089-NLR-NLR-V-47-ANTHONIPILLAI-Appellant-and-THYIRAINETHAN-et-al-Respondent.pdf
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CANEKERATNE J.—AnthonipiUai ». Thyirainethan.
1946Present: Canekeratne J.ANTHONIPILLAI, Appellant, and THYIRAINETHAN et al.,Respondents.
322—C. It. Chavakaehcheri, 32,774.
Evidence—Proof of pedigree—Opinion on relationship, when relevant—Evidence Ordinance, a. 50.
In proving pedigree the opinion of a witness as to the relationshipof one person to another is relevant provided such opinion is expressedby conduct and the witness has a special means of knowledge on thesubject.
A
PPEAL from a judgment of the Commissioner of Requests ofChavakaehcheri.
H. W. Thambiah, for the defendant, appellant.
S. J. V. Chelvanayagam, for the plaintiffs, respondents.
Cur. adv. wit.
April 17, 1946. Canekeratne J.—
The appellant contends that one Marusalin, a descendant of a mancalled Avuran, who was a son of Thukuniyar, was entitled to theundivided £th share of the land called Chempadu which he seized inexecution of his judgment against this person. The respondents denythe right of the judgment debtor to any share and allege that Mathesu,a son of Thukuniyar, was the owner of the entire land.
The appellant produced a copy from the thombu extract of 1822 andstated that he has acquired knowledge of the pedigree, apparentlyrelating to the descendants of Thukuniyar, “ by inquiries and documentThe learned Commissioner refused to allow the witness to give anyevidence relating to the pedigree as he was not a descendant ofThukuniyar.
Counsel for the appellant attacks this order of the learned Commissionerand has referred me to section 50 of the Evidence Ordinance and topage 446 of Ameer Ali’s commentary (8th edition).
Courts are obliged in cases of pedigree which refer to matters whichhave occurred in times gone by, and among persons who have passedaway, to allow derivative evidence to be given in certain circumstances.
1 (1945) 46 N. L. R. 540.
DJ3 SILVA J.—Ronawetra v. Seelawafhie.
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The opinion of a witness as to the relationship of A to B is relevantprovided such opinion is expressed by conduot and the witness has aspecial means of knowledge on the subject. (Section 50).
I think the learned Commissioner should not have stopped thewitness at that stage. He can consider the qualifications of the declarant“ as a member of the family or otherwise ”. There is a great differencebetween the competency of evidence and the credit to which it is entitled.
The judgment is set aside mid the case sent back for re-trial. Costsof appeal will be costs in the cause.
Judgment set aside.