079-NLR-NLR-V-49-SELLAPPU-Appellant-and-PUNCHI-BANDA-Respondent.pdf
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W1JEYEWARDENE S.P.J.-—Sellappu v. Punchi Banda.
1948 Present.- Wijeyewardene S.P.J. and Windham J.
SELLAPPU, Appellant, and PUNCHI BANDA, Respondent.
S.C. 138—D. C. Kandy, 1,641.
Kandyan Law—Deega marriage.—Proof of—Failure to produce marriage certificate—Presumption as to deega nature of marriage—Rebuttal—Kandyan MarriageOrdinance {Cap. 96), s. 36.
The matter in dispute was whether a Kandyan marriage was contracted indeega. No marriage certificate was produced at the trial. The evidence led,however, was sufficiently strong even to displace a presumption arising undersection 3G of the Kandyan Marriage Ordinance.
Held, that the marriage could not be declared to have been contracte indeega.
Appeal from a judgment of the District Judge, Kandy.
C. E. S. Perera, with M. Hussain, for the defendant, appellant.
S. R. Wijayatilake, for the plaintiff, respondent.
Cur. adv. milt.
April 5, 1948. Wijeyewardene S.P.J.—
This is an action for the partition of a paddy field, NarangetsCumbura, originally owned by one Kalu Hamy. Kalu Hamy wasmarried to Nethi Hamy and had by her two daughters Ukku Hamyand Dingiri Hamy. Nethi Hamy died thirty years ago and then KaluHamy married Ukku Amma. Ukku Amma died about ten years agoand Kalu Hamy, some years before that.
The plaint stated that Kalu Hamy died leaving as his heirs, thetwo daughters, Ukku Hamy and Dingiri Hamy. It did not containany allegation about these daughters or either of them being marriedin Deega. According to the plaint, Ukku Hamy gifted her half shareto the defendant by D 1 of 1944, while Dingiri Hamy sold her halfshare by P 4 of 1940 to Loku Banda who conveyed the same by P 5of 1943 to Cader Saibo who, in turn, sold it to the plaintiff, two ■months later, by P 6 of 1943.
The defendant pleaded in his answer specifically that Dingiri Hamywas married in Deega and thereby forfeited all rights to her parentalinheritance. He pleaded further that his wife Ukku Hamy, the soleheir of her father, became entitled to the entirety of the field whichshe gifted to him by D 1.
WIJ fcVEWARDENE S.P.J.—SeMappu v. Punchi Banda.
2S9
At the trial the plaintiff took up the position for the first time thatboth Ukku Hamy and Dingiri Hamy were married in Deega and that,therefore, on the death of Kalu Hamy each of them beoame entitledto a half share of the field. The matter in dispute between the partieswas formulated in the issue, “Did Ukku Hamy go out in Deega ? ”.
The District Judge held in favour of the plaintiff. He appears tohave been influenced by the evidence of Dingiri Banda, the VillageHeadman, and by the deed P 9. I think that the evidence of DingiriBanda has been accepted by the Judge without close examination andthe Judge has misdirected him? elf with regard to P 9.
The defendant did not produce at the trial the marriage certificateof Ukku Hamy. That may be partly due to the -fact that the plaint-contained no allegation suggesting that the plaintiff's case was thatUkku Hamy was married in Deega. Ukku Hamy gave evidence andstated that she was married in Binna about forty years ago and livedwith her husband in her Mulgedera at Bomure after her marriage.She said that Dingiri Hamy left her Mulgedera after her marriageand lived in her husband’s house at Gadaldeniya, twenty-eight milesfrom Bomure. The birth certificates P 8, P 7 and D 2 show thatUkku Hamy had three ohildren born at her at Bomure in 1903, 1906and 1910. The defendant called another witness, Hearth Hamy, aman of sixty years, who said that he knew that Ukku Hamy continuedto five in the Mulgedera after her marriage. The plaintiff sought todiscount his evidence by eliciting the fact that he was dismissed fromthe office of Vel Vidane for illicit possession of fermented toddy.
Dingiri Hamy and Dingiri Banda, the Village Headman of Bomure,gave evidenoe for the plaintiff. Dingiri Hamy is the younger sisterof Ukku Hamy and must have been a girl of ten years or less at thetime of Ukku Hamy’s marriage. She stated that Ukku Hamy leftthe Mulgedera after her marriage. Being constrained to admit thatUkku Ham}' and her husband lived in Bomure in view of the docu-ments P 7, P 8 and D 2, she said that though Ukku Hamy lived in Bomureit was not in the Mulgedera but in another house about two milesaway from the Mulgedera. She admitted however that Ukku Hamycame to the Mulgedera after the death of the mother, Net-hi Hamy,
“ in order to look after ” Kalu Hamy.
The witness Dingiri Banda, who gave his age as forty-six years wasprepared to say that “the defendant did not live in the Mulgederawith Ukku Hamy after the marriage ” but in a separate house inBomure fifty fathoms away from the Mulgedera. Considering that.Ukku Hamy married over forty years ago very little credence oouldbe given to this evidenoe. He admitted at one stage that he did“not know when Ukku Hamy married”. He admitted further thatUkku Hamy was now living in the Muldegera but explained it by sayingthat Ukku Hamy came back to the Mulgedera after Kalu Hamy’sdeath about eighteen years ago. It will he notioed that he contra-dicts Dingiri Hamy about the time that Ukku Hamy returned to theMulgedera.
I shall consider now the bond P 9 which the Distriot Judge thoughtshowed that Ukku Hamy “ was fully a ware of the fact that she andher sister Dingiri Hamy inherited a half share each of their father
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WIJEYEWARDENE S.P.J.—Sellappu v. Punchi Banda.
Kalu Hamy’s properties Ukku Hamy executed the bond P 9 in1940 hypothecating the following properties which she said werepossessed by her “ by right of inheritnace from (her) father KaluHamy ” :
(а)undivided £ share of Uda Asweddume Wagala ;
(б)undivided share of Uda Asweddume Gederagawa Cumbura ;
undivided £ share of Narangete Cumbura.
The property (c) is not the property sought to be partitioned. TheDistrict Judge apppears to have looked at the description of the sharesin the properties (a) and (6) mortgaged by P 9 and deduced there-fromthe inference that Ukku Hamy mortgaged only a half share asthe other half share belonged to Dingiri Hamy. By a similar processof reasoning the Judge may have deduoed the 'inference that UkkuHamy mortgaged a £ share of the property (c) as the other f sharesbelonged to three sisters. The whole fallacy of that kind of reason-ing lies in the fact that the Distriot Judge had no evidence before himas to the extent of the interests which Kalu Hamy had in themortgaged properties.
The plaintiff and his witnesses also stressed the faot that UkkuHamy quarrelled with her stepmother, Ukku Amma. Ukku Hamyadmitted that there was unpleasantness between her and Ukku Ammaand added that nevertheless they continued to live in the same house.I fail to see why the evidence of these quarrels was led by the plaintiff.It is not the case of the plaintiff that Ukku Hamy severed herrelations with the Mulgedera owing to these quarrels. Both DingiriHamy and her witness state that these quarrels took place whenthe two ladies were living in two seperate houses. The evidenceof these quarrels seems to me to support the defendant’s ease, asit is more likely for two females to quarrel when they are living underthe same roof.
The evidence led for the defence appears to me to be sufficientlystrong even to .displaoe a presumption arising under seotion 36 of theKandyan Marriage Ordinance. The oral evidence of Ukku Hamy andHerath Hamy receives support from the documents P 3, P 7 and D 2and the faot of her residence in the Mulgedera for a number ofyears. I am not impressed by the attempt made by the plaintiffto explain P 8, P 7 and D 2 by locating Ukku Hamy in another houseat Bomure away from the Mulgedera. Dingiri Hamy gives thedistance between the two houses as two miles while the witness• Dingiri Banda, thinks it is only fifty fathoms. Confronted with thefact that Ukku Hamy had been in occupation of the Mulgedera theplaintiff seeks to explain it by saying that Ukku Hamy came back tothe Mulgedera many years after her marriage. But the two witnessesof the plaintiff give two different versions as to the occasion on whichshe returned.
For the reasons given by me I would allow the appeal and direotdecree to be entered dismissing the plaintiff’s action with costs hereand in the Court below.
Windham J.—I agree.
Appeal allowed.