022-NLR-NLR-V-53-MANELHAMY-et-al.-Appellants-and-SILINDUHAMY-et-al.-Respondents.pdf
Menelhamy v. Sitinduhamy
137
1951Present : Gratiaen J. and Polle J.
MANBLHAMY et al., Appellants, and S1LINDUHAMY et al.,
Respondents
o.Q. 67—D. G. Kurunegala, 3,781
Kandyan Marriage Ordinance {Cap. 96)—Marriage contracted prior to parsingof Ordinance—Binna or diga—Burden of proof—Section 3ft.
In regard to a Kandyan marriage contracted before the Kandyan MarriageOrdinance was passed, the burden of proving that the marriage was in digais on the person who asserts it.
In the absence of a certificate of the registration of a marriage under theKandyan Marriage Ordinance there is no scope for the application of thepresumption created by section 36.
^AlRREALi from a judgment of the District Court, Kurunegala.
H. W. Jayewardene for the 1st, 2nd and 3rd defendants appellants.
.V. E. Weerasooria, K.G., with C. E. Jayewardene and E. 0. F. de Silva,for the 4th and 5th defendants respondents.
C. R, Grunaratne, for the plaintiff respondent.
Cut. adv. vult.
138
PULLE -T.—Manelhamy c. Silinduhamy
May 10, 1951. Pullog J.—
The appellants in this case are the 1st, 2nd and 3rd defendants in anaction instituted for the partition of a land called Kongahamulawatta.Admittedly the original owner of the land was one Ausadahamy whodied leaving two sons. Appuhamy Vedarala and Mudalihamy, and threedaughters, Kirimenika, Yasohamy and Qunamal Etana. The plaintiffis the son of Kirimenika and the appellants are the three sons of Mudali-hamy. A sister of the appellants Ukkumenika was married to theplaintiff. It was common ground that Gunamal Etana was married indiga. One of the points of contest in the case was whether Kirimenikaand Yasohamy were both married in diga. It was the case for theappellant that they were so married. The learned District Judge heldagainst the appellants and at the hearing of the appeal the finding inregard to Kirimenika was not challenged. The argument was confinedto the question whether the finding that Yasohamy was not married indiga was wrong.
There was no evidence as to whether Yasohamy was married beforeor after passing of the Kandyan Marriage Ordinance (Cap. 96). It wassubmitted on behalf of the appellants that in the absence of any specificevidence in regard to the character of the marriage one should start withthe presumption that Yasohamy was married in diga. In respect ofmarriages contracted before the Ordinance was passed there is onepassage in the judgment in D. C. Kandy Case No. 22,692 reported in(1833-1850) Austin Reports p. 141 according to which, in the absence ofpositive proof of a diga marriage, the Court will presume in favour ofa binna one. The current of authorities is, however, to a different effect,namely, that the burden rests on the person who asserts that a marriagewas diga to prove it. It was so held in D. C. Kandy Case No. 51,219,
(1860-1871) VandeT8traaten Reports p. 92 and in the case of PunchiNilame and another v. Dingin Etana and others' 1 and Doretu.gp.we v.Ukku Banda Korale and others 2. The same view was taken in S. C.No. 222—D. C. Keg alia Case No. 9,563, Supreme Court Minutes of 1stAxigust, 1933. I am indebted to Mr. C. R. Gunaratne for a reference tothis unreported case.
If, as is not unlikely, Yasohamy was married after the passing of theKandyan Marriage Ordinance there would still be no room to start withthe presumption that she was married in diga. Whether she was marriedaccording to the provisions of that Ordinance or under the MarriageRegistration Ordinance (Cap. 95) we do not know. No certificate ofmarriage has been produced and there is no scope for the application ofthe presumption contained in section 36 of the Kandyaiv Marriage Ordi-nance which states that if it does not appear in the register whether _the marriage was contracted in binna or in diga, such marriage shall bepresumed to have been contracted in diga until the contrary is shown.In the absence of a statutory presumption in favour of the existence orthe non-existence of a fact one would, have to fall back on the ordinaryrule as to burden of proof, namely, that it rests on the person who asserts
the fact.
1 {1909) 1 Cur. L. It. 239
(1909) 1 Cur. L. R. 259.
Stnnathamby v. Jinasena
139
According to the plaintiff Yasohamy had three children Ukku Banda,Unguhamy and Baba Etana. His evidence reads as follows: —
“ Ukku Banda was brought up by Mudalihamy. Mudalihamy wasin the mulgedera. Unguhamy and Baba Etana also lived in the mul-gedera. All the three Ukku Banda, Unguhamy and Baba Etana werein my uncle’s house. They were brought up there It is true that-another witness called by the plaintiff himself stated that Yasohamywas not in the mulgedera and that her children did not come to the houseof Mudalihamy. The learned District Judge has come to a specificfinding that Ukku Banda was in possession of the land sought to bepartitioned. I find it impossible to take the view that the learned Judgewas wrong in rejecting the appellants' contention that Yasohamy wasmarried in dig a. The fact that Kirimenika the sister of Yasohamyconveyed to the plaintiff a Jth share indicates that the position had beenlong accepted that only one out of the three daughters was married indiga. A point has been made that the 6th-llth defendants to whomYasohamy’s Jth share had been allotted by the plaintiff did not appearand claim their shares. Taken by itself that would not be a groundfor construing it as an admission on their part that Yasohamy wasmarried in diga. If the view which I have expressed is correct that theburden rested on the appellants to prove a diga marriage the appellantshave wholly failed to show that the finding is wrong.
I would dismiss the appeal with costs.
Gratiaen J.—I agree.
Appeal dismissed.