Sri Lanka Law Reports
 1 Sri L.R
KANTHICOURT OF APPEALSOMAWANSA, J. ANDEKANAYAKE, J.
C. MT LAVINIA 23/LSEPTEMBER 16, 2004
Civil Procedure Code, sections 760, and 760A – Supreme Court Rules, Rule38 – General Marriages Ordinance, section 18 – Substitution in the Court ofAppeal – Bigamous marriage – Could the 2nd wife be substituted after thedeath of the legal wife?
The defendant-appellant died pending appeal. Thereafter one “K” sought tohave herself substituted on the basis that she was the wife of the deceasedappellant.
It was contended that at the time of the purported marriage to “K” thedeceased-appellant was already married to one “G”. At the time when “K”sought to substitute herself “G” was dead.
The petitioner had entered under a form of marriage and lived as hus-band and wife.
Kusumawathie v Kanthi (Somawansa J.)
Per Somawansa, J.,
‘Though there was an impediment to the marriage it can be presumed thatthere was a legal marriage when the impediment was removed, on the deathof “G”.
Per Somawansa, J.,
'Though in the original court the person entitled to be substituted is thenext of kin who has derived the inheritance there is no such requirement in thecase of an appeal."
Preliminary objection regarding substitution.
Cases referred to:
De Thorens v Attorney-General – 1876 CAC 686
Seelawathie Ma'ljawa v Keerthiratne – (1982) 1 Sri LR 384 at 391.Upali de Almeida with Anna de Almeida for petitioner'
Riza Muzni for plaintiff-respondent
October 22 2004SOMAWANSA, J.
This order relates to the objection taken by the plaintiff-respon- 01dent to the petitioner’s application to have herself substituted in theroom of the deceased defendant-appellant on the basis that shewas the wife of the deceased defendant-appellant.
The relevant facts are that by motion dated 14.03.2002 plaintiff-respondent brought to the notice of Court that the defendant-appel-lant, W. Eatin Singho had died on 24.08.2001. A certified copy ofhis death certificate was annexed marked X2. On this informationnotice was issued on the registered attorney-at-law of thedeceased defendant-appellant. Thereafter by petition and affidavit 10dated 05.02.2003 the petitioner A. V. Kusumawathie sought to haveherself substituted in the room of the deceased defendant-appel-lant on the basis that she was the wife of the deceased defendant-appellant and that she was a fit and proper person to be substitut-ed. The marriage certificate was annexed marked X1.
Sri Lanka Law Reports
(2004] 1 Sri L.R
The plaintiff-respondent objected to the petitioner’s applicationfor substitution on the basis that at the time of the petitioner’s pur-ported marriage to the deceased defendant-appellant on03.05.1995 the petitioner was already married to one KodippillageGardiyas and the said marriage had been registered on 25.01.1971as per marriage certificate marked Z. The birth certificate of theaforesaid Gardiya’s daughter Kodippillage Shirani has beenmarked Y1 wherein the mother’s name is given as A.V.Kusumawathie viz: the petitioner’s name. Therefore when the peti-tioner’s marriage to the deceased defendant-appellant was regis-tered on 03.05.95 her earlier marriage to Gardiyas was still in exis-tence and thus her second marriage to the deceased defendant-appellant was null and void and therefore on the death of thedeceased defendant-appellant no rights passed on to the petition-er. In the circumstances the plaintiff-respondent pointed out that thepetitioner is not a fit and proper person to be substituted in the roomof the defendant-appellant.
The petitioner filed an affidavit stating that Kodippillage Shiraniis her daughter but denied that she the petitioner was lawfully mar-ried to Kodippillage Gardiyas, that she is unable to comment on theannexure marked Y1 which purportedly is the birth certificate of herdaughter Shirani and that in any event the entry ‘married’ in thecage ‘were parents married’ is wrong.
When the matter was taken up for inquiry parties agreed toresolve the matter by way of written submissions and accordinglyboth parties have tendered their written submissions.
Counsel for the plaintiff-respondent strenuously contends thatmatters that are called upon to consider by this Court at this stageare two fold in that
What is the legal status of the petitioner? ; and
Depending on that legal status is she a fit and proper personto be substituted in the room of the deceased defendant-appellant?
He submits section 760A of the Civil Procedure Code and Rule38 of the Supreme Court Rules required the Court to appoint a fitand proper person in the room of the deceased party. Furthermore,Rule 38 requires such applicant to place before the Court sufficient
CAKusumawathie v Kanthi (Somawansa J.)353
material to establish who is the proper person to be substituted? Hepoints out that when one considers the birth certificate Y1 and themarriage certificate marked Z there is no doubt that the petitionerhad been lawfully married to Gardiyas at the time of contracting asecond marriage to the deceased defendant-appellant in 1995 videmarriage certificate marked X1. There is also no evidence that herfirst marriage to Gardiyas had ever been annulled. The petitionerfailed to adduced any evidence to this end. Thus there is no doubtthat the petitioner’s second marriage to the deceased defendant-appellant was in truth and in fact a bigamous marriage; thus thesecond marriage to the deceased defendant-appellant being nulland void ab initio and (accordingly in terms of the provisions in sec-tion 18 of the General Marriage Ordinance) the bigamous secondmarriage cannot confer any rights on the petitioner and thus shecannot be considered to be a fit and proper person to be substitut-ed in the room of the deceased defendant-appellant.
On the face of the documents marked by the plaintiff-respon-dent, it appears that when the petitioner contracted the secondmarriage with the defendant-appellant she was already married toGardiyas and there is no evidence that the first marriage toGardiyas had been annulled or dissolved. Therefore one has toaccept the fact that the second marriage is an Invalid marriage andtherefore the second marriage does not confer any rights on thepetitioner. Be that as it may, in view of the marriage certificatemarked X1 one could presume that the petitioner was living with thedefendant-appellant though the marriage was invalid and evenafter the death of Gardiyas on 28.04.98 until the death of the defen-dant-appellant in the year 2001. In the circumstances one couldargue that the petitioner entered under a form of marriage and livedas husband and wife. Though there was an impediment to the mar-riage, it can be presumed that there was a legal marriage when theimpediment was removed as in the instant action on the death ofGardiyas.
In the case of De Thorens v Attorney-General 0) the partieswent through a form of marriage though there was an unkownimpediment. Everyone believed that the marriage was good. It isimprobable that the parties would go through another form of mar-riage once the impediment was removed and the House of Lords
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 1 Sri L.R
held that it was not necessary. I think however as for the issue athand it is unnecessary for us to inquire into the legitimacy or theillegitimacy of the petitioner’s second marriage to the defendant-appellant nor is it necessary to inquire as to whether the secondmarriage confer any rights on the petitioner. In such an eventuallythis inquiry itself would be a long and protracted one on mattersunconnected with this appeal, for I am only concerned with theissue of substituting a fit and proper person in the room of thedeceased defendant-appellant solely for the purpose of prosecut-ing this appeal. The intent and purpose of section 760 of the Civil 100Procedure code as well as Rule 38 of the Supreme Court Rules issubstitution for the purpose of prosecuting the appeal. Though inthe original Court the person entitled to be substituted is the next ofkin who has derived the inheritance there is no such requirement inthe case of an appeal. In the circumstances, I would consider thepetitioner to be a fit and proper person to be substittued in the roomof the deceased defendant-appellant.
Counsel for the plaintiff-respondent has cited a passage fromthe decision in Seelawathie Mallawa v KeerthiratneW at 391 whichreads as follows:110
“However, the District Judge had addressed his mindto underlying principle that if a person in unlawful pos-session could not be ejected pending trial, he could stillbe restrained from taking any benefits arising out ofsuch wrongful possession, otherwise the court wouldbe a party to the preserving for the defendant-appellanta position of advantage brought about by her ownunlawful or wrongful conduct."
It is to be seen that the aforesaid passage has no relevance tothe issue at hand for what was considered in that case was a lease 120agreeement and it was held:
“That the order made by District Judge in restrainingthe defendant-appellant from taking any benefits aris-ing out of wrongful possession after expiry of leasewas justified”.
For the above reasons, I would over-rule the objections of theplaintiff-respondent and accept the petitioner as a fit and proper
Ramesh and another v Chettiar (Wimalachandra J.)
person to be substituted in the room of the defendant-appellantsolely for the purpose of prosecuting this appeal. The defendant-appellant is entitled to costs of this inquiry.
EKANAYAKE, J. – I agree.
Preliminary objection overruled;
Petitioner is a fit and proper person to be substituted.
KUSUMAWATHIE v. KANTHI