003-SLLR-SLLR-2006-V-2-PIYADASA-AND-ANOTHER-vs.-BABANIS-AND-ANOTHER.pdf
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Piyadasa and Another vs.
Babanis and Another
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PIYADASA AND ANOTHERVS.BABANIS AND ANOTHERCOURT OF APPEAL.
IMAM, J.
W. L. R, SILVA, J.
CA 457/94(F).
DC EMBIL1PITIYA 2389/P.
NOVEMBER 23,2005.
FEBRUARY 13, 2006.
MARCH 28, 2006.
Partition Law, No. 21 of 1977 – Plea of Prescription – Co-owner prescribing toentire land?-Presumption of ouster – Essentials of a Kandyan Marriage – Spe-cial Law in derogation of the Common Law – Can a new point be raised for thefirst time in appeal?-Can there be a valid Kandyan marriage by way of habit andrepute – Kandyan Marriage and Divorce Act, Section 3 – Presumption in favourof marriage under Roman Dutch Law – Evidence Ordinance, section 103.
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Sri Lanka Law Reports
(2006) 2 Sri LR
The Plaintift-appellant instituted action seeking to partition the land in ques-tion, giving 1/2 share to the 1st and 2nd defendant – respondents. The 1st and2nd respondents claimed title to the whole land by prescription.
The trial Judge dismissed the plaintiffs action on the ground that Pemanisaand Saio Nona were not married and therefore appellants and defendantswere not legitimate children and further rejected the plea of prescription to thewhole land by the respondents. Both parties depended on the fact that therewas a valid marriage.
HELD:None of the parties have led any evidence in order to prove an overtact of ouster against the other party.
per Ranjith Silva, J.
“I must emphasize that considerable circumspection should be exer-cised before arriving at a finding on prescription as it deprives theownership to the party having paper title. Title by prescription is anillegality made legal, due to the other party not taking action at theproper time.
Held further:If the parties were subject to Kandyan Law there could not have beena marriage by habit and repute. Registration is the essence of a validKandyan marriage.
Per Ranjith Silva, J.
“A marriage between persons subject to Kandyan Law if not solemnizedand registered under the Kandyan Law or under the MarriageRegistration Ordinance will not be regarded as a valid Kandyanmarriage and the intestate succession to the property of such personswill not be in accordance with the Kandyan Law. The necessary corollaryof this would be that in such an event the law applicable would be theCommon law.”
Held further:There is no evidence that Salo Nona and Pemanisa were Kandyansand that they were subject to Kandyan Law.
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Piyadasa and Another vs.
Babanis and Another (Ranjith Silva, J.)
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The trial Judge had completely ignored the overwhelming evidencesufficient to prove that there was a marriage by way of habit andrepute between Salo Nona and Pemanisa.
According to the Roman Dutch Law there is a presumption in favour ofmarriage rather than that of concubinage. When persons who wereliving together as husband and wife were recognized as such by every-body in the circle in which they move it created a presumption in favourof marriage and in the absence of evidence in rebuttal to the contrarythe court was entitled to presume that the parties were duly married asrequired by law. In this case there was ample evidence before the trialJudge for him to have considered the presumption.
On a question of fact the appellants cannot agitate for the first time inappeal without first having contested the matter in the original court.
An entry of not married in a register is intended by parties to mean nomore than not registered.
APPEAL from the judgment of the District Court of Embilipitiya.
Cases referred to :
Aiwis vs. Perera 21 NLR 321
Thilakaratne vs. Barfan 22 NLR at 121
Mena Fernando vs. Anthony Fernando 19972 Sri LR at 350
Seetiya vs. Ukku 19861 Sri LR 225
Podi Nona vs. Harathhamy and Others 19852 Sri LR 237
Spencer vs. Rajaratnam 16 NLR at 321
Sitha vs. Weerakoon 49 NLR 225
Jayasekera vs. Silva 76 NLR 427
Candappa vs. Ponnambalampillia 19931 Sri LR at 184
Sastry Valaider Aronegin and his Wife vs. Sembekutty Viagalie 2 NLRat 322
Dinohamyvs. Baiahamy 29 NLR at 114
Fernando vs. Dabarera 65NLR 282
Laddu Adirishamy vs. Peter Perera 38 CLW 87 at 88.
Don Simon alias Singha Appu vs. Fernando 38 CLW 38
L. C. Seneviratne, PC with Anuruddha Dharmaratne for 1A substituted—plantiffappellant and the 2nd plantiff-appellant.
S.C. B. Walgampaya, PC with Ajith Liyanage for the 1A substituted-defendant-respondent and 2nd defendant – respondent.
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Sri Lanka Law Reports
(2006) 2 Sri LR.
Cur.adv.vult.
June 2, 2006.
RANJITH SILVA, J.The Plaintiff-Appellants (Appellants) instituted this action bearing No.2389IP in the District Court of Embilipitiya seeking to partition the landcalled Landegedarawatta alias Kaluwagewatta (hereinafter referred to asthe ‘Land’) about one acre in extent which is depicted in plan No. 1012prepared by G. Warnakulasuriya Licensed Surveyor marked as 2 at thetrial in the District Court.
According to the pedigree relied on by the appellants the land originallybelonged to one Morapitiyage Babanisa. Babanisa died intestate and uponhis death title to the same devolved on his son Morapitiyage Rankira whowas his sole heir. Morapitiyage Rankira died intestate leaving as his soleheir, his son Morapitiyage Pemanisa who by inheritance became entitledto the entirety of the Land. The Appellants further pleaded that the saidPemanisa died intestate leaving the 1st and 2nd appellants (Piyadasaand Edwin) and Disi Nona and William on whom devolved Pemanisa'srights; that the said Disi Nona and William in or about 1952 conveyed theirundivided 1/2 share to the 1st and 2nd defendants Respondents (whoshall hereinafter be referred to as “the Respondents”). The case for theAppellants as well as the Respondents mainly depended on the fact thatthere was a marriage by habit and repute between Pemanisa and Selonona.Why the Appellants did not propose to give any shares to Selonona theWife of Pemanisa is a mystery.
The 1 st and 2nd Respondents in their statement of claim admitted thatMorapitiyage Pemanisa was at one time the owner of the entire corpus.Both the appellants and the Respondents accept the devolution of title upto Pemanisa; it is from this point onwards that the Parties differ as to thedevolution of title. The Respondents pleaded that upon the death ofPemanisa the widow of Pemanisa that is one Selonona became entitledto an undivided 1/2 share of the land and the balance 1/2 share devolvedon the 1st and the 2nd Appellants and Disi Nona and William who thusbecame entitled to 1/8 share of the land each. The Respondents furtheraverred that the said Selonona, Disinona and William conveyed theirundivided 3/4 shares of the Land to the 1st and 2nd Respondents upondeed No. 13328 dated 09.02.1952 and that 1 st and 2nd Respondents as
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Piyadasa and Another vs.
Babanis and Another (Ranjith Silva, J.)
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the owners cultivated the entire land in coconut, jack, arecanut and rubberand thus had been in possession of and residing on the land ever since.The Respondents claimed title to the entire land based on prescriptivepossession and prayed for a dismissal of the action.
At the trial it has been recorded that there was no dispute with regardto the corpus and thus the identity of the corpus was never in dispute. Thedispute is with regard to the devolution of title. The Appellants claim thatthey are entitled to a 1/2 share of the 'Land' and that the Respondentsare entitled to the balance 1/2 share. The Respondents on the other handdo not concede that they are only entitled to a 1/2 share of the ‘Land’.Instead they claim that although they are entitled to 3/4 shares of theLand on paper title they have acquired prescriptive title to the entire landbased on prescriptive possession.
The Learned District Judge, after trial, held by his judgment dated10.08.1994, that the evidence led in the case did not establish that Pemanisawas married to Selonona and therefore the 1 st and the 2nd appellants andDisinona and William were not the legitimate children of Pemanisa and assuch they could not have inherited the ‘Land’ from Pemanisa. The LearnedDistrict Judge further held that neither the Appellants nor the Respondentshave proved prescriptive rights to the said ‘Land’ and accordingly dismissedthe appellants’ action.
Being aggrieved by the said judgment the appellants have preferred thisappeal to this court. There is no cross appeal taken by the Respondentson the question of prescription raised by the Respondents even thoughthe learned District Judge has held against the Respondents on that issue.The Appellants have, although whatever the relief they may have prayedfor in their petition of appeal, at the stage of arguments, in this courtlimited the relief they sought and prayed that the judgment dated 10.08.1999dismissing the Appellant’s action be vacated and a fresh judgment beentered declaring, that the Respondents were entitled, to an undivided3/4 shares of the land and the Appellants were entitled to an undivided1/4 share of the land, together with similar shares that is 3/4 for theRespondents and 1 /4 for the Appellants from the house and whatever theplantation standing thereon.
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Sri Lanka Law Reports
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PRESUMPTION OF OUSTER
Whether the Appellant as a co owner of the land could have prescribedto the entire land as against the other co owners in the absence of anyspecific overt act of ouster as far as the other co owners are concerned isa vital point that ought to be decided in this regard. In this case on aperusal of the brief. I find that none of the parties have even contemplated,let alone led any evidence in order to prove an overt act of ouster againstthe other party. I must emphasize that considerable circumspection shouldbe exercised before arriving at a finding on prescription as it deprives theownership of the party having paper title. Title by prescription is an illegalitymade legal due to the other party not taking action at the proper time. Iwould like to quote one of the relevant maxims namely the maximVigilantibus non domientibus, Jura subvenient meaning-the lawsassist those who are vigilant, not those who sleep over their rights. Dealingwith this maxim, it is stated, in the book entitled ‘Broom’s Legal Maxims’Tenth Edition at page 599 that I quote;” for if he were negligent for a longand unreasonable time, the law refused afterwards to lend him anyassistance to recover the possession; both to punish his neglect namleges vigilantibus, non dormientibus jura subvenient and also becauseit was presumed that the supposed wrong-doer had in such a length oftime procured a legal title, otherwise he would sooner have been sued.”
A co-owner’s possession is in law the possession of other co owners.Every co owner is presumed to be in possession in his capacity as coowner. A co-owner cannot put an end to his possession as co owner by asecret intention formed in his mind. Nothing short of ouster or somethingequivalent to ouster could bring about that result. (Vide AMs vs. Perera(1))In Thilakarathne vs. Bastian(2) it was held I quote; “It is a question of fact,where ever long continued possession by one co owner is proved to haveexisted, whether it is not just and equitable in all the circumstances of thecase that the parties should be treated as though it had been proved thatseparate and exclusive possssion had become adverse at some datemore than 10 years before action was brought.”
The judgment in Maria Fernando vs. Anthony Fernando(3) at 356 isapplicable to the facts of this case. It was held in that case that longpossession, payment of rates and taxes, enjoyment of produce, filing suitwithout making the adverse Party, a party, preparing plans and buildinghouses on the land and renting it, are not enough to establish prescriptionamong co owners in the absence of an overt act of ouster. It was held inSeetiya vs. Ukku(4) that nothing short of an ouster or something equivalent
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Piyadasa and Another vs.
Babanis and Another (Ranjith Silva, J.)
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to ouster is necessary to make possession adverse to end co ownership.Although it is open to a court from long lapse of time in conjunction withother circumstances of a case to presume that possession originally thatof a co-owner has later became adverse, the fact of co-owners possessingdifferent lots fencing them and planting them with a plantation of coconuttrees which is a common plantation in the area cannot make suchpossession adverse. For the afo'resaid reasons I find that there is no flawin the findings of the learned Judge with regard to the issues based onprescription. In any case none of the parties, neither the Appellants northe Respondents have seriously contested in this court, the findings of thelearned Judge on the issues based on prescription.’
On the first day of the oral submissions the counsel for the Appellantssubmitted to this court for the first time that the parties were subject toKandyan Law and therefore Selonona was entitled only to a life interest inthe property and that the rights to the entire property devolved on thechildren of the said Pemanisa. In the lower court, it was never the case forthe appellants that the parties were subject to Kandyan law. On the secondday of oral submissions the counsel for the appellant abandoned the saidsubmission but never denied that Selonona was married to Pemanisa.Therefore one can only assume that the appellant thereby conceded thatthe parties were married under the common law especially so in view ofthe fact that the appellants averred and maintained the position right throughthat the appellants being two of the four children of Selonona and Pemanisainherited the property on the demise of their father Pemanisa. In any eventif the parties were subject to Kandyan Law there could not have been amarriage by habit and repute. It was held in Podinona vs. Harathhamy andOthers(5) that registration is the essence of a valid Kandyan marriage.
Special Law in Derogation of the Common Law
Even otherwise the law is very clear on this point. It was held in Spencervs. Rajaratnaml6> at 321 that any person claiming to be subject to anyspecial law in derogation of the common law must prove it. According tothe ratio decidendi in the above mentioned case, the onus in the instantcase was on the Appellants to prove on a balance of evidence that Selononawas subject to Kandyan Law being a special law in derogation of thecommon law. Since the appellants totally failed or neglected to frame anyissues on this point and since there is not an iota of evidence led by eitherparty to give the slightest indication that Selonona was subjected toKandyan law, the argument that Selonona had only a life interest over theland cannot be sustained and therefore should be rejected in toto.
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Sri Lanka Law Reports
(2006) 2 Sri L.R.
New point raised for the first time in appeal
On the other hand this being a question of fact the appellant cannotagitate this matter in the Court of Appeal for the first time without firsthaving contested this matter in the original court.
In Setha vs. Weerakoon m it was held that a new point which was notraised in the issues or in the course of the trial cannot be raised for thefirst time in appeal, unless such point might have been raised at the trialunder one of the issues framed, and the Court of Appeal has before it allthe requisite material for deciding the point or the question is one of lawand nothing more.
In Jayawickrama vs. Silva(B> It was held that a pure question of law canbe raised in appeal for the first time, but if it is a mixed question of fact andlaw it cannot be done.
In Candappa vs. Ponnambalampillaim at 184 it was held that a partycannot be permitted to present in appeal a case different from thatpresented in the trial court where matters of fact are involved which werenot in issue at the trial, such case not being one which raises a purequestion of law.
In this regard I would also like to quote section 103 of the EvidenceOrdinance which reads as follows:
“The burden of proof as to any particular feet lies on that personwho wishes the court to believe in its existence, unless it is providedby any law that the proof of the feet shall lie on any particular person.”
Since both parties admitted expressly or impliedly that Selonona wasthe lawful spouse of Pemanisa it was incumbent on either party to provethat fact.
Section 58 of the Evidence Ordinance is as follows ; “No feetneed be proved in any proceeding which the parties thereto ortheir agents agree to admit at the hearing, or which, before thehearing, they agree to admit by any writing under their hands, orwhich by any rule of pleading in force at the time they are deemedto have admitted by their pleading.”
“Provided the court may, in its discretion, require the factsadmitted to be proved otherwise than by such admissions.”
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Piyadasa and Another vs.
Babanis and Another (Ranjith Silva, J.)
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KANDYAN LAW VS MARRIAGE BY HABIT AND REPUTE
The 2nd Respondent in giving evidence at the trial stated that Selononaand Pemanisa were married; that they both resided in one house on aland called Kumburugedera Watta and that they had four children by thisunion. (vide. Proceedings at page 85 and 86 of the brief) This witness alsostated that they were lawfully married and that the children were bom untothem. It was also admitted by this witness that the said parties lived asone family, lived at Hatangala and that William, Dissinona, Piyadasa (1 stplaintiff Appellant) and Edwin (2nd Plaintiff Appellant) were their children.(Vide, page 91 of the brief). The Appellant too in giving evidence maintainedthat Pemanisa and Selonona were their father and mother and that theywere legally married. Unfortunately for the Appellants as far as the judgmentof the learned trial Judge is concerned, even though the effect istemporary,their counsel marked as P1 and produced the birth certificateof Piyadasa one of tthe Appellants, wherein it is stated that the parents ofPiyadasa were not married. The learned trial Judge banking entirely onthat statement, found in column 7 of the said birth certificate, fatallymisdirected himself and held that the parties were not married anddismissed the case on the basis that since Pemanisa and Selonona werenot married, both the Plaintiffs (Appellants) and the Defendants(Respondents) did not derive any title to the Land as they were not thelegitimate children of Pemanisa and Selonona. In doing so the learnedJudge has completely ignored the overwhelming evidence that was beforehim, sufficient to prove that there was a marriage by way of habit andrepute between Selonona and Pemanisa.
There is no evidence that Selonona and Pemanisa were Kandyans orthat they were subject to Kandyan Law. Hence the provisions of section 3of Kandyan Marriage and Divorce Act will not apply. Assuming arguendothat Selonona and Pemanisa were persons subject to the Kandyan Law, itis my opinion that the heirs could still claim the benefit of the presumptionarising out of marriage by habit and repute even though the devolution oftitle would be not under the Kandyan Law but the Common Law. Theprovisions of section 3 of Kandyan Marriage and Divorce Act is to theeffect that a marriage between persons subject to Kandyan Law shall besolemnized and registered under that Act or the Marriage RegistrationOrdinance and any such marriage not so solemnized and registered, shallbe invalid. It was held in Podinona vs. Harathhamy and others (supra)quote “After 1859 registration is the essence of a valid Kandyan marriageand customary Kandyan marriages ceased to be valid. The marriage herebeing one said to have been contracted some time prior to 1937, the entryin the Register of marriages in terms of section 39 of Ordinance No. 3 of1870, is the best evidence of the marriage. The expression ‘best evidence’as used in the said section 39 refers to the registration entry in the Registerof Marriages and excludes all evidence of an inferior character."
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Sri Lanka Law Reports
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It is therefore mainfest that there cannot be a valid Kandyan marriage byway of habit and repute. If there be any such marriage then the law applicableto intestate succession will be the common law and certainly not the KandyanLaw. In support of this view of the matter I would like to quote section 3(2) ofthe Kandyan Marriage and Divorce Act which reads as follows:
“The fact that a marriage, between persons subject to KandyanLaw, is solemnized and registered under the Marriage RegistrationOrdinance shall not affect the rights of such persons, or the otherpersons claiming title from or through such persons, to succeed toproperty under and in accordance with the Kandyan Law.”
On a reading of this sub section it is apparent that the intention of thelegislature in enacting section 3 of the said Ordinance was to lay down thelaw that a marriage, between persons subject to Kandyan Law if notsolemnized and registered under the Kandyan law or under the mam'ageRegistration Ordinance will not be regarded as a valid Kandyan Marriageand that the intestate succession to the property of such persons will notbe in accordance with the Kandyan Law. The necessary corollary of thiswould be the Common Law.
It was never the intention of the legislature to deprive the Kandyans oftheir right to rely on or claim the benefit of the presumption arising out ofmarriage by habit and repute, in a fit case, if they so wish. To hold otherwisewill result in the bastardization of hordes of unsuspecting innocent children,depriving them of their legitimate dues. Such an interpretation will be againstpublic policy and should be dissuaded from, unless there is no alternative.
In the case of Sastry Valaider Aronegiri and his wife vs. SembekuttyViagale m at 322 it was held that according to the Roman Dutch Law ofCeylon there is a presumption in favour of marriage rather than that ofconcubinage. According to the law of Ceylon, as in England where a manand woman are proved to have lived together as man and wife the law willpresume unless the contrary be clearly proved that they were living togetherin consequence of a valid marriage.
In Dinohamy vs. Balahamy(11) at 114 once again the Privy Council heldthat under the law of Ceylon, where a man and a woman are proved tohave lived as husband and wife, the law will presume unless the contrarybe clearly proved that they were living together in consequence of a validmarriage and not in a state of concubinage. In the instant case before ustoo the evidence discloses that Selonona and Pemanisa had lived together
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Piyadasa and Another vs.
Babanis and Another (Ranjith Silva, J.)
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as husband and wife and were thus recognized by the villagers and allthose who knew them. What is more they had four children and all theparties concerned have admitted this fact in no uncertain terms.
In Fernando vs. Dabrera(12) the Supreme Court held that the evidenceof marriage ceremonies or religious rites was not essential to establish amarriage by habit and repute if both parties were dead and the marriagewas contracted at a very early stage. The Supreme Court, in this casetoo, held that the fact that when persons were living together as husbandand wife and were recognized as such by everybody in the circle in whichthey move it created a presumption in favour of marriage and in the absenceof evidence in rebuttal to the contrary, the court was entitled to presumethat the parties were duly married as required by law. In this case toothere was ample evidence before the learned District Judge for him to haveconsidered this presumption. The District Judge did not propose to rely onthis presumption, instead held otherwise apparently because he completelymisdirected himself on the law. He, I believe, came to this conclusionsimply because the birth certificate of one of the Appellants states incolumn 7 that the parents were not married. In Laddu Adirishamy vs.Peter Perera(13> at 88 it was held by the Supreme Court citing earlier casesthat such declaration to a Registrar of Births might well amount, particularlyin the case of an ignorant villager to little more than an admission that themarriage of the parents was not registered, and not necessarily anadmission that a marriage by custom has not taken place. The learnedtrial Judge appears to have pitched, the fact that column 7 of the birthcertificate contained such entry, very high and given undue weight to thatfact, in arriving at his findings on this point. Following the dictum in DonSimon alias Singha Appu vs. Fernando(14) it was held by Sinnetamby, J.in Fernando vs. Dabrera (supra) at 282 that, I quote “The only positive itemof evidence against the marriage is the document 7D1, which is the birthcertificate of one of the children, where the parents are stated not to havebeen married: but as was observed by the judges who decided LadduAdirishamy vs. Peter Perera (supra) at 87, an entry of "Not married” in aregister is intended by parties who are illiterate to mean no more than “notregistered”.
For the aforesaid reasons I hold that the findings of the learned Judgeon this issue to be per incuriam.
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Therefore on the facts and the law and for the reasons adumbratedabove I find that I am unable to agree with the findings of the learnedDistrict Judge other than with his findings on the issues of prescription.Accordingly I set aside the judgment of the learned District Judge dated
and hold that the devolution of title to the property should beon the basis as setout by the Respondents. Namely an undivided 1/4share of the land, to the 1st and 2nd appellants jointly and an undivided3/4 share to the 1st and 2nd Respondents jointly. This shall include asimilar share in the plantation and the house on the land that is 1/4 shareof the house and plantation to the 1 st and 2nd Appellants jointly and 3/4share of the house and plantation to the 1 st and 2nd Respondents jointly.Accordingly I hold that the answers, to the issues framed by the parties,at the trial held in the District Court to be as follows:
Yes
Yes
Yes
No
Yes
No
No
The Plaintiffs are jointly entitled to 1/4 share of the land and 1/4 share of the house and plantation thereon.
Yes
Not proved
No
The defendants are jointly entitled to 3/4 shares of the land and3/4 shares of the house and the plantation thereon.
The Learned District Judge of Embilipitiya is hereby directed to enterjudgment and the interlocutory decree in conformity with this judgment. Inthe circumstances of this case we make no order as to the costs of thisappeal.
IMAM J. — / agree.Appeal allowed.