( 449 )
Present: De Sampayo J. and Schneider A.J.MOHOTHIHAMY et al. v. MENIEA et al.
198—D. 0. Regatta, 4,968.
Kandyan marriagecontracted before 1870—Proofof cohabitation
and repute notenough—Observanceof ‘ Kandyan customs—
Ordinance No. 3 of 1870, s. 36.
Though under the .ordinary lawevidence ofcohabitation and
reputemay besufficient toraiseapresumption ofvalidmarriage
undersection26of OrdinanceNo.3of 1870, someproofmust be
given of the observance of the laws, institutions, and customs inforce in Sandy at the time of marriage.
11 *RF, facts appear from the judgment of the District Judge(H. E. Beven, Esq.): —
The land in dispute in this case between the plaintiffs and defendantsis the block of 61 acres and 2 roods within the boundaries coloured pinkin plan No. 1,682 filed. This land waB part of a larger land called theMahinkandegallatwasama, some 316 acres in extent, which belongedto four families. One of these families was the Akurukiyana Gan-laddalage family, which was admittedly entitled to a one-fourth share.This one-fourth share was vested in one Akurukiyana GanladdalageNaidehami,. as whose . grandchildren the plaintiffs base their presentclaim.
Naidehami died intestate, leaving as his heim his three sons,Seetalahamy, Balahamy, and Juanhamy. In their plaint the plaintiffsset out title to a one-sixth share (less 25 acres alienated by Balahamyin his lifetime) as the. heirs at law of Seetalahamy and Balahamy,the offspring of whose associated marriage they alleged they were.But at the trialthey abandonedthatportion and claimed a one-twelfth
share only as the children of Seetalahamy alone. The reason for thischange of attitude is not far to seek, and I will allude to it later.
The defendants base their claim to the entirety of the dividedblock coloured pink upon a deed of partition entered into betweenthe co-owners, No. 964 of January, 1904, whereby the entirety of thisland wasallottedtothe second defendant’spredecessors intitle,Singappu
and first defendant, Punchi Monika (see D 2). The defendants taketheir stand upon this deed, and maintain that, inasmuch as the plaintiffscame into a partition case whereby the whole “ ganwasama ” waspartitioned, and in which case they claimed and were allotted sharesunder and by virtue of this deed, and so took benefit thereunder, theyare now debarred from reprobating that deed, and reopening thecontract embodied in it.
From this state of’ facts two main question arise for derision:The first, whether the plaintiffs are the children of Seetalahamy;. andthe second, whether by reason of the partition deed D 2 and ‘proceedings ofthe partion case No. 4,182, Eegalla, it is now open to the plaintiffs to claim” an undivided share of the whole 1 ganwasama. ’ ”
( 450 )
Astothe first point,theonus is strictly on the plaintiffs to prove
that they are the legitimate children of Seetalahamy. Now, theplaintiffs haveon thisquestion at various timesclaimed to be’the
children of one or the other or of two out of the three brothers.
To beginwith,theplaintiffs (whowerethe fifteenthand sixteenth
defendants inthat case)acquiesced in the allegationmade in theplaint
filed inD.C.4,182, paragraph 6, that they were the childrenof Jnan-
hamy, andon thatfooting claimed intheiranswer tobeentitledto a
shareinthe lotawardedtoJuanhamy by deed D 2 (see paragraph 8
of answer),and inthedecree in thatcasewere dulyalldtted theshare
so claimed (see D 6).
Next,intheir plaintin this casethey claimed to be theoffspring
of SeetalahamyandBalahamybyan associated marriage.Finally,
they set up a claim to a share as the children of Seetalahamy alone.
Now, the evidence inthe case shows that thethree brotherslived
in one house withthewoman DingiriMenike, and itisapparentthat
she was theircommonwife. Her marriage with none of them was
Inthe birthcertificateofHamy (P 1) her parents are described as
It will benoted inthat document Seetalahamy’sname iB given
as thatofthefatherof Hamy,butit is also significant that it was
Balahamy who was the informant, though, according to Dingiri Menike’sevidence, Seetalahamy was then alive.
This wouldseem toindicate that Seetalahamyand Balahamywere
both living with Dingiri Menike as their wife.
Again, ‘though DingiriMenikedeniesthat Juanhamywasmarried or
had children, the death certificate (P 2) of Juanhamy proves the contrary.
The .nameof theinformantonthat documentisGanladdalage
Punchi Appuhamy, who is described, as the son of the deceased. But,accordingtothe evidence ofDingiri Menike,Punchi Appuhamywas
her son by Balahamy.
I thinkitis quiteclear from theabove thatthethree brotherslived
in a sort ofassociatedmarriagewithDingiri Menike.Butan associated
marriagesince December 7,1859,is illegal, andthe offspringare
illegitimate. This isthereasonwhy plaintiffsreceded fromthe
position takenup inthe plaintthatthey werethechildren of Seetala-
hamy and Balahamy by an associated marriage.
There is further no proof that, even if Seetalahamy alone was thehusband of Dingiri Menika, their marriage was contracted prior to1870. AllmarriagescontractedsinceOrdinanceNo.3 of 1870came
into operation are illegal unless registered.
DingiriMenike hadthreechildren, the youngestof – whom wasbom
in 1875,so that itis probableher marriage took place since1870,
at least it is possible Dingiri Menike tried to fix the date of the marriageby saying that she lived with Seetalahamy for ten or twelve years,and that Seetalahamy died two years after Hamy was – bom, i.e., in1877. But in cross-examination she admitted she was unable, to saywhether Seetalahamywas alive or dead when Balahamy registered
Hamy’s birth in 1876. I decide issues 1 and 2 against the plaintiff asto prescription; the defendants have undoubtedly been in possession since thedeed of partition was executed in 1904.
( 451 )
I an of opinion, as regards issues 5 and 6, that the plaintiflB havingtaken benefit inthe partition case under andby virtue ofthedeed
of partition andin their capacity as childrenof Juanhamy,whowas
himself a partyto the deed of partition, arenow debarredbomre-
probating the contract embodied in it. For these reasons I dismissplaintiff’s action, with costs.
Bawa, K.G. (with him J. W. de Silva), for plaintiffs, appellants.
M. de Saram, for defendants, respondents.
October 8, 1919. De Sampayo J.—
The main question in this case is whether the paintiffs are thelegitimate children of Seetalahamy. The District Judge consideredthat Seetalahamy and his two brothers, Balahamy and Juanhamy,lived in association with the plaintiff’s mother, Dingiri Menike,and that, as associated marriages were illegal since the OrdinanceNo. 13 of 1859, the plaintiffs were illegitimate. The evidence ofDingiri Menike, however, was that she was married to Seetalahamy,and upon this the District Judge remarked that, even if Seetalahamywas the sole husband of Dingiri Menike, as there was no proof thattheir marriage was contracted prior to the Ordinance No. 3 of 1870,the marriage was illegal without registration. But, I think, allthe evidence indicates that if there was a marriage between Seetala-hamy and Dingiri Menike it was contracted before 1870, and theprovision of section 25 of the Ordinance No. 3 of 1870 applies.This section, however, requires that the marriage should have been“ according to the laws, institutions, and customs in force in Kandy ”before the date of the Ordinance No. 13 of 1859. Dingiri Menikeonly gave general evidence that she was married to Seetalahamy,without stating the circumstances and without giving any details.Under the ordinary law evidence of cohabitation and repute maybe sufficient to raise the presumption of a valid marriage. I can-not say that in this case there is even such evidence, but in myopinion, under section 25 of the Ordinance No. 3 of 1870, somethingmore must be proved.
The Kandyan Marriage Ordinance established registration as theonly valid form of marriage between Kandyan parties, and I thinkthat, in order to enable a party to take advantage of the exceptioncreated by section 25, some proof, however slight, must be givenof the observance of “ the laws, institutions, and customs in forcein Kandy ” at the time of the marriage. This being so, the plaintiffsmust, I think, be held to have failed in the nece’ssary proof of avalid marriage between Dingiri Menike and Seetalahamy, especiallyin view of the fact, which the learned Judge notes, that the plaintiffsat various stages changed their attitude as to who was their father.It is very possible, so far as the evidence goes, that the associationof Dingiri Menike with Seetalahamy was an irregular one, just as
( 452 )
it was with Balahamy and Juanhamy. The first issue being thusdecided against the plaintiffs, it is not necessary to consider thedefendant’s plea of prescription. If it were necessary, however,I should say that the evidence of possession was hardly sufficient,though the circumstances make it very probable that the defendantshad prescriptive possession.
On the first ground I am of opinion that this appeal should bedismissed, with costs.
Schneider A.J.—I agree.