Weerasinghe v. Ran Banda
v.RAN BANDA AND TWO OTHERS
COURT OF APPEAL
TAMB1AH, J. AND ABEYWARDENA. J.
C. A. <S. C.) 28/76 (CIVIL)- D. C. KANDY 5428/A:
NOVEMBER 9. 1983.
Kandyan law- Adoption- Requirements of a valid adoption under Kandyan law.
In the course of proving title to the land in suit, the plaintiff sought to establish thatone B had adopted M for the purpose of inheritance. It was in evidence that P hadgifted certain lands to M by deed of gift (P 4) which he later revoked and that P 4
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contained the words ‘adopted daughter'. There was also the oral testimony of theplaintiff and two others who stated that 8 had told them that he was adopting M for thepurpose of inheritance and that this had been said in the presence of others too. It wasalso however revealed that B had executed deeds in favour of his relatives. The plaintifftoo had in an action for declaration of title to this land indicated that he did not acceptthe position that M was the heir of B.
The mere words ' adopted daughter' in the deed of gift are not sufficient toconstitute a valid adoption. It must be established that the child was not merelyadopted, but adopted in order to be heir.
(II) The evidence in the case negatives the plaintiff's position that M was adopted forthe purpose of inheritance. Even if the original intention of B was to adopt M for thepurpose of inheritance, the revocation of the deed of gift shows that he had changed hismind as he is an law free to do.
Cases referred to
<1) Loku Bandara v. Dehigama Kumarihamy, (1904) 10N.L.R. 100.
Dayanganie v. Somawathie (1956) 58 N.L.R. 337.
(S) Amunugama v. Herath. (1958) 59 N.L.R. 505, 510.
APPEAL from the District COurt, Kandy.
I S de Silva for the appellant.
Fau Mustapha for the respondents.
Cur. adv. vult.
January 16, 1984.
The plaintiff-appellant filed action No. 5428/L. D.C., Kandy, againstRan Banda (the 1 st defendant), and his wife, Bandara Menika (the2nd defendant) for a declaration of title to four lands described in theschedule to the plaint, for ejectment and damages. According to theplaint (P8A), one Punchi Banda and his wife. Muthu Menika, werethe owners of the said four lands; Punchi Banda died intestate andissueless, leaving as his heir, his widow, and the latter by deed No.8225 of 10.11.57 (P 7), and by deed No. 93 of 7.12.57 (P 6) soldthe said lands to the plaintiff; the two defendants who have nomanner of title were disputing his title and were in wrongfulpossession of the same. The defendants filed answer (P 8 B) andstated that Punchi Banda adopted for the purpose of inheritance the2nd defendant, and by his deed of gift No. 12667 dated 10.7.45(P 4) gifted to her his interests in the said four lands ; they denied
Weerasinghe v. Ran Benda (Tambiah, J.)
that Muthu Menika inherited any interests in the said lands from herdeceased husband. The case was settled and consent decree wasentered (P8C), in terms of which the plaintiff became entitled to the2nd and 4th lands in the schedule to the plaint, and the 2nddefendant to the 1st and 3rd lands in the schedule to the plaint.
The plaintiff took out writ against the 1 st and 2nd defendants andwhen the Fiscal Officer went to the 4th land called Pahalawatta todeliver possession of the land to the plaintiff, the 3rddefendant-respondent obstructed the delivery of possession.
The plaintiff made an application under s.325 of the old CivilProcedure Code and prayed that the 3rd defendant-respondent bedealt with under sections 326 and 326A of the Code, that the 3rdrespondent be ejected and that he be placed in possession of theland. The 3rd respondent filed petition and affidavit and denied theplaintiff's right to have him ejected and stated that the land belongedto his brother who died intestate and issueless, and that he and hissisters inherited the land from their deceased brother. The petition ofthe plaintiff was numbered and registered as a plaint under s. 327Aof the Code. At the trial, the plaintiff withdrew the case against the1 st and 2nd defendants and the case was proceeded with againstthe 3rd defendant-respondent only.
It is common ground that the owner of the .land in question wasPunchi Banda and that he died leaving his widow Muthu Menika. It isthe case of the plaintiff that Punchi Banda adopted the 2nddefendant Bandara Menika as his child, and by deed P 4 gifted to hertwo lands called Pahalawatta. which he later revoked by deed (P 5)of 25.3.51 ; that on Punchi Banda's death the property devolvedon his widow Muthu Menika and Bandara Menika ; that in view of thesettlement and decree in Case No. 5428/L., D.C. Kandy, he wasentitled to the land in question. The defendant denied the adoptionand it was his position that on Punchi Banda's death, his fatherPunchi Appuhamy became entitled to the properties of PunchiBanda, and that the interests of his father devolved on him.
The question that arose for decision at the trial was whetherPunchi Banda adopted Bandara Menika for the purpose ofinheritance/The plaintiff gave evidence and stated that PunchiBanda and Muthu Menika had no children and Bandara Menika was
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adopted and brought up in their home ; she was 6 to 7 years whenshe was brought to the house ; that Punchi Banda told him and hisfather that he would give all his lands to Bandara Menika ; that deed(P 4) was executed at the time of marriage of Bandara Menika to thet st defendant; that he went to Punchi Banda’s house on the day ofthe wedding and Punchi Banda told him that he adopted andbrought up Bandara Menika as his daughter in order that she will beheir to his properties and that he would transfer all his properties toher; there were other persons as well when the statement wasmade ; Punchi Banda had told the people in the village so and theywere aware that Bandara Menika was being brought up as hisdaughter. The plaintiff produced the deed of gift (P 4) and relied onthe words * adopted daughter * contained in the deed.
The plaintiff called two witnesses to support him. The witnessRanhamy's evidence was that he had been working as a Kanganyunder Punchi Banda at Aranayake during the nineteen twenties.Punchi Banda had stayed at the house of Bandara Menika's parentsand had his meals there. It was during'this time that she was bom.Punchi Banda was fond of her and was saying that he was takingher away to be adopted as his own child for the purpose ofinheritance. She was 6 to 7 years when she was brought to PunchiBanda's house. He used to visit Punch! Banda at his house and hemade a statement to him as well as to others in his presence thathe would give his properties to her as he had no children.
The witness Rupasinghe stated in evidence that when he visitedPunchi Banda's house-with his grandfather, Punchi Banda told hisgrandfather in his presence that he adopted Bandara Manika as hischild so that he could give his properties to her.
The 3rd defendant gave evidence and his position was thatBandara Menika was not adopted but was a servant.
On the question of adoption, for Ihe purpose of inheritance, dielearned Judge held against theptaifttiff.. Hecompnented adverselyon the fact that BandarM^tenikd wae jrpt called by the plaintiff totestify. He took the vie#d^'4houglf^#0rig$nalHntahhon offtanphiBanda was to adopt Band^ttenika^drVie purpose Of atheftentt,.?he had later revoked the dtad of gift end therefore changed his
Weerastnghe v. Ran Banda (Tambiah, J.)
mind. In the result, he held that the plaintiff had not proved hisownership of the 4th land in the Schedule to the plaint anddismissed the action.
It seems to me that the learned Judge was right in deciding theissue relating to adoption against the plaintiff.
The petition of the plaintiff was treated as a plaint. The plaintiffwas claiming title to the land in question ; the burden was on him toestablish title to the land.
To constitute adoption under the old Kandyan Law beforeOrdinance No. 39 of 1938, the necessary requisites were
The parties should be of the same caste.
The adoption should be public and formally and openlydeclared and acknowledged.
It must also clearly appear that the adoption was for thepurpose of inheriting the property of the adoptive parents.
Loku Banda v. Dehigama Kumarihamyi 1). In this case, theclaimant who pleaded adoption relied on a recital in the deed whichdescribed him as ' my nephew adopted by me'. This was heldinsufficient to prove adoption.
In Dayanganie v. Somawathie (2), the Supreme Court took theview that a public declaration on a formal occasion was notnecessary to constitute adoption. All that is neededfs reliable, clear-and unmistakable evidence in whatever form of the deceased'sintention to adopt the adopted child as his heir. Basnayake. C.J.observed (p.345)-
' A person who has brought up a foster child and at onemoment interided that the child should be his heir is not tieddown to that intention. He is free to change his mind. He cansay : 'I once meant to make this foster child my heir, but I do not
now propose to do so. I have changed my mind'the
intention (to adopt the foster child as his heir) must be one thatpersists from the date of adoption throughout the life of theadoptive parent, especially at the time of his death.'
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In Amunugama v. Herath (3), Mr. L. M. D. de Silva said-' It was said by the respondent during the argument andaccepted by the appellant that for a valid adoption the personadopting must do so with the intention that the child adoptedshould inherit all his property and not merely get a part. *
The mere words ' adopted daughter" do not help the plaintiff, for,he must establish that Bandara Menika was not merely adopted,but adopted in order to be heir. To establish this, the plaintiff reliedon oral statements made by Punchi Banda to him and to his twowitnesses and in the presence of others that he was adoptingBandara Menika for the purpose of inheritance. Is plaintiff'sevidence credible on this point ? His own conduct- belies hisevidence. The plaintiff filed the Kandy case on the basis that MuthuMenika only became entitled to the entirety of lands on the death ofPunchi Banda, and that Bandara Menika and her husband who hadno manner of title were denying his title and were in wrongfulpossession, thereby indicating that he himself did not accept theposition that Bandara Menika was a heir of Punchi Banda. Theplaintiff did not call Bandara Menika'to give evidence ; instead, itwould appear that the plaintiff had searched and brought twowitnesses to support him-.
There is other evidence in the case which negatives the plaintiff'sposition that Bandara Menika was adopted for the purpose ofinheritance. The deed P 4 donated only two lands to BandaraMenika. The plaintiff himself conceded that Punchi Banda hadexecuted deeds in favour of his relatives and that a deed was alsoexecuted in favour of the 3rd defendant-respondent and his father.
The learned Judge was right in holding that even if the earlierintention of Punchi Banda was to adopt Bandara Menika for thepurpose of inheritance, he had subsequently changed his mind.This is evidenced by deed P 5 which revoked the deed of gift P 4,and stated that the gift was being revoked as Bandara Menika hadfailed to care for him and render assistance and succour and hadacted so fraudulently that he lost all affection for her.
The appeal is dismissed with costs.
ABEYWARDENA, J.-l agree.
Appeal dismissed with costs.
ASINGHE v. RAN BANDA TWO OTHERS