139-NLR-NLR-V-22-SENEVURATNA-v.-HALANGODA-et-al.pdf
( 472 )
1921.
Present: De Sampayo J. and Schneider A.J.
SENEVIRATNA o. HALANGODA et al.
390—D. C. Kandy, 27,718.
Diga married daughter acquiring status of binna married daughter—
Eights of inheritance by husband—“ Best evidence ” of marriage—
Ordinance No. 19 of 1907, s. 39—Ordinance No. 3 of 1870‘, s. 39.
The only consequence of a diga married daughter preserving orsubsequently acquiring binna rights is that the forfeiture of therights of paternal inheritance does not take place, but she inheritsas though she was married in binna. It does not alter the character of the marriage itself. The diga marriage remains a diga marriageso far as other results of such a marriage are concerned. Thehusband does not cease to be a diga married husband and beginto be a binna married husband.
A diga married husband is entitled to inherit from his wife, eventhough she may have acquired subsequent to marriage, the statusof a binna married daughter.
The expression “best evidenceM of marriage in section 39 ofthe Kandyan Marriage Ordinance, No. 3 of 1870, and in section 39of the General Marriage Registration Ordinance, No. 19.of 1907iexplained.
r j ^HE facts appear from the judgment.
Samarawichreme (with him J. 8. Jayawardene), for plaintiff,appellant.
E. W. Jay a war dene (with him Ameresekera), for defendant,respondents..
. August 24, 1921. De Sampayo J.—
This case raises what appears to be a new point in the Kandyanlaw, and though there is no express authority one way or the other,
I think there is very little doubt as to how the question should be
( 473 )
answered. The subjeot of the action is a small piece of ohena landcalled Ganawelahena, which originally belonged to UnambuweTikiri Kumarihamy, who, by deed dated August 6, 1899, gifted itytogether with a number of other lands, to Wilmot lllangkoon andLilavati Panabokke in contemplation of their marriage. Thedonees married each other on September 21, 1899. The marriagewas duly registered, and was in the register described as a digamarriage. Lilavati Panabokke died on July 18, 1900, leaving nochildren. The gift was both to Wilmot lllangkoon and LilavatiPanabokke in equal shares, and was subjeot to the condition thatthey should not alienate the property, but should only possess itduring their lives, and that on their death the same should devolveupon their children, if any, and, in default of children, upon “ theirrespective heirs according to their legal rights/’ Wilmot lllangkoonsold to some third party the half share derived by him under thedeed of gift, and no question arises in this case as regards that halfshare. But by deed dated July 15, 1919* Wilmot lllangkoonpurported to 6ell to the plaintiff Lilavati Panabokke’s half share,
* on tha footing that he was the legal heir of his deceased wife, andwas entitled to that half share in terms of the deed of gift. Thisis the title which the plaintiff seeks to vindicate in this action. Thedefendants contend that the marriage, though registered as a digamarriage, was, in fact, binna marriage; that, as binna married husband,Wilmot lllangkoon had no right of inheritance; and that LilavatiPanabokke *s heir was her mother,underwhose will the first defendantclaims title to the land as against the plaintiff. The District Judgeaccordingly formulated two issues at the trial, namely: (1) WasLilavati married in diga; and (2), if so, who were her heirs inrespect of the disputed property ?
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.in Mampitiya v. Wegodapola1 (D.C. Kandy; 27,829). The learnedJudges have held that, in section 39 .of the Kandyan MarriageOrdinance, No. 3 of 1870, which declares that the entry in theregister shall be “ the best evidence ” of the marriage and of theother facts statedtherein, and that if it does not appear in the registerwhether.the marriage vvJB in binna or diga, such marriage shall bepresumed to have been contracted in diga until the contrary isproved, the expression “ best evidence93 is used in the Englishlaw sense, and excludes all eviuence of an inferior character. 1certainly 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,because section 39 itself indicates the exceptional case, in whichoral evidence may be admitted. But I do not think that this
1 8. Ct Mine., June 20, 192U
1921.
Da SahpaxoJ.
Senevtratna
v.
Halangoda
( 474 )
1921.
Db Sampayo
jr.
Seneviratnav.
Halangoda
interpretation can be extended to other enactments, such as theGeneral Marriage Registration Ordinance, No. 19 of 1907, in section39 (1) of which the same expression “ best evidence ” occurs. Inthe above case, however, the Chief Justice considered the effect ofprevious decisions as regards proof of a diga or birvna marriage, andstated the result in his view to be as follows: “ As between or asagainst the parties or their respective representatives in interest,the register of the marriage is conclusive of the intention withwhich the marriage was celebrated, unless the case is shown to beone of mistake or fraud or can otherwise be brought within theequitable exceptions of section 92 of the Evidence Ordinance.Persons not parties, however, are not bound by the register, butare entitled to show that the true character of the marriage wasnot in fact such as it is represented to be.”
Even this modified rule appears to me to be applicable to thepresent case, because the question is practically one which is betweenthe representatives in interest of the parties.
Assuming, however, that oral evidence is admissible in thecircumstances of this case, 1 think that the actual evidence falls farshort of what should be expected if the entry in the register is to becontradicted. The only witnesses are Wilmot Illangkoon himself,on behalf of the plaintiff, and T. B. Panabokke, a brother of LilavatiPanabokke, on behalf of the defendants. Before. I refer to thatevidence, it may be convenient to mention the facts relating to thefamilies concerned. Wilmot Illangkoon is the son of IllangkoonRatemahatmaya, and was left an orphan when he was four yearsof age. He Was brought up by and resided with his maternaluncle George Dunuville at Unambuwe, which may be said to havebeen his Mulgedara, and he was still.there when_he married. Hiswife lived up to the time of the marriage with her father, the lateMr. T. B. Panabokke, Member of the Legislative Council, at theMulgedara at Elpitiya. The donor, Tikiri Kumarihamy, was thechildless aunt of both Wilmot Illangkoon and Lilavati Panabokke,and it was she who arranged the marriage between them and giftedthe above property as a marriage settlement. She lived at KirindeWalawwa. The evidence of Wilmot Illangkoon as regards themovements of himself and his wife after the marriage is’ contra-dictory. In his examination-in-chief he said definitely: t£ I con-ducted my wife to George Dunuville’s, where we remained over amonth. Then we went to Kirinde Walawwa, where I remained tillthe time came for Lilavati’s confinement. For that she went toher mother’s at Elpitiya . . . . • She died at confinement onJuly 18, 1900, ten months after marriage.” This evidenoe showsthat Lilavati Panabokke was, immediately after the marriage,conducted to her husband’s Mulgedara, and quite supports themarriage register when it stated the character of the marriage tobe diga. In cross-examination, however, he said : “ The last five
( 475 )
months she spent at Elpitiya—no, the last four months—also thefirst month after our marriage.” Again: “ We were at Kirindeabout four months and a month at Dunuville’s. After our marriagewe were a month at Elpitiya.”
This is not, in any oase, very satisfactory evidence. The witnessfor the defence, T. B. Panabokke, was a schoolboy at the time ofhis sister’s marriage, but his evidence, to which the learned DistrictJudge appears to attach some importance, is to the effect thatWilmot Hlangkoon was the elder Panabokke’s clerk and secretary,and was all the time at Elpitiya with his wife, certainly since Decem-ber, 1899. This last date corresponds more or less-with the timewhen she came to her mother’s at Elpitiya for her confinement.
The District Judge’s finding was that “ Lilavati had maintainedsuch a connection with her Mulgedara subsequent to her marriageas to have acquired the status of a binna married daughter.”This, in other words, means that Lilavati, notwithstanding herdiga marriage, had preserved or regained her binna rights. Thequestion of law arising in the case is whether, on the footing of theDistrict Judge’s finding, her husband Wilmot Ulangkoon was herheir ? The only consequence of a diga married daughter preservingor subsequently acquiring binna rights is that the forfeiture of therights of paternal inheritance does not take place, but she inheritsas though she was married in binna. It does not alter the characterof the marriage itself. The diga marriage remains a diga marriageso far as other results of such a marriage are concerned. Thehusband does not cease to be a diga married husband and begin tobe a binna married husband. To apply this to the present case,Wilmot Ulangkoon was and always continued to be the diga marriedhusband of Lilavati Panabokke, and as it must be conceded that,if he were so, he would inherit from her, the plaintiff’s claim, so faras the point under discussion is concerned, is entitled to succeed.Mr. E. W. Jayawardene has, however, drawn our attention toTikiri Banda v. AppuJutmy1 and the authorities therein cited, fromwhich it appears that a diga married husband inherits only to alimited extent, especially when there are children, and a distinctionalso arises when the property is paraveni and not acquired property.These matters appear to me to require consideration by the DistrictJudge, as possibly further facts may be necessary for their elu-cidation.
In my opinion the judgment under appeal should be set aside,and the case sent back for fuiiner proceedings. The plaintiff isentitled to the costs of appeal. The costs in the Court below shouldabide the final result.
Schneider A.J.—I agree.
Sent back.
1021.
Db SahfatoJ.
Smeviratna
v.
Ealangoda
1 (19U) 18 N. L. R. 306. .