 of 1361} to
' require parties to provetheir marriage before some competent District
Court. This reference to the Court Is taken away by the new Ordinance,and tike duty cast on the Provincial and Assistant Provincial Registrars.
The Ordinance prescribesdo formor noticefarregistering each
marriages; nopublic noticeofregistrationis necessary;itwould fee
sufficient to give copies to the parties themselves. Such registrationsshould be entered in the registry book.
Clause11provides that, ** exceptas is hetmstaRet provided/' no
marriages smeeNo.- 13 of1869cameintoforce* or tobeheraisrafter
contracted, ehaU be v&M.Thewords” except as here!aprovided"
prevent consistbetween clauses 11and96'. WhattheOrdinance
intendedwasto requireall marriagessince Ordinance/ No. 13 of 1859
( 18* ),
to be registered, bat to save the rights of issue end to prevent questionsit generally l4taHsed such marriages.
AH prtin living together should be encouraged to register tioironions, and the District Registrar may register them, .observing theforms and notices prescribed by the Ordinance as in case of newmarriages. Ko risk will tfb incurred as to children, already bom, whoserights 00014 be saved by clause 35. Bat if they do not register theirmarriages they will still be legal under clause 35, if they – had been con*traded according to the Kandyan customs and subject to the provisoin that danse.
Queen's Advocate's «Ofiicc,B. Morgan.
Colombo, February 4, 1871.
It appears to me that we are now in presence of sufficient materialto support tjbe endorsement on the certificate D as an entry madein the course of official duty, arid I would accordingly dismiss this,appeal with costs. .
Ennis J.—T agree.Appeal dismissed.
UNGA v. MENIKE et al