112-NLR-NLR-V-44-UKKUBANDA-AMBAHERA-et-al.-Appellants-and-SOMAWATHIE-KUMARIHAMY-Respondent.pdf
Ukkubanda Ambahera and Somawathie Kumarihamy.457
1943 Present: Moseley S.P.J., Hearne and Wijeyewardene JJ.
UKKUBANDA AMBAHERA et al., AppeUants, and SOMAWATHIEKUMARIHAMY, Respondent.
116—D. C. (Inty.) Kurunegala, 4,402.
Adoption—Public declaration—Requisites of adoption—Kandyan law.
A declaration to a Buddhist Priest and an ex-Arachchi by the adoptiveparent that a child is being brought up for purposes of inheritanceis sufficient to constitute adoption under the Kandyan law.
Tikiri Kumarihamy v. Niyarepola et el.1 followed.
T
HIS was an appeal from a. judgment of the District Judge of Kurune-gala, which was referred to a Bench of three Judges.
The relevant findings of fact and law of the learned District Judge arestated as follows : —
The petitioner is a daughter of Appuhamy, a cousin of EdwardBanda. She is of the same caste as Edward Banda and Bandara Menika.One of the requirements of law has been satisfied. Her father Appu-hamy lived in Bandara Menika’s house. He is still living there.It is in evidence that her mother too lived in their house. There is theevidence of the Buddhist monk, Sangarakkita, who is a Nayaka Priest,that Edward Banda used to bring the infant to the Temple and tell himthat he was bringing up the child to inherit him. There is the evidenceof Kiribanda ex-Arachchi who says that Edward Banda told him thathe was bringing up the girl for the purpose of inheriting him ….I have no hesitation in accepting the evidence of petitioner, Sanga-rakkita Thero, and Kiribanda ex-Arachchi. Applying the principleslaid down in the cas^ reported in 2 Ceylon Law Journal, I have cometo the conclusion that the petitioner has proved that she has beenadopted by Bandara Menika, the deceased, for purposes of inheritance.
V. Perera K.C. (with him E. B- Wikremanayake) for the appel-lants.—Edward Banda Korala who was married to Bandara Menikahad no children. They appear to have brought up a number of childrenincluding Somawathie, the petitioner, and provided for them. Theytook under protection Somawathie’s parents who also lived in EdwardBanda’s house. Edward Banda died leaving a widow, BandaraMenika, who continued to have under her care Somawathie. AfterBandara Menika died the question arose, in this case whether Somawathiewas the adopted daughter of the deceased, Bandara Menika, according,to the Kandyan law. The District Judge held in the first place, thatEdward Banda adopted Somawathie and that this was also an adoptionon the part of his wife, Bandara Menika. It is submitted that this findingis erroneous. There is no such thing as “joint adoption” in the Kandyanlaw. There is no presumption that if a husband adopts a child the wifealso adopts that child. Adoption in Kandyan law means adoption forpurpose of inheritance. The intention that . the child shall succeed
■ 2 G.L. J. 222 ; 44 Nl t. S. 476.
458 MOSELEY S.P.J.—Ukkubanda Ambahera and Somawathie Kumarihamy.
to the adopter’s, estate is essential. Bandara Menika was only entitledto a life-interest in the property of her husband. There is thereforeno question of a joint adoption here.
On the other finding of the District Judge that there was evidence of anindependent adoption by Bandara Menika, it is submitted that theevidence is not sufficient to indicate that the adoption was publiclydeclared as r’equired by the Kandyan law.
On this point it is necessary to consider what are the facta probandawith regard to adoption. Facta probanda and the evidence necessaryto prove the facta probanda must be distinguished. Viewed in thislight there are three necessary elements in a valid Kandyan adoption,viz., an act of adoption, an intention to adopt for the purpose of suc-ceeding to the inheritance and a public declaration. This last elementis not mere evidence of the intention but an actual factum probandum.If only intention is necessary then a casual statement is good evidence ofintention. But such a statement is not sufficient evidence of a publicdeclaration. It is therefore submitted that a casual declaration of apre-existing relationship is insufficient to constitute an adoption. Theremust be a public declaration which itself constitutes one of the threeelements necessary to establish the relationship. As to what is meant bya “ public declaration ” there is a conflict of authority. See Sawyer :Digest of Kandyan Law, ch. 7, and Loku Banda v. Dehigama Kumarihamy1for one view, and Tikiri Kumarihamy v. Niyarepola’ for another. Thenecessity of a public and formal declaration was stressed by HtrtchinsonC.J. in Loku Banda v. Dehigama Kumarihamy (supra). It is submittedthat this is a binding authority and expresses the correct view.
[Moseley J. What is there in Tikiri Kumarihamy v- Niyarepola (supra)which is repugnant to the Kandyan law principles ?1
There is nothing, if certain dicta be excluded. In any case thatdecision can be distinguished on the facts. There a statement was madeto a schoolmaster in such circumstances that it would constitute asufficient public declaration of an adoption. In the present case state-ments were made to a Buddhist priest which were merely of a casualnature. The declaration must be made with the purpose of makingknown the adoption and not merely incidentally. Some degree ofdeliberation is necessary as it confers a status. The circumstances mustshow deliberation. This is the irreducible minimum of the requirementsof the Kandyan law of adoption. It. is submitted that both on the factsand law there has been no valid adoption.
N. E. Weerasooria, K.C. (with him S. R. Wijayatilake) for therespondent, was not called upon.
Cur. adv. vult.
August 23,1943. Moseley S.P.J.—
This appeal involves a point of Kandyan law in regard to the adoptionof children for the purpose of inheritance. The parties went to trial onthe following issues : —
is Somawathie Kumarihamy, the petitioner, the adopted daughter
of the deceased ?
If so, was she adopted for the purpose of inheritance 7
* (1937) 2 C. L. J. 222 44 N. L. R. 476.
4 (1904) 10 N. L. It. 100.
459
KEUNEMAN J.—Hendrick Appuhamy and Mattg Singho.
The learned District Judge in addressing his mind to the answeringof these questions remarked that the law relating to the matter is clearlylaid down in the case of T. P. W. Tikiri Kumarihamy v. M. B. A. Niyare-pola and 2 others In that case an exhaustive review of existingauthorities was made and I am in respectful and full agreement with theconclusion at which the Court arrived. In the light of that judgmentthe District Judge answered each of the issues in the affirmative. Thereis, in my view, ample evidence to support the. finding in each case. Exabundanti cautela perhaps, the District Judge went on to hold that anadoption by a husband, during their joint lives and during the subsistenceof the marriage, is the adoption of the wife as well. Without expressingan opinion as to the correctness or otherwise of that "view, I would merelysay that such a finding is superfluous to the Requirements of the presentcase.
The appeal is dismissed with costs.
Hearne J.—I agree.
W ijeyewardene J.—I agree.
Appeal dismissed.