022-NLR-NLR-V-29-DINOHAMY-et-al.-v.-BALAHAMY-et-al.pdf
1927.
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lPrivy Council.]
Present: Viscount Haldane, Lord Shaw, and Lord Warrington
of C'lyffe.
DTN'OHAMY et at. v. BALAHAMY et ul.
Husband and wife—Presumption of marriage—Habit and repute—Agreement by widow relinquishing her rights—Validity.
I'niler the law of Ceylon where a man ami woman are provedto have lived together as husband and wife the law will presumeunless the contrary be clearly proved, that they were living togetherin consequence of a valid marriage, and not in a state of concubinage.Sastry Velaider Aronegary v. Sembeeutlii Vaigatie1 followed.
Where, on the death of a person, a child of the deceased by lh-first bed obtained a deed of agreement from the widow, whichaltered her status and extinguished her rights, and where it wa>not proved that she had fully uinlerMood the contents of thedeed.—
Held, that the deed of agreement was no bar to her and herchildren’s rights under the law of intestate succession.
A
PPEAL from a judgment of the Supreme Court, _ The facts arefully stated in the judgment of the Judicial Committee of the
Privy Council.
June 16, 1027. Delivered by Lord Shaw.—
This is an appeal raising the question of the validity of a Sinhalesemarriage. A petition was presented by the respondents in theDistrict Court of Tuugulla in Ceylon for letters of administrationof the estate of one, who for short may be called Don Andris de Silva.Don Andris died on September 1, 1921. The application was madeupon December 14 of that- year by Singlio Appu, the son-in-law ofthe deceased Don Andris. Don Andris died intestate.
The family history of Don Andris was that he had been regularlymarried in 1885, having as issue the daughter who, through herhusband Singho Appu. now claims his whole estate. This first wifedied in May, 1900.
Then in 1901. ;md for a course of twenty years until 1921, whenDon Andris died, the proved family history was as follows: —
He married one Balahamy, with the procession, the giving ofgifts, and other ceremonials familiar to the law of Ceylon. Therewas, however, one omission, namely, that the marriage was notregistered, and in that sense the marriage was irregular. Butregistration, however important, was not hy law essential. Don
1 6 A. C. SG4.
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Andris and she lived together as apparently man and wife for thosetwenty years. Dining that period she bore him nine children, ofwhom eight are still alive. The father and mother and childrenall .lived together as one family. At the time of his death she andthe eight surviving children were living in the family house.
By the law of intestate succession in Ceylon, the estate of thedeceased would have been divided, one-half to his widow and theother half equally among the nine childrent namely, her eight, andthe respondent, the child of the first marriage.
The respondents claim that* this law of succession operates.
The appellants, however—Singho Appu and his wife—deny tothe respondents any such right of succession. They maintainedthat Balahamy was not the wife of Don Andris, and that all herchildren were illegitimate. They accordingly claim that Dinohamysucceeded to the whole estate.
1927.
Deli vkhetvby LordShaw
Dinohamyv.
Balahamy
In the circumstances mentioned it is not to be wondered at that,when on December 14, 1921, letters of administration were grantedto the appellant, Singho Appu, as son-in-law of the deceased andhusband of Dinohamy the daughter by the first marriage, heconsidered it expedient to do something to fortify a claim to theestate. For the result of success in his application would be that theappellants would be able to disinherit and eject from the familyhome the first respondent and her eight children. A deed, purport-ing to be a deed of agreement, was accordingly prepared. It wasmade ready by December 18, namely, four days after letters ofadministration, and it was executed on December 23.
It is sufficient to say of that deed that the estate was declaredwholly to belong to the appellant Dinohamy, the daughter of thefirst marriage. A certain portion of the property, however—aboutone-half—was to be given by her as a donation to the eight children;and the deed entirely disinherits their mother, who, as the widow ofDon Andris, would have succeeded to the other half. It not only,however, does this, but it further states that Don Andris had ** livedwith the said … Balahamy as his mistress and not
having legally married her, eight children were bom to them/'She is accordingly, as stated, entirely disinherited by this allegedagreement.
There are only two real questions in the case—
First, was Balahamy married according to the law of Ceylonto Don Andris?
Secondly, are her or her children’s rights affected by the deed ofagreement.
The strength of the appellant’s case—there being a total conflictbetween the witnesses on the one side and those on the other—is that the District Judge believed the appellants’ witnesses. On
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1937. the other hand, the two Judges ol the Supreme Court of Ceylon, byX>eltvt.„ed their judgment dated December 18, 1925, reversed the District Court'sby Lord judgment, and on both the poiuts in issue differed from the learnedShaw Judge, disbelieved the witnesses of tbe appellants, and believed thoseiDinohamy of the respondents.
SBalahamy It is not disputed that according to the Roman-Dutch law there isa presumption in favour of marriage rather than of concubinage; thataccording- to the law of Ceylon, where a man and woman are provedto have lived together as man and wife, the law will presume,,unless the contrary be clearly proved, that they were living together!in consequence of a valid marriage, and not in a state of concubinage.
A judgment substantially in these words (ft us try Velaider Aronn-(jiry v. Sembecutty Vaigalie {supra)) was pronounced by thisBoard through Sir Barnes Peacock. Sir Barnes discusses the lawwith some fullness, quoting among other cases the opinion of LordtCairns in De Thoren v. Attorney-General,1 and making reference tothe Scotch leading case, the Breadalbane Case.2
Since the Breadalbane Case has been mentioned it may he expedient.to note these sentences from the judgment of Lord Cranworth1 therein: —
■" Marriage can only exist as the result of mutual agree-ment. The conduct of the parties, and of their friends andneighbours, in other words, habite and repute, may affordstrong, and, in Scotland, attending to the laws of marriagethere existing, unanswerable evidence, that at someunascertained time a mutual agreement to marry wasentered into by the parties passing as man and wife. I•cannot, however, think it correct to say that habite andrepute in any case make the marriage. Repute canobviously have no such effect. It is, perhaps, less inaccu-rate to speak of habite creating marriage if by the word‘ habite ' we are to understand the daily acts of personsliving together, which imply that they consider each otheras husband and wife, and it may be taken as implying anagreement to be what they represent themselves as being.It seems to me, however, even here to be an improper use.of the word to say that it makes marriage. The distinctionis, perhaps one rather of words than of substance; but Iprefer to say that habite and repute afford by the law: c-fScotland, as. indeed, of all countries, evidence of marriage,always strong, and in Scotland, unless met by counterevidence, generally conclusive.”
Whether this distinction be merely one c:E words rather than oyeof substance does not, in the present ease, really arise; because in1 A. C. 6S6.* L. R. 2 H. L. Sc. 269.
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their Lordships' opinion, the evidence in this case comes up to the-full measure of what would be demanded either in England or inScotland or Ceylon, namely, it is unanswerable and conclusiveevidence.
The parties lived together for twenty years in the same house,and eight children were born to them. The husband during his liferecognized, by affectionate provisions, his wife and children. Theevidence of the registrar of the district shows that for a long courseof years the parties were recognized as married citizens, and eventhe family functions and ceremonies, such as, in particular, thereception of the relations and other guests in the family house byDon Andris and Balahamy as host and hostess—all such functionswere conducted on the footing alone that they were man and wife.No evidence whatsoever is afforded of repudiation of this relationby husband or wife or anybody.
The learned Judges of the Supreme Court have discussed the evi-dence carefully, and have come to these conclusions. The Boardthinks they are right. v
1937.
Delivbbbdby LordShaw
Dinohamy
v.
Balahamy
The second point has reference to the alleged deed of agreement-.It has already been noted as remarkable that Singho Appu thoughtit right within a few days of letters of administration being grantedto him to fortify his and his wife’s position by getting an agreementof the kind. The facts.with regard to it are that the widow gave noinstructions for its preparation; that she was not consulted as toits provisions; that she obeyed a message to go to Singho Appu'shouse, and that she there, at his request, signed the deed. She hadno legal adviser. The deed was in English, but she could not- readEnglish. She says that she understood she was required to put hername to it because it concerned her half of the estate, but fhatshe did not know anything else. It is almost beyond reason to ex-pect that she would have knowingly signed a deed declaring thatshe herself had lived with Don Andris for twenty years as hismistress, and that all her children were illegitimate children.
The most careful examination of the conduct of the notary in sucha Case must be made. Its outstanding feature is that beinginstructed by one party to a transaction involving not only theextinction and alteration of patrimonial rights, but also a degradingalteration of the status and moral life of others who were to be madeparties to the deed, he never seems to have suggested that , itwas a case for another notary being employed to protect the wifeand children's interests. The transaction and the evidence by whichit was supported are alike discreditable. It would require the verystrongest evidence in such circumstances to preveiit the respondentsfrom being protected against such a transaction by a Court of law.Their Lordships agree with the Supreme Court that- it is not proved
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18.27, that the wife understood, or had sufficiently explained to lieu-, this
Delivered deed written in d foreign tongue, and think it is no bar to her and
her children’s rights under the Ceylon law of intestate succession.
Their Lordships do not enter further into the facts of the case as,for instance, the entries upon the register and other topics—upon allof which topics the Board agrees with the Supreme Court.
Their Lordships will humbly advise His Majesty that the appealshould be disallowed with costs.
,*y Lord
Shaw
jpinohamy
v.
Eqlahamy
Appeal dismissed.