027-NLR-NLR-V-61-WIJESEKERA-Appellantand-WELIWITIGODA-et-al-Respondents.pdf
Wijesekera v. Weliuritigoda
133
1958Present:Weerasooriya, J., and Sansoni, 3.
WIJESEKERA, Appellant, and WELI WlTlGODA et al., RespondentsS. G. 396—D. C. Colombo, 211 j Entail
Evidence—Marriage contracted in a foreign country—Proof—Sufficiency of a previousstatement of deceased husband—“ Derived their interest ”—Evidence Ordinance,ss. 17 (1), IS (3) (b), 21, 21 <c), 32 (5), 50.
Where the question for decision was whether C was the lawful issue of a validmarriage contracted between A and B—
Held, (i) that a previous statement of A, admissible under section 32 (5) of theEvidence Ordinance, to the effect that he was married in India to B was sufficientpresumptive evidence of a valid marriage between A and B. In such a case,it is not essential to prove the formalities necessary for a valid marriageunder Indian law.
(ii) that evidence that during the life-time of A his relatives regarded C as hislegitimate child and conducted themselves accordingly towards her wasadmissible under section 50 of the Evidence Ordinance.
Meaning of expression “ derived their interest ” in section 18 (3) (6) ofthe Evidence Ordinance considered.
134
WEERASOOBXYA, —Wijesekera v. Welivritigoda.
^^PPEAXi from a judgment of the District Court, Colombo.
H. W. Jayewardene, Q.G., with F. W. Vidyasagara, for the petitioner-appellant.
S. J. F. CTtelvanayakam, Q. C., with J. M. Jayamanne, for the 1strespondent.
G. D. S. Siriwardene, for the 5th respondent.
Cur. adso. vult~
March 21, 1958. Weerasoobixa, J.—
The main question for decision in this appeal is the legitimacy of the1st respondent Mrs. Virginia Bavinia Weliwitigoda who has been declaredby the District Judge of Colombo to be the lawful issue of a marriage con-tracted by her father Henry Wijesekera with a lady called Agida who diedin Madras in about the year 1938.
Henry Wijesekera’s mother Mrs. Caroline Wijesekera had by her CodicilNo. 2085 dated the 23rd August, 1935, devised to Henry Wijesekera(her eldest son) certain properties at Alston Place and Bankshall Streetsubject to a fidei commissum in favour of his children. It was alsoprovided that on his death the properties shall devolve on his childrensubject however to a life interest in his wife in respect of a half share shouldshe survive him, and in the event of Henry Wijesekera leaving himsurviving no lawful children then, subject to the said life interest, thepremises at Alston Place were to devolve on one of Mrs. CarolineWijesekera’s grandsons, Edward, who is the petitioner-appellant and achild of Edwin Wijesekera, while the premises at Bankshall Street were todevolve on another grandson, Rienzie, a child of Albert Wijesekera, bothdevises being subject, however, to certain benefits in favour of the res-pective wives of Edward and Rienzie and their issue the nature of whichis not material to this appeal. Both Edwin Wijesekera and AlbertWijesekera were dead at the date of the Codicil. Mrs. CarolineWijesekera died in 1939 and Henry Wijesekera in 1950.
The proceedings from which this appeal arises relate only to the de-volution of title to the premises at Alston Place. Those premises weresold on the orders of the District Court of Coiombo and the nettsum realised, less certain estate duty charges payable on the estate ofMrs. Caroline Wijesekera. were brought into Court. Thereafter the appel-lant made an application that he be paid the accrued interest on that sum.The basis of the application is that Henry Wijesekera did not leave sur-viving him either a lawful wife or lawful issue and that in terms of theCodicil the appellant is entitled to the interest. Of the parties who were
WEERASOORIYA, J.—W 'jesekera v. Weliuntigoda
13$
made respondents to the proceedings those named as the 1st, 6th and 7th.respondents opposed this application. The 1st respondent in thoseproceedings is also the 1st respondent in this appeal.
The 1st respondent’s claim that she is the lawful child of HenryWijesekera and his wife Agida was upheld by the District Judge. The6th respondent Maggie Nona is the mother of the 7th respondent Emaline.The 6th respondent claims that she was lawfully married on the 6thOctober, 1840, to Henry Wijesekera as appears from the marriage certi-ficate 6R1. (This marriage would have been subsequent to the dis-solution of the marriage, if any, between Henry Wijesekera and the1st respondent’s mother Agida upon her death in 1938). The 6th res-pondent’s claim too has been upheld by the District Judge. On thatfinding the 6th respondent has been declared entitled to a half-share of theaccrued interest on the sum of money lying in Court. But the claim ofthe 7th defendant that she is a child of the marriage between HenryWijesekera and the 6th respondent was rejected by the District Judge.That finding stands as no appeal against it was filed by the 7th respondent.As for the finding in favour of the 6th respondent, which is mainly one offact, it would appear from the grounds set out in the petition of appealfiled by the appellant that he does not seriously challenge its correctness,and it is not necessary, therefore, to make any further reference to it inthis judgment.
Not very long after Henry Wijesekera married the 6th respondentMaggie Nona he filed an action against her for a dissolution of the marriageon the ground of her malicious desertion and adultery. That action wasdismissed. The evidence which Henry Wijesekera gave in that case in1942 was put in evidence by the 1st respondent in these proceedingsmarked 1K5. According to 1B5 he had said that he was previouslymarried in India, that his wife Agidahamy died in Madras in 1938, and thathe had one child by that marriage. Although the fact of the marriage ishotly contested it is common ground that the child referred to in thatevidence is the 1st respondent. To use the words of learned counselwho appeared for the appellant in the District Court, there is no doubtthat Henry Wijeseuera locked after her very affectionately. Undercross-examination in the divorce case Henry Wijesekera stated that whenhe was a small boy he went to the United States of America where he livedfor twenty one years and contracted two marriages, that he returned toCeylon in 1924 and then met Agidahamy, that as his relations wereopposed to bis marrying her he took her first to the Federated MalayStates and then to India where he married her and where the 1strespondent was born. He admitted that till he married Agidahamy inIndia he was living with her as his mistress, and that his marriage wasnot recognised by “his people’’ as she was not of their caste. Evenbefore he married the 6th respondent in 1940 he lived with her for sometime as his mistress.
Mr. Jay a war dene who appeared for the appellant at the appeal raisedobjections both to the admissibility of the evidence given by HenryWijesekera in the divorce case that he was married to Agidahamy as well
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WKER ASO ORX YA, J.—Wijesekera v. Weliwitigoda
as to its weight and sufficiency. Those objections also apply to state-ments made to the same effect by Henry Wijesekera as testified to by thewitness Virginia Peiris and Proctor Welwitigoda who were called by the1st respondent and whose evidence has been fully accepted by the trial■Judge. The objection to the admissibility of these statements was on theground that they amounted to admissions as defined in section 17 (1)of the Evidence Ordinance and that although made by Henry Wijesekerathey may, by virtue of section 18 (3) (6), be proved against the 1st res-pondent (who, it was submitted, derives her interest in the subject matterof the suit from Henry Wijesekera) but cannot be proved by her exceptas provided in section 21 of the Evidence Ordinance. As regards para-graph (c) of that section, Mr. Jayawardene argued that it permitted anadmission, if it were relevant otherwise than as an admission (e.g. undersection 32) being proved only by or on behalf of the person making itand not by any other person. I do not think, however, that HenryWijesekera is a person from whom the 1st respondent has derived herinterest in the subject matter of these proceedings so as to render thestatements imputed to him admissions under section 18 (3) (c). Theargument that the statements amount to admissions therefore fails andit is not necessary to consider the scope of section 21(c). In my opinionthe learned District Judge was right in holding that the statements wererelevant under section 32 (5) of the Evidence Ordinance.
The objection to the weight or sufficiency of these statements was takenon various grounds. In the first place it was stressed that the marriageis alleged to have been contracted in India and there was no proof of whatwere the necessary formalities for a valid marriage under Indian law orthat those formalities were complied with. The case of Armitage v.Armitage1 was cited to show that where the alleged marriage took place in aforeign country the Court insists on evidence that the marriage was dulycelebrated according to the legal formalities in force there, andMr. Jayawardene contended that the same rule would apply in the case of astatement which is admissible under section 32 (5) of the Evidence Ordi-nance as relating to the fact of marriage. In the case cited, however,■the marriage was said to have taken place in New Zealand before it hadbecome a British Colony and, having regard to the primitive conditionswhich prevailed there, the Court refused to act on a bare statement in theaffidavit of the male contracting party asserting the solemnization ofthe marriage in question. I do not think that this case or the othercases referred to by Mr. Jayawardene in dealing with the particular pointunder consideration establish any rule as contended for by him. Thecase of Goldstone v. Smith 2, to which we were referred by Mr. Chel-vanayakam, shows that the presumption omnia rite esse acta could beapplied in deciding whether the fact of a foreign marriage had been dulyproved. All that section 32 (5) requires is that the statement shouldrelate to the existence of any relationship by blood, marriage or adoptionbetween persons as to whose relationship, in any such way, the personmaking the statement has special means of knowledge, and that the
(.1SSS-67) Equity 343.
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WEETtASOORTYA, J.—Wijesekera v. Weliwitigoda
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statement should have heen made before the question in dispute wasraised. The provision is an exception to the rule against hearsayand has heen enacted primarily to meet a situation where the mattersought to be established involves remote facts of family history which areincapable of direct proof. In the words of Lord Blackburn in Sturla v.Freccia 1 the ground is “ that they were matters relating to a long timepast, and that it was really necessary to relax the strict rules of evidencethere for the purpose of doing justice ”.
It was next argued that the statements should not be acted upon be-cause of their self-serving nature. But when Henry Wijesekera re-presented that he had been married to Agidahamy and that the 1strespondent was a child of that marriage I do not see that what he statedwas in his own interests, since under his mother’s Codicil he would havebeen entitled to the life interest in both the properties whether or not hewas married to Agidahamy or the 1st respondent was their child. While,on the other hand, if the statements were designed to help the 1st res-pondent, a question that poses itself is why he should have been so in-clined unless it be for the reason that she was the lawful issue of themarriage. These statements can, therefore, be distinguished from thestatement which was excluded in Plant v. Taylor2 (being another of thecases relied on by Mr. Jayawardene) on the ground (among others) thatit was obviously in the interest of the person making the same.
It seems to me that the weight and sufficiency of the statments as evi-dence establishing the fact of Henry Wijesekera’s marriage to Agidahamywere matters for the trial Judge to decide. It has not been shown to usthat in acting on those statements the learned Judge applied any wrongprinciple. Moreover, as pointed out by Mr. Chelvanayakam, the case forthe 1st respondent does not rest on those statements alone. There is theadditional evidence that during the lifetime of Henry Wijesekera hisrelatives regarded the 1st respondent as his legitimate child and conductedthemselves accordingly towards her. This evidence is admissible undersection 50 of the Evidence Ordinance and has been accepted by theDistrict Judge. I am also inclined to agree with him that the referencein the Codicil to the wife of Henry Wijesekera was a recognition byMrs. Caroline Wijesekera that at the date of its execution Agida wasmarried to him.
In my opinion the appeal fails and must be dismissed with costs pay-able to the 1st respondent and to Maggie Nona, who was the 6th res-pondent in the proceedings in the Court below but is the5th respondent to this appeal.
Saksoot:, J.—I agree.
Ajrpeal dismissed.
1 {1879) 5 Appeal Casas 623 at Gil.
2 7 H. <fr N. 211.