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Privy Council, February 3 and 4, 1881.
SASTRY VALAIDER ARONEGARY and his Wife v.SEMBECUTTY VAIGALIE et ad.
On appeal from the Supreme Court of Ceylon.
Present:—Sir B. Peacock, Montague E. Smith, Sir K.Collieb, Sir Richard Couch.
Law of Ceylon—Presumption of marriage—Onus proban di.
According to the Roman-Dutch Law of Ceylon there is apresumption in favour of marriage rather than of concubinage.According to the law of Ceylon, as in England, where a man and■ woftian are proved to have lived together as man and wife, the lawwill presume, unless the contrary be clearly proved, that they wereliving together in consequence of a valid marriage, and not in astate .of concubinage.
Where it is proved that they had gone through a form of marriageand thereby shown an intention to be married, held, that thosewho claimed by virtue of the marriage were not bound to provethat all necessary ceremonies had been performed.
PPEAL from two judgments of the Supreme Court (February12 and July 26, 1878), reversing a decision of the District
Court of Batticaloa, D. C. No. 18,350 (August 5, 1876).
The facts are stated in the judgment of their'Lordships. Theissue was whether the appellants had sufficiently proved a validmarriage alleged by them.
Mr. Oorst, Q. C., and E. W. Stock, for appellants, contended thatthe Supreme Court bad wrongly entertained a presumption contraryto marriage, and had wrongly thrown on the appellants the burdenof proving what were the necessary ceremonies, and that they hadbeen duly performed. The appellants had proved consent, intentionto contract marriage, subsequent belief that they had done so. Itrested with the respondents to prove distinctly and conclusivelythat they had not at any time been performed. Reference wasmade to De Thoren v. Attorney-General (1 App. Cas. 686); Piers 'v.Piers (2 H. L. C. 331); Lyle v. Ettwood (3 L. B. 19 Eq. 98).
Dr. Phtllimore and Mr. Dunham, for the respondents, contendedthat the rule as to onu§ probandi asserted on the other side wasestablished by Scotch authorities, and was not found in Roman-Dutch Law. They referred to Van Leeuwen (ed. 1820), p. 7;Grotius’ Introd. to Dutch, Law, p. 24, section 16; Voet, bk. XXIII.,tit. 2 of Pandects; Thomson’s Laws 0/ Ceylon, vol. II., pp. 564-A
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The counsel for the appellants was not called on for reply.
The judgment of their Lordships was delivered by Sir BarnesPeacock :—
This appeal arises out of a suit brought by the plaintiffs, whoare husband and wife, in which it was alleged that the secondplaintiff was at the time of her marriage with the co-plaintiff thewidow of one Pattanier. The suit was brought against thedefendants to recover a share of the property of Pattanier, to whichit was alleged that the second plaintiff, as his widow, was entitled.The plaintiff also claimed a share, which it was alleged had descendedto her from a deceased child of Pattanier by her. The question iswhether she was lawfully married to Pattanier, and the childlegitimate.
The first defendant is a brother of Pattanier, and was an executorunder his will. The second defendant was a son of ParamakuddiKassenater, an uncle of the second plaintiff ; and the third defendant,was the wife of the second defendant, and a daughter of Pattanierby a deceased wife. The learned Judge of the first Court foundthat there was a valid marriage. He said : “ First, it is indisputable“ that the second plaintiff lived in the house ” [that is. the house ofPattanier] “ subsequent to the death of the testators ” [that is,Pattanier’s second wife, the mother of third defendant and herminor sister and brother]. “ Second, it is also indisputable that“ the second plaintiff gave birth to a child in testator’s house, which“ child survived the testator though by a few months only. Thirdly,“ the evidence ia favour of second plaintiff’s being the wife vastly“ preponderated over that supporting the contrary view, not only“ in quantity, but in quality. If this be accepted, the legitimacy of“ the child from whom second plaintiff claims share is also“ indisputable. In a case of this kind, if there were really any“ room for doubt, the evidence on either side should be pretty“ evenly balanced. And yet quite the contrary is the case,“ defendants’ being by far the weaker.”
Upon appeal to the Supreme Court of Ceylon that judgmentwas reversed by the learned Chief Justice. It appears to theirLordships that the Chief Justice threw the onus of proof on thewrong parties, inasmuch as he held in substance that it was necessaryfor those who claimed by virtue of the marriage to prove what werethe customs of the Tamils with regard to marriage, and that thisceremony was legally performed.
Their Lordships have no doubt dpon the evidence that Pattanierand the second plaintiff lived together as man and wife. It wasproved that she visited with him, and that she presented betel totheir friends, which their Lordships apprehend a concubine would
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not do. They not onJy lived together as man and wife, but thereis strong evidence to show that there was a legal marriage. Pattanierand the second plaintiff were Tamils, and the first defendant whowas called as a witness proved what the custom was. He said:“ She was married according to the customs of the country, but“ she is not the lawfully registered wife.” It is true that themarriage was not registered, but.it was not necessary to have itregistered, inasmuch as the act which rendered the registration ofmarriages compulsory was not passed till after the marriage wascelebrated. The witness proceeded : “ The ceremony we usually“ perform is for four or five or six persons to be invited according“ to the wishes of both parties, and rice ceremony to be performed“ at the house of the bride or bridegroom. If the rice ceremony isperformed it is marriage.”
The second plaintiff herself was examined. She said that she wastwenty-two or twenty-three years of age. “ I lost my parents“ when I was five or six years old. After their death I was in“ charge of my sister Valliamma and her husband. I was there up“ till a year after .1 reached puberty. I do not know the year. I“ then went to my uncle Kassenater’s house, my aunt, his. sister,“ coming and calling me. I remained there eight, nine, or ten days.“ After that my uncle, his wife, his son, (second defendant) ” [thatis important] “his son-in-law and daughter, my brother, and“ aunt took me to Pattamer’s house to marry mo there.”
It appears, according to her evidence and to other evidence inthe cause, that she was taken to the house for the purpose of beingmarried. It also appears that her brother-in-law was anxious thatshe should be married to a brother of his, and not to Pattanier.She says, “ We went to the house. Rice was ready to be served.“ They spoke of serving rice to the persons who accompanied me.“ Then there was a row. The row was commenced' by my brother-“ in-law and a brother who stood at the gate.” [There were twobrothers, one who stood at the gate and asserted in making the row,and another, who after executed a deed of dowry which will bepresently alluded to.] “I was at this time inside the house;“ when I heard the row, I asked what it was, and they told me that“ my brother and brother-in-law were at the gate making a row.“ Then my uncle and his son got out.” In her cross-examinationby the .second defendant’s advocate she said: “ During the“ row and before it ceased rice was served to us, and the“ people went away. The ripe, was served before the. row“ commenced. Pattanier gave m6 a kurrie cloth. The tali was“ tied next morning; not tali, but he gave his jewels to“ my uncle’s wife to put them on me, and she did so. There
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“ are now present as witnesses who were then present, Kanawatee■ “ Pavanatee Katuramen and my uncle’s wife. I do not know“ whether Sivakami is present here as a witness or not. On“ account of this row other ceremonies could not have been“ performed. Other ceremonies were necessary for marriage,“ but were not performed .on account of the row. My relatives left‘‘ at the commencement of the row.”
Strong reliance was placed by the defendants upon the statement“ that other ceremonies were necessary for marriage, but were not“ performed on account of the row.” It is to be observed thatthis statement was obtained upon cross-examination, and wasprobably in answer to a leading question. The witness was in allprobability better acquainted with what ceremonies were usuallyperformed than what were actually essential to the validity of amarriage.
Their Lordships do not attach much importance to the answer.There is evidence from which it may be inferred that the servingof rice was the essential ceremony, and it was pro^d that rice wasserved. But the evidence of marriage does not rest here. It isconfirmed on the strongest manner by some dowry deeds. On the21st October, 1866 (the marriage having taken place on the 20th),Paramakuddi Kassenater, who was the uncle of the second plaintiffand the father of the second defendant, and was also a notary, andtherefore more likely than a young woman, the second plaintiff, toknow what ceremonies were essential to the validity of a marriage,executed a deed, by which he conveyed to Pattanier and tnfe secondplaintiff a garden by way of dowry. It says : “ On the 21st day of“ October in the year 1866,1, Paramakuddi Kassenater, notary of“ Kattankudyirippu in Batticaloa,' do hereby acknowledge to have“ granted in dower to Sampakoddi Sinnapulle, my neice, (that is“ second plaintiff) and Sinnepulle’s husband Sambekoddiyar” Pattanier of the same place, to the following effect.” Then,after describing the boundaries of the garden it says : “ and the“ said garden with all the produce thereof is to be possessed and“ enjoyed by the aforesaid Sinnapulle and her husband Pattanier‘‘according to their pleasure for ever.”
That deed was attested by four witnesses, and it is stated tohave been duly read over and explained to the parties, includingPattanier, and to the witnesses. And it is also proved by one ofthe witnesses that the deed was executed in triplicate, and thatone of the parts was handed over to Pattanier, who retained it.It appears also from the evidence that Pattanier and the secondplaintiff took possession of the garden; that they used it; and
February 3'■ and 4.
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the second plaintiff, after the death of Pattanier, executed a leaseof the cocoanut trees growing on it to a tenant who was called as. awitness, and who proved that under the lease he had possession ofand gathered the cocoanuts.
There seems to be therefore no doubt that Pattanier and thesecond plaintiff acted upon the deed in which Pattanier wasdescribed as the husband of the second plaintiff.
On the same day the brother of the second plaintiff acknowledgedto have granted, in dower to his sister, money, jewellery, and otherproperty, and that she and her husband were to possess and enjoythe same. That deed was also read over and explained by a notarypublic : it was attested by four witnesses, and it was handed oyer,like the other deed, to Pattanier and the other second plaintiff, andit appears that the wife' took possession of the property. Inaddition, the deeds appear to have been registered in the office ofthe Registrar of Lands, so that it was made public that the propertyhad been given over to Pattanier and the second plaintiff, ashusband and wife, upon their- marriage. The second and thirddefendants claim the property through the husband, who byretaining the deeds and taking the property under them, must betaken to have acknowledged that there was a lawful marriage:
A document was put in evidence marked E, which was signedby the second defendant as registrar, and which was a register ofthe death of the child of Pattanier and the second plaintiff, in whichit was named Pattanier, which would not have been, the case if ithad merely been the child of a concubine.
. It was proved that the second defendant was one of the personswho went with the uncle and the second plaintiff to the house ofPattanier in order that she might be married, and he appears tohave been present when the ceremony was performed. He there-fore was capable of judging whether the marriage was a valid oneor not, and whether the child was legitimate or illegitimate ; andas a Registrar of Deaths he registered it as the child of Pattanier.Then, again, when the plaintiffs were married in 1873, he signedthe register of their marriage, in which the first plaintiff wasdescribed as a widower and the second plaintiff as a widow, whichshe would not have been if she had merely been a concubine 'ofPattanier. Therefore, there is evidence, under the hand of thesecond defendant, in which it is in effect admitted that there was amarriage; that the lady when she married the present plaintiffwas the widow of Pattanier; ,and that the child which she borewas a legitimate child.'
Again, there was a petition put in by the second plaintiff on £lst. March, 1870. The second defendant at that time had not married
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the daughter oi. Pattanier, and was not interested therefore insetting np that the marriage was not a lawful one. The petitioncontained the following passage : “ The petitioner begs to inform“ the Court that she is the third wife of the late Sembucutti Kan-“ naku Pattanier of Turepatte, a principal rich man in this place.”The petitioner further says that the said Sembucutti KannakuPattanier (her husband) also gifted her clothes, and she usedand enjoyed, “ and lived with him until his death as husband and“ wife. The said petitioner further says that the said Sembucutti“ Kannaku Pattanier married her and lived with her amicably, and“ also received dowry from her in writing, and she brought forth“ two children, who are dead. The petitioner further says that“ after the death of her husband his brother Sembucutti Vaigelie“ has taken all her jewels and ornaments, the clothes, and he delays“ to return them, and therefore she prays that she may be relieved.”That document appears according to the evidence to have beenprepared at the instance of the second defendant and with hisknowledge. Therefore there is not only the fact that Pattanierand the second plaintiff lived together as reputed husband andwife, that she visited his friends as his wife, and that he held her outto the world as his wife, but that the second defendant had indocuments under his hand acknowledged, at a time when he wasnot interested in disputing the marriage, that she was lawfullymarried. Notwithstanding all that evidence, and after the findingof the first Court, the Chief Justice in his judgment says : “A great
deal of evidence was gone into on both sides, and the onus was“ on the plaintiff to prove (1) what are the ceremonies necessary to“ constitute a valid marriage in the Tamil caste to which the parties“ belong ; (2) that these ceremonies were duly performed in the“ marriage in question. On the first point the evidence is so“ conflicting that it is impossible to gather an intelligible account.“ of what are the ceremonies necessary to constitute a valid marriage“ amongst Tamil natives of the B'atticaloa District.” He did notsay that it had been proved to his satisfaction that the-marriagewas not according to the custom, but merely that the evidence wasso conflicting that it was impossible to gather an intelligible accountof what were the necessary ceremonies, and he threw the onus ofproving what were the necessary ceremonies on the plaintifEs, andfound that'they had failed in making out that all the necessarycerempmies had been performed.
He proceeded: “ So far as the evidence can be followed, the“ ieremonies seem to vary according to circumstances, suoh“ as the position and wealth of the bride and bridegroom,
February 3and 4.
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“ and whether a man or woman is married for the first time. The“ witnesses also differ as to what are essential ceremonies; and on a“ review of the whole of the evidence it appears clear that either“ there is not a well-recognized ceremonial to be observed on“ occasions of marriage, or that the witnesses were wholly ignorantof what they were called to prove. It is admitted that all the“ necessary ceremonies were not performed at the marriage in“ question, but it is alleged that they could not have been on“ account of the disturbance which took place when the marriage“ was going on. We think this excuse, even if true, is insufficient“ in law, as a marriage cannot be taken to have been duly“ celebrated if any of the essential ceremonies were not duly“ observed, even though such omission was unavoidable.”
It was contended by Dr. Phillimore that the presumption ofmarriage arising from cohabitation with habit and repute did notapply to the case of the Tamils and to Ceylon, but it appears fromthe authorities which he cited that, according to the Roman-DutchLaw, there was a presumption in favour of marriage rather than ofconcubinage. It does not therefore appear to their Lordships thatthe law of Ceylon is different from that which prevails in thiscountry, namely, that where a man and a woman are proved tohave lived together as man and wife, the law will presume, unlessthe contrary be clearly proved, that they were living together inconsequence of a valid marriage, and not in a state of concubinage. •
• Dr. Phillimore did contend that in a district where concubinagewas not considered as immoral, the same presumption would notarise; but their Lordships cannot agree with him in that respect.It is evident in the district in which Pattanier lived, wives aretreated differently from concubines, and it is not because a numberof persons live in a state of concubinage to be presumed that a manand woman who are living together as reputed husband and wife.are not lawfully married. It is evident from the parties goingthrough the form of marriage that they intended to be married ;and if they were hot married according to the strict custom, it was ‘not in consequence of their wish that it should be so. It appearsclearly that they did consider that a valid marriage had taken .place.
In the case of Piers v. Piers (2 H. L. C. 331) it was laid downby the House of Lords that thq presumption of marriage ‘arisingfrom cohabitation with habit and repute can only be rebutted bythe clearest and most satisfactory evidence. The Lord Chancellorsaid: “ I have not found that the rule of law is anywhere laid
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“ down more to my satisfaction than it is by Lord Lyndhnrst in the“ case of Morris v. Davis (5 G. L. <k F. 163) as determined in this“ house. It is not precisely the same presumption as exists in the'‘ present case, but the presumption is strictly applicable to the“ principle which we are considering. He says :—* The presumption“ ‘ of law is not lightly to he repelled. It is not to he broken in“ ‘ upon or shaken by a mere balance of probability. The evidence“ ‘ for the purpose of repelling it must be strong, distinct, satis-“ ‘ factory, and conclusive.’ No doubt every case must vary as to“ how far the evidence may be considered as satisfactory and“ conclusive; but he lays down this rule that the- presumption“ must prevail, unless it is most satisfactorily repelled by the“ evidence in the cause appearing conclusive to those who have to“ decide upon that question.”
In De Thoren v. Attorney-General (I App. Gas. 686) Lord Cairns,then Lord Chancellor, stated that the presumption of marriage ismuch stronger than the presumption raised with regard to otherfacts, and he referred to the Breadalbane case (Law Rep. 2 H. L.269), in which it was held that the presumption was one which notonly might, but ought to, be drawn from cohabitation with habitand repute, although the cohabitation commenced with a ceremonywhich was not only invalid by reason of the real husband of thewoman being alive at the time, but was known by both parties tobe invalid.
Their Lordships having come to the conclusion that Pattanierand the second plaintiff lived together as man and wife, and thatPattanier held her out as his wife, the presumption of their marriageis not lightly to be rebutted. The Chief Justice did not find thatthe presumption was rebutted, but he threw the onus of proving alegal marriage according to the customs, of the Tamils upon theother side. Their Lordships think that the learned Chief Justicewas in error in over-ruling the decision of the Judge of the firstCourt, who had come to the conclusion that there was a legal andvalid marriage.
Their Lordships will therefore humbly advise Her Majestythat the decree of the Supreme Court be reversed, and that thedecree of the first Court be affirmed. The respondents must paythe costs of this appeal.
SASTRY VALAIDER ARONEGARY and his wife v. SEMBECUTTY VAIGALIE et al