DAYANGANIE and another, Appellants, and SOMAWATHIE and another, Respondents

080-NLR-NLR-V-58-DAYANGANIE-and-another-Appellants-and-SOMAWATHIE-and-another-Respondents.pdf

i960Present: Basnayake, C.J., and Pulle, J.DAYAXGANTE and another, Appellants, and SO-1* LA WAT HIE'and another, Respondents
S.C. 203—D.G. (Inti/.) Avissaicelln LA/279
Kandyan Lain—Adoption—Inference from fads and circumstances—Oral publicdeclaration not essential—Kandyan Law Declaration and Amendment Ordinance,Xo. SO of 193S, s. 7. ■•
Kvuleneo of a public declnration by the adoptive parent on n formal occasionthat a particular child was adopted for the purpose of inheriting his estate isnot necessary in order to prove tho fact of adoption of an heir under tlio KandyanJjfiw {prior to the commencement of tho Kandyan haw Declaration and Amend-ment Ordinance). All that is needed is rolinble, clear and unmistakableevidence in whatever form of tho ndoptivo parent’s intention to make thefoster child his heir.
Ttk iri Banda v. Lo/. u Banda {1905) 2 Ilnl. It. 144 and '1'ikiri Kumarihamy r.Punchi Banda (1001) 2 Browne 209, not followed.
/V.PPEAR from an order of tho District Court, Avissawella.
Cyril E. S. Perera, Q.C., with II. TK. Jayewardene, Q.C., T. B. Dissa-nnyake. and P. Ranashujhe, for 2nd and old Defendant-Appellants.
II. V. Perera, Q.G., with N. E. Weerasooria, Q.G., Waller Jayaioardenaand A. S. Vtntigasooriyar. for 1st and 4th Defendant-Respondents.
Our. ado. ■cult.
December 20, 19;">f>. Basnayake, C.«T.—
The 1st defendant is the widow of one Petor Appuliamy (hereinafterreferred to as the deceased), a rich land-owner who died in 1947 intestateand issneless. The 2nd defendant is the deceased’s nicco, the 3rd defen-dant his brother’s widow, and the 4th defendant his adopted daughter.
The only question for decision in this appeal is whether the 4thdefendant was adopted by the deceased in order that she may bo hisheir and inherit his property. It arises in a reference made to t he DistrictCourt under section 11 of the Rand Acquisition Ordinance for a decisionas to the respective rights of the defendants who arc claimants to a landacquired under the Ordinance.
It is not disputed that tho parties arc governed by -Kandyan law, andit is agreed that section 7 of the Kandyan Raw Declaration and Amend-ment Ordinance, Xo. 39 of 193S, has no application to this case as theadoption in question was effected before the commencement of thatOrdinance.
The 4th defendant claims that she was adopted by the deceased as hisdaughter in order that sho may Inherit his property and that accordingto Kandyan law she is entitled to succeed to the deceased's estate.
15hVJI
2—3. K. B 65002—1,593 (4/57)
While admitting that the 4lh defendant was brought up by the deceased,the 2nd and 3rd defendants dispute her right to succeed to the deceased’sestate on the ground that iter adopt ion lacks one of the essential feat ures ofa Kandyan adoption, namely, a public declaration on a formal occasionof an intention to make her tho deceased’s heir. It is convenient at thispoint to sot out the evidence. Briefly it. is as follows :—
According to the 1st'defendant, the deceased adopted the -1 th defen-dant. whon she was hardly a month old, as they were childless. Thechild at all times looked upon the deceased as her father and lie regardedlicr at all times as his daughter. He gave her his “ Go ” name andeducated her at Musacns College for about ten years. After she leftschool he took stops to arrange a suitable marriage for her and eventuallyshe married one Reggie Porera, a person of equal social status with t hedeceased and a person who had been at one time a Member of Parliament.Ho gifted certain lands valuod at Its. 30,000 to her and in t he deed of gift,referred to her as his daughter. These arc the very words of . theinstrument :—
“ Know all men by these Presents that Kuruwifa Aratchillagc PeterAppuhamy …. for and in consideration of the natural lovo andaffection ho has and bear unto his daughter Kuruwita Aratchillagc?.Ii)lie YasomaKona Mahatmaya of Imbulana aforesaid, and for diversother good causes and considerations hereunto moving, and in consider-ation of her future welfare, has hereby donated …. tho propertiesand premises move fully described in the schedule .”
In the invitations which, were issued by the deceased and the 1stdefendant;, for the wedding of the 4th defendant, she was referred to ast he daughter of Mr. & Mrs. Iv. A. Peter Appuhamy, and the deceased’sresidence was referred to as '’ the Bride’s residcnco”. After her marriageshe continued to reside at her adoptive parent’s house. In order toeffect the change of “ Ge ” name tho deceased gave evidence at an inquiryheld by the Assistant Provincial Registrar appointed under the Birthsand Heaths Registration Ordinance and stated that ho was adopting f He[tii defendant and that- lie wished to give her his “ Ge ” name.
The oilier witnesses who give material evidence are an ex-Korale,aged 04, a man of standing who had held the office of Inquirer into SuddenDeaths and had also acted as Rate Mahatmaya and as President of RuralCourts—a friend of the deceased wliom ho had known for about 50 years ;
Jj. B. Goonefilleke, an Assistant Superintendent of Police, and a friendof t he family; and Allan Senanayake, a Proctor of the Supreme Court,a Justice of the Peace, and an Unofficial Magistrate. Tho last named isan uncle of t he -ith defendant's husband.
According to the ex-Kcrale, it was a well-known fact that the deceasedadopted the 4th defendant as his daughter su that-she may inherit hisproperty. Ho states—
She was adopted by Peter Appuhamy as a daughter as he had nochildren. According to Kandyan custom she was adopted so thatshe may inherit any properties which Peter Appuhamy had. I also
knew and generally all knew that she was adopted as a child tp inheritpeter Appuhamy’s properties. That was a wpll-knowh fact V . . V“ Generally people in the village knew that Peter Appuhamy hadmtonfed this eirl as a danchtcr. ”
Roth Goonotillckc and Scnanayako state that it was well known thatthe deceased had adopted tho 4th defendant in order that she mayinherit his jn-oporty. The former had at the instance of the deceasedtried to arrange a marriage between ono Bonnet .fayawardena-, whosefamily also he well knew, and tho 4th defendant. When entrusting thematter to him the deceased said that at the time of the marriage he wouldgive substantial dowry and that after his death his daughter wouldinherit all lie had. The latter testified that lie knew that the 4th defend-ant was tho deceased’s adopted daughter and that it was well knownthat she was adopted as his Iiolr, that Reggie Porera who married the4th defendant was his sister’s son, and that ho had occasion to discussthe matter of the 4th defendant’s dowry with the deceased at Ids sister’sinstance.
On the day on which the notice of the 4th defendant’s' marriage wasgiven the deceased announced to the assembled relations and friendsthat he was giving Ks. 10,000 in cash and 50 acres of rubber asdowry and that the 4th defendant would inherit the remainder of hisproperty.
The evidence of the witnesses I have referred to lias been acceptedby the learned trial Judge.
Whether or not the deceased intended to adopt the 4th defendant ashis heir is a question of fact and the learned District Judge has resolvedthat question in her favour. Learned counsel has challenged thatfinding and has invited us to reject the evidence of the witnesses called,on her behalf.
The learned District Judge has had the advantage of seeing and,hearing the witnesses in tho witness box and watching their demeanour.Learned counsel has not satisfied us that tho trial Judge has failed tomake proper use of that advantage, nor has lie convinced us that, thetrial Judge is wrong. Sitting in appeal without that advantage wo are.not prepared to disturb the judgment of the trial Judge.
The principles that should guide an appellate Court in tho exerciseof its functions have been stated over and over again by this Court and;by the Courts in Rngland and elsewhere. It will be sufficient for thepurpose of this appeal if I were to quote the worths of Lord Shaw, in tho;case of Clerke v. Edinburgh and District Tramicays 1—
When a Judge hears and sees witnesses and makes a conclusion!or inference with regard to what is the weight on balance of theirevidence, that- Judgment is'cntitlcd to' great'respect, mid. that quite
1 (1010 S. C. (H. LA 35 at 35 and'37.
irrespective of whether the Judge makes any observation with regardto credibility or not. I can of course "quite understand a Court'of- Appeal that says that it will not interfere in a ease in which the Judgohas announced as part of his judgment that he believes one set ofwitnesses, having seen them and heard them, and docs not believeanother. But, that is not the ordinary case of a cause in a Court ofJustice. In Courts of Justice in the ordinary cases tilings are muchmore evenly divided, witnesses without any conscious bias towards aconclusion may have in their demeanour, in their manner, in theirhesitation, in the nuance of their expressions, in even the turns of theeyelid, left ail impression upon the man who saw and heard them whichcan never bo reproduced in the printed page. What in such circum-stances, thus psychologically put, is the duty of the appellate Court ?In my opinion, the duly of an appellate Court in those circumstancesis for each Judge of it to put to himself, as I now do in this case, thequestion :Am I who sit here without those advantages, sometimes
broad ancl sometimes subtle, which are the privilege of the Judgewho heard and tried the case—in a position, not having those privileges,to come to a clear conclusion that the Judge who had them was plainlywrong ? If I cannot be satisfied in my own mind that the Judgewith those privileges was plainly wrong, then it appears to me to bemy duty to defer to his judgment.”
Counsel also submitted that the evidence which the learned Judgehas accepted docs not establish all the ingredients necessary l'or constitu-ting an adoption for the purpose of inheriting the estate of the adoptiveparent. He submitted that under Kandyan law an adopted child doesnot become entitled to succeed to the property of the adoptive parentunless there has been a public declaration by the adoptive parent on aformal occasion that the particular child was adopted for the purposeof inheriting his estate. I do nob agree that the Kandyan law of adoptionrequires such a declaration on a formal occasion. Though such adeclaration is not required by law, the learned trial Judge has found asa fact that such a declaration was made. We see no reason to disturbthat finding.
I think I have now dealt with the facts sufficiently for the purposes ofthis case. I shall therefore turn to the law. Wc have had the advantageof a fidl and able argument from both sides.
No legal treatises on Kandyan law written in the times of the Kandyankings arc extant and in order to ascertain the Kandyan law on anyparticular topic we have to turn to the compilations of Kandyan Lawmado immediately after the establishment of the British Governmentin the Kandyan Kingdom. They are Sawers’ Memoranda of the Lawsof Inheritance, later known as Sawers’ Digest, Armour’s Grammar ofKandyan Law, and the Nili Nighanduva.
The first named was prepared about the year 1S21. Sawers madohis collection as a member of the Board of Commissioners constitutedin 1816 to administer the affairs of the Kandyan Provinces at the request
of the British Government. The collection contains information gatheredfrom the Chiefs of the Kandyan Provinces and others who acted asAssessors to the Board in its judicial administration. It was firstpublished in 1839 and a second time in 1860 under the title of Sawers’Digest of the Kandyan Law..
The second named is a collection of Kandyan Law under the title ofGrammar of Kandyan Law by John Armour who, prior to his elevationto the offico of District Judge of Tangalle, later of Matara and finallyof the Seven ICorales, officiated as the Secretary of the District Courtof Kandy. Armour’s knowledge of Sinhalese gave -him an advantageover other compilers of Kandyan Law and it is regrettable that ho didnot write his Grammar of Kandyan Law in Sinhalese. TYe would thenhave had the law stated in the very language of those from whom heascertained it.
The third compilation known as the Niti Nighanduva was first writtenin Sinhalese and it was not translated till 1SS0. Both the Sinhalesetext and the English translations have been printed at the GovernmentPress under Government aegis. Both versions are now out of print.It is the only collection of Kandyan Law in tho Sinhalese language,and was compiled after the cession of the Kandyan Kingdom. Thecompiler introduce his book thus—
“In this Island of Lanka there are threo kinds of law. Of these,Royal law and Sacred law have been from ancient times set forthin books, but that kind of law which is called Traditional law has notas 3-et been committed to writing.
“ As the law therefore must have been doubtful and uncertain, inthe intei'csts of tho Sinhalese community, that tho dispensers ofjustice may learn what is, and avoid bias in their investigations, andthat Sinhalese law may be better known, I undertake this work.
“ It is called Niti-Nighanduva, and is compiled from tho archivesof tho Court of Kandy with the help of elders versed in the ancientlaw. ”
. I shall now set out the relevant text of each of these sources of KandyanLaw.
Sawers :
■ Laws which regulate the Adoption of Children
A regularly adopted child, if tho adopting parent had no issuoof his or her Own body, inherits the whole estate of tho parent adoptinghim or her ; but should the adopting parent have issuo, malo or female,of his or lxer own body, in that case, the adopted child will have butan inferior portion of tho estate with the issue of the parent.
N.B. The Chiefs are not prepared to say what proportion sufthshare should bear to the' sliare of one of tho issue, but theythink it should bo a fourth of the share, which falls to suchissue.
A regular adoption must bo publicly declared and acknowledged,and it must have been declared and generally understood that suchchild was to be an heir of the adopting parent’s estate.
Tho adopted child must be of tho same caste as tho adoptingparent, otherwise tho adopted child cannot inherit the hereditaryproperty of tho parent.
. 4. A child being reared in a family, oven if a near relative, is notto bo construed into a regular adoption, without its having been openlyavowed and eloarly understood that tho child was adopted on purposeto inherit the property.
Armour :
Chapter III—Parents and CjuldrenSection 10—What Constitutes Adoption :
There are no prescribed forms and ceremonies of affiliation andtherefore it is not practicable to ascertain in every instance whetheran orphan child, or a child who was removed from the parent’s carein its infancy and who was educated by another person, was merely afoster child and protege of that person, or whether the said child wasadopted and affiliated by that person.
However, this much is certain, that unless the child, and the personwho had brought up and educated that child, were of tho same caste,and unless that person had publicly declared that he or she adoptedthat child and resolved that the said child should be an heir to his oi-lier estate, that child will not be recognised as adojhed and affiliated,and will not therefore bo admitted as an heir to the estate of the patronor foster-parent, on the ground of adoption.
Section 11. What is not sufficient to constitute a regular Adoption :
If the patron or foster-father permitted the protege to remain in hishouse after having attained tho years of discretion, and even to contracta marriage and to continue to dwell, with his wife, in tho house of thepatron ; if the protege was also employed by the patron to managethe cultivation of his lands and to perform the Bajakaria services onaccount thereof; yet after all, if tho patron did not publicly declarethat he had adopted the said protege as a child, to bo an heir to hisestate, ho the said protege will have no right to any portion of thatestate, on tho ground of adoption.
If a daughter who was married and set tled in Beena in her father’shouse, died before her father, leaving issue, a daughter for instance,if tho father then permitted the son-in-law to remain in his house, and
• thero to contract a second marriage ; if tlio son-in-law with his secondfamily continued to dwell in that house until tho death of the fathor-in-law : yet for all that, tho said son-in-law and the issue of his secondmarriage will not bo recognised as hoirs by adoption to any portion ofthe deceased’s estate, which will devolve entirely to the aforesaidgrandchild.
If the son died beforo his mothor, leaving a widow and children lif tho son’s widow continued to dwell in her mother-in-law’s houseand was even allowed to contract a second marriage and to leavo(sic) with her second husband in that house ; for all that, the saidson’s widow will not be recognised as an adopted heiress of her inotlier-in-Iaw, and she will thereforo have no right to a share of the mother-in-law’s estate ; tho whole estate will devolvo to the son’s children to theexclusion of their mother and their mothor’s other children, born to thesecond husband.
Section 12. What may in some itistances be deemed Adoption :
If a son, who had a wife in Deega in his father’s house, died beforohis father, without issue : if tho father then detained his son’s widowand had her married again and settled in his own house, and if thodaughter-in-law continued to dwell thero and rendered assistance toher father-in-law until his demise, these facts will warrant tho con-clusion that the deceased had decidedly adopted his daughter-in-lawand she will therefore be entitled to inherit her father-in-law’s estatesif ho died intestate and loft no issue.
But if the father-in-law did leave legitimate issue, a son or a grand-son, in that case the daughter-in-law will bo entitled only to thatportion of tho estate which her father-in-law may have speciallyallotted or bequeathed to her. ”
Niti Nighanduva. As tho original of this compilation is in SinhaleseI shall quote the relevant text in that language first and then set out itstranslation below.
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(Translation)
“ Uoto adopted children inherit Lands
In some instances tho paternal and maternal right of inheritance■will devolve on porsons who have not been begotten by the proprietoror born of tho proprietress.
If any person takes charge of and adopts a child of equal caste, and inorder that the child may at his death inherit his name and lands, makesknown to tho world that the child is his, his heir, and that ho hasadopted him, that child will inherit the property of his adopting parentsat their death. But, unless tho fact of such adoption is made knownto the world, oven though a child has boen taken charge of by anyperson and a marriage has been contracted for it when of age by thatperson; even though issue has been born on tho permiscs of theguardian ; the child will not, like an adopted child, bo entitled to thepaternal inheritance of the abovementioned guardian. ”
. I shall now proceed to examine the statements of each of the writersI have quoted above in order to ascertain what are the essentials of aKandyan adoption as heir. Sawers states that a “ regularly adoptedchild ” is entitled to inherit the estate of the parent adopting him. Hethen goes on to state the requirements of a regular adoption. The childmust be of tho same caste. Tho fact that tho child is being adoptedin order to succeed to the property of the adoptive'parent must —
be publicly declared and acknowledged, and
have been declared and generally understood, and
have been openly avowed and clearly understood.
The statements do not indicate what is required with clarity andexactness. The import of the expression “ publicly declared andacknowledged ” is not the same as “declared and generally understood ”nor is it tho same as “ openly avowed and clearly understood”. A factcan be declared and generally understood without a public declaration.Again “generally understood” and “c-learly understood” are not thesame. A clear understanding of a fact can exist among a few while afact cannot be said to be “ generally understood ” unless a relativelylarge number understand tho fact. Besides what is generally under-stood need not necessarily be clear^ understood. The requirement ofa public declaration and a public acknowledgment without an indicationof tho forum before which the declaration and acknowledgment are tobo made renders the requirement unworkable and of little practicalvalue.
These words are responsible for the course some of the judgments ofthis Court on tho subject of adoption have taken. I think that whenSawers’ entire statement is read, with emphasis on tho spirit and noton the mere words, it reduces itself to this—that tho fact that a childIras been adopted in order that ho may inherit the property of his adoptiveparent should bo known and the adoptivo parent should have indicated
his intention clearly. It is not necessary that the adoptive parentshould go before any public authority and make a solemn declarationor acknowledgment nor is it necessary that ho should make a formal,oral or written declaration. It is sufficient if his intention has beenmado known, whether it be in the course of conversation or otherwise.
This view of the matter finds support in Armour’s statement whichI ghall now consider. Ho states : “There are no prescribed forms andceremonies of affiliation.” For that reason, he says, it is not practi-cable to ascertain in every instance whether a child who was brought upand educated by a person other than one of its parents was merely afoster child and protege of that person or whether the child was adoptedby that person. He goes on to state that a child who was so broughtup will not bo recognized as adopted “unless that person had publicly•declared that ho or she adopted that child and resolved that the saidchild should bo an heir to his or her estate. ”
Even this statement is not free from ambiguity. Undoubted^, tobegin with, thero should be in existence a child that is being brought upby a person other than its parent. Next there must be an intention tomako that child his heir and a public declaration that the person hadadopted the child and resolved that the child should be his heir. Therobeing no prescribed forms and ceremonies, beforo whom is the publicdeclaration to be made 1 No functionary is prescribed and there willalways be a dispute as to whether a particular statement is a declarationand whether it is public. Is a statement made in' the course of conver-sation a declaration ? What is the amount of publicity that a statementshould receive ? As no forms and ceremonies aro required there isalways a difficulty in ascertaining from any 0110 singlo act of his theintention of the adoptive parent. A person who has brought up afoster child and at one moment intended that the child should bo hisheir is not tied down to that intention. He is free to change has mind.Ho can say : “I once meant to make this foster child my heir, but I donot now propose to do so. I have changed my mind.” It would appeartherefore that a statement however formal and public that the adoptiveparent meant to ddopb the foster child as heir is not by itself sufficient-,because its maker can change his mind, and, if he docs so, not all thepublic statements will have any effect. We must therefore read Sau ers’statement as conveying no other idea than that conveyed by Armour.The public declaration Sawcrs refers to is not a formal statement on apublic occasion, bub an unqualified disclosure of the parent’s intentionto adopt the foster child as his heir. The disclosure must be evidentto thoso who matter in his circle. The disclosure might he bjr word orovert act and the intention must bo one that persists from the date ofadoption throughout the life of tho adoptive parent, especially at thetime of his death. The question of succession is one that arises afterthe death of the adoptive parent, and as ho is not alive his mind hasto be ascertained from his words, written or oral, and overt acts. Tholaw requires that he should have, made known his intention inumnistaka’ble terms to those whose evidence as to his intention can herelied on and acted upon.
I now come to tho last named of the compilations I liavo cited above-.As I said before wo have tho advantage of having in the Niti Nighanduvathe law stated in the very language of those who were custodians of it.In this work tho Sinhalese for what Sawers and Armour translate as“publicly declared ” is “ ©eoOO qzsfOs The literal rendering of thesewords in English is “ made known to tho world ” or “ made known to all ”or “indicated to the public” or “lotting others know”. The law asstated in this work does not bring in the idea of a “public declaration “and in my opinion rightly. All that is needed in a Kandyan adoptionis that the adoptive parent should manifest his intention to make thofoster child his heir. This manifestation can be done in a variety ofways and whether he has so manifested his intention is a question offact which has to bo ascertained by examining all the circumstancesrelating to tho adoption. What the adoptive parent said in regard tohis foster child and his attitude and conduct towards him would havean important bearing on the question at issue, namely, whether heintended to make him his heir.
In my opinion the law as stated in the Sinhalese version of the NitiNighanduva is a correct statement of the law and tho statements of Sawersand Armour (which are not expressed in the very language in which thochiefs and others versed in Kandyan customary law conveyed it to them)that tho adoption must be pubicly declared and acknowledged must beunderstood in the sense of “ ©<33OO”. As tho work was not
translated till 1SS0 the earlier judgments of this Court make no referenceto it. It is a matter for regret that this only legal publication in Sinhaleseis and has been out of print for quite a long time.
Learned counsel submitted that tho Niti Nighanduva should not beregarded as authoritative and he called in aid the following observationsof Burnside C.J. in Siriya v. Kalita1
“ I cannot regard the dicta in Marshall and Armour, and even theNiti Nighanduva, whatever may be its pretensions as a legal authority,as sufficient to disturb a solemn decision of the Court. ”
These observations cannot be regarded as a pronouncement that thocustomary law of the Kandyans on the question of adoption is not correctlyrecorded in tho Niti Nighanduva. Burnside C.J. has dealt with Marshalland Armour in tho same breath. It lias never been suggested thatthis observation has affected the value of Amour’s Kandyan Law.
Tho view I have expressed above finds support in Chapter III, section12, of Armour. Thero he gives the case of a deega married woman livingin her husband’s father’s house who, after her husband’s death, is detainedin his house by her fatlier-in-law, who arranges a- second marriage forher .and allows her to remain in his house and render assistance to himtill his death. Armour states : “ These facts will warrant the conclusionthat the deceased has decidedly adopted his daughter-in-law, and shewill therefore be entitled to inherit her father-in-law’s estato if he died
intestate and Joffc no issue. ” This statement shows that an oral publicdeclaration is not essential to a Kandjran adoption, and that an adoptiona3 heir may be inferred from circumstances.•
I shall now proceed to consider tho previous decisions of this Court ontho subject of adoption as licir in Kandyan law. They are conflictingand do not indicate that there has been a consistent attiludo towardstho essentials of the adoption of an heir under Kandyan law. Some oftho earlier cases take what I hold to be the true view, while others haretaken too literal a -view of the statements in Sawers, Armour orSolomons K'-
In one of the earliest reported decisions® the declaration of adoptionin a deed was accepted as sufficient proof of adoption as heir. Thisview that an oral public declaration was not essential was maintainedin tho case reported in Grenier's Reports (1873), Part HI, pages 117-119,wherein this Court approved tho judgment of Cajdey (afterwards SirRichard Cayley), District Judge of Kandy, who later became a Judgeof this Court, in which ho stated as follows :—
“ There being no special formalities to constitute a valid adoptionprescribed by tho law, some kind of public declaration only beingrequired, and as it appears that the Basnaike Nillemcy himself alwaysconsidered the 1st defendant to have been adopted by him, and statedsuch to be the case at an important family discussion, and that therelatives alwaj's recognised the 1st defendant as his adopted daughter :I think that it may bo presumed that the adoption was sufficientlydeclared and made public to satisfy the requirements of the KandyanDaw, with which these people must be supposed to have beenacquainted. ”-
It would appear from District Judge Cayley’s judgment that adeclaration may bo presumed from facts and circumstances.
In a later case reported in Ramanathan's Reports (1877) pages 251-255,Lavrio (afterwards Sir Archibald Laurie) who at tho time was DistrictJudge of Kandy and later became a Judge of this Court, took the sameview as Cayley, viz., that adoption may bo inferred from facts andcircumstances. In his judgment he stated :
“ Then as to publicity of the declaration, can it bo maintained thata public declaration is necessary, after tho decision of the SupremoCourt in the cases 53309 and 5577S. In the ono case tho declaration.was only a conversation between the adopter and another Chief whohad come to solicit the child, as wifo for his son. In the other case,the declaration was made when giving instructions to draw up a deedof gift. I think these eases warrant tho conclusion that a public de-claration is not necessary. But is it tho Kandyan Law that tlicro■must bo even a private declaration by the adopter ? I shall assume1 Manual of Kandyan Law.* Keren and Sicbel’s Reports 61 (1SC0).
' for a moment that it is, and I find in this case tlio uncontradicted. evidence of the second plaintiff, that the deceased called him son andthat ho told him to take care of the lands, and that there is no oneelse who will got thorn. I am entitled to hold it proved, because, as I' said, there is no contradiction of this, that the conduct of the deceased■ to the plaintiffs was a continual declaration by acts, though not bywords, that they were his adopted sons and heirs. It is consistentwith Kandyan Law to infer adoption from facts and circumstances,apart from declarations by the adopter. Tho authority for that istho 12th section of Armour (Porera’s Jidn., p. 39) where it is said thatcertain given facts will warrant a conclusion that the deceased haddecidedly adopted his daughter-in-law. ”
Tho view that adoption as heir may bo presumed or inferred fromfacts and circumstances seemed established till 1SS3 when it was dis-turbed by the case of Karunaratne v. Andr&weice 1. In that case, Clarence
J.stated that unless a statement of the fact of adoption as heir was madein public or on a notable occasion the requirement of the law was notsatisfied. He refused to regard a statement made by the deceased to afriend of his, a mohandiram, as sufficient in law. It is difficult to reconciletho observations of Dias J., the other Judgo who heard the appeal, withtho decision in tho case. He said :
“ According to Kandyan Law, as I understand it, the intention toadopt must bo clearly evidenced by declarations or other overt actsmade in as public a manner as possible. Henry Mcirlyn seems to have' been a man of intelligence, above the average Kandyan, and if horeally intended to follow tho old fashioned law of adoption lie wouldhave done it by some writing about which there could be no dispute.”
The above observations indicate that oral public declarations of thofact of adoption are not essential and that overt acts other than oraldeclarations or a writing declaring the fact of adoption will afford suffi-cient proof of adoption. The observations of Dias J. failed to influencethe decision of Tikiri Kumar ihamy v. Punchi Panda 3, where despiteclear and definite evidence of adoption of a cliild as heir the Court rejectedthe claim of adoption on the technical ground that the deceased had saidthat ho would “ give ” his property to the adopted child and that he didnot say that the child would “inherit” his property. The appellantwas the nephew of the deceased who was childless and who adopted himwhen'quite a boy. When the appellant had grown to manhood thedeceased negotiated a marriage for him, and, when discussing the marriageproposal with the bride’s parents, the deceased stated to them thatho had adopted the appellant as his son, and intended "giving ” him hisproperty. The widow of the adoptive parent did not at first contest thoappellant’s right to inherit; but subsequently she did so though sheadmitted that the deceased’s intention when he adopted the appellazrtwas that the appellant should “ inherit ” the property of the deceasedupon his death. Upon his death-bed the deceased sent for a notary and
1 (IS S3) Wendt's Ji^por/s 28-5.* {1901) 2 Browne 299.
instructed him to draw up a deed of gift in favour of the appellant ofall liia property. On these facts this Court held against the appellant.Bonser C-J- upheld the District Judge’s view that the conversationsbetween the deceased and the appellant’s bride’s parents were insufficientproof of adoption for the purpose of inheritance. Referring to theconversations the District Judge stated :
“ Botli the witnesses agree that the intestate did not say that theappellant was to inherit his property, but that- he would give him hisproperty, which is quite another matter ..». The witnesses
are supported in what they say by the appellant, who stated that theintestate sent for a notary a few daj-s before he died, and instructedhim to prepare a deed in the appellant’s favour, which would havebeen unnecessary if he had adopted him to inherit his property. ”
In this case both Bonser C.J. and Moncrieff J. quoted with approvalthe judgment of District Judge Cayley.' It is difficult to reconcile theiradherence to the principles enunciated by him with the decision in thiscase. Their observations are also inconsistent with the conclusion reachedby them. Moncrieff J. took the view that even accepting the evidence onbehalf of the appellant as true the adoption lacked “ the essential re-quisites of publicity and of clear expression of the fact that the adoptionwas made with a view to inheritance ”.
His observations which I quote below are somewhat puzzling and leaveme in doubt as to what his view' of the Kandyan Law of adoption was :—
“ I think that the dictum of Dias J., to the effect that the intestatehe spoke of, if he had meant to ado2)t, would have made his intentionclear bj' putting it in writing, was not so extravagant as is pretended.The intestate in tliis case was a man of position. He must have known• the absolute necessity of publicity, and publicity of the fact that theadoption was made with a view to inheritance. It is to ray mindcurious that during a period of forty years he should have abstainedfrom either putting his intention in writing, or expressing it on occasionswhich could be described as public. ”
. On account of its infirmities Tikiri Kumar thamy’s case has not beentreated as a decision that should be followed.
In the subsequent case of loku Banda- v. Dehigama Kumarihami1,Middleton J. departed from the highly technical view taken in the easesof Karunaratne (supra) and Tikiri Kumarihamy (supra), and revertedto what I shall call the true view that, what is important is not the formin which the intention of the deceased was conveyed, but a clear indicationof his intention to adopt as heir. In his judgment In Review he stated :—
“ In my opinion thero should be no doubt whatever as to thehappening of an event the consequence of which would be so importantto a family as adoption for inheritance. There should be clear and
– {1ST2) Z Clrenicr 117.
unmistakable evidence of a deceased’s intention to put a person inplace of an heir who -without such a nomination would have no right■whatever . in tlie properly of the deceased. ”
Tn tlie very next decision what I have herein termed Ulo tme viewsuffered a reverse. Wood Renton J. in Tikiri Banda v. Loku Banda reverted to tlie old technical view where he refused to recognise an adop-tion because the deceased had not used tlie word “ inherit Despitestrong and clear evidence of the adoptive parents’ intention to adopt thechild as heir the claim of the adopted cliild was rejected. It would behelpful if I were to state the facts. The widow of the deceased, McddumaBanda, whoso adojjted child the plaintiff claimed to be, stated in evidencethat as they had no children they wished to adopt a child who wouldlook after them in their illness and -who would inherit their property.They went to her elder sister, and asked her to let them adopt her child,the plaintiff, who was then about <t years of age. Mcdduma Banda toldhis sister and his brother-in-law :“ You must give us this son (meaning
the plaintiff) because we have no one to render us help during our illness,and no one to give our lands to ”. The plaintiff’s parents agreed, andthen Mcdduma Banda took the plaintiff to his house. When the plain-tiff grew up, Mcdduma Banda got him a wife. The plaintiff’s father-in-law (Boku Banda Basnayakc Nilamc) said that Mcdduma Bandaproposed that the plaintiff, his adopted son, should marry his (thcBasna-yake Nilame’s) daughter. He asked them: “ How did the adopted childbecome possessed of landed property ”, whereupon Mcdduma Bandareplied : ” We have adopted the child intending to give all our propertyto him ”. The Basnayakc Nilame then consented to the marriage.Some days afterwards he went to Mcdduma Banda’s house and spoketo him and liis wife and said : ‘‘I have come to see about the child’smatter. ” They both replied : “ We arc adopting the child to give allour property. Do not be afraid. ” On these facts tliis Court held thatthere was no proof of adoption. In his judgment Wood Benton J.stated :■—•
“ The intention to adopt him, as heir, if expressed, was not com-municated to anybody. The word ‘ inherit ’ was never used in thenegotiations with tlie bride’s parents. These negotiations merelyamounted to an assurance of the intention of the appellant’s adoptiveparents to provide for him. ”.
The statement that tlie intention to adopt as heir was not communicatedto any bod j’ cannot be reconciled with the evidence. It was communi-cated, as in tlie case of D. C. Kandy Case No. 53309 2 on the occasion ofa marriage proposal. The fact of adoption is not dependent so much onthe use of words as " inherit ”, “ tanagalla ”, “avilhiwcnde ” as on theclear manifestation of the intention of the adoptive parent to make theadopted child his heir.
Tn Ukku v. Sinna1 statements made to two Korales and a Vel Vidanewere accepted as sufficient proof of adoption as heir. It does not laydown any important rule of Jaw, but the following observations of Ennis J.seem to indicate that he had difficulty in accepting the decision in TikiriKumarihamy’s case {supra).
“ The previous decisions on this subject indicate that an adoptionfor the purpose of inheritance must be made publicly, formally andopenly. The exact scope of these terms is not so easy to understand.In one case (2 Browne 299) where the evidence consisted of conver-sations as in this case, the decision was based on the use of the word“ give ” instead of “ inherit ” used in conversation by the deceasedwhen speaking of the ultimate disposal of the property, rather than thepublicity, formality and openness of the conversations. ”
In the case of D. Davidu Series v. Benedict Fernando 3 Wood Renton
J- anti Re Sampayo J. righted the situation created by a rigid adherenceto technicalities in Tikiri Kumari7iamy’s case (supra) and Tikiri Banda’scase (sujtra). Wood Renton C.J. observed :—
“ It is not to be expected that witnesses of this class should describethe ceremony of adoption for purposes of inheritance with the detailor the accuracy that we should expect in a treatise on Kandyan Raw.But their evidence clearly establishes two vital points, viz., the factof adoption and the intention of the adopting parent that the adopted-child should be his heir.
De Sampayo J. said :—
“ It appears that at the same time he said that he had intended togive a deed to her but he had failed to do so, and this fact is stronglypressed as negativing the idea of an adoption according to KandyanRaw. Nothing is said as to the kind of deed which Punchirala had inhis mind. It may after all be one containing the very declaration hemade before the persons whom he called together for the purpose.But even if it was to be a deed of gift, I do not see that such a gift,would have detracted from the legal status of Bandi Etena ….an adopted child under the Kandj'an Raw would not be affected bythe fact of the adoptive parent having intended to gift to him whathe would otherwise have got as heir. ”
Wood Renton C.J. disposed of Tikiri Kumarihamy’s case (supra),which was cited in support of the argument that the deceased's intentionto execute a deed in favour of the adopted child negatived the theory ofadoption, .with the observation that it does not enunciate a generalprinciple, and that it was a mere ruling on the particular facts of that case.
De Sampayo J. also refused to follow' that case. He said that the fact ofadoption was always a matter of evidence, and that each case mustdepend on its own circumstances.
The view that an oral public declaration or a public statement on aformal occasion-was not an essential of a Kandyan adoption as heir wasgaining ground despite the setbacks it had in Tikiri Kumarihamy'sease (supra) and Tikiri Banda's ease (supra), and in the case of Dunvimlle■ v. Kumarihamy 1 this Court went to the extent of holding that a state-ment in a will that a legatee was the testator’s adopted son was sufficientproof of adoption. Emiis -J. expressed his hew thus :—
“ Tho 1st plaintiff, in giving evidence, said that the testator hadleft property to DullcweLoku Banda * as adopted heir ’ and this clearlyappears to have been the testator’s intention. The will is not capableof any other construction and the adoptive parent could hardly havetaken a more effective way of showing that he had adopted DulleweLoku Banda as his heir, than by executing a will describing him asan adopted son and leaving him all the residue of the estate. Whether' ox* not a person has been adopted as heir is a question of fact only. ”
He went on to say :—
“ A will, however, is a definite declaration of the intention of the' testator for the devolution of his property on his death and the appoint-ment of an adopted son as residuary legatee to the exclusion of allother heirs, shows, in my opinion, that the adopted son -was adoptedfor the purpose of inheriting the adoptive paient’s property. ”
A survey of the cases leaves one with the impression that Tikiri Bandav. Loku Banda (siipict) and Tikiri Kumarihamy v. Punhi Banda (supra)do not contain a true view of the law and have been regarded as decisionsthat should not be followed, and I think rightly. In Tikiri Kumarihamyv. Niyarapola et al- a Maartensz J. in pointing out that Tikiri Banda’scase (suptra) and Tikiri Kumarihamy’s case (supra) had adopted tootechnical a view of the law observed as follows :—
“ With all due deference, I think the learned Judges in the last twocases have attached too much importance to the actual words usedand not considered the circumstances in which they were used. Acliild may be brought up in a house as an act of charity or adopted forthe purpose of inheriting the property of the adoptive parent. If anadoptive parent on an occasion, as a proposal of marriage, says : ‘ Ihave adopted the child to give him my property ’, I cannot sec whatother inference there can be but that the adoption of the child was forthe purpose of the cliild inheriting the property of the adoptive parent.”
. i Y1917) 4 O. W. B. 99.
* (1937)'44 -Y. L. B. 470.
He held that the intestate’s statement to the schoolmaster that she wasbringing up the children and that she intended to give her property tothe children was a manifestation of his intention to adopt the childrenwith a view to making them her heirs. He also expressed tho view thatwhat S'awers meant when he stated that the adoption must be publicly
declared was that there must be evidence of persons to whom the fact ofadoption was expressed. I am in entire agreement with the opinionthat the Kandyan Law does not requiro that the fact of adoption shouldbe “ formally declared In his judgment in the same case Hearne J.rightly observed :
“ I am unable to find any authority for the view that declarationsmade in the course of conversation do not amount to such declarationsas a Court of Law would act upon. ”
He summed up his view of the various dicta in the cases referred to himthus :—
“ If no particular formalities are necessary the declaration neednot be according to a particular formula as long as it is clearly under-stood that the adoption was for purposes of inheritance ; if no cere-monies are prescribed the declaration need not be made on a“ ceremonious occasion It is agreed that the declaration need not bemade when members of the public are assembled together for the pur-pose of hearing the declaration or that the declaration need be made ina public place. ”
Although I agree with Hearne J. in the main, I find myself unable toagreo with Iris view that the fact of adoption must be communicatedby spoken words to members of the public as distinct from members ofthe adoptive parent’s household or relatives or even pei'sons interestedin the question of the adoption. I have already expressed my opinionin the earlier part of this judgment that all that is required is a clear andopen manifestation of the fact of adoption of a child as heir whether thefact is made to appear by cither word or conduct or both.•
The view taken by Maartensz and Hearne JJ. was approved by a Benchof three Judges in the case of Ukku Banda AmbaJiera et al. v. SomaicalhieKumariJiamy 1. The cases of Kobbekaduica v. Seneviratne 2 and Herat v.Amiinngama 3 to which counsel referred us proceeded on the assumptionthat the law was settled by the case of Ukku Banda Ambahera v. Soma-icatliie KumariJiamy and therefore need no discussion..
I have referred to all the reported cases that matter, on the subject ofadoption, and to my mind it is clear that the true view of the KandyanLaw of adoption is that set out in the Niti Nighanduva. Ko oral decla-ration whether public or not or on a formal occasion or otherwiseis necessary. All that is needed is reliable, clear and unmistakable evi-dence in whatever form of the deceased’s intention to adopt the adoptedchild as his heir.
For the above reasons the appeal is dismissed with costs.
Puixe, J.—I agree.
Appeal dismissed.
■ 1 (1913) 41 27. L. R. 457.* (1951) 53 27. L. R. 351
_ 1 (1955) 56 27. L. R. 529.‘