CLARICE FONSEKA and 5 others, Appellants, and WINIFRED PERERA and others, Respo

083-NLR-NLR-V-59-CLARICE-FONSEKA-and-5-others-Appellants-and-WINIFRED-PERERA-and-others-Respo.pdf

.364
Fonseka v. Perera.
1957 Present :K. D. de Silva, J. and T. S. Fernando, J.
CLARICE FONSEKA and 5 others, Appellants, and WINIFREDPERERA and others, Respondents
_S. C. 416—D. C. Negombo, 16,744.
Fideicommissa—Fideicotnmissum binding four generations—]Ielhod of counting thegenerations —Construction of Deed..
Evidence—Child born in wedlock—Presumption of legitimacy—Jlebultal—Eiilhcertificate—Entries made therein—Evidentiary value—Statement of deceasedfather denying legitimacy of child—Admissibility—Evidence Ordinance, ss.32 (3), 32 (5), 112.–
"As to tho method of counting the four generations in a fideicommissum
binding on four generations, it is not tho first instituted or fiduciary heir, butthe first fidcicommissary heir, •who constitutes tho first degree, and consequentlyonly tho fifth fidcicommissary heir is able to exercise his free discretion in regardto tho fidcicommissary property. -■
Siri Kant ha v. Thiagarajah (193G) 37 !Nr. L. R. 270, not followed.
In the year 1S54 a person made a. gift of certain property to his sister houisasubject to tho following condition : “ tho said sister of mine shall receive andenjoy the benefits thereof during her life-time in whatever other manner shepleases without conve3'ing the same by way of gift, transfer, mortgage &c., anilthat after her death her two daughters Johann and Tosephina shall bo entitledto and enjoy tho said premises in precisely tho same manner as aforesaid andthat they, their children, grandchildren and their lino of descendants, shallcontinue to enjoy tho benefits thereof without any interruption. ”
Held, that tho deed createda valid fideicommissum binding on four generations.
Tho presumption arising under section 112 of tho Evidenco Ordinance
of tho legitimacy of a child born in lawful wedlock can be rebutted only by suchevidence as excludes any reasonable doubt. •.’
Entries wero made by a man and a woman (A and B), in tho birth registerof a child, that they were unmarried and that thoj' were' the parents of thochild. At the time when tho entries were made, tho lawful husband of thewoman was C.– *•.;'•" ••
Held, thnt tho entries in tho birth register wero not per se sufficient to rebutthe presumption of tho child’s legitimacy.~-".' –
A statement'made by a person, who is dead, denying tho legitimacy ofhis children would not be admissiblo under section 32 (5) of the Evidenco Ordi-nance if it was made in an action in which he sought divorce from his wife onthe ground of adultery.
K. D. DK SILVA, J.—Ponscka v. Per era
365
A PPEAL from a judgment of the District Court, Negombo.
//. ]V. Jnycwcirdcne, Q.C., with P. Ranctsinghe, for tlic 2nd, 3rd, 4th,5lh, 6t h and Sth Defendants-Appellants.
*V. E. Wcerasooria, Q.O., with G. T. Samcrawickramc. and StanleyPerera, for the 1st Defendant-Respondent-.
Cur. adv. vult.
November 29, 1957. Iv. D. de Silva, J.—
On a declaration being made and published under section 5 of the LandAcquisition Act No. 9 of 1950, that an allotment of land called Kckuna-gahalanda and Dawatagahalanda in extent 25 acres 3 roods and 13'3perches was needed for a jmblic jnupose and was to be acquired underthe said Act the Acquiring Officer held an inquiry at which the defendantsappeared and set up conflicting claims to the property. The AcquiringOfficer in terms of section 10 of the Act referred the dispute to the Dist rictCourt, Xegombo, for determination.
Admittedly, the allotment of land in question originally belonged toBalthazcr de Zoysa Rajapakse who in the year IS54 gifted it togetherwith other lands to his sister Louisa Maria Johana by deed No. 120S (ID!).subject to the following condition " the said sister of mine, shall receiveand enjoy the benefits thereof during her life-time in whatever othermanner she pleases without conveying the same by way of gift-, transfer,mortgage &c., and that after her death her two daughters Johana AmeliaDorothy de Zo3'sa Seneviratne Siriwardcnc Hamine and JosephinaWelhehnina Albertina de Zoysa Seneviratne Siriwardene Hamine shall boentitled to and enjoy the said premises in precisely the same manner asaforesaid and that they, their children, grandchildren and their line ofdescendants shall continue to enjoy the benefits thereof without anyinterruption. ”
Louisa the donee on 1D1 died leaving her two daughters Johana andJosephina and on the death of the former without issue the latter becameentitled to her sister’s share also. Josephina, died leaving as her heirstwo children Diana Rosamund Grace de Alncw Rajapakse (hereinafterreferred to as Grace) and Letitia de Abrew Rajapakse. Grace whomarried John Gregory de Zoysa Wijcguneratne Siriwardene (hereinafterreferred to as Gregory) on October 21, 190J—marriage certificate 1D4—had three children, viz., Simon Gunatilleko the 3rd defendant, Lintonwho died without issue and Diana Rosamund Pearl who died leaving herhusband W. Peter Ponseka the Sth defendant and 4 children namelyClarice, Mary, Leslie and Clotilda the 2nd, 4th, 5th and Gth defendantsrespectively.
Letitia was married to T. John de Silva and they died leaving one childMaud the 7th defendant whose husband is C. W. Jayawardene. The 7thdefendant and her husband have two children named. Lidwin and Newton.The 3rd defendant too has a son. It is also relevant to mention thatGrace died in the year 1924—death certificate IDS—while her husband
mj ir.m tr.lr.s'i
3G6
Iv. £>. DE SILVA, J.—Fonscka v. Perera
Gregory died in 1933—death certificate 1D22. Simon the 3rd defendantLinton and Diana Rosamund Pearl the children of Grace were born inthe years 1902, 1903 and 1905 respectively.
Winifred Percra the 1st defendant on deed 1D1S of 1950 purported tobuy the entire land from the 7th defendant and her husband and theirtwo children. Earlier, she had purchased a half share on deed ID 17 of1944 from one W. S. Fernando who had bought certain undivided sharesof this land on deeds 1D12, 1D13, 1D14, ID 15 and 1D1G. The vondorson 1D12 and 1D13 were the 7th defendant, the 3rd defendant and thelatter’s sister Diana Rosamund Pearl while the vendor on 1D14, 1D15 and1D1G was the 7th defendant. The 1st defendant also purchased 1/Gthshare on 1D26 of 1935 from the 3rd defendant.
The 1st defendant claimed the entire land both before the AcquiringOificcr as well as in Court. In the statement of claim filed by her shetook up the position that Grace died without legitimate issue and that hershare devolved on her sister Letitia whose sole heir was her daughter the7th defendant who then became entitled to tlio whole land. She alsoaverred that she made the purchase on 1D26 from the 3rd defendant as aprecautionary measure. The 7th defendant filed a statement supportingthe claim of the 1st defendant and maintained that the children of Gracedid not inherit any rights as they were illegitimate.
The 2nd, 3rd, 4th, 5th, 6t.h and 8th defendants maintained in theirstatement of claim that the half share of Grace devolved on her childrenand that the entirety of the land belonged to the 2nd, 3rd, 4th, 5th, Gthand 7th defendants subject to a fideicommissum which was binding onfour generations.
The learned District Judge held that the deed 1D1 created a singlefideicommissum binding on four generations and following the decisionin Siri Kantha el al. v. Thiagarajah1 he concluded that the childrenof the 7th defendant would get the property absolutely and unfetteredby the fidei commissum. In regard to the half share of Grace he heldthat her children did not inherit any rights as they were her illegitimateissue by her paramour Patterson dc Zoysa Gunatillekc. From thisjudgment the 2nd, 3rd, 4th, 5th, Gth and 8th defendants have appealed.
At the hearing of this appeal Mr. N. E. Wocrasooria, Q.C., who appearedfor tho 1st defendant-respondent submitted that the fidei commissumcontained in the deed D1 was binding only on Johana Amelia and Jose-phine. tho two daughters of the immediate donee on 1D1. Althoughhe took up that position in appeal, it is clear from the judgment and thetrial proceedings, that it was conceded by both sets of defendants thattho deed created a valid fidei commissum binding on four generations;what they wero not agreed upon was as to tho mothocl of counting thofour generations. If Mr.- Weerasooria’s present contention that Josc-phina’s children got the proper^' freo from tho fidei commissum is righthis other submission that Graco’s half sharo did not devolve on herillegitimate children must fail because according to the general law ofinheritance tho illegitimate chiklron inherit tho property of their mother.
11 is only if tho fidei commissum was binding on the children of Joscphina
(193-5) 37 N. L. /?. 270.
K. D. DE SILVA, J.—Fonseka v. Per era
367
that their illegitimate children would not bo ontitlod to claim rights inthis land—Kiriya v. Ukku *. Howover tho language in this dood is dearthat tho donor intended to create a valid fidei conunissum in favour of-Johana Amelia and Josephina and (heir descendants. Although it isonly Louisa and her two daughters who are expressly prohibited fromalionating tho property yet the words that follow, namely, “ and that they,their children, grandchildren and their lino of descendants shall coutimioto enjoy tho benefits thorcof without any interruption ”, clearly indicatethat tho donor intended to benefit tho descendants of his sister Louisafrom generation to generation. The phrase “ without any interruption ”in this context, necessarily, carries with it the prohibition against alie-nation expressly imposed earlier on Louisa and her two daughters. Onemust also bear in mind that the deed is drawn up in Sinhalese, a languagowhich is rich enough, to express tho same idea in many different ways.This same deed came up for consideration in De Silva it al. v. Rodrigo 2before Fisher C.J. and Drieberg J. Tho 1st plaintiff in that case was thopresent 7th dofendant whilo tho 2nd and 3rd plaintiffs were tho present3rd defendant, and his sister respectively and it was hold thore that thisdeed created a valid fidei commissum in favour of Louisa and her twodaughters and descendants. Ivekunagahalanda which is part of tholand sought to bo acquired was tho subject matter of that action. Inthat caso it was contended on behalf of the defendant, who had been inpossession of tho land for a very long period, that ho had acquired a pres-criptive title to the share of Johana Amelia who died without issue. Inregard to that argumont Drieberg J. observed, “ This would bo so if thedeed created a separate fidei commissum in respect of Johana Ameliaand Josephina. I3ut in my opinion (ho intention of tho donor was toimpress one fidei commissum on both lands in favour of tho descendantsof these two. ” In my view tho deed Dl contains a fidei commissum whichis binding on four generations. I woidd proceed to consider the methodof counting tho four generations after I have dealt with tho question ofthe legitimacy of the children of Grace.
Tho birth certificates 1D23, 1D24 and 1D25 respectively show that tho3rd defendant was bornon 14-4-02, Lintonon 25-5-03and Diana RosamundPearl on 23-12-05. In the year 191S Gregory instituted D. G. ColomboCase No. 49,955 against his wifo Grace praying for a dissolution of theirmarriage on the grounds of malicious desertion andadultery. A certifiedcopy of this plaint has been produced in the case marked 1D19. Inparagraph 3 of tho plaint tho plaintiff alleged that prior to tho poriodmaterial to that action his wifo the defendant had without lawful orreasonable cause deserted him. Tho noxt paragraph which is of con-siderable importance reads :—” Subsequent to tho said act of desertionthe defendant Jivod in Colombo and elsewhere at numerous placos difficultto particularizo in the year 1917 loading an immoral life and behavod as acommon prostitute and more than one illegitimate child is born to her. ”
Ho co-respondent was named in the action. Thero is no ovidenco as towhether tho defendant filed an answer or not, but when tho caso carnoup for trial on Fobruary 7, 1919, the dofendant was absont-. On that
1 {1014) 17 N. L. It. 361.
* (1930) 32 N. h. B. 28.
3GS
K. D. I>E SILVA, J.—FonseXa v. Perera
occasion the plaintiff gave evidence and the learned District Judge entereda decreo nisi dissolving the marriage on the ground of adultery. Thisdecree was made absolute on February 7, 1919—1D20. The evidencegiven by the plaintiff in that case has boen produced marked 1D2I,although objected to by the appellants’ counsel. The 1st defendant alsorelied on the birth certificates 1D23, 1D24 and 1D25 to show that Grace’schildren were illegitimate. The only witness called by tho 1st defendantis Jayawardcno the husband of the 7th defendant but he does not saythat tho father of Grace’s children is Patterson do Zoysa Goonetilleke nordoes he refer to the entries in 1D23, 1D24 and 1D25.
That the 3rd defendant, Linton and Diana Rosamund Pearl were bornto Grace during the continuance of her marriage with Gregory is admitted.In view of that fact, tho appellants rely on tho presumption which arisesunder section 112 of the Evidence Ordinance. That section reads :—“ The fact that any person was born during the continuance of a validmarriage between his mother and any man, or within 2S0 days afterits dissolution, tho mother remaining unmarried, shall be- conclusive proofthat such person is the legitimate soil of that man, unless it can be shownthat that man had no access to the mother at any time when such personcould havo been begotten or that he was impotent. ” The presumptionwhich arises, under this section is very strong indeed and tho burden ison the 1st defendant to displace it byr evidence which is cogent. Thatonus cannot bo discharged by a mere balance of evidence. The questionfor decision is whether, on the evidence available, the Court is entitledto hold that the presumption arising under section 112 has boon effectivelyrebutted.
In ID 23, the birth certificate of the 3rd defendant, against the cageG “ were the parents married ” appears the word “ no ” and cage 4 meantfor the insertion of the name and surname of tho father remains blank.The informant is Patrick de Zoysa whose residence is given as 3,St. Sebastian Street. The birth has also taken place at the same address.It is in evidence that Patrick do Zoysa Goonetilleke is tho brother ofPatterson dc Zoysa Goonetilleke. In the birth certificate ID 24 of Lintonthe father’s name is given as Patterson dc Zoysa Goonetilleke and theinformant is tho father himself. Against cage 7 it is stated that theparents were not married. The birth register has been signed by P. de S.Goonetilleke and D. G. Rajapakse who presumably are the parents ofthe child. The birth has taken place at 3, St. Sebastian street which isalso the address of the informant. In ID 25 which is the birth certificateof Diana Rosamund Pearl the name of tho father is given as Pattersondc Zoysa Goonetilleke and it states that the parents are not married.The informant is tho father and his address is give as 204, DematagodaRoad, where the birth also took place. Tin's birth entry' is also signed byP. do S. Goonetilleke ancl D. R. G. Rajapakse. The learned DistrictJudge after taking into consideration tho contents of these birth certi-ficates and the evidence ID 21 given by Gregory in. the divorce actioncame to the conclusion that the children of Grace were illegitimate. Heexpressed his view as follows:—“ These documents coupled with ihcevidence in the caso indicating that Diana Rosamund Grace left herhusband after six months of married life is convincing proof that Simon
IC. ». X3j-] SILVA, J.—1'onscLa v. rercra
309
the 3rd defendant, Unton Ids deceased brother and Bosamund Pearlare illegitimate children. ” lb was contended by Jlr. H. V Jayawardene,Q.C., who appeared for tho appellants that the learned District Judgewas wrong in admitting the evidence of Gregory in the divorce action.Mr. Weerasooria argued that his evidence is admissible under section32 (.5) of the Evidence Ordinance. Mr. Jayawardcne’s contention isl ight in my view. Sub section 5 of section 32 renders a statement of arelevant fact made by a deceased person itself a relevant fact—“ whenthe statement relates to the existence of any relationship by blood,marriage or adoption between persons as to whose relationship by blood,marriage or adopt ion the person making the statement had special meansof knowledge, and when the statement was made before the question indispute was raised. ” Under this sub-section it is necessary that thestatement sought to be proved must have been made before the contro-versy arose. The main reason for that requirement is that the personwho made the statement is dead and therefore there is no opportunityto test it by cross-examination. A statement made in the hope of se-curing some advantage to the person making it would be devoid of any’weight and woidd not be admissible under this provision. In otherwords the statement should have been made before the dispute arose.The evidence 1D21 given by Gregory Mould not answer to thatdescription. That evidence •was given by him in tho hope of obtaininga divorce from his -wife on the ground of adultery. If he was successfulin adducing evidence that his wife had begotten illegitimate childrenduring the relevant period it •would have been an easy matter for him toobtain the decree for divorce. Therefore his evidence 1D21 which is tothe effect' that his wife had separated herself from him soon after the.marriage and had lived with Goonetillcko in adultery and given birthto illegitimate children woidd not be admissible in this case. Onco thatevidence is taken aivay there is not much material available to rebut thepresumption of legitimacy. Of course there is the admission of Gracecontained in her petition dated January 22, 1919 (3D 3) filed in Entailcase Xo. C21 that she “ has been separated from her husband for nearly15 years now and she is now about 40 years old. ” It is extremely doubt-ful whether that evidence is legally admissible but even assuming that itis admissible it is significant that what she said there was that she hadbeen separated from her husband for “ nearly 15 years ”. Tho phrase" nearly 15 years ” may mean less than 15 years but not more. It isrelevant to note that her youngest child was born on 23—12—05. It maywell be that she cut herself completely away from her husband onlyafter that child was born. Mr. Jayawardcno submitted that the learnedDistrict Judge had wrongly taken into consideration certain entriesappearing in the birth certificates ID 23, 1D24 and "1D25. In Silva v./Silva 1 it "was held that a birth certificate is prima facie evidence only of(1) date of birth (2) jjlace of birth, and (3) the identity of the personregistering the birth. But it Mas also stated in the same case that state-ments made by a father for the purposes of a birth certificate have agenealogical value under section 32 (5) of the Evidence Ordinance. Asfar as 1D23 is concerned, however, I do not think that it is of evidentiary
1 {1012) 13 N. L. li. 572.
370
K. D. DE SILVA, J.—Fonscka v. Perera
value to prove any facts other than the date of birth, place of birth and theidentity of the person registering the birth. But different considerationsapply to 1D24 and 1D25. When the name of Patterson vas entered inthose two birth certificates as being that of the father that entry musthave been made on tho strength of an oral statement made by Pattersonto that effect. Such a statement would be admissible at least undersection 32 (3) as it would have exposed him to a suit for damages at theinstance of Gregory. The entries on 1D2-1 and 1D25 based on statementsmade by Patterson and Grace would also 1 think be admissible undersection 32 (5). The birth certificates ID24 and 1D25 show thatPatterson de Zoysa Goonetilleke regarded himself as the father of Lintonand Diana Rosamund Pearl and that he got their births registered. Theyalso prove that Grace acknowledged that Patterson was the father ofthose two children. But are those circumstances sufficient to establishthat during the adulterous association of Grace and Patterson the lawfulhusband Giegory had no access to his wife or was impotent ? The burdenof proving non-access or iinpotency is on tho 1st defendant. In the caseof Kanapathipillai v. Parpathy 1 t-heir Lordships of the Privy Councilwhile categorically stating that “ access ” did not mean the bare geo-graphical possibility of the parties reaching each other during the relevantperiod proceeded to observe “ Again, their Lordships are of the opinion,that ‘ no access ’ would be established in any case in which, on the evi-dence available, it was right to conclude that at no time during the periodhad there been c personal access ’ of husband and wife in the sense givento that phrase in the passage from Lord Eldon’s judgment which hasbeen quoted above. ” In my view no evidence is available in this caseon which it is possible to hold that Gregory had no “ personal access ”in the sense the phrase is used by Lord Eldon. The possibility that,during the period that Grace gave birth to her three children, her husbandGregoiy too was having sexual relations with her cannot be ruled out byany means. It may well be that with or without the knowledge of Patter-son, Gregory was visiting his wife. If both Pat terson and Gregory werehaving sexual relations with Grace during the relevant period Pattersonmight have mistakenly believed that ho was the father of these twochildren. Grace too might have made the same mistake or she might nothave told Patterson tho truth for fear of displeasing him. It is true thatGrace, Gregory, Patterson and Letitia are all dead and there is consider-able difficulty in adducing oral evidence to show that the father of thethree children in question was in fact Patterson. On the other hand,the appellants too are faced with the same difficulty. In the case ofColton v. Colton and another 2 it was held that where the legitimacy of achild born in lawful wedlock was in dispute, the husband alleging thatho had no intercourse with the wife at the material time, the ovidenceto that effect must bo such as to exclude any reasonable doubt. TheCommissioner who tried that case stated “ I am more than suspiciousthat this child is tho child of the co-respondent. I think it probablyis. But that does not seem to carry the matter far enough. Thehusband has to prove the matter beyond any reasonable doubt. ” He
1 (19SC) 57 N. £>. JR. 553…;i J9-5-J, 2. A. E. It. 10j.
K. D. X)E SILVA, J.—Fonseka v. Perera
371
dismissed tlio plaintiff’s action and his order was upheld in appealalthough the Judges agreed with the observations of the Commissioner.
I have also noted that the 3rd defendant and his sister had adoptedthe surname of Patterson. Although that is a point which supports toa little extent the contention that Patterson is their father X am notprepared to attach much weight to it. The learned District Judgewhen holding that the children of Grace were illegitimate lias failed toconsider the significance of the presumption of legitimacy which arisesfrom section 112. If ho did so he might probably have arrived at adifferent finding. It is also very significant that tlie 7th defendant her-self had earlier recognised that the rights of Grace in this land had devol-ved on her children. It is on that basis that 6ho joined with the 3rddefendant and his sister in dealing with this land on deeds I DI2 and 1D13.On the saino basis they instituted the action reported in 32 N. L. Tt. 28.For the reasons given above I.hold that the 3rd defendant and his sisterDiana Rosamund Pearl are tho legitimate children of Grace and herhusband Gregory and that the half share of this land which belonged toGrace devolved on those two children subject to the fidei commissumcontained in 1D1.'
The learned District Judge rightly said that he was bound by the judg-ment of Koch J. in Siri Kantha v. Thictgarajah 1 in regard to the methodof counting the four generations on whom the fidei commissum is binding.In that case, Koch J. took the view that the fetter of fidei commissumbinds the devisees or the donees and the tlireo generations following.
On the other hand, Professor Kadaraja (at page 133) of his treatise onFideicommissa, quoting Yoet (36-1—33), states :—“ As to the methodof counting the generations, in Holland and Friesland the general opinionof the Commentators has been accepted …. that it is not thofirst instituted or fiduciary heir who constitutes tho first degree, andconsequently only the fifth fideicommissary heir is able to exercise hisfree discretion in regard to tho fideicommissary property ”. The samemethod of counting the generations is indicated in Mr. Raj Chandra’swork on Fidei Comuiissum and in Professor Dee’s Intxoduction to RomanDutch Law (5th edition, page 3S5). This same method is followed inSouth Africa. In JRyklief’s heirs v. Byklief’s executors 2 De Vitliers C.J.stated “It is a well established rule of construction that a fidei com-missum should bo confined to four generations, counting from the firstfidei commissary heir to legatee, unless the testator had expressed amanifest intention to tho contrary in tlio will. No authority is citedby Koch J. in support of the view expressed by him, and Mr. Wcerasooriainformed us that he was himself unablo to refer us to any other decisionor authority wherein a similar view as to the method of counting the fourgenerations has been taken. With respect, I am unable to agree with theview taken by Koch J. in tho case referred to above. In my opinionthe correct method of counting the four generations has been set out byVoct in the passage quoted above. Therefore in tho instant case thefirst generation is represented by Johana Amelia and Josepliina and the
(1936) 37 X. L. R. 270.
1S9G Supreme Court Reporta 64.
.372
Paramenia than v. Oooneicardene
3rd generation by the 7th defendant, 3rd defendant and Diana RosamundPearl. The children of the 7th and 3rd defendants and Diana RosamundPearl would constitute the 4th generation and their children would takethe property .unfettered and absolutely.
I hold that the parties are entitled to the land in the following sharessubject to the fidei commissum contained in 1D1 :—
2nd Defendant 1/163rd Defendant 1/44th Defendant 1/165th Defendant 1/166th Defendant 1/16
:7 th Defendant 1/2•
I direct that the compensation payable for the acquisition of this landbo deposited in the District Court, Ncgombo. That money would besubject to the fidei commissum created b}r the deed 1D1. The 1st de-fendant would bo entitled to draw the interest of the shares of the moneydue to the 3rd defendant and the 7th defendant during their lifetime.On the death of the 7th defendant the 1st defendant would also be en-titled to the interest on the share of the money due to Lid win and Newtonduring their lifetime. The 1st defendant will pay the costs of reference.
Let decree be entered in terms of this judgment. Appeal is allowedwith costs m both Courts.
T. S. Fernando, J.— I agree.
Appeal alloiccd.