U UAL AG AM A, J.—Menikhamy and. others v. Podi Menika and others
1978 Present: Udalagama, J., Ismail, J. and Tittawella, J.
HAPUGANORALAGE MENIKHAMY and OTHERS, Appellants
J.M. PODI MENIKA and OTHERS, RespondentsS. C. 108—109/71 (F)—D. C. Kurunegala 6259/T
Adoption of Children Ordinance (Cap. 61), section 3—Child ^broughtup- by parties subject to Kandyan Law—Application made inrespect of such child under the Adoption of Children Ordinance—Requirement in section 3 (5) that no order except with child’sconsent where the child is over 10 years old—Whether suchreav.irement mandatory—Duty of Judge to obtain such, consent—Effect of lack of consent—Jurisdiction jpf Court—Whether ordervoid.
Evidence Ordinance, sections 41, 114(d)—Can such Adoption Order beattacked collaterally—Application of presumption to be drawnunder section 114(d)—In what circumstances can such presump-tion be drawn.
One P died on 9th March, 1969 v/ithout leaving a Last Will andleaving an estate valued at over Rs. 200 000. He left no children ofhis,own, but the petitioner sought letters of administration to hisestate claiming to be an adopted child of the deceased and thereforethe sole intestate heir. This claim was contested by the childrenof the deceased’s brothers and sisters who al'o claimed asintestate heirs. The parties were subject to the Kandyan Law. Itwas common ground' that if the petitioner was the ^gallyadopted child of P she would be the sole heir to his estate. It wouldappear that the mother of the petitioner having died when she wasonly 10 years old she was thereafter brought up by the said Pand his wife, who on 23rd January, 1952, made an application underthe Adoption Ordinance, No. 24 of .1941. to the Court of Requests,Kurunegala, which by virtue of section 13 of the Ordinance wasthe Court having jurisdiction. On 29th January, 1952, the learnedCommissioner of Requests held an inquiry and order was madeallowing the said P and his wife to adopt the petitioner. Givingevidence at this inquiry the said P stated, inter alia that he wishedthe petitioner to be given his ge name “ for the purpose of inherit-ing his property The father of the petitioner also consented tothis adoption. The petitioner was at the time of the inquiry 10years and 4 months old. In the District Court it was submitted onbehalf of the appellants who were contesting the petitioner’s claimthat the said adoption order was void and of no effect or avail inlaw and that therefore they were the intestate heirs of thatdeceased. The learned District Judge held that the petitioner wasthe legally adopted heir and that accordingly she was the sole heirof the said P.
The appellants appealed against this order.
Section 3 (5) of the Adoption Ordinance, No. 24 of 1941, is asfollows : —
“ An adoption order shall not be made in respect of a child overthe age of 10 years except with the consent of such child ”.
There was no record in the proceedings at the adoption inquiryor in the formal order made by the learned Commissioner ofRequests of having obtained the consent of the petitioner beforemaking the adoption order. The petitioner, however, at the inquiryinto her application for letters of administration to the estate ofthe said P stated that the Judge questioned her and that she
TJHALAGAMA, J.—Menikhavry ar.c. others v. Podi MniiLa and other»
consented to the adoption. It was submitted on behalf of theappellants that jurisdiction can be of two kinds, namely, oneto hear a matter and the other to make an order and that failureof either jurisdiction resulted in the order made being ab initiovoid and of no effect or avail in law.
Held (Tittawella, J. dissenting) ;
That the requirement in section 3 (5) of the AdoptionOrdinance that an adoption order shall not be made in respectof a child over the age of 10 years except with the consent of suchchild was mandatory. The Judge is under a duty to get the consentof the child and at the inquiry in the testamentary proceedings theonly way the Court could know that such consent was obtainedwas the fact that it had been recorded in the adoption case. Theorder in question was made without jurisdiction and thereforevoid.
That this adoption order could be attacked collaterally asit was not an order in rem and did not come under the categoryof orders set out in section 41 of the Evidence Ordinance.
That section 114 (d) of the Evidence Ordinance on whichcounsel for the petitioner relied has no application to the presentcase. It does not raise any presumption that an act was done ofwhich there is no evidence or proof which is essential to a case andthere can be no presumption that an act such as that of obtainingthe consent of the child jn an adoption case was done.
Cases referred to :
Percra. v. Commissioner of National Housing, 77 N.L.R. 361.Dheerananda Thero v. Ratnasara Thera, 00 N.L.R. 7.
Societe Genarale De Paris v. Walker, 54 L.T. 389; (1885) 11 App.Cas. 20 ; 55 L.J. Q.B. 169.
Gunciv'cirdena v. Kelaart, 48 N.L.R. 522.
Dharmatillaka v. Brampy Singho, 40 N.L.R.. 497.
Weerasooria v. Controller of Esiablishmenis, 51 N.L.R. 189.
Re G (T. J.) (an infant), (1963) 1 All E.R. 20 ; (1963) 2 W.L.R. 29 ;(1963) 2 Q.B. 73.
Re F (an infant), (1957) 1 All 2.R. 819.
•. Narendra Lai Khan v. Joge Hart; 32 c. 1107.
Hriday Nath Roy v. Ram Chandra Barna Sc.rma, A.l.R. 1921 (Cal.)34.
Ahamado Muheyadin v. Thambi Appu, 46 N.L.R. 370 ; 30 C.L.W. 106.
The Queen v. The Commissioner for Special Purpose of the IncomeTax (188S) 21 Q.B.D. 313.
A^PPEAL from a judgment of the District Court, Kurunegala.
Ranganathan, Q.C., with M. L. A. Refai and I. Hassen, forthe 1st, 2nd, and 7th respondent-appellants in S.C. 108/71 andfor the 3rd to 6th respondent-appellants in S.C. 109/71.
W. Jayewardene, Q.C., with J. W. Subasinghe and Miss S.Fernando, for the petitioner-respondent.
Cur. adv. vult.
May 29, 1978. Udalagama, J.
This appeal concerns the estate of one Jayasundera Mudiyanse-lage Punchiappuhamy, who died on the 9th of March, 1969, with-out a will and leaving an estate valued at over two lakhs of
UDALAGAMA, J.—i&cnikhawj and others v. Podi Menika and others 27
rupees. He left no children of his own. As the parties are subjectto the Kandyan lav/, the intestate heirs, in the event of theirbeing no children by the deceased would be his deceasedbrothers’ and sisters’ children who are the 2nd and 7th respon-dent-appellants respectively. The petitioner, however, claimingto be an adopted child cf the deceased, has asked for letters ofadministration, on the basis, she is the sole intestate heir of thedeceased.
It was common ground that if the petitioner-respondent wasthe legally adopted child of the deceased, she would be the soleheir to the estate of the said Punchi Appuhamy. It appears thepetitioner-respondent was the child of Ramanayaka Mudiyanse-lage Ukku Banda and Jayasinghe Mudiyanselage Punchi Menike.The mother of the petitioner died in 1941 when she was 10 daysold. She was thereafter brought up by the' deceased PunchiAppuhamy and his wife Podihamine. On the 23rd of January,1952, the deceased and his wife made an application under theAdoption Ordinance to the Court of Requests, Kurunegala, interms of Ordinance 24 of 1941. On the 29th of January, 1952, thelearned Commissioner of Requests, held an inquiry and pur-ported to make an order allowing the deceased Punchi Appuhamyand his wife to adopt the petitioner-respondent. The 2nd and7th respondents-appellants had submitted in the District Courtthat the adoption order in respect of the petitioner-resoondentwas void and of no force or avail in law and therefore thev werethe intestate heirs of the deceased. The learned District Judgeat the conclusion of the evidence of the petitioner on 7.5.71 andafter hearing counsel on either side, made a short order holdingthat “ the petitioner is the ^gally adopted heir of the deceasedand that she is the sole heir of the deceased The 2nd and 7threspondents-appellants, now appeal against this order of thelearned District Judge.
The Adoption Ordinance 24 of 1941 conferred jurisdiction onthe Court of Requests by section 2 and 13 (1) to make an orderof adoption, authorizing a person making an application, to adopta child. This jurisdiction to make adoption orders is limited bysection 3 of Part 1.
Section 3 spells out the limitations imposed upon the Court ofRequests to make adoption orders. Section 3 states :
“ (1) An adoption order shall not be made in any case
the applicant is under the age of twenty-five years, or
the applicant is less than twenty-one years older than
the child in respect of whom the application is made :
28UD ALA GAMA, J.—Slenikhamy and others :>. i'odi Mcnika and others
Provided, however, that where the child in respect of whoman application is made is—
a direct descendant of the applicant; or
a brother -or sister of the applicant by the full or the half- '
blood or a decendant of any such brother or sister ; or
the child of the wij.e or husband, as the case may, be of
the applicant by another father or mother,
the court may, if it thinks fit make an adoption order notwith-standing that the applicant is less than twenty-one years olderthan the child.
An adoption order shall not be made in any case wherethe sole applicant is a male and the child in respect of whomthe application is made is a female, unless the court is satisfiedthat there are special circumstances which justify the makingof an adoption order.
An adaption order shall not be made except with theconsent of every person or body who is a parent or guardianof the child in respect of whom the application is made, or whohas the actual custody of the child, or who is liable tocontribute to the support of the child.
Provided that the court may dispense with any consentrequired by the preceding provisions of this subsection ifsatisfied that the person whose consent is to be dispensed with-has abandoned or deserted the child or cannot be found or hasbeen adjudged by a competent court to be of unsound mind,or, being a person liable to contribute to the support of thechild, either has. persistently neglected or refused to contri-bute to such support or is a person whose consent ought in.opinion of the court and in all the circumstances of the caseto be dispensed with.
A man who marries a woman having a child (whetherlegitimate or illegitimate) at the time of the marriage, shallbe deemed for the purposes of this subsection to be a personliable to contribute to the support of the child.
An adoption order shall not be made upon the applicationof one of two spouses without the consent of the other of them :
Provided that the court may dispense with any consentrequired by the preceding provisions of this subsection ifsatisfied that the parson whose consent is to be dispensed with
0DALAGAMA, J.—Menikhamy and others v. l^odi Menika and others 29
cannot be found or has been adjudged by a competent courtto be of unsound mind, or that the spouses have been judiciallyseparated by a decree of a competent court.
An adoption order shall not be made in respect of achild over the age of ten years except with the consent ofsuch child.
An adoption order shall not be made in favour of anyapplicant who is not resident and domiciled in Ceylon or inrespect of any child, who is not a British subject and so
it will be noted that section 3 (5) states, “ an adoption ordershall not be made in favour of a child over the age of 10 yearsexcept with the consent of such child ”. Section 4 deals withthe matters which the court must be satisfied, before makingan order for adoption, and section 6 deals with the effects of anadoption order.
Counsel for the 2nd and 7th respondents-appellants contendedthat jurisdiction can be of two kinds, namely one to hear a matterand the other to make an order. Failure of either jurisdiction itwas contended resulted in the order being ab initio void andof no effect or avail in law. In Perera v. the Commissioner ofNational Housing. 77 N.L.R. 361 at 336, Tennekoon, C. J. put thematter thus :
“ Lack of competency in a court is a circumstance that resultsin a judgment or order that is void. Lack of competency mayarise in one of two ways. A court may lack jurisdiction overthe cause or matter or over the parties ; it may also lack com-petence because of failure to comply with such proceduralrequirements as are necessary for the exercise of power bythe court. Both are jurisdictional defects. The first mentionedof those is commonly known in the law as a “ patent ” or“ total ” want of jurisdiction or a defectus jurisdictions and thesecond a “latent” or “contingent” want of jurisdiction, or adefectus triationis. Both classes of jurisdictional defect resultin judgments or orders which are void. ”
Craies on Statute Law (5th Edition) at page 243 states :
“ If the requirements of a statute which prescribes themanner in which something is to be done .are expressed innegative language that is to say if.'the statute enacts that itshall be done in such a manner and in no other manner, it
LTD AL AG Ail A, J.-—Menikltainy and olhcrt, y. Podi Manika and other*
has been laid down that tnose requirements are in all casesabsolute, and tnat neglect to attend to them will invalidatethe wnoie proceeding. ”
In Dheerananda Thero v. Ratnasara Thero, 60 N.L.R. 7 at 14,
T.S. Fernando, J. stated : —
“ Where it is shown that the proceedings are illegal in thesense that the Court had no jurisdiction to proceed to make anorder, there is, in my opinion, no room for the argumentthat it is too late at the stage oi appeal to object to the proceed-ings taken and the order of court consequent upon theseproceedings. ”
Counsel for the 2nd and 7th respondents-appellants submittedthat the adoption order P2 (a) in respect of the adoption of thepetitioner-respondent was void and of no effect in law as thesaid order was made by the learned Commissioner of Requests,without jurisdiction, in as much as he failed to follow a manda-tory requirement of the Ordinance before such an order is made.Under section 3 (5) it is an absolute requirement that an adop-tion order shall not be made in respect of a child over the ageof 10 years except with the consent of such child. At the timethe adoption order P2 (d5 was made it was common ground thatthe petitioner-respondent was over 1.0 years. The adoption pro-ceedings P2 does not, anywhere state that the consent of thepetitioner-respondent was obtained before the order was made.The order of the learned Comm.ssioner does not refer to his'having obtained the consent of the petitioner-respondentalthough he states the father has no objection to the adoption.The formal order P2 (a) while stating that the consent of thefather was obtained, is silent in regard to the consent of the child.At the argument of this appeal, it was conceded by counsel for thepetitioner-respondent, that there is no record in the adoptioninquiry proceedings or of the formal order, of the learnedCommissioner having obtained the consent of the petitioner-res-pondent before making the adoption order.
The petitioner-respondent tried to get over this difficulty atthe inquiry into her application for letters of administration bystating “ I gave evidence in Court. The judge asked whether Iconsented and he wrote that out. I remember being questioned ”.An examination of the adoption inquiry proceedings clearlyshows, that this evidence of the petitioner-respondent is untrue.Counsel for the petitioner-respondent however submitted thatthere was no legal requirement that the consent of the ch'ldshouM be recorded. He submitted that under section 10 (6) (b)where a certified copy of any entry in the adoption register is
UDALAGAilA, J .—IvZe-iikiuimy and others v. Podi Mcnika and others3i
produced it is prima facie evidence of the adoption. In SocieteGenarale De Paris v. Walker, 54 Law Times 389 at 395, Lord Fitz-gerald stated: “ ‘ Prima facie title ’ means that the certificatesshall be evidence that the title of the holder is correct untilthe contrary shall be made to appear The 2nd and 7th res-pondents-appellants’ contention is that although PI may be primafacie evidence of the adoption, the proceedings P2 and the formalorder P2 (a) show that consent of the petitioner was not obtained.Under section 3 (5) the consent of the child, where the childis over_ 10 years, is mandatory. It is not permissible to-conjec-ture on a mandatory requirement of this nature that the consentmay or may not have been obtained. This would not be acorrect approach to such a problem and would only make thesection useless. In the cases set out in 3(1), 3(2), 3(3) and 3(4)there is provision under certain circumstances for the court touse its discretion and make an adoption order,^but not so undersection 3(5). It is a statutory requirement and the Judge isunder a duty to get the consent of the child and this Court couldonly know that such consent was obtained by the fact that ithas been so recorded in the case. Under section 92 of the CivilProcedure Code “with the institution of the action the courtshall commence a journal entitled as of the action, in whichshall be minuted as they occur, all the events in the course of theaction, i.e., the original application and every subsequent step,proceeding and order ; each minute shall be signed and datedby the judge and the journal so kept shall be the principalrecord of the action ”. In Gunaviardene v. Kelaart, 48 N.L.R. 522,it was held the Supreme Court will not admit affidavits whichseek to contradict the record kept by the Magistrate. InDharmatilaka v. Brarapy Singho, 40 N.L.R. 497, the learnedDistrict Judge in a claim inquiry under section 243 of the CivilProcedure Code made the following order “ Claimant in personpresent. Notice served on plaintiff personally—absent—claim up-held ”. It was argued on behalf of the petitioner that as section243 of the Civil Procedure Code required the claimant to adduceevidence the order was bad. It was argued on behalf of therespondent that the order allowing the claim was an orderwhich the District Judge had jurisdiction to make and that onemust not look behind that order. Keuneman, J. stated “I thinkthat the terms of section 243 make it necessary for the claimantto adduce evidence, whether the judgement-creditor is presentor not at the inquiry and where the requirements of section 243have not been observed I do not think that any allowance of theclaim can be regarded as an order under section 244 ”. In otherwords what the Supreme Court said was that the learned Judgedid not have the jurisdiction to make the order he did.
32 UDALAGAMA, J.—Menikhamy and otners a. iJodi Mcnika and oliicru
Counsel for the petitioner-respondent cited the case of Weerc-sooriya v. The Controller of Establishments, 51 N.L.R. 189, insupport ot ms contention that non-observance ol a mandatoryrequirement does not make the order void but only voidable ifhe has jurisdiction over the subject-matter. The Commissionerfor Workmen's Compensation dismissed an application for com-pensation made by the appellants against the respondent onNovember 10, 1947, and entered order nisi as the applicant wasabsent on that date which was the date fixed for hearing. Subse-quently at an inquiry held on December 23, 1947, with noticeto the respondent, the applicant satisfied the Commissioner thatthere were reasonable grounds for his default and the Commis-sioner made order setting aside the order nisi and fixing theapplication for inquiry. At a subsequent inquiry respondent’scounsel contended that the order nisi (which fixed a period offourteen days for showing cause) had already become absolutebefore the order of December 23, 1947, was made and even beforethe appellant made his application to have the order nisi setaside, which appeared to have been made on December 3, 1947.This contention was accepted by the Commissioner and he madean order holding that the order nisi had become absolute andtherefore there was “ no ground for proceeding with theinquiry In appeal the applicant contended that the Commis-sioner was not entitled to set aside his own order of December23, 1947. It appeared under regulation 30 of the Workmen’sCompensation Regulations 1935 the provisions of Chapter XIIof the Civil Procedure Code and certain other chapters of thatCode applied to proceedings before the Commissioner in so faras they were applicable thereto. However one of the provisosto regulation 30 was “ the Commissioner may, for sufficient rea-son ; proceed otherwise than in accordance with the said provi-sions if he is satisfied that the interests of the parties will notthereby be prejudiced ”. It was contended for the respondentthat when the Commissioner made an order nisi dismissing theapplication, he had no jurisdiction to set it aside after the expi-ration of the period within which cause must be shown, and thatconsequently every step taken by the Commissioner afterNovember 10, 1947, was a nullity.
Gunasekera. J. disagreeing with this contention stated : “ Notonly is the Commissioner empowered to set aside in appropriatecircumstances an order nisi made by him, but he is vested witha wide discretion as to whether he should proceed.otherwise thanin accordance with the relevant provisions of the Civil ProcedureCode It will be seen that besides section 84 of the CivilProcedure Code the Commissioner was vested with a special
UD.ALAGAMA, J.—Menikhamy and others v. Podi Menika and others
discretion by one of the provisos to regulation 30. Thus this casewould not be an authority for the proposition that an order madewithout jurisdiction is not null and void but only voidable.
Counsel for the petitioner-respondent further submitted, thata judgment or order which declared a status, cannot be attackedcollaterally, as it is an order in rem. The answer to this submissionis contained in section 41 of the Evidence Ordinance. It is onlyin the case of judgments, orders or decrees in testamentaryimatrimonial, admiralty or insolvency cases, which have the effectof judgments, orders or decrees in rem, and cannot be attackedcollaterally. Adoption orders do not fall into this category.
The learned District Judge sought to justify the adoption orderunder section 114(d) of the Evidence Ordinance, which statesthat the court may presume that judicial and official acts havebeen regularly performed. What this section states is that wherean act has been proved to have been done, it was regularly done.In Dliarmatilcike v. Brampy Singho (supra), it was held thatsection 114 (d) of the Evidence Ordinance means that if anofficial act is proved to have been done, it will be. presumed tohave been regularly done. It does not raise any presumption thatan act was done of which there is no evidence and the proof ofwhich is essential to a case. It will therefore be apparent .thatthere is no presumption that an act like the act of the obtaining ofconsent of the child in an adoption case was done.
The learned District Judge also stated that he had no powerto vacate the adoption order made in the Court of Requests. Therespondents’ contention was that the adoption order, madewithout the petitioner’s consent was void. He was not called uponto vacate the order of adoption. All that he was called upon to dowas to adjudicate on the validity of the order. The learnedDistrict Judge here, was clearly in error.
Learned counsel for the petitioner-respondent also submittedthat the fact that the petitioner-respondent was present at theadoption inquiry together with her guardian-ad-litem, who wasno other than her own father, shows that the petitioner-respon-dent’s consent must have been obtained. If one examines theAdoption Ordinance and the rules made under the said Ordinance,it will be seen, it is the duty of the guardian-ad-litem toinvestigate as fully as possible all the circumstances of the childand the applicant, and all other matters relevant to the proposedadoption, with a view to safeguard the interests of the child,before the court and in particular whether the written statementrequired by rule 2 is true and complete, particularly as regardsthe date of birth and the identity of the infant and whether any
—A 42081 (70/07)
34 UDAXAGAMA, J.—Mcnikhcimy and others v. Podi Menika and inner#
payment or other reward in consideration of the adoption hasbeen received or agreed upon and whether it is consistent withthe welfare of the child. Rule 2 states: —
“ Every application for an order authorizing the adoption ofa child—
shall be made to the court by written statement in
duplicate and shall be substantially in Form 1 in theSchedule ; and
shall, except in a case where the applicant desires the
court to dispense with the consent of persons whoseconsent is required under section 3 (3) of the Ordinance,be accompanied by v/ritten statements of consentsubstantially in Form 2 in the Schedule. ”
It will be seen the above rule does not refer to the consentrequired to be obtained under section 3(5) of the Ordinance inrespect of a child over 10 years of age. As submitted by counselfor the appellants, that is because trie obtaining of the consentreferred to under section 3 (5) is a judicial function which cannotbe delegated to a third party. It is mandatory and must be doneby the Judge. The record does not show that the learned Judgehas performed this function. Counsel for the petitioner-respon-dent cited the case of Re G (T.J.) (an infant), (1963) 1 A.E.R. 20.That was an application by a step-mother of a boy of nearlytwelve years of age who had looked after him since he was four.The mother of the boy objected to the adoption and the courtheld that her objection was not being withheld unreasonably.In appeal it was contended both by the counsel on behalf of theapplicant and by counsel on behalf of the guardian-ad-litem who■was supporting the applicant’s appeal, that the learned judge didhot give proper weight to the views of the infant as expressed inthe welfare officer’s report. It was contended that nowhere in thelearned Judge’s judgment was any mention made of these views.It was further contended that in his judgment the learned Judgeshould have said in terms, that he had complied with theprovisions of section 7(2). L-ord Justice Donovan stated : —
“ With regard to s. 7 (2) of the Act, the judge did notascertain the child’s wishes by direct questioning of child.The subsection provides that the judge shall give due conside-ration to the child’s wishes, having regard to its age andunderstanding. The child was aged twelve at the time ; andin such a case I think that, subject to what follows, the judgeshould satisfy himself about the child’s understanding byspeaking to the child himself. No doubt in most cases thiswould be best done in private. But where, as here, the judgehas a very recent report by the child welfare officer of the
UDALAGA3IA, J.—Menikliamy and others v. Podi Menika and others 3S
local authority which tells him inter alia, what the child’swishes are, I see no reason why the judge should not acceptthat report if he thinks, it right to do so. If the report weresome months old as I gather it could be in some cases—thejudge should, and I have no doubt would verify for himselfthat the child’s wishes remained the same since the subsectiondoes require, in my opinion, the ascertainment of these wishesas at the time of the hearing or near enough to that ,time tomake no difference ”
The difference in this case and the present case is that there wasa report of the guardian made just before the hearing where itwas stated that the boy had said he would like to be adopted.There is nothing like that in the present case. Moreover as pointedout earlier, the rules framed under our Adoption Act do notprovide for the guardian to obtain the consent of the child. Thatduty is expressly entrusted to the judge.
In Re F (an injant), (1957) 1 A.E.R. 819, cited by counsel forthe appellant, the applicants sought to adopt M, a female child.Earlier the parties had entered into a deed of agreement wherethe parents of M, had stated that they “ fully understand thenature of such adoption order and that the effect thereof will bepermanently to deprive them of their parental rights in respectof the infant ”. Section 2 (4) (a) of the Adoption Act, 1950 forbidsan adoption order being made without the consent of the child’sparents, although the court can dispense with the consent(section 3 (1) ), if it is unreasonably withheld. The parents of M.refused to give their consent at the adoption inquiry. It was heldan order for M’s adoption would not be made because the fatherand mother refused their consent, their refusal was not un-reasonable and the consent which they had given by the adoptionagreement was revocable until an adoption order was made. Inthis case it will be seen, the court declined to exercise its juris-diction and make an adoption order, because a mandatoryrequirement to wit the obtaining of the consent of. the parents,was not forthcoming at the inquiry.
Finally it was submitted on behalf of the petitioner-respondent,that after such a long lapse of time, it would be unjust on thepetitioner-respondent, to hold that the adoption order was anullity and thus deprives her from inheriting the estate of thedeceased J. M. Punchi Appuhamy. While no doubt it is a long timesince the adoption order was made, at the same time it appearsthat the petitioner was not that close to the deceased as onewould have expected of an only child. The petitioner at theinquiry admitted that she eloped with the deceased’s driver andthereafter she had nothing to do with the deceased. The 2ndrespondent-appellant, in his affidavit filed in the District Court
ISMAIL, J. —3U-nikiiai.'y aivl other* v. Vodi Monika anti others
lias affirmed to, that the petitioner eloped with the deceased’sdriver in 1962 taking away with her a large sum of money andjewellery belonging to the deceased and the deceased hadnothing to do with her, cut her off and disowned her. That a fewdays prior to his death, the deceased expressed in the presenceof several persons that it was his earnest desire that all hisproperty should be bequeathed to him (the 2nd respondent-appellant) as recompense for the faithful services rendered tohim and accordingly he sent for a Notary and instructed him todraw up a will in favour of him, bequeathing all his movable andimmovable properties. He has further affirmed that a will wasdrawn up, according to the wishes of the deceased, but when theNotary came ready with the will, the deceased’s condition hadtaken a turn for the worse and in the circumstances the signingof the will had to be put off but the deceased died and the willcould not be signed.
I allow the appeals and set aside the order of the learnedDistiict Judge dated 7.5.71 and hold that the petitioner-respondentis not a legal heir of the deceased, J. M. Punchi Appuhamy anddismiss her application for Letters of Administration to theestate of the said J. M- Punchi Appuhamy. The petitioner-respondent will pay the 1st, 2nd and 7th respondents costs ofthe inquiry in the District Court and the costs of this appeal.Ismail, J.
I have the benefit of having before me the judgments preparedin this case by Udalagama, J. and Tittawella, J. For the purposeof the order I propose to make in this case I will deal only verybriefly with facts which are material for the purpose of myorder.
It would appear that the application for adoption in Case No. 23of the Court of- Requests, Kurunegala, had been made on23,rd January, 1972, in respect of the minor, R. M. Podimenika,who according to the birth certificate R1 was born on 7th Sep-tember, 1941. This indicates that this child at that time was justover ten years of age. Section 13 (1) of the Adoption OrdinanceChapter 61 confers jurisdiction on the Court of Requests havingjurisdiction at the place at which the applicant or the child inrespect of whom the application is made resides. Section 3 ofthe Adoption of Children Ordinance indicates certain restric-tions and limitations which have to be observed in makingan adoption order. For the purpose of matters in issue we needbe concerned only with section 3 (5) which reads,
“ An adoption order shall not be made in respect of a childover the age of ten years except with the consent of suchchild. ”
ISMAIL, J.— Menikha'r.y and others v. Podi Monika and others
It therefore follow that the Commissioner of Requests has juris-diction to make an order in respect of a child who is over theage of ten years only with the consent of such child. It wouldtherefore follow necessarily that if the Commissioner does notobtain the consent of a child, if it is over ten years of age, theCommissioner has no jurisdiction to make an order for adoptionand such order is made would therefore be void.
The case record in the adoption proceedings No. 26 C.4t. Kuru-negala has been produced marked PI and P2 which containsthe petition, affidavit, journal entries, ^proceedings' of 29.1.72and the order made on that date. On a perusal of these documentsit is clear there is nothing in the journal entries, proceedings orin the adoption order itself to indicate that the consent of thechild, who was admittedly over ten years – of age, had beenobtained by the Commissioner of Requests in this case.
Counsel appearing for the respondents rely, on section 114 ofthe Evidence Ordinance and referred us to illustration (d) ofthat section. Section 144 of the Evidence Act reads,
“ The Court may presume the existence of any fact whichit thinks likely to have happened, regard being had to thecommon course of natural events, human conduct, and publicand private business in ;heir relation to the facts of theparticular case. ”
This section gives eight illustr?tions marked ‘ a ’ to * h For thepurpose of matters that arise for determination in these procee-dings it is illustration (d), which is the equivalent to the illus-tration (e) in. the Indian Evidence Act, which is material for thepurpose of this case. This illustration reads,
“The court may presume that judicial and official actshave been regularly performed ”.
It is to be noted that section 114 deals with presumptions whichare rebuttable. Section 114 does not lay down any proposition oflaw as such.
Keuneman, J. at page 501 in the case reported in 40 N.L-R. 497stated, “ in considering the facts of that particular case the jour-nal entry of June 30, 1934 reads, ‘ claimant in person—present.Notice served on plaintiff personally—absent. Claim upheld. ’ ”The only presumption is that the claim was upheld because ofthe absence of the plaintiff. But it is argued that by virtue ofsection 114 illustration (d), we must presume that the neces-sary evidence had been adduced by the claimant under section243. But that illustration only raises a presumption as to theregularity of official acts. I think it is not possible to state it to
ISMAIL, J.—Menikhamy and others V. Podi Monika and others
a presumption that all the necessary evidence has been takenbefore an order is made, of the dictum of Woodroffe, J. in Naren-dra Lai Khan v. Joge Hari.
“The meaning of section 114(e) of the Evidence Act isthat if an official act is proved to have been done, it will bepresumed to have been regularly done. It does not raise anypresumption that an act was done, of which there is no evi-dence and the proof of which is essential to the plaintiff’scase
Monir in his Principles and Digest of the Law of Evidence, 4thEdition, Vol. 2, page 676 states,a
“ A presumption that an act was regularly done arisesonly on proof that the act was in fact done, as the presump-tion is limited to the regularity of the act done and does notextend to the doing of the Act itself ”
He has at footnote 24 orf the same page referred to several.Indian authorities in support of this. He proceeds to say,
“In other words, the presumption that may be raised isthat the act if proved to have been done was done in a regu-lar manner. There is no presumption that an a.ct was done, ofwhich there is no evidence and the proof oi' which is essen-tial to the case raised. ”
Ratanalal and Thakore in Law of Evidence 13th Edition at page250 referring to illustration (e) states,
“ The rule embodied in this illustration flows from themaxim ‘omnia praesianuntnr rite et solem-niter esse actai.e., all acts presumed to have been rightly and regularlydone. The true principle intended to be conveyed by therule, ‘omnia praesumuvtur rite et solemniter esse acta/….seems to be, that there is a general disposition in courts ofjustice to uphold official, judicial, and other acts, rather thanto render them inoperative ; and with this in view wherethere is general evidence of acts having been legally andregularly done, to dispense with proof of circumstances,strictly speaking essential to the validity of those acts, andby which they were probably accompanied in most ins-tances, although in others the assumption rests solely ongrounds of public policy. The Court can make a presumptionthat official acts have been regular^ performed. Whether apresumption should or should not be made must dependUDon the particular circumstances of each case.
ISMAIL, J.—Menikhamy and others v. Podi Menika and others
Where under an Act certain things are required to bedone before any liability attaches to any person in respect ofany right or obligation it is for the person who alleges thatthe liability has been incurred to prove that the things pres-cribed in the Act have been actually done. No presumptioncan be made in favour of the things prescribed by the Acthaving been done. If, for example, publication of-a notice wasessential under an Act in order to bind a'person, such publica-tion must be distinctly proved.”
Similarly Woodroffe and Ameer Ali in Law of Evidence 13th Edi-tion Vol. 3 at page 2597 after making references to the authoritiesstate,
“There is a presumption of regularity in respect ofofficial and judicial acts, and it is for the party who challengessuch regularity to plead and prove his case. The meaningof this illustration is that if an official act is not proved tohave been done, it will be presumed to have been regularlydone. It does not raise any presumption that an act was done,of which there is no evidence and the proof of" which isessential to the plaintiff’s cases. If a judicial or official actis proved to have been done, it will be presumed to have
been regularly done The illustration does not say
that it may be presumed that any particular judicial orofficial act has been performed. No doubt when the onlyevidence is that a particular judicial or official act has beenperformed and there is no other evidence on record, it maybe presumed that any particular judicial or official act wasregularly performed. But when the dispute is whether aparticular judicial act was performed or not, there is nothingin law which enables a Court to presume that that act was,as a matter of fact, performed. ”
Again at page 2602 it is stated,
“ Although there is a presumption that official acts havebeen regularly peformed, and that they have been performedin accordance with rules and regulations bearing on thesubject, yet this is a rebuttable presumption. In fact, it isleft to the Court to raise that presumption or not, havingregard to the peculiar facts and circumstances of each case. ”
The question that arises for consideration in these proceedingsis whether by reason of the presumption arising from applicationof illustration (d) to section 114 of the Evidence Act when thereis no indication whatsoever in the record itself of the consent ofthe minor having been obtained as required by section 3 (5),whether it can be presumed that die consent of the minor had
ISMAIL, J.—Mcnikltamy and others v. Podi Menika and others
In point of fact been obtained by the Commissioner of Requests.
If, for instance, it is recorded that the consent of the minor wasin fact obtained then the presumption would only arise that theconsent of the minor had been duly obtained in the course of theproceedings had before the Commissioner of Requests. Then theburden shifts to the party who avers that such consent had notbeen obtained to rebut the presumption arising under the sectionand indicate to Court that such consent was in fact not obtainedby the evidence or other circumstances. In the present instancehowever there is no indication whatsoever that an expressrequirement of the law as required by section 3 (5) had beencomplied with.
In my opinion therefore the presumption that arises underillustration 114 (d) of the Evidence Act cannot be invoked toprove the act which is not proved to have been done in a regularmanner, had in fact been done. There is no presumption that theconsent had been obtained when there is no evidence whatsoeverof such consent having been obtained and proof of the obtainingof the consent is necessary for the respondent’s case. The obtain-ing of the consent of the minor in question was a judicial actwhich had to be done. In this instance there is no indication of thisconsent having been obtained. I do not think therefore that thepresumption arising under section 114(d) can be extended to asituation as in this instance. In the absence of evidence toindicate the obtaining of such consent, if there was an indicationin the record itself that the consent had been obtained then onecan draw the presumption or inference that such consent hadbeen obtained regularlyyIt is therefore my view that the pre-sumption arising under section 114(d) would not be applicableto the facts of this case.
Since it is an imperative requirement under section 3 (5) thatthe consent of the minor had to be obtained it cannot be leftin the realms of surmise of speculation as to whether suchconsent had been obtained or not. It is therefore my view thatsince the order for adoption was made without such consent theCommissioner of Requests had no jurisdiction to make the orderfor adoption. Therefore, I am of the view that the adption orderin question is void ab initio.
I am in agreement with the view of Udalagama, J. that a voidorder as in this instance can be collaterally attacked. Udalagama,J. has referred to the authorities on this aspect of the matter andI am in agreement with this view. I
I would therefore allow the appeal in this case setting asidethe order of 7.5.71 made by the District Judge and dismiss theapplication of petitioner-respondent for letters of administration
TITTAWEXiiA, J.—Menikham.y and others v. Podi Menika and others 41
to the estate of the late J. M. Punchiappuhamy on the footingthat the petitioner-respondent is not a legal heir of the deceasedJ. M. Punchiappuhamy. The 1st, 2nd and 7th respondents will beentitled to costs of appeal and costs in the lower Court.
I have had the advantage of reading the judgement of JusticeUdalagama with which Justice Ismail has agreed. I find myselfunable to agree with the reasons and conclusions reached bythem. "I have therefore set down my views for dismissing theappeal with costs.
One Jayasundera Mudiyanselage Punchappuhamy (herein-after referred to as Punchappuhamy) died intestate leaving alarge estate. Podi Menike the respondent to this appeal claimingto be an adopted child and the sole heir of Punchappuhamymade application for letters of administration. The appellantswho are the mother of the deceased and children of thedeceased’s uncle objected on a number of grounds the main onebeing that the adoption order was invalid. After-inquiry—thelearned District Judge dismissed the objections holding that theadoption order was valid. Against this the appellants have nowappealed and the validity of the adoption order was the onlymatter argued before us.
The surrounding facts pertaining to this matter are relevantand they are set down briefly. Punchappuhamy was married toone Podihamine and they did not have any children. Podimenikethe respondent to this appeal was born on the 7th September,1941. Her mother one Punchi Menika died about ten days laterleaving the father one Ukku Banda with three other childrenbesides her. A few days later Podimenike was handed over toPunchappuhamy and his wife to be adopted as their child. Aboutten years later, on the 23rd. January', 1952, Punchappuhamy andhis v/ife made an application to the Commissioner of Requests,Kurunegala, for the issue of an adoption order under the provi-sions of the Adoption of Children Ordinance. Podimenike wasthen 'about 10 years and 4 months old and she had been livingthroughout with Punchappuhamy and his v/ife.
An inquiry into the matter of adoption was held on the 29thJanuary, 1952. Punchappuhamy, his wife and Ukku Banda,the father of Podimenike testified at this inquiry. In his evidencePunchappuhamy stated that the child Podimenike had beenbrought up by them from the time when she was about 15 daysold. At the time of the inquiry Podimenike was 10 years and4 months old. Punchappuhamy stated that he was possessed of
42 TITTAWELLA, J.—Mcnikhamy and others v. Podi Monika and others
considerable property and that he wished the child to be givenhis ge name “ for the purpose of inheriting his property Podi-menike’s father consented to this adoption. The Commissionerin an order made on the same day allowed the application foradoption, and also the application for Podimenike the adoptedchild to use the ge name of the adopter Punchappuhamy. Atthe end of his order there is a direction that the Registrar-General should make the appropriate entry in the AdoptionRegister. It would appear that the Registrar-General has com-plied with the direction.
After Punchappuhamy’s death the application for letters ofadministration came up for inquiry before the District Judge ofKurunegala on the 7th May, 1971. Podimenike the petitionerwas then 30 years old and married. TThe following issues wereraised at the inquiry and both were answered in the affirmative :(a) Whether the petitioner is the legally adopted child ofthe deceased Punchappuhamy ;
(bj If so is she the sole heir of the deceased.
Podimenike the sole witness at this inquiry stated in evidencethat at the time of her adoption she was over ten years of age.She also said that the Judge asked her whether ^he consentedto the adoption and that she had answered in the affirmative.It was argued in the District Court that the child at the time ofadoption being over ten years old it was imperative under section3 (5) of the Adoption Ordinance that the consent should be ob-tained. It was urged that this had not been done and it wascontended therefore that the adoption order was bad in law.
It is this same matter that has been advanced in appeal.Reamed Counsel for the appellant has referred us to the proceed-ings in the adoption inquiry and in particular to the formalorder of the learned Commissioner and his reasons for making it.Nowhere in the proceedings is it recorded he submits that theconsent of the child who was ten years at that time has beenobtained. He draws our attention to section 3 (5) of the AdoptionOrdinance which stated : —
An adoption order shall not be made in respect of-a childover the age of ten years except with the consent of suchchild.
He also draws our attention to section 4 (a) of the Ordinancewhich is tc t'he effect that the court before making an adoptionorder shall be satisfied that every person whose consent isnecessary has consented to and understands the nature and effectof the adoption order for which application is made. It is sub-mitted that the Commissioner who made the adoption order
T1TTAWELLA, Z.—Mcnikhamy and others v. Podi Menika and others43
failed to appreciate the necessity of these requirements. It isalso submitted that the consent of a child over ten years is man-datory and therefore that the order made without such consentin null and void ab initio. It is further submitted that a courtmaking an order without such consent being obtained actswithout jurisdiction resulting in the consequent orders being voidand of no legal effect.
From all the material in these proceedings one incontroverti-ble fact emerges. Nowhere in the adoption proceedings has itbeen expressly recorded that the consent of the child has beenobtained. It does not however necessarily follow from this thatsuch consent had not in fact been obtained.
At the inquiry into the application for letters of administrationthe respondent has been questioned regarding the adoptionproceedings in following manner. In examination-in-chief shesaid as follows : —
Q.Were you present in Court when evidence was led inthis case ?
Q.Did the Judge question you ?
Q. Did you answer the questions put to you by the Judge?
A. Yes. I did not object tc the adoption. I consented to theadoption.
Under cross-examination she said :
I do not remember the Judge who made this order but Iremember having come tc this Court. I came along with myfather named Ukku Banda. My mother was not alive. Myfather was Ukku Banda. He gave evidence. I gave evidencein the Court. The Judge asked me whether I consented and
he wrote that out. I remember being questioned
I admitted that I was ten years of age.
Q. Did you consent to this adoption ?
A. Yes, I did.
The circumstances under which the adoption order came to bemade, the relationship between the parties and the recordedmaterial in the adoption proceedings coupled with the evidenceof the adopted child (i.e., the respondent to this appeal) at theinquiry in the District Court leave no doubt on the questionthat the consent of the adopted child had been obtained before
T ITT AWE LX A, J.—Menilchcnny and others v. Podi Menika and others
the adoption order was mode. The fact that the adopted childhad consented has not been so recorded in the adoption proceed-ings is in my view not, in this case fatal. I hold that the adoptionorder is valid and therefore the appeal must be dismissed.
Much argument was addressed to us on the validity of theadoption order, if in fact, the adopted child had not consentedto the adoption. As indicated earlier, learned counsel for theappellants has submitted that the Court in making the adoptionorder then acted without jurisdiction and therefore the adoptionorder is void ab initio, that it is a nullity and is of no legal con-sequence. He submits that this adoption order made without theconsent of the adopted child is such, as if it had never been made.This submission has now to be examined in order to determinewhether the Court acted without jurisdiction as submitted bylearned counsel for the appellants.
Section 13 of the Adoption of Children Ordinance is in thefollowing terms : —
The Court having jurisdiction to make an adoption orderunder this part shah be the Court of Request having juris-diction in the place at which the applicant, or the child inrespect of whom the application is made, resides.
Section 3 of the Ordinance enumerates the restrictions on themaking of adoption orders as follows : —
3(1) An adoption order shall not be made in any casewhere—
the applicant is under the age of twenty-five years, or
the applicant is less than twenty-one years older than
the child, in respect of whom the application is made :
An adoption order shall not be made in any casewhere the sole applicant is a male and the child in respectof whom the application is made is a female, unless thecourt is satisfied that there are special circumstances whichjustify the making of an adoption order.
An adoption order shall not be made except with
the consent of every person or body who is a parent orguardian of the child in respect of whom the application ismade, or who has the actual custody of the child, or who isliable to contribute to the support of the child:"
An adoption order shall not be made upon the applica-tion of one of two spouses without the consent of the other ofthem :
T1TTAWELLA, J.—Menikl.amy and others v. Pcdi Monika and others
An adoption order shall not,be made in respect of achild over the age of ten years except with the consent ofsuch child :
An adoption order shall not be made in favour of anyapplicant who is not resident and domiciled in Ceylon orin respect of any child who is not a British subject and soresident.
There are however provisos to subsections (1), (3) and (4)of this -section indicating the circumstances in which the Courtcould notwithstanding the restrictions contained in thesesubsections.
As mentioned earlier the main argument, of the learned counselfor the appellants is that if the consent of a child over the age often years has not been obtained then the adoption order madein such a case is a nullity for the reason that the Court has actedwithout jurisdiction. Such an order is non-existent in the eyesof the law and can be subjected to collateral attack as has beendone here.
I find myself unable to accept this submission. Jurisdiction to.make adoption orders has been clearly vested in the Court ofRequests of the respective areas under section 13 of the Ordi-nance. The existence of the jurisdiction is clearly in theappropriate Court of Requests hut it is in the exercise of thisjurisdiction when adoption orders are being made that certainrestrictions have been imposed. Failure to give effect to theserestrictions may result in an adoption order being made, whichorder may be set aside in appeal, revision or such proceedings.The order may be voidable but that is very different from sayingthat it is for this reason void ab initio. Such a voidable ordermust be set aside in direct proceedings and cannot be the subjectof collateral attack. Gunasekera, J. in the ease of Weerasooriyav. Controller of Establishments, 51 N.L.R. 189 at 191, has drawnthis distinction between the existence of jurisdiction and theexercise of purisdiction. He refers to a passage in the judgmentin the case of Hriday Nath Roy v. Ram Chandra Bama SarmaA.I.R. 1921 (Calcutta) 34, which brings out this distinctionclearly :
The authority to decide a cause at all and not the decisionrendered therein is what makes up jurisdiction; and whenthere is jurisdiction of the person and subject-matter, thedecision of all other questions arising in the case is but anexercise of that jurisdiction. The extent to which the con-ditions essential for creating and raising the jurisdiction of
T1TTAWJCLLA, J.— fdcuikhamy and others v. Pedi JMcnika and others
a Court or the restraints attaching to the mode of exerciseof that jurisdiction, should be included in the conception ofjurisdiction itself, is sometimes a question of great nicety. .. .
But the distinction between existence of jurisdiction andexercise of jurisdiction has not always been borne in mindand this has sometimes led to confusion
Since jurisdiction is the power to hear and determine, itdoes not depend either upon the regularity of the exerciseof that power or upon the correctness of the decision pro-nounced, for the power to decide necessarily carries with itthe power to decide wrongly as well as rightly. As anauthority for this proposition reference may be made to thecelebrated dictum of Lord Hobhouse in Malkarjun v. Narhari(1900) 25 Bom. 337=27. I.A. 213=3 C. W.N. 10=2 Bom. L.R.927=10 M.L.J. 368=7 Sar. 739 (P.C.) —A Court has juris-diction to decide wrong as well as right. If it decides wrong,the wronged party can only take the course prescribed bylaw for setting matters right; and if that course is not taken,the decision however, wrong, cannot be disturbed. ” LordHobhouse then added that though it was true that the Courtmade a sad mistake in following the procedure adopted,still in so doing the Court was exercising its jurisdiction ;and to treat such an error as destroying the jurisdiction ofthe Court was calculated to introduce great confusion intothe administration of the law. The view that jurisdiction isentirely independent of the manner of its exercise, andinvolves the power to decide either way upon the factspresented to the Court, is manifestly well-founded on prin-ciple, and has been recognised and applied elsewhere
There is a clear distinction between
the jurisdiction of the Court to try and determine a matter,and the erroneous action of such Court in the exercise ofthat jurisdiction. The former involves the power to act atall, while the latter involves the authority to act in theparticular way in which the Court docs act. The boundarybetween an error of judgment and the usurpation of poweris this ; the former is reversible by an Appellate Court withina certain fixed time and is therefore only voidable, the latteris an absolute nullity. When parties are before the Courtand present to it a controversy which the Court has authorityto decide, a decision not necessarily correct but appropriateto that question is an exercise of judicial power orjurisdiction.
TITTAWELLA, J.—Menikhamy -xnd others v. Podi Menika and othersV)
This same distinction has been brought out by Cannon J. inthe case of Ahamado Muheyc&ii v. Thambiappah, 46 N1.R. 370at 371. He cites two passages from the case of The Queen v* TheCommissioner for Special Purposes of the .Income Tax (1888)
21 Q.B.D. 313. and they are reproduced below :
When an inferior court or tribunal or body, which has toexercise the power of deciding facts, is first established byAct of Parliament, the legislature has to consider whatpowers it will give that tribunal or body. It may in effectsay that, if a certain state of facts exists and is shown to suchtribunal or body before it proceeds to do certain things, itshall have jurisdiction to do such things, but not otherwise.There it is not for them conclusively to decide whether thatstate of facts exists, and, if they exercise the jurisdictionwithout its existence, what they do may b'e questioned, andit will be held that they have acted without jurisdiction.But there is another state of things which may exist. Thelegislature may intrust the tribunal or body with a jurisdic-tion, which includes the jurisdiction to determine whetherthe preliminary state of facts exists as well as the jurisdic-tion, on finding that it does exist, to proceed further or dosomething more. When the legislature are establishing sucha tribunal or body with limited jurisdiction, they also haveto consider, whatever jurisdiction they give them, whetherthere shall be any appeal from their decision, for otherwisethere will be none. In the second, of the two cases I havementioned it is an erroneous application of the formula tosay that the tribunal cannot give themselves jurisdiction bywrongly deciding certain facts to exist, because the legis-lature gave them jurisdiction to determine all the facts,including the existence of the preliminary facts on whichthe further exercise of their jurisdiction depends. .
I am therefore of the view that if in this case no- consent hadbeen obtained then the adoption order is only voidable. It cannotbe said that the order was void ab initio. The parties concernedin the order have taken no steps to have it set aside in appropriateproceedings for a period -of .over, ten years. It is now not opento a ’ third party to challenge its validity in collateralproceedings.
The appeals must therefore be dismissed with costs.