134-NLR-NLR-V-58-H.-P.-JAMES-Appellant-and-R.-MEDDUMA-KUMARIHAMY-Respondent.pdf
1957Present: Sansonl, J., and L. W. de Silva, A.J.H. P. JAMES, Appellant., and R. ilEDDUMA KUMARIHAMY,
Respondent
S. C. 3S1—3S2—D. G. Kegalte, 8,773JB
Kandyan Law-—Diga marriage—Is marriage certificate sufficient proof?—Burdenof proof—Forfeiture of paternal inheritance—Evidence Ordinance (Cap. 11),s. 114—Amended Kandyan Marriage Ordinance, No. 3 of 1S70.
In cases governed by tlio Amended Kandyan Marriage Ordinance of 1S70the production of a diga marriage ccr( ificato is of itself sufficient to prove notonly that the wife was married in diga but also that she forfeited her paternalinheritance ; tlio burden thereafter shifts to her, or to thoso claiming throughher, to provo that tlio subsequent conduct of tho parties was such thatno forfeiture in fact took place.
Co-owners—Prescriptive possession as between them.
A person who buys a share of a land and enters into possession of that shareas a co-owner, and thereafter puiports to buy shares totalling to unity, cannot,by forming a secret intention as to tho character of his possession, acquireJjrescriptive title to tho entire land by possessing tho whole land.
Costs—Courts Ordinance (Cap. G), s. 72—Civil Procedure Code, s. 211. a
The plaintiff brought this action in the District Court claiming a declarationof title to 4/5 share of a land. Ho was in fact entitled to 1/25 share only, whichcould have been recovered in the Court of Requests. The defendant, however,denied that tho plaintiff had any share at all in the land.
Held, that in the circumstances the provisions of section 72 of the CourtsOrdinance, read with section 211 of the Civil Procedure Code, did not disentitletho Court from awarding costs to tho plaint iff in the lowest class in tho DistrictCourt scale.
-^^-PPEAL from a judgment of the District Court, Jvegalle.
Sir Lalita JRajapakse, Q.G., with J. A'. Fernandopulle, for the plaintiff-appellant in No. 3S1 and the plaintiff-respondent in No. 3S2.
H. W. Jaycuscirdene, Q.G., with G. Ji. Gunaralne and B. S. C. Ealualle,for the defendant-respondent in No. 3SI and the defendant-appellantin No. 3S2.
Cur. adv. vidt.
July 4, 1957. Saxsoxi, J.—
The land in dispute in this action formerly belonged to AppuhamyKorala who by deed PI of 1S57 conveyed it to his only daughter DingiriMenike, her two binna husbands Loku Banda and Medduma Banda,and their two sons Dingiri Banda and Punchi Banda. L.oku Banda,Medduma Banda and Dingiri Menike died leaving 5 children, namely,Dingiri Banda and Punchi Banda already mentioned and 3 daughters,Bandara Menike, Dingiri Amma and Tikiri Kumarihamy.
The plaintiff brought this action claiming a declaration of title to 4/5share of t he land on the fooling that Dingiri Amnia inherited the sharesof ali her brothers and sisters except Pun chi Banda, and that on DingiriAmina’s death her surviving daughter Ban Mcnike by deed P2 of 1950sold that 4/5 share to the plaintiff. The plaintiff complained that thedefendant was in wrongful possession of her share. In her answer thedefendant pleaded that Dingiri Amnia had gone out in diga and forfeitedher right to inherit any share of this land. The defendant furtherpleaded that on a scries of deeds two outsiders, Walgama Tikiri Bandaand Rupasinghe Tikiri Banda, became entitled to the shares of DingiriAmnia’s brothers and sisters. These deeds are Fiscal's conveyance Dlof 1SSS purporting to transfer the right, title and interest of DingiriBanda and Punehi Banda in 4/5 share of- the land to Walgama TikiriBanda, deed D4 of ISS9 executed by Bandara Men ike in favour of Wal-gama Tikiri Banda for a 1/6 share which she claimed b3r paternal inheri-tance, and deed D3 of 1SSS executed by Tikiri Kumarihamy in favourof both Walgama and Rupasinghe Tikiri Banda for a 1 jo share whichshe claimed by paternal and maternal inheritance. The share of DingiriAmina was not purchased by either of them at any time, and as I havealready pointed out it is her share that the jilaintiff claims.
It.is not necessary to give details of the subsequent deeds executed bythe co-owners Walgama and Rupasinghe Tikiri Banda, but in 1910the defendant purported to buy an undivided 1/2 share from RupasingheTikiri Banda on deed DO, and in 191S the defendant’s husband(through whom the defendant claims) purported to buy 41/120 shareof the land from two of the successors in the title of Walgama TikiriBanda. It is admitted in the answer and in the evidence led for thedefendant that there is a share outstanding in certain other successorsin title of "Walgama Tikiri Banda, and that those co-owners take then-share of the produce of the land. The position therefore is that thedefendant docs not claim to be the sole owner of the land either by pres-oription or on paper. The defendant does, however, contest the plain-tiff's right to any share of the land on two grounds :—(1) on the groundthat .Dingiri Armna b- her diga marriage foz-feited her right to inheritany share of the land, and (2) on the ground that the defendanthas acquired a prescriptive title to the share which the plainlilF claims.
After trial the learned District Judge held that although themarriage certificate of Dingiri Amnia proved that she was married indiga to one Punehi Banda in 1S72, she did nob forfeit her paternal in-heritance because there was no- evidence that she left the mulgedera.
He also held that the defendant’s possession of the land was that of aco-owner who had not prescribed against the plaintiff. In the result- heheld that the plaintiff was entitled to an undivided 3/25 share of the landand <1 amages at Rs. 30 a j-car. He ordered the plaintiff to pay thedefendant the costs of the action, on the ground that the plaintiff hadsucceeded in proving title onty to a small fraction of the share claimedby him. The plaintiff has appealed only on the question of costs, butthe defendant has filed an appeal contesting the plaintiff’s right to anyshare of the land.
With regard to the question of forfeiture, it was urged for the defendantthat the production of the marriage certificate of Dingiri Amma (D 2)containing the entry that the marriage was in diga was sufficient proofthat Dingiri Amma forfeited her right to the paternal inheritance.Reliance was placed on Mampiliya v. WcgodapoTa 1 where it was heldthat “as between or as against the parties, or their representatives ininterest, the register of the marriage is conclusive of the intention withwhich the marriage was celebrated, unless the case is shown to be oneof mistake or fraud, or can otherwise be brought within the equitableexceptions of section 92 of the Evidence Ordinance ”. This case wasfollowed in Senevimine v. Halangoda2 and in Chelliah v. KuttapiliyaTea and Rubber Co. :i.
Now in this case neither party is seeking to contradict the register;but while the defendant-respondent insists that the entry in the registeris sufficient to bring about the forfeiture, the plaintiff-appellant insiststhat there should be other evidence, oral or documentary, to prove thatDingiri Amma left the mulgedera and settled in her husband's home.In considering this question in the light of the decided eases, I think itis very important to bear in mind the facts of those cases. One is other-wise apt to pick out dicta from the judgments and give them an inter-pretation which can be quite inaccurate and even misleading, when theyare isolated from the facts with which the judges were dealing.
With regard to Mampiliya v. Wegodapola 1 it is essential to rememberthat although the husband and wife there were married in diga, evidencewas led of their subsequent conduct which proved that the bride wasnever conducted to her husband's home. The crucial issue that aroseout of that state of things was whether the registration of the marriagein diga automatically and instantly worked a forfeiture, which noamount of evidence of subsequent conduct could affect. It wascontended that even where a diga marriage wife remains in the mul-gedera she nevertheless forfeits her right to inherit from her father, butthis contention was rejected b3' Bertram C. J. It is true that through-out his judgment the learned Chief Justice stresses the part played inthe matter of forfeiture by the departure of the bride from the mulgedera,but we must remember that he was doing so in a case where evidence hadbeen led to prove that the bride had not left the mulgedera. On page132 he says—“ I think, therefore, that wc must take it to be the lawthat what works the forfeiture is not the ceremony but the severance.No doubt by contracting a marriage in diga in which the bride's familyparticipated, the parties bound themselves to each other and the familythat the bride should be conducted in accordance with custom, andshould settle in the home of her husband. But if this, for whatever reason,was not done and if with the acquiescence of her family, the brideremained in the mulgedera, then the forfeiture was never consummated ”.In the same case Ennis J. said : “ Now it has been held by dc Sampayo
J.in the case of Menikhamy v. Appithamy that the forfeiture of thebride’s rights in the paternal estate turns on the question of fact, whetherthe bride left the parental home in accordance with the contract. In* {1022) 24 -V. Tj. It. 120.2 {1921) 22 N. L. It. 47-.
J 3 tf032) 34 27. L. Ji. SO.
(10-VO) 3.J .V. r . 1>. so.
the absence oj evidence there would be a prcsunijition that, the terms of thecontract- relating to residence had been carried out, but I can see no good:reason for excluding oral testimony relating to the carrying out of thisterm of contract, which was not a matter of fact occurring at the timeof the contract After saying that-, on the question of fact, he saw noreason to interfere with the finding that the wife had not severed herconnection with the mulgedcra, the learned Judge went on to say :lthe circumstances it would seem that there was a valid contract ofmarriage in diga, but the term of the contract relating to residence wasnot carried out. From the jacts as found a tacit consent by the plaintiff(the bride’s brother) to the residence of the defendants (the bride and thebride-groom) in the mulgedcra must be inferred. In- the circumstancesthe bride retained her rights of inheritance in her father’s estate”.
Two months later the case of Seneviratne v. Halangoda 1 was decided.There too oral evidence was led as to the conduct of the parties after adiga marriage had been registered, and in the course of his judgmentde Sampaj-o J. expressed the view that suck evidence may lead to theresult that notwithstanding her diga marriage, the bride had preserved orregained her binna rights. The learned Judge then said :“ The only
consequence of a diga married daughter preserving or subsequently-acquiring binna rights is that the forfeiture of the rights of paternalinheritance does not take place, but she inherits as though shewas married in binna ”. I consider this case to be further authority forthe view that, on production of the certificate of registration of marriagein diga, the court must in law draw the inference that the bride leftthe mulgedera and forfeited her paternal inheritance in accordance withthe contract-, unless the contra r3r is proved by the party who denies thatthe forfeiture took place. This may be proved by facts which the courtwould recognize as sufficient to rebut the inference. The certificate raiseswhat Lord Denning has termed a “ compelling presumption ” whichwould give rise to a separate issue on which the legal burden is on theother party to prove that there was no forfeiture. See the articlePresumptions and Burdens ” in The Law Quarterly Review, vol. 61page o 7 9.
I would finally refer to the judgment of Garvin S. P. J. in Chclliah v.Kullapitiya Tea and Rubber Co. In that case the diga marriage certi-ficate was produced, but the evidence of the husband proved that he andhis wife continued to live after marriage in the wife’s father’s house.
A daughter was born, and in his judgment Garvin S.P.J. makes it clear .that the daughter was bound by the marriage .register and could onlyclaim to inherit from her maternal grandfather “ upon proof that thoughthe marriage contracted by her parents was a marriage in diga, her motherdid not in fact leave the roof of her parents, that there was no severancefrom the family and consequently no forfeiture of rights, or upon proofthat if a forfeiture ever took place her mother reacquired the rights of abinna married daughter”. The learned Judge upon a consideration ofthe evidence on these matters came to the conclusion that the wife was-fully vested with rights of inheritance and did in fact inherit her father’s-property, which at her death passed to her daughter.
X therefore have no hesitation in holding, on the strength of theseauthorities, that in cases governed by the Amended Kandyan MarriageOrdinance of 1870 the production of a diga marriage certificate is* ofitself sufficient to prove not only that- the wife was married in diga butalso that she forfeited her paternal inheritance ; the burden thereaftershifts to her, or to those claiming through her, to prove that the subse-quent conduct of the parties was such that no forfeiture in fact tookplace. In the result I hold that Dingiri Amina forfeited her right toinherit from her father Appuhamy Korala. It is conceded, however,that she was entitled in any event to inherit from her mother DingiriMcnike : therefore Dingiri Annua on her death was entitled to 1/25share of this land and this share has passed to the plaintiff.
On the question of prescription, Dingiri Amma and her successors intitle were always co-owners, as the learned trial .Judge has pointed out.He has held also that the major portion of the land was lying fallow till1043 when it was asweddumised at the instance of the defendant. Butit was contended for the defendant that as she and her husband hadbought shares in this land at different times, and those shares when addedup cover the entire land, prescription woidd run in favour of the defend-ant and her husband from 191S, wliich is the 3-ear in which the lastdeed was obtained. I reject this submission as being without substance.The defendant and her husband entered as co-owners and they' could notby forming a secret intention as to the character of their possession acquireprescriptive title to the entire land even if they did possess the wholeland. It is obvious that the principle that a stranger -who had purportedto purchase the entire land from a co-owner, and entered into possessionof that land in the belief that he was sole owner, can prescribe to it, doesnot apply here. It must also be remembered that the defendant admitsin her answer, and her chief witness admitted in his evidence, that a1/10 share has always been regarded as outstanding in another co-ownerof this land who appropriates his share of the produce. The plea ofprescription put forward by the defendant fails.
I would therefore set aside the decree appealed against and direct thata decree bo entered declaring the plaintiff entitled to an undivided 1/25share of the land in dispute and possession thereof, and damages atTls. 10 a year from the date of action. Tn regard to costs, the plaintiffhas partially succeeded although he has been found to have undulyexaggerated liis claim. But the defendant denied that the plaintiffhad any share at all in the land, and she lias failed in this contention.In appeal too the defendant's counsel argued that the plaintiff had noshare in the land ; to support that position, he pressed the issue of pres-cription on behalf of his client. I consider that the learned -Judge waswrong in ordering the plaintiff to pay the defendant the costs of thisaction in spite of the plaintiff having partially succeeded. T11 all thecircumstances, I would award the plaintiff his costs in both courts inthe lowest class in the District Court scale.
W. de Silva, A. J.—
I a«rce with my brother and refer to two points raised during the argu-ment. The marriage certificate of Dingiri Amma in the year 1S72 proves
that hers was a diga marriage. Xo evidence was led nat the trial thatshe had severed her connection with the mulgedera. The nature of themarriage and the intention of the parties arc common cause. The plain-tiff's counsel contended that it- was obligatory on the defendant to provefurther that Dingiri Amina after her diga marriage had left the mulgederaand thus forfeited her right to the paternal property. The argumentwas that ihc right to a paternal inheritance under the Kandyan Lawcannot in the circumstances bo taken away by a mere entry in themarriage register.
.So far as I am able to gather from the reported cases, the problem docsnot seem to have arisen in this way. Those eases-proceeded on thefooting that a daughter married in diga forfeits her interest in her paternalinheritance, not by virtue of the marriage, but because it involvesa severance of her connection with her father’s house, vide Punch i Menihev. Appuhcnny cl at. *. The question here is whether it is sufficient for thedefendant to prove only the intention. 1 am of the opinion that it issufficient, for this is a case to which Section 114 of the EvidenceOrdinance (Cap. 11) applies :
The Court may presume the existence of any fact which it thinkslikely to have happened, regard being had to the common course ofnatural events, human conduct, and public and private business intheir relation to the facts of the particular case. ”
In the absence of evidence to the contrary, we are entitled to presumethat, according to the terms of the marriage contract, the common courseof natural events followed consistent with the ordinary habits of Kandyansociety, resulting in a severance of the diga married woman from herfather’s house. Tins involved a forfeiture of her right to the paternalinheritance. I should add that, by the Ordinance Xo. 3 of 1S46, the Lawof Evidence in Ceylon was the English Law when the Amended KandyanMarriage Ordinance Xo. 3 of 1S70 was enacted. The provisions of section114 of the Evidence Ordinance, which is a later enactment, conform tothe English Law in force at the material point of time.
The learned District Judge has ordered tlie plaintiff to pay the costsof the action “ as he has succeeded only to a small fraction of the interestsclaimed by him. ” Learned counsel for the defendant relied on section72 of the Courts Ordinance (Cap. 0) and argued that the jilaintiff wasnot entitled to costs as a matter of right and the order was-thereforejustified. This is not a good ground for depriving the plaintiff of costssince the section is as follows :—
‘‘ If any action or suit shall be commenced in any District Courtfor any debt or demand which might have been recovered in someCourt of Requests, the plaintiff or plaintiffs in any such action or suitshall not by reason of any judgment for him or them, or otherwise,have or be entitled to any costs whatever, but it shall be eompeteutfor the Judge to make such order as.to costs as justice may require. ”
In my opinion the justice of the case required (hat the plaintiff, who wasthe successful party though only partially, should have been awardedsome costs. It is true that the interests to which the plaintiff is entitled'could have been recovered in the Court of Requests. The merits incontroversy involved a claim to the entire land by the defendant whosought to absorb it for herself on a plea of prescription which failed.It is apparent that she put the plaintiff to unnecessary expense and com-pelled him into litigation. Section 72 of the Courts Ordinance as wellas section 211 of the Civil Procedure Code confers on the Court adiscretionary power with regard to the award of costs, but the exerciseof the discretion has to be made upon reasonable and just grounds.
Appeal No. 3S1 partly allowed.