100-NLR-NLR-V-57-RAJ-RETTY-Appellant-and-COMMISSIONER-FOR-REGISTRATION-OF-INDIAN-AND-PAKISTANI-.pdf
PresentPulle, J.
1955
KAJRETTY, Appellant, and COMMISSIONER FOR REGISTRATIONOF INDIAN AND PAKISTANI RESIDENTS, Respondent
S. O. 707-—Appeal under the Indian and Pakistani Residents'{Citizenship) Act
Indian and Pakistani Residents (Citizenship) Act, -Vo. 3 of 1010—Application forcitizenship—Evidence of applicant’s residence in Ceylon—.4ssc^jhch(.
In an application fov citizenship by registration nmlcr the Indian andPakistani Residents (Citizenship) Act the evidence of a witness who testifiesto the residence in Ceylon of the applicant and against whose integrity nothingcan be urged should not he discounted on the ground that he is also an applicantfor rcgisl ration as a citizen.
.AlPPEAR under the Indian and Pakistani Residents (Citizenship)Act.
O.Barr Kumarakitlasinghc, for the appellant.
R.S. Wanci-sundcra, Crown Counsel, for the respondent.
Cur. adv. rail.
August 22, 1955. Piti-le, J.—
The appellant by his application dated the 10th December, 1949,applied to have himself, his wife and minor children registered as citizensof Ceylon. During the final stages of the inquiry which was conductedon the 12th November, 1953, he was required to prove that his wifewas resident in Ceylon during the periods July, 1940, to August, 1942,and August, 1943, to August, 1945. The Deputy Commissioner heldthat lie had failed to prove his wife’s residence during these periods andrefused his application. The appeal is from this order.
The appellant married in India on the 10th July, 1939, and his firstthree children were born there on the 29th June, 1941, 20th January,1943, and 4th September, 1944, respectively. According to the appellanthe returned to Ceylon with his wife shortly after marriage and afterwardslie accompanied her to India for the first confinement. Site left Ceylonfor her second confinement with his uncle early in 1943 and for her thirdin July, 1944.
It would be convenient to deal first with the second period of allegedresidence, namely, August, 1943 to August-, 1945. Learned CrownCounsel did not seek to support the Deputy Commissioner’s findingas regards this period. In my opinion be was right in making this con-cession. Presumably the Deputy Commissioner was satisfied with theevidence of the wife’s residence during the year ending in August, 1943.A quarantine permit- dated the 27th June, 1943, shows that in or about
August of that year she had returned with the .appellant from India.The account books produced by him showed that he had bought a sewingmachine apparently for his wife on the 12th January, 1943. There aretwo items falling within the second period. One is dated the 21st May,1944, in respect of the purchase of a feeding bottle and the other datedthe 19th June, 1944, refers to the purchase of jewellery. This part ofthe case was disposed of by the Deputy Commissioner with theobservation,
“ The other entries refer to jewels, sewing machine, feeding bottle,etc., and these may not refer to purchases made for the applicant’swife. ”
In my opinion these items afford sufficient corroboration of the appel-lant’s case that his wife was in Ceylon during the second period. Itis inconceivable that he would have bought a feeding bottle for a childother than his own or jewellery for some one other than his wife, theevidence being that the appellant was the only child of his parents.
Crown Counsel, however, pressed on me tha-t there was no reasonto disturb the finding that the wife’s residence during the first periodhad not been proved. This part of the case has given me considerabletrouble. The appellant called two witnesses of whom one was the Rev.Father A. M. Arokiam the parish priest of Kadugannava where theappellant had a property planted in tea named Mercantile Estate andwhere the main office of the appellant’s family business was situated.The other witness was a trader named Bogaharalage Pun chi Banda.Had these witnesses been believed the appellant’s case would have beenfully proved. The complaint on the appellant’s behalf is that the evi-dence of these witnesses has been rejected on grounds which are demon-strably unsustainable. Father Arokiam was apparently asked by theDeputy Commissioner whether he was of Indian origin and whether hehimself was an applicant for registration as a citizen to which questionshe gave answers in the affirmative. The Deputy Commissioner in dealingwith the evidence of Father Arokiam refers in his order to these admissionsand I cannot agree with the submission for the respondent that he didnot regard them as grounds for not acting on his evidence. I havealready pointed out in the case of ill. Palaniyandi v. Commissioner forRegistration of Indian and Pakistani Residents 1 that a witness againstwhose integrity nothing can be urged should not lay himself open to haA Chis evidence discounted on the ground that he is also an applicant forregistration.
Another point made against the acceptance of the parish priest’sevidence is set out in the order as follows :
“ He stated that the applicant took his wife to India for her firstconfinement in 1940 whereas the applicant gave the date as. April, 1941. ” .
This criticism is, in my opinion, hardly justifiable because what thepriest said in his evidence was,
1 (.1955) 56 -V. L. R. 371.
“ The wife went to India for the first confinement in about 1940. ”A greater degree of precision could hardly bo expected of a witnessgiving evidence about thirteen years after the event.
A scrutiny of the evidence of Pun chi Banda reveals that the DeputyCommissioner has either misunderstood relevant portions thereof orhas misdirected himself. Punchi Banda used to visit Mercantile Estateto settle accounts for tea leaf supplied by him. He said,
“ The applicant always returned to Mercantile Estate and, afterstaying a few days here, the family moved to one or other of theirestates. I cannot say to which estates they went. ”
In his order, however, the Deputy Commissioner states,
“ This witness visited Mercantile Estate frecpiently, but the applicantstated that both he and his wife resided at other estates during acreator part of the periods in issue. The witness admitted lie was notaware of their movements to the other estates. ”
I see no ground for rejecting or doubting the evidence of thetwo witnesses called by the appellant. There arc undoubtedly certaininconsistencies in the evidence of the appellant which are stressed inthe order under appeal and stressed again at the argument in appeal.Yet making every allowance I am satisfied that the appellant has madeout a prima facie case for registration. I may say that, as relevant tothe issue of residence during the first period, I agree with the submissionthat the entry dated 21st July, 1940, in the appellant’s books of accountthat medicine had been purchased for his wife is a strong piece of circum-stantial evidence pointing to her return to Ceylon after the marriage andher stay in this country before the birtli of the first child.
I hold that the appellant lias made out a prima facie case for his appli-cation to be allowed and remit the record for further action on the basisof that finding.
The respondent will pay the appellant- Rs. 105 as costs of appeal.
Appeal allowed.