Karavahupbttu MPCS Union v Meera Saibu (Dheeraratne, J )
HERATHHAMY AND OTHERS
COURT OF APPEAL.
H. A. G. DE SILVA, J. AND T. D. G. DE ALWIS. J.
A. No. 253/78.
C. ANURADHAPURa No. 7227.
FEBRUARY 21. 1985.
Action for declaration of title – Revocation of deeo or uanafor by nriainaI ownerdeclaring it was a gift-Kandyan Law-Kandyan Marriage Ordinance No. 13 or1859 – S. 5. 6. 7, 8 and 39 of Kandyan Marriage Ordinance No. 3 of1870-Kandyan Marriages (Removal of Doubts) Ordinance No. 14 of1909 – Kandyan Marriage and Divorce Act, No. 44 of 1952.
A deed of transfer is not revocable.
Sri Lanka Law Reports
(198512 Sri LR.
After 1859 registration is of the essence of a valid Kandyan marriage and customaryKandyan marriages ceased to be valid. The marriage here being one said to have beencontracted some time prior to 1937, the entry in the Register of Marriages is in terms ofs. 39 of Ordinance No. 3 of 1670. the best evidence of the marriage. The expression'best evidence' as used in the said s. 39 refers to the registration entry in the Registerof Marriages and excludes all evidence of an inferior character
Cases referred to:
(1 > Mampniya v. Wegodapela (1922) 24 NLR 129-
Seneviratna v. Hatangoda (1921) 22 NLR 472-
Dinohamyv. Baiahamy (1927) 29 NLR 114(P. C.)
Kandiah v. Thangamany (1953) 55 NLR 568.
Fernando v. Dabrera (1965) 65 NLR 282.
APPEAL from the District Court of Anuradhapura.
S. C. 8. Watgampaya for appellant.
Respondents absent and unrepresented.
Cur. adv. wit.
May 15. 1985.
T.D. G. OE ALWIS, J.
The plaintiff-appellant instituted this action for a declaration of title tothe six allotments of land described in the schedule to the plaint, forejectment of the defendant respondents therefrom and for damages.The plaint averred that one P. A. Muthumenika alias BeatriceRatnayake was the original owner of the lands in dispute. She marriedPunchiralage Herathhamy alias Vincent Herathhamy. The two of themwere persons to whom the Kandyan Law was applicable, and they hadno children. Beatrice Ratnayake by deed No. 1227 dated 8.12.1937produced marked P 1 transferred these lands to Vincent Herathhamy,reserving a life interest in the same to herself. Thereafter VincentHerathhamy died on 11.12.1 942, leaving as his only heir his widowBeatrice Ratnayake, whereby she once again became the owner ofthese lands. Further Beatrice Ratnayake declaring that the deed oftransfer P 1 was a deed of gift purported by deed of revocationNo. 185 dated 6.1 1.1954 marked P 3 to revoke the earlier deedNo. 1 227. P 1. Thereafter by deed No. 1277 dated 14.7.1955marked P 4 Beatrice Ratnayake transferred these lands toWannihamige Seneviratne also subject to her life interest.Wannihamige Seneviratne by deed No. 3543 dated 24.4.1962marked P 5 transferred these lands to the plaintiff. Beatrice Ratnayakedied on 26 1 *1965.
Podinona v. Herathhamy (T. D. G. Do Alwis. J.)
The defendants have admitted that Beatrice Ratnayake was theoriginal owner of these lands, and that she and Vincent Herathhamywere persons subject to the Kandyan Law. but they however deniedthat Beatrice Ratnayake and Vincent Herathhamy were legally married.The 1st defendant stated that she was the sister of VincentHerathhamy, and his only heir. The defendants have also pleaded thatdeed P 1 was a deed of transfer, and hence was not revocable.
After trial the learned District Judge held that the plaintiff had failedto prove a valid marriage between Beatrice Ratnayake and VincentHerathhamy, and also that deed PI being a deed of transfer was notrevocable. As such he has held that the 1st defendant is the lawfulowner of the property in dispute and has dismissed the plaintiff'saction. From this judgment the plaintiff has appealed.
At the trial the plaintiff claimed these lands on the footing that afterVincent Herathhamy's death the properties once again devolved onBeatrice Ratnayake she being his widow and they having no children,and also on the footing that the property devolved on her by virtue ofthe deed of revocation P 5. The latter position was however notpressed in appeal. The learned District Judge has held that deed P 1was an outright transfer and hence not revocable. We agree with hisfindings on that matter.
No marriage certificate was produced to prove that BeatriceRatnayake and Vincent Herathhamy were legally married. However theplaintiff's case was that both Beatrice Ratnayake and VincentHerathhamy were brought up by one Mrs. Carney in the RomanCatholic faith, and that she got them married at the Roman CatholicChurch at Thalawa. The only evidence regarding this marriage at theThalawa Church is that of the plaintiff herself. She was 75 years old atthe time she gave evidence in 1976. She is a cousin of BeatriceRatnayake, and she states that she attended the wedding of BeatriceRatnayake and Vincent Herathhamy at the Thalawa Roman CatholicChurch. She does not state the date of the marriage, but it should besometime prior to 1937 when Beatrice Ratnayake excecuted deedP 1. She does not however give any details of this marriage ceremony,nor does she state whether a marriage register was signed. AfterVincent Herathhamy died Beatrice Ratnayake lived as the mistress ofWannihamige Seneviratne for sometime. He too states that BeatriceRatnayake was married to Vincent Herathhamy, but gives no details of
Sri Lanka Law Reports
(1985) 2 Sri LR.
the marriage. Another witness Dingiri Banda also states that BeatriceRatnayake was married to Vincent Herathhamy, but apart from sayingthat they were married he states nothing more. The other items ofevidence regarding this marriage is the fact that in deeds P 1 and P 3Beatrice Ratnayake herself refers to Vincent Herathhamy as herhusband.
It was submitted by learned counsel for the plaintiff-appellant thatthough this marriage has not been proved by the production of amarriage certificate, nevertheless the items of evidence enumeratedabove were sufficient to establish that they were regarded as husbandand wife, and hence a presumption that they were living as husbandand wife in pursuance of a valid marriage arises.
Being persons subject to the Kandyan Law, in matters regardingmarriage, Beatrice Ratnayake and Vincent Herathhamy would havebeen governed by the Kandyan Marriage Ordinance No. 3 of 1870,which was in force till it was repealed by the Kandyan Marriage andDivorce Act, No. 44 of 1952. The Kandyan'Marriage Ordinance No. 3of 1870 refers to marriages before Ordinance No. 13 of 1859, andmarriage since Ordinance No. 13 of 1859, Section 5 of OrdinanceNo. 3 of 1870 enacts that –
"All marriages contracted in any district before Ordinance No. 13of 1859 came into operation in that district shall be deemed to havebeen valid, if they were contracted in accordance with the laws,institutions, and customs, in force among the Kandyans at the timeof the contract.'
Sections 6 and 7 of Ordinance No. 3 of 1870 makes provisionenabling such customary marriages as are set out in section 5 thereofto be registered. Section 8 of Ordinance No. 3 of 1870 enacts that –
"Except as is hereafter provided, no marriage contracted sincethe Ordinance No. 13 of 1859 came into operation, or to behereinafter contracted, shall be valid unless registered in mannerand form as is hereinafter provided in the presence of any Registrarfor the District where such marriage is contracted, and at theappointed office of the Registrar, or at any other place as theProvincial or Assistant Provincial Registrar shall, in any special case,direct or appoint.'
Podinona v. Herathhamy (T. D. G. DeAlwis, J.)
The enactment of this section created some doubts regarding thevalidity of marriages of Kandyans which had been registered under theMarriage Registration Ordinance. Hence the Kandyan – Marriages(Removal of Doubts) Ordinance No. 14 of 1909 was enacted whichconfirmed the validity of marriages between Kandyans registeredunder the Marriage Registration Ordinance. This feature regardingKandyan marriages still subsist under the present law. namely theKandyan Marriage and Divorce Act. No. 44 of 1954, where it isenacted by section 3 thereof that a marriage between persons subjectto Kandyan law shall be solemnised and registered under this Act orunder the Marriage Registration Ordinance, and any such marriagewhich is not so solemnised and registered shall be invalid. Thus after1859 registration is of the essence of a valid Kandyan marriage, andcustomary Kandyan marriages ceased to be valid.
Thus it was essential for the plaintiff, if he were to succeed, to haveproved that a marriage between Beatrice Ratnayake and VincentHerathhamy had been registered as required by Ordinance No. 3 of1870. Section 36 of that Ordinance enacts that –
"The entry as aforesaid in the register of marriagesshall
be the best evidence of the marriage contractedand of the
other facts stated therein. If it does not appear in<the registerwhether the marriage was contracted in binna or diga, suchmarriage shall be presumed to have been contracted in diga, untilthe contrary is proved."
In the case of Mampitiya v. Wegodapela (1) referring to section 36 ofOrdinance No 3 of 1870 Bertram, C. J. stated as follows :
"Section 39 of the Amended Kandyan Marriage Ordinance (No 3of 1870) enacts that the entry in the register shall be the bestevidence' of the marriage contracted and of the other facts statedtherein. The expression 'best evidence' is used in the sense whichbelongs to it in the English Law. It is the essence of 'best evidence’according to English Law that it excludes all evidence of an inferiorcharacter."
Sri Lanka Law Repons
 2 Sri L.R.
This view was followed by De Sampayo. J. in the case of Seneviratnav. Halangoda (2). He stated :
"The question whether the character of a Kandyan marriage canbe proved by oral evidence to be other than that stated in theregister was recently considered by the Chief Justice and Ennis. J. inMampitiya v. Wegodapela The learned Judges have held that insection 39 of the Kandyan Marriage Ordinance, No. 3 of 1870,which declares that the entry in the registers shall be the bestevidence of the marriage and the other facts stated
thereinthe expression ‘best evidence' is used in the English
Law sense, and excludes all evidence of an inferior character Icertainly accept this ruling with regard to the Kandyan MarriageOrdinance because under section 11 of the Ordinance registrationis the only valid form of marriage for Kandyans and further section39 itself indicates the exceptional case in which oral evidence maybe admitted. “
De Sampayo. J. went on to state that he did not think that thisinterpretation can be extended to other enactments such as theGeneral Marriage Ordinance, section 39(1) where the sameexpression "best evidence' occurs presumably because under theGeneral Marriage Ordinance registration is not essential for the validityof a marriage.
In any event the plaintiff in this case has failed to adduce any reasonfor his failure to produce the 'best evidence' namely the register. Norhas he produced any evidence to show that the register is lost ordestroyed, or that the Parish Priest of the Thalawa Church was
empowered by the Provincial Registrar to register marriages under theKandyan Marriage Ordinance. Nor is there evidence that a register wassigned at all at the Thalawa Church. In a Church two types ofmarriages can be performed, a civil law marriage and a marriage underthe Canon Law. There is nothing to show that the marriage whichaccording to the plaintiff was solemnised in the church was anythingmore than a margage under the Canon Law.
CAPodinona v, Herathhamy (T. D. G. DeAlwis, J.)243
The other matter raised by learned counsel is that the fact thatBeatrice Ratnayake and Vincent Herathhamy lived as man and womanand were accepted as such created strong evidence of a validmarriage. The law in this regard was stated by Lord Shaw, in the PrivyCouncil case of Dinehamy v. Balahamy (3) as follows :
"It is not disputed that according to the Roman-Dutch Law thereis a presumption of marriage rather than of concubinage ; thataccording to the law of Ceylon, where a man and woman are provedto have lived together as man and wife the law will presume, unlessthe contrary be clearly proved, that they were living together in
consequence of a valid marriage, and not in a state ofconcubinage."
The facts in that case were that the parties lived together in the samehouse for twenty years, and eight children were born to them. Thehusband during his life recognised, by affectionate provisions, his wifeand children. For a long course of years they were recognised asmarried citizens, and family functions were conducted on the footingthat they were husband and wife. This evidence of habit and reputewas considered strong enough to presume that they were living asman and wife in consequence of a valid marriage. Where these partieswere concerned some sort of customary marriage had been gonethrough. The parties married with the procession, the giving of gifts,and other ceremonials familiar to the law of Ceylon. So that it appearsthat the valid marriage presumed in this case was a customarySinhalese marriage which is a valid marriage in Ceylon and which doesnot require registration for its validity. This type of marriage is nolonger recognised by the law applicable to Kandyans.
In the case of Kandiah v. Thangamany (4) Nagalingam, A. C. J.stated as follows :
"Under our law however, some antecedent public ceremony,public in the sense of a ceremony in the presence of relatives,friends, and third parties had to take place before the mere
Sri Lanka Law Reports
 2 SrtL.R
circumstances of the parties living together as man and wifefollowed by recognition of their living together as man and wife byfriends and relations can form the basis of a deduction that therewas a lawful marriage between the parties."
In the case of Fernando v. Dabrera (5) Smnatamby, J. stated asfollows :
"The learned District Judge took the view that, to establish amarriage by habit and repute, there must be satisfactory evidence ofsome customary rites followed by evidence of habit and repute. Inour view he misdirected himself on this point. If one of the parties isalive, then of course, it would be necessary to establish theexistence of marriage ceremonies, for, a party to the marriage mustnecessarily be aware of it, and be able to give evidence in regard toit. but where neither of the parties is alive, and the marriage itselfwas contracted at a very early date, evidence of customary rites orreligious rites would be difficult, if not impossible, to obtain, and is,therefore, not insisted on. It is for that reason that the lawrecognises proof of a marriage by habit and repute."
From the above dicta it would appear that the marriage recognisedas valid by habit and repute is'a customary marriage, and evidence ofcustomary or religious rites could be dispensed with only when it is notpossible due to circumstances such as lapse of time to produce suchevidence Such a marriage is inappropriate to a Kandyan marriage asthe law no longer recognises a customary Kandyan marriage.
For the above reasons it is our view that the learned District Judgewas right when he held that a valid marriage between BeatriceRatnayake and Vincent Herathhamy had not been established. Wetherefore affirm the judgment of the learned District Judge, anddismiss the appeal, but without costs.
A. G. DE SILVA, J. – I agreeAppeal dismisses/.