KUMA v. BANDA

092-NLR-NLR-V-21-KUMA-v.-BANDA.pdf


[Full Bench.]
'1M0.
Present : Bertram C.J. and De Sampayo J. andLoos A.J.
KUMA v. BANDA.256—0. B. Anuradhapura, 9,948
Kandyan law—OrdinanceNo,8 of1870—Father’s rightto inherit
acquired property of illegitimate son—History of the Ordinance maybe looked at in order to interpret Ordinance—The materials whichmay be used for ascertaining that history.
Children who might nnder the acient Kandyan law be consi-dered legitimate can no longer claimthat status ifthe marriageof
their parents has not been registered, and if nnder the Kandyanlaw illegitimate children in any given case have rights of inheri-tance, they have the same rights now, bat not otherwise.
A father of an illegitimate childhasnorightofsuccession tothe
acquired property of such child.
Bor the purpose of construing an Ordinance where the meaningof it is doubtful, andevenwherea doubt is suggested,though not
entertained, it is legitimate to inquire into its history.
Bertram C.J.—If forthepurposeof ascertaining thehistory of
an enactment we may look atthereport oftheBoyal Commission –
on which it is founded, and at the report of a Select Committeeantecedent to its N introduction, I see no reason why we may notrefer to the report of a Select Committee to which the .measure wasreferred for consideration, in sofarasthatreport deals withthe
history of the question out of which the legislation arose.
■"pHE facts appear from the judgment of De Sampayo J.
Bawa, K.G. (with him We erasing he), for defendant, appellant.—The non-registration of a marriage between Kandyans doesnot affect the mutual rights of inheritance between parents andchildren. Under the old Kandyan law a child had full rights ofinheritance if his parents were of equal rank and had cohabitedtogether with the consent of their relatives. The fact that thecustomary marriage ceremonies were not,performed, and that therewas consequently no legal marriage, did not deprive the child ofhis rights. Bights of inheritance between parents and childrendepended not on the legal validity of the parents’ marriage, but onparentage, subject to the requirements as to equality of rank andfamily Consent. If these requirements were fulfilled, the childrenwere legitimate. It is with reference to these requirements thatthe terms “ legitimate ” and “ illegitimate ” are defined in theNitiniganduwa, where the rule is stated that a father cannot inheritthe property of- his illegitimate child. The Kandyan conception of
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legitimacy cannot be separated from the rules of inheritance.- Weare not justified in importing a conception of legitimacy foreign tothe Kandyan system of law into these rules.
When Ordinance No. 3 of 1870 declared that no marriage shallbe valid unless registered, it had in mind the validity of the marriageas between the spouses. If the Legislature had intended to takeaway the rights of inheritance of persons who had such rights underthe Kandyan law, it would have done so in express terms. Thereis no reference in the Ordinance to rights of inheritance. It hasalways been recognized that the Kandyan rules of inheritance havebeen unaffected by legislation. (See Raja v. Elisa, Modder, p. 510.)
That the non-registration of a marriage does not affect questionsof inheritance is illustrated by the forfeiture which operates on thediga marriage of a daughter. Though such marriage is invalidthrough non-registration, the daughter loses her rights of inheritance.(Sec. 2 G. L. R. 54.)
According to Kandyan law, when a son dies issueless, his propertygoes to his nearest blood relation, i.e., to his father, unless thechild be the issue of a prohibited union, and illegitimate childrensucceed to their father's property. Appuhamy v. La-pay a;1 In rethe estate of Sundara;1 2 Ran Menilca v. Menik Etana.3 Father’sright to inherit is not affected by formalities attendant on marriage.
Counsel also cited Modder, p. 391; In re the Estate of PunchiBanda; 4 Ranhotia v. Biinda; 5 Punchirala v. Pereira. *
H. V. Perera, for plaintiff, respondent.—Though the old Kandyanrules of inheritance have not been changed by legislation, the effectof the alteration of the marriage laws is to alter the operation ofthose rules. The rules of inheritance define the persons who areentitled to succeed to the property of a deceased person by referenceto the legal relationship they bear to him. ‘ Legal relationshipdepends on legitimacy, which is a corollary of marriage. The soletest of the legitimacy of children is the validity of the marriage oftheir parents. The persons described as legitimate in the Nitini-ganduwa and other books on Kandyan law are in every case thechildren of a marriage which was valid under the Kandyan customarylaw. Where persons of the same caste and rank cohabited togetherwith the consent of their relatives; their issue were consideredlegitimate, for the simple reason that such cohabitation constituteda lawful marriage. (See Armour 6 and Sowers 33 cited in Modderat p. 249.)
Ordinance No. 3 of 1870 abrogates the old laws of marriage andmakes registration the sole test of the validity of marriage andconsequently of legitimacy. There was no necessity to state in
1(1905) 8 N. L. B. 328.
2(1907) 10 N. L. B. 129.
2 (1907) 10 N. L. B. 153.
(1907) 2 A. O. B. 29.l(1909) 12 N. L. B. 111.
(1919) 21 N. L. B. 145.
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1980. express terms that such- registration was to be the sole test of——legitimacy. Illegitimacy is involved in the conception of an invalid
marriage. Even if the Kandyan idea of illegitimacy was different,we are here dealing with an Ordinance of 1870, and must give thewords used by the legislator the ordinary meaning that they bearin British legislation. That the Legislature intended to make• legitimacy depend on registration is indicated by the provisions ofsections 24 and 80.
. The history of the Kandyan Marriage Ordinances shows that themain object of the Legislature was to do away with the uncertaintyas to rights of inheritance arising out of the complications of Kandyanmarriage by providing a uniform test of the validity of marriage.
It was clearly recognized that the effect of non-registration was tobastardize the children. Modder, pp. 222-226.
' The conditions under which a diga marriage works a forfeiturebear no analogy to the conditions determining legitimacy. A defacto diga marriage works a forfeiture because the incident on whichthe forfeiture is based is not the marriage, but the severance of thedaughter’s connection with mulgedera. Punchimakatmaya v-Charlie-1
The effect of giving the children of unregistered unions full rightsof inheritance would be to raise concubinage to the level of a legalmarriage and practically to legalize polygamy.
Counsel also cited Banda v. Banda; 2 Vkku v. Kirihonda: 3 and196 D. C: Kcgalla, 4,968.*
Bawa, K.C., in reply.—The provisions of sections 24 and 30 ofOrdinance No. 3 of 1870 as to the legitimization of children by theregistration of marriage have merely the effect of enlarging theclass of persons who are regarded as legitimate in Kandyan law.Nowhere in the Ordinance is it laid down that registration is theonly source of legitimacy.
Cur. adv. vult.
February 13, 1920. Bektram C.J.—
This case raises a fundamental point in the Kandyan Law ofInheritance. The question we have to determine arises upona very bold and paradoxical contention raised by Mr. Bawa. Itis nothing less than this, that, in spite of the Kandyan MarriageOrdinance, No. 3 of 1870, the mutual rights of inheritance betweenparents and children do not depend upon the question whetherthe union of the parents was registered as a marriage under thatOrdinance, but rather upon the question whether that union wasin accordance with the principles of Kandyan customary law.He maintains that, when the Ordinance enacted that the validityof a marriage should depend on its registration, it had in mind
1 (1908) 3 A. C. R. 89.» (1902) 12 N. L. B. 104.
1 {1916) 19 N. L. B. 126.‘ S. C. M. Oet. 3,1919.
validity simply from the point of view of the wife. It was notintended, so he suggests, to affect the legitimacy of the childrenof the marriage or their rights of inheritance. To put the matterin another way, he would say that, though registration of a marriagewould of itself insure legitimacy to the children bom of thatmarriage, such registration is not the only source of legitimacy,and that the children bom even of an unregistered marriage arelegitimate (or deemed to be legitimate), if the customary require-ments of the Kandyan law^have been observed.
This proposition is so surprising that it would seem hardly tobe arguable. But it has, in fact, been argued 'and must be con-sidered. There is no actual authority cited for the proposition.The only semblance or shadow of authority which can be foundis a dictum by my Brother De Sampayo in a case reported inModder’a Kandyan Law page 510, Baja v. Elisa,1 to the effectthat '* British legislation has, no doubt, provided a uniform andcompulsory form of marriage for the Kandyans, but the principlesof inheritance to be found in the ancient Kandyan law remainunaffected. ” This dictum, however, if properly understood,contains nothing to support Mr. Bawa’s contention. Nor is thereanything to support Mr. Bawa in the Ordinance itself. Primd.facie, and unless some necessity is shown for a different construction,when the Ordinance in section 11 says that no marriage shall be“ valid ” unless registered, it means, “ valid ” not only from thepoiut of view of the status of the wife, but also from the point ofview of the legitimacy of the children. Legitimacy, in all Englishlegislation on the subject (and, indeed, in all civilized legislation),has always been a corollary of marriage, and inheritance, subjectto special exceptions, always depends on legitimacy. Underthese exceptions—sometimes customary, sometimes statutory—an illegitimate child may have certain rights of inheritance, butthis does not affect the main position. Mr. Bawa, however, seeksto impute a special construction of the Ordinance, from a con-sideration not of the words of the Ordinance, but of the historyof the subject to which it relates, and not the whole history, but apart of it only, and, further, as I propose ultimately to show, upona misconstruction of that part.
The basis of his whole case is a suggestion that in the Kandyanlaw inheritance did not depend upon legitimacy, and that undercertain circumstances children who were not legitimate were inthe same position from the point of view of inheritance as thosewho were. Presupposing, therefore, this special class of children,who, though not legitimate, were entitled to inheritance, he suggeststhat the whole method of stating the legal position should berevised. Inheritance, he says, should be considered as dependingnot upon legitimacy, but upon parentage, unless there is something
1 S. C. Civ. Min, May 27,1913.
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in the mutual position of the parents (as regards caste and familyconsent) which disentitles their offspring to succeed to them, orthem to succeed to their offspring. The proposition that inKandyan law there existed a special class of children, who, thoughnot legitimate, were entitled to full rights of inheritance, is to mymind at least, dubious. But, whether it is dubious or not, Ipropose to show that if the whole history of the subject be examined,and if the words of the Ordinance are construed in the light of thishistory, it will appear that its intention was that legitimacy was tobe dependent upon registration of marriage, and that (subject tothe special rights of illegitimate children as illegitimate children)inheritance was to be dependent upon legitimacy.
Before we address ourselves to this subject, it is essential, in thefirst instance, to determine to what extent we are entitled to lookat the history of the Ordinance ,-in order to interpret its provisions,and what materials we are entitled to use for the purpose of ascer-taining that history. This question is considered by Wood BentonJ. in Babappu v. Don Andris.1 For the purpose of this case,I think, that it requires further examination, to which I willaccordingly submit it.
The materials available for the purpose of ascertaining thehistory of this Ordinance consist of certain despatches, a minuteby the Governor, a series of reports by public officers publishedin the form of Sessional Papers, the preamble to Ordinance No. 13of 1859, and the report of the Select Committee of the Legislatureupon the Ordinance of 1870.
It is settled by a series of weighty authorities that for the purposeof construing an Ordinance, where the meaning of it is doubtful,and even where a doubt is suggested, though not entertained, it islegitimate to inquire into its history. The first of these authoritiesis Heydon’s Case,2 decided in the 26th year of the reign of QueenElizabeth, and reported in 3 Coke. Certain general rules werethere laid down by the Judges of the Court of Exchequer. It wasresolved that “ for the sure and true interpretation of all thestatutes …. four things are to be considered: —
“ First.—What was the common law before the making of theAct?
“ Second.—What was the mischief and defect for which thecommon law did not provide?
“ Third.—What remedy the Parliament hath resolved andappointed to cure the disease of the Commonwealth?
“ And Fourth.—The true reason of. the remedy.
It was added, in words that have a special applicability to thepresent case, that it was the office of all the Judges to make suchconstructions as shall “ suppress the mischief and advance theremedy, ” and to “ suppress subtle inventions and evasions for
continuance of the mischief. ”
i (1910) 13 If. L. R. 213.
2 (1584) 3 Coke 637.
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Another early authority is Stradling v. Morgan. 1 This is cited andexpounded by Lord Justice Turner in Hawkins v. Oathercole.* Itwas an interpretation o£ an Act of Parliament {1 & 2 Victoria, c. 110),which made a registered judgment operate under certain circum-stances as a charge upon an ecclesiastical benefice. In summing upthe position, Lord Justice Turner says: “ In determining the questionbefore us, we have, therefore, to consider not merely the words ofthis Act of Parliament, but the whole intent of the Legislature,to be collected from the cause and necessity of the Act being made,from a comparison of its several parts, and from foreign (meaningextraneous) circumstances so far as they can justly be consideredto throw light upon the subject. ”
In 1868, in another well-known case, The Attorney-General vSillem, * Bramwell B. stated the position with rather less emphasis:“ It may be a legitimate mode-of determining the meaning of adoubtful document to place those who have to expound it in thesituation of those who made it; and so, perhaps, history may bereferred to to show what facts existed bringing about a statute,and what matters influenced men’s minds when it was made.
Lord Blackburn in 1873, in the House of Lords, delivering ajudgment in the case of River Wear Commissioners v. Adamson *said:“Jp all cases the object is to see …. what the circum-
stances were with reference to which the words were used. ’’ LordHalsbury in Herron v. Rathmines and Rathgar Improvement Com-missioners5 emphasized the legitimacy of considering “ the subject-matter with which the Legislature was dealing, and the facts existingat the time with respect to which the Legislature was legislating.The most forcible recent expression of the principle is to be foundin what is known as the “ Solio ” case in Lord Halsbury’s judgment.*
“ It appears to me that to construe the statute now in question,it is not only legitimate, but highly convenient, to refer both to the^former Act and to the ascertained evils to which the former Acthad given rise, and to the later Act which provided the remedy.
An interesting exemplification of this principle has reached us inthe last few days. In his judgment in the case of The Attorney-General v. Brown,7 of which at present we have only a newspaperreport, Sankey J., in deciding that section 43 of the Customs Con-solidation Act of 1876 did not give the Government general powersto prohibit imports, used these expressions:“ But from 1845
onward a great change came over the country, a change in thedirection of Free Trade. ” Beferring to the Customs – Act of 1853,he said: “ It rang out the old and rang in the new . . . •It is the Magna Charta of Free Trade, ” and' further, “ could
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– i Plowden 204.* (1877) 2 A. O. 743.
*6 DeO.Jll.dk 0.1.* (1892) A. O. 498.
1 (1863) 2 H. AO. 431.• (1898) A. 0. 576.
7 Not reported yet.
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Parliament ever have intended, at the moment of the birth of FreeTrade, to hand over to the Executive an absolute power to prohibitthe importation of every and any article? ”
The reason for the principle is clearly explained by Jessel M. K.
in Holme v. Guy :1 “ The Court is not to be obliviousof
the history of law and legislation. Although the Court is not atliberty to construe an Act of Parliament by the motives' whichinfluenced the Legislature, yet when the history of law and legis-lation tell the Court …. what the object of the Legislaturewas, the Court is to see whether the terms of the section are suchas fairly carry out that object and no. other, and to read the sectionwith a view of finding out what it means, and not with a view toextending it to something that was not intended. ” In other words,history is not. to be used for the purpose of controlling the inter-pretation of a statute, which must in every case depend on theactual words used, but for the purpose of suggesting the trueinterpretation of the words and for dissipating fallacious suggestionsengendered by a partial consideration of the subject only. Thetest of any suggested interpretation must be the words of theenactment itself. The source of the suggested interpretationneed not necessarily be the words themselves, but may be derivedfrom extraneous and concomitant circumstances. There is always,of course, a danger that, instead of acting in this way, theCourt “ may make out the intention from some other sources ofinformation and then construe the words of the statute so as tomeet the assumed intention ” (Per Pollock O. B. in The Attorney-General v. Sillem,2 page 514), but this is a danger against which itis possible to take intellectual precautions.
• The next question we hav.e to consider is the materials to whichwe are entitled to refer for the purpose of considering the historyof an enactment. These are very wide, and have in modem times,been distinctly, enlarged. In the important case of The Attorney-General v. Sillem, 2 which was decided at the time of the AmericanCivil War, and Was a decision on the Foreign Enlistment Act (59Geo. Ill, c. 59), both sides referred to diplomatic correspondenceat the time of the passing of the Act, the circumstances attendingits passing as described in Allison’s History of Europe, the speechof Sir S. Shepherd in introducing the bill, the speeches of Canningand of Huskisson. who was a minister when the Act passed, in sub-sequent Parliamentary debates.. The Judges referred somewhatcharily to some of these materials, Pollock C. B. observing that“ in order to' have a comprehensive view of the whole subject,it may be ‘ ‘ useful to become acquainted with the history of thestatute. ” Pigott B. said: “ Certainly I do not consider myself atliberty to look upon them in any other light, except as matters ofhistory as to the state of our law at the date of this statute. I
1 5 Ch. D. 90S.* (1863) 2 H. & C. 431.
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itlude to the debates' in Parliament, the correspondence of Englishand American Ministers of State, Mr. Hamilton’s Buies of 1798,and the writings of modern historians.” All the Judges, whileemphasizing the principle that the interpretation of a statute mustdepend on its actual terms, listened to these materials and tookgeneral note of them. Similarly, Wood Benton J. and MiddletonJ. in Babappu v. Don Andris1 thought themselves entitled toread the despatches interchanged between the Governor and theSecretary of State and the legal opinions of the Law Officers of theCrown embodied therein.
At one time it was thought that it was not legitimate to referto reports of Boyal Commissions on which legislation was based.There are emphatic protests against such references by eminentJudges, e.g., Pollock C- B. and Parker B. in Martin v. Hemming. aCf. also Ewart v. Williams. 3 But these have now been supersededby the judgment of the House of Lords in the “ Solio” case, *■where Lord Halsbury, dealing with the Patents, Designs, and TradeMarks Act of 1888, which was founded on the report of a BoyalCommission, said: “ My Lords, I think no more accurate sourceof information as to what was the evil or defect which the Act ofParliament now under consideration was intended to remedy canbe imagined than the report of that Commission. ” In a previouscase, Wigram v. Fryer,3 the act under consideration had beenpreceded by the report of a Select Committee of the House ofCommons, and a reference to that report was made in the preamble.North J., in delivering judgment, said: " So far as the report of theSelect Committee is recited in the Act, the recommendations con-tained in it are of the utmost importance in considering what theeffect of the Act is. They state what the difficulties are. ” Inview of the judgment in the “ Solio ” case, it may now be takenthat the report of a previous Select Committee may be referred to,whether it is cited in the preamble or not. We may take it, there-fore, that it is legitimate for us to refer to official correspondenceand to officially published reports of Government Officers (whoare in the same position as Boyal Commissioners), as well as tomatters of ordinary public knowledge.
The only further question we have to consider is, whether it islegitimate to refer to the report of a Select Committee not madeantecedently to the legislation, but made upon the terms of theOrdinance itself? This is an incident of “ Parliamentary history.”and it is sometimes suggested that there is a principle which abso-lutely forbids any reference to Parliamentary proceedings for thepurpose of the construction of a legislative enactment. There areseveral dicta which point very strongly in this direction, e.g., per
im
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1 (1910) 13 N. L. R. 273.3 (1854) 8 Drew. 21.
1 (1854) 18 Jur. 1004.* (1898) A. O. 576.
5 (1887) L. R. 36 Oh. D. 99.
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Lord Coleridge in R. v. Hertford College1 (“ The Parliamentaryhistory of a statute is wisely inadmissible to explain it ”), and perLord Halisbury in Herron v. Rathminee and Rathgar ImprovementCommissioners.2 But if the actual cases be examined, the impres-sion produced is by no means the same as that derived from a mereperusal of the text books, and it is certainly not the case that theprinciple is established for all purposes and without qualification.
The incidents generally discussed are:—
The speeches made in introducing a bill.
Speeches made in subsequent debates.
Amendments made in Committee.
Such an incident as the considered report of a Select Committee, towhich the bill is referred for report, has no customary parallel inEnglish Parliamentary proceedings.
With regard to the, introductory speeches, it may be noted thatevidence of this sort was accepted in the case of The Attorney-General v. Sillem 3 “ in order to have a comprehensive view of thewhole subject,” and these speeches were referred to as part of thehistory of the case, as, for example, in Bramwell B’s judgment onpage 539. In 1862. Lord Westbury, a very eminent authority,thought himself justified, when discussing the Brankruptcy Act of1861, which he would appear himself to have drafted or settled asAttorney-General, in referring to the speeches of the membersof the House of Commons who introduced the bill of 1860, and thebill which afterwards became law in 1861, for the purpose of ascer-taining the “ state of the law which I have described and the com-plaints made of it hoth on the one ground and on the other,” adding,
“ I do this for the purpose only of putting the interpreter of the lawin the position in which the Legislature itself was placed, and this is -done properly for the purpose of gaining assistance in interpretingthe words of the law, not that one will be warranted in giving tothose words any different meaning from that which is consistentwith their ordinary signification, but at the same time it maysomewhat assist in interpreting those words, and in ascertainingthe object to which they were directed.” He added that he hadendeavoured “ to consider the language as if it were now presentedto me for the first time.” So also in The South Eastern RailwayCompany v. The Railway Commissioners, 4 Cockbum C.J. referredto the object of the Act as explained on its introduction by Mr.Cardwell, and also the justification of its provisions advanced bythe Lord Chancellor in the House of Lords. On the other hand, "itwill be noted that attempts to introduce references to Parliamentarydebates on controversial points arising under modem educationallegislation have been resisted. In R. v. West Riding of Yorkshire
1 (1878) 3 Q. B. D. 707.• (1892) A. C. 498.
» (1863) 2 H.&C. 431.* (1880) 6 Q. B. D. 231
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County Council, 1 Farwell L. J. declared that the Court would notbe justified in admitting as evidence speeches made in either House.It does not appear what was the nature of the speeches, that is tosay, whether they were introductory speeches and for the purposeof explaining the position with which the Act had to deal, or whetherthey were of a controversial nature. In a subsequent case, B. v.Board of Education, 2 Lord Alverstone C.J. said that the Court hadnot taken into consideration in the least the speeches made inParliament, and referred to in the affidavits on which the rules weremoved- These were speeches made in the course of the debate onthe address, and were not speeches on the. bill itself. TheChief Justice added: “ I express no opinion as to whether in a propercase a statement of facts might be proved from speeches in Parlia-ment. ” It may be taken, therefore, that it is still an open questionwhether speeches in the Legislature, made for the purpose ofexplaining the historical situation with which a statute is intendedto deal, are admissible as part of the history of the subject.
Next with regard to the proceedings in Committee. Referencesto these have been excluded by several authorities. The first wasas early as 1769 in the case of Miller v. Taylor, 3 where Willes J.,discussing the first of the Copyright Act of Queen Anne, said:" The sense and meaning of an Act of Parliament must be collectedfrom what it says when passed into a law; and not from the historyof changes it underwent in the House where it took its rise.” Thelearned Judge did, in fact, nevertheless discuss the proceedings inCommittee, and the changes which were brought in Committee, andexplained that they justified his decision. So also, as a matter ofhistory, and not for the purpose of controlling their interpretation,the learned Judges in the case of The Attorney-General v. Sillem *allowed it to be explained to them that all the trouble about theinterpretation of the Act was caused by the introduction of certainwords by a member “ not originally a friend of the bill.” ButPollock C. B. was careful to add that “ neither this Court nor anyother Court can construe <ny statute, and least of all a criminalstatute, by what counsel are pleased to suggest were alterationsmade in Committee by a Member of Parliament, who was ‘ no friendof the bill,’ even though the Journals of the House should give somesanction to the proposition. ” In Hudson v. Tooth, s dealing withthe Public Worship Regulation Act, Mellor J. said: “ When werecollect how the Act came to be passed, the circumstances underwhich it went through Parliament, the criticism which it underwent,and the protections which it was supposed were inserted in it, Icannot doubt that the origin of this provision was this.” Inanother ecclesiastical case, Herbert v. Purchae,? the Lords of the 1 2
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1 (1906) 2 K, B. 676.* (1863)2 H. & O. 431.
(1909) 2 K. B. 1072.* (1877)3 Q. B. D. 55.
24 Burr. 322.* (1871)3 P. C. 648.
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Privy Council referred to conferences between the House of Lordsand the House .of Commons in the reign of Queen Elizabeth on theAct of Uniformity, not with reference to the particular provisionof that Act under consideration in that case, but for the purpose ofindicating the temper of Parliament with regard to the wholesubject.
I have cited these cases for the purpose of considering whether it -would be legitimate to refer to the report of the Select Committee cmthe Kandyan Marriage Act of 1870. It appears to me that just as ina proper case it might well be that (in the words of Lord Alverstone)
“ a statement of fact might be proved from speeches in Parliament/'so a statement of fact (i.e., of the history of the question leading upto the law) might well be proved by a statement recorded in thereport of a Select Committee on the law itself. If for the purposeof ascertaining the history of an enactment, we may look at thereport of the Royal Commission on which it is founded (the Soliocase *) and at the report of a Select Committee antecedent to itsintroduction (Wigram v. Fryer 2). I see no reason why we may notrefer to the report of a Select Committee to which the measure wasreferred for consideration, in so far as that report (and for thepurpose of this case it is not necessary to go further) deals with thehistory of the question out of which the legislation arose. I propose,therefore, to refer to it.
I will now proceed to examine the whole history of this question.Under the original Kandyan law, marriage, which involved noelement of a religious nature, was contracted in various ways. Itsvalidity depended not so much on the observances of any specialrites or customary ceremonies, but on the status of the contractingparties and on family consent. Among the higher classes it wasaccompanied by long, expensive, elaborate ceremonies. (SeeArmour, -page 10; Modder’s Kandyan Law, page 248.) These cere-monies were not possible for the general' body of the people,and there was another form of marriage accompanied by less exactingobservances. (See Sawer’s Digest of Kandyan Law quoted inPer era’s Collection, page 109.)
There was also a third form of union, in which no special cere-monies were observed, but in which the parties simply cohabitedtogether. This union is referred to in Armour, page 13, and inSolomon's Manual, quoted in Perera, page 163, as “ concubinage,"and it has, therefore, been doubted whether it was, in fact, amarriage. It appears, however, from both the passages cited thatthere was no difference between the effect of such a union and thatof a more regular marriage. The union is “ considered as amarriage,’’ and the issue bad “ all the privileges of legitimatechildren.” It is not‘necessary for the purpose of this case to decidethis point, mid I speak with an imperfect acquaintance with
* (1887) L. R. 36 Ch. JD. 99.
1 (1898) A. O. 576..
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the subject, but, in my opinion, this form of union was a marriage,provided that the requisites, of a legal marriage in regard to casteand- consent were complied with. I am brought to this .conclusionby two passages in the official papers which I have referred to above.One is in a letter of the late Mr. Berwick, then District Judge ofKandy, and afterwards Acting District Judge of Colombo. Theletter is dated October 11, 1869, and the passage is as follows: “ Itmust be distinctly kept in view that in the Kandyan law cohabitationbetween parties of equal rank was marriage.” Mr. Berwick addsthe following footnote to his letter:“ In its true sense of living
together: the woman cooking for the man and keeping his hut,in ordinary cases; and being an acknowledged mistress of thedomestic menage (or, at least, a partner in it) among the exception-ally richer classes.”
The other passage is from the report of the Sub-Committee abovereferred to, and is signed by Mr. B. F. Morgan, afterwards SirBichard Morgan, then Queen’s Advocate, and ultimately. ChiefJustice: “ Among the higher and more influential classes marriagewas solemnized by the Magul Paha, or five feasts; but thesewere not considered necessary to constitute lawful wedlock. Thecontinued cohabitation of a man and woman of the same caste,equal in respect of family, rank; and station in society, such alliancecountenanced or sanctioned by their parents, or rather not objectedto by some decisive act on their part, was sufficient to constitutewedlock.” This would also seem to be the effect of a decision of theSupreme Court cited in Modder’s Kandyan Law, page 250; RanMenika v. Appuhami and Ukku Menika l.
1920,
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Q.J.
Kama e.Banda
The importance of this is that Mr. Bawa bases his argument onthe supposition that the children of these unions were illegitimate.Inasmuch as these children had full rights of inheritance, he arguesthat inheritance in Kandyan law did not depend on legitimacy.He says, therefore, that if the Ordinance of 1870 deprived thesechildren of their rights of inheritance, which they enjoyed inKandyan law, it was altering a considerable portion of Kandyanlaw of inheritance without saying anything about it. If, however,these unions are not correctly described as concubinage, but arereally a form of marriage, this argument falls to the ground.
To resume the history of marriage. About the year 1858 repre-sentation appear to have been made to the Governor by theKandyan Chiefs, professing to speak for the people, and asking himto reform the Kandyan Law of Marriage. This matter was dulyreferred to the Secretary of State by the Governor Sir HenryWard. In 1858 an Ordinance was passed to 'give effect to thesupposed desires of the Kandyan people, but was not approved,and the following year, 1859, another Ordinance was enacted, No. 13of that year, entitled “. An Ordinance, to amend the law of1 8. C. Min., September 8,1863.
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ito.
Bbbxbak
O.J.
Kama v.Banda
Marriage in the Kandyan Provinces.” It contains a long preamble,and refers to the Kandyan Convention. It recited the saving tothe right to the Sovereign in that Convention to redress grievancesand reform abuses; that the existence by custom of the Kandyansof polyandry and polygamy is unsuited to the present condition ofthe Kandyans, and in no way sanctioned by their national religion;that this custom was a great hardship and oppression to the indus-trious classes, and the cause of litigation, murder, and other crimes;and had therefore become a grievance and abuse within the meaningof the Convention. It further recited that in order that redressshould be effected, the Begistrar of Marriages should make provisionthrough the legislation of the Island for the contracting and solem-nization of marriages in the Kandyan Provinces, and for the regis-tration of such marriages and for the dissolution of such marriages.
The Ordinance declared all forms of polygamy illegal, and set up asystem of registration of marriage. By section 28 it validated allexisting marriages if contracted according to the forms, institutions,and customs in use among the Kandyans. By section 29 it allowedall such existing marriages to be registered, and by section 32declared that every marriage contracted or registered under thatOrdinance under certain limitations should render legitimate anychildren born of the parties thereto, previous to their marriage. ,Themost important section was section 2, which declared that no futuremarriage should be valid unless registered in manner and form as'inthe Ordinance provided, and solemnized in the presence of theBegistrar. The Ordinance also inade important changes in the lawof divorce. Previously, under the Kandyan law, either partycould divorce the other party at will. By section 31 the grounds fordivorce were made approximately those in English law, and divorcesuits were to be heard by the District Courts.
If we are to accept Mr. Bawa’s contention, all that this Ordinanceintended was to define the status of the wife in view of the abolitionof polygamy, and to declare that in future there could be no lawfulwives, except by means of registration of marriages. This sugges-tion, baseless in itself, is proved by subsequent history to beabsolutely fantastic.
In 1866 or 1867 Lord Carnarvon, the Secretary of State for theColonies, would appear to have addressed a despatch to the Governormaking inquiries as to the working of the Ordinance. Beportsfrom Government Agents and District Judges were called forand were collected. A series of Sessional Papers, III., X., XIV.,XXI., and XXVII. of 1869, were issued leading up to the enactmentof Ordinance No. 3 of 1870.
With what are these Sessional Papers mainly concerned? Theyare all concerned with the appalling increase in illegitimacy resultingfrom the working of the Ordinance of 1859. The law was in advanceof the time. The Kandyan people had never really desired it, and
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were not even conscious of its existence. In so far as they wereconscious of it, they, for the most part, ignored it, though thefigures varied in different districts. The inorease in illegitimacyappears to have been due to two causes: Firstly, the people did nottrouble to register their marriages; secondly, they declined torecognize the new fetters on their dissolubility. They continuedto dissolve them as they had done before, and to oontraot freshunions, whioh they sometimes registered. The children of theseunregistered marriages and unauthorized new connections were allillegitimate. The very fact that a registered marriage was onlydissoluble by a suit in the Distriot Court, and – only on specifiedgrounds of itself, deterred the populace from registration. Theresult of that aot was “ to familiarize the population with the newconceptions of bastardy, bigamy, and adultery. ” The most forcibleof these reports is that of Mr. Berwick, Distriot Judge of Kandy,and afterwards Acting Distriot Judge of Colombo: “I am con-strained, therefore, to concur with those who have arrived at theconclusion that the effect of the new law in its present workingwill be to bastardize and disinherit multitudes of the generationnow being bom, who would otherwise have had, under the old law,the status of legitimacy …. We are unsettling the rightsof property for the next two generations, and we must foresee animmense flood of litigation and discontent, and' of grievous moralhardship in the future.” In a subsequent paper of great interest,in which he made recommendations as to remedies, he said: “Itmust be distinctly kept in view that by the Kandyan law cohabita-tion between persons of equal rank was marriage (and any connectionshort of cohabitation is scarcely known), consequently there wereno bastards, or, at all events, the disability of bastardy hardlyexisted under that law, which confined it to a very few cases of whatwere called * prohibited unions,’ which, in practice, rarely or nevertook place.” He was.anxious to restore freedom of divorce. Otherofficers spoke in the same sense, but did not go so far in their recom-mendations. Mr. Paterson, – the Assistant Government Agent,Anuradhapura, wrote in 1868: “ The majority of the people do notappear to appreciate the advantage of the Marriage Ordinance, and,accordingly, object to having their marriages registered. Of course,under the existing law, such marriages are illegal, and the childrenbom of them are illegitimate. I have frequently pointed out to thepeople the consequences of the non-registration of their marriages,in the fact that their children will be unable to inherit property.”On August 28, 1869, the Governor, Sir Hercules Robinson, issueda minute (Sessional Paper XTV. of 1869), in which he classified theunions affected by the Marriage Ordinance under seven heads,and noted that the issue of five out of these seven Categories wereillegitimate on the ground of non-registration, and observed:“It is probably within the mark to assume that two-thirds of the
iffto.
OJ.
Klimov.
Banda
existing unions are.illegal, and.that four-fifths of the rising genera-tion bora within (the last eight or nine years are. illegitimate.’'
• Mr. F. E. Saunders,: in a later report (November 18, 1869), ob-serves: “ It is registration that makes what we call ‘ marriage,’ andwhen there is no registration ….•■- the issue ■*.are
illegitimate.”/. <:.
■' On November 11 the Governor invited the Judges of the SupremeCourt'to give him their advice on a draft bill which had been sub-mitted for an amendment of the Ordinance, and in particular as tothe desirability of increased facilities for divorce, and also on “ theextent to which relief should be afforded to' the illegitimate issueof non-registered and invalid registered unions.” The Judgestendered their advice. The Judges, like the Governor, assumedthat the issue is bastardized by the want of registration, and thatbastardization implied disinheritance. I do not cite all theseexpressions of opinion as a “ contemporary exposition ” of theOrdinance of 1859, but simply as showing the problems with whichthe Government and the Legislature supposed itself faced whenthey enacted the Ordinance of 1870.
We are now in a position to'consider the report of . the SelectCommittee on the bill. The report .recited that “ but a smallproportion of the connections formed in the last ten years hadbeen registered,” and that the number of judicial divorces had beenalmost nil. It quoted several passages from reports of Governmentofficers of the nature above indicated and from the Governor'sMinute, adding :“ It follows that a large number of the rising
generation have been bastardized by the operation of the Ordinanceof 1859.” It further quotes the following passage from the Gover-nor’s Minute: “The eldest child born, since the bringing intooperation of the Ordinance No. 13 of 1859, cannot be now morethan nine years of age, but fifteen or twenty years hence, or evensooner, if matters be left as they are, a state of antagonism mustarise between the natural and legal claimants to property, which itis impossible to contemplate without dismay.” The Committeeaccordingly considered “ How far it was necessary to amend theOrdinance of 1859, and directed their attention to (1) the registra-tion of marriages ; (2) their dissolution; and (3) the legitimizationof issue.”
Incidentally they noted that one of the first objects of the Ordinancewas to provide against “ the uncertainty arising from oral testimonyin proof of marriages,” and they quoted a further passage from theGovernor’s Minute emphasizing the necessity of “ a legal record ofthe formation and dissolution of matrimonial connections,” whichwould “ thus do away with a fruitful source of uncertainty andlitigation as to the rights of inheritance arising from the difficultyof tracing and proving in our . Courts, after a lapse of years, byoral testimony alone, the complications of Kandyan alliances.”
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What the Legislature ultimately decided/ on the recommendationsof the Select Committee, appears from the terms of – the Ordinanceitself. They re-enacted the old Ordinance, preserving its mainlines, and retaining the crucial section (section 11), which declared“ no marriage shall be valid unless registered.” With regard todissolution, they declined to follow the recommendations of Mr.Berwick and the Judges of the Supreme Court to restore the old law,but, instead, substantially enlarged the grounds of divorce, allowinga dissolution by mutual consent, or upon actual “ separation frombed and board for a year,” and they provided that divorces shouldtake place before the Begistrar, and should not. require a judicialdecree of the District .Court. With regard to legitimization, all cus-tomary unions up to date were validated on registration (section 25);all registered marriages between parties to other marriages, who hadseparated without first obtaining a decree of divorce, were vali-dated (section 28). In both these cases there was a saving of caseswhere persons had actually entered into possession of property onthe basis of their legal rights.
After this recital of the history of the Ordinance, it is almostsuperfluous to discuss Mr. Bawa’s contention. In view of theproblems with which the Legislature was faced, it would beabsurd to suggest that in re-enacting section 11 they used the word” valid ” in any but its full ordinary and legal sense. The theorythat they meant that the wife should be the only lawful wife, butthat the children should not necessarily be the only lawful children,or that the rights of inheritance of children should not depend onthe lawfulness of their birth, is plainly a figment. The final passagequoted from the Governor’s Minute as to the necessity of doingaway with “ a fruitful source of uncertainty and litigation as to therights of inheritance ” is itself decisive. That passage indicatesconcisely one of the principal problems with which the Legislaturehad to deal both in 1859 and in 1870. It is plain that registrationwas adopted as a solution of that problem. The Legislature adoptedin 1859, and perpetuated in 1870, the principle of “ registration onpain of nullity. ” This solution would have been no solution unlessnullity were intended to operate in its fullest sense.
There is always, of course, the question whether, faced withthese problems and realizing the necessity for a solution, theLegislature in fact used words which were effective for securing asolution. Of that there can be no doubt. The meaning hithertoaccepted is the ordinary and natural one; that now, for the firsttime, suggested is an artificial one.
I have a word to add on the passage quoted from a former judg-ment of my Brother De Sampayo. It appears to me, if I may sayso, that that observation expresses the solution with the utmostexactitude.. It is the law of marriage which determines what peopleare entitled to be ranked in particular categories of relationship;
1920.
Bhbsbam
O.J.
Kuma «<Banda
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1880.
OJ.
Kumav.Banda
it is the law of inheritance which determines in any given case whichof those persons, so ranked, are entitled to succeed to the goods ofthe preepositus. The legislation, of 1859 and 1870 changed the lawof marriage; it left the law of inheritance untouched.
With regard to the supposed special class of cases (referred toabove as the third type of Kandyan union), in which it is suggestedthat children bom in concubinage were deemed to be legitimate,my view is that those unions were really marriages. But, if thisview is wrong, and they were, in fact, a form of concubinage, thenmy opinion is that the children were “ deemed to be legitimate,”because the union was “ deemed to be a valid marriage.” TheOrdinances of 1859 and 1870, however, now say definitely that nomarriage shall be valid unless registered. Such unions, therefore,even if “ deemed to be valid ” before the Ordinances, could be sodeemed no longer, and, consequently, the offspring of such unionscould no longer be “ deemed to be legitimate.” This case,however, does not belong to that class.
As to the facts of this case, the appellant claims as the fatherof the deceased. His marriage was solemnized according to thecustomary observances, the bride being duly conducted to hishouse. The union would, therefore, appear to have been of thesecond class above referred to, and under the old Kandyan law themarriage would have been valid and the issue legitimate. But itwas not registered. The father, therefore, can only claim to succeedto his son as an illegitimate son. But it is definitely laid down inthe authorities (see Nitiniganduwa, page IS) that the father of anillegitimate child has no right of succession to his property. Theappellant’s claim, therefore, fails, and the respondent, who traceshis claim through the mother, has the prior right.
In my opinion, therefore, the appeal should be dismissed, withcosts.
De Sampayo J.—
The question involved in this case is simple, and the answer, Ithink, is not difficult. It arises on the following state of facts.One Kiribanda died intestate in November, 1919, and the disputeis to the landed property which he had acquired in his lifetime andleft at his death. His parents were the defendant and one Kiri-menika, who married each other in 1886, according to custom, butdid not register their marriage. Kirimenika predeceased Kiribandaabout twenty-five years ago, and her nearest relative was Ranhamy,
, a half-brother on the mother’s side. The plaintiff is daughter ofRanhamy, who died about fifteen years ago. She claims theproperty of Kiribanda as his sole heiress, while the defendant allegesthat he is the heir of his son Kiribanda. This question for decisionis, which of them inherits Kiribanda’s property under the lawapplicable to Kandyans? The Commissioner has decided the issue
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in favour of the plaintiff, on the ground that Kiribanda beingillegitimate, the defendant, as his father, has no right of inheritance,and that the plaintiff being the nearest and only relative on themother’s side takes the entire inheritance.
It is contended on behalf of the defendant that the legitimacy ofchildren must be decided according to Kandyan law, even thoughthe marriage of the parents has not been registered as required bythe Ordinance No. 3 of 1870. I do not think that this contentioncan prevail. It is true that the Kandyan law laid emphasis not somuch on the form of marriage as on certain social views as to thepropriety of the association between a man and a woman. But allthose conceptions have been swept away by the Ordinance bymaking registration essential to the validity of a marriage, which,under the general principles of law, is the determining factor asregards the legitimacy of children. Consequently, children whomight under the ancient Kandyan law be considered legitimate canno longer claim that status if the marriage of their parents has notbeen registered; and if under the Kandyan law illegitimatechildren in any given case have rights of inheritance, they have thesame rights now, but not otherwise. In Baja v. Elisa (Modder,page 510) I observed that the Ordinance No. 3 of 1870 left theprinciples of inheritance unaffected. That judgment cannot bepushed further. I had there to consider the question whether theillegitimate child of a woman could inherit from his mother’s mother,and for the reasons given it was held that he could. In arriving atthat conclusion I alluded, incidentally, to the Kandyan conceptionsof marriage and legitimacy for the purpose of showing, not that thechild was legitimate, but that, though illegitimate, he was an heir ofthe grandmother. The Ordinance No. 3 of 1870, however, hasthe effect of bringing the terms “ legitimate ” and “ illegitimate ”as regards their significance into line with the general principle oflaw on the subject. . That being so, the deceased Kiribanda mustbe taken to have been illegitimate, and the Kandyan law ofinheritance must be applied in this case on that footing. I haveno reason to modify the opinion I expressed in Banda v. Banda,1on the authority of the Nitiniganduwa, that under the Kandyan dawthe father is not an heir to his illegitimate son in respect of theacquired property.s
1980.
De BuoiioJ.
Kumav.
Banda
For these reasons I agree that this appeal should be dismissed,with costs.
Loos J.—
I have had the great advantage of perusing and considering thejudgments of my Lord the Chief Justice and my Brother De Sam-payo, with which I agree, and I find that there is nothing that I canusefully add thereto.
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1 (1916) 19 N. L. S. 126.