Sri Lanka Law Reports
(2003J 2 Sri L.R
KUSUMAWATHIE AND OTHERS
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
A NO. 390/91 (F)
C. KURUNEGALA 1375/LFEBRUARY 8, 2002 ANDAPRIL 29, 2002
Marriage and Divorce (Kandyan) Act, sections 3(2) and 28(1) – Marriage ofKandyan under the Marriage Registration Ordinance – Is it a Diga marriage?Presumption
The District Court held that there was no affirmative proof that the deceasedplaintiff’s mother Enso Nona married in Diga and therefore she was entitled tosucceed to her father.
It was contended that Enso Nona married in Diga, and thereby forfeited rightsto succeed to her father.
Enso Nona’s marriage certificate had been issued not under the provi-sions of the Marriage and Divorce (Kandyan) Act but under theMarriage Registration Ordinance.
Section 3(2) of the Marriage and Divorce (Kandayn) Act provides amarriage between a person subject to Kandyan Law solemnized andregistered under the Marriage Registration Ordinance shall not affectthe rights of such persons to succeed to property under the KandyanLaw.
Since the certificate of marriage of Enso Nona which is one issuedunder the General Marriages Ordinance, where an entry with regard tothe nature of marriage is absent, the presumption is that the marriageis Diga and not Binna.
Therefore it is manifest that Enso Nona would not have inherited any-thing at all from her father.
APPEAL from the judgment of the District Court of Kurunegala.
CA Lewis Singho v Kusumawathie and Others (Dissanayake, J.)129
Case referred to:
Sophie Hamine v Appuhamy – 23 NLR 353 at 357M.R.de Silva for 1st defendant-appeltant
J.C. Boange for substituted plaintiffs-respondents
June 28,2002DISSANAYAKE, J.
The deceased plaintiff instituted this action seeking declara- 01tion of title to 1 /28th share of the land morefully described in theschedule to the amended plaint, ejectment of the 1st defendant-appellant therefrom and for damages.
The 1st defendant-appellant by his answer filed whilst deny-ing the averments in the amended plaint prayed for dismissal of thedeceased plaintiff’s action.
At the conclusion of the trial that proceeded on thirteenissues the learned District Judge by his judgment dated23.08.1991, entered judgment for the deceased-plaintiff declaring 10him entitled to an unspecified undivided share only and refused theother reliefs claimed in the amended plaint.
The deceased plaintiff preferred this appeal from the afore-said judgment of the learned District Judge.
In the argument of the appeal before this Court learned coun-sel for the 1st defendant-appellant contended that the learnedDistrict Judge misdirected himself in entering judgment for thedeceased-plaintiff holding that he was entitled to an undividedshare.
The above contention of learned counsel for the 1st defen- 20dant-appellant is based on the argument that the finding by thelearned District Judge that there was no affirmative proof that thedeceased plaintiff's mother Enso Nona married in Diga and there-fore she was entitled to succeed to her father Dingiriappu who wasthe original owner of the premises in suit, was erroneous.
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At the commencement of the trial the fact that Dingiriappuwas the original owner of the premises in suit was submitted by theparties.
The crucial issue before this Court is whether the deceasedplaintiff’s mother Enso Nona married in Diga and thereby did sheforfeit her rights to succeed to her father Dingiriappu.
The deceased plaintiff in her evidence was emphatic thathere mother Enso Nona and father Davith Singho married in Digaand went to live at Deekiriwewa.
One factor relied on by the learned District Judge in comingto the finding that Enso Nona did not marry in Diga is that the mar-riage certificate (V1) had been issued not under provisions of theMarriage and Divorce (Kandyan) Act but under the MarriageRegistration Ordinance. Therefore he was of the view that her mar-riage was one contracted under the General Marriages Ordinanceand as such she was not married in Diga, despite the fact that shewas a person governed by the Marriage and Divorce (Kandyan)Act.
It is interesting to note that section 3(2) of the Marriage andDivorce (Kandyan) Act provides that a marriage between personssubject to Kandyan Law, solemnized and registered under theMarriage Registration Ordinance shall not affect the rights of suchpersons or of persons claiming rights through them to succeed toproperty under the Kandyan law.
It has been held on Sophie Hamine v Appuhamy 1, that thespecial Kandyan Marriage law and the general law of Ceylon withregard to marriage run concurrently and alternatively in theKandyan Province.
Generally recourse is had to the entry made in the marriagecertificate of a marriage contracted by parties under the Marriagesand Divorce (Kandyan) Act to find out whether a party married in•Diga or Birina.
Section 28(1) of the Marriage and Divorce (Kandyan) Act laysdown that the registration of a Kandyan Marriage shall be the bestevidence before all courts in which it may be necessary to give evi-dence of the marriage. It lays down further that where the marriage
CA Lewis Singho v Kusumawathie and Others (Dissanayake, J.)131
registration entry made under section 23(3) constitutes such regis-tration does not indicate whether the marriage was contracted inBirina or Diga, the marriage shall be presumed to have been con-tracted in Diga until the contrary is proved.
When a party who governed by the Marriage and Divorce(Kandyan) Act contracts a marriage under the MarriageRegistration Ordinance, in the absence of provisions to enter thenature of the marriage contracted in the certificate of marriage, inthe Marriage Registration Ordinance, such particulars are not 70entered in the certificate of marriage.
It is of relevance to observe that Fredric Austin Hayley in hisbook on “A treaties on The Laws and Customs of the Sinhalese” atpage 195 has stated “In the absence of an entry in the registerspecifying its nature, the marriage is presumed to be a Diga one,until the contrary is proved.”
Applying the above principles where a party who is governedby the Marriage and Divorce (Kandyan) Act contracts a marriageunder the Marriage Registration Ordinance, in the absence of anentry in the certificate of marriage with regard to the nature of the somarriage contracted the presumption recognised under section28(1) of the Marriage and Divorce (Kandyan) Act would be applic-able and such a marriage would be presumed to have been one ofDiga until the contrary is proved.
Thus since in the certificate of marriage of Enso Nona (V1)which is one issued under the General Marriages Ordinance,where an entry with regard to the nature of marriage is absent, thepresumption is that the marriage is Diga and not Binna.
There was no evidence led to the contrary. On the other handthe deceased plaintiff conceded in her evidence that Enso Nona 90married in Diga.
Therefore it is manifest that Enso Nona would not have inher-ited anything at all from her father Dingiriappu.
It is interesting to note that the learned District Judge inanswering issue No. 12 has stated that despite the fact that itappeared that the 1st defendant-appellant has been in long andcontinued possession of the corpus the possession of the 1st
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defendant-appellant was also the possession of the other co-own-
ers and did not amount to adverse possession, on the basis of thefact that the deceased-plaintiff is also a co-owner.
The above finding of the learned District Judge was based onhis purported finding that the deceased plaintiff’s mother EnsoNona inherited from her father Dingiriappu.
Now that it is manifest that Enso Nona having married in Digaforfeited her right to inherit from her father Dingiriappu thedeceased plaintiff is not a co-owner. The deceased plaintiff in herevidence admitted the long and continued possession of the 1stdefendant-appellant of the corpus.
Thus this long and continued possession by the 1st defen-dant-appellant will amount to prescriptive possession of the corpusby the 1st defendant-appellant, as against the deceased plaintiffwho was not a co-owner. Therefore the learned District Judge wasin error when he entered judgment for the deceased plaintiff declar-ing him entitled to an undivided share.
I set aside the judgment of the learned District Judge dated23.08.1991.
The appeal of the defendant-appellant is allowed with costs.
SOMAWANSA, J.I agree.