NATCHIAPPA CHETTIAR v. PESONAHAMY

107-NLR-NLR-V-39-NATCHIAPPA-CHETTIAR-v.-PESONAHAMY.pdf


Natchiappa Chettiar v. Pesonahamy.377
1937Present: Hearne J. and Fernando A'.J.
NATCHIAPPA CHETTIAR v. PESONAHAMY.
279—D. C. Regalia, 10,784.
Kandyan law—Marriage of low-country Sinhalese with Kandyan woman inbinna—Issue subject to Kandyan law—Death of issue intestate—Parent’sright of inheritance—Ordinances Nos. 3 of 1870 and 14 of 1907—Ordi-nance, No. 23 of 1917, ss. 2 and 4.
Where a low-country Sinhalese was married in binna to a Kandyanwoman and the marriage was registered under the Marriage RegistrationOrdinance, No. 19 of 1907,—
Held, that under section 2 of Ordinance No. 23 of 1917, the issue ofsuch marriage was subject to Kandyan law' and that the mothersucceeded to the property of such intestate issue to the exclusion of thefather.
Held further, that sub-section (2) of section 4 of Ordinance No. 23 o‘f1917 does not require that a marriage which was to have the effectprovided for in section 2 should be registered under Ordinance No. 3of 1870.
The statement of objects and reasons published with a draftOrdinance may be considered in construing the Ordinance.
T
HIS was an action instituted by the plaintiff to have it declared thatone-eighth share of the land in dispute was liable to be seized and
sold in execution of a decree against one Podisingho, a low-countrySinhalese man who was married to the defendant, a Kandyan woman.
The defendant and her son Podiappu purchased a half share of the land.Podiappu died unmarried and leaving no issue. The question waswhether his share devolved on his mother alone according to the Kandyanlaw or on his father and mother according to the Roman-Dutch law.
The learned District Judge held that the defendant’s marriage withPodisingho was a binna marriage and that Podiappu was subject to theKandyan law.
C. Nagalingam, for plaintiff, appellant.—The question here resolvesinto what the issue is deemed to be in a case where a low-country Sinhaleseman marries a Kandyan woman. If the issue is held to be non-Kandyan,his property would on his death intestate devolve upon his father andmother ; but if Kandyan, would according to Kandyan law devolve onhis mother only to the exclusion of the father.
Vide Punchihamy v. Punchihamy1 where Wood Renton C.J. remarkedthat the whole question was in a nebulous state. The legislature thensteps in and Ordinance No. 23 of 1917 is passed to declare the law appli-cable to the issue of marriages.
– Section 4 (2) ‘ of this Ordinance has to be read with section 2. Thequestion as to binna or diga marriage has to be determined at the dateof the marriage. The law does not contemplate the difference betweena diga and a binna marriage, where the marriage is registered underOrdinance No. 19 of 1907.
Section 2 (b) conserves the rights even of those married under theOrdinance of 1907. In the case of those who could have married under
1 11915) l O. W. R. 35.
378Natchiappa Chettiar v. Pesonahamy.
!fc)
the Ordinance of 1870, but who nevertheless got married under theOrdinance of 1907, their rights have vanished. Section 2 (b) (ii.) definesthe rights of the parents and not of the issue.
Here the property is not inherited by the child, but purchased in thechild’s name. The section does not provide for cases where property isderived from the issue of a party.
If section 2 does not apply, the son is not a Kandyan. Would Ordi-nance No. 3 of 1870 have enabled a non-Kandyan to get married underKandyan law ? Vide Sophia Hamine v. Appuhamy1 where it was heldthat the Ordinance No. 3 of 1870 was applicable to Kandyans and not tolow-country Sinhalese resident in the Kandyan provinces.
The District Judge, instead of framing an issue as to whether the sonwas a Kandyan. or not, asks the question : Is the defendant subject toKandyan law or not ?
The term “ binna marriage ” applies where both parties are Kandyans.(Vide section 3 (2) (a) Of 14 1909 re the presumptions created by theOrdinance.)
Section 4 (2) of Ordinance No. 23 of 1917 enables a party to marry underthe Kandyan Marriage Ordinance, although he is not a Kandyan. Till1909, it was doubtful whether parties, both of whom were Kandyanscould get married under the general law.
. . E. A. P. Wijeratne, for defendant, respondent.—In the absence of adefinition of the term “ Kandyan ” in the Royal Proclamation of May 31,1816, Kandyan law was made applicable to everybody resident in theKandyan provinces. Vide Kershaw v. Kershaw and Nicholl". The husbandwas a Scotsman (the parties were from Scotland), and the wife who wasdomiciled in the Kandyan provinces was held to be subject to the Kandyanlaw. Later the application of the law was restricted to the Sinhalese.Vide Wijesinghe v. Wijesinghe * where it was held that it was applicableonly to Kandyan Sinhalese within the Kandyan provinces and thereforea low-country Sinhalese, though settled in the Kandyan provinces, wasnot governed by the Kandyan law. There was no attempt to givea definition to the term. Vide. Kapuruhamy v. Appuhamy ‘ where achild of a low country Sinhalese man who had become permanentlysettled in the District of Kandy and had married a Kandyan womanunder the Kandyan Marriage law was held not to be Kandyan andwas governed by the Roman-Dutch law. Vide Mudiyanse v. Appuamy r'.
The Kandyan law is a personal law, and it has been held that whereone of the parents was not a Kandyan the issue would not be Kandyans.Thus in spite of Ordinance No. 3 of 1870, Kandyans got married underthe general law of 1907. Although such marriages took place, twoseparate sets of consequences flowed from them, e.g., a dissolution of themarriage would be by a Court of law according to rules of Roman-Dutchlaw—contra in Kandyan law, one year’s separation and on applicationfor- cancellation of the marriage would be sufficient—but their rights asKandyans continue.
In an inquiry as to the nature of the marriage and as to the parties toit, and as to why this new Ordinance was introduced, we shall have to go
1,1922) 23 N. L. R. 353 (F. B.)2 (1891) 9 S. C. O; 199.
(1862) Ram. 1S7.1 (1910) 13N. L. R. 321.
*(1913) 16 N. L. R. 117.
Natcliiappa Chettiar v. PesonahamyJi379
back to the discussions in the Sessional Papers, &c., into the history ofthe enactment. The Ordinance was introduced to define the rights ofthe issue of a marriage. Vide Kuma v. Banda?
Definition of the term “ Kandyan ”. The preamble of OrdinanceNo. 13 of 1859 makes it clear that the term was applicable to a particularclass of people.
In section 4 of Ordinance No. 3 of 1870, the word “ marriage ” means amarriage between residents in Kandyan provinces. Europeans andBurghers were excluded earlier, but no mention is made of other Sinhalesein the Ordinance. For the meaning of the word “ resident ”, vide judg-ment of de Sampayo J. in Sophia Hamine v. Appuhamy
Section 9 of Ordinance No. 3 of 1870 refers to .those governed by thelaws, institutions in force among the Kandyans. Section 3 of OrdinanceNo. 14 of 1909 applies only to marriages of Kandyans, i.e.. of thos.e whomight lawfully have contracted a marriage under the amended OrdinanceNo. 3 of 1870. Both parties should be Kandyans.
Vide section 4 (2) of Ordinance No. 23 of 1917. For purposes ofOrdinances 1870' and 1907, the reference is to the parties to the“marriages ” and not to marriage ; in Kandyan parties, those who wouldotherwise be able to be married under Ordinance of 1870.
[Fernando A.J.—A person who is not entitled shall be deemed to havebeen entitled. That is the purpose of the section,]
If the marriage was not registered under Ordinance No. 3 of 1870,Kandyan law does not'apply.. But vide Ran Banda v. Kawamma*. Theraison detre of the authority is the Ordinance of 1917. There must be amarriage in hinna to enable a child to come under Kandyan law: — (1)A Kandyan man resident in the Kandyan provinces and married to alow-country woman, or (2) a low-country man living in binna with aKar -an woman. A binna father inherits nothing from a child. Herethe District Judge has found that the man lived in binna.
. [Fernando A.J.—To be recognized at law, must a binna marriage beregistered under Ordinance No. 3 of 1870 ?]
Where two Kandyans marry under the General Marriage Ordinance,it is a question of 'evidence as to whether the marriage is in, binna or indiga.
Nagalingam, in reply.—The arguments of the respondent support mycontention as regards the Ordinance of 1917. If not for section 2 (6) ofOrdinance No. 14 of 1909, parties both of whom were Kandyans andmarried under 1907 Ordinance would be in the situation that Kandyanlaw would not apply to them. Section 2 (b) retains to them the rights tosuccession under the Kandyan law.
Kandyans could marry under Ordinance No. 3 of 1870. The preambleto Ordinance No. 14 of 1909 removes doubts as regards their validity“ Kandyans ” have married under the General Marriage Ordinanceof 1907.
The words of Ordinance No. 3 of 1870 are imperative. So marriagesunder the Ordinance of 1907 are not valid according to the Ordinance of1870. What are the rights of Kandyans married under the 1907 Ordi-nance ? Section 2 (b) of Ordinance No. 14 of 1909' provided for the rights
J {1920) 21 N. L. R. 294 {F.B.).3 (1922) 23 N. L. R. 353 (F.B.) at 359.
6 C.L. Rec. 41.
380Natchiappa Chettiar v. Pesonahamy.
of inheritance, &c., of a person married under the Ordinance of 1907.not under the Ordinance of 1870. The 1909 Ordinance does not declare alaw ; it enacts a law ; it enacts certain provisions and introduces newprovisions. The language used is “ shall not be deemed to be invalid ”.The Courts have not declared that Kandyans could get married undereither Ordinance ; if not for section 2 (b) of the Ordinance of 1909.Kandyans married under the Ordinance of 1907 cannot succeed underKandyan law. Otherwise they would fall under the general law.
Section 4 of Ordinance No. 3 of 1870 refers to marriages where bothparties are Kandyans, and the Ordinance No. 23 of 1917 cannot applyunless both parties were Kandyans. Vide section 2 (a) “ Parties to themarriages ”. But for section 4 (2) of Ordinance No. 23 of 1917, the.Ordinance would be very wide. If section 2 (a) were to be construedalone, Kandyans could get married under any Ordinance or in anylocality, and their children would be Kandyans. But section 4 (2)must be read with reference to section 2—“ to contract marriages underamended Kandyan Marriage Ordinance ”. Section 4 limits to a particularform of marriage. If the parties are married under 1870 Ordinance, theconsequences are according to Kandyan law, but not so if married underanother Ordinance.
[Fernando A.J.—Where a low-country person marries a -Kandyanunder the Ordinance of 1870, then the 1909 Ordinance deems them to bemarried according to Kandyan law.]
Section 2 (2) would deal with the only class to which section 4 wouldapply, i.e., when both parties are Kandyans.
[Fernando A.J.—Section 2 applies equally to people married underthe Ordinance of 1907 or under 3 of 1870. The .question then is whethersection 2 is limited by section 4 (2).]
Ordinance No. 3 of 1870 was the only Ordinance whereby Kandyanscould have got married. Otherwise the union was unlawful. Semble—Tamils married outside the Thesawalamai. Where there is a specialOrdinance as- regards their own marriages, they could not be permitted„to marry under the general law.
Section 3 of Ordinance No. 19 of 1907 does not prevent Kandyansfrom getting, married under this Ordinance, the 1909 Ordinance waspassed to enable them to marry thereafter, and as regards earliermarriages it stated that they shall not be deemed to be invalid. Itenables Kandyans (who must get married under Ordinance No. 3 of 1870)to get married under the General Marriage Ordinance and it preservestheir rights under the Kandyan law.
In the case of a binna husband he had no security in the wife’s house,whereas under the Ordinance of 1907 there is no fear of his being turnedout by the father-in-law. Where the marriage was in binna, the hus-band’s consent was not needed for its dissolution, while mutual consentwas necessary for the dissolution of a diga marriage. But under theseOrdinances the capacity to contract a marriage and the grounds of its.dissolution were regulated by the general law of the land.
The term binna cannot arise where the marriage is between a Kandyan-and a non-Kandyan. If you remove section 4 of Ordinance No. 14 of1909 Kandyans cannot get married under the general law. Section 2cannot apply if they are persons not entitled to marry under the Kandyan
FERNANDO A.J.—Natchiappa Chettiar v. Pesonahamy.381
law. Construing section 2 (a) alone any marriage between a Kandyanand non-Kandyan would result in the issue being Kandyan. Section 4would otherwise catch up all future marriages, but here it is a limitationon section 2. The limitation is to confine the class of persons to thosewho can be deemed to have married under Ordinance No. 3 of 1870.
Cur. adv. vult.
September 17, 1937. Fernando A.J.—
There is no dispute with regard to the facts of this case. The defendantin this action and her son, Podiappu, together purchased a half share ofthe land in dispute so that each of them became entitled to one-fourth.The son Podiappu died unmarried and leaving no issue, and the questionis whether his rights devolved on his mother alone according to theKandyan law, or on his mother and his father Podisingho according tothe law of inheritance that applies to low-country Sinhalese. Theplaintiff seeks to have it declared that one-eighth share of the land isliable to be seized and sold under a decree in favour of the plaintiff againstPodisingho, on the footing that this share devolved on him as father ofPodiappu.
Admittedly the defendant is a Kandyan, whereas her husband Podi-singho was a low-country Sinhalese. These two were married under theMarriage Registration Ordinance, No. 19 of 1907.
The case for the respondent is that the defendant was married in binna,and that the issue of that marriage, namely, the deceased Podiappu washimself governed by the Kandyan law under the provisions of OrdinanceNo. 23 of .1917. Section 2, sub-section (b) of that section, provides thatthe issue of a marriage contracted in binna between a woman subject tothe Kandyan law and domiciled in the Kandyan province and a man notsubj- to the Kandyan law shall be deemed to be, and at all times tohave been persons subject to Kandyan law. The learned District Judgeaccepted this contention and held that the defendant’s marriage withPodisingho was a 'binna marriage and that Podiappu was therefore subjectto Kandyan law. The Proctor for the plaintiff admitted that on thatfinding Podiappu’s mother, the defendant, would succeed to the propertyof Podiappu to the exclusion of his father Podisingho.
Counsel for the appellant coriceeds that if section 2 of Ordinance No. 23of 1917 stood alone, then this appeal must fail. He contends, however,that the effect of section 2 (b) is limited by sub-section 4 (2). That sub-section is in these terms : “ For the purpose of the Amended KandyanMarriage Ordinance, 1870, and the Kandyan Marriages (Removal ofDoubts) Ordinance, 1909, the parties to the marriages referred to insection 2 of this Ordinance shall be deemed to be and at all times to havebeen persons lawfully entitled -to contract marriages under the saidfirst-mentioned Ordinance.” In view of this sub-section, Counsel for theappellant argued that the marriage of a woman subject to Kandyan lawand a man not subject to Kandyan law to come within section 2 of theOrdinance must be a marriage contracted by the parties under OrdinanceNo. 3 of 1870. Now Ordinance No. 23 of 1917 was, as it expressly states,enacted in order to declare the law applicable to-the issue of marriagesbetween persons subject to the Kandyan law, and persons not so subject.Ordinance No. 3 of 1870 in section 4 provides that the word “ marriage ”,
382FERNANDO A.J.—Natchiappa Chettiar v. Pesonahamu.
within the meaning of that Ordinance shall mean a marriage contractedby and between residents in the Kandyan provinces, and the positionwould appear to be that a marriage under that Ordinance can only becontracted between two persons who are both residents in the Kandyanprovince?. If then Ordinance No. 3 of 1870 is applicable to Kandyansalone and to marriages between two parties who are both Kandyans, andif Ordinance No. 23 of 1917 was to declare the law applicable to the issueof a marriage between a Kandyan and a party who was not a Kandyan,then Ordinance No. 23 of 1917 could not possibly refer to, or deal withmarriages contracted or to be contracted under Ordinance No. 3 of 1870.It must be remembered however, that it had been held by this Court that. persons who were Kandyans and subject to Kandyan law could contracta valid marriage either under Ordinance No. 3 of 1870 or under theMarriage Registration Ordinance of 1907, see Sophia Hamine v. Hendrick1and Ordinance No. 14 of 1909 had been enacted in view of this decisionand in order to remove doubts as to the validity of marriages betweenKandyans registered under the Marriage Registration Ordinance of 1907.Section 2 of that Ordinance enacted that it shall not be unlawful (in thefuture) to solemnize or to register any marriage under the provisions ofthe Ordinance of 1907, merely because the parties thereto are or wereKandyans. Ordinance No. 23 of 1917, does not expressly refer to marri-ages under the Ordinance of 1907, but it does refer to the Removal ofDoubts Ordinance of 1909. A Kandyan as such could contract a validmarriage either under Ordinance No. 3 of 1870 if the other party was alsoa Kandyan, or under Ordinance No. 19 of 1907 whether the other partywas a Kandyan or not, and it was never questioned that a person whowas not a Kandyan could contract a valid marriage under the Ordinanceof 1907.
In view of this legal position, it becomes necessary now to consider theeffect of section 4, sub-section ’(2), of Ordinance No. 23 of 1917. AsBertram C.J. said in Kuma v. Banda', “It is settled by a series of weightyauthorities that for the purpose of construing an Ordinance, where themeaning of it is doubtful and even where a doubt is suggested, though notentertained, it is legitimate to inquire into its history ”. He referred toHeydon’s case*, Stradling v. Morgan', and a number of other authoritiesand finally quoted from the judgment of Jessel M.R. (Holmes v. Guy c): —“ The Court is not to be oblivious …. of the history oflaw and legislation. Although the Court is not at liberty to construean Act of Parliament by the motives which influenced the legislature,yet when the history of law and legislation tells the Court what theobject of the legislature was, the Court is to see whether the termsof the section are such as fairly carry out that object and no other,and to read the section with a view of finding out what it means, andnot with a view to extending it to something that was not intended.(He then referred to the judgment of Lord Halsbury in the Solio caseand in view of that judgment he held that) “ it is legitimate for usto refer to official correspondence as well …. as to matters
of ordinary public knowledge ”.
1 4 Cey. Law Bee. 90.
* 21 N. L. B. 294.
» [1584) 3 Coke 7.
(1560) 1 Plowd. 201 ; 75 E. B.30S-(1876) 5 Ch. D. 901 at 905.
(1898) A. C. 576.
FERNANDO A.J.—Natchiappa Chettiar ». Pesonahamy.383
In view of this judgment in Kuma v. Banda {supra) it cannot be doubtedthat we are entitled to consider the Statement of Objects and Reasonswhich was published along with the draft Ordinance No. 23 of 1917 There is special reference in that statement to the provisions of section 4,sub-section (2), and the statement sets out that these provisions
'• are intended to set at rest any question which may arise as to regis-tration of marriages of the description referred to. Only marriages con-tracted according to the laws, institutions and customs in force amongstthe Kandyans between residents in the Kandyan provinces may in anycase be contracted and registered under the Amended. KandyanOrdinance, 1870. It might be questioned ” the statement proceeds,
*• whether marriages of the description with which the Ordinance deals,come within this category,” and the reference obviously is to marriagesbetween Kandyans and non-Kandyans which are affected by section 2.
“ In any case it is believed that many such marriages have beenregistered under the Amended Kandyan Marriage Ordinance, 1870.It may also be questioned whether the Kandyan Marriages Removalof Doubts Ordinance, 1909, embraces such marriages inasmuch asit only applies to marriages which may lawfully have been contractedunder the Amended Kandyan Marriage Ordinance, 1870. In thesecircumstances, it is thought expedient to declare that the parties tothe Marriages with which the Ordinance if concerned are lawfullyentitled, and have dt all times been lawfully entitled to contractmarriages under the Amended Kandyan Marriage Ordinance, 1870.”What then was the intention of the legislature in enacting section 4,sub-section (2), as far as that sub-section applies to the question now beforeus? The answer seems to me obvious. Ordinance No. 23 of 1917proposed by section 2 to declare the status of the issue of marriagescontracted between a man subject to Kandyan law and a woman notsubject to Kandyan law, as well as marriages contracted in binna betweena woman subject to Kandyan law and a man not subject to that law,and section 4, sub-section (2), was enacted to set at rest any question whichmay arise as to the registration of the marriages referred to in section 2.The effect of section 2 was only confined to the issue- of a marriage con-tracted by certain persons, and obviously such a marriage must be avalid marriage recognized by law. When it became necessary to applysection 2 to the issue of a union between a Kandyan and a non-Kandyanthe question would naturally arise whether such a union constituteda marriage, and incidently whether such a union or marriage could havebeen registered under Ordinance No. 3 of 1870. That question mightagain depend on the capacity of the parties to contract a marriage, andif the marriage had been registered under Ordinance No. 3 of 1870 thatquestion might be answered against the validity of the marriage inasmuchas Ordinance No. 3 of 1870, as the statement of objects and reasons itselfsets out, would only apply to marriages contracted between residents in^the Kandyan provinces. For these reasons section 4, sub-section (2), wasintended to-declare that the parties to the marriages which are' referred toin section 2 and which had been registered under Ordinance No. 3 of 1870were deemed to be lawfully entitled, and to have at all times been lawfullyentitled to contract marriages under that Ordinance. Ordinance No. 14
1 Gazette No. 6,857 pt. 2 of March 2, 1917, p. 155 at 157.
384FERNANDO A.J.—Natchiappa Chettiar v. Pesonahamy.
of 1909 only declared valid such marriages between Kandyans as hadbeen registered under the Ordinance of 1907, so that once section 4,sub-section (2), came into operation, the legislature had by two separateenactments declared that marriages between Kandyans and non-Kandyans whether contracted under Ordinance No. 3 of 1870- or of 1907shall be valid marriages if the provisions of those Ordinances had beencomplied with, and that for the purposes, of those marriages, the parliesthereto shall be deemed to have been parties who were legally entitled toenter into those marriages.
Counsel for the appellant, argues, however, that sub-section (2) ofsection 4 of Ordinance No. 23 of 1917 only declares valid such marriagesas are contracted under Ordinance No. 3 of 1870 by enabling the non-Kandyan party to enter into such a contract of marriage. This is nodoubt correct because as the statement of objects and reasons shows thatwas the only doubt which the legislature had in view. ' The legislaturedid consider the effect of Ordinance No. 14 of 1909 and while it realizedthe obvious effect of that Ordinance, namely, to declare valid any marriageto which a Kandyan was a party which had been registered under Ordi-nance No. 19 of 1907, it still considered the possibility of a doubt arisingas to whether that Ordinance also validated a marriage contracted by aperson who was subject to Kandyan law with a non-Kandyan whichmarriage had been registered under Ordinance No. 3 of 1870. It is clear,however, that it was never intended by the provisions of section 4,sub-section (2), to require that in future a marriage which was to have theeffect provided for in section 2 should be registered under Ordinance No. 3of 1870. For these reasons I think the contention for the appellant mustfail.
Counsel for the appellant also argued that a marriage in binna couldonly be contracted under Ordinance No. 3 of 1870. It is no doubt truethat in a marriage under that Ordinance, the Registrar is required bysection 20 to ask the parties the several particulars required to be regis-tered including’ the nature of the marriage, whether contracted in digaor binna. Section 4, however, does not limit the marriage contracted inbinna referred to in section 2 to a marriage contracted under OrdinanceNo. 3 of 1870. On the contrary it provides that the expression, “ marriagecontracted in binna ” shall include any marriage contracted in suchcircumstances that if both parties were subject to' Kandyan law, suchmarriage would be a binna marriage. In other words, the Ordinancehad in view the fact that men who were not subject to Kandyan law hadcontracted marriages with Kandyan women in such circumstances aswould constitute a binna marriage if both parties had been Kandyans.The question then whether the marriage was in binna or not would dependnot on the declaration of the parties to the Registrar, but on the circum-stances of the marriage, and such circumstances could be proved by oralor other evidence. The' learned District Judge has held in this instancethat the marriage between Podisingho and the defendant was a binnamarriage, and I see no reason to disagree with that finding.
The appeal has, therefore, failed on all points, and is dismissed with costs.
Hearne J.—I agree.
Appeal dismissed.