034-NLR-NLR-V-04-HETUWA-v.-GOTIA.pdf
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HETUWA v. GOTIA.
0. R., KcgaUa, 3,287.
Kandyan marriage—Ordinance No. 3 of 1870, 3. 25—Validity of associatedmarriages contracted after 1859 and. before 1870.
The effect of section 25 of the Ordinance No. 3 of 1870 is not tovalidate all associated marriages which had taken – place since thepassing of the Ordinance No. 13 of 1859 and before the passing of theOrdinance No. 3 of 1870.
By section 25 of this Ordinance only marriages which are void forwant of registration or by reason of invalid registration are validated,and not marriages which were void as being against the policy of thelaw and which had been expressly forbidden by the law.
A
CTION for a declaration of title to an undivided half shareof a certain land and for quiet possession.
Plaintiffs averred that the land belonged to two brothers,Kiri Bilinda and Pina, who, as associated husbands of one Punchu,had two children, viz., the defendant and another person; thatafter the death of Punchu about the year 1867 Kiri Bilindaand Pina took another wife, Ukku, by whom they had children,viz., the two plaintiffs; and that plaintiffs, while in possession ofan undivided half of the land in question, were wrongfullyousted.
The defendant denied the second marriage, and pleaded thatplaintiffs were the illegitimate children of Pina only.
The Commissioner, after evidence heard, found that the plain-tiffs were not the issue of a “ joint marriage of Kiri Bilinda andPina,” and dismissed plaintiffs’ case.
Bawa, for appellant.—Associated marriages contracted afterthe passing of the Ordinance No. 13 of 1859 and before the passingof Ordinance No.3 of 1870are valid.Thevalidityof Punchu’s
marriagein pointof law was not contested,but theparties con-
fined themselves to the issue whether or not plaintiffs were bornduring the cohabitation of Kiri Bilinda and Pina with Punchu.Section 25 of Ordinance No. 3 of 1870 provides that in all caseswhere a marriage has been contracted since the Ordinance No. 13of 1859 came into force according to Kandyan custom, and whichis void in consequence of the want of registration, such marriageshall bedeemedto be agood andvalidmarriage. Even if
plaintiffswere illegitimatechildren,theycouldinherit the
acquired property of the parents (Perera’s Armour, 34).
In the Court below the parties were content to confine theinquiry to the issue whether plaintiffs were the children or not
1900.July 23.
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1900. of a joint marriage of Kiri Bilinda and Pina. There iB evidenceJuly 28. to Support the affirmative of this issue.
Schneider, for respondent.
Bonsek, C.J.—
I do not quite agree with all the reasons given by the Commis-sioner for dismissing the plaintiffs’ action, but in the result Ithink his decision was right.
It appears that two men, Kiri Bilinda and Pina, were the jointhusbands of one wife at a time when associated marriages werelawful, that is, some time before 1859. In that year an Ordinancewas passed which declared that such unions were contrary topublic policy and could no longer be tolerated, and at the sametime, as the proof of Kandyan marriages was very difficult toestablish, it provided that all future marriages should be cele-brated before a registrar, and should be registered as provided forby that Ordinance, otherwise they were to be invalid. In 1870that Ordinance was amended; but as it was found that manymarriages had taken place according to Kandyan custom, whichwere either not registered or imperfectly registered, it was pro-vided that such marriages should be held to be good marriages;but registration was made necessary for all subsequent marriages.
In the present case the associated wife died many years agoleaving one son, the present defendant. The plaintiffs allege thatat some time between 1859 and 1870 these two husbands took untothemselves another joint wife, Ukku, and that they are theoffspring of this second marriage. The defendant denied this.He said that the plaintiffs were Ukku’s children by Pina alone,and one of the issues between the parties was whether the plain-tiffs were the issue of an associated marriage. The Commissionerfound this issue in the negative, and held that the plaintiffs werethe children of Pina only. But, however this may be, it seemsimpossible to hold that the marriage between Kiri Bilinda andUkku could have had any legal existence. It was stated that thisCourt had decided that the effect of section 25 of Ordinance No. 3of 1870, to which I have referred, was to validate all associatedmarriages which had taken place since the passing of the Ordi-nance of 1859 and before the passing of the Ordinance of 1870. Iadjourned the case to give Mr. Bawa the opportunity to makesearch for any such case. He has been unable to find any decisionto that effect, and I must say that I should be much surprised ifhe had. That section enacts that ‘“in all cases where a marriage“ lias been contracted since Ordinance No. 13 of 1859 came into
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“ force according to the laws, institutions, and customs in force
“ in Kandyshall be valid.” That would include this alleged
marriage to Ukku; but then the section goes on to sny “ and” which is void in consequence either of the want of registration
‘‘or of invalid registration such marriage shall betaken to
“ have been a good and valid marriage.”
It will be observed that the only marriages that are validatedby that section are marriages which are void for want of registra-tion or by reason of invalid registration—not marriages which werevoid as being against the policy of the law and which had beenexpressly forbidden by law. Therefore, I am of opinion that, evenif it could have been shown that Kiri Bilinda and Pina had con-tracted a union with Ukku, which if contracted before 1859 wouldhave been legal as being in accordance with Kandyan customs,that union being contracted after the passing of the Ordinance of1859, was void by the force of that Ordinance, and was notvalidated by section 25 of the Ordinance of 1870. But, if theplaintiffs are, as the Commissioner found, the offspring of Pinaand Ukku, they would be entitled on Pina’s death to a share in hisestate, and therefore the finding that they are not the children ofa joint marriage does not dispose of the case.
Then, there was another issue raised by the defendant, that Behad had, for more than ten years before action brought, sole andundisturbed possession of this land within the meaning of thePrescriptive Ordinance. The Commissioner has found that issuein favour of the defendant. It appears that Pina died about fouryears ago. Fifteen years ago, Kiri Bilinda being then dead, a sortof family arrangement appears to have been made, in consequenceof which Pina and Ukku and their children, the plaintiffs, leftthe family house and went to reside on another land belonging toPina. Pina also transferred, in pursuance of this arrangement,his half share of certain five lands to Ukku and her children.When Pina and his wife and family left the family house, thedefendant was left in occupation of it, and also of the land whichis the subject of the present action.
I do not think it would be right to disturb this arrangement,and I think the Commissioner was justified in finding that thedefendant had acquired a title by possession to this land. Thatbeing so, the appeal will be dismissed.
1900.
July 23.
Bonseb, C.J.