MANIAPILLAI AND OTHERS v. SIVASAMY

034-SLLR-SLLR-1980-V-2-MANIAPILLAI-AND-OTHERS-v.-SIVASAMY.pdf

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MANIAPILLAI AND OTHERS v. SIVASAMYCOURT OF APPEALSOZA.J.& RODRIGO, J.
C.A. (S.C.) 391/70 F.D.C.. JAFFNA 2982 (L)
JULY 16, 1980
Vindicatory Action – Evidence Ordinance, sections 32 (5), 32 (6) and 50.
The plaintiff claimed the land in dispute on the footing that he was the solesuccessor in title of one V, who’s daughter P, died issueless. It was not in disputethat V was married to one Annamuttu and P was their issue. The first and thirddefendants claimed the land also from V, who they said had a son K, by an earliermarriage of V to one Analetchumi and they alleged that on the death of Pissueless, they became entitled to the land as heirs of K. V’s marriage toAnaletchumi was in dispute and no certificate of marriage was produced. Thedefendants relied on Deed D3 of 1907 whereby V and his father S donated a landto K who was described as a son of V and a grandson of S; and on the certificateof marriage of K D4 in which his father’s name was given as V. As against thesedocuments the certificate of marriage of V to Annamuttu P4 wherein V haddeclared his civil condition as bachelor representing thereby he was not marriedearlier was produced. It was argued for the defendants that by virtue of theprovisions of sections 32(5), 32(6) and 50 of the Evidence Ordinancedeclarations in D3 and D4 raised a presumption that K was a legitimate child of V.
Held:
P4 is a more solemn document than D3 where the declarant was bound bystatute to declare the truth. Sections 32(5), 32(6) and 50 of the EvidenceOrdinance refer to relevance and admissibility and not to presumptions. But suchevidence can always be countered by other evidence, as in this case, byevidence more convincing and cogent.
Cases referred to:
Wijesekera v. Weiiwitigoda (1958) 62 NLR 158.
Fonseka v. Perera (1957) 59 NLR 364.
Cooray v. Wijesuriya (1958) 62 NLR 158.
Slaneyv. Wade (1836) 7 Sim. 595.
Smith v. Teb/ff (1887) P & D (LR) Vol. 1 P364.
Chandreswar Prasad Narain Singh v. Bisheshwar Pratab Narain Singh AIR1927 Patna 61.
Kidar Math v. Mathu Lai (1913) 1 LR 40 Cal 555.
Silva v. Silva (1942) 43 NLR 572.
Allis v. Nandawathie (1971) 75 NLR 191.
APPEAL from the order of the District Court of Jaffna.
D. R. P. Goonetilleke with Keerthi Sri Tillekeratne and C. Catheramanpulle for the1st, 2nd and 3rd defendant-appellants.
C. Renganathan, O.C. with K. Kathiravelupillaifor the plaintiff-respondent.
Cur adv vult.
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Maniapillai and Others v. Sivasamy (Soza, J.)
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7th August, 1980.
SOZA, J.
This is a vindicatory suit instituted by the plaintiff-respondent againstthe three defendant-appellants claiming title to the allotment of landcalled Kanraithoddam and Elaiyanvadali described in the schedule Bto the plaint. The plaintiff claims this land on the footing that he is thesole successor in title of one Sinnapodi Velupillai whose onlydaughter and heir Paripooranam died issueless. The 1st and 3rddefendants claim this land also from Sinnapodi Velupillai who theysay had a son Kailasapillai by an earlier marriage. Kailasapillaisucceeded to the whole land on the death of his step-sisterParipooranam, and on his death the land passed to his children andheirs the 1st and 3rd defendants. The 2nd defendant is the husbandof the 3rd defendant. It must be added that during the pendency ofthis appeal the 1st defendant-appellant died and substitution hasbeen duly made.
The resolution of the dispute that arises in this appeal depends onthe answer to the question whether Sinnapodi Velupillai married oneAnnaletchumi and had a child Kailasapillai by her. There is nodispute that Velupillai married Annamuttu in 1900 and had a childParipooranam by her. The legitimacy of Paripooranam is not indispute. If Kailasapillai was not born of lawful wedlock thenParipooranam becomes the sole heir of Velupillai and the defendant’sclaim would become untenable. Neither the birth certificate ofKailasapillai nor the marriage certificate of Sinnapodi Velupillai andAnnaletchumi has been produced. No serious attempt has beenmade to prove a marriage by habit and repute between Velupillai andAnnaletchumi and, indeed, the evidence is too tenuous to warrantsuch a conclusion. The Court is however invited to presume a validmarriage on the strength of deed No. 3873 (marked D3) of 20th May1907 whereby Sinnapodi Velupillai and his father Vyravi Sinnapodidonated a land to Kailasapillai who is described as the son ofVelupillai and grandson of Sinnapodi. There is also the certificate ofmarriage (D4) of Kailasapillai where his father’s name is given asSinnapodiyar Velupillai. As against this there is the document P4which is the certificate of marriage of Sinnapodi Velupillai when hemarried Annamuttu. There Velupillai declares his civil condition asbachelor, in other words representing that he was not married earlier.This marriage certificate is dated 5.8.1900. According to themarriage certificate of Kailasapillai he was 36 years old at the time hemarried in 1925. Therefore he would have been born in 1889; so thatat the time that Velupillai married Annamuttu, Kailasapillai was a boy
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of about 11 years of age. Hence the marriage of Kaiiasapillai’smother to Velupillai, if there was such a marriage, should have takenplace before 1900. But, as I said before, the certificate of such amarriage is not before Court. The death certificate of Annaletchumior, if she was not dead by 1900, a decree of divorce would also havebeen relevant material but neither has been produced.
Learned Counsel for the appellant relied strongly on thedescription of Kailasapillai as his son by Velupillai himself in the deedD3. In fact Velupillai’s father who joined in this deed has describedKailasapillai as his grandson. The deed D3 was a donation and wasaccepted by S. Arumugam, plaintiff’s own father. On the same datethe Deed P1 had been executed by Velupillai and his father in favourof Paripooranam. This too was a donation and accepted by theplaintiff’s father.
The argument advanced by learned counsel for the appellant isthat by virtue of the provisions of sections 32(5) and (6) and section50 of the Evidence Ordinance the declarations in the deed D3 andthe marriage certificate D4 raise a presumption that Kailasapillai is ason, that is, a legitimate son of Velupillai. Under section 32(5) for astatement of a dead person regarding relationship by blood,marriage or adoption to be admissible two conditions must befulfilled:
Firstly such person should have had special means ofknowledge of such relationship.
Secondly such statement should have been made before thequestion in dispute was raised.
These safeguards are insisted on as guarantees of truth ofevidence which is really hearsay, before it becomes admissible. Butfor this provision, matters of family history, especially of the dim pastwould become incapable of proof and result in injustice. Thus ahusband would have special means of knowledge of his marriageand if his statement on this question was made before the disputearose it would be admissible – Wijesekera v. Weliwitigodam. It isimportant that the statement should have been made ante litemmotam. This is because its truth cannot be tested by cross-examination. A statement made after the dispute arose in the hope ofsecuring some advantage to the maker would be devoid of anyweight and inadmissible – (Fonseka v. Perera{2)).
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Under the provisions of section 32(6) of the Evidence Ordinancewhen a statement of the deceased person relates to the existence ofany relationship by blood, marriage or adoption between deceasedpersons it will be admissible provided-
it is made in any will or deed relating to the affairs of the familyto which any such deceased person belonged, or in any familypedigree, or upon any tombstone, family portrait or other thingon which such statements are usually made, and
it was made before the question in dispute was raised.
Section 50 of the Evidence Ordinance makes relevant the opinionexpressed by conduct, as to the existence of relationship of anyperson who as a member of the family or otherwise has specialmeans of knowledge of such relationship.
It is under these provisions, to wit, section 32(5) and (6) andsection 50 of the Evidence Ordinance that it is possible to admitevidence, otherwise hearsay, of deceased persons figuring in agenealogical tree such as one often comes across in a partitioncase. – see Cooray v. WijesuriyaiS). It should be observed that theseprovisions deal not with presumptions but only with relevance. Thereis no doubt that the declarations regarding relationship found in D3and D4 are relevant and admissible. But these declarations must beassessed and evaluated in the context of the other evidence in thecase.
Learned Counsel for the appellant contended that the declarationsin the documents D3 and D4 raise a presumption of legitimacy andsought to support himself with references to several cases.
The first of these was the case of Slaney v. Wadem. Here the Courtheld that an inscription giving an account of a family on the wall of achannel in a church in which some members of the family who hadresided and held property in the parish, were buried was goodevidence of the pedigree. Apart from the mural inscription the Courtalso held that on the question of legitimacy a recital in a deed thattwo parties were married was evidence from which legitimacy couldbe inferred though the strength of the evidence was weakened bythe fact that at the baptism the name of the mother had beenomitted. It must be observed that the Court was here consideringuncontroverted evidence.
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In the case of Smith v. Tebiff<s) the Court held that the statement ofa deceased relative of the family is evidence of the pedigreeprovided it had been made ante litem motam. An essentialprerequisite however was that it should be proved by someindependent source of evidence. Further the person making thestatement should have been related to the family about which hespoke. When the statement made in a deed was that another personwas the maker’s sister it means that person’s legitimate sister. Sir J. P.Wilde who decided this case said as follows at p. 358:
“When people speak of a man or woman as their brother orsister, son or daughter, unless they say something to thecontrary, I think the meaning is legitimate son or daughter,brother or sister”, (emphasis mine)
What the Judge says here is that when a person calls another hisson, he should ordinarily be understood to mean his legitimate sonunless he says something to the contrary. In the case ofChandreswar Prasad Narain Singh v. Bisheshwar Pratab NarainSingh’-6′ Das J. considered the effect of a statement by a deceasedperson (in an application for letters of administration with willannexed) that certain named persons were his near relations. It wasnot open to doubt that the applicant for letters had special means ofknowledge as to the relationship and that the statement wasadmissible under section 32(5) of the Indian Evidence Act (identicalwith section 32(5) of our Evidence Ordinance). The Court howeverhad before it as a separate question the weight that could beattached to such a statement (see pp 71 and 72). The Judge alsoruled as admissible a statement in the will that a named person wasthe adopted son of the testator (see p 78). In Kidar Math v. MathuLalP) the Judicial Committee of the Privy Council held that a will madeby a lady to whom succession was being sought, naming certainpersons as relatives on her husband’s side was conclusive on thequestion of relationship in the light of the circumstances in the case.The deceased lady had said she had no issue or near relative. Shehad named Mathu Lai the respondent as related to her “as adaughter’s son” and one Khairati Lai as her husband’s youngerbrother. Their Lordships adopted a significant test. The lady haddeclared in the most solemn form facts which would have beenwithin the scope of her own knowledge. If the lady, being alive, hadtestified in a Court of Law in the same sense so the will declaredthere could have been no answer. In the case of Silva v. Silva(8).Soertsz, J. held that statements occurring in Birth Registers kept by apublic officer in compliance with a statutory requirement afford
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prima facie proof of the fact of birth, the date of birth, place of birthand identity of the person registering the birth. Again, inasmuch asthe declaration of parentage in that case was made by the father whohad special means of knowledge it had a genealogical value undersection 32(5) of the Evidence Ordinance. But of course in regard tothese matters the evidence is open to challenge and rebuttal. Thiscase was referred to with approval by Wijayatilake J. in the case ofAllis v. Nandawathie{9).
The declaration in deed D3 would if there was no contrarydeclaration by its maker be sufficient to sustain a finding thatKailasapillai is the legitimate son of Velupillai. But in the instant casewe have a contrary declaration by Velupillai himself when he marriedAnnamuttu – see P4.
The principle is that the Court should as far as possible interpretthe documents in a manner that will give effect to their manifestcontents. The marriage certificate P4 describes Velupillai as abachelor and the deed D3 describes Kailasapillai as Velupillai’s son.Ordinarily the description in D3 would entitle the Court to hold thatKailasapillai was the legitimate son of Velupillai. But to do so in theinstant case would contradict the express declaration evidenced byP4, which Velupillai made when he married Annamuttu. WhileVelupillai was under no compulsion to declare the truth when heexecuted the deed D3 he was bound to make true declaration at thetime he married Annamuttu in 1900. The document P4 is a moresolemn document where the declarant is bound by statute to declarethe truth than the deed D3. Further one can reconcile the contents ofthe two documents by interpreting the statement that Kailasapillaiwas a son of Velupillai as meaning that he was a natural son and nota son born of lawful wedlock.
Sections 32(5) and (6) and section 50 of the Evidence Ordinancerefer to relevance and admissibility and not to presumptions. Nodoubt the Courts would lean towards holding a person legitimatethan otherwise. All that the provisions of sections 32(5) and (6) andsection 50 of the Evidence Ordinance stipulate is that declarationssuch as are made in D3 and D4 are relevant as evidence. But suchevidence can always be countered by other evidence, as in thiscase, by evidence more convincing and cogent.
The learned District Judge therefore rightly held that Kailasapillaiwas not born of lawful wedlock. Accordingly he is not entitled to anyclaim to succession as on intestacy to the interests of Velupillai. In

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the result Paripooranam must be declared the sole heir of Velupillaiand the land described in the deed P1 devolves solely on her.
It should also be added that on the very day that the deed P1 wasexecuted there was also executed the deed D3 whereby Velupillaidonated to Kailasapillai a portion of the family estate. What thedefendants who are the heirs of Kailasapillai are now trying to do is todeprive Paripooranam’s heirs of their legitimate interests whileholding on to the interests which Kailasapillai received. The claim ofthe defendants is therefore neither just nor legal. In the result theplaintiffs must be declared entitled to the land in suit. We see noground to interfere with the findings of the learned District Judge. Hisjudgment is affirmed and this appeal is dismissed with costs.
RODRIGO, J. -1 agree.
Appeal dismissed.