037-NLR-NLR-V-62-P.-M-COORAY-et-al-Appellants-and-M.-A.-P.-WIJESURYA-Respondent.pdf
168
Oooray v. Wijeeuriya
Present: Basnayake, C.J., ‘and Sinnetamby, J.P. M. COORAY et al., Appellants, and M. A. P.WIJESURIYA, Respondent
S. G. 26—D. C. Kalutara, 29505JL
Partition action—Duty of Court to examine title of each 'party—Proof of pedigree—-Statements in deeds—Evidential value thereof—Partition Act, No. 16 of 1951 r88. 25, 26 {f), 48—Evidence Ordinance, 88. 32 (5), 32 (6), 50 (2).
Section 25 of the Partition Act imposes on the Court the obligation to-exami'ne carefully the, title of each party to the action.
Before a Court can accept as correct a share which is stated in a deed tobelong to the vendor there must be clear and unequivocal proof of howthe vendor became entitled to that share. Apart from proof by the productionof birth, death and marriage certificates, the relevant provisions of theEvidence Ordinance in regard to proof of a pedigree are to be found in section#32 (6), 32 (6) and 60 (2).
SINXETAMBY, J.—Cooray v. Wijesuiriya
159^
A
^APPEAL from a judgment of the District Court, Kalutara.
H. W. Jaycwardene., Q.C., "with Cecil de S. Wijeratne, for 2nd to 5th.Defendants-Appellants.
L. Jayasuriya, with S. D. Jayasundera, for Plaintiff-Respondent.
Cur. adv. vult.
October 30, 1958. Sinketambt, J.—
This is a partition case to which the provisions of the Partition ActNo. 16 of 1951 apply. The plaintiff sought in this case to partition thatportion of the land called Kahalagodaya watte depicted in plan P 1 aslot A. The 2nd to 5th defendants, who alone contested the plaintiff’sclaim and will hereinafter be referred to as defendants, pleaded thatlot B, which plaintiff claimed as his separate property, was also partof this land. In the course of the trial the plaintiff abandoned his claimto the exclusive ownership of Jot B and agreed that it too formed partof the land sought to be partitioned.
The plaintiff, in his pleading and throughout the trial, based his claimon the footing that Wamage Bastian Fonseka and Warnage PauluFonseka were originally entitled to this land in the proportion of f and £respectively. Subsequently, long after the case for the plaintiff anddefendants had been closed and even after the address of learned Counselfor the defendants, plaintiff’s Counsel in the course of his address tookup the position that these two persons were entitled to the land in equalshares. The defendants’ case throughout was that W. Bastian Fonsekawas the sole owner of the entire land and that the plaintiff was notentitled to any share whatsoever. The learned trial Judge allowed apartition and allotted shares in accordance with the plaintiff’s amendedpedigree and the appeal is against these findings by the 2nd to the 5thdefendants.
According to the plaintiff, Bastian Fonseka died leaving as his heirssix children whom he named as : 1
1.Franciscu.
Pedru.
Davith.
A daughter who was married to M. Jusey Silva.
Philippu.
Manuel.
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SINNETAMBY, J.—Gooray v. Wijeaztriya
The defendants on the other hand stated that Bastian Fonseka hadseven children, viz.,
A daughter married to P. Juwards Fernando.
A daughter married to D. Franciscu Peris.
Selestina.
Nonababa.
Manuel.
Philippu.
Pedru.
Both agreed that Pedru, Philippu and Manuel were children of BastianFonseka. The plaintiff claims no interests through Philippu and Manuelbut claims l/8th share through Pedru upon deeds P 5 and P 6. P 5 isa transfer in 1916 by one Wamage Juan Fonseka to Warn age NikoFonseka of a l/8th share of a land called Kahalagodayawatte givingthe eastern and western boundaries as Old High Road and Old Road,and the northern and. southern boundaries as portions of the same landwithout designating who the owners of these portions are. DeedP 6 recites title through P 6 and conveys the same share to Lewis Pererain 1917. In order to succeed in his claim upon these two deeds theplaintiff must establish two facts : first, that Juwanis was a son ofPedru, and secondly, that the land described in the deed is the sameas the land sought to be partitioned. For reasons which I shall presentlydetail the plaintiff has in my opinion failed to establish both requirements.
Section 25 of the Partition Act imposes on the Court the obligationto examine the title of each party to the action and section 26 (/) giveslegal sanction to a practice that existed in actions tried under the oldPartition Ordinance of leaving a share unallotted. It is unnecessaryto add that the Court before entering a decree should hold a carefulinvestigation and act only on clear proof of the title of all the parties.It will not do for a plaintiff merely to prove his title by the productionof a few deeds relying on the shares which the deeds purport to convey.It is a common occurrence for a deed to purport to convey either muchmore or much less than what a person is entitled to. Before a Courtcan accept as correct a share which is stated in a deed to belong to thevendor there must be clear and unequivocal proof of how the vendorbecame entitled to that share. How then is the proof to be establishedin a Court of Law ? It only too frequently happens, especially inuncontested cases, that the Court is far from strict in ensuring that theprovisions of the Evidence Ordinance are observed; and when thishappens where there is a contest in regard to the pedigree, as in thepresent case, the inference is that the Court has failed totally to dis-charge the functions imposed upon it by section 25 of the Act. It cannotbe impressed too strongly that the obligation to examine carefully the
SINNETAMBY, J".—Goora;/ v. IVijesuriya
1G1
title of the parties becomes all the more imperative in view of the far-reaching effects of section 48 of the new Act which seems to have beenspecially enacted to overcome the effect of the decisions of our Courtswhich tended to alleviate and mitigate the rigours of the conclusiveeffect of section 9 of the repealed Partition Ordinance No. 10 of 1S63.
The relevant provisions of the Evidence Ordinance in regard to proofof a pedigree are to be found in section 32 (5), section 32 (6) andsection 50 (2)—-I am omitting for the moment proof by the productionof birth, death and marriage certificates. It almost always happensthat birth and death certificates of persons who have died vei*y longago are not available : in such cases the only way of establishing relation-ship is by hearsay evidence. Section 32 (5) of the Evidence Ordinancerenders a statement made by a deceased person admissible
“ when the statement relates to the existence of any relationshipby blood, marriage, or adoption between persons as to whoserelationship by blood, marriage, .or adoption the person making thestatement had special means of knowledge, and when the statementwas made before the question in dispute was raised. ”
It is under this provision of law that oral evidence of pedigree is generallysought to be led. What practitioners and the Court sometimes lose sightof is the fact that before such evidence can be led there must be proofthat the hearsay evidence sought to be given is in respect of a statementmade by a person having special means of hn owl-edge : furthermore,it must have been made ante litem motam. Where the statement is madeby a member of the family such knowledge may be inferred or evenpresumed, but where it is a statement made by an outsider proof ofspecial means of knowledge must first be established. In the presentcase the plaintiff himself knows nothing of the pedigree ; but he,nevertheless, gave evidence of the pedigree and stated that BastianEonseka had six children. Under cross-examination he admitted that,apart from deeds, bis evidence was based on information given to himby his vendor Charles Edward Perera. Charles Edward Perera is not amember of the family of Warnage Bastian Eonseka and there is noevidence that he had any other special means of knowledge. Further-more, ho is alive and could have been called into the witness-box :indeed at one stage learned Counsel for the plaintiff at the trial in thelower Court undertook to call him but eventually did not do so. Muchof the evidence given by the plaintiff on this question is thereforedouble hearsay : not only is it not admissible, it is not acceptable asproof of the family relationship. Plaintiff, later in his evidence whonpressed, professed to know Pedru and Franciscu ; still later he addedthat he knew Davith also but he did not state that he had personalknowledge of their relationship with Bastian Eonseka : on the contraryhe stated that he got most of his information from searches in the LandRegistry and from a pedigree handed to him by C. E. Perera ; there
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SLNNETAJMB Y, J.—Cooray v. TVijeswriya
is nothing on record to establish special means of knowledge. Theplaintiff’s evidence therefore is not of the kind contemplated bysection 32 (5) of the Evidence Ordinance.
I have so far dealt with hearsay evidence of oral statements madeby persons having special means of knowledge. Much more reliancecan, however, be placed on written statements made by such persons :indeed such statements are accepted without question especially whenthey happen to be contained in deeds. It is a practice with some notariesto recite the vendor’s title in the deed they attest. For instance, a deedmay recite that the vendor’s title to a share is derived by inheritancefrom a deceased father and the father’s name is given. Such a recitalbeing a statement made by a deceased vendor having special means ofknowledge and made ante litem motam would be admissible to establishrelationship : in fact it would be very strong evidence of the familyrelationship. Such evidence to establish the relationship betweenBastian Fonseka and those who, the plaintiff says, are his sons istotally lacking in this case. P 3 is a transfer by Franciscu who, theplaintiff asserts and the defendants deny, is a child of Bastian Fonseka.The deed while reciting title by paternal inheritance does not give thename of the father but it states that it is granted in consideration ofthe marriage of a daughter Maria Fonseka. P 7 is a transfer by adaughter of Davith. This deed while it recited that the vendor is adaughter of Davith from whom she derived title by inheritance to al/8th share says nothing to establish the alleged relationship betweenBastian Fonseka and Davith : in fact no mention is made of BastianFonseka. P 5 is a transfer by Ju'wan who is said to be a son of Pedru,but P 5 while it recites paternal inheritance does not state that Juwan’sfather is Pedru nor how that father is related to Bastian Fonseka. P 8is a transfer of a l/12th share by one Miko Silva and the deed recitesthat the vendor held and possessed it by right of maternal inheritance.It does not help to establish the relationship between Miko’s motherand Bastian Fonseka.
The other provisions of the law relating to relevancy of evidenceto establish relationship are, as stated earlier, to be found in section.32 (€>) and section 50 (2). The former renders admissible evidence ofstatements in writing as to relationship between deceased personscontained in deeds or wills relating to the affairs of the family to whichthe deceased persons belonged and the latter makes relevant opinion-expressed by conduct as to the existence of the relationship by a personwho is a member of the family or has special means of knowledge.No attempt was made in this case to establish the relationship betweenBastian Fonseka and the persons who the plaintiff alleged were his:Sons under the provisions of either of these sections of the EvidenceOrd i nance.
What the plaintiff did in this case was to try to evolve from his deedsAnd the shares mentioned therein the existence of a relationship between-the earliest known vendors in his chain of title and Bastian Fonseka,
SIN.NU2TATvtBY, J.Cooray v. Wijesuriya
163
who had. to be brought in, in view of P 13, which is the earliest deedproduced and was executed in 1840. To give to each of the childron a1 /8th share he assigned to Bastian Fonseka a 3/4th share and to Bastian’sbrother Paulu a 1/4 share. The fact that Bastian Fonseka and Pauluand one Juwanis were brothers is established by a recital in P 13,wherein it is stated that the three brothers, of whom one is deceased,purchased by a deed of 1811 a block of land bearing the same namewhich had at the time of P13 been divided into three portions.Subsequently, when learned Counsel addressed the learned Judge thiswas altered to 1 /2 share each in view of certain deeds produced by thedefendants.
The second defendant gave evidence of the pedigree and stated thathe got his information from Niko. The other defence witness isMarthinu Peris a direct descendant of Paulu Fonseka. According tothis witness Davitli and Franciscu were sons of Paulu and not of Bastian.The witness was a grandson of Franciscu being a son of Louisa whowas a daughter of Franciscu. The learned Judge rejected his evidencebecause the witness said he had forgotten the name of the husband ofMaria who was another daughter of Franciscu. He, however, said thatMaria’s husband was from Paiyagala and P 3 which is a dowry deedin her favour describes her husband Joronis de Silva as being a man ofPaiyagala. Had the learned Judge acted on the evidence of MarthinuPeris there would have been no objections to any conclusions he mayhave reached based upon that evidence. Niko admittedly was a memberof the family and the information which the witness obtained from herwas obtained before the present dispute arose, but as the learned Judgehas rejected his evidence it is not necessary to consider its effect.
From what has been stated above it is quite manifest that the plaintiffhas failed to establish his pedigree by legally admissible evidence. Onthat ground alone his claim to a share in the property sought to bepartitioned must fail, quite irrespective of the strength of the defendants’case. In view of the fact that the defendants, who are in possession,do not desire a partition the decree entered should be set aside and theplaintiff’s action dismissed but as much argument was addressed tous on other aspects of the case I propose to deal with them briefly.
[His Lordship then dealt with the other aspects of the case, andconcluded :—]
In the result the plaintiff’s action for partition fails and I wouldaccordingly set aside the judgment of the learned District Judge anddismiss the plaintiff’s action with costs both here and in the Court below.
Tasnayake, C.J.—I agree.
Appeal allowed.