020-NLR-NLR-V-10-LOKU-BANDA-v.-DEHIGAMA-KUMARIHAMY.pdf
1904.June 13.
( 100 )
Present: Mr. Justice Wendt and Mr. Justice Middleton.
LOKU BANDA v. DEHIGAMA KUMARIHAMY
D. C., Kandy, 2,241.
Kandyan law—Adoption, requisites of—Proof–A doption for the purposeof inheritance.
In order to constitute a valid adoption under the Kandyan Dawno particular formalities or ceremonies are required; but it isnecessary that the parties should be of the same caste and that theadoption' should be public and formally and openly declared andacknowledged; and it must also clearly appear that the adoptionwas for the purpose of inheriting the property of the adoptiveparents.
A
PPEAL from a judgment of the Acting District Judge ofKandy (C. A. Labrooy, Esq.). The facts and arguments
sufficiently appear in the judgments.
Dornhorst, K.G. (with him H. Jayewardene), for the appellant.
(Counter-petitioner.)
Walter Pereira, for the respondent (Petitioner).
Cur. adv. vult.
13th June, 1904. Wendt J.—.
• This is a contest for letters of administration to the intestateestate of Dingiri Amma Dehigama Kumarihamy, widow of, thelate Girahagama Dewa Nilame. The petitioner, Loku Banda,claims to be the “ nephew ” and adopted son of the intestate, andtherefore her sole heir. Both the relationship and the adoptionare denied by the respondent, the counter-petitioner, who i6admittedly the niece of the intestate, and, if the petitioner did notexist, her sole heiress. The parties * are all of the same caste.According to the petitioner’s evidence his father and the intestatewere first cousins. According to the counter-petitioner the peti-tioner’s only connection with the. intestate was that he wasdistinctly related to Girahagama. The District Judge held thatpetitioner was in no way related to the intestate,. and tkis findingwas not contested before us. He, however; held that petitioner hadproved his adoption, and the question is whether that ruling wascorrect. ‘‘The petitioner suggested that he had been adopted by theintestate (who had no children of her own) in early childhood, butthe District Judge believes the – evidence called by the appellantto show that he first came to the intestate’s residence Dehigama
( 101 )
Walawwa when he was 13 or 14 years of age, that he came there inorder to attend school, the petitioner's parents being residents ofMatale. It is, I think, a most significant circumstance uponwhich the District Judge rightly remarks that the petitioner did notcall his own father, who was in attendance, as a witness, and who,if petitioner's case is true, would have been in a position to givemost material evidence as to the circumstances under which thepetitioner became an inmate of the intestate's household. TheDistrict Judge found that after Girahagama's death the petitioner,who continued to reside with the intestate, rendered her assistance,and in turn received from her substantial marks*of kindness andfavour; and that the intestate went with petitioner to Uva toarrange the petitioner's marriage with his present wife; but that,on the other hand, the intestate had never told her friends or rela-tions that she had adopted the petitioner. The petitioner calledevidence to prove that, at the treaty for the marriage and on theoccasion of the marriage itself, the intestate made statements to theeffect that petitioner would inherit her property; but the learnedActing District Judge was not impressed with this evidence, andhas refused to act upon it He has, however, decided in petitioner’sfavour on the strength of the statements in two documents markedA and B, together with the evidence of Appuhamy Notary, which heconsiders ' ‘ prove a clear intention on the part of the intestate toregard the petitioner as her adopted son, ’’ and are, “ according tothe decisions of the Supreme Court, sufficient publication of suchadoption. ” Were the matter res Integra, the District Judge wouldhave held that petitioner had not proved he was the adopted son,for he not only agreed with ,the District Judge’s decisions in twoprevious cases, No. 2.178 and No. 14,459 of his own Court, but alsoConsidered that no declaration of adoption contained in any deedwould satisfy the requirements of the Kandyan Law, unless the deedalso comprised an express clause of disinherison of the legal heirs.The Supreme Court decisions referred to were those in D. C., Kandy,29,605 and 55,778, and D. C., Kegalla, 860.
The documentary evidence in the case was as follows. On 13thMarch. 1897, the intestate and her husband executed a deed of gift(A M D 2) in favour of petitioner, described as “ closely connectedto us as a nephew by relationship. ” AMD 1 was another deed ofgift., a “ deed of assistance, “ executed in petitioner’s favour inOctober, 1899, by the intestate and the appellant, in which peti-tioner is> merely described by name and as “of Asgiriya korale inMatale, presently residing at Siyambalagoda Walawwa ’’ (the*intestate’s walawwa). On the same day intestate gifted herinterest in that walawwa to the appellant. A M' D 3, dated 23rdFebruary, 1901, is a “ deed of assistance ’’ by intestate to peti-tioner, described as her “ nephew, ” who had for twelve yearsrendered her all succour and maintenance. On 9th August, 1901,
1904.June 13.
Wbkdt J.
( 102 )
1904. tbe intestate addressed to the Government Agent, as ProvincialJutu 13. Registrar, the petition A, stating that she had proposed a marriageWbnb? J. f°r her ** adopted nephew, '' the petitioner, and asking that theRegistrar might be authorized to solemnize the marriage at thebride’s residence in Yatinuwara. This petition was in the Englishlanguage, with which intestate was unacquainted, and there wasno proof of its having been explained to her, but the District Judgeconsidered that from the fact of her having signed it she must betaken to have understood and approved of its contents. On 12thAugust, 1901 (a week before the day fixed for the marriage), theintestate, at Kandy, executed in petitioner's favour a deed of giftof certain lands, describing him as “ my nephew (by relationship)adopted by me " (mavisin tanaget mage bena vana). AppuhamyNotary, who drew and attested this deed (as also deed AMDS),was called, and stated that he prepared it on the instructions of theintestate, and that she asked him to describe the petitioner as heradopted nephew, but had not so instructed him in reference to deedAMD3.
The Acting District Judge, who. was left to discover for himselfthe authorities bearing upon the question involved, has made acareful examination of many of the cases. He has not, however,referred to the decision of Sir Richard Cayley, as Acting DistrictJudge of Kandy, in D. C., Kandy, 53,309 (1), which has always beenregarded as the leading case. This Court, in affirming that decision,adopted the reasons given by the District Judge. It was there laiddown that, while the law prescribes no particular formalities orceremonies for a valid adoption, it is necessary that the partiesshould be of the same caste, and that " the adoption should bepublic and formally and openly declared and acknowledged; ” andfurther,* that (as decided by the case in Austin, p. 74) “ it should beclearly understood that the child was adopted on purpose to inheritthe adoptive parent's property. " Accordingly, Sir Richard Cayleyheld that the parent's refusal of a proposed diga marriage for theadopted child, on. the ground that he had adopted her and wishedher to inherit his lands, was a sufficiently public and formal declara-tion to satisfy the law. It also appeared that the child “ was alwaysrecognized by the family as the adopted daughter of the BasnayakaNilame, " whose niece she was. There was no documentary evidencerelied upon in that case.
That case was followed in Karunaratne v. Andrewewe (2). – InPu8umbahamy v. Keerala (3), Dias J. said:“ The adoption which the
defendant had to prove was an adoption for the purpose* of inheri-tance. The mere taking and bringing up of a child in the house andsettling it in life is not such an adoption, and all that has been provedby the defendant was nothing more. This question has often been 1
(1) Grenier (1873), 117.. Wendt, 285.
(3) (1891) 2 C. L. R. 63.
( 103 )
raised, and was dealt with by the Supreme Court, and we alwaysrequired strict proof of the adoption by evidence amounting to apublic declaration of the adoption for purposes of inheritance. Itis hardly necessary to refer to the decisions and opinions, which aremany, and are the opinions of Judges who were well acquainted withthe Kandyan Law on the subject.*1 In Txkiri Kumarihamy v. PunchiBanda (1) Bonser C.J. said:** It is not sufficient that a man
should publicly acknowledge another as his son, he must go furtherand acknowledge, state, and declare that he is to be his son for thepurposes of inheritance. ” The Chief Justice also pointed out the• significance of the fact that the alleged adoption of the appellant(who had lived with the deceased for forty years) was not generallyknown.
As to the value of documentary evidence, I think the District.Judge was right in saying that it must depend, as in the case ofparol evidence, upon its establishing that, the child was not merelyadopted, but adopted in order to be heir. It must be rememberedthat the mere bringing up of a child, without any intention ofmaking it one*s heir, is also commonly spoken of as “ adoption.
It is this view of the nature of the documentary evidence necessary,which I understood was taken by-the Judge of the District Court incases Nos. 2,178 and 14,459, D. C., Kandy, and which the ActingDistrict Judge considers the right view. In this view I do notthink that the decision of Smedley D. J. in D. CM Kandy, 29,606 (2),would have been upheld, after the date of Sir Bichard Cayley's case.The Acting District Judge usefully supplements the report in Bev'enand Siebel. He says there was no parol* evidence led, and only twodeeds of* the alleged adoptive parents (apparently deeds of gift tothe child) put in. In one they described her as “ our grandniecebrought forth by the niece of me, Punchirala, and whom we havetaken three years after her birth and adopted as our child; " and inthe other as “ our granddaughter, who was bom of my, the saidPunchirala’s, niece, and whom we have brought up from the time shewas three years of age. " The Supreme Court’s reasons for affirmingthis decision are not reported. In D. C., Kandy, 65,778, there wasboth parol and documentary evidence, the latter consisting of anon-notarial deed of the adopting parent, in which the first defend-ant was described as “ my adopted son, who is rendering me assist-ance since the time of forty-five years. ** Sir Archibald Lawrie, asDistrict Judge, is said to have relied on this document as stronglycorroborating the oral evidence of adoption, and based his judg-ment principally upon it, and this Court “ affirmed ” his decision,but without giving reasons. This case is no authority for sayingthat the deed by itself would have been held sufficient. In D. C.,Regalia, 860 (the Acting District Judge , tells us), the District Court(1) (1901) 2 Browne, 299.(2) Beven and Siebel, 61.
1904.June 131
Wendt J.
( 104 )
1904.held that the fact of the alleged adopter signing the marriage
June 13. register of the alleged adopted child as its parent was a sufficientWendt J. public declaration of adoption. This was apparently not the onlyevidence in the oase. The Supreme Court affirmed the decision,but without giving any recorded "reasons, and the same observationswould apply to the Marriage Begistrar as applied to the deeds incase No. 29,605. It was no proof that the signatory regarded theadopted person as his heir.
Applying these principles to the present case, neither the petitionA. nor the deed B affords ground for believing that the petitionerhad been adopted in1 order that he might- be the sole heir of theintestate. Her statement to the notary goes no further, and it was,besides, not made on any formal or public occasion. Apparently onlythe intestate, the notary, and the petitioner were present whenthe instructions were given.
I consider that the order appealed from should be discharged,and the District Court directed to grant letters of administrationto the counter-petitioner, Alicei Maria Dehigama Kumarihamy, indue course. The petitioner must pay the costs of the appeal andof the contention in the Court below.
Middleton J.—
In a system of law like the Kandyan, which permits adoption togive the status of heir to an adopted child, there ought not to beany doubt as to the intention of the adopter to do so. If we put onone side here the oral evidence led for the petitioner, which, in myopinion, the learned District Judge rightly rejects, there are only thetwo documents A and B. The other oral evidence points to theconclusion that it was not known that the deceased looked upon thepetitioner as her heir.
As regards these documents the words used cin them do notappear to express the indubitable intention of the alleged adopterthat the petitioner should be regarded as her heir, but might preferonly to a bringing up without making him heir, nor do I think thenotaiy's evidence carried it any further.
I agree, therefore, with my brother Wendt, that we should beguided in deciding this appeal by the principles laid down by SirBichard Cayley in D. C., Kandy, 53,309 (1), and bjr Dias J.in Pusumbahamy v. KeerdLa. (2), and by Bonser C.J. in Tikiri-kumarihami v. Punchi Banda (3), and I concur in the order heproposes.*
Appeal allowed.
(1) Grenier (1875), 117.(2) (1891) 2 <7. L. R. 53.
(3) (1901) 2 Browne, 299.
•( 105 )
[In Review.]
The ease was subsequently heard in review preparatory to an 1007-appeal to His Majesty in Council.January 17.
Walter Pereirat K.G., B.-G. (with him Bawa), appeared for thepetitioner, appellant.
Sampayo, K.G. (with him Van Langenberg and H. Jayewardene),for the respondent.
Cur. adv. vult.
17th January, 1907. Hutchinson C.J.—
This is a hearing in review with a view to appeal to the PrivyCouncil. The appellant applied to the District Court for administra-tion to the estate of Dehigama Kumarihamy, who died intestate onthe 3rd July, 1902, the appellant claiming to be her nephew andadopted son. It was opposed by the respondent, who is the nieceof the intestate.
The District Judge found that the plaintiff was not a nephew ofthe intestate, and the correctness of the finding is not disputed.
He was not satisfied with the oral evidence as to the alleged adoptionof the plaintiff by the intestate as her. heir; he said; *' I propose todisregard this evidence and deal with this case as one depending onthe documentary evidence and that of the notary.*' And he heldthat on the documentary evidence the fact of that adoption wasestablished.
On appeal the Supreme Court held that the documents did notafford ground for believing that the appellant had been adopted in ^order that he might be the sole heir of the intestate, and it accordinglydischarged the order of the District' Court and directed thatadministration be granted to the present respondent.
The appellant admits that for a valid adoption by Kandyan Law,which is the law applicable in this case, it is necessary to prove thatthe intestate adopted the claimant for the purpose of making himher heir, and that the documents taken alone fall, short of that;but he. urges that the Supreme Court did not take sufficient accountof the oral evidence; that the District Judge did not disbelieve theoral evidence, but merely placed it on one side and held that thedocuments alone were sufficient to prove the adoption;*and that theoral and documentary evidence when taken together fully satisfythe requirements of the law.
The oral evidence on which the appellant mainly relies is that ofstatements made by the intestate on two occasions, the first at ameeting ^when she was asking the appellant's future father-in-law.to give his daughter in marriage to the appellant, and the second atthe marriage feast. On the first occasion several peipons werepresent, besides the appellant, of whom only two gave evidence,the father-in-law and Madduma Banda.
( 106 )
1907-
January 17.
Hotohxnsoh
C.J.
And the same Banda and the appellant also depose to the state-ments made by the intestate at the marriage feast. The District;Judge has set out the evidence fully enough in his judgment, and Ineed not set it out again. It was not sufficiently precise and exactto satisfy him. He thought that in all probabilities the intestatemade some representation that the appellant would succeed to herproperty on her death. But it was not*proved, and if it had been thefact it could have been proved by the evidence of persons present—that she made any public and formal declaration to the effect that hewould succeed to her property as her heir by virtue of her adoptionof him.
In my opinion the District Judge was right in disregarding theoral evidence, and the oral evidence taken together with thedocumentary evidence does not prove the adoption for which theappellant contends.
Wendt J.—
This is a hearing in review preparatory to an appeal to the PrivyCouncil against the decision of my brother Middleton and myself,dated 13th June, 1904. The question is one of adoption by aKandyan lady, and the facts are sufficiently stated in the judgmentsunder review. Both parol and documentary evidence was reliedupon for proof of the adoption. The learned Acting District Judgeproceeding upon the documentary evidence, held the adoptionproved.* His own opinion was that the documents fell short of therequirements of the law, but he felt himself constrained to act upona different view byi certain decisions of . the Supreme Court to whichhe referred. The counter-petitioner appealed, and my brother andI agreed with the District Judge’s opinion, holding that the docu-ments did not put it beyond doubt that the adoption was for thepurpose of making the adopted person the heir of the adoptiveparent, and were therefore insufficient. I see from my notes of theargument of that appeal that the present appellant’s counsel did notseriously contest the insufficiency of the documentary evidence,standing alone, but contended that, taken with the parolevidence, it made out an “ overwhelming case.” It was thereforenecessary for us to consider the parol evidence, which was directedto showing that the intestate had made the formal public declarationof an adoption as heir, which was essential to the present appellant’scase. I said in my judgment that the District Judge had not been'impressed with this evidence and had refused to act upon it; that isto say, I thought he had considered that evidence false and hadrejected it. My brother Middleton said that in his opinion thelearned District Judge had rightly rejected that evidence. Now,in review, the appellant. does not attack the judgment of this Courtas being erroneous upon the footing on which we treated the case,
( 107 )
but contends that the District Judge had not pronounced against IWI.the truth of the parol evidence in question, and that he (the appel- JanuarV 17-lant) is entitled to a definitive finding one way or the other upon Wbhdt J.that evidence. I listened with great attention to the argument ofboth the learned counsel who addressed us on this point, but in myopinion it is impossible to read the judgment of the Court belowwithout being convinced that the Judge did not believe the evidencein question, and that that, was the reason why he did not feel inclinedto place reliance on it, but disregarded it. It was not as if he hadnot weighed that evidence; on the contrary, he discussed it veryfully, and his remarks disclose ample grounds to'support his con-clusion.
For these reasons I think that the judgment under review shouldbe confirmed, with costs of the hearing payable by the appellant.
Middleton J.—
I am invited by counsel for the petitioner to review hay judgment-in this case principally on the ground that due weight was not givenby this Court to the oral testimony called on behalf of the petitionerto support his contention that he was adopted as a son by the in-testate for the purposes of inheritance, and so was the only personentitled to succeed to the estate of thp intestate; and secondly, that• the District Judge had not in reality rejected that testimony.
It was apparently considered by counsel for the appellant that theargument now used was a new one, i.e., that the oral testimony ledon behalf of the appellant, combined with the documents, constitutedtogether clear and distinct evidence of a public declaration by theintestate of the adoption for the purposes of inheritance of thepetitioner.
– I pointed out, however, that the argument which was used byMr. Walter Pereira on the first hearing before my brother Wendtand myself was in every respect similar to that adopted by thelearned Soiicitor-General on the hearing in review, and was dulyconsidered by m3 before writing my original judgment.
In my opinion there should be no doubt whatever as to the happen-ing of an event the consequence of which would be ,so importantto a family as adoption for inheritance. There should be clear andunmistakable evidence of a deceased's intention to put a personin the place of an heir who without such a nomination would haveno right whatever in the property of the deceased.
Sawer0 says (chapter 7 of the 3rd edition of his Digest) that a.regular adoption must be publicly declared and acknowledged, andit must have been declared and generally understood that suchchild was to be an heir of the adopting parent's estate.
I think also the question of relationship is important, the proba-bility of adoption for inheritance being increased by the fact ofconsanguinity with the adopter.
1007.
January 17.
Middleton
J.
In the present ease the District Judge said, as regards the oraltestimony, that he did not feel inclined to place reliance on thosestatements, and proposed to disregard that evidence, and dealwith the case as one depending on the documentary evidence.
In my view that is a judicial declaration of.his disbelief in the oralevidence, an opinion in which I entirely concur.
If the intestate had been minded to make the petitioner her heirby adoption, there were ample opportunities for making such adeclaration in the various deeds which she executed in his favour,in which it might have been set forth in unmistakable language.
It was admitted by the learned Solicitor-General that the docu-ments relied on do not by themselves conclusively show thatpetitioner was adopted for the purposes of inheritance. If, therefore,the oral testimony is rejected as untrustworthy, which I think is theview of the learned District Judge, and in which I concur, theappellant's case fails.
I am not prepared to subscribe to the argument used by thelearned counsel who replied for the appellant, that there was nodistinct and definite adjudication by the District Judge, and I wouldsustain the judgment of my brother Wendt, in which I concurred onthe original hearing in appeal, arid dismiss this further appealwith costs.
Judgment in, appeal confirmed.