118-NLR-NLR-V-44-TIKIRIKUMARIHAMY-Appellant-and-NIYARAPOLA-et-al.-Respondents.pdf
476
MAARTENSZ J.—Tikirikumarihamy and Niyarapola.
11937Present: Maartensz and Hearne J j.
TIKIRIKUMARIHAMY, appellant, and NIYARAPOLA et al.,
Respondents.
38—D. C. Kandy, 5,201.
Adoption—Public declaration—No formal announcement—Validity—Kandyanlaw.
To constitute a valid adoption under the Kandyan law, there shouldbe a public declaration that the child was adopted for purposes ofinheritance.
The declaration need not be made on a formal occasion.
PPEAL from a judgment of the District Judge of Kandy.
N. E. Weerasooria (with him S. W. Jayasuriya), for petitioner,appellant.
H. V. Perera, K.C. (with him E. B. Wikremanayake and Cyril E. S.Perera), for respondents.
Cur. adv. vult.
November 30, 1937. Maartensz J.—
The main question for decision in this appeal is whether the learnedDistrict Judge’s finding that the added-respondents are the adoptedchildren of Dingirikumarihamy, and her heirs as such is correct.
The petitioner-appellant, the deceased’s step sister, applied in this suitfor letters of administration as sole heir of the deceased. Her applicationwas opposed by the respondent who claimed to be entitled to administerthe estate as the deceased’s husband.
MAARTENSZ J.—Tikirikumarihamy and Niyarapola.
477
The first added-respondent, referred to as Cyril in these proceedings,is said to be a son, of the deceased’s or the son of respondent’scousin. It is possible that the deceased’s cousin is or was the wife of therespondent’s cousin and that both statements are correct.
The second added-respondent is a daughter of the deceased’s sister.
There is no evidence as to the circumstances in which the first added-respondent was adopted. But there is evidence that he lived in thedeceased’s house, that he went to school from there …. which isnot rebutted.
The second added-respondent was bom in the deceased’s house. Hermother’s evidence is to the effect that she agreed to give the child to bebom to her to the deceased if the child were a girl. This suggests thathaving adopted a boy, the deceased, who was childless, wished to adopta girl.
There can, I think, be no doubt that the added-respondents lived withand were brought up by the deceased from their infancy. But that isinsufficient to constitute a valid adoption according to the Kandyan law.
In the case of Loku Banda v. Dehigama Kumarihamy1 it was held—I quote the head note—that “in order, to constitute a valid adoptionunder the Kandyan law no particular formalities or ceremonies arerequired ; but it is necessary that the parties should be of the samecaste and that the adoption should be public and formally and openlydeclared and acknowledged, and it must also clearly appear that theadoption was for the purpose of inheriting the property of the adoptiveparent.”
We were referred in support of his contention to the case of TikiriBanda v. Loku Banda ~ and the case of Tikiri Kumarihamy v. PunchiBanda1.
In the former case there was evidence that the adoptive parent toldthe father of the girl to whom the alleged adopted child was proposed inmarriage : “ We have adopted the child intending to give all our propertyto him”. The District Judge held that this evidence did not help theplaintiff who claimed adoption as it was merely a private conversationbetween the adoptive parent and the father of the girl.
Wood Benton J. said, I take it, with regard to the evidence “neitheradoption as a protege, nor a private assertion of an intention to adopt forpurposes of inheritance will suffice”, and observed that the o fact ofadoption must be proclaimed with a degree of publicity which may varyaccording to circumstances.
Hayley, in his book on Kandyan Law at p. 207 states' “ the numerouscases, however, in which the Courts have refused to recognize adoption,'although the intention to adopt seems to have been established, haveapparently settled the law to th^_ effect that there must be a publicdeclaration ; but what constitutes s'fach a declaration has not beendefined ”.
There are three cases in which the declaration'of adoption was madeon the occasion of a proposal of marriage. The first is D. C. Kandy,No 53809, Grenier’s Reports (1873) Part. 111., p.'117 (4) ) where theadoptive parent stated that he had adopted the first defendant, who* 10 N. L. R. 100..1 2 Bal. Rep. 144.3 2 Browne's Rep. 299.
478
MAARTENSZ J.—Tikirikumarihamy and Niyarapola
claimed to be an adopted daughter, that he wished her to inherit his land?and objected to her being married in diga. This was held to be a formaldeclaration of adoption though it was not proved that it was made aftera calling together of headmen or relations. What Sinhalese word wasused for the word “ inherit ” does not appear in the judgment.
The next case is Tikiri Kumarihamy v. Punchi Banda (supra) wherethe adoptive parent said he had adopted his nephew and intended to givehim his property. Bonser C.J. said that the words “ to give him hisproperty ” were not the same as “ to inherit ” and held that the nephewhad not proved that the adoption was for the purpose of inheritance.
In the third case Tikiri Banda v. Loiku Banda (supra) already referredto, Wood-Renton J. emphasised the use of the words “ to give ” theproperty instead of “ to inherit ” the property, although the DistrictJudge said the Sinhalese expression which was translated “ to give ” meantliterally “ to belong to ” and thus meant “ to inherit ”. The DistrictJudge said that this statement was insufficient as it was made in the courseof a private conversation. I presume he meant that it was not aformal declaration.
With all due deference, I think the learned Judges in the last two caseshave attached too much importance to the actual words used and notconsidered the circumstances in which they were used. A child may bebrought up in a house as an act of charity or adopted for the purpose ofinheriting the property of the adoptive parent. If an adoptive parenton an occasion, as a proposal of marriage, says “ I have adopted thechild to give him my property”, I cannot see what other inferencethere can be but that the adoption of the child was for the purpose -ofthe child inheriting the property of the adoptive parent.
I am accordingly of opinion that the intestate’s statement to the school-master that she was bringing up the children and that she intended togive her property to the children was a declaration that she had adoptedthe children in order that they should inherit her property.
The next question is whether the statement to the schoolmaster andthe 2nd added-defendant’s mother was. a public declaration. In myjudgment, what Sawer meant when he said that the adoption must bepublicly declared was that there must be evidence of persons to whomthe fact of adoption was expressed and that it could not be implied. from the fact of a person being brought up in the adoptive parents’ houseand treated as a child of the house.
There remains the further, question whether the adoption must beformally declared. ,y
Solomons, in his Manual of Kandyan Law (page 6) lays down on theauthority of three cases reported in Austin’s Reports, pages 52, 64 and74, that the adoption must be formally declared and acknowledged. Byformally, I take it, is meant a special occasion arranged for fhe purposeof making the declaration. The cases cited by him no doubt indicatethat the declaration should be made on a formal occasion such as a-calling together of headmen or relations or neighbours. But the authoritycited in these cases, for that proposition is Sower’s Digest, page 26. I find,however, on reference to the. Digest that Sawer does not lay down thatthe adoption must be formally, declared. What he says is “a regular
HE ARNE Jf.—Tikirikumarihamy and Niyaragola.
479
adoption must be publicly declared and acknowledged The necessityfor a formal declaration is inconsistent with the earlier statement inSolomon’s Manual that for the purpose of adoption “ there were ncprescribed formalities or ceremonies to be gone through ”.
I am accordingly of opinion that there is no authority for the statementthat the adoption must be declared not only publicly, but also beformally declared.
I would therefore affirm the finding of the District Judge and dismissthe'appeal with costs.
Hearne J.—
The appellant applied in the District Court _ of Kandy to beappointed administratrix of the estate of Dingiri Kumarihamy, aKandyan woman, who, as was held by the District Court and affirmedby this Court on appeal, had died intestate. In deciding the question ofwhether the appellant should be appointed administratrix or whetherthe husband Of the deceased was entitled to letters of administrationthe Judge addressed himself to the issue of whether the two added-respondents were adopted by the deceased. He held that they wereadopted by the deceased for the purpose and with the intention thatthey were to inherit her property and this appeal turns on the questionof whether he was right in so holding-
It has. been strongly urged upon us that the declaration by an adoptiveparent to the effect that she had adopted a child for the purpose ofinheritance would, if made, as the Counsel for the appellant put it, “ incasual conversation ”, fall short of the strict proof required by law.
I am unable to find any authority for the view that declarations madein the course of conversation do not amount to such declarations as aCourt of law would act upon. In the case of Ukku v. Sinna1 Ennis J.acted upon declarations in conversation as proof of adoption while inTikiri Kumarihamy v. Punchi Banda (supra) Bonser C.J. did not relyupon the conversations deposed to in evidence not because they weremere conversations but for the reason that they did . not amount to adeclaration that the appellant in that case was to inherit the declarant’s pro-perty. That Ennis J. regarded the declarations in Ukku v. Sinna (supra)and Tikiri Kumarihamy v. Punchi Bandaa as no more than declara-tions in conversation is apparent from what he says. “ In one caseTikiri Kumarihamy v. Punchi Banda (supra) where the evidence consistedof conversation as in this case, the decision was based on the use of theword “ give ” instead of “ inherit ” used in conversation by the deceasedwhen speaking of the ultimate disposal of the property . . . .”. In.support of his submission Counsel for the appellant relied upon the casereported in Tikiri Kumarihamy v. Punchi Banda and upon the case of TikiriBanda v. Loku Banda1. The former I have dealt with. The latter is.not an authority which supports him for in this case it was held that“ the intention to adopt the appellant, as heir was not communicated toanybody ”.
In District Court, Kandy, 53,309 ( (1873) Grenier’s Repo-rtf 117 (4) )it was laid down that “while the law prescribes no particular formalities
i Bat. N. C. 75.2 2 Brmone's Rep. 299.3 2 Bal. 'Rep. 144. –
44/35
480HE ARNE J.—Tikirikumarihamy and Niyarapola.
or ceremonies for a valid Kandyan adoption, it is necessary that theparties should be of the same caste and that the adoption should bepublic and formally and openly declared and acknowledged ” and furtherthat “ it should be clearly understood that, the child was adopted onpurpose to inherit the. adoptive parents’ property These tests werequoted with approval in Loku Banda v. Dehigama Kumarihamy (supra)and in several other cases decided by this Court; but unfortunately“ the exact scope of the terms is not so easy to understand”. 1 BaJ.N. C. 75.
In Tikiri Kumarihamy v. Punchi Banda (supra) Bonser C.J. refers to“ public ” as being equivalent to “ generally known Moncrieff J. in thesame case refers to occasions “ which could be described as public
Dias J. in Pusumbahamy v. Keerala1 speaks of “ a public declaration ”being necessary while Hutchinson C.J. in Loku Banda v. Dehigama Kumari-hamy (supra) seems to lay down that a “ public and formal declaration ”is indispensable. What can these terms connote ? I find it difficult tounderstand the exact sense in which the word “ formally ” is used. Ifno particular formalities are necessary the declaration need not beaccording to a particular formula as long as it is clearly understood thatthe adoption was for purposes of inheritance; if no ceremonies areprescribed the declaration need not be made on a “ ceremonious occasion ”.It is agreed that the declaration need not be made when members of thepublic are assembled together for the purpose of hearing the declarationor that the declaration need be made in a public place. What then ismeant by a public declaration and what are occasions which pan bedescribed as public?
I take the rule that has been laid down by this Court to be this; thatthe adoption must be public in the sense that it must be generally known,and that publicity must have been-given to the adoption for the purposeof inheritance as the result of an open declaration and acknowledgmenton the part of the adoptive parent which need not be on a ceremoniousoccasion which may be made in the course of conversation, and whichmust be proved to have been made to members of the public as distinctfrom members of the adoptive parent’s household or relatives or evenpersons interested in the question of the adoption. In the latter caseit would be a private declaration and not a public one. It would appearfrom one of the reported cases that a statement made to a legal adviserwould also fall in the latter class.,
I agree to the proposed order.
Appeal dismissed.
‘ 2 C. L. R. S3.