065-NLR-NLR-V-78-P.-P.-G.-SEDIRIS-Appellant-and-M.-S.-ROSLIN-and-two-others-Respondents.pdf
SH AEVANANDA, J.—Sacliria v. RoaUn
647
1077 Persent: Ismail, J., Sharvananda, J., and Ratwatte, J.P. P. G. SEDIRIS, Appellant and M. S. ROSLIN and two others,
Respondents
S. C. 213/72 (Inty)—D. C. Matara 3973/P
Marriage—Presumption of marriage—Marriage by habit and repute—Rebuttal of presumption of marriage—Prescription amongCo-owners.
Where a man and a woman belonging to two different castes areproved to have lived together as man and wife for many years andwhere there is evidence that relatives and friends of the man hadostracized him from their society,
Held, the association between the parties attracted thepresumption of marriage which could be rebutted only by strongand cogent evidence.
“ The test is whether the conduct of the parties produced amongtheir relatives and friends a general belief that they were reallymarried. Ordinarily, in the case of parties of ihe same caste, theirrelations and friends acknowledge and recognize their marriageby visiting them and mixing with them in their social ceremonies.But, if a person marries outside his caste beneath his social status,his relatives and friends disapprove that marriage and manifesttheir disapproval by ostracizing him from their society. Therecognition they give to such a marriage is in the shape ofoulcasting him and boycotting him from their social functions. Thisnegative conduct is exhibited only if the parties are married and notif they live in concubinage ”.
PPEAL from a judgment of the District Court, Matara.
P. R. Wikremanayake, for the Plaintiff-Appellant.
J. W. Subasinghe for the 3rd Defendant-Respondent.
1st and 2nd Defendant-Respondents absent and unrepresented.
Cur. adv. vult.
February 7, 1977. Sharvananda, J.—
In +his action, the plaintiff seeks to partition the land calledLot D of Belikatulande Dawaniyagahakoratuwa, which is depictedas Lot A in Plan 153 filed of record marked X.
548
SHAH VAN AND A, J.—Sediris v. Roslin
It is common ground that one Siyadoris and AncLris Appuwere both declared entitled equally to this lot by final decreein partition action D. C., Matara 1438. By deed No. 6864 dated24.6.35 marked 3D1, Siyadoris sold his rights to Pinonahamy,his sister-in-law, who, on deed No. 44595 dated 8.1.63. marked3D2, sold her half share to Rosalin, the 1st defendant. Accordingto the plaintiff, Andiris Appu, who was entitled to the balancehalf share, died leaving as heirs five children, three of whomdied without marriage or issue, leaving the plaintiff and the2nd defendant as the only heirs. As such, the plaintiff claimedone fourth and second defendant the other one fourth of thecorpus. The 3rd defendant, in his answer, denied that the plaintiffand the 2nd defendant were entitled to any share on the pleathat they were not the legitimate children of Andiris Appu.According to the 3rd defendant, Andiris Appu died unmarriedand issueless and his rights devolved on his brother Carolis andthe latter joined Siyadoris in the execution of deed No. 6864 of1935 (3D1) and purporting to transfer the half share whichoriginally belonged to Andiris Appu. The transferee Pinonahamyis a daughter of Carolis. According to the 3rd defendant, Pinona-hamy. who was thus entitled to the entire lot on deed No- 6864of 1935, by deed No. 1610 dated 12.1.63 (3D3), transferred to himthe balance half share remaining after her disposition on deedNo. 44595 (3D3). The 3rd defendant states that neither theplaintiff nor the 2nd defendant are entitled to any rights in thecorpus.
The crucial question in this case is whether Andiris Appuwas married to Dingihamy, the mother of the plaintiff, and thesecond defendant or not. Andiris Appu died on 27.05.29 ; Dingi-hamy the mother of the plaintiff is also dead. According to the1st and 3rd defendants, Dingihamy was only the mistress ofAndiris Appu and not his wife. If Andiris Appu was not marriedto Dingihamy', then admittedly, no rights pass to the plaintiffor the 2nd defendant. But, if there was a valid marriage betweenAndiris Appu and Dingihamy, then the plaintiff and the 2nddefendant would be entitled to Andiris Appu’s half share, andCarolis could not have any right to dispose that half share, andhis purported transfer of Andiris Appu’s half share on 3D1 isnull and void.
The evidence in this case shows that Andiris Appu was a manof the Durawa community while Dingihamy, the mother of theplaintiff and the 2nd defendant, was a woman of the Salagamacommunity. The birth certificates P4 of 1907 and P5 of 1909 ofthe plaintiff and of the 2nd defendant, respectively, show thatAndiris Appu was their father and Dingihamy their mother.Counsel for the 3rd defendant-respondent stressed the fact that
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in the cage in P4 and P5 ‘ Were the parents married ? bothparents have given the answer ‘No’ and submitted that thisanswer supported his contention that the parents were not marri-ed. Though this is a relevant circumstance,, as stated in the caseof Ladeu Adirishamy v. Peter Perera 38 C. L. W. 88, such decla- •rations to a Registrar of Births might well amount, particularlyin the case of ignorant villagers, to little more than an admiss-ion that the marriage of the parents was not registered and notnecessarily to an admission that a marriage by custom had nottaken place. The evidence in this case establishes that AndirisAppu and Dingihamy lived together as man and wife for verymany years and that the relations of Andiris Appu dissapprovedof this association and outcast Andiris Appu from their society.The evidence of Pinonahamy is as follows : “ I knew that Carolishad a brother called Andiris. I have seen Andiris. I do not knowwhere he was living, but occasionally he used to come to ourhouse. During my father’s life-time, he used 'to come to ourhouse. He comes only to meet my father. We did not go to theirhouse. Nobody visited the uncle’s house. Even during the life-time of my father, there was no association with them. Andirisused to come occasionally Jo our house. ” On the evidence led inthis case, the trial Judge relevantly observes : “ The evidence inthis case shows that Andiris was a man of the Durawacommunity, while his wife Dadalage Dingihamy was a womanof the Salagama community. There is the evidence of Jansohamythat these two communities lived on either side of the bridgeand they never intermarried. For the first time, Andiris Appuappeared to have broken this tradition and brought a womanfrom the Salagama community. As such, this was am inter-community marriage. The burden is on the plaintiff to* establishthat the association between Andiris Appu and Dingihamy wasof such a nature as to establish a marriage by habit and repute. ”Here co-habitation or living together does not constitute ‘ habit.’
“ The evidence of ‘ habit ’ must be supported by evidence of‘ repute When both are established, they lead to the inference. that the parties were lawfully married…. ”—per Basnayake C. J.in Wijesinghe v. Kulawardene 60 N. L. R. 121 at 125. The testis whether the conduct of the parties produced among theirrelatives and friends a general belief that they were reallymarried. Ordinarily, in the case of parties of the same caste,their relations and friends acknowledge and recognize theirmarriage by visiting them and mixing with them in their socialceremonies. But, if a person marries outside his caste beneathhis social status, his relatives and friends disapprove that marr-iage and manifest their disapproval by ostracizing him fromtheir society. The * recognition5 they give to such a marriageis in the shape of outcasting him and boycotting him from their
i>6l>SilAKVANAiN'UA, J. .sedtr-u, o. Moult n
social functions. This negative conduct is exhibited only if theparties are married and not if they live in concubinage/ HadAndiris Appu kept Dingihamy, who was of an infer or caste,as a mistress only he would have been admitted in the societyof his relatives and friends, though Dingihamy would have beenkept out. But, if Andiris Appu had married Dingihamy, thenof course he would have been ostracized by his relatives andfriends. In this case, the evidence of Pinona hamy, a niece ofAndiris Appu, is that Andiris Appu was never invited for any ofthe family functions or social occasions. This animosity of AndirisAppu’s relatives and friends can be appreciated only in thecontext of an inter-caste marriage between Andiris Appu andDingihamy. This circumstance tends to support the evidenceof the plaintiff that his father’s relatives and friends believedthat Andiris Appu was married and demonstrated their recog-nition of the marriage by outcasting Andiris Appu from theirsociety. From this conduct, it can be presumed that there wasan inter-caste marriage.
It was stated in Fernando v. Dabrera 65 N.L.R. 282 that evidenceof marriage ceremonies or religious rights is not essentialto establish marriage by habit and repute if both the parties tothe marriage are dead and the marriage itself was contractedat a very early date. As was stated by the Privy Council inValaider v. Vaigalie 2 N. L. R. 322 “ Under the law of Ceylon,where a man and woman are proved to have lived togetheras man and wife, the law would presume, unless the contrarybe clearly proved, that they were living together in consequenceof a valid marriage and not in a state of concubinage Theevidence, for the purpose of resisting this presumption, mustalways be strong and cogent. In the present case, the learnedDistrict Judge has not acted on the aforesaid presumption buthas cast a very heavy burden on the plaintiff to establishmarriage between Andiris Appu and Dingihamy. The facts ofthis case attract the presumption of marriage between AndirisAppu and Dingihamy and this presumption has not been rebutt-ed by the 3rd defendant. In these circumstances, it has to beheld that Andiris Appu was lawfully married to Dingihamyand that the plaitiff and the 2nd defendant are the legitimatechildren of Andiris Appu entitled to the half share of Lot Awhich was admittedly vested in Andiris Appu. Carolis had,therefore, no right to transfer Andiris Appu’s half share to hisdaughter Pinonahamy on deed No. 6864 (3D1). On the transferby Sivadoris of his half share, Pinonahamy became a co-ownerof the land along with the plaintiff and the 2nd defendant.
The trial Judge has, on the question of prescription, held thatthe 1st and 3rd defendants and their predecessors-in-title haveprescribed to the entire land and that in any event Andiris Appu’s
SH ABVANANDA, J.—Sediria c. Moaftn-5.it
heirs, who are the plaintiff and the 2nd defendant, have lost theirrights, if any, in the corpus. Because Pinonahamy and her succ-essors were admittedly in possession of the land from 1935, thetrial Judge has concluded that they have prescribed to the land.Influenced by his earlier finding that Andiris Appu died un-married and issueless and that the plaintiff and the 2nd defen-dant were not co-owners, he was predisposed to hold with the1st and 3rd defendants on the question of prescription. He mightnot have reached that result had he borne in mind that theplaintiff and the 2nd defendant were co-owners of the land withPinonahamy and that the possession of the land by Pinonahamywas, in lew, possession by the other co-owners. The possessionof one co-owner does not become adverse possession for thepurpose of acquisition of title by the other co-owner byprescription, unless ouster, or something equivalent to ouster,had taken place. As was stated by de Silva J. in Abdul Majeedv. Ummu Zaneera, 61, N.L.R, 361 at 372. “ In considering whetheror not a presumption of ouster should be drawn by reason of long-continued possession alone of the property owned in common, itis relevant to consider the following, among other matters :
The income derived from the property.
The value of the property.
The relationship of the co-owners and where they reside
in relation to the situation of the property.
Documents executed on the basis of exclusive owner-
ship.
If the income that the property yields is considerable and thewhole of it is appropriated by one co-owner during a longperiod, it is a circumstance which, when taken in conjunctionwith other, matters, would weigh heavily in favour of adversepossession on the part of that co-owner. The value of the pro-perty is also relevant in considering this question although it isnot so important as the income. If the co-owners are not relatedto one another and they reside within equal proximity to the pro-perty, it is more likely than not that such possession is adverseand it would be particularly so if the property is valuable or theincome from it is considerable. If the co-owners are also co-heirs, the position would be otherwise.”
On an application of this test to the facts of this case, a pre-sumption of ouster cannot be drawn by reason of long-continuedpossession alone by Pinonahamy from 1955 onwards.
In his report XI dated "6.10.64, the Surveyor has stated that theland contains a few houses and a few coconut trees and that theland is in extent 14.6 perches of the value of Rs. 365 only. Thehouses consist of building No. 1 in Plan X described as part of ahouse under construction which commenced in 1963 only. Thisincomplete imhdingby Yhr -JefendfirV who acquired
552
JSHAKVAKAKDA, J.—decline i. Jfovlnt
interest in this land on deed No. 44595 dated 8.1.63 (3D2). Theother buildings on the land are a tomb, a part of a foundationfor a house claimed by the 3rd defendant valued at Rs. 150, and atemporary shed also claimed by the 3rd defendant valued atRs. 30. The plantation on the land consists of nine coconut trees,50 years old, valued at Rs. 135, and five ‘ Billing ’ trees. Thus, itwould appear that the income derived from the property ismeagre and that the total value of the property is only Rs. 1,445.
According to Pinonahamy. the predecessor-in-title of the 1stand 3rd defendants, she never recognized the plaintiff and the2nd defendant as her relatives. Yet, as the plaintiff and the 2nddefendant were residing miles away from the land, even if theplaintiff’s evidence that they were given certain stuns of money,such as Rs. 5, or Rs. 10, or Rs. 15 once in 4 or 5 months' time byPinonahamy is not accepted, as the property was not valuableand the income from it small, the possession of Pinonahamycannot be regarded as adverse to that of the plaintiff and the 2nddefendant. Further, Pinonahamy executed the transfers 3D2 and3D3 in favour of the 1st and 3rd defendants, respectively, onlyin 1963. Thus, in the circumstances of this case, though Pinona-hamy had, according to her evidence, been in exclusive posses-sion of the land after the conveyance 3D1 in her favour in 1935,a presumption of ouster in her favour cannot be drawn. The deedNo. 6864 of 1935 (3D1), though couched as a deed of sale, appearsto be a deed of gift. Further, the transferee Pinonahamy musthave been aware when she obtained the conveyance that AndirisAppu’s heirs were, in fact entitled to the half share conveyed toher by Carolis.—Kanapathipillai v. Meera Saibo. 58 N.L.R. 41.The learned District Judge was in error in holding that the 1stand 3rd.defendants had prescribed to the land.
For the reasons set out above, the conclusions of the DistrictJudge cannot be sustained and his judgment has to be set aside.On the evidence led in this case, I hold that the plaintiff and the2nd defendant are each entitled to a one-fourth share and the 1stdefendant to a half share of the land as pleaded by the plaintiff.The 3rd defendant is not entitled to any share or rights in theland.
The appeal is allowed and judgment of the lower Court dis-missing the plaintiff’s action is set aside and the case is sent backfor further proceedings in the District Court with the directionthat interlocutory decree be entered on the basis of the titlepleaded by the plaintiff. The 3rd defendant-respondent shallpay the plaintiff the costs of contest and of this appeal.
Ismail. J.—I agree.
R.atwatte, J.—I agree.
A/ppenJ allowed