RABOT et al. v. DE SILVA et al

027-NLR-NLR-V-10-RABOT-et-al.-v.-DE-SILVA-et-al.pdf


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1907•[In Review.]
March 18.
Present: Sir Joseph T. Hutchinson, Chief Justice,. Mr. JusticeWendt, and Mr. Justice Middleton.
RABOT et al. v. DE SILVA et al.
D. C.t Colombo 14,923.
Marriage of persons who have lived in adultery—Validity—The con-clusive nature of a judgment of three Judges of the Supreme Courtsitting in appeal or in review—Non-access—Impossibility of access—-Evidence of husband and wife—Courts Ordinance (No. 1 of 1889),33. 41 and 42—Evidence Ordinance (No. 14 of 1895), s. 112—Ordi-nance No. 24 of 1901, 8. 10.
The Supreme Court (consisting of three Judges) hearing, a case mreview preparatory to an appeal to HiB Majesty in Council' is boundby the decision of three Judges of the said Court pronounced inappeal or in review, unless it is founded on a manifest mistakeor oversight, or is inconsistent with some previous decision which isof equal or greater authority.
Held, following this rule, that the Supreme Court sitting inreview was boundbythe judgment in review pronouncedin
Karonchihamy v.Angohamy(8N.L.R.1), which decidedthat it
was not illegalin Ceylonforaman who had lived inadultery
with a woman during the lifetime of his wife to marry such womanafter his wife'sdeath; andalsobythejudgment of theSupreme
Court (consisting of three Judges) in appeal in Sopi Nona v.Marsiyan (6 N. L. R. 379).
The judgment in Sopi Nona v. Marsiyan explained'.
Wbndt J.—Under the Evidence Ordinance, the evidence of thewife is admissible to prove non-access.
H
EARING in review of the judgment of tte Supreme Courtreported in N. L. R. 364 preparatory to appeal to His
Majesty in Council.<-
Walter Pereira,K.CS.-G.(withhimE. H. Prins),for the
plaintiffs, appellants.
Van Langenberg (with him E. W.defendants, respondents.
18th March, 1907. Hutchinson C.J.—
Jayewardene), for the
Cur. adv. vult.
«
e
This is a hearing in review before appeal to His Majesty in Council.
The plaintiffs claim one-fifth of the estate of Vincent Pereira, whodied on the 28th July, 1900, leaving a will of which the finest andsecond defendants are the executors. He had five brothers andsisters; and the plaintiffs claim that the plaintiff Johanna, as the
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only child of one of those brothers, became entitled on V. Pereira's 1907-death to one-fifth of his estate, because the dispositions of his estate March lff-made by his wifi were unlawful and ineffectual.Hutohxnsob
Vincent Pereira lived in adultery with the third defendant Justina,who was the wife of Salman Appu. Salman Appu died on the 13thApril, 1889, and shortly after bis death V. Pereira went through theceremony of marriage with Justina, and the marriage was dulyregistered. The fourth, fifth, and sixth defendants are the childrenof Justina bora in Salman Appu's lifetime and during the subsistenceof her marriage with him and whilst she was living in adultery with.
V. Pereira. The seventh defendant is the husbtfnd of the sixthdefendant, and the eight and ninth defendants are persons whomthe testator brought up, and to whom he gives certain benefits underhis will, calling them his “ adopted children.'*
The plaintiffs contend- that the evidence proved that the fourth,fifth, and sixth defendants were the children of V. Pereira, bornwhilst he was living in adultery with their mother Justina, and were*therefore incapable of taking anything under his will; and also that,,because he had lived in adultery with, Justina, he could not, in accor-dance with the Roman-Dutch Law in force in Ceylon, contract arlegal marriage with her or make any gift by will to her.
By his will V. Pereira appointed the first two defendants-executors and trustees- of his will, and, after some specific bequests toJustina, gave all his real, estate to the trustees upon trusts for thebenefit of Justina (whom he calls his wife), and of the fourth, fifth andsixth defendants (whom he called his daughters) and their descend-ants, and of his adopted daughters, the eighth and ninth defendants.
At the trial the District Judge found on the evidence that the*fourth defendant was the child of Salman Appu, but that the fifthand sixth defendants were the children of the testator; and he heldthat the alleged marriage between V. Pereira and Justina was un-lawful for the reasons given by the plaintiffs. He further held thatthe fifth and sixth defendants could not take anything under the*will, because they were his children born to him by Justina whilst hewas living in adultery with her; but that Justina could take underthe will because at the date of the will and of the'testator's death shewas not living in adultery with him fher husband being then dead),but was merely his concubine. But he also held that the shares-given by the will to the fifth and sixth defendants went to the otherlegatees by the jus accrescehdi. He accordingly dismissed the action.
Against this judgment the plaintiffs appealed; and on the appealMiddleton J. and Grenier A.J., following the decision of the Full'Court in Karonckikamy v. Angohamy (1), held that the niarriage ofV. Pereira with Justina was valid, and that the bequests in favourof Justina were good; and following the decision of the full Court fit
(1) (1904) 8 N. L. R. 1.
( 145S )
1907.Match 18
Hutchinson
O.J.
Sopi Nona v. Marsiyan (1) upon the construction of section 112 ofthe Evidence .Code, they held that the fifth and sixth defendants aswell as the fourth defendant were the children of Salman Appu,because it was not shown to have been impossible for him to havehad access to Justina at any time during which those children mighthave been begotten; and they accordingly held that the bequestsin favour of all the children were good. They accordingly variedthe judgment of the District Judge by decreeing that the fifthand sixth defendants took under the will, and in other respectsaffirmed it.
On this hearing in review it has been contended tor the plaintiff—
That we are not bound to follow the ruling of the Court in
the case in 6 N. L. JR. 379; that the decision in that casewas wrong; and that the evidence proves that SalmanAppu had no access to Justina at any time when thefourth, fifth, and sixth defendants could have beenbegotten, and that those three defendants were thechildren of V. Pereira.
That we are not bound to follow the ruling in the case in
8 N- L. B. 1; that the decision in that case was wrong;and that the marriage between V. Pereira and Justinawas invalid.
That, if these two points are established, the bequests in
favour of the third, fourth, fifth, and sixth defendantsare void.
That, if we should find that the fourth defendant is the child
of Salman Appu, but that the fifth and sixth defendantsare the children of V. Pereira, the shares of the fifth andsixth defendants do not go to the other devicees by
jus accr68cendi.
That, even if we hold that we are bound by the decision in
the case in 8 N. L. R. 1, Justina cannot take under thewill because by Boman-Dutch Law a mah cannot bequeathanything to a woman with whom he has lived in adultery.
By section 42 of “ The Courts Ordinance, 1889, ” as amended byNo, 24 of 1901, before any appeal is brought to His Majesty in Councilthe judgment is to be brought before three Judges of the SupremeCourt, who are to “ pronounce judgment according to law.’* There isno law prescribing whether the Court so constituted is to (follow the' ruling of a similar Court given in review. But I thinIf. jit is rightthat, whether it agrees with the ruling or not, it should follow it,unless pelhaps it was found on a manifest mistake or oversight, orwas inconsistent with some previous decision of a similar Courtwhich appears to be of equal or greater authority. Such a rulingought to be regarded as the law until it is reversed by His Majesty in
a) (1909) 6 N. L. B. 379.
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Council. 1 hold therefore that we must follow Karonchthamy v.Angohamy and decide that the marriage of V. Pereira with Justinawas valid. And I therefore hold that the disposition in V. Pereira’swill in favour of Justina were valid.
In this connection I must refer to an authority quoted by theappellants from Voet% bk. 34. t. 9, s. 3, who says that a man cannotbequeath anything to a woman with whom he lives in adultery,44 sive earn in matrimonio duxerit, sive tantum adulterio polluerit.”But Voet gives the reason, viz., 44 cum ipsum matrimonium ob prce-cedens adulterium invalidum pronuncietur; ” and that reason, Ihave already held, does not apply in Ceylon.
The case of Sopi Nona v. Marsiyan (1) stands on a different footing.It was an appeal from a Police Magistrate, which came first beforeMiddleton J., who reserved it for the consideration of the Full Courtas to the construction of section 112 of the Evidence Ordinance, andit was then argued before a Court of three Judges. This was donein accordance with section 41 of 44 The Courts Ordinance, 1889,”which enacts that appeals from Police Courts may be heard by anyone Judge of the Supreme Courtr but that 44 nothing in this actioncontained shall preclude any Judge of the Supreme Court sitting alonein appeal from reserving any appeal for the decision of two or moreJudges thereof.” Is the Court of three Judges constituted undersection 42 of the Courts Ordinance, as amended by the Ordinanceof 1901, for review of a judgment preparatory to an appeal to HisMajesty in Council, bound by the law as laid down by a Courtof three Judges held in* accordance with section 41 of the CourtsOrdinance?
My first * opinion was that the Legislature, in establishing thisreview procedure, intended that the Court hearing a case in reviewbefore appeal to the Privy Council should' reconsider, if necessary,previous decisions of Courts held under section 41. My brothers,however, think that it is not so, and that it is right that we should,now that the question has been formally raised, lay down for ourguidance the rule {hat we should consider ourselves bound by theruling of a Court composed of three Judges, whether in review ornot, unless the ruling appears to have been founded on some manifestoversight or mistake. I agree that that is. the most convenient rule,and that we should declare that we will follow it. The uncertaintyof the law which would be the result of a different rule is a greaterevil than the chance that a wrong decision once given may be bindingever afterwards on all other Courts.
I think then that we ought to follow the ruling in the case of SopiNona v. Marsiyan (1). Then what was that ruling, and ho^ does itapply here? It was stated in argument that it has been mis-understocd, and that some Magistrates have, on the supposed
a) (1903) 6 N. L. R. 379.
1907.
March 18.
Hutohessoh
oj.
13-
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1007. authority of that case, refused to admit any evidence to prove theMarch 18. fact of non-access by the husband in such cases. That case wasHtoghinson decided upon the enactment in section 112 of “ The Evidence Ordi-O.J. nance, 1895, ” which is that “ the fact that any person was bomduring the continuance of any valid marriage between his motherand any man, or within 280 days after its dissolution, the motherremaining unmarried, shall be conclusive proof that such person isthe legitimate son of that man, unless it can be shown that that manhad no access to the mother at any time when such person couldhave been begotten, or that he was impotent/’ The Magistratehad held that the child of Sopi Nona, a married woman who wasliving in adultery with another man, was not the child of her hus-band, because he found it proved that the husband had only visitedher once, a few days after the birth of a previous child, and notafterwards. The Supreme Court reversed this decision. LayardC.J., following a ruling of Bonser C.J. in 5 N L. R. 243 said that itmust be proved “ either that her husband was impotent, or that itwas impossible for him to have had intercourse with her at the timethe child was begotten/’ Middleton J. said that it must be proved,
“ either that he is impotent, or that he had no possibility of access, tohis wife. ” Grenier A.J. used similar language, and said “ it wouldbe for the husband to prove that he was confined in an asylum orwas beyond seas or was placed in circumstances, of such physicalrestraint as to have rendered it impossible for him to have had accessto his wife.' ’ The Court held that the above was the effect ofsection 112 of the Evidence Ordinance, and that impossibility ofaccess had not been proved.^‘ .
It seems to me that the word “ impossible ” is liable,, to be mis-understood, and the language of Lord Redesdale referred to in theprevious case is no authority for the construction which Bonser C.J.placed on section 112 of the Ordinance. It is better to adhere tothe words of section 112, which are plain enough: “ Unless it canbe shown that he had no access/’ “ Shown,” of course, * meansproved by evidence. It does not appear whaf- the evidence -waswith which the Judges had to deal in the case of Sopi Nona v.Marsiyan (1); it may be that the husband was living in the samevillage as his wife; and I gather from the judgment that the Magistratehad allowed the husband to give evidence that he had had no access tohis wife, which evidence Layard C.J. thought inadmissible. Withoutknowing the facts I am not sure precisely what the Courtmeant by “ impossible.” Take the case of a man living in adulterywith, a married woman in Colombo, the husband at <large and notimpotent living also in Colombo during the whole time during which1the child could have been begotten; it would be very difficult toprove non-access, especially if the evidence of the husband and thewife as to non-access is excluded (and I express no opinion as towhether it ought to be excluded or not, as the point does not arise
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and was not argued). But how if it were conclusively proved that 1907.the husband was living in and never moved out of Tuticorin, and March 18that the woman never moved out of Colombo, during the whole Hutchinsonperiod.? Tuticorin is overseas, and Grenier J. thinks that thatC.J.
would do. Then why will it not do if it was proved that he was inand never moved out of JafEna or Kandy? In one sense it is not44 impossible '* that a man who has* been living for a year in Kandyor JafEna or Tuticorin or London may have had access to a womanin Colombo, for the evidence that he never went to Colombo maybe mistaken.' So may any evidence. But if the Court is quitesatisfied that it is 6hown that he never did leave his residence duringthe period, it must find that it is 44 impossible ’* consistently withthe facts proved that he could have had access; in other words, itwould be 44 shown that he had no access. " And I think that allthat the Court meant in the case of Sopi Nona v. Marsiyan (1) wasthat it must be shown to have been impossible consistently with thefacts proved. It must be proved affirmatively, and not merelyinferred as a probability, that, the man had no access.
I must therefore examine the evidence and say whether it is shownthat Justina’s husband had no access to her at any time when thefourth, fifth, and sixth defendants could have been begotten. Theevidence on that point is sufficiently summarized by the DistrictJudge, and I cannot say that it shows affirmatively that there wasno access. Justina was living with V. Pereira in his mother'shouse for some years, and afterwards, until her husband's death,in V. Pereira's house; the fpurth defendant was born about eighteenmonths after she began so to live, and the fifth and sixth defendantswere born, afterwards and before Salman Appu died. Salman Appuwas living in Ceylon apparently during the whole time; there is noevidence of any moment, beyond the fact' that she was living withV. Pereira, which can be said to prove that Salman Apppu had noaccess to her; and she in fact says that he did have sexual intercoursewith her and that he was the father of the fourth defendant, and thatshe is not sure whether he or V. Pereira was the father of the*fifthand sixth defendants. I must therefore hold that Salman Appuwas the father of the fourth and fifth and sixth defendants.
These findings render it unnecessary to consider the other pointsurged by the appellants. In my judgment, therefore, the appealshould be dismissed and the judgment of the Supreme Courtaffirmed.
*
Wendt J.—1*
This is a hearing in review, at the instance of .plaintiffs, of thecase reported in 8 N. L. R. 82, decided by my brothers Middleton J.and Grenier A.J. The facts are sufficiently stated in the judgment
(1) (1908) 6 N. L. R. 379.
1907.
March 18,
Wendt J.
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of the Chief Justice, which I have had the advantage of perusing,and I need not recapitulate them.
Upon the question whether Vincent Pereira could legally marrythe third defendant the respondents rely upon the case of Karonch-hamy v. Angohamy (1), which was the decision of a bench of threeJudges of the Supreme Court sitting in review preparatory to anappeal to the Privy Council. The appellants, in order to establishthat the fourth, fifth, and sixth defendants, children of the thirddefendant, were not also the children of her husband Salman butof Pereira, contend that, although they have not shown impossi-bility of access by Salman to his wife at the time when he mighthave begotten the fourth, fifth, and sixth defendants, they haveyet shown that in fact he had not such access, and have therebysatisfied the requirements of section 112 of “ The Evidence Ordi-nance, 1895/' The respondents, to support their contention thatthere must have been impossibility of access, rely on Sopi Nona v.Marsiyan (2), which also was a decision of three Judges of this Court,but not sitting in review. The appellants have argued that we arenot bound by these two decisions, and that they were wrong in law.This contention raises a most important question as to the effect ofsuch decisions of what has been called.the ” Full Court,” that is,of a bench of three Judges. Until the passing of the OrdinanceNo. 24 of 1901 which came into operation on 18th December, 1901,the Supreme Court consisted of three Judges, but since then of four.
The practice upon the point we are considering has varied fromtime to time, and while some. Judges £ave considered themselvesbound by judgments of the ” Collective Court ” or ” Full Court,”others have not hesitated to disregard them when opposed to theirown opinions, without however saying in so many words that theywere not binding. The result is seen in the conflicting decisionswhich are to be found in the reports, and which, emanating from thehighest tribunal in the land, have produced a most unsatisfactorystate of. uncertainty as to the law on several points of importance.It is. therefore much to be desired that the law regarding the effectof Full Court decisions should be made clear, or that at least thisCourt should lay down some rule for itself in dealing with suchdecisions. I* am not now speaking of those old decisions which,though not rendered by three Judges, have long been acted upon asdeclaring the law, and which therefore even a. Full Court wouldrefuse to disturb, though it had the power to do so.
r The Charter of 1833 (sections 4, 3, and 47) empowered a single
Judge'to reserve for the decision of all the Judges sitting collectively
any question arising before him. This provision was repeated in the
Ordinance^No. 11. of 1868 (sections 25 and 40), which replaced the
Charter. Section 52 of the Courts Ordinance, which succeeded
0
(2) (1908) 6 N. L. R. 879.
(1) (1904) 8 N. L. R. 1. •
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the Ordinance of 1868, enabled a single Judge to reserve a questionfor the decision of “ two or more Judges,*’ and that is the enactmentnow in force. There never was',express power given to a bench oftwo Judges to reserve questions for decision by three; and therenever was any class of case which required a bench of three Judgesfor its decision, excepting always the hearings in review. Inpractice, besides these hearings in review, and besides cases speciallyreserved, many cases (especially in the earlier years, even up to the■seventies, when the number of appeals was small) came before theFull Bench of three Judges, who, not having other demands upontheir time, sat together to hear a mixed list composed of two-Judgeoases and one-Judge cases. There were thus decisions of the FullCourt which dealt with appeals not involving any “ doubt or diffi-culty,** and which sprang out of a two-Judge Bench reserving for theopinion of the Full Bench cases involving points upon whichconflicting decisions existed with the view of obtaining a definitiveruling thereon.
Now as to the weight attached to the rulings of the Full Court.In Punchihamy v. Amolis (1), which was .not a review case, butprobably one reserved by two Judges on account of conflictingauthorities, Burnside C.J., sitting in the Full Court, said: “ Thesecases were fully discussed by a Full Bench of the Court in D. C.,Kandy, 78,175 (2), and after a very elaborate and exhaustiveexamination and review of all the authorities bearing on the point,
in which all the Judges took part, it was solemnly decided
(This judgment) 'being a sblemn decision bearing directly upon thecase before me, is binding on me, and I- should not have consideredmyself at* liberty to disregard it in favour of my own opinion, evenif that opinion had been supported by dicta in other cases.*
D. C. , Kandy, 78,175, was not a review case either, but apparentlyreserved by .two Judges for a similar reason to that in Punchihamy v.Amolis. (1).
In 1896 the case of Emanis v. Sadappu (3) came before the FullCourt, consisting* of Bonser C.J. and Lawrie and Withers JJ.,apparently under similar circumstances to those I have alreadymentioned. The Full Court decision there discussed -was that in
Canepady v. Valy (4), a two-Judge case decided, it did not appear,for what reason, by all three Judges. Bonser C.J. said: “ In thiscase, which raised a serious question as to the authority of decisionsof the Collective Court, I have the misfortune to differ from therest of th% Court.. That question may be shortly stated thus: Is*a solemn and unanimous decision of the Collective Court on aquestion of law delivered in 1862—a decision which followed pre-vious decisions of this Court—to be treated as a binding authority
a) (1883) 5 8. C. C. 160.(3) 2 N. L. fl. 2S1.
(1880) 3 8. C. C. 61.(4) item. (186% 189.
1807.March 18.
Wbnot J.
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1907.
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Wenpt J.
or not? It is obvious that if this question is to be answered in thenegative, it will be impossible in the future to regard any questionof law as finally settled. The result will be that the law, which iaproverbially uncertain, will be rendered more uncertain still, andthe.passion for litigation, which is one of the curses of this Island,will be fostered. Cases will be instituted and appeals taken on thechance that the Court will be induced to refuse to follow its formerdecisions. M Having stated that his own opinion was against theold decision, the Chief Justice proceeded:“ But in my opinion
this question is not open; even if the Court as at present constitutedwas unanimously of opinion that the original decision was wrong,it would, 1 conceive, be out of our power to alter the law as laid downby our predecessors. That can only be done by the Privy Councilreversing those decisions, or by an enactment of the LegislativeCouncil/'
Lawrie and Withers JJ. adhered to the later ease, which had ineffect over-ruled Canepady v. Vally (1) because they thought theLegislature had subsequently altered the law bearing upon thepoint there decided, and because to go back to the older view wouldbe confusing to the public and to the profession.
In Baheem v. Yoosuf Lebbe (2) Layard C.J., sitting with MoncreiffJ., was asked to reserve the case for the consideration of a Full Court-with the view of having a former decision of three Judges,, not sittingin review [Konnamalai v. Silva Kalanthu (3)] over-ruled, but hedeclined to do so, saying he was doubtful as to whether the CollectiveCourt had the power to over-rule that-decision.
In Perera v. Perera (4) (August, 1903) the authority ofAyanker Nager v. Sinnatty (5), which, although decided by threeJudges, was not a review case was discussed before Layard C.J.and my brother Middleton and myself. The Chief Justice, said:
“ Immediately it was admitted that this Court sitting collectively
forty-three years ago had decided thatand that there had been
no collective decision of this Court questioning uhat judgment, I feltthat this Court is bound by the collective judgment of 1860, and thatit was not in o.ur power to review it. If the judgment of Hie Col-lective Coupt (which has been, as pointed out by my brother Wendt,always followed, save in the cases referred to by him) is wrong, theerror can only be reviewed by appeal from a judgment of this Court
to His Majesty in Council, or by legislationI consider
that the Court sitting collectively has no power, to over-rule theprevious judgment of a Collective Court. If there had been aconflict of collective judgments of this Court, it migkt have beenpossibly necessary to determine which we should follow. There is
Ram. (1862) 189,(8) (1891) 9 8. C. G. 203.
(1902) 6W. L. R. 169.(4) (1903) 7 N. L. R. 173. *
Ram. (I860) 75.
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no such necessity in- this case.” My brother and I agreed that we 1907should follow the judgment of 1860. In In re Sundara (1), which was March 18-reserved by a two-Judge Bench for “ a Full Bench ” and was heardby Layard C.J., my brother Middleton, and myself, the old three'
Judge decision in question was that in Mdhatmaya v~ Banda (2)ritself not a review case, the Chief Justice reiterated the opinionthat he was bound by the collective decision of the Court.
In an unreported case, P.C., Hatton, 5,087 (3), Layard C.J.rsitting in a Full Bench, said he did not think it was in the power ofthis Court to review the decision in Hunt v. Muttan (4)—the decisionin a criminal case, not in review, but reserved by Cayley C.J-for the consideration of the Full Court. My brother Middleton said:
“ I agree we are concluded by the decision of the Collective Court.”
Section 42 of Ordinance No. 1 of 1889 (as amended by OrdinanceNo. 24 of 1901, section 10), under which we are dealing with thiscase, requires that the judgment against which it is sought to appealto the Sovereign shall be brought by way of review before threeJudges of the Supreme Court sitting at Colombo, who shall there-upon pronounce judgment according to law. Untf .the Ordinanceof 1901, the review was before “ the Judges of the Supreme Courtcollectively holding general sessions at Colombo at which all .theJudges of the said Court shall be present and assisting.” Nocriminal appeal could ever be brought in review; and of civilappeals, only those involving a value of Rs. 5,000 and over, so thatalmost without exception the judgments reviewed were .those of abench of at least two Judges. The object of the review was, I takeit simply to give the Court an opportunity of reconsidering the case,and this an exactly thq same footing as the original appeal; thepowers of the Court were the same, and the fuller bench wasprescribed merely in order to afford an additional security that thefacts and the law had been correctly ascertained and declared, andthat parties should not needlessly be put to the expense of an appealto the Privy Council.
Having given the matter my most careful consideration, I thinkthat as three Judges sitting together are invested with the highest. function of the Court, viz., the hearing in review, we should notregard the Full Bench of four Judges as possessing the power to over-rule the decision of three Judges in any matter. I suggest that thisCourt, whether hearing an original appeal or sitting in review, shouldconsider itself bound by a decision upon a question of law of a three-Judge Be?ch, whether pronounced before or after the Ordinance of1901 became operative, and whether upon an original appeal or inreview, provided it appears that the law and the existing decisionsof the Court have been duly considered before the thifee Judges
(U (1$6S) 7 N. L. R. 364.<2) (1893) 2 8. C. R. 142.
S. C. MinMay 3, 1905.
(1880) 4 S. C. C. 3.
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1907.
March 18
TVendt J.
arrived at such decision. If, however, it were made clear thatthe decision in question was founded on manifest mistake or over-sight, I should recognize that as an exception to the rule.
In this view we are bound by the decisions in Karonchihamy v,Angohamy (1) and Sopi Nona v. Marsiyan (2) and I will not enterupon the question whether they were rightly decided.
The Solicitor-General argued that, even if the marriage of Pereirawith the third defendant was valid, .there nevertheless still remainedthe prohibition against such a woman deriving any benefit from herhusband's will. On this point. I entirely agree with the Chief Justicein thinking that .that prohibition depended upon the repro-bation with which the law regarded such' a connection, and that whenthe view of the law was so far modified as to permit of a lawfulmarriage being contracted between the guilty parties the prohibitiondisappeared. The maxim cessante ratione legis cessat ipsa lexapplies. It then became a question of a man leaving a legacy to hiswife, which of course is perfectly lawful.
If we assumed appellant's construction of section 112 of theEvidence Ordinance to be right, the question would arise (whichwas argued before us) whether the evidence shows that Salman hadno access to the third defendant at any time when the fourth, fifthand sixth defendants could have been begotten. I think it desir-able to express the opinion. I have formed that it does not. It wasnot argued that the mother’s evidence had been wrongly admittedon the question of non-access. By the English Law she would notbe a competent witness in the present case, but the Indian EvidenceAct has not adopted the English rufe. And it appears to have
been held in India that the evidence of the husband and wife is
• <
admissible. Our Evidence Ordinance is an adaptation, with slightmodifications not material to the present question, of the IndianAct has not adopted the English rule. And it appears to haveIt would therefore seem that the third defendant’s evidence wasrightly admitted.
There is no suggestion that Salman was impotent. The evidenceis not directed with sufficient precision to those periods anterior tothe ascertained dates of the children's births which would bematerial td the question of non-access. Salman lived in Colombowithin a very short distance of the house in which his. wife livedwith Pereira, and he was constantly seen in the neighbourhood ofthat house. Don Thomas Appu (the husband of third defendant’sdaughter Helena, who is not a party to the action) says that Salman,who was a drunkard, used to abuse his wife Justing and Pereirafrom the street, and that “ sometimes Justina used to give himmoney and quit him.” After his mother's death in 1873 Pereiraplaced the third defendant for about five years in a house of his at
(1) (1904) 8 N. L. JB. 1.(3) (1904) 6 N. L. B. 379.
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Hendala (a part of Colombo, about four or five miles from his resi-dence), where he visited her, and fifth defendant was apparentlybom there. While living there third defendant used to visitColombo. It is not unlikely that she then had opportunities ofmeeting her husband Salman. From'Hendala Pereira removed thethird defendant to Mahara, a village about seven miles from hisColombo house, and a station of the Colombo-ELandy Railway.Sixth defendant was bora there. From here too third defendantused to visit Colombo, presumably going to Pereira’s bouse. It isalso stated that Salman used do speak to Helena and her brotherSimon while they lived in Pereira’s Colombo house, and that theywere told that Salman was their father. It would seem that Pereiraalways regarded his Colombo house as* his permanent residence,even while he was -keeping the third defendant at Hendala and'Mahara and visiting her there.
.This is the nature of the evidence which is relied upon to provenon-access, and I have no hesitation in pronouncing it insufficient.In saying so I have left out of consideration the third defendant’sown testimony. If that be admitted, it completely destroys plain-tiff’s case, even although I bear in mind that she has a strong interestin making her children out to be issue of her husband Salman, inorder to secure to them the benefits provided by Pereira’s .will.
For the foregoing reasons I think that we ought to' confirm ourjudgment now under review and leave the plaintiffs to prosecute*their appeal to His Majesty in Council. The appellants must paythe costs of the hearing inf review.
Middleton J.—
. I have had the advantage of perusing the judgments of mv Lordand my brother Wendt, and I see no reason after hearing the argu-ment in review to alter the opinion I expressed in my judgment asreported in 8 N. L. R. 87.
I would only *desire to explain what appears to be" an ambiguousparagraph at page 91, where I said: “ Grotius (Introduction 2, 16, 6;and Maasdorp's translation, p. 133) speaks of children born ex pro-hibit concubitu, but if I am right in my opinion derived from Voet23, 2, 27, the connection here was not prohibitus concubitu8t andGrotius’ opinion does not help the appellants. ” I should have addedafter the words “ the connection here was not prohibitus concubitus ”“ because there was no proof that any promise of marriage had passed,nor that any attempt had been made on the innocent spouse’s lifewhich were the elements making it, according to Voet, 23, 2, 27,prohibitus concubitusI would wish also to say that in my judgment
in Sopi Nona v. Marsiyan (1) I do not think I have gone further than« 1
(1) (1903) 6 N. L. R. 379;
1907.
March 18.
Wbhdt Jv
( 152 ),
1907.
Match 18.
M;ddleton
J.
holding that the proof that is required to rebut the legitimacy of achild bora under the conditions set out in section 112 of the EvidenceOrdinance is that of no access or impotency.
So long as there is a reasonable possibility of access the rebuttalwill not be effected, and therefore it is necessary for any one seekingto support the rebuttal to establish that there was not. a possibilityof access.
In my view the proof must depend on the circumstances of thecase, and they might be such that although the spouses were livingin the same town or village it is conceivable there might not be,according to the particular facts of the case, a possibility of access.It might require minute and detailed evidence to establish it, andthat perhaps adds to the difficulty, but does not obviate the necessity.The word “ access ” I take to mean in the section rather more thanis ordinarily understood by that word. I should' construe it asmeaning an opportunity for sexual connection.
In order to establish a conclusive alibi it is necesary to prove thatthe accused was not in the place at the time -when and where thecrime was committed, but evidence which leaves it reasonablypossible for him to have been in the place where the offence wascommitted at the time it was committed is not sufficient; it isnecessary to show that it was reasonably impossible that he couldhave been there. What has to be proved is no possibility ofpresence at the place of the crime at the time of its commission.
In the same way, under section 112, to rebut the conclusive proof<A legitimacy of the child it will be necessary to show that it wasreasonably impossible under the circumstances that the man had anopportunity of sexual connection with the mother. This i& no morethan proving affirmatively that the* man had no access to the mother,or, as I have paraphrased' it, had no opportunity of sexual intercoursewith her. If it is shown to be possible under the circumstances thathe had access, it cannot be said to have been proved that he hadno access. I have introduced the word “ reasonably " into myargument as being significant of an element which tacitly appliesto all judicial constructions.
Assuming, however, that Sopi Nona v. Marsiyan was incorrectlydecided, in my opinion the evidence in this case does not prove thatSalman Appu had no access to his wife Justina.
There remains the question of the force and effect to be given tojudgments of what has hitherto been known as the Full or Collective(Couri. It derived the latter name from the fact that if- actuallycomprised all the Judges of the Supreme Court collected as: one Court,but since 1901 the Court hals consisted of four Judges.
The consensus of judicial opinion as collected by my brother Wendtshows that decisions of a Court of three Judges have hitherto beenlooked on as conclusive, and not to be disturbed but by a rilling ofthe Privy Council. The highest function exercised by the Court in
( 153 )
civil matters is, as my brother puts it, the hearing in review. Thisfunction may bet. exercised by three Judges only, but on order by theChief Justice, under section 54a of the Courts Ordinance enactedby section 18 of Ordinance No. 24 of 1901, by all four.
My view is that we should, as hitherto, look upon a judgment ofthree Judges of this Court on a point of law as binding on a subse-quent Court of three Judges, whether sitting in review or otherwise,to the extent suggested by the terms of my brother Wendt’s judg-ment. Whether a Court of four Judges should be deemed to havepower to over-ride the decision , of three is a matter that I would leaveto be decided by that Court if necessary when it is first called intooperation.
1907.
March 18.
Middleton
J.
Judgment in appeal confirmed.