PUNCHIHAMYet al. v. PUNCHIHAMY et al

083-NLR-NLR-V-18-PUNCHIHAMYet-al.-v.-PUNCHIHAMY-et-al.pdf


( 294 ;
Present; Wood Benton C.J. and De Sampayo A.J.
PUNCKEHAMY et of. v. PUNCHIHAMY et aL8&^-b. C. Kurunegala 4,909.
Kandyanlaw—Kandyanmarrying a low-country Sinhalesetroman—
Offspring not Kandyan.
The children of a marriage between a Kandyan man and alow-country Sinhalese woman arc not to be regarded as Kandyans.
rfiHE plain tiffs respondents brought this uction against theA defendanfcs-appellants for the recovery of lands marked 1 to12 in the schedule attached to the plaint.
According to the plaintiffs the original owner of these lauds wasone Punchirala. a Kandyan, married to one Karonchihamy, a low– country Sinhalese woman, and had by her three children, Ungurala*Menuliamy, and Dingiri Menika.
Punchirala, hv deed PI, gifted, in 1882, the first five lands men-tioned in the schedule to Karonchihamy, Ungurala, and Menuhamy,and in the same year, by deed P2, conveyed lands 6, 7, 8, and 9 toDingiri Menika. In respect of the remaining lands Punchirala diedintestate.
Punchirala died in 1884, Menuhaxny died without issue the sameyear, Karonchihamy died about 1889, Dingiri Menika died about1894, and Ungurala died in 1910.
The plaintiffs, who are the children of Dingiri Menika, alleged thatUngurala died without legitimate issue, and claimed all the above-mentioned lands by right of inheritance from their mother DingiriMenika and their uncle Ungurala.
The defendants claimed to be the legitimate children of Ungurala,and alleged the lands were not the sole property of Punchirala, butof Punchirala and one Malhazuy. They further claimed title to thelands by right of prescriptive possession.
The District Judge held that the defendants did not acquire anyright to the lands through Ungurala. The defendants appealed.
Bawa, K.C. (with him .4. St. V. Jayewanhne, Batuwantudawatand A. L. Wijewardoic). for defendants, appellants.
Anton Bertram, K.C., A.-G. (with him S. Qbeyesekere, O.G.), asamicus curiep.
The Supreme Court delivered the following judgment, and sentthe case back for expert evidence: —
October l9, 1914. Wood Rbston C.J.—
In my opinion there should be further inquiry in this case in theDistrict Court , before we are called upon to decide the importantquestion of law involved in it, namely, whether under v the Kandyan
( 295 )
Jaw the issueof a Kandyanman marriedto a low-country womanis
Kandyan. The learned District Judge has stated that the decision .ofthis Court in Mudiyonse f>. Appuhamy *■ is in conflict with the viewexpressed by “ oar Courts in innumerable decisions." T am not myselfaware of any such decisions, and I take it that the District Judge isreferring to decisions of the District Court, bearing directly or indirectlyon the subject, which have not come up in appeal. I hope that whenthe case eomes back to ti* we shall be furnished with full particulars ofthese decisions.
I would set aside the decreeunder appealand sendthe • casebackto
the District Court, in order that expert evidence may lie adduced onthe following points: —
(X) What * istheposition,according to Kandyan custom,ofthe
children of a low-country Sinhalese woman married to a Kandyan man?
(2) What istheposition,according to Kandyancustom,ofthe
children, of a Kandyan woman married (a) in bintia and (b) in digo to alow-country Sinhalese man?
After this evidence has been recorded tbc learned District Judge willadjudicate upon the case afresh.
Pbrbiba J.—I agree.
Da Samfato A.J.—I agree.
At the second trial the District Judge ((x. W. Woodhouse, Esq.)delivered the following judgment:—
The decree in this case was set aside by the Supreme Court in appeal,and tbe case sent back in order that expert evidence might be adducedonthe pointsstated in the judgment. ThisCourtwasdirected then
to adjudicate upon the case afresh. Three witnesses were called, allof whom areacknowledgedto bepersons thoroughly conversant with
the laws and thecustoms and manners of the Kandyan Sinhalese.
Mr. Modder has practised for thirty-one years in ’ these Courts, and isthe author ofthe standardwork on Kandyan law. His evidence isto
theeffect that“ persons bom of a Kandyanfatherand'a low-country
Sinhalese mother were treated as persona coming under the Kandyanlaw. " As apparently that view of the law was never questioned,of course therewould lie nodirectdecisions on the point; but asthe
witnesses are agreed that such marriages arc of common occurrence,chiefly between families living on the border between the Kandyandistricts and the maritime provinces, it is disappointing that no concreteinstances havebeen shownwherethe Courts have decided cases,or
dealt with estates, of deceased persons on that footing.
With reference to the other questions put by the Supreme Court.Mr. Modder states that the children of a Kandyan woman married inHrmrt to a low-country Sinhalese man would, in respect of their mother'sproperty come under the Kandyan law, and iu respect of their fathersproperty- come under the Eoman-Dutch law.
If the marriage bo dtga tbe woman forfeits her paternal inheritance.so that the children will inherit only the father’s property, and that willbe in terms of the Roman-Dutch law. The Hon. Mr. T. B. L. Moone-malic. M.L.C.. was the next witness called. He is himself a Kandyan
1915.
Pnnchihfxmy
v.
Ptm/ski/tamy
ilfi N. L. Tl. 117.
( 296 )
.1915. gentleman and the representative of the Kandyans in the Legislative®0UB0^»h*8 not only practised as a proctor of these Courts for the
|M( twenty-five years, * but has also collated evidence on the point inPundiikamy iesne from leading experts on – Kandyan law, and from the leadingmembers of thecommunity,witha view ofintroducing fresh legislation
on the subject, by reason of the decision in Mudiyanae v. Appuhamy.1He says that “ it has always been accepted that in the case of a Kandyanman marryingalow-country woman the wife takes thestatusofthe
husband. Their children would takethestatus of the father,thatis
to say, come under the Kandyan law.*' Mr. Moonemalle decides thefurther question on a considerationofdomicile; that is tosay,the
children of aKandyan fatherby a low-country motherlivinginthe
Kandyan provinces would be Kandyans, and cdme under the Kandyanlaw, no matter whether the marriage was binna or diga. He refusedto discuss theirposition iftheparents leftthe Kandyan provinces and
permanently lived elsewhere.
The next and last witness called was Mr. Palipane, aKandyan
gentleman whoismarried to a low-country Sinhalese lady,andwhohas
for forty-threeyears been a BatemahatmayainaKandyan district
bordering onthelow-country.He agrees with Mr. Modderinhis
statement of the Kandyan customonthe question proposedbymy
Lords. Mr. Palipbne states that he is awareofnocase where the
children of alow-country Sinhalese woman marriedtoa Kandyan man
were treated as low-country Sinhalese,thatis. as coininguuderthe
Bdman-Dutch law.
On the sideof the plaintiffs, on the otherhand,wc have neither
oxpert evidence to contradict what has been stated by these threegentlemen, nor decisions of cases on the footing that persons such as weare considering come under the Boman-Dntch law.
In my opiniontherewas noestablished rule accordingto Kandyan
custom definingthe statusofthe^ childrenof Kandyan fathers by
low-country mothers. Their status hasbeennebulous, if * Imayuse
the word, just asmanyquestionsof law arc nebulous untilactedupon
and crystallizedby the Legislature or bythe calm and deliberate
decision of theCourts.To take qninstance:UntiltheOrdinance
No. 14 of 1909it wasthought that amarriagebetweentwoKandyans
under the general law was not valid. Again: until Corea v. Appuhamy2it 'was thought that co-owners in possession for ten years could prescribeagainst others not in possession.
In England itwas not till 1848 (seeTutk v.Moxhay3) that persons
were aware thatnegative covenants are binding on eachpersonwho
acquires the land,unlesshe is apurchaser for value of thelegalestate
without notice Of the covenants; itwasfifty-eight yearslaterthat
persons became aware that the purchaser was bound, even if be has .only constructivenoticeof the covenants (Niabet andPoltsContract^
ch. A, 386).
Hitherto the Courts, if they had anything to do with the questionwero satisfied to take persous whocalled themselves Kandyansas
Kandyans. That is clearly what the witnesses meant by saying thatchildren of Kandyan fathers and low-country mothers were “ treated **as Kandyans.
* (2910) 20 N. If. U7.
(1911) lo .V. L. U. 66.
* 2 P/i. 774.
( 207 )
Now the nutter has Come op for decision, I think the decision of theSupreme Court which is assailed is a very practical one. It would lead
to endless complications if we treated persons as Kandyans under Punchihamy
Kandyan law for some purposes at certain times and in certain places,and as low-country Sinhalese under the Roman-Dutch law for otherpurposes and at other times and in other places.
191*.
v.
Punchihamy
I see noreasontoalter thedecisionI had arrived at iniuy former
judgment. I hold,therefore,that defendants acquired no shareof
the lands in claimthroughUngurala. I reserve the question as to
defendants*rightby purchase. Thedefendants will pay plaintiffs*
costs, on this issue.
Judgment accordingly; further hearing on June *2*2, 1915.'
The defendants again appealed.
Koch, for the defendants, appellants.—The expert evidence calledat the second trial unanimously supports the appellants' contentionthat the issue of a Kandyan man married to a low-country Sinhalesewoman have always been treated as Kandyans. The expertsdiffer only on points which are not material to the decision of thiscase. The decision in Mudiyansc v. Appukamy1 is not supportedby custom.
As the marriage of Ungurala was not registered, his children areillegitimate, and would be entitled to their father’s acquired property.
If the case is to be decided on the footing that it is governed byRoman-Dutch law, there is ample proof of a marriage betweenUngurala and Unguhamy. Proof of habit and repute is very strong.The entry in the birth register of one of Ungurala’s children that. the parents were not married only means that theiF marriage wasnot registered.
Counsel cited 1 Leem. 76; 16 N. L. Ii. 501; 4 N. L. R. 8;
2 N. L. R. 322, 352.
No appearance for respondents.
Cur. adv. vult.
July 28, 1915. Wood Rknton C.J.—
This is an action for the recovery of certain lands. According tothe plaintiffs, the property originally belonged to Puncbirala, aKandyan, who was married to Karonchihamy, a low-countrySinhalese. Their children were Ungurala, Menuhamy, and DingiriMenika. The plaintiffs are the children of Dingiri Menika and thenieces of Ungurala, and claim all the lands in suit by inheritancefrom them. The plaintiffs admitted that Ungurala had lived witha woman Unguhamy, and that the defendants are the children o£that union, but denied that Ungurala and Unguhamy were married.The defendants, on the other hand, assert that stich a marriagetook place, and that they are the legitimate issue of the union.They further alleged that the lands were not the property of
i (1918) 18 N. L. R; 117.
( 298 )
Punchirala alone, but belonged to Puuehirala and one Malhamy, whohas left a son Hetuhamy; but the learned District Judge held againstXUpraow&J. the defendants on this point, and nothing further has been said aboutFmeMhamy ^ a** Subsequent stages in the proceedings. The vitally impor-ts tout issue is whether the defendants are the legitimate children ofPunthihamy Ungurala and Unguhamy, and that issue depends on whether theoffspring of a union between a Kandyan and low-country Sinhaleseare to be regarded as Kandyans. This question came beforePereira J. and myself in the case of Mudiyame v. Anpuhamy,1 andwe answered it in the negative. The learned District Judge in thepresent case followed that decision, but stated that previous toMadly an se v. Appuhamy1 “ it was accepted law that the issues of aKandyan man married to a low-country Sinhalese woman were
Kandyans and that is how our Courts viewed the matter
in innumerable decisions.’* The learned District Judge further heldupon the evidence that the status of XJngurala and Unguhamvdepended upon the .Roman-Dutch Taw. He further held upon uconsideration of the evidence that they had not been married infact, and that* ns the defendants were, therefore, illegitimate, theRuman-Dutch law7, to which they were subject, gave them no interestin the father’s properly. The defendants appealed, and the casecame on for argument before ray brothel's Pereira and De Sampayoand myself on October 8, 3914. It was strongly pressed upon usby counsel for the defendants, with whom the Attorney-Generalassociated himself as amicus curia, that the decision of this Courtin 'Mudiyu-Twe v. Appuhamy 1 was contrary to the Kandyan law,and in view of that contention, and also of the statement by thelearned District Judge that there were 44 innumerable decisions ”on the point, we thought it right to direct that the record should besent back to the District Court for further inquiry and adjudicationon the following questions: —
Whatisthe position,awarding toKandyancustom,of the
children ofalow-country Sinhalese womanmarried to aKandyan
men?
Whatisthe position,according toKandyancustom,o( the
children ofa Kandyan womanmarried(a)in binna, and (b)in diga,
to a low-country Sinhalese man?
This further inquiry and adjudication have now taken place. Thedefendants called Mr. Frank Modder, author of the well-known andmost useful treatise on Kandyan law; the Hon. Mr. Moonemalle,who has been a proctor of the Supreme Court, practising in Kuru-negala, for twenty-five years, and has represented the Kandyancommunity in the Legislative CouncU for eight year's; aud Mr.Polipane, Ratemahatmayq of a Kandyan district for forty-threeyears. No counter evidence was adduced on behalf o£ the plaintiffs.
» {1913) 1$ N. L. R. 117.
(20U)
.Tie learned District Judg ft, virile accepting, as J need scarcely say *W$.w 3 also are prepared to sect ftt, the testimony oi these expert witnesseswooi>
in entirely tnutwoHhy so ttr as it goes* came to the conclusion thatworn CJ.
thtre was no e=f«6lished rail according to Kandyan custom defining Pun&ikmythe stntof «>f children of K&ndynn fathers by low-countryv.
model’s. '* f iMnfr~ ~ he add d, ’* that the decision of the Fwpreme Fan*tofc«*»,vf*on.<t which i* a.^ulrd is a ery practical one. It would lead tocnc^&s complicutio.K if we trea persons us Kandyans under Kandyanlire for sonic purposes at certain times and in certain places, andus ow-coin>tr> Sinhalese unde?* the Roman-Dutch law for otherpurposes ui -i.iser llim# and in other places. ’’ * He, therefore,nffi* Tied life previous judgment in the plaintiffs* favour, and thedefi*'idauts again appealed.
The eid nee of Mr. Madder, Mr. MooneinalJe, and Mr. .Palipaneshows thtvt they have regarded the issue of marriages betweenKandyan und low-country Sinhalese as subject to the Kandyan law.
The two former gentlemen say that they have drawn pleadings andconducted cases-on that assumption. But in spite of the statementin.the previous judgment of the District Court that there were“ innumerable decisions M to that effect, and of the fact that the casewas sent back in order that evidence of these might be given, nota single concrete case has been cited showing that the question hadever been directly raised in the Kandyan provinces, and that theopinion of the expert witnesses in regard to jt had received thesanction ol a court of law. But there is a further difficulty. If weare to declare the law on this matter we must declare it as a whole.
We must be in a position tc lay down principles which will governnot* only marriages bt&ween Kandyan men and low-country Sinhalesewomen, bus also marriages between Kandyan women and low-country Sinhalese men. It was for this purpose that the second ofthe two questions above mentioned was embodied in the referenceof the present case to the District Court for further inquiry andadjudication. Bat at this stage in the proceedings, unanimitybetween the experts comes to an end. The evidence of Mr. Modder' is to the following effect:—
Children 61 & – KmUy&n woman married in bm«a to a low-eonntrySinhalese vronid come under the Kandyan. law in respect of themother's property, because the husband tabes cp his residence, in bfewife's bouse, and the policy of the Kandyan law is to conserve the pro-perty m the family of the original owner. Jt the marriage be in diga,the woauta forfeits her paternal inheritance, in the seme way as if shemarried a Ksudyen in digit.
According to Mr. Mocnem&Ue, a Kandyan woman "married in diguto £ Saw-country man in the Kandyan provinces would retain herown customary law. The witness declined to express any opinionon the further point as to what her status would be if she left theKandyan provinces. According to Mr. P&lip&net if a Kandyan
19*6.
Wood
Benton C.J.
Punchihamyv.
PuncMhamy
( 000 ')
woman jmarries a low-country man ii* binna, the children would takethe status of their father.
It is obvious from these citations that, as the District Judge hasobserved, the whole question is in a nebulous state. It was pointedout by Pereira J. in Mudiyanse v. Appuhamy 1 that it has been heldby this Court (see Manikhan v. Peter2) that low-country Sinhalese,are not a different race or nationality from Kandyans, and that thereis neither any general rule of law which requires us to hold, norany authority that would justify us in holding, that the childrenof marriages between Kandyan men and low-country Sinhalesewomen are to be regarded us Kandyans. If the law is to be declaredin that sense, the task must be accomplished by the Legislature,after taking full account of the different classes of cases for whichit will have to provide.
On the question whether or not Ungurala and Unguhamy werelegally married, I agree with what has been said by my brotherDe Sampayo, and concur with the order he has proposed.
De Sampayo A.J.—
The principal question in this case is as to who are the heirs ofone Ungurala and are entitled to his property. The defendants arethe children of Ungurala by a woman named Unguhamy, but theplaintiffs, who are Ungurala's nieces, deny the defendants’ right,and allege that Ungurala and Unguhamy were not legally married,,and that therefore the defendants are not entitled to succeed toUngurala’s property. The defendants rest their claim on twogrounds : (1) that Ungurala was a Kandyan, and that even if theyare his illegitimate children they are his rightful heirs under Kandyanlaw; and (2) that if Ungurala was not a Kandyan, he was legallymarried to Unguhamy under the general law. The first of thesepoints has been the subject of much contention. Ungurala wasthe offspring of a marriage between Punchirala, a Kandyan, andKaronchihamy, a low-country Sinhalese woman, and if the decisionin Mudiyanse v. Appuhamy 1 governed, Ungurala could not beregarded as a Kandyan. But, under the circumstances mentionedby my Lord the Chief Justice, this Court sent the case back forevidence as to Kandyan law and custom in regard to the status ofthe children of such mixed marriages. I agree that the evidencecalled at the further trial is not such as enables us to find any sureprinciple by which Mudiyanse v. Appuhamy 1 can be held to have beenwrongly decided, ami that, so far as this case is concerned, we shouldfollow that decision, and hold that Ungurala was not a Kandyan,and that consequently the defendants are not Kandyans either, andcannot therefore appeal to the Kandyan law of inheritance in supportof their claim to succeed as heirs of Ungurala, This brings us tothe second question above mentioned* viz., whether Ungurala was
i (MB) 10 W- h. R. 117.* (1899) 4 N. L. R. 24$.
( 301 )
lawfully .married to UnguLamy. There was no registration of any 1M8marriage, but if be was not a Kandyan, his marriage does not ^ gAMPAYOdepend for its validity on registration, ^nd may be otherwise proved.
The evidence in the case leaves no doubt in my mind that Ungurala punMhomyand Unguhamy were married according to custom, and that they J*cohabited together as husband and wife, and were reputed as suoh.
The learned District Judge himself was satisfied with that evidence 'generally, and would have probably given effect to it but for twofacts which in his opinion upset the presumption of a valid marriage.
It appears that some eight years after Ungurala and Unguhamyhad gone through the customary ceremony and had begun to livetogether as husband and wife, Ungurala gave a notice of marriageunder the Kandyan Marriage Ordinance, but did not proceed further.
The District Judge regards the circumstances as evidence that theparties themselves had not regarded their association as a marriage.
Unguhamy in her evidence says that the failure to proceed furtherwas due to Ungurala haring fallen ill, and the matter being there-after lost sight of. Whether that be true or not, the District Judgehas failed to take into account the important fact that the noticeof marriage was given in obedience to a general order of the Govern-ment Agent that persons whos6 marriages had not been registeredshould regularize them by registration. This order, doubtless, wasintended to be addressed to Kandyan people only. A notice ofmarriage given in such circumstances cannot and ought not tobe regarded as affecting a marriage which is otherwise good (see
C. Kandy, No. 16,724, reported in 1 Leembruggen 76). It maybe added that Ungurala continued to live with Unguhamy on theoriginal footing until his death many years after. The other factwhich influenced the District Judge is that in the register of birth ofone of Ungurala*s children the parents are stated to have been“ unmarried.** But it is clear from the evidence of the registrar,who was called as a witness, that in the Kandyan districts a childof parents whose marriage has not been registered is irvariablydescribed as bom of unmarried parents. In my opinion the birthregister in this instance has very little bearing on the question ofthe marriage between Ungurala and Unguhamy. On the evidenceI hold that the presumption of a valid marriage under the generallaw has not been displaced. The effect of this finding is that thedefendants as legitimate children of Ungurala are entitled to his.property, and not the' plaintiffs. This disposes of the main issuein the case; but there were certain other issues as to what was theproperty of Ungurala. In view of his findings on the main issue theDistrict Judge has left undetermined those other issues, and Ithink the case should go back for the final determination of theremaining questions. I may add that the parties would do wellto save further expenses by coming to an agreement on thosequestions.
f 002)
1915.
Ds Sampayo
A.J.
Punchihamyv. .
Punehihnmy
For the above reasons I think the fppeal should be allowed, andthe case should go back for further proceedings. The defendantsshould have the costs of this appeal and also the costs of the firsttrial, but they should pay to the plaintiffs the costs of the proceedingshad when the case was remitted by this Court. A11 other costs inthe Court below should be in the discretion of the District- Judge.
Case sent tack.