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Legal Services Home  >   Judgements   >   Family Law   >   Nlr

NLR-Vol.10-P100
NLR - Vol.10, Page No - 100 Present : Mr. Justice Wendt and Mr. Justice Middleton. LOKU BANDA v. DEHIGAMA KUMARIHAMY D. C, Kandy, 2,241. Kandyan law-Adoption, requisites of-Proof-Adoption for the purpose of inheritance. In order to constitute a valid adoption under the Kandyan Law no particular formalities or ceremonies are required; but it is necessary that the parties should be of the same caste and that the adoption should be public and formally and openly declared and acknowledged; and it must also clearly appear that the adoption was for the purpose of inheriting the property of the adoptive parents. APPEAL from a judgment of the Acting District Judge of IX Kandy (C. A. Labrooy, Esq.). The facts and arguments sufficiently appear in the judgments. Dornhorst, K.C. (with him H. Jayewardene), for the appellant. (Counter-petitioner.) Cont..
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NLR - Vol.10- P114
NLR - Vol.10, Page No - 114 Present : Mr. Justice Wendt and Mr. Justice Middleton. DINGIRI MENIKA et al. v. APPUHAMY. D. C, Kandy, 2,313. Kandyan ' Law-Intestate succession-Rights of diga father and uterine half-sisters of intestate's mother-Property inherited from the mother. Where a Kandyan, whose parents were married in diga, died intestate and without issue, leaving him surviving his father, his mother's mother, and two uterine half-sisters of his mother, and where the intestate's estate consisted exclusively of lands inherited by him from his mother, who had inherited them from her father,- Held, that the intestate's father was sole heir to his estate, and that the uterine half-sisters of the intestate's mother were not entitled to any share thereof. D. C, Kandy, 23,620 (1), followed. Cont..
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NLR-Vol.10-P129
NLR - Vol.10, Page No - 129 [ In Review.] Present : Sir Joseph T. Hutchinson, Chief Justice, Mr. Justice Wendt, and Mr. Justice Middleton. Re Estate of SUNDARA, deceased. RANKIRI v. UKKU. D. C, Kandy, 2,061. Kandyan Late-Acquired property of intestate'-Rights of illegitimate children-Bights of widow and sister of deceased. Where a Kandyan died leaving acquired property and leaving him surviving his widow Ukku, a sister Rankiri, and illegitimate children by a woman with whom he lived during the subsistence of his marriage with Ukku,- Cont..
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NLR-Vol.10-P 153
NLR - Vol.10, Page No - 153 Present : Sir Joseph T. Hutchinson, Chief Justice, and Mr. Justice Wendt. RANHAMI v. MENIK ETANA. D. C, Kandy, 17,396. Kandyan Law-Rights of illegitimate children-acquired property- Rights of mother and brother and sisters. Where a Kandyan died intestate leaving him surviving his mother, and brother and sisters, and an illegitimate child,- Held, that the illegitimate child was entitled to succeed to the intestate's acquired property in preference to intestate's mother and brother and sisters, subject to the life interest of the widow if any. Judgment in review in Re the Estate of Sundara (1) followed. Cont..
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NLR-Vol.10-P225
NLR - Vol.10, Page No - 225 Present : Mr. Justice Wood Renton. LUCIYA v. UKKU KIRA. P. C, Gampola, 38,723. Maintenance-Child in arms-Father's liability-Ordinance No. 19 of 1889, s. 3. Under the provisions of Ordinance No. 19 of 1889 (Maintenance Ordinance) the father of a child is bound to pay for its maintenance even where such child is being nursed by the mother and requires no food other than that which it derives from her. Dictum of Bonser C.J. in Sethu v. Janis1 disapproved. Judgments of the Pull Cotrt in Lawarinahami v. Pedro Apps and Madalena Fernando v. Juan Fernando 3 distinguished. APPEAL from an order of the Police Magistrate condemning the defendant to pay a sum of Rs. 2.50 Cont..
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NLR - Vol.10- P343
NLR - Vol.10, Page No - 343 Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice, and Mr. Justice Middleton. DISSAN APPU v. BABAHAMI et al. D.C., Matara, 3,856. Divorce-Connivance-Conduct conducing to adultery-Dismissal of action- Damages-Civil Procedure Code, s. 601. Where an action for divorce brought by the husband is dismissed on the ground that the plaintiff has been guilty of connivance under section 601 of the Civil Procedure Code, the Court has no power to award the plaintiff damages against the co-respondent. Bernstein v. Bernstein1 followed. APPEAL from a judgment of the District Judge of Matara. The A facts are fully set out in the judgment of the Chief Justice. Cont..
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NLR- Vol.10-P 371
NLR - Vol.10, Page No - 371 [FULL BENCH] Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice Mr. Justice Middleton, and Mr. Justice Wood Renton MUTTIAH CHETTY v. DINGIRIA et al. C. R., Kandy, 3,525. Kandyan Law - Minor female - Marriage - Majority- Ordinances Nos. 5 of 1852, s. 5, and 7 of 1865, s. 2-Civil Procedure Code, s. 502. A Kandyan woman under the age of twenty-one years does not become a major by marriage. APPEAL by the plaintiff from a judgment of the Commissioner (J. H. Templer, Esq.) dismissing his action against the first defendant. The facts sufficiently appear in the judgments. Cont..
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NLR-Vol.11-P222
NLR - Vol.11, Page No - 222 Present : The Hon. Sir Charles Peter Layard, Chief Justice, and Hon. Mr. Justice Moncreiff. KALU v. LAMI. D. C., Kurunegala, 697. Kandyan Law-Widow, rights of-Property of husband acquired before marriage. A Kandyan widow has the right to retain possession, during her lifetime, of the acquired property of her husband whether such property be acquired before or after the marriage. A PPEAL from a judgment of the District Judge of Kurunegala. The facts sufficiently appear in the judgment of Layard C.J. Van Langenberg, for the administratix, appellant. H. Jayewardene. for the respondent. Cont..
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NLR-Vol.11-P226
NLR - Vol.11, Page No - 226 Present: Mr. Justice Wendt. UKKUHAMY v. BALA ETANA et al. C. R., Kandy, 15,862. Kandyan law-Devolution of property of deceased Kandyan man-Con-test between mother and brothers and sisters-Preferent right of mother. Where a Kandyan dies unmarried, intestate, and without issue, his acquired immovable property devolves on his mother (the father being dead) in preference to his (deceased's) brothers and sisters. A PPEAL by the defendants from a judgment of the Commissioner of Requests, Kandy. The facts are fully set out in the judgment. R. L. Perera, for the defendants, appellants. E. H. Prins, for the plaintiff, respondent. Cont..
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NLR-Vol.11-P289
NLR - Vol.11, Page No - 289 Present: Mr. Justice Wood Renton. CORNELIA v. SAWODIS. P. C., Matara, 22,212. Maintenance Ordinance, s. 9-Imprisonment before execution of warrant- Warrant for more than one month's arrears of maintenance, Ordinance No. 19 of 1889, s. 9. Where a Magistrate ordered the defendant in a case under the Maintenance Ordinance (No. 19 of 1889) to give certified bail in Rs. 200 to pay Rs. 50 arrears of maintenance for ten months at the rate of Rs. 5 a month, or in default of such payment within one month to undergo rigorous imprisonment for fifteen days for each month,- Held, that the order of the Magistrate was wrong, inasmuch it was not competent for the Magistrate under section 9 of Ordinance No. 19 of 1889 to pass a sentence of imprisonment, except for the amount remaining due after the warrant for the levy has been executed. Cont..
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NLR-Vol.11-P297
NLR - Vol.11, Page No - 297 Present: Mr. Justice Wendt. MAMMADU NACHCHI v. MAMMATU KASSIM. P. C., Jaffna, 45,580. Maintenance-Muhammadan parties-Keeping concubine in the house- " Living in adultery "-Ordinance No. 19 of 1889. woman as his mistress is not good reason in law for his wife refusing to live with him and claiming separate maintenance. But the husband has no right to ask the wife to come and live in the concubine's house. It is improper to address any communication to the Supreme Court about a pending case. APPEAL by the applicant (wife) from a judgment of the Police Magistrate of Jaffna refusing to order her husband to make an allowance to her by way of maintenance. The facts sufficiently appear in the judgment. Cont..
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NLR-Vol.11-P307
NLR - Vol.11, Page No - 307 Present: Mr. Justice Wendt. BENNO NONA v. DINERIS PERERA. P. C, Colombo (Addl.), 8,636. Maintenance, order for-Previous application-Non-proof of maintenance within one year-Dismissal-Res judicata-Second application. Where an application for the maintenance of an illegitimate child was dismissed on the ground that there was no evidence that the defendant had at any time within twelve months next after the child's birth maintained it or paid money for its maintenance, or that he ever ceased to reside in the Island, and where a second application was made by the mother in respect of the same child,- Held, that the dismissal of the first application operated as res judicata, and that the second application was barred. APPEAL from an order of the Additional Police Magistrate of Colombo (M. S. Pinto, Esq.). In April, Cont..
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NLR-Vol.11-P329
NLR - Vol.11, Page No - 329 Present : Mr. Justice Wendt, SELESTINA FERNANDO v. MOHAMADO CASSIM. P. C, Colombo (AddI.), 8,586. Maintenance-Jurisdiction of Court-Illegitimate child-Residence of - child-Residence of defendant- Ordinance No. 19 of 1889. ' The Court within the local limits of which an illegitimate child resides has jurisdiction to entertain an application for the maintenance of such child against its putative father, although he may be resident outside the local limits of such Court. THIS was an application by the mother for an order under section 3 of Ordinance No. 19 of 1889 condemning the defendant to pay a reasonable monthly allowance for the maintenance of his illegitimate child. It was admitted by the complainant's proctor that the defendant resided outside the jurisdiction of the Police Court of Colombo. The Magistrate (M. S. Pinto, Esq.) dismissed the application, holding that he had no jurisdiction to entertain it. Cont..
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NLR-Vol.12-P105
NLR - Vol.12, Page No - 105 Present: Mr. Justice Wendt and Mr. Justice Middleton. BABANISSA et al. v. KALUHAMI et al. Gira Etana, Added Defendant, Appellant. D. C., Ratnapura, 1, 414. Kandyan Law-Associated marriage-Diga married daughter subsequently contracting a bina marriage- Right to inherit father's property, A Kandyan woman who had contracted, a diga marriage but who subsequently returned to the parental roof and contracted a bina marriage during the lifetime of her father is entitled to succeed to her father's property to the exclusion of his other diga married sisters. D. C., Kandy, 18, 457, followed. ACTION rei vindicatio. Appeal by the added defendant, originally 4th plaintiff, from the judgment Cont..
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NLR-Vol.12-P111
NLR - Vol.12, Page No - 111 Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice, and Mr. Justice Grenier. RANHOTIA v. BILINDA et at. C, Kandy, 18, 662. Kandyan Law-Acquired property-Rights of father and brother of deceased. According to Kandyan Law, where a person dies unmarried, childless, and intestate, his acquired property devolves on his father to the exclusion of his brother. ACTION ret vindicatio. The facts are stated in the following judgment of the District Judge (F. R. Dias, Esq. ) (May 18, 1908): " The plaintiff in this action is claiming title to a half share of a certain land, alleging title as sole heir-at-law of his brother Singa, who died unmarried and intestate in 1887. The defendants and added parties are the step-mother and step-brother of the plaintiff Admittedly, the plaintiff Cont..
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NLR-Vol.12-P291
NLR - Vol.12, Page No - 291 Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice, and Mr. Justice Middleton. DISSANAIKE v. ELWES. D. C., Kandy, 18, 928. Kandyan Law-Sale of immovable property by minor-Voidable -Death of minor--Action by executor to recover property sold-Validity of sale -Repudiation by minor-Repudiation by executor. A sale of immovable property by a Kandyan minor is not void, but only voidable. Where a Kandyan married minor sold immovable property in December, 1895, with the knowledge and consent of her husband, and died in January, 1905, without in any way repudiating the transaction, and after her death her executor sought to vindicate the land sold,. Held, that he was not entitled to do so, as the sale being voidable and not void, and the minor not having repudiated it, the executor could not, after the minor's death, repudiate it. Cont..
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NLR-Vol.12-P74
NLR - Vol.12, Page No - 74 [In Review. ] Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice, Mr. Justice Wendt, and Mr. Justice Middleton. TIKIRI KUMARIHAMY v. DE SILVA et al. D. C, Kegalla, 1, 879. Kandyan law-Donation for past services-Renunciation of right to revoke-Irrevocability. A Kandyan deed of gift made in consideration of past services rendered by the donee to the donor and containing a clause renouncing the right of revocation is irrevocable. HEARING in review of the judgment reported in (1906) 9 N. L. R. 202. Bawa (with him Batuwantudawe), for the plaintiff, appellant. Cont..
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NLR - Vol.12- P95
NLR - Vol.12, Page No - 95 Present: The Hon. Sir Joseph T, Hutchinson, Chief Justice, and Mr, Justice Wendt. ABEYAGOONESEKERE v. ABEYAGOONESEKERE. D. C, Colombo, 26, 426. Divorce-Liability of husband to provide wife's costs-English practice - Courts Ordinance, No. 1 of 1889, s. 64. The rule of English practice that in a divorce case the husband is, as a general rule, liable to pay into Court, or give security for, an amount sufficient to cover the wife's costs in connection with the case should be followed in Ceylon. APPEAL by the defendant from an order of the Acting District Judge (H. A. Loos, Esq. ) directing him to pay Rs. 200 for the wife's costs in the action, and also a sum of Rs. 50 monthly for alimony pending the action. The facts material to the report appear in the judgments. Van Langenberg, for the defendant, appellant. H. A. Jayewardene (with him Batuwantudawe), for the plaintiff, respondent. Cont..
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NLR-Vol.12-P97
NLR - Vol.12, Page No - 97 Present: Mr. Justice Wendt. SABOOR UMMA v. COOS KANNY. P. C, Colombo (Addl. ), 8, 713. Maintenance Ordinance, s. 3-Discharge of defendant owing to absence of complainant-Cause of absence- Criminal Procedure Code, s. 194. Where the complainant in a maintenance case being absent on the day of trial (May 9) the defendant was discharged, and the complainant subsequently (December 17) instituted another complaint, and explained her absence on the previous occasion by stating that the defendant fraudulently promised to marry her and to pay her Us. 100 and thereby induced her to absent herself, - Held that the order of discharge must be considered as an acquittal. Held, further, that the reason given by the complainant for her absence on May 9 being satisfactory, the Magistrate had power to set aside the order of discharge of that date and to Cont..
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NLR - Vol.14- P104
NLR - Vol.14, Page No - 104 Jan.25,1911 Present: Hutchinson CJ. and Middleton J. PINHAMY v. BABYNONA et al. 358-D. C. Nuwara Eliya, 70. Husband and wife-Separation by agreement-Covenant not to take legal proceedings-Condonation-Action for divorce-Agreement bar to action-Past misconduct. An agreement between husband and wife contained the following clause: " From henceforth we shall live separate from each other, and that while our modes of living hereafter shall be as both of us shall individually and separately will and desire, our deeds, acts, conducts, and behaviours can and shall be independent of one another and as each party shall separately will and desire, and that both of us shall not hereafter seek any legal remedy against one another according to law ". In an action for divorce by the husband against the wife, on the ground of adultery, where the husband was unable to prove any adultery subsequent to the agreement,- Held, that the agreement was a bar to this action. THE plaintiff and his wife, the defendant, entered into an agreement to live separately, and Cont..
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NLR-Vol.14-P289
NLR - Vol.14, Page No - 289 Present: Wood Renton J. and Grenier J. June.2,1911 RAN ETANA et al. v. NEKAPPU et al. 139- D. C. Kegalla, 2,506. Kandyan law-Woman marrying in " diga " after death of parents- Forfeiture of right to paternal properly-Marriage in "diga" pending an action for declaration of tide by woman-Objections taken during trial-Counsel must get Judge to note them. It is the duty of the brothers, after the death of their parents, to give their sister in marriage, whether in bina or in diga; but there is nothing to prevent a woman from voluntarily contracting either kind of marriage; where she contracts a diga marriage voluntarily, she forfeits her rights to the paternal inheritance. Where during the pendency of an action for declaration of title by a Kandyan woman for her paternal property she contracted a marriage in diga,- Cont..
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NLR-Vol.14-P 510
NLR - Vol.14, Page No - 510 Aug.17,1911 Present: Lascelles C.J. DINGIRI BANDA v. KIRI BANDA. 259A and B-C. R. Matale, 9,401. Kandyan law-Person dying without ascendants or descendants-Contest as to acquired property between maternal uncle and paternal half-brother. Under Kandyan law a maternal uncle is entitled to the acquired property of an intestate in preference to the paternal half-brother of the intestate. IN this case the plaintiff purchased the premises in dispute from the half-brothers on the father's side of one Kalu Banda, the original owner, who acquired the same on deed No. 5,099 dated November 20, 1895. The plaintiff's right was disputed by the defendant, who is the maternal uncle of Kalu Banda. Kalu Banda died leaving no descendants or ascendants. The parties went to trial on the issue as to who was entitled to the acquired immovable property of Kalu Banda-his half-brothers (plaintiff's vendors) or his maternal uncle (the defendant). Cont..
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NLR - Vol.15- P100
NLR - Vol.15, Page No - 100 Present: Lascelles C.J. and Middleton J. APPUHAMY v. MENIKHAMY et al. 325-D. C. Chilaw, 4,336. Action for divorce on the ground of adultery of wife-Husband himself guilty of adultery-Discretion of Court to dismiss action-Discretion as to costs-Civil Procedure Code, ss. 211 and 602. An action by a husband for divorce on the ground of adultery of his wife was dismissed as the husband himself was guilty of adultery. For a Court to exercise its discretion under section 602 of the Civil Procedure Code in favour of the adulterous husband, it is not enough that the adultery of the petitioner was more or less pardonable or capable of excuse, but the Court must find, as a fact, that the misconduct of the petitioner was caused directly by the matrimonial offences of the respondent. Section 211 of the Civil Procedure Code gives a discretionary power to the Court with regard to costs in all actions, including matrimonial actions.. THE facts appears in the judgment. Sampayo, K.C., for appellant. Cont..
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NLR-Vol.15-P 371
NLR - Vol.15, Page No - 371 Present: Middleton J. KOMALIE v. KIRI. 370-C. R. Matale, 9,491, Kandyan law-Revoation of deed of gift-Special clause of disinherison- What is paraveni property ?- Acquired property. A Kandyan woman revoked a donation of a land to her children, as they had failed and neglected to render assistance to her. Subsequently she donated it to her daughter-in-law; this deed contained a clause that none of her heirs, executors, administrators, or assigns should make any dispute with regard to the gift. Held, that this clause had (in the circumstances) the effect of a special clause of disinherison. A clause of disinherison is necessary only when all the paraveni lands are gifted. Cont..
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NLR-Vol.15-P 407
NLR - Vol.15, Page No - 407 Present: Pereira J. and Ennis J. RAM MENIKA et al. v. BANDA LEKAM et al. 201-D. C. Kandy, 21,338. Kandyan law-Deed of gift-Revocation-Consideration. A Kandyan deed of gift is revocable whether it is made as return for past services or in consideration of a marriage that has already taken place, or even in view of a contemplated marriage, so long as it has all the elements of a mere free will gift. Where, however, a donation is made in consideration of, or as an inducement for, a marriage to be contracted or services to be rendered hereafter, and such marriage is accordingly contracted or such services are accordingly rendered, then it would be inequitable to allow a revocation of the donation. THE facts are set out in the following judgment of the learned District Judge (F. E. Dias, Esq.): - The first plaintiff is the daughter of the defendant, and she and her children bring this action to Cont..
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NLR-Vol.15-P440
NLR - Vol.15, Page No - 440 Present: Lascelles C.J. and Wood Renton J. APPUHAMY v. APPUHAMY et al. 138-D. C. Colombo, 32,008. Money paid under mistake of law-Action to recover-Married woman- Equity-Condictio indebiti. Where money is paid by a married woman in discharge of an obligation concluded by her without her husband's consent the husband is allowed to recover the money, unless it was paid by his wife with full knowledge of her rights and that she was not obliged to make it. " Under the Roman-Dutch law there is a conflict of opinion whether money paid under a mistake of law is recoverable, but the tendency in South Africa appears to be to hold that money paid under a mistake of law is not recoverable unless there are special circumstances; that, in other words, there must be a natural equity on the side of him who claims the condictio indebiti. But the case of a married woman paying money in discharge of an obligation concluded by her without her husband's consent appears to stand on a different footing." Cont..
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NLR-Vol.15-P501
NLR - Vol.15, Page No - 501 Present: Pereira J. and Ennis J. GUNARATNA v. PUNCHIHAMY. 198-D. C. Matara, 1,893. Marriage-Presumption of marriage from cohabitation, habit, and repute-Evidence that there was no registration or marriage according to native rites-Presumption rebutted. The respondent (Punchihamy) sought to establish in this case marriage between herself and one Deonis (deceased). The evidence established the facts of cohabitation, habit, and repute, but the respondent, while giving evidence herself of the facts of cohabitation, habit, and repute, gave evidence also to the effect that in fact there was no marriage either under the Ordinance or according to native rites and customs. Held, that the presumption of marriage from the evidence of cohabitation, habit, and repute was rebutted. Cont..
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NLR-Vol.160-P3
NLR - Vol.16, Page No - 53 1912 Present: Lascelles C. J. and Pereira J. MUDIYANSE et al. v. BANDA et al. 231-D. C. Kegalla, 3,410. Kandyan law-Deed of gift-Consideration in part money and in part assistance to be rendered in the future-Revocation. A Kandyan deed of gift was given by reason of the love and affection of the donor to the donees, and of divers other good reasons, and also with the object of obtaining assistance and succour, and also in consideration of the sum of Rs. 100, which was about a tenth of the value, paid by the donees. The deed did not contain a clause renouncing the right of revoking the donation. Held, that the deed of donation was revocable ; the donee was declared entitled to receive back from the donor's representatives the sum of Rs. 100, and to be compensated for improvements made by him to the property. Cont..
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NLR-Vol.16-P131
NLR - Vol.16, Page No - 131 1913 Present: Lascelles C.J. RAN MENIKA v. MUDALIHAMY 421-C. R. Kegalla, 11,017. Kandyan law-Donation by mother of her acquired property to her children-Death of mother and children-Maternal grandmother heir to property in preference to father. A Kandyan mother married in bina donated her acquired property to her children. The children died intestate and issueless after their mother. Held, that the property devolved on their maternal grandmother in preference to their father. " The father is not the heir of the property of his children born in a bina marriage, which they have acquired through their mother; the maternal uncles or next of kin on the mother's side being the heir to such property; but the father will succeed to such children's property if otherwise acquired." Cont..
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NLR-Vol.16-P238
NLR - Vol.16, Page No - 238 1912 Present: Lascelles C.J. and Wood Renton J. APPUHAMY v. KIRI MENIKA et al. 269-D. C. Ratnapura, 1,948. Kandyan law-Kandyan woman married out in diga keeping a close connection with the mulgedara-Rights to paternal inheritance. R, a Kandyan woman, who was married out in diga, went to live with her husband about two miles away from the mulgedara. One of their children was left in the mulgedara and brought up by her grandmother; and R, though married in diga, kept up a constant and close connection with the mulgedara. Held, that in the circumstances R did not, by reason of her diga marriage, forfeit her right to the paternal inheritance. THE facts appear from the judgment. Cont..
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NLR-Vol.16-P61
NLR - Vol.16, Page No - 61 1912 Present: Pereira J. and Ennis J. DINGIRIHAMY v. MUDALIHAMY et al. 209-D. C. Kurunegala, 4,402. Kandyan marriage - Entry in marriage register that marriage was " bina " is not conclusive evidence of " bina " marriage-Effect of registration - Marriage dating back to date of native ceremony - Daughter marrying in " diga " after father's death loses right to paternal inheritance. Per PEREIRA J. and ENNIS J. with diffidence :- (1) The fact that a marriage of Kandyans is described in register of marriages as a bina one is not evidence marriage ; evidence is admissible to contradict the and to prove that the marriage was diga. Per PEREIRA J. with diffidence :- Cont..
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NLR - Vol.16- P83
NLR - Vol.16, Page No - 83 1912 Present: Lascelles C.J. and Wood Renton J. APPUHAMY v. JULIHAMY et al. 303-D. C. Chilaw, 4,530. Divorce-Action by husband against wife on ground of adultery and desertion-Husband communicating venereal disease to wife- Cruelty-Divorce not granted. The plaintiff sued his wife,, the first defendant, for divorce on the grounds of malicious desertion and adultery with second defendant. The Supreme Court refused to grant a decree for divorce though the adultery was proved, as the plaintiff was guilty of cruelty to his wife, inasmuch as he had communicated venereal disease to her. Communication of venereal disease by a husband to his wife, if wilful, constitutes legal cruelty. Cont..
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NLR-Vol.17-P1
NLR - Vol.17, Page No - 1 Present: Wood Renton A. C. J. and De Sampayo A. J. APPUHAMY v. TIKIRI MENIKA. 353-D. C. Kurunegala, 4, 733. Kandyan law-" Bina " marriage-Right of father to succeed to properly inherited toy his children from their mother. The father is not the heir of the property of his children born in a bina marriage which they have acquired through their mother; the maternal uncles or next of kin on the mother's side are the heirs to such children (in the absence of the mother). Semble, -The father's right to the life interest over such property depends on the fact of his having kept the child under his care and custody. THE facts are set out in the judgment. Cont..
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NLR-Vol.17-P201
NLR - Vol.17, Page No - 201 1914 Present: Lascelles C. J. and De Sampayo A. J. DINGIRI BANDA v. MEDDUMA BANDA et al. 25-D. C. Kandy, 22, 204. Kandyan law-Gift to daughter's son-Acquired property of grandson- Succession to grandson's property- Gift of husband's property by husband and wife-May wife revoke the gift after husband's death? Ukkurala and Mutumenika had a daughter Kirimenika (died 1868), who was married in bina to plaintiff. Ukkurala gifted in 1888, along with Mutumenika, his land to his grandson Tikiri Banda, subject to the condition that he should render assistance,. &c, to Ukkurala and Mutumenika. Tikiri Banda died leaving a son, Ran Banda, who died issueless in 1906. Mutumenika in 1907 (her husband being then dead) purported to gift the land to her brothers. Held, (1) That Mutumenika's deed in favour of her brothers did not convey any title to them, as the land belonged to Ukkurala and not to Mutumenika. Cont..
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NLR-Vol.17-P 307
NLR - Vol.17, Page No - 307 1914 Present: Lascelles C. J. and Ennis J. PERERA v. SETUWA 155-D. C. Kurunegala, 4, 919 Kandyan law-Diga-married sister-Right to inherit paraveni property of deceased sister, A diga-married sister is precluded by her diga marriage from inheriting the paraveni property of her deceased sister. THE facts are set out in the judgment. G. Koch, for the plaintiff, appellant. -The effect of diga marriage is to prevent a diga-married daughter from inheriting from her parents. She does not by a diga marriage forfeit a right to inherit from a deceased sister. It has been held that even a diga-married daughter does not lose her right to inherit from her Cont..
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NLR-Vol.18-P105
NLR - Vol.18, Page No - 105 [FULL BENCH] 1914. Present : Pereira J., Shaw J., and De Sampayo A. J. TIKIRI BANDA v. APPUHAMY et al. 419-D. C. Kandy, 22,747. Kandyan law-Diga marriage-Widower has a life interest in acquired of wife. The widower of a diga marriage has life interest in the acquired property of his deceased wife. KALU MENIKA, the diga married wife of the first defendant, was the owner of the lands described in the plaint, she having purchased them subsequent to her marriage with first defendant. Kalu Menika died intestate leaving three children, Mutu Menika, Punchi Menika, and the second defendant. Mutu Menika, on August 26, 1913, sold her undivided one-third share of the said lands to plaintiff, and Punchi Menika sold her one-third share to the third defendant. Cont..
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NLR-Vol.18-P294
NLR - Vol.18, Page No - 294 1915. Present : Wood Renton C.J. and De Sampayo A.J. PUNCHIHAMY et al. v. PUNCHIHAMY et al. 85-D. C. Kurunegala 4,909. Kandyan law-Kandyan marrying a low-country Sinhalese woman-Offspring not Kandyan. The children of a marriage between a Kandyan man and a low-country Sinhalese woman are not to be regarded as Kandyans. THE plaintiffs-respondents brought this action against the defendants-appellants for the recovery of lands marked 1 to 12 in the schedule attached to the plaint. According to the plaintiffs the original owner of these lands was one Punchirala, a Kandyan, married to one Karonchihamy, a low-country Sinhalese woman, and had by her three children, Ungurala. Menuhamy, and Dingiri Menika. Cont..
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NLR - Vol.18-P465
NLR - Vol.18, Page No - 465 Present : Shaw J. 1915. KALU v. KIRIA. 364-C. R. Matale, 11,388. Kandyan law-Mother heir to the acquired property of the children- Deed of gift subject to condition that donee should render assistance to donor-Donee dying before donor-Construction of instrument- Whether it is a testamentary disposition or deed of gift. A Kandyan mother inherits her children's acquired properties in preference to the father. This rule is not restricted only to cases where the mother was married in binna; nor only to cases where the property has been acquired from a source other than the father. A Kandyan deed of gift, subject to the condition that the children should render help and assistance to the donor during his lifetime, does not become null and . void on the donee dying during the lifetime of the donor. Cont..
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NLR - Vol.19-P126
NLR - Vol.19, Page No - 126 1916. Present: Wood Renton C.J. and De Sampayo J. BANDA v. BANDA. 187-D. C. Kurunegala, 5,756. Kandyan law-Is father heir to his illegitimate child?-Acquired property. Under Kandyan law a father is not an heir to his illegitimate child in respect of the acquired property. THE facts are set out in the judgment. A. St. V. Jayewardene, for defendant, appellant.-It is a well-recognized principle of the Kandyan law that the illegitimate child succeeds to the acquired property of the father along with the legitimate children. See 8 N. L. B. 328, 10 N. L. R. 129, 10 N. L. R. 153. It is a necessary corollary that the father succeeds to the property of the illegitimate child in the same manner as he succeeds to the property of the legitimate child. There is no authority to the contrary. Cont..
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NLR - Vol.19-P221
NLR - Vol.19, Page No - 221 1916. Present: Wood Renton C.J. and De Sampayo J. KIRI MENIKA v. RAN MENIKA. 36-D. C. (Inty.) Kurunegala, 1,295. Kandyan law-Person dying childless-Acquired property-Intestate succession-Does a niece exclude the widow?-Rule when widow is ewessa cousin of husband-Rule as to movable property. Under the Kandyan law, where a person dies childless, the widow is entitled to the movable property, except heirlooms. As regards landed property, the general rule is that the widow is excluded by the deceased's parents and brothers and sisters and their issue, but she has the same life interest in her husband's acquired and hereditary property as the widow of a husband who died leaving issue. If the barren widow be the husband's paternal aunt's daughter or his maternal uncle's daughter, she inherits next to full brothers the acquired lands. Cont..
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NLR - Vol.19- P351
NLR - Vol.19, Page No - 351 1916 Present : Wood Renton C.J. and De Sampayo J. MENIKA v. NAIDE. 1,019-P.C. Kurunegala, 22,070. Maintenance-Kandyan Marriage Ordinance, No. 3 of 1870, s. 23- Divorce-Compensation by husband to wife-Claim for maintenance on behalf of children The compensation for which section 23 of the Amended Kandyan Marriage Ordinance, No. 3 of 1870, provides is in the nature of compensation to the spouse, to whom it is made for the loss of the conjugal society, and it does not interfere with the rights of a child entitled to maintenance, for whom the compensation does not make express provision. THE facts appear from the judgment. Cont..
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NLR-Vol.19-P351
NLR - Vol.19, Page No - 351 1916 Present : Wood Renton C.J. and De Sampayo J. MENIKA v. NAIDE. 1,019-P.C. Kurunegala, 22,070. Maintenance-Kandyan Marriage Ordinance, No. 3 of 1870, s. 23- Divorce-Compensation by husband to wife-Claim for maintenance on behalf of children. The compensation for which section 23 of the Amended Kandyan Marriage Ordinance, No. 3 of 1870, provides is in the nature of compensation to the spouse, to whom it is made for the loss of the conjugal society, and it does not interfere with the rights of a child entitled to maintenance, for whom the compensation does not make express provision. THE facts appear from the judgment. E. T. de Silva, for appellant.-If provision is made under the Civil Procedure Code for children in a matrimonial action, the mother cannot proceed under the Maintenance Ordinance. The same principle Cont..
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NLR - Vol.19-P63
NLR - Vol.19, Page No - 63 1916 Present: Ennis J. and De Sampayo J. UKKUWA v. BANDUWA. 16-D. C. Kurunegala, 5,396. Kandyan law-Acquired property-Inheritance-Donation by father to son-Son dying issueless, leaving mother and step-brothers. S, a Kandyan, gifted a land to his son P. P. died issueless, leaving him surviving his mother, D, and step-brothers (children of S by another wife). Held, that the property devolved on D on the death of P, to the exclusion of his (P's) step- brothers. Property gifted to a person is acquired property of that person. THE facts are fully set out in the judgment. Cont..
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NLR-Vol.1- P 160
NLR - Vol.1, Page No - 160 LE MESURIER v. LE MESURIER et al D. C, Matara, 502. Marriage between British or European spouse resident in the Island- Matrimonial law of Ceylon- Proclamation of 23rd September, 1799- Charters of 1801 and 1833-Scope of s. 597 of Civil Procedure Code-Applicability of Roman-Dutch law-Authority of International law in the consideration of jurisdiction of Courts-Remedies for matrimonial misconduct allowable by Courts of the residence of the spouses- Action for divorce-for judicial separation-for alimony The matrimonial law of Ceylon, established by the Proclamation of 23rd September, 1799, was superseded, or at least modified, in so far as it related to British and European residents, by the enactments of the Royal Charter of 1801. Bat upon the repeal of those enactments by the Charter of Justice of the 18th February, 1833, the Proclamation of 1799 was revived, and the matrimonial law applicable to such residents again became the Roman-Dutch law. The Roman-Dutch law does not give jurisdiction to the Courts of the country in which spouses Cont..
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NLR - Vol.20-P12
NLR - Vol.20, Page No - 12 1917 Present: Ennis J. and De Sampayo J. TIKIRI MENIKA v. MENIKA. 478-D. C. Kegalla, 4,307. Kandyan law-Kandyan dying leaving a widow and children by first wife -No paraveni property-Is widow entitled to a life interest over all the acquired property of deceased ? Where the entire estate of a deceased consists of acquired property only, and there are children by a former marriage, the widow's life interest extends only to a part of such acquired property. APPEAL from a judgment of the District Judge, Kegalla (H. E. Beven, Esq.). The facts are set out in the judgment of Ennis J. Cooray, for appellant. J. W. de Silva, for respondent. Cont..
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NLR - Vol.20-P18
NLR - Vol.20, Page No - 18 Present: Shaw J. THE KING v. KANDAPPU. 67-D. C. (Crim.) Trincomalee, 103. Admissibility of evidence given, at Police Court inquiry by absent witness-Evidence Ordinance, s. 33. It is only in extreme cases of delay or expense that the personal attendance of a witness should be dispensed with, and the evidence given by him before the committing Magistrate referred to. THE facts appear from the judgment. A. St. V. Jayewardene, for the appellant. Grenier, CC., for the Crown. Cont..
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NLR - Vol.21-P 145
NLR - Vol.21, Page No - 145 Present: De Sampayo J. PUNCHIRALA v. PERERA. 271-C. R. Badulla, 3,741. Kandyan law-Child born in adultery-Inheritance. Under the Kandyan law a child born in adultery is not disqualified from succeeding to his father's property. THE facts appear from the judgment. A. St. V. Jayawardene (with him H. V. Perera), for plaintiff, appellant. J. W. de Silva, for defendant, respondent. March 5, 1919. De Sampayo J. Cont..
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NLR-Vol.21-P294
NLR - Vol.21, Page No - 294 [FULL BENCH.] 1920o Present : Bertram C.J. and De Sampayo J. and Loos A.J. KUMA v. BANDA. 256-C. R. Anuradhapura, 9,948 Kandyan law-Ordinance No. S of 1870-Father's right to inherit acquired property of illegitimate son- History of the Ordinance may be looked at in order to interpret Ordinance-The materials which may be used for ascertaining that history. Children who might under the ancient Kandyan law be considered legitimate can no longer claim that, status if the marriage of their parents has not been registered, and if under the Kandyan law illegitimate children in any given case have rights of inheritance, they have the same rights now, but not otherwise. Cont..
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NLR-Vol.21-P449
NLR - Vol.21, Page No - 449 Present: De Sampayo J. and Schneider A.J. MOHOTHIHAMY et al. v. MENIKA et al. 198-D. C. Kegalla, 4,968. Kandyan marriage contracted before 1870-Proof of cohabitation and repute not enough-Observance of Kandyan customs- Ordinance No. 3 of 1870, s. 25. Though under the ordinary law evidence of cohabitation and repute may be sufficient to raise a presumption of valid marriage under section 25 of Ordinance No. 3 of 1870, some proof must be given of the observance of the laws, institutions, and customs in force in Sandy at the time of marriage. THE facts appear from the judgment of the District Judge (H. E. Beven, Esq.): - The land in dispute in this case between the plaintiffs and defendants is the block of 61 acres and 2 roods within the boundaries coloured pink in plan No. 1,682 filed. This land was part of a larger land called the Mahinkandegallatwasama, some 316 acres in extent, which belonged to four families. Cont..
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NLR-Vol.22-P395
NLR - Vol.22, Page No - 395 [ FULL BENCH.] 1921. Present : Bertram C.J. and Ennis and De Sampayo J.J. PONNAMMAH v. SEENITAMBY 356-P. C. Batticaloa. 8,497. Maintenance Ordinance, s. 7-Corroboration of the evidence of the mother -Statements made by mother to third persons some months after conception-Evidence Ordinance. s. 157-Complaints made before public authority competent to investigate. The requirement of section 7 of the Maintenance Ordinance of 1889 that, in order to justify an order for maintenance, the evidence of the mother should be corroborated in some material particular by other evidence is satisfied by any kind of corroboration which is recognized by law at the time that her evidence is given ; and consequently section 157 of the Evidence Ordinance of 1895 applies to section 7 of the Maintenance Ordinance of 1889, Cont..
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NLR-Vol.22-P472
NLR - Vol.22, Page No - 472 1921. Present : De Sampayo J. and Schneider A.J. SENEVIRATNA v. HALANGODA et al. 390-D. C. Kandy, 27,718. Diga married daughter acquiring status of binna married daughter- Rights 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 or subsequently acquiring binna rights is that the forfeiture of the rights of paternal inheritance does not take place, but she inherits as though she was married in binna. It does not alter the character of the marriage itself. The diga marriage remains a diga marriage so far as other results of such a marriage are concerned. The husband does not cease to be a diga married husband and begin to be a binna married husband. A diga married husband is entitled to inherit from his wife, even though she may have acquired subsequent to marriage, the status of a binna married daughter. Cont..
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NLR - Vol.23-P 26
NLR - Vol.23, Page No - 26 1921 Present: De Sampayo J. ASSISTANT GOVERNMENT AGENT, KANDY, v. KALU BANDA et al. 187-C.R.Teldniya, 4,833. Kandyan law-Gifts in the nature of fidei commissum not contrary to Kandyan law. Gifts in the nature of fidei commissa are not contrary to the spirit of the Kandyan law. There is no principle of Kandyan law which prevents a Kandyan from giving a limited interest to one person, and providing that at the termination of that interest the property should vest in another person. THE facts appear from the judgment. Samarawickreme (with him Croos-Dabrera), for ninth, tenth, and eleventh defendants, appellants. M. W. H. de Silva, for sixth, seventh, and eighth defendants, -respondents. Cont..
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NLR-Vol.23-P277
NLR - Vol.23, Page No - 277 Present : Shaw J PATHUMMA v. SEENI MOHAMMADU. 411-P.C.Batticaloa,8,599. Maintenance Ordinance, 1889, s. 4-Application for maintenance by Muhammadan wife-Offer by husband to take her back-Refusal of wife to live with husband as he was living with another wife. A Muhammadan wife, who refuses to live with her' husband on the ground that he is living with another -wife, is not "entitled to claim maintenance, as he is not guilty of adultery by so doing. THE facts appear from the judgment. J. Joseph, for the appellant. Arulanadan, for the respondent. May 12,1921. SHAW J.- This is an appeal from an order of the Magistrate directing the husband to pay maintenance for his Cont..
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NLR - Vol.23-P281
NLR - Vol.23, Page No - 281 Present : Bertram C.J. and Garvin A.J. APPUHAMY et al. v. BANDA. 135-D. C. Regatta, 5,333. Kandyan law-Interest of mother in acquired property of her husband-Usufruct. The interest of a mother in the acquired property of her husband is not defined with exactitude in Kandyan law; but it seems clear that it was regarded as nothing more than a usufruct. THE plaintiffs in this action sought to vindicate their title to a half share of the land in dispute which they claimed on a planting agreement executed by the original owner in favour of their father. The defendant denied the planting agreement relied upon by the plaintiffs, and also the fact that plaintiffs' father had planted the lands in terms of the agreement. Cont..
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NLR - Vol.23- P344
NLR - Vol.23, Page No - 344 Present : Ennis and Schneider JJ. SILVA v. CARLINAHAMY et al. 364--D C. Galle, 18,344. Divorce-Wife leaving husband without reasonable .cause-Absent* for night months-Malicious desertion- Decree for divorce in the event of wife not returning to husband within a period fixed in decree Where a wife 'without reasonable cause left her husband and lived separately for eight months, a decree for divorce was entered on the ground of malicious desertion. It is not competent to the Court to enter a conditional decree for divorce in the event of the wife not returning to her husband within a period fixed in the decree. THE facts are set out in the judgment of the District Judge (T. B. Russell, Esq.) :- Cont..
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NLR-Vol.23-P353
NLR - Vol.23, Page No - 353 [FULL BENCH] Present : Ennis, De Sampayo, and Schneider JJ. SOPHIA HAMINE v. APPUHAMY 141 and 144-D. C. Negombo, 1,859. Low-country Sinhalese resident in the Kandyan Province*-Does Ordinance No. 3 of 1870 apply to them ?-Marriage by custom- Ordinance No. 2 of 1895. Ordinance No. 3 of 1870 is applicable- to Kandyans a and not to . Low-country Sinhalese resident in the Kandyan Provinces. Since the repeal of section 15 of Ordinance No. 2 of 1895, it is open to Low-country Sinhalese resident in the Kandyan Provinces to establish a marriage by custom. THE facts appear from the judgment. Cont..
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NLR-Vol.23-P 466
NLR - Vol.23, Page No - 466 Present : Ennis J. JEERISHAMY v. DAVITH SINNO. 815-P. C. Tangalla. 766. Maintenance-Application for maintenance of children-Dismissal of application- as applicant was absent-Subsequent application-- Res judicata-Does appeal He against refusal to order maintenance. The dismissal of an application for maintenance for children on the ground that applicant was absent is no bar to a fresh application. Where a subsequent application was dismissed without inquiry. Held, that there was no appeal against the order. The applicant was directed to make a fresh application in the Polite Court, THE facts appear from the judgment. Cont..
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NLR - Vol.24-P109
NLR - Vol.24, Page No - 109 1922 Present : Ennis and Schneider JJ. APPUHAMY et al. v. KUMARIHAMY et al. 93-D. C. Badulla, 3,585. Kandyan law-lie-acquisition of binna rights by woman married in diga- Property sold by other heirs before re-acquisition The re-acquisition of binna rights by a, Kandyan woman, who was married in diga, does not give her title to property alienated by the other heirs before she re-acquired the binna rights. The re-acquisition of binna rights is not a one-sided process; the father's family must intend, or at least recognize, the results. THE facts are set out in the judgment of the District Judge R. G. Saunders, Esq.): - Banda Arachchi was the original owner of the land in dispute. He was married to Kumarihamy, first Cont..
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NLR - Vol.24-P129
NLR - Vol.24, Page No - 129 1922 Present: Bertram C.J. and Ennis J. MANIPITIYA v. WEGODAPELA et al. 293-D. C. Kandy, 27,829. Kandyan law-Registered diga marriage-Bride continuing to live in mulgedera-No forfeiture of rights to paternal property-Meaning of " best evidence." A Kandyan woman whose marriage was registered as a diga marriage, but who continued to live in the mulgedera, was held not to have forfeited her rights in the paternal estate. BERTRAM C.J.-As between, or as against the parties, or their representatives in interest, the register of the marriage is conclusive of the intention with which the marriage was celebrated, unless the case is shown to be one of mistake or fraud, or can otherwise hi-brought within the equitable exceptions of section 92 of the Evidence Ordinance. Persons not parties, however, are not bound by the register, but are entitled to show that the true character of the marriage was not in fact such as it is represented to be .... " By contracting a marriage in diga, in which the bride's Cont..
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NLR - Vol.24-P149
NLR - Vol.24, Page No - 149 1922 Present: Ennis and Schneider JJ. KIRIHENAYA v. JOTIYA, 72-D. C. Regatta, 5,798, Kandyan law-Deed of gift-Renunciation of the rights of revocation- A Kandyan deed of gift which expressly renounces the right of revocation, and which is not dependent on any contingency, is irrevocable. A deed of gift is a contract, and there is no rule of law which makes it illegal for one of the parties to the contract to expressly renounce a right, which the law would otherwise give him. IN this case the plaintiff sued the defendant for a declaration of title to the hinds described in the plaint, pleading title upon a deed of conveyance No. 20,755 dated October 5, 1922, from Kuda Ridi. Cont..
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NLR-Vol.24-P204
NLR - Vol.24, Page No - 204 Present : Bertram C.J. KALU HAMY v. MUDIYANSE. 405-P. C. Kurunegala, 5,902. Maintenance-Sentence of imprisonment for default of payment before issue of warrant of execution- Admission by defendant that he has no property. Before a person ordered to pay maintenance under the Maintenance Ordinance is sentenced to imprisonment for default of payment, warrant of execution under section 9 should be issued. A sentence of imprisonment on his admission that he was not possessed of immovable property was held to be irregular. THE facts appear from the judgment. Sunderam, for appellant. Cont..
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NLR vol.24-P245
NLR - Vol.24, Page No - 245 Present : Ennis and De Sampayo JJ. BANDARANAYAKE v. BANDARANAYAKE 129-D. C. Kandy, 29,546 Kandyan woman marrying a Low-country Sinhalese-Matrimonial rights of the parties. Where a Kandyan Sinhalese woman marries a low-country Sinhalese, her matrimonial rights are governed by the Kandyan law and not by Ordinance No. 15 of 1876. A Kandyan Sinhalese is not a person of a different race or nationality from a low-country Sinhalese. THE facts are set out in the judgment of the District Judge (W. S. de Saram, Esq.): - The plaintiff, a Kandyan lady, was married to the defendant, a low-country Sinhalese, and they lived together for fifteen or sixteen years. The plaintiff had some property of her own in the Cont..
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NLR - Vol.24-P249
NLR - Vol.24, Page No - 249 Present : Bertram C.J. 1922. NANDUWA v. PUNCHIRALA et al. 111-C. R. Panwila, 5,101. Kandyan law-Intestate succession-Person dying leaving children by two or more beds. Where a person dies intestate, leaving issue by two or more beds, the estate is divided among children per stripes and not per capita. IN this case the plaintiff sued the defendant for possession of the western half share of the field called Uduporowekumbura of 5 lahas in paddy sowing extent by inheritance through his full-brother Puncha- The defendants filed answer stating that the second defendant as a half-sister of the plaintiff was entitled to half of the field- At the trial the plaintiff admitted that the second defendant was the daughter of his mother Kirie by her second husband. On this admission the learned Commissioner of Requests declared the second defendant entitled to half the share of kirie's estate. Cont..
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NLR - Vol.24-P257
NLR - Vol.24, Page No - 257 Present : Schneider and Garvin JJ. 1922 SENEVIRATNE v. HALANGODA et al. 228--D. C. Kandy, 27,718. Kandyan law-Diga marriage-Wife dying issueless-Husband does not acquire any portion of wife's landed property acquired before marriage-Wife dying leaving children-Husband's rights-Binna widower excluded from, rights to landed estate of deceased wife. Where a Kandyan wife married in diga dies issueless, the husband does not inherit any portion of the wife's landed property acquired before marriage. " Inherited property reverts to the source from which it was inherited where there is no issue. " When a woman married in diga dies leaving issue, her husband takes a life interest in her landed property, which on his death will go to her children, or, if they have all died without issue, to their next of kin in their mother's family. In the above case if there be no issue, her husband Cont..
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NLR - Vol.25-P207
NLR - Vol.25, Page No - 207 Present: Jayewardene A.J. 1923, MENIKA v. BANDA. 132-C. R. Badulla, 3,052. Donation by Kandyan to his wife subject to condition that after her death property was to go to her lawful heirs-Wife dying childless- Husband entitled to property-Fidei commissum. A Kandyan donated a land to his wife subject to the condition that the donee shall not have the right to sell or alienate the same, but that on her death it shall devolve on her lawful heirs. The -wife died childless,. Held, that by virtue of the deed of gift the property donated became the acquired property Of the wife, and as the husband was the only lawful heir to her acquired property, on the wife dying childless the wife's sister was not entitled to the property. " The deed of gift, although it creates a fidei commissum, is valid under the Kandyan law. Although Cont..
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NLR - Vol.25-P254
NLR - Vol.25, Page No - 254 1928. Present: Jayewardene A.J. RAN MENIKA v. MUDALIHAMY. 525-P. C. Kegalla, 32,505. Appeal-Maintenance Ordinance-Time limit. Appeals in cases under the Maintenance Ordinance must be brought within a reasonable time. THE facts appear from the judgment. Schokman, for appellant.-The appellant was willing to take back his wife. She gives no reason for refusing to live with him. [JAYEWARDENE A.J. referred to the fact that the order was made in December, 1921.] There is no time limit for the appeal in a case of this kind (see Fernando v. Fernando [1 (1921) 23 N.L. R. 31.] ). Counsel also referred to 240-P. C. Kegalla, 22,493, where Schneider J. set aside an Order made over eighteen months ago. Cont..
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NLR - Vol.25-P 6
NLR - Vol.25, Page No - 6 1923. Present: Schneider J. and Jayewardene A.J. MENIKA v. MENIKA et al. 356-D. C. Kurunegala, 8,677. Kandyan law-Right of illegitimate children to inherit from their mother- . Action to partition twenty-seven lands-Plaint allotting shares to one defendant only in seven lands-Misjoinder of parties and causes of action-Deed of gift-Acceptance. The illegitimate offspring of parents of the same social status succeed to the inherited or paraveni property of the mother. In a partition action the plaintiff sought to partition twenty-seven lands, but allotted to second defendant a share in only seven of them. Held, that there was a misjoinder of causes of action and of parties. Cont..
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NLR - Vol.26- P113
NLR - Vol.26, Page No - 113 Present: Bertram C.J. and Schneider J. SILVA v. MISSINONA 438-D. C. Galle, 20,352. Divorce-What constitutes malicious desertion ?-When decree should be entered ?-Interval between decree nisi and decree absolute-Civil Procedure Code. Desertion to be a ground for divorce must be malicious, that is to say, it must be a deliberate and unconscientious, definite, and final repudiation of the obligations of the marriage state. It must be sine animo reverlendi. Divorce should only be granted if the desertion complained of was a repeated desertion, and the offending spouse has contumaciously refused to return to married life. Voet observes that even after judgment for desertion and separation, attempts should be made to bring about concord to the full extent to which this is possible. " Our procedure gives opportunity for the application of the same principle through the fact that every decree for divorce is, in the first instance, a decree nisi. The period of three months before it is made absolute is only a minimum period, and in cases of malicious desertion this Cont..
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NLR-Vol.26-P 287
NLR - Vol.26, Page No - 287 Present. - Jayewardene A. J. JOSLIN NONA v. SILVA. 334-P. C. Balapitiya, 44,379. Maintenance-Order to hand over the child to father-Compliance with order by wife-Appeal-Order illegal-Wife directed to apply for writ of habeas corpus. The Magistrate in a maintenance case ordered the wife to hand over the child to the father. The mother obeyed the order and appealed. Held, that the order was illegal; but as the child was already in the custody of the father, the mother was directed to apply for a writ of habeas corpus. THE facts are set out in the judgment. No appearance for appellant. Amarasekere, for respondent. Cont..
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NLR - Vol.26-P298
NLR - Vol.26, Page No - 298 Present: Bertram C.J. and Garvin J. HAPU v. ESANDA. 136-D. C. Kurunegala, 1,724. Kandyan law-Widow's right to acquired property-Paraveni property inconsiderable-Children by two beds-Rights of issue by the first bed-Widow's equitable claim. Where a Kandyan who was possessed of paraveni property, which was negligible, and of considerable acquired property, died leaving as his heirs a widow and children and also issue by a previous marriage,- Held, that the issue of the first bed became entitled to a half share of the entire property, both paraveni and acquired, subject to equitable rights on the part of the widow and her children. Cont..
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NLR - Vol.26- P330
NLR - Vol.26, Page No - 330 Present: Bertram C. J. and Jayewardene A. J. THE KING v. MISKIN UMMA et al. 4-D. C. (Grim.) Kegalla, 2,354. Muslim law-Divorce by wife-Judicial decree-Civil Procedure Cods, Chapter XLII. Under the Muslim law a wife is only entitled to a divorce if her husband effects the divorce himself, or the divorce is granted by a decree of Court. In Ceylon a District Court is the competent authority for granting such a divorce. As Chapter XLII. of the Civil Procedure Code floes not apply to Muslims, such an action for divorce must be governed by the general rules of civil procedure. Per Bertram C.J.-The Code of 1806 is not exhaustive of the Muslim law applicable to Ceylon. It has to be read in the light to the general principles of that jurisprudence THIS case was reserved by the District Judge of Kegalle for the consideration of the Supreme Court under section 358 of the Criminal Procedure Code upon a question of law arising from a charge under 362 (ft) of the Penal Code. The accused were Muslims, and the first accused, who is the daughter of the second accused, was charged with marrying a second time during the lifetime of her husband, and the second accused was charged with abetment of the offence. They were convicted, and sentenced to Cont..
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NLR-Vol.26-P429
NLR - Vol.26, Page No - 429 Present: Bertram C. J. and Schneider J. PINCHOHAMY v. AKORIS APPU. 23-P. C. Matara, 22, 861. Maintenance-Competency of Court to award costs-Ordinance No. 19 of 1889, s. 9. A Court has no power to award costs in maintenance cases. THIS was a reference to the Supreme Court by the Police Magistrate of Matara under section 353 of the Criminal Procedure Code. The question put by the learned Police Magistrate arose in a maintenance case and was as follows: "Can a respondent be committed to jail for non-payment of the applicant's costs in the same manner that he can be committed for non-payment of arrears of maintenance ?" J. Joseph, for the appellant. Cont..
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NLR-Vol.26-P438
NLR - Vol.26, Page No - 438 [In Revision.] Present: Sampayo J. EBERT v. EBERT. P. C. Habitant. -57, 114. Maintenance-Husband living in adultery-Change of conduct-Application to revise order for maintenance-Ordinance] No. 19 of 1889 s. 9. Where a Court has once granted maintenance to a wife on the ground that her husband is living in adultery, it has no authority to revise such order under section 6 of the Maintenance Ordinance, on the ground that the husband has ceased to live in adultery. APPLICATION to revise proceedings before the Police Magistrate of Kalutara. The petitioner sued her husband, the respondent for maintenance for herself and her child on December 3, 1920, whereupon the respondent offered to maintain her, if she would live with him. She refused to do so. on the Cont..
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NLR-Vol.27-P282
NLR - Vol.27, Page No - 282 Present: Jayewardene A.J. BANDARA MENIKA v. DINGIRI BANDA. 775-P. C. Kandy, 15,917. Maintenance -Corroboration of Mother's evidence - Circumstantial evidence. In an application for maintenance the corroboration of the mother's evidence may be supplied by circumstantial evidence. Where the applicant produced a document left in her possession, which was identified as belonging to the respondent,- Held, that the production of the document amounted to a sufficient corroboration of her evidence. APPEAL from an order of the Police Magistrate of Kandy dismissing an application for maintenance in respect of two illegitimate children. The Magistrate, while believing the case to be a true one, dismissed the application on the ground that the mother's testimony was not corroborated in Cont..
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NLR - Vol.27-P 361
NLR - Vol.27, Page No - 361 Present: Schneider J. and Jayewardene A.J. APPUHAMY v. GAMARALA. 78-D. C. Kurunegala, 9,606. Kandyan law-Rights of inheritance-Contest between binna father and binna daughter of propositus. Where under the Kandyan law, a woman, the issue of a binna marriage, died intestate leaving her surviving her father, and her binna husband who was the great great-grandson of a great-granduncle of the deceased. Held, that the father was the heir to her estate. The rule stated in Sawers, that the father is not the heir of the property of his children born in a binna marriage, which they have acquired through their mother-but that the maternal uncles or next of kin on the mother's side are the heirs to such property-should be read with the limitation Cont..
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NLR - Vol.27- P396
NLR - Vol.27, Page No - 396 [PRIVY COUNCIL.] Present: Viscount Haldane, Lord Blanesburgh, and Lord Darling. ELIATAMBY v. ELIATAMBY et, al. 260-D. C. Colombo, 5,083. Divorce-Evidence of adultery-Undelivered letters from wife-Evidence against co-respondent-Evidence Ordinance, No. 14 of 1895 s. 9, In an action by a husband for divorce, letters written by the wife to the co-respondent but not delivered to him, are not admissible against the co-respondent. The fact that the co-respondent's Counsel has based questions in cross-examination upon the contents of the letters, which had been properly admitted against the wife, does not make the Cont..
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NLR - Vol.27-P 433
NLR - Vol.27, Page No - 433 Present: Dalton J. and Jayewardene A. J. KANDAPPA v. CHARLES APPU et al. 302-D.C. Kegalla, 6,652. Kandyan law-Dowry deed-Valuable consideration-Revocability. Under the Kandyan law a deed of gift given by parents in pursuance of a promise before marriage, as dowry, before or at the time of marriage or even after marriage is one for valuable consideration, and is irrevocable. In such a case the donees are not bound to prove that the deed operated as an inducement to contract the marriage. Ram Menika v. Banda Lekam1[1 15N.L.R. 407.]- considered. PLAINTIFF sued first defendant, his son-in-law, for the declaration of title to a land on the Cont..
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NLR - Vol.27-P 449
NLR - Vol.27, Page No - 449 Present: Dalton J. and Jayewardene A. J. UKKU BANDA v. PAULIS SINGHO et al. 282-D. C. Kegalla, 6,818. Kandyan law-A gift absolute and irrevocable-Revocability. Where a Kandyan deed of gift was expressed in the following terms : " I, Ukku Banda, in consideration of the love and affection which I have and bear unto Lokuhamy, do hereby give, grant, assign, transfer, set over, and assure unto the said Lokuhamy, her heirs, executors, administrators, and assigns as a gift absolute and irrevocable .... to have and to hold the said shares of the said premises hereby conveyed or intended so to be unto the said Lokuhamy, her heirs, executors, administrators, and assigns absolutely for ever,"- Held, that the deed was irrevocable. PLAINTITFF brought the present action for a declaration of title to a land which he had in 1905 by Cont..
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NLR-Vol.27-P481
NLR - Vol.27, Page No - 481 Present: Jayewardene A.J. JUSTINA HAMY v. GUNASEKARA. 591-P. C. Avissawella, 40,751. Maintenance-Evidence of opportunity for intimacy--Corroboration of mother's evidence-Ordinance No. 19 of 1889, a. 7. Evidence of mere opportunity for intimacy is not sufficient corroboration of the mother's evidence in terms of section 7 of the Maintenance Ordinance. Burbury v. Johnson1[1 (1917) 1 K. B. 16.] followed. APPEAL from an order for maintenance made by the Police Magistrate of Avissawella. The facts appear from the judgment. H. V. Perera (with him Sri Nissanka), for appellant. Cont..
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NLR - Vol.27-P52
NLR - Vol.27, Page No - 52 Present: Ennis A.C.J. and Dalton J. PEIRIS v. KIRI BANDA. 82-D. C. Kandy, 31,963. Kandyan law-Sale of property by Kandyan woman before marriage -Subsequent marriage in diga- Forfeiture of rights. Where a Kandyan woman, after her father's death, alienated property which passed to her by inheritance and then married out in diga. Held, that such marriage in diga did not deprive the purchaser for valuable consideration of his rights to the property sold. THIS was a partition action instituted by the plaintiff, appellant, who claimed a share of the land on a transfer to him by one Punchi Menika. Punchi Menika was a daughter of Ukku Banda, admittedly the original owner of the land. At the time of the transfer by her, her father, Ukku Banda, was Cont..
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NLR - Vol.27-P8
NLR - Vol.27, Page No - 8 Present: De Sampayo and Schneider JJ. DHARMALINGAM v. KUMARIHAMY et al. 406-D. C. Kurunegala, 9,114. Kandyan law-Deed of gift-Right to deal as to will and pleasure-Promise not to raise a dispute- Revocability. Where a Kandyan deed of gift contained a clause, which gave the donee the right to deal with the property gifted as " to will and pleasure," coupled with a promise not to " raise or utter any dispute whatever," Held, that the gift was revocable. THE plaintiff sued, the defendants in ejectment from the land called Gamagehena claiming title thereto as purchaser at a sale in execution in April, 1922, against the heirs of Dingiri Kumarihamy, who, according to the plaintiff, was the original owner by virtue of a Crown grant in Cont..
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NLR-Vol.27-P 93
NLR - Vol.27, Page No - 93 Present: Bertram C.J. PODIHAMY v. WICKREMASINGHE. 579-P. O. Matara, 31,546. Maintenance-Application by mother-Illegitimate children-Decisory oath. A case in which a mother applied for maintenance on behalf of her illegitimate children may be put to the test of a decisory oath, provided the Magistrate is satisfied that it is in the interests of the children that it should be done. Sayalee v. Setuwa1[1 (1923) 25 N. L, R. 216.] explained. APPEAL from an order of the Police Magistrate of Matara, dismissing an application for maintenance. Soertsz, for applicant, appellant. Cont..
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NLR - Vol.28-P190
NLR - Vol.28, Page No - 190 1926 Present: Schneider A. C. J. and Maartensz A. J. CAROLIS SILVA v. KIRI BANDA et al. 113-D. C. Kurunegala, 8,745. Kandyan law-Diga marriage-Independent estate of each parent- Right of daughter, married in diga, to inherit mother's property. Where Kandyan parents have separate estates, a daughter married in diga is entitled to succeed to her mother's property equally with her brother.. APPEAL from a judgment of the District Judge of Kurunegala. Soertsz, for plaintiff, appellant, H. V. Perera, for defendant, respondents. Cont..
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NLR-Vol.28-P199
NLR - Vol.28, Page No - 199 1926 Present: Jayewardene A. J. SANCHI v. ALLISA. 93-P. C. Kegalla, 5,272. Kandyan Marriages Ordinance, No. S of 1870, s. 23-Dissolution of marriaye-Legitimacy of child- Subsequent application for maintenance-Ordinance No. 19 of 1889. Where in proceedings before an Assistant Provincial Registrar for the dissolution of a Kandyan marriage no order for the maintenance of a child of the marriage was made. Held, that the proceedings before the Registrar was no bar to an application under the Maintenance Ordinance. Navaratnam, for defendant, appellant. February 22, 1926. JAYEWARDENE A. J.- Cont..
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NLR - Vol.28-P 203
NLR - Vol.28, Page No - 203 1926 Present: Schneider A .C. J. and Lyall Grant J. DINGIRIYA v. UKKU AMMA et al 22-D. C. Kurunegala, 9,930 Kandyan law-Properly inherited from mother-Intestate succession thereto. A Kandyan died intestate leaving property, which he had inherited from his mother who was married in binna. The plaintiff claimed title to the intestate's property on a deed of transfer from the maternal granduncle and the cousin of the deceased, while the defendants relied on a deed of sale from the binna married father. Held, that the maternal granduncle of the intestate being the lawful heir, the title derived from him prevailed. APPEAL from a judgment of the District Judge of Kurunegala. Cont..
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NLR - Vol.28-P 266
NLR - Vol.28, Page No - 266 1926 Present: Dalton J. and Maartensz A .J. MENIKHAMY v. SUDDANA et al.. 238-D. C. Kurunegdla, 9,696. Kandyan law-Acquired property-Inheritance-Preferential right of brothers over sisters. Where a Kandyan died without issue leaving him surviving two brothers and two sisters. Held, that the brothers were entitled to his acquired property to the exclusion of the sisters. Dullewe v. Dullewe et al.1 followed. ACTION for declaration of title to 7/16th share of a land called Kudapelessahena, the original owner of which was one Dingira, who died leaving him surviving two sisters Saru and Tikirathi, and two brothers Suddana, 1st defendant, and Kira. By purchase the plaintiff became entitled to 7/16th of the half share of the two sisters. The 2nd defendant acquired the interest of the brother Kira. Cont..
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NLR - Vol.28-P 329
NLR - Vol.28, Page No - 329 1927 Present : Garvin and Lyall Grant JJ. GUNERATHAMY v. MANUEL APPUHAMY. 133-D. C. Kurunegala, 11,039. Kandyan law-Deed of gift of all landed property-Disinherison of heir-Clause of disinherison-Gift absolute and irrevocable. A deed of gift by a Kandyan parent of all his landed property is inoperative against his heirs unless it contains a clause of disinherison. No particular formula is necessary for disinheriting an heir so long as there appears in the deed language which discloses an intention to disinherit. Per Garvin J., Semble.?The requirement of a clause of disinherison must be limited to cases in which the donor has not expressly renounced his right of revocation nor manifested an intention that his grant was to have the effect of an absolute and irrevocable disposition. Cont..
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NLR - Vol.28- P411
NLR - Vol.28, Page No - 411 1925 Present: Schneider J. and Jayewardene A .J. JOSEPH v. ALEXANDER ELIZABETH. 185-D. C. (Inty.) Chilaw, 7,548.- Divorce- Wife, possessed of property-plaint for costs-Appeal-Security for costs. Where, in an action for divorce, the wife is possessed of property and is in a position to find the means to defend the action, the Court should not order the husband to provide for her costs. Where, in such a case, the wife appeals, she is not bound to give security for the husband's costs. APPEAL from an order of the District Judge of Chilaw. This was an action brought by the plaintiff against his wife, the defendant, for dissolution of their marriage. The defendant made an application to the District Court that the plaintiff be ordered to deposit a sufficient sum of money for her costs before she was called upon to file answer. Cont..
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NLR-Vol.28-P475
NLR - Vol.28, Page No - 475 1927 Present: Garvin J. SANTHANATCHY v. CHELLIAH. 760-P. C. Colombo. 9,109. Maintenance-Raising of age limit-Amending Ordinance-Retrospective effect-Ordinance No. 2 of 1889, s. 8. The amendment to section 8 of the Maintenance Ordinance which raises to sixteen the age limit, up to which an order for the maintenance of a child extends, applies to orders in force at the time at which he amending Ordinance came into operation. APPEAL from an order of the Police Magistrate of Colombo. H. V. Perera, for appellant. James Joseph, for respondent. Cont..
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NLR-Vol.29-P161
NLR - Vol.29, Page No - 161 1927 Present: Grant J. and Maartensz A.J. NONA v. MANUEL et al. 63-D. C. (Inty.) Galle, 24,101. Married Women's Property Ordinance-Action for declaration of title to land-Married after the Ordinance-Land bought before-Ordinance No. 18 of 1923, ss. 4 and 5. A woman married before July 1, 1924, the date at which the Married Women's Property Ordinance, No. 18 of 1923, came into operation, sued for a declaration of title to a land bought by her before July 1, 1924, Held that she was entitled to maintain the action without joining her husband. PLAINTIFF, a woman married before the Married Women's Property Ordinance, 1923, came into operation, sued the defendants without the assistance of her husband for declaration of title to a land to which she claimed title under a deed executed in her favour on June 11, 1924. The cause of Cont..
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NLR-Vol.29-P324
NLR - Vol.29, Page No - 324 1928 Present: Dalton J. HERFT v. HERFT. 776-P. C. Kandy, 23,913. Maintenance-Jurisdiction-Desertion-Continuity offence. A wife is entitled to apply for an order of maintenance in the Court within whose jurisdiction she is living in a deserted condition, although that might not be the place where she was originally deserted. APPEAL from an order of the Police Magistrate of Kandy. Garvin, for appellant. January 18, 1928. DALTON J.- The appellant sought to obtain from the respondent, her husband, maintenance for herself and her two children aged 16 months and 4 months, respectively, he having failed to maintain them. Cont..
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NLR - Vol.29- P378
NLR - Vol.29, Page No - 378 1926 Present : Garvin and Lyall Grant JJ. DE SILVA v. DE SILVA et al. 70-D. C. Colombo, 10,899, Divorce-Decree nisi-Appeal pending regarding settlement-Making decree absolute. A decree nisi granting a divorce may be made absolute while an order with respect to a settlement on the aggrieved party is under appeal. APPEAL from an order of the District Judge of Colombo. Drieberg, K.C. (with Bartholomeusz), for appellant. Weerasooriya, for respondent. May 18, 1926. GARVIN J- Cont..
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NLR - Vol.29-P408
NLR - Vol.29, Page No - 408 1927 Present: Schneider J. and Maartensz A.J. NAVARATNE v. KUMARIHAMY et al 174-D. C. Kegalla, 7,745. Kandyan minor--Contract to marry-Ordinance No. 3 of 1870. A contract to marry is not enforceable against a Kandyan minor. APPEAL from a judgment of the District Judge of Kegalla. H. V. Perera, for plaintiff, appellant. Hayley, K.C. (with Navaratnam) for the 1st defendant, respondent. Iyer (with Arulanandan), for 2nd defendant, respondent. Cont..
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NLR-Vol.29-P78
NLR - Vol.29, Page No - 78 1927 Present: Lyall Grant J. MALIAPPA CHETTY v. MALIAPPA. 759-P. C. Colombo, 13,368. Maintenance-Separation 6y mutual consent-Binding effect-Ordinance No. 19 of 1889, s. 5. Where an application for maintenance by a wife was resided by the husband on the ground that they were living separate,- Held, that the separation by mutual consent contemplated by section 5 of the Maintenance Ordinance must be one entered into under circumstances which would justify a judicial reparation. APPEAL from an order of the Police Magistrate of Colombo. H. H. Bartholomeusz (with Canakaratne), for appellant. Cont..
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NLR - Vol.29- P97
NLR - Vol.29, Page No - 97 1927 Garvin and Lyall Grant JJ. SENEVIRATNE v. PANISHAMY et al. 280-D. C. Galle, 22,893. Divorce-Adultery of wife-Husband himself guilty of adultery-Discretion of Court-Civil Procedure Code, s. 60.2 Where a plaintiff, who institutes proceedings for divorce from his wife, four and a half years after the adultery complained of. is himself found to have lived in adultery for four years up to the. institution of the action and also during its pendency,- Held, that the Court is justified in refusing to grant. I he plaintiff a divorce. Per GARVIN J.- He who seeks to be released from the matrimonial tie must himself be free from Cont..
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NLR-Vol.2-P 155
NLR - Vol.2, Page No - 155 APPUHAMY v. KIRIHENEYA et. al. D. C., Kandy, 8,647. Burden of proof Proof not necessary of averments not denial and in respect of which no issue is framed-Kandyan Law -Right of widow to alienate husband's property for payment of his debts -Duties and status in family of Kandyan widow- When a defendant makes an averment in his answer, and no replication is filed to meet it, it is open to the plaintiff, if he denies the averment, to have an issue framed on it, and thus put the defendant to the proof of the facts averred. If no issue in that way is nettled, parties must be hold not to have boon at issue on those facts, and no burden lies on the defendant to prove them. Under the Kandyan Law, a widow loft by the husband's death with young children was the head of the house and family until her sons grew up to manhood. On her devolved the duty of paying her husband's debts. So, where a Kandyan widow sold her deceased husband's lands to pay his debts, held., that the purchaser acquired a good title as against the husband's heir. Cont..
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NLR-Vol.2-P 92
NLR - Vol.2, Page No - 92 KIRIWANTE v. GANETIRALA, D.C., Kandy, 8,185. Kandyan Law-Diga married woman - Her right to share, equally with her brothers, in her mother's estate. Plaintiff, a Kandyan woman married in diga, claimed a share, equally with her brothers, in certain lands which belonged to her mother's estate. Plaintiff's parents had each a separate estate, and only a third share of the lands claimed had come to her mother, from, her paternal ancestors- Held that, in the uncertainty of the law on the subject and the conflicting state of the authorities, plaintiff should not be deprived of the share she claimed of her inheritance. THE facts of the case sufficiently appear in the judgment. Van Langenberg, for appellant. Dornhorst, for respondent. Cont..
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NLR - Vol.30-P 180
NLR - Vol.30, Page No - 180 Present: Fisher C -T., Garvin and Lyall Grant J J. UKKU BANDA et al. v. HEENMENIKA. 139-D. C. Nuwara Eliya, 916. Kandyan law-Widow's right of inheritance-Acquired property of deceased-Re-marriage- Forfeiture. The right which a kandyan widow has to a life interest in the acquired property of her deceased husband is generally lost by her re-marriage in diga. The circumstances, in which a re-marriage does not involve a forfeiture, indicated. Menika v. Horetala 2[3 2 S. C. R. 167.] Nila Henaya v. Dissanayaka,3[3 6 N. L. R. 214.] and Hudi v. Rangi 4[4 19 N. L. R. 260.] overruled. THIS was an action instituted by the heirs of one Punchi Banda, a Kandyan, for a declaration that Cont..
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NLR-Vol.30-P280
NLR - Vol.30, Page No - 280 Present: Drieberg J. LETCHIMAN PILLAI v. KANDIAH. 559-P. C. Jaffna, 155. Maintenance-Application based upon customary marriage-Respondent contracts registered marriage with another woman-Order staying proceedings. The appellant, alleging that she was married to the respondent, according to Tamil custom, made an application for maintenance. At the trial, it was brought to the notice of the Court that, since the proceedings were instituted, the respondent had contracted a registered marriage with another woman. The Police Magistrate then ordered the stay of proceedings pending an investigation with a view to the prosecution of the respondent for bigamy. Cont..
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NLR-Vol.30-P310
NLR - Vol.30, Page No - 310 Present: Fisher C.J. and Drieberg J. COORAY v. COORAY. 489-D. C. Colombo, 22,999. Breach of promise of marriage--Marriage settlement-Recital of agreement to marry-Valid promise-- Ordinance No. 19 of 1907, s. 21. A marriage settlement contained a .recital that a marriage between the parties had been arranged and Was shortly to be solemnized and that, in consideration of the said intended marriage,' the present plaintiff and her mother had agreed to convey to the defendant certain properties and that the transfer was to take effect after the solemnization of the marriage. The document was signed by the plaintiff and her mother, and also the defendant. Held, that there was a promise by the defendant to marry the plaintiff, within the meaning of the proviso to section 21 of Ordinance No. 19 of 1907. Cont..
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NLR-Vol.30-P351
NLR - Vol.30, Page No - 351 Present: Akbar J. KADIRAVAIL WADIVEL v. SANDANEM 44-r. C. Chilaws, 17,629 Maintenance,-Parties living together after an order for maintenance- Cancellation of order- Application for enforcement of order. A married woman obtained an order for maintenance against her husband. Thereafter the parties came before Court and had it recorded that they were living together. They separated again and the wife applied for the enforcement of the order of maintenance in her favour. Held, that there had been no cancellation of me previous order and the Court was entitled to make an order for maintenance accordingly. APPEAL from an order of the Police Magistrate of Chilaw. Cont..
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NLR - Vol.30-P435
NLR - Vol.30, Page No - 435 Present: Akbar J. TIKIRA v. TIKIRA. 43-C. R. Kandy, 4,581. Kandyan law-Deed of gift-Revocation for failure to maintain-Mother and son-Compensation for improvements. Where, under the Kandyan law, a gift was revoked because the donee, who was a child of the donor, failed to observe the condition of the gift as regards maintenance,- " Held, the donee was not entitled to compensation for improvements effected on the land donated. THE plaintiff claimed the value of improvement effected by him on a land which was gifted to him by his mother, the second defendant. Subsequently she revoked the gift on the ground that the plaintiff had failed to carry out the conditions of the gift, viz., to render assistance, and sold the land to the first defendant. At the trial the plaintiff admitted the title of the first Cont..
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NLR-Vol.30-P449
NLR - Vol.30, Page No - 449 Present: Dalton and Akbar JJ. JANE NONA v. VAN TWEST. 903-P. C. Kalutara, 28,856. Maintenance-Applicant residing in Kalutara-Respondent in Colombo- Jurisdiction. Where, in an application for maintenance on behalf of an illegitimate child born to the respondent' in Colombo, it appeared that the applicant (the mother) was residing at Kalutara with the consent of the respondent. Held, that the Police Court of Kalutara had jurisdiction to entertain the application. CASE referred by Akbar J. to a Bench of two Judges. The appellant was sued by the respondent in the Police Court of Kalutara for the maintenance of her two sons, of whom the appellant was the father. It appeared that the appellant had kept the respondent as his mistress for a period of fifteen years in Colombo. Eight months prior to the application the respondent left for Kalutara, with the Cont..
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NLR-Vol.30-P50
NLR - Vol.30, Page No - 50 Present: Garvin J. VELUPILLAI v. SANMUGAM. 278-P. C. Point Pedro, 11,940. Maintenance-Arrears of maintenance-Time limit-Ordinance No. 19 of 1889. Where an order for maintenance has been made under section 3 of the Maintenance Ordinance there is no limit either to the amount of arrears recoverable or the time within which such arrears may be recovered. APPEAL from an order of the Police Magistrate of Point Pedro directing the issue a of distress warrant for the recovery of a sum of Rs. 3,730, being arrears of maintenance payable under an order made under section 3 of the Maintenance Ordinance. The order was made on June 22, 1906, on the application of Valliamma, the wife of the appellant, and was to the effect that the husband should pay maintenance at the rate of Rs. 20 per mensem. Shortly after the order, the appellant left for the Straits where he remained till the end of 1927. The Police Magistrate allowed the application Cont..
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NLR-Vol.31-P113
NLR - Vol.31, Page No - 113 Present: Akbar J. 1929. FERNANDO v. FERNANDO. 168-P. C. Colombo, 13,948. Maintenance-Action by husband-Inability to maintain-Married Women's Property Ordinance, No. 18 of 1923, s. 26. Where the husband of a married woman was unable to secure employment owing to the suspension of his certificate of conformity as an insolvent,- Held, that he was not entitled to apply for maintenance from his wife under section 26 of the Married Women's Property Ordinance. APPEAL from an order of the Police Magistrate of Colombo. Rajapakse, for appellant. Cont..
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NLR-Vol.31-P230
NLR - Vol.31, Page No - 230 1929. Present: Dalton J. PATHUMMA v. 1DROOS. 214-C. R. Colombo, 49,993. Muslim law-Divorce of wife by husband-Recovery of " maggar " and " kaikuli "-Maintenance during " iddat. " Under the Muslim law a wife who is divorced by her husband is entitled to recover " maggar " and " kaikuli. " " Maggar" is dowry money which is paid by the husband to the wife and which remains in the husband's hands. " Kaikuli " is money paid by the parents of the bride to the husband and held in trust by the latter for the benefit of the wife. Cont..
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NLR - Vol.31-P28
NLR - Vol.31, Page No - 28 1929 Present: Lyall Grant and Drieberg JJ. LEBBE v. BANDA. 143-D. C. Kandy, 34,887. Kandyan law-Property gifted by a Kandyan to his grandson- Devolution to aunt-Rule of succession- Nature of property. A Kandyan gifted property to his grandson A, who died leaving an only child as his heir. Upon the death of the latter the property devolved upon B, sister of A. Held (on a question of inheritance arising upon the death of B without issue), that the property in the hands of B was acquired and not paraveni, and therefore devolved on her binna father to the exclusion of her half-brother. THIS was an action for declaration of title to land. Kiribindu and Sirimalee were the daughters of one Sallelu and her binna husband Rankira; Kirisanda was the son of Sallelu by her first husband. Cont..
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NLR-Vol.33-P165
NLR - Vol.33, Page No - 165 1931 Present: Garvin S.P.J. DONA CARLINA v. JAYAKODDY. 293-P. C. Colombo, 14,408. Maintenance-Corroboration of mother's evidence-Former statement-Cessation of sexual relations- Maintenance Ordinance, No. 19 of 1889, s. 3-Evidence Ordinance, s. 167. A statement made by the mother of an illegitimate child as regards its paternity, after the cessation of sexual relations with the alleged father, is not corroboration of her evidence. The conduct of the mother with reference to scenes created in the presence of the respondent, after sexual relations had ceased, does not amount to corroboration of her evidence. APPEAL from an order of the Police Magistrate of Colombo. H. V. Perera, for appellant. E. G. P. Jayatilleke (with him Chelvanayagam), for respondent. November 9, 1931. GARVIN S.P.J.- Cont..
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NLR - Vol.33- P198
NLR - Vol.33, Page No - 198 1932 Present: Garvin S.P.J. and Maartensz A.J. ANNAKEDDE v. MYAPPEN. 147-D. C. (Inty.) Nuwara, Eliya, 1,211. Divorce-Action by wife-Husband claims divorce on ground of adultery of wife-Adulterer should be made a party-Ceylon domicil. Where in an action for dissolution of marriage brought by a wife on the ground of malicious desertion by the husband, the latter claimed a divorce on the ground of the adultery of the wife, the alleged adulterer should be made a party to the proceedings. The nature of evidence required to establish a Ceylon domicil considered. Cont..
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NLR-Vol.33-P198
NLR - Vol.33, Page No - 198 1932 Present: Garvin S.P.J. and Maartensz A.J. ANNAKEDDE v. MYAPPEN. 147-D. C. (Inty.) Nuwara, Eliya, 1,211. Divorce-Action by wife-Husband claims divorce on ground of adultery of wife-Adulterer should be made a party-Ceylon domicil. Where in an action for dissolution of marriage brought by a wife on the ground of malicious desertion by the husband, the latter claimed a divorce on the ground of the adultery of the wife, the alleged adulterer should be made a party to the proceedings. The nature of evidence required to establish a Ceylon domicil considered. APPEAL from an order of the District Judge of Nuwara Eliya. The facts appear from the judgment. H. V. Perera, for the plaintiff, appellant. Cont..
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NLR-Vol.33-P227
NLR - Vol.33, Page No - 227 1931 Present: Akbar J. and Maartensz A.J. PUNCHI NONA v. CHARLES APPUHAMY. 44-D. C. (Inty.) Negombo, 2,772. Marriage-Presumption arising from habit and repute-Evidence by alleged wife-Rebuttal. A, who was married to T, lived with P, as her associated husband After T's death, A and P continued to live as husband and wife. A, who gave evidence, did not state that a customary marriage had taken place between P and herself after T's death. Held, that, under the circumstances, the presumption of marriage by habit and repute did not arise. APPEAL from a judgment of the District Judge of Negombo. M. T. de S. Amarasekera, for appellant. Cont..
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NLR-Vol.33-P241
NLR - Vol.33, Page No - 241 1931 Present : Macdonell C.J. GUNESEKERE v. AHAMATH. 532-P. C. Colombo, 12,103. Maintenance-Order in favour of child on application of the mother-Death of mother-Application renewed by uncle-Order of arrears-Child without means of support-Ordinance No. 19 of 1889, s. 3. An order for "maintenance was passed against the respondent in favour of a child on the application of the mother. After the death of the mother, the order was renewed on the application of the present applicant, the mother's brother, who had maintained the child in the interval. Held (on an application for payment of arrears of maintenance) that the child cannot be prevented from obtaining an order for maintenance from its father or from obtaining arrears under a subsisting order, merely because it was maintained by the charity of a third person. APPEAL from an order for maintenance made by the Police Magistrate of Colombo. Cont..
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NLR-Vol.33-P383
NLR - Vol.33, Page No - 383 1931 Present: Macdonell C.J. RODRIGO v. RODRIGO. 335-P. C. Colombo, 14,564. Maintenance-Cost of education-Recoverable under Maintenance Ordinance, No. 19 of 1889, s. 3. Maintenance contemplated in section 3 of the Maintenance Ordinance includes the cost of education. APPEAL from an order of the Police Magistrate of Colombo. F. A. Hayley, K.C. (with him Navaratnam), for appellant. R. L. Pereira, K.C. (with him Rajapakse), for respondent. November 9, 1931. MACDONELL C.J.- In this appeal I reserved judgment on the question whether the word "maintenance" in. section 3 of Ordinance No. 19 of 1889 was wide enough to cover education. Here it had been argued that in making the order of maintenance under that section the Magistrate had no power in fixing the amount to be paid monthly, to take into account the educational needs of the children to be affected by the order; as they grew older their schooling would cost more, but this increased cost in their Cont..
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NLR-Vol.33-P90
NLR - Vol.33, Page No - 90 1931 Present: Macdonell C.J. SILVA v. SENERATNE. 447-P. C. Matara, 50,091. Maintenance-Claim by wife-Sufficient means to support herself-No right to maintenance. A married woman, who is possessed of sufficient means for her support, is not entitled to claim maintenance from her husband under the Maintenance Ordinance. APPEAL from an order of the Police Magistrate of Matara. R. L. Bartholomeusz, for defendant, appellant. Wijewickreme, for applicant, respondent. August 6, 1931. MACDONELL C.J.- Cont..
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NLR - Vol.34-P 379
NLR - Vol.34, Page No - 379 1932 Present : Dalton J. RANHAMI et al. v. KIRIHAMI et al. 43-C. R. Kurunegala, 5,705. Kandyan Law-Binna-married daughter-Leaving mulgedera after father's death-No forfeiture. Under the Kandyan Law a binna-married daughter does not forfeit her share in the paternal inheritance by leaving the mulgedera after her father's death. APPEAL from a judgment of the Commissioner of Requests, Kurune-gala. F- J. Soertsz, for plaintiffs, appellants. September 23, 1932. DALTON J.- The plaintiffs brought this action for a declaration of title to an undivided § part of two lands Cont..
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NLR - Vol.34- P5
NLR - Vol.34, Page No - 5 1932 Present : Garvin S.P.J. and Maartensz A.J. GOONEWARDENE v. WICKREMASINGHE 154-D. C. (Inty.) Galle, 29,292 Divorce-Evidence of malicious desertion-Intention to repudiate marriage state-Sufficiency of proof. In an action for divorce on the ground of malicious desertion, evidence of desertion must be of such a character as would justify the inference that the spouse, who is alleged to have deserted the other, did so deliberately and with the intention of repudiating the marriage tie. APPEAL from a judgment of the District Judge of Galle. Rajapakse, for defendant, appellant. H. V. Perera, for plaintiff, respondent. February 5, 1932. GARVIN S.P.J.- Cont..
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NLR-Vol.34-P5
NLR - Vol.34, Page No - 5 1932 Present : Garvin S.P.J. and Maartensz A.J. GOONEWARDENE v. WICKREMASINGHE 154-D. C. (Inty.) Galle, 29,292 Divorce-Evidence of malicious desertion-Intention to repudiate marriage state-Sufficiency of proof. In an action for divorce on the ground of malicious desertion, evidence of desertion must be of such a character as would justify the inference that the spouse, who is alleged to have deserted the other, did so deliberately and with the intention of repudiating the marriage tie. APPEAL from a judgment of the District Judge of Galle. Rajapakse, for defendant, appellant. H. V. Perera, for plaintiff, respondent. Cont..
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NLR-Vol.34-P56
NLR - Vol.34, Page No - 356 1932 Present : Jayewardene A.J. JAMALDEEN v. HAJIRA UMMA. 179-C. R. Gampola, 10,119. Muslim Law-Wife divorced by husband-Action by husband to recover thali - Jurisdiction of Court of Requests. Under the Muslim Law a husband who has divorced his wife is not entitled to recover the thali given by him to her at marriage. In such a case the Court of Requests has jurisdiction to determine whether there has been a valid divorce between the parties. APPEAL from a judgment of the Commissioner of Requests, Gampola. E. Navaratnam, for defendant-appellant. Cont..
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NLR-Vol.34-P80
NLR - Vol.34, Page No - 80(2) 1931 Present: Garvin S.P.J. MOHAMADU KANDU v. APPUHAMY. 111 - C. R. Anuradhapura, 17.323. Damage-Cattle destroyed by cattle shooter-No written authority from Government Agent-Liability. A cattle shooter, who caused damage, in the bona fide belief of the sufficiency of the written authority he holds-when in fact the authority was bad-is not exempt from civil liability. APPEAL from a judgment of the Commissioner of Requests, Anuradhapura. C. V. Ranawake, for plaintiff, appellant. H. H. Basnayake, C.C., for defendants, respondents. October 21, 1931. GARVIN S.P.J.- Cont..
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NLR - Vol.34-P89
NLR - Vol.34, Page No - 89 1932 Present: Garvin S.P.J. and Jayewardene A.J. CHELLIAH et al. v. KUTTAPITIYE TEA AND RUBBER CO. 178-D. C. Ratnapura, 4,774. Kandyan law-Marriage registered in diga-Wife acquiring binna rights- Character of marriage-Rights of husband-Property of deceased child- Inheritance. Where a Kandyan woman whose marriage was registered as diga avoids a forfeiture of her rights in the paternal inheritance by preserving or subsequently acquiring binna rights, it does not alter the character of the marriage itself. In such a case, the diga husband is heir to his child in respect of land devolving on her from the mother, who had inherited the property in virtue of the retention of her binna rights. ACTION for declaration of title to a 1/2 share of a certain panguwa originally owned, by one Appuhamy Lekama who died in 1874. He was survived by a son, Rataranhamy, two diga married daughters Cont..
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NLR - Vol.35- P174
NLR - Vol.35, Page No - 174 1933 Present: Dalton A.C.J. and Drieberg J. RAMALINGAM v. RAMALINGAM et al. 121-D. C. Colombo, 35,720. Divorce-When desertion is malicious-Hope of reconciliation-Claim in reconvention-Costs. Where a woman leaves her husband finally against his will and without legal justification, her desertion would in law be malicious. In Roman-Dutch law no divorce should be granted on the ground of malicious desertion whilst there remained any hope of reconciliation. Where a defendant made a claim in reconvention which was abandoned but which necessitated enhanced stamp duty on the plaint and other documents filed by the plaintiff and the action was dismissed as Cont..
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NLR-Vol.36-P196
NLR - Vol.36, Page No - 196 1933 Present: Drieberg J. and Maartensz A.J. MAJEEDA v. PARAMANAYAGAM. APPLICATION FOR restitutio in integrum. D. C. Colombo, 50,571. Restitutio in integrum-Muslim married woman-Minor-Mortgage bond executed with husband-Relief -from contract-Proof of damage. Where a Muslim woman married and under the age of twenty-one entered into a contract with the assistance of her husband,- Held, that relief from the contract must be sought by way of restitution. To obtain such relief there must be proof of damage, loss, or prejudice. THIS was an application for restitutio in integrum. N. E. Weerasooria (with him Nadarajah), for petitioner. Cont..
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NLR-Vol.36-P295
NLR - Vol.36, Page No - 295 1934 Present: Maartensz J SIVAPAKIAM v. SIVAPAKIAM 599-P. C. Colombo, 15,259 Maintenance-Person having sufficient means-Meaning of expression- Maintenance Ordinance, No. 19 of 1889, s. 3. The expression " having sufficient means " in section 3 of the Maintenance Ordinance denotes a person who has a source of income or who has wilfully abstained from earning an income. APPEAL from an order of the Police Magistrate of Colombo. H. V. Perera (with him Nadesan), for appellant. L. A. Rajapakse (with him A. Wijeyeratne), for applicant, respondent. Cont..
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NLR - Vol.37- P372
NLR - Vol.37, Page No - 372 1935 Present : Dalton S.P.J. and Maartensz J. ASERAPPA v. ASERAPPA. 8-D. C, Colombo, 52,518. Divorce-Decree for alimony pendente lite-Period during which it is payable -Decree made absolute- Does not relate back-Application to make decree absolute-Civil Procedure Code, ss. 605 and 614. In an action for divorce, the liability to pay alimony pendente lite continues until the decree is made absolute. The decree absolute does not relate back to the date on which, according to the provisions of section 605 of the Civil Procedure Code, the decree should have been made absolute. Per DALTON J.-The party who is interested should move the Court to have the decree made absolute. Cont..
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NLR-Vol.37-P91
NLR - Vol.37, Page No - 91 1935 Present : Akbar J. and Koch A.J. DEUTROM v. DEUTROM et. al. 63-D. C. Colombo, 54,544. Paulian action-Maintenance order in favour of wife-Distress warrant in execution against the husband-Fraudulent transfer of mortgage bond by the husband to avoid payment-Paulian action by wife- No cause of action. Where the plaintiff instituted a Paulian action to set aside the assignment of two mortgage bonds by the first defendant in favour of the second defendant in order to levy execution against them under a distress warrant issued against the first defendant (plaintiff's husband) under the Maintenance Ordinance,- Held, that the plaintiff had no cause of action as the assets represented by the mortgage bonds could not have been levied in execution of the order for maintenance in her favour. Cont..
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NLR-Vol.38-P261
NLR - Vol.38, Page No - 261 1937 Present : Soertsz J. and Fernando A.J. PHILIP v. WETTASINGHE. 316-D. C. Avissawella, 1,959. Breach of promise of marriage-Undertaking not to marry anyone else-No promise to marry-Ordinance No. 19 of 1907, s. 21. Where the defendant wrote a letter in the following terms to the plaintiff : "If ever I marry anybody, I assure you that it will be none other than yourself. If, by any mischance, I fail to do so, I will remain single as I am."- Held, that the words used did not constitute a valid promise to marry. Beling v. Vethecan (1 A. C. R. 1) and Jayasinghe v. Perera (9 N. L. R. 62) distinguished. THIS was an action brought by the plaintiff to recover a sum of Rs. 1,000 as damages for breach of Cont..
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NLR-Vol.38-P 375
NLR - Vol.38, Page No - 375 1936 Present : Abrahams C.J. WIJEYSINGHE v. JOSI NONA 528-P. C. Matara, 70,701. Maintenance-Application for cancellation of order-Proof that the wife is living in adultery at the time-Ordinance No. 19 of 1889, s. 6. Cancellation of an order for maintenance can be made under section 6 of the Maintenance Ordinance only on proof that at the time of the application for cancellation the wife is living in adultery with some person or is living a life of prostitution. Isabelahamy v. Perera (3 C. W. R. 294) followed. APPEAL from an order of the Police Magistrate of Matara. L. A. Rajapakse, for defendant, appellant. Cont..
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NLR-Vol.38-P 425
NLR - Vol.38, Page No - 425 1937 Present : Abrahams CJ. and Maartensz J. WIJEYSURIYA v. SILVA. 563-P. C. Tangalla, 27,567. Maintenance-Arrears in respect of several months-One warrant in respect of more than one breach- Imprisonment for six months under one warrant -Ordinance No. 19 of 1889, s. 9. Under section 9 of the Maintenance Ordinance a Magistrate has power to issue one warrant in respect of more than one breach of an order for the payment of maintenance and to include in it a sentence of one month's imprisonment for each breach. CASE referred by Maartensz J. to a Bench of two Judges. The question referred was whether it was competent to a Police Magistrate under section 9 of the Maintenance Ordinance to sentence the respondent who was in arrears in respect of an order of maintenance for several months to a term of six months' imprisonment under one warrant. Cont..
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NLR - Vol.38- P63
NLR - Vol.38, Page No - 63 [IN THE PRIVY COUNCIL] 1936 Present : Lord Atkin, Lord Maugham, and Sir Sidney Rowlatt. HULME-KING v. DE SILVA. Husband and wife-Action for divorce-Decree nisi in favour of husband with order for settlement out of wife's property-Appeal from decree- Settlement pending appeal and before decree nisi was made absolute Validity of agreement-Married Women's Property Ordinance, No. 18 of 1923, s. 5-Adjustment of decree-Civil Procedure Code, s. 349. The plaintiff-respondent obtained a decree nisi for divorce against his wife the defendant- appellant on December 15, 1924. By that decree the plaintiff further obtained a direction that a settlement be made out of the property of the defendant to secure to him a monthly income of Rs. 1,000; and also a sum of Rs. 10,000 damages against the second defendant, the co-respondent. From Cont..
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NLR-Vol.39-P219
NLR - Vol.39, Page No - 219 1937 Present: Maartensz J. SANTIAGO v SANTIAGO 657-P. C. Jaffna, 8,062. Maintenance-Resumption of cohabitation-Order for maintenance not cancelled-Wife's claim for arrears of maintenance. An order for maintenance is not cancelled by the resumption of cohabitation, and a wife is entitled to recover arrears of maintenance for a period during which the husband lived with her. Kadiravail Wadivel v. Sandanam (30 N. L. R. 351) followed. AN appeal from an order of the Police Magistrate of Jaffna. The appellant was ordered to pay the respondent, his wife, maintenance at the rate of Rs. 30 per month. The appellant subsequently returned to his wife and lived with her from February to November, 1936. The wife claimed arrears of maintenance for the months of February, March, April Cont..
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NLR - Vol.39- P241
NLR - Vol.39, Page No - 241 1937 Present: Moseley J. and Fernando A J. SATHIYANATHAN v. SATHIYANATHAN. 203-D. C. Colombo, 2,414 Divorce-Marriage of party to action before decree absolute-Application to enter decree absolute nunc pro tune-Death of party-Power of Court- Civil Procedure Code, s. 60S. Where a decree nisi is entered for the dissolution of a marriage, the Court is not bound of its own motion to make the decree absolute after the expiration of the time limit. The marriage of a party to a divorce action before the decree is made absolute is invalid. An application to enter decree absolute nunc pro tunc should not be allowed where the rights of third parties are affected. Cont..
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NLR - Vol.39- P275
NLR - Vol.39, Page No - 275 1937 Present : Maartensz and Hearne JJ. KARUNANAYAKE v. KARUNANAYAKE. 36-D.C.Galle, 34107. Divorce-Amount of alimony-Determination of alimony-Dissolution of marriage-Wife's right to recover dowry-Roman-Dutch law-Matrimonial Rights and Inheritance Ordinance, s. 19. Permanent alimony granted to a wife on the dissolution of a marriage is, as a rule, larger than alimony pending the action which is fixed by section 614 of the Civil Procedure Code at a sum not less than one-fifth of the husband's average nett income for the three years preceding the date of the order. An order for the payment of permanent alimony should be made after the decree nisi dissolving the marriage is made absolute. Cont..
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NLR - Vol.39-P 377
NLR - Vol.39, Page No - 377 1937 Present : Hearne J. and Fernando A.J. NATCHIAPPA CHETTIAR v. PESONAHAMY. 279-D. C. Kegalla, 10,784. Kandyan law-Marriage of low-country Sinhalese with Kandyan woman in binna-Issue subject to Kandyan law-Death of issue intestate-Parent's right of inheritance-Ordinances Nos. 3 of 1870 and 14 of 1907- Ordi-nance, No. 23 of 1917, ss. 2 and 4. Where a low-country Sinhalese was married in binna to a Kandyan woman and the marriage was registered under the Marriage Registration Ordinance, No. 19 of 1907,- Held, that under section 2 of Ordinance No. 23 of 1917, the issue of such marriage was subject to Kandyan law and that the mother succeeded to the property of such intestate issue to the exclusion of the father. Cont..
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NLR-Vol.3-P10
NLR - Vol.3, Page No - 10 AHUGODA UKKU ETENA et al. v. DOMBEGODA PUNCHIRALA el al. C. R., Kurunegala, 4,181 L 452. Kandyan Law-Diga marriage-Presumption of legitimacy-Minute proof of wedding ceremonies. Where, prior to 1870, a woman was, according to Kandyan customs, duly conducted in diga to a man, lived with him till his death, bore a child to him, and the husband's family recognized such union- Held, that the presumption of legitimacy dispensed with the necessity of giving minute proof of the ceremonies attending the marriage, and that the marriage was a lawful one, and did not require to be registered. THIS action was instituted by first plaintiff as the widow, and second plaintiff as the only child, of one Sohondirala, deceased, to recover possession of an undivided half share of certain lands belonging to the said deceased by paraveni right, plaintiffs averring that the defendants were Cont..
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NLR-Vol.3-P110
NLR - Vol.3, Page No - 110 RATWATTA v. HABANA et al. C. R., Kandy, 4,743, Kandyan Law-Nindagama-Liability of paraveni nilakarayas to render services to nindagama proprietor- Right of proprietor of nindagama. to exact services from paraveni nilakarayas regarding lands which do not form part of the nindagama-Personal services by paraveni nilakarayas. The paraveni nilakarayas of a nindagama are not bound to cultivate fields which do not form part of the nindagama to which they are attached, but they are bound to render personal services to the proprietor of the nindagama whenever he gives them notice of the time and place he requires their attendance. Semble, the use of palanquins being now obsolete, except among the priests, the obligation on the part of paraveni nilakarayas to carry palanquins for the proprietor of a nindagama is not enforceable by law. PLAINTIFF, claiming as purchaser under a deed of transfer of a nindagama, sued the defendants for Cont..
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NLR-Vol.3-P128
NLR - Vol.3, Page No - 128 GUNAHAMI v. ARNOLIS HAMI. P. C, Galle, 16,926. Maintenance-Ordinance No. 19 of 1889-Res judicate -Rejection of evidence-Dismissal of former applications for maintenance-Admission that applicant is the wife of respondent. The question of paternity once tried and determined in a prosecution tinder the Ordinance No. 19 of 1889 could not be litigated a second time; but the refusal of an order for maintenance under the above Ordinance against a husband for deserting his wife, on the ground that it had not been proved that he had deserted, or that there was no proof that he had sufficient means, would not be a bar to a subsequent application in respect of a subsequent desertion, or in case the husband subsequently acquired means. Where the Magistrate declined to receive in evidence for the defence certain cases which had the effect of res judicata, and which had been brought by the respondent against the appellant and been dismissed, and made an order against the appellant under section 3 of the Ordinance because the appellant admitted the respondent to be his wife-Held, that the appellant ought to have an opportunity of showing what was decided in the previous cases, which might or might not afford Cont..
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NLR-Vol.3-P 13
NLR - Vol.3, Page No - 13 PAVISTINA v. ARON. P. C., Colombo, 6,628. Maintenance--Child born in lawful wedlock--Presumption as to paternity -How such presumption may be rebutted. A child born in lawful wedlock is presumed to be that of the husband. Proof of impossibility of access to each other of husband and wife is not absolutely necessary to rebut the presumption. It is enough to show that no sexual intercourse took place between the husband and wife at any time when in the order of nature the husband might have been the father of the child. THE facts of the case appear in the judgment.- Bawa, for appellant. 17th September, 1897. Withers, J.- This is an application by a wife against her husband for an order on the latter to maintain her and her child, on the ground that the husband neglects to maintain the applicant and her child, he Cont..
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NLR-Vol.3-P145
NLR - Vol.3, Page No - 145 KANDAPPA v. RANKIRI et al C. R., Anuradhapura, 88. Kandyan Law-Widow's right to husband's paraveni property-How her maintenance from such property is to be secured-Forfeiture of such right. Under the Kandyan Law a widow is not entitled to succeed to her husband's paraveni property if any relations of her husband are in existence, but she is entitled to maintenance. If the heirs wish to get the property, they must secure her maintenance. If the estate is a large one, the heirs are entitled to specify a portion of it and reserve that to the widow for her maintenance; but if the estate is small and only just sufficient for her maintenance, the widow is entitled to possession of it during her lifetime, subject however to this, that if she takes a second husband contrary to the wish of the members of her late husband's family, she forfeits her right to maintenance. THE facts of the case appear in the judgment. Sampayo, for appellant. Seneviratne, for respondents. 18th July, 1895. Bonser, C.J.- Cont..
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NLR-Vol.3-P181
NLR - Vol.3, Page No - 181 MEENATCHI v. SUPRAMANIAN CHETTY. P. C, Avissawella, 1,215. Maintenance-Refusal of grandmother to give up child to its father-Her right to claim maintenance from him for its support. If the father of an illegitimate child whose mother is dead is willing to take it into his house and maintain it, its grandmother, who refuses to give it up to the father, has no right to claim maintenance for its support. THE complainant's application for maintenance of her deceased daughter's two children by the accused was rejected on the ground that the elder child, a girl, was being maintained by him, and that he was prepared to take over and maintain the younger child, a boy. The Police Magistrate, Mr. Godamune, upheld the first objection, but as regards the second objection, he ordered that, as the children were illegitimate, the mother was their natural, guardian, and as upon her death the grandmother took her place as guardian, the accused respondent Cont..
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NLR-Vol.3-P 209
NLR - Vol.3, Page No - 209 MUDALIHAMI v. BANDIRALA. C. R., Matale, 1,763. Kandyan Law-Acquired property-Inheritance-Property purchased by son from, father, P's father sold and transferred certain lands to P. P died intestate, leaving him surviving a paternal aunt and a maternal uncle-Held, that under the Kandyan Law the lands were the acquired property of P, and as such devolved, unlike ancestral paraveni property, on the maternal uncle. THIS was an action in ejectment and for a declaration of title to certain lands which the plaintiff, a Kandyan, claimed as the uncle and only living heir of one Punchirala, who was admitted by the defendants to be the owner of the lands in dispute. The issues framed were: (1) Is plaintiff the brother of Punchi Menika, the mother of Punchirala ? (2), Is the third defendant a sister of Bandirala, who is the father of Punchirala ? (3) Is first defendant entitled to the land as an associated husband (with Bandirala) of Punchi Menika, whose son was Punchirala ? And (4) Has any title passed to second defendant by the alleged sale to him by Cont..
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NLR-Vol.3-P 376
NLR - Vol.3, Page No - 376 KIRI MENIKA et al. v. MUTU MENIKA. D. C, Kurunegala, 6,074. Kandyan Law-Inheritance-Right of illegitimate children to acquired property of male parent-Meaning of acquired and paraveni property-Value of Kandyan Law authorities. K B and M R were brothers. K B by first, plaintiff, who was not duly married to him, left two illegitimate children, the second and third plaintiffs. On K B's death, the three plaintiffs claimed certain of his lands as against defendants, who were the children of M R. The lands in dispute were acquired by K B by gift from his father. Held, per Lawrie, J.-That, according to the Kandyan Law, illegitimate children have no claim to land which their father inherited, but they have a right to his acquired property. "Acquired" property includes property as well purchased as inherited by a person and gifted to his son. Cont..
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NLR-Vol.40-P 241
NLR - Vol.40, Page No - 241 1938 Present: Hearne J. FERNANDO v. FERNANDO 771-P. C. Panadure, 49,356. Maintenance-Agreement to separate by mutual consent-Waiver of future rights to maintenance-Wife's offer to return to husband-Claim to maintenance-Ordinance No. 19 of 1889, s. 5. Where husband and wife agreed to separate by mutual consent and the wife thereafter offered to return to the husband and, on his refusal, applied for maintenance,- Held, that the agreement to separate did not debar the wife from applying for maintenance, if the husband was not maintaining her at the time, unless she was living in adultery or refused to live with him without sufficient reason. Goonewardene v. Abeywickreme (18 N. L. R. 69) followed. Cont..
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NLR - Vol.40- P246
NLR - Vol.40, Page No - 246 1938 Present: Koch J. MORRIS v. MORRIS. S. C. No. 1-Divorce. Divorce-Action by wife resident in Ceylon-Husband domiciled in England-Domicil of wile-Requirement of Order in Council, 1936-Indian and Colonial Divorce Jurisdiction Act, 1926, s. 1. By the Ceylon Divorce Jurisdiction Order in Council, 1936, the provisions of section 1 of the Indian and Colonial Divorce Jurisdiction Act, 1926, were applied to Ceylon: Under that section, read together with the terms of the Order in Council, the Supreme Court was vested with jurisdiction to grant a divorce. where the parties to the marriage are British subjects domiciled in England or Scotland, provided the petitioner resides in Ceylon at the time of presenting the petition, that the place where the parties last resided together was in Ceylon, and that either the marriage was solemnized in Ceylon or the adultery or the Crime complained of was committed in Cont..
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NLR-Vol.40-P478
NLR - Vol.40, Page No - 478 1938 Present: Poyser S. P. J. and Wijewardene J. MOHAMED MUSTAPHA v. IBRAHIM ALIM. Application for leave to appeal in Kathi Court No. 130-Board of Kathis Court No. 67 (206). Muslim Marriage Registration Ordinance, No. 27 of 1929, Schedule III., part 2, s. 13 (1)- Application for leave to appeal-Right of respondent to be heard. In an application for leave to appeal to the Supreme Court under section 13 (1) of Part 2 of Third Schedule to the Muslim Marriage and Divorce Registration, the respondent is entitled to be heard in opposition. THIS was an application for leave to appeal from an order of the Board of Kathis. L. A. Rajapakse (with him M. M. I. Kariapper), for petitioner. Cont..
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NLR - Vol.41-P25
NLR - Vol.41, Page No - 25 1939 Present: de Kretser and Nihill JJ. KIRI BANDA v. DINGIRI BANDA. 85-D. C. (Inty.), Kurunegala, 4,167. Kanadyan law-Right of cousins to succeed to inheritance-Female cousins married in deega-No forfeiture of rights. Where a Kandyan died unmarried and issueless, leaving as his next-of-kin the children of his father's brother, viz., two sons and three daughters married in deega,- Held, that the cousins married in deega did not forfeit their rights to the inheritance. UKKU Banda, a Kandyan, died unmarried and without issue, leaving as his next-of-kin, the children of his father's brother Kapuruhamy. Kapuruhamy's children were two sons and three daughters married in deega. The question was whether the married daughters forfeited their rights to their cousins' property by their deega marriage. Cont..
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NLR - Vol.41- P452
NLR - Vol.41, Page No - 452 1940 Present: Soertsz and Keuneman JJ. NELSON v. FOENANDER. 150 & 151-D. C., Colombo, 1,120. Divorce-Intervention to prove collusion between the parties-Proof of collusion after decree nisi- Civil Procedure Code, ss 604 and 606 (Cap. 86). A person who suspects collusion between parties for the purpose of obtaining a divorce and who intervenes under section 606 of the Civil Procedure Code is entitled to rely on collusion that has taken place after the decree nisi was entered. APPEAL from an order of the District Judge of Colombo. N. Nadarajah (with him M. Tiruchelvam), for plaintiff, appellant in 150, and for plaintiff, respondent in 151. R. L. Pereira, K.C. (with him C. X. Martyn), for defendant, appellant in 151, and for defendant, respondent in 150. April 15, 1940. SOERTSZ J.- Cont..
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NLR-Vol.41-P 487
NLR - Vol.41, Page No - 487 1940 Present: Hearne J. BAKER v. FABURA. 854-A. M. C. Colombo, 16,388. Maintenance-Application by woman as wife for maintenance on behalf of herself and child-Marriage not proved-Order for maintenance of child -Maintenance Ordinance, s. 6 (Cap. 76). Where a woman applied for maintenance as the lawful wife of the defendant on behalf of herself and her child and where the Magistrate found that evidence of the marriage was insufficient and refused maintenance for herself. Held, that the Magistrate may order maintenance in respect of the child on the footing that it was illegitimate if, in fact, the evidence for the applicant satisfied him that the defendant was the father and that he maintained the child within twelve months of the birth, although her application was not supported by an affidavit to the effect. Cont..
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NLR - Vol.42- P373
NLR - Vol.42, Page No - 373 1941 Present: Moseley S.P.J. and Keuneman J. ABRAHAM v. ALWIS. 94-D. C. Ratnapura, 6,619 Divorce-Plaintiff guilty of adultery-Refusal of Judge to exercise discretion in favour of plaintiff- Interference by the Supreme Court in Appeal- Civil Procedure Code, s. 602. Where the District Judge refused to exercise his discretion under the proviso to section 602 of the Civil Procedure Code in favour of a guilty plaintiff in a matrimonial action, the Supreme Court in appeal will not interfere unless it feels that that discretion has not been properly exercised. APPEAL from an order of the District Judge of Ratnapura. N. E. weerasooria, K.C. (with him S. W. Jayasuriya), for plaintiff, appellant. U. A. Jayasundera (with him P. Malalgoda), for defendant, respondent. June 6, 194ll MOSELEY J.- Cont..
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NLR-Vol.42-P 379
NLR - Vol.42, Page No - 379 1941 Present : Soertsz J. THANGAYAGAM v. CHELLIAH. 258-M. C. Batticaloa, 2,458. Maintenance-Application on behalf of a child of seventeen years-Maintenance Ordinance (Cap. 76), s. 7. Section 7 of the Maintenance Ordinance does not preclude the Court from making an order of maintenance in favour of a child between sixteen and eighteen years of age. APPEAL from an order of the Magistrate of Batticaloa. P. Thiagarajah, for the applicant, appellant. M. M. I. Kariapper. for defendant, respondent. Cont..
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NLR-Vol.42-P390
NLR - Vol.42, Page No - 390 1941 Present: Keuneman and de Kretser JJ. KARUNAWATHIE v. WIMALASURIA 66-D. C. Colombo, 9,734 Breach of promise of marriage-Agreement in writing alone-No resort to oral evidence-Marriage Registration Ordinance (Cap. 95), s. 19 (3) Proviso. An agreement in writing in order to support an action to recover damages for breach of promise to marry must be evidenced in writing and writing alone. It is not sufficient that the document in the light of oral evidence bears a promise to marry. Jayesinghe v. Perera (9 N. L. R. 62), distinguished. APPEAL from a judgment of the District Judge of Colombo. Cont..
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NLR-Vol.42-P487
NLR - Vol.42, Page No - 487 1941 Present: de Kretser and Wijeyewardene JJ. SELVARATNAM et al. v. ANANDAVELU. 45-D. C. (Inty.) Jaffna, 8/4 p. Thesawalamai-Customary marriage of minor-Consent of father-Marriage without proper rites and ceremonies-Validity-Ordinance No. 19 of 1907, s. 21 (Cap. 95). A customary Hindu marriage contracted without the rites and ceremonies usually performed at such marriages is not valid. Per DE KRETSER J.-A customary marriage, contracted according to Hindu rites, of a minor governed by the Thesawalamai is not valid without the consent of the father. Per WIJEYEWARDENE J.-Quaere whether the want of consent could invalidate such a marriage especially where the marriage has been consummated. Cont..
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NLR-Vol.42-P53
NLR - Vol.42, Page No - 53 1940 Present: de Kretser J. MENIKI v. SIYATHUWA 714-M. C. Kurunegala, 59,959 Maintenance-Parties divorced after order for maintenance-Effect of divorce. An order for maintenance made in favour of a wife under the Maintenance Ordinance remains in force only so long as the relationship of husband and wife continues between the parties. APPEAL from an order of the Magistrate of Kurunegala. A, S. Ponnambalam, for applicant. N. K. Choksy (with him C. C. Rasa Ratnam), for respondent. October 28, 1940. DE KRETSER J.- The appellant obtained an order for maintenance against her husband, the respondent. Thereafter Cont..
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NLR - Vol.42- P70
NLR - Vol.42, Page No - 70 1940 Present: Soertsz and Hearne JJ. BLOK v. BLOK 61 & 62-D. C. Colombo, 208. Divorce-Allegation of adultery against co-respondent unproved-Decree based on adultery with unknown person-Suspicion against co-respondent-Costs. Where in an action for divorce the only adultery put in issue is the adultery alleged between the two defendants, it is not open to the Judge, on finding that the allegation has not been established, to base his decree on adultery with a person unknown without an allegation made to that effect and an issue raised upon it. Where the co-respondent's conduct is such as to lead to a reasonable suspicion that he had been guilty of adultery, the Court will refuse to allow him his costs. APPEAL from a judgment of the District Judge of Colombo. E. B. Wikremanayake (with him A. H. C. de Silva), for first defendant-appellant in 61 and for first Cont..
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NLR - Vol.43- P165
NLR - Vol.43, Page No - 165 1941 Present: Soertsz J. UMMA SAIDU v. HASIM MARIKAR 481-Kathi Court, 17274. Muslim Marriage and Divorce Registration Ordinance (Cap. pr.). s- 21 (3) -Maintenance proceedings, schedule 111., Rule 10. Rule 10 of Part I of the third schedule to the Muslim Marriage Registration Ordinance does not apply to maintenance proceedings. APPEAL from an order of the Board of Kathis. L. A. Rajapakse (with him S. .A. Marikar) for the respondent, appellant. S. Seyed Ahamed, for the applicant, respondent. Cont..
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NLR-Vol.43-P165
NLR - Vol.43, Page No - 165 1941 Present: Soertsz J. UMMA SAIDU v. HASIM MARIKAR 481-Kathi Court, 17274. Muslim Marriage and Divorce Registration Ordinance (Cap. pr.). s- 21 (3) -Maintenance proceedings, schedule 111., Rule 10. Rule 10 of Part I of the third schedule to the Muslim Marriage Registration Ordinance does not apply to maintenance proceedings. APPEAL from an order of the Board of Kathis. L. A. Rajapakse (with him S. .A. Marikar) for the respondent, appellant. S. Seyed Ahamed, for the applicant, respondent. Cont..
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NLR - Vol.43-P166
NLR - Vol.43, Page No - 166 1941 Present: Hearne J. UKKURALA v. EWONSIA. 170-C. R. Kegalla, 14,045. Kandyan law-Kandyan dies unmarried and issueless-Survived by mother and half brother-Mother's inheritance to paraveni property. Where a Kandyan dies unmarried and issueless, - his father being dead and his mother alive, with no full brothers or sisters and only a half brother surviving, Held, that the mother succeeded to the paraveni property of the deceased. APPEAL from a judgment of the. Commissioner of Requests, Kegalla. E. B. Wickremanayake, for defendant, appellant. E. A. P. Wijeyeratne, for plaintiff, respondent. December 91 1951. HEARNE J. Cont..
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NLR-Vol.43-P215
NLR - Vol.43, Page No - 215 1941 Present: Howard C.J. PERERA v. PERERA. 587-M. C. Colombo, 16,574. Maintenance-Application by husband against wife-Burden of proof Married Women's Property Ordinance (Cap. 46), s. 26. In an application by a husband for maintenance against his wife under section 26 of the Married Women's Property Ordinance the burden is on the applicant to establish that through illness or otherwise he is unable to maintain himself. APPEAL from an order of the Magistrate of Colombo. Applicant-Appellant in person. A. H. C. de Silva (with him S. J. Kadirgamar), for the defendant, respondent. Cont..
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NLR - Vol.43-P281
NLR - Vol.43, Page No - 281 1942 Present: Howard C.J. and Hearne J. BELGASWATTE v. UKKUBANDA et al. 123-D. C. Kandy, 2. Kandyan law-Transfer by father to daughter-Retransfer by daughter-Under influence-Proof-Evidence Ordinance, s. 92, proviso (1) -Subsequent donation by father-Revocability. The first defendant, father of plaintiff, transferred the property in question to plaintiff, from whom he obtained a retransfer by undue' influence. The first defendant thereupon gifted the property to plaintiff as an act of reparation for the undue influence exercised against her. From the deed itself the purpose of the deed appeared to be to secure future assistance. The first defendant thereafter transferred the property for valuable consideration to' the second and third defendants. Held, that oral evidence to vary the terms of the deed of gift was admissible under proviso (1) of Cont..
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NLR - Vol.43-P512
NLR - Vol.43, Page No - 512 1942 Present: Moseley S.P.J. and de Kretser J. DUNUWEERA v. MUTTUWA et al. 41- D. C. Kandy, 5,229 (Testy.). Kandyan Law-Diga-married woman-Acquired properly-Right of surviving husband to' inherit-Failure of issue. Where a Kandyan woman married in diga dies without issue, the surviving husband succeeds to her acquired property in preference to her brothers and sisters. Seneviratne v. Halangoda (24 N. L. R: 257), distinguished. APPEAL from an order of the District Judge of Kandy. One Kuda Ridee, a diga-married Kandyan woman, died issueless in 1935 and her estate IS being administered in this case by the petitioner, her husband. She has also left two brothers and a Cont..
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NLR-Vol.44-P241
NLR - Vol.44, Page No - 241 1943 Present: Soertsz S.P.J., Wijeyewardene J., and Jayetileke J. SIVASAMY, Appellant, and RASIAH, Respondent. 998-M. C. Batticaloa, 5.973. Maintenance-Application by wife-Wife possessed of means-Right to apply for maintenance from husband- Maintenance Ordinance (Cap. 76),s. 2. A wife, who is possessed of means, is entitled to claim maintenance from her husband provided he has sufficient means himself. Goonewardene v. Abeywickreme (17 N. L. R. 450) followed. Silva v. Senaratne (33 N. L. R. 90) overruled. THIS was a case referred to a Bench of three judges. Cont..
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NLR-Vol.44-P 310
NLR - Vol.44, Page No - 310 1943 Present: de Kretser J. NAVARATNAM, Appellant, and UPPIN MUDALALI, Respondent. 71- M. C. Kandy, 4,726 Maintenance-Collaboration supplied by defendant's conduct-Evidence of maintenance to stop time running. In an application for maintenance conduct pointing to the probability of the defendant being the father of the child is sufficient corroboration. Where, on a question, whether the application was made in time, it is alleged that the defendant had given money for maintenance,- Held, that corroboration was not necessary on the point. APPEAL from an order of the Magistrate of Kandy. Cont..
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NLR - Vol.44-P457
NLR - Vol.44, Page No - 457 1943 Present: Moseley S.P.J., Hearne and Wijeyewardene JJ. UKKUBANDA AMBAHERA et al, Appellants, and SOMAWATHIE KUMARIHAMY, Respondent. 116-B.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 adoptive parent that a child is being brought up for purposes of inheritance is sufficient to constitute adoption under the Kandyan law. Tikiri Kumarihamy v. Niyarepola et el.1[2C. L. J. 222 ; 44 N. L. R. 476.] followed. THIS 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 are stated as follows : - Cont..
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NLR - Vol.44-P476
NLR - Vol.44, Page No - 476 1937 Present: Maartensz and Hearne JJ. TIKIRIKUMARIHAMY, appellant, and NIYARAPOLA et al., Respondents. 38-D. C. Kandy, 5,201. Adoption-Public declaration-No formal announcement-Validity-Kandyan law. To constitute a valid adoption under the Kandyan law, there should be a public declaration that the child was adopted for purposes of inheritance. The declaration need not be made on a formal occasion. APPEAL 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. Cont..
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NLR - Vol.44- P494
NLR - Vol.44, Page No - 494 [IN REVISION.] 1943 Present. Moseley S.P.J. and Wijeyewardene J. SILVA Applicant, and SILVA Respondent. D. C. Colombo, 720 (Divorce). Divorce-Custody of child pending action-Rights of father-Interests of child Application for revision pending appeal-Civil Procedure Code, s. 753. The Supreme Court has the power to revise an order made by an original Court even where an appeal has been taken against that order. In such a case the Court will exercise its jurisdiction only in exceptional circumstances and in Cont..
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NLR - Vol.44- P497
NLR - Vol.44, Page No - 497 1943 Present: Moseley S.P.J. TODD v. TODD. IN THE MATTER OF A PETITION UNDER THE CEYLON DIVORCE JURISDICTION ORDER IN COUNCIL, 1936. Divorce-Respondent's adultery with X-Admission by respondent-Ceylon Divorce Jurisdiction Order in Council, 1936. In an action for divorce on the ground of respondent's adultery with X. the Court may act on the admission of respondent, provided it has no reason to doubt the genuineness of the admission. THIS was a petition for divorce under the Ceylon Divorce Jurisdiction Order in Council 1936, and the Ceylon (Non-domiciled parties) Divorce Rules, 1936. Cont..
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NLR - Vol.44-P 549
NLR - Vol.44, Page No - 549 1943 Present : Wijeyewardene J. WIJEYSINGHE, Appellant, and MOHOTTY et al, Respondents. 132-C. R. Teldeniya, 240. Kandyan law-Deed of gift for services to be rendered-Revocability-Compensation for improvements- Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938, s. 6.. Where, under the Kandyan law, a land is gifted for services to be rendered and the donee has performed up to date the services agreed upon, but there are further services to be rendered,- Held, that the deed was revocable but that the donee was entitled to compensation for improvements effected by him in terms of section 6 of Ordinance No. 39 of 1938. APPEAL from a judgment of the Commissioner of Requests, Teldeniya. E. B. Wickremanayake, for plaintiff, appellant. Cont..
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NLR - Vol.45-P11
NLR - Vol.45, Page No - 11 1943 Present : Howard C.J. and Keuneman J. ELLEN NONA AND OTHERS, Appellants and PUNCHI BANDA, Respondent. 27-D. C. Kandy, 572 Kandyan law-Acquired property of Kandyan wife-Contest between illegitimate child and widower-Rights of child. The property of a Kandyan wife acquired before her marriage is inherited by her illegitimate child and her diga-married husband has neither title nor life-interest in such property. THIS was a partition action in which the dispute was with regard to a one-fourth share of the land between the plaintiff and the 3rd defendant. The owner of this one-fourth share was Muttu Menika, who obtained title to it in 1913 and who was unmarried at the time. In 1916 an illegitimate child, Punchi Appuhamy, was born to her. The Cont..
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NLR-Vol.45-P18
NLR - Vol.45, Page No - 18 1940 Present : Soertsz J. PEIRIS, Appellant, and PEIRIS, Respondent 249-M. C. Colombo, 16,453 Maintenance-Application for maintenance under the Ordinance-Order for alimony in the district Court- Applications not barred. An application for maintenance under the Maintenance Ordinance is not barred by an order for alimony made in favour of the applicant and her child in the District Court in which the applicant had sued the defendant for judicial separation and obtained it. APPEAL from an order of the Magistrate of Colombo. N. Nadarajah, K. C. (with him J. A. T. Perera), for applicant, appellant. E. B. Wikremanayake for defendant, respondent. Cont..
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NLR-Vol.45-P196
NLR - Vol.45, Page No - 196 1944 Present: Howard C.J. SARANA, Appellant, and HEEN UKKU, Respondent. 113-M. C. Kandy, 10,285. Kandyan Marriage Ordinance (Cap. 96), section HO, sub-section 2 (b) and (6)- Marriage dissolved- Husband ordered to pay maintenance to wife- Power of Magistrate's Court to enhance maintenance. Where a Kandyan marriage was dissolved by the Provincial Registrar, acting under the provisions of section 20 of the Kandyan Marriage Ordinance, and the husband was ordered to pay the wife a sum of two rupees as maintenance,- Held, that on an application for an enforcement of the order under section 20, sub-section (6), it was competent for the Magistrate's Court to enhance the sum awarded by way of maintenance. APPEAL from an order of the Magistrate of Kandy. Cont..
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NLR-Vol.45-P 25
NLR - Vol.45, Page No - 25 1943 Present : Keuneman and Jayetileke JJ. FERNANDO, Appellant, and AMARASENA, Respondent 685-M. C., Colombo, 17,227 Maintenance-Application for order under the Maintenance Ordinance-Decree of alimony in the District Court-No bar to order for maintenance-Maintenance Ordinance (Cap. 76) s. 2. The jurisdiction of a Magistrate to grant an order for maintenance of a child under section 2 of the Maintenance Ordinance is not ousted by a decree for alimony passed by the District Court if favour of the applicant and the child in an action for divorce brought by the applicant against the respondent. Peiris v. Peiris (45 N. L. R. 18) followed. THIS case was referred to a Bench of two Judges under section 38 of the Courts Ordinance in view of Cont..
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NLR - Vol.45- P430
NLR - Vol.45, Page No - 430 1944 Present: Hearne J. ABDEEN, Appellant, and JOHARA, Respondent. 549-Kathi Court, Slave Island, No. 2,239. Muslim divorce-Petition by wife for Fasah divorce-Admission by husband-No legal proof required. Where, on an application by a wife in the Kathi Court for a " Fasah" divorce the respondent admitted all the' facts alleged by the wife, which entitled her to a divorce,- Held, that such admission may be regarded as a- substitute for the requirement of legal proof by two witnesses. THIS was an appeal from an order of the Kathi Court of Slave Island taken with the leave of the Supreme Court. S. A. Marikar for appellant. Cont..
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NLR-Vol.45-P430
NLR - Vol.45, Page No - 430 1944 Present: Hearne J. ABDEEN, Appellant, and JOHARA, Respondent. 549-Kathi Court, Slave Island, No. 2,239. Muslim divorce-Petition by wife for Fasah divorce-Admission by husband-No legal proof required. Where, on an application by a wife in the Kathi Court for a " Fasah" divorce the respondent admitted all the' facts alleged by the wife, which entitled her to a divorce,- Held, that such admission may be regarded as a- substitute for the requirement of legal proof by two witnesses. THIS was an appeal from an order of the Kathi Court of Slave Island taken with the leave of the Supreme Court. S. A. Marikar for appellant. Seyed Ahamed for respondent. Cont..
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NLR - Vol.46- P109
NLR - Vol.46, Page No - 109 1945 Present: Keuneman and Jayetileke JJ. ASILIN NONA, Appellant, and PETER PERERA, Respondent. 65-D. C. (Inty.) Colombo, 655. Divorce-Order of court to pay alimony pendente lite-Non-compliance with order-Power of court to stay proceedings-Civil Procedure Code, s. 839. Non-compliance with an order of court in divorce proceedings to pay alimony pendente lite amounts to contempt of court. In such a case the court may in its discretion stay proceedings until the alimony due is paid. APPEAL from an order of the District Judge of Colombo. H. V. Perera, K.C. (with him P. Malalgoda), for the 1st defendant, appellant.-The plaintiff was Cont..
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NLR-Vol.46-P186
NLR - Vol.46, Page No - 186 1945 Present: Wijeyewardene J. EDWIN PERERA, Appellant, and BISSO MENIKA, Respondent.. 95-M. C. Kandy, 15,420. Maintenance-Application by wife-Invitation by husband to come back- Refusal of wife-False allegation of adultery-Sufficient reason. Where, in an application for maintenance by a wife against her husband, the applicant refused an invitation by the respondent to go back to him, Held, that a false allegation of adultery made by the respondent against the applicant was a sufficient excuse for her refusal. APPEAL from an order of the Magistrate of Kandy. Cyril E. S. Perera (with S. W. Jayasuriya and E. P. Wijetunge), for defendant, appellant. Cont..
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NLR - Vol.46- P193
NLR - Vol.46, Page No - 193 1945 Present: Keuneman and Jayetileke JJ. S. W. E. DIAS, Appellant, and MENSALINE HAMINE et al, Respondent. 234-D. C. Colombo, 619. Divorce-Wife lives in the same house after knowledge of husband's adultery- No proof of condonation- Further proof required of forgiveness and reinstatement of offending spouse. The fact that a wife after knowledge of her husband's adultery shares his bed is not strong or conclusive proof of condonation; still less, the fact that she merely resided in the same house with her husband. There should be, in addition, proof of forgiveness and of the reinstatement of the offending spouse. THE plaintiff sued her husband the first defendant for divorce on the grounds-(1) of constructive Cont..
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NLR - Vol.46- P217
NLR - Vol.46, Page No - 217 1945 Present : Wijeyewardene and Cannon JJ. ALLES, Appellant, and ALLES et al., Respondents. 118, 119-D. C. Colombo, 586. Divorce-Adultery of wife-Denial of paternity of child by husband-Burden of proof-Measure of damages- Costs-Civil Procedure Code, s. 612- Evidence Ordinance, Sec. 112. Where, in an action for divorce, the husband denies the paternity of a child, the burden is on the husband to prove that he is not the father. Where the husband had access to his wife at a time when the child could have been begotten, the fact that during a material part of the time the wife was in terms of intimacy with another man does not entitle the husband to ask the Court to hold that he is not the father of the child. Per WIJEYEWARDENE J. Cont..
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NLR-Vol.46-P35
NLR - Vol.46, Page No - 35 Present: de Kretser J. PARUPATHIPILLAI, Appellant, and KANDIAH ARUMUGAM, Respondent. 534-M. C. Jaffna, 4,174. Maintenance-Order for maintenance in favour of wife-Application for distress warrant for arrears of maintenance-Compromise by payment of lump sum-Compromise not valid. The appellant obtained an order for maintenance against her husband, the respondent, under which she was entitled to receive a sum of Rs. 8 per mensem. Subsequently, on an application for a distress warrant against the respondent for arrears of maintenance, the parties entered into a compromise in Court by which the applicant received a sum of Rs. 200, waiving all claims to future maintenance. Held, that the compromise was not valid and did not relieve the respondent of the obligation of maintaining his wife. Cont..
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NLR - Vol.46- P361
NLR - Vol.46, Page No - 361 1945 Present: Keuneman S.P.J. and Rose J. NAVARATNAM, Appellant, and NAVARATNAM, Respondent. 356-D. C. Jaffna, 72. Divorce-Appeal-Requirement of nonce of tendering security-Immunity of wife, when appellant- Sufficiency of notice to dispense with security- Husband's suit for declaration that marriage was void-Husband domiciled in Ceylon-Wife of Indian domicil and continuously resident in India- Jurisdiction of Ceylon Court-Prescription-Plaintiff's delay in filing action-Right of Court not to pronounce judgment in favour of plaintiffs Civil Procedure Code, ss. 597, 602, 604, 607, 756- Prescription Ordinance, s. 15. Where, in a matrimonial action, petition of appeal was filed and on the same day the defendant- appellant by written notice moved that security for costs be dispensed with as she was the wife of the plaintiff-respondent ,- Cont..
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NLR - Vol.46- P464
NLR - Vol.46, Page No - 464 1945 Present: Soertsz A.C.J. BLANCHE ANLEY, Petitioner, and HERBERT BOIS, Respondent. IN THE MATTER OF AN APPLICATION UNDER THE CEYLON DIVORCE JURISDICTION ORDER IN COUNCIL, 1936, AND THE CEYLON (NON-DOMICILED PARTIES) DIVORCE RULES, 1936. Divorce-Application for modification of order for the custody of children- Respondent's departure from Ceylon after date of filing of the application- No bar-Access to children-Children's interests, paramount consideration-The Ceylon (Non-Domiciled Parties) Divorce Rules, 1936, rule 21. An application, under rule 21 of the Ceylon (Non-Domiciled Parties) Divorce Bales, 1936, for the modification of an order for the custody of children can be considered by Court, although the Cont..
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NLR - Vol.46- P516
NLR - Vol.46, Page No - 516 1945 Present: Keuneman S.P.J. WOOLDRIDGE, Petitioner, and WOOLDRIDGE, Respondent. IN THE MATTER OF A PETITION UNDER THE CEYLON DIVORCE JURISDICTION ORDER IN COUNCIL 1936, AND THE CEYLON (NON- DOMICILED PARTIES) DIVORCE RULES, 1936. Divorce Suit No. 34. Divorce-Desertion as ground-Requirements necessary to confer jurisdiction on Court-Indian and Colonial Divorce Jurisdiction Act, 1940 (3 and i Geo. 6, c. 35) s. 2. In a suit for dissolution of marriage on the ground of desertion, under section 2 of the Indian and Cont..
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NLR - Vol.46-P54
NLR - Vol.46, Page No - 54 1945 Present: Howard C.J. and Jayetileke J. KAWWAUMMA, Appellant, and DAVID SINGHO, et al. Respondent. 228-D. C. Kurunegala, 948. Kandyan Law-Diga marriage-Severance of family ties-Forfeiture of inheritance. The essence of a diga marriage under the Kandyan Law is the severance of the daughter from the father's family and the entry into that of the husband. Punchi Menika v. Appuhamy (19 N. L. R. 353) followed. APPEAL from a judgment of the District Judge of Kurunegala. H. V. Perera, K.C. (with him E. A. P. Wijeratne), for eighth defendant, appellant. C. V. Ranawake (with him Ivor Misso), for sixth and seventh defendant, respondents. Cont..
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NLR - Vol.46- P56
NLR - Vol.46, Page No - 56 1944 Present: Soertsz S.P.J. AL AYED, Appellant, and AYED, Respondent. 1,194-Kathi Court, Slave Island, No. 2,205 Mahr-Claim by Muslim wife-Facts admitted-Requirement of two witnesses- Marriage and Divorce Ordinance (Muslim) (Cap. 99), s. 21 (3). In a claim for Mahr by a Muslim wife against her husband the requirement of the rule in regard to at least two witnesses is not peremptory in cases in which the facts are admitted. APPEAL from a judgment of the Board of Kathis with the leave of the Supreme Court. H. W. Jayawardene, for respondent, appellant. Cont..
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NLR-Vol.46-P56
NLR - Vol.46, Page No - 56 1944 Present: Soertsz S.P.J. AL AYED, Appellant, and AYED, Respondent. 1,194-Kathi Court, Slave Island, No. 2,205 Mahr-Claim by Muslim wife-Facts admitted-Requirement of two witnesses- Marriage and Divorce Ordinance (Muslim) (Cap. 99), s. 21 (3). In a claim for Mahr by a Muslim wife against her husband the requirement of the rule in regard to at least two witnesses is not peremptory in cases in which the facts are admitted. APPEAL from a judgment of the Board of Kathis with the leave of the Supreme Court. H. W. Jayawardene, for respondent, appellant. M. M. Kumarakulasingham, for applicant, respondent. December 31, 1944, SOERTSZ J.- This was a suit brought by a Muslim wife in the Kathi Court of Slave Island to recover a sum of Rs. Cont..
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NLR - Vol.47- P324
NLR - Vol.47, Page No - 324 1946 Present: Jayetileke and Canekeratne JJ. WIJERATNE, Appellant, and WIJERATNE, Respondent. 6-D. C. Colombo, 697. Divorce-No consummation of marriage-Willful refuse t of husband to copulate- Sufficient ground for dissolution of marriage Where there was no consummation of a marriage owing to the wilful refusal of the husband to copulate- Held, that the wife was entitled to have the marriage dissolved on the ground of malicious desertion. APPEAL from a judgment of the District Court of Cont..
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NLR - Vol.47- P413
NLR - Vol.47, Page No - 413 1946 Present: Soertsz A.C.J. MILLEN, Petitioner, and MILLEN, Respondent. Divorce Suit No. 30. Divorce -Application for temporary suspension of order for alimony- Residence in Ceylon of respondent necessary at time of such application -The Ceylon (Non-Domiciled Parties) Divorce Rules, 1936, rule 21. Where a husband who had been divorced under the Indian and Colonial Divorce Jurisdiction. Act, 1936, made application to have an order for alimony made in favour of the wife suspended temporarily as to a part of the sum- Held, that the application could not, under rule 21 of the Ceylon (Non-Domiciled Parties) Divorce Rules, 1936, be entertained unless, at the time it was made, the wife was resident in Ceylon. Cont..
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NLR-Vol.47-P441
NLR - Vol.47, Page No - 441 1946 Present: Soertsz A.C.J. NANSOORA, Appellant, and JARIA, Respondent. 337-Kathi Court, Kalutara, 298/261. Muslim law-Divorce-Fasah divorce-Does previous divorce by husband operate as bar ?-Muslim Marriage and Divorce Registration Ordinance (cap. 99). A Muslim wife against whom Talak had been pronounced by her husband obtained subsequently a Fasah divorce in respect of the same marriage. The husband appealed and the Board of Kathis, without dealing with the grounds on which the Fasah divorce was granted, dismissed the appeal solely on the ground that the Kathi had no jurisdiction to entertain the application for Fasah divorce in view of the previous divorce by the husband. Held, that the Board of Kathis should have dealt with the grounds on which the Fasah divorce was granted by the Kathi. Cont..
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NLR - Vol.47-P 481
NLR - Vol.47, Page No - 481 1946 Present: Keuneman S.P.J. and Canekeratne J. UKKU BANDA et al., Appellants, and UKKU BANDA, Respondent. 4-D. C. (Inty) Kegalla, 3,008. Kandyan law-Inheritance-Death of married woman-Succession to acquired property-Equal rights of brothers and sisters. Where a Kandyan married woman died intestate and issueless leaving a brother and two sisters, and her father, mother and husband had predeceased her- Held, that her acquired property passed to her brother and sisters equally. APPEAL from a judgment of the District Judge of Kegalla. Cont..
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NLR-Vol.47-P 486
NLR - Vol.47, Page No - 486 1946 Present: Wijeyewardene J. KANDASWAMY, Appellant, and PUVANESWARI, Respondent. 676-M. C. Jaffna, 19,008. Maintenance-Order in wife?s favour-Decree of separation-Return of wife to husband?s house and temporary stay-Does not cancel order for maintenance-Enforcement of order of maintenance- Imprisonment possible only in respect of allowance remaining unpaid after execution of warrant- Maintenance Ordinance (Cap. 76), ss. 5, 8, 9. An order for maintenance can be cancelled only in the circumstances set out in section 5 and 10 of the Maintenance Ordinance. The mere fact that the wife who had obtained an order for maintenance and a decree of separation a mensa et thoro returned subsequently to her husband?s house and lived with him for some time will not have the effect of canceling the order though it may suspend the operation of the order. A sentence of imprisonment under section 8 of the Maintenance Ordinance can be passed only in Cont..
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NLR-Vol.47-P71
NLR - Vol.47, Page No - 71 1946 Present : Jayetileke J. SARAM APPUHAMY AND RANNIE. 940-M.C. Kegalla, 6, 417. Maintenance-Supposed resemblance of children to father-Evidence-Unsafe guide. It is not safe to decide paternity in a maintenance case on the alleged resemblance of the children to the respondent. APPEAL from an order of the Magistrate of Kegalla. H. V. Perera, K. C. (with him S. P. M. Rajendran), for the defendant, appellant. R. N. Illangakoon, for the applicant, respondent., January 23, 1946. JAYETILEKE J.- Cont..
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NLR - Vol.48- P169
NLR - Vol.48, Page No - 169 1947 Present : Soertsz S.P.J. and Jayetileke J. ROWLANDS , Appellant , and ROWLANDS Respondent. 93 Inty - D.C. Colombo, 438 D. Alimony -Decree of separation - order for payment of alimony entered of consent - possibility of subsequent modification of such order -civil procedure code , s.615. An order for permanent alimony entered by the consent and agreement of both parties concerned can not be subsequently modified under section 615 of the civil procedure code on the ground that the husband's income has suffered substantial reduction , unless such modification is provided for in the consent decree. APPEAL from an order of the district court ,Colombo. H. V. Perera , K.C. (With him S. J. Kadirgamar) , for the plaintiff ,appellant. - In this case a Cont..
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NLR-Vol.48-P 175
NLR - Vol.48, Page No - 175 1941 Present: Wijeyewardene J. THE DEPUTY FINANCIAL SECRETARY, Appellant, and SIRISENA et al, Respondents. 56-M.C. Matara, 22, 207. Maintenance-Enforcement of order of maintenance-Movable property of incorporeal nature-Cannot be distrained-Maintenance Ordinance (Cap. 76), s. 8. Where service gratuity due under the rules regulating pensions and allowances granted to public servants was distrained under a warrant issued under the Maintenance Ordinance- Held, that the property distrained under a warrant under the Maintenance Ordinance should be movable property of a corporeal nature. APPEAL against an order of the Magistrate's Court, Matara. Cont..
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NLR - Vol.48-P210
NLR - Vol.48, Page No - 210 1947 Present : Nagalingam A.J DINGIRI MAHATMAYA et al., Appellants, and KIRIBANDA, Respondent. 4-C. R. Kegalla, 16,771. Kandyan law - Inheritance - Daughter married in deega after father's death - Her right to share in the paternal inheritance. Under Kandyan law, prior to the Kandyan Law Amendment ordinance, a woman who married in deega after her father's death forfeited her right to share in the paternal inheritance . APPEAL from a judgement of the Commissioner of Requests, Kegalla. C.V. Ranawake, for the defendants, appellants. No appearance for the plaintiff - respondent. Cont..
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NLR-Vol.48-P 256
NLR - Vol.48, Page No - 256 1946 Present: Nagalingam A.J. VIDANE, Appellant, and UKKUMENIKA, Respondent. 735-M. C. Nuwara Eliya, 217 Maintenance--Application made by wife and child-Denial of paternity by defendant-Allegation that applicant was living in adultery-Burden of proof-Maintenance Ordinance (Cap. 76), ss. 2, 4. In an application made by a wife for maintenance for herself and child, the defendant denied the paternity of the child and further stated that he was not prepared to take his wife back on the ground that she was living in adultery. On the date of trial the Court called upon the defendant to establish his defence first. Held, that the Court should not have called upon the defendant to establish his case before the applicant's case was placed in accordance with law ; the facts that she was not living in adultery and was not living separately from her husband by mutual consent should have been first established by the applicant. Cont..
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NLR-Vol.48-P 261
NLR - Vol.48, Page No - 261 1947 Present; Dias J SELLIAH, Appellant, and SINNAMMAH , Respondent 375-M, C. Jaffna, 1,997. Maintenance-Evidence Ordinance, s. 112-Meaning of "access to the mother''- Legitimacy of child born during subsistence of marriage-Civil nature of maintenance proceedings-Fact of wife's living in adultery-Burden of proof is on husband-Maintenance Ordinance (Cap, 76), ss. 2, 3, 4, 14, Where a wife sued the husband for maintenance for herself and a child and the Court found as a fact that, although the applicant and the defendant were living apart at the time when the child could have been begotten, there were both the possibility of and opportunities for intercourse- Held, that the word "access" in section 112 of the Evidence Ordinance meant no more than opportunity of intercourse and that, the defendant was, therefore, liable to maintain the child. In view of the decision of the Privy Council in Karapaya Servai v. Mayandi (A. I. R. 1934 P. C. 49) the judgment of the Full Bench in Jane Nona v. Leo (1923) 25 N. L. R. 241 could no longer be Cont..
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NLR - Vol.48-P318
NLR - Vol.48, Page No - 318 1947 Present; Keuneman A.C.J, and Jayetileke J. MOHIDEEN et al., Appellants, and PUNCHI BANDA, Respondent. S. C. 181-D. C. Kurunegala, 2,711. Kandyan Law Amendment Ordinance-Proviso to section 10 (1)-Meaning of the word child-Legitimate or illegitimate-Devolution of property. The word child in the proviso to section 10 (1) of the Kandyan Law Amendment Ordinance, No. 39 of 1938, includes an illegitimate child. APPEAL from a judgment of the District Judge of Kurunegala. E. A. P. Wijeratne (with him A. Hl E. Molamure), for the plaintiffs, appellants. C. V. Ranawake, for the defendant, respondent. July 15, 1947. KEUNEMAN A.C.J.- Cont..
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NLR - Vol.48-P391
NLR - Vol.48, Page No - 391 1947 Present: Wijeyewardene S. P. J- SETUWA, Appellant. and SIRIMALIE Respondent. S. C. 76-C. R, Matale, 8,939, Kandyan Law-Kandyan haw Amendment Ordinance, proviso to section (10) (1) -Meaning of " child "- Includes illegitimate child-Paraveni property and acquired property. The word child in the proviso to section 10 (1) of the Kandyan Law Declaration and Amendment Ordinance means not only a legitimate child but also an illegitimate child. APPEAL from a judgment of the Commissioner of Requests, Matale. S. R. Wijayatilake (with him R. S. Wanasundere), for the first defendant, appellant. No appearance for the plaintiff and the second defendant, respondents. Cont..
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NLR - Vol.48- P529
NLR - Vol.48, Page No - 529 1947 Present: Canekeratne and Dias JJ. NOORUL NALEEFA, Appellant, and MARIKAR HADJIAR, Respondent. S. C. 170-D. C. Kalutara, 26,076. Divorce-Action by Muslim wife-Fasah Divorce-Dissolution on ground of leprosy-Jurisdiction of District Court-Grounds of divorce-Powers of Kathi Court-Chapter 99, Legislative Enastments. The provisions of Chapter 99 of the Legislative Enactments do not preclude a Muslim wife from bringing an action in the District Court for a dissolution of marriage on the ground of leprosy of the husband. The principle of the Muslim law that leprosy is a ground of repudiating the contract of marriage is still part of the law of Ceylon. Cont..
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NLR - Vol.49- P10
NLR - Vol.49, Page No - 10 1947 Present: Soertsz S.P.J. and Canekeratne J. JEERIS APPUHAMY, Appellant, and KODITUWAKKU, Respondent. S. C. 37-D. C. Kandy, 180. Civil Procedure Code, sections 621, 622-Action for dissolution of marriage-Decree absolute- Application to increase amount of maintenance after decree absolute- Power of Court. Section 622 of the Civil Procedure Code extends the jurisdiction of the Divorce Court as regards the custody, maintenance and education of minor children to applications made after decree absolute. The Court can therefore vary the provisions of the decree absolute in respect of these matters from time to time as occasion arises. APPEAL from a judgment of the Additional District Judge, Kandy. H. W. Tambiah, for the defendant, appellant. M. M. Kumarakulasingham, for the plaintiff, respondent. Cont..
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NLR - Vol.49- P114
NLR - Vol.49, Page No - 114 1948 Present : Howard C. J. and Nagalingam J. FERNANDO, Appellant, and FERNANDO, Respondent. S. C. 284-D. C. Colombo, 814D Divorce-Decree nisi entered-Petition by defendant that decree be not made absolute Allegation of adultery-Right of Court to entertain petition-Res judicata-Civil Procedure Code, sections 604 and 207. In a divorce action decree nisi was entered in favour of the plaintiff. Before the decree was made absolute the defendant presented a petition alleging that the plaintiff had been guilty of adultery at the time of the action and praying that the decree nisi in his favour should not be made absolute. The learned Judge, after inquiry, held that the plaintiff had been living in adultery and dismissed his action. Held, that the decree nisi was res judicata between the parties since the plaintiff's adultery Cont..
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NLR-Vol.49-P 12
NLR - Vol.49, Page No - 12 1947 Present: Dias J. WALBERT, Appellant, and ZOYSA, Respondent. S. C. 831-M. C. Balapitiyc, 58,755. Maintenance-Illegitimate children-Corroboration of applicant's evidence-Statement by respondent in the course of an inquiry under Chapter 22, Criminal Procedure Code-Admissibility of statement- Section 122 (3), Criminal Procedure Code- Does it apply to civil proceedings - Maintenance Ordinance (Chap. 76.), section 6. A statement by a person recorded under section 122 (3) of the Criminal Procedure Code to the effect that he is the father of the applicant's illegitimate child cannot be used as substantive evidence in a maintenance case against him in order to corroborate the applicant's evidence. The first sentence of section 122 (3) of the Criminal Procedure Code is not confined to criminal cases. APPEAL from a judgment of the Magistrate, Balapitiya. F. A. Hayley, K.C-(with him H. W. Jayewardene and Vernon Wijetunge), for the defendant, appellant. Cont..
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NLR-Vol.49-P16
NLR - Vol.49, Page No - 16 1947 Present: Howard C. J. and Windham J. KARUNAWATHIE v. WIMALASURIA 66-D. C. Colombo, 9,734 Breach of promise of marriage-Agreement in writing alone-No resort to oral evidence-Marriage Registration Ordinance (Cap. 95), s. 19 (3) Proviso. The appellant was charged with bigamy. The prosecution produced no entry in the marriage register book in proof of the first marriage but called in evidence the first wife and the officiating priest. This evidence was un-contradicted. Held, that the first marriage was properly proved. The expression " best evidence " in section 38 of the Marriage Registration Ordinance merely signifies that the entry in the register shall prevail over any other evidence as to marriage in case of conflict as to whether the marriage was celebrated at all or as to its character or any particulars regarding it. Cont..
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NLR-Vol.49-P 163
NLR - Vol.49, Page No - 163 1948 Present: Nagalingam J. CARLINA NONA, Appellant, and DE SILVA, Respondent. S. C. 1,283-M. C. Galle, 4,890. Maintenance-Civil or criminal proceedings -Balance of evidence-Presumption of innocence. Maintenance proceedings are really civil proceedings though the forum which determines the rights of parties is a Criminal Court. A maintenance case must, therefore, be decided on the balance of evidence and not as a criminal matter in which the innocence of the accused is to be assumed until the contrary is proved. APPEAL from a judgment of the Magistrate of Galle. M. L. S. Jayasekera, for the applicant, appellant. C. R. Gunaratne, for the defendant, respondent. Cont..
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NLR-Vol.49-P254
NLR - Vol.49, Page No - 254 1948 Present : Canekeratne and Dias JJ. PERERA, Appellant, and PERERA, Respondent. S. C. 259-D. C. Avissawella, 4,773. Married woman-Disposal of immovable property-Consent of husband in Writing- Void or voidable- Matrimonial Rights Ordinance-Married Women's Property Ordinance. A woman married before July 1, 1924, cannot dispose of immovable property acquired before that date without the written consent of the husband. APPEAL from a judgment of the District Judge, Avissawella. H. V. Perera, K.C., with E. A. P. Wijeyeratne, for the plaintiff, appellant. N. K. Choksy, K.C., with S. R. Wijayatilake and E. C. F. de Silva, for the defendants, respondents. Cont..
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NLR-Vol.49-P268
NLR - Vol.49, Page No - 268 1948 Present : Wijeyewardene S.P.J. and Windham J. SELLAPPU, Appellant, and PUNCHI BANDA, Respondent. S.C. 138-D. C. Kandy, 1,641. Karubjan Law-Deega Marriage-Proof of-Failure to produce marriage certificate- Presumption as to deega nature of marriage-Rebuttal-Kandyan Marriage Ordinance (Cap. 116), s. 30. The matter in dispute was whether a Kandyan marriage was contracted in deega. No marriage certificate was produced at the trial. The evidence led, however, was sufficiently strong even to displace a presumption arising under section 30 of the Kandyan Marriage Ordinance. Held, that the marriage could not be declared to have been contracts in deega. APPEAL from a judgment of the District Judge, Kandy. Cont..
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NLR-Vol.49-P354
NLR - Vol.49, Page No - 354 1948 Present : Basnayake J. WIJERATNE, Appellant, and KUSUMAWATHIE, Respondent. S. C. 65-M. C. Kandy, 29,552. Maintenance-Corroboration of applicant-Nature of evidence required-Satisfaction of Magistrate-- Section 6, Chapter 75. The corroboration required by section 6 of the Maintenance Ordinance is corroboration to the satisfaction of the Magistrate. Where, therefore, there is evidence which, if believed, supports the Magistrate's conclusion that the mother of the child is corroborated in some material particular the Supreme Court should not on a reading of the depositions interfere on the mere question of the degree of corroboration. APPEAL from a judgment of the Magistrate, Kandy. F. A.Hayley, K.C, with Peri Sunderam, for the defendant, appellant. Cont..
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NLR - Vol.49- P381
NLR - Vol.49, Page No - 381 1948 Present : Nagalingam and Basnayake JJ. JASLINE NONA, Appellant, and SAMARANAYAKE, Respondent. S. C. 80-D. C. Matara, 15,497. Civil Procedure Code-Action for divorce-Adultery-Adulterer not made a defendant-No application for excuse-Provisions imperative-Sections 598 and 599 The provisions of sections 598 and 599 of the Civil Procedure Code are imperative. Where, therefore, a plaintiff sues for divorce on the ground of adultery but does not make the alleged adulterer a defendant nor apply for an excuse in terms of section 599 the plaint should be rejected. Cont..
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NLR - Vol.49-P440
NLR - Vol.49, Page No - 440 1948 Present : Jayetileke S.P.J. and Canekeratne J. EMI NONA et al, Appellants, and SUMANAPALA et al., Respondents. S. C. 4-D. C. (Inty.) Avissawella, 272. Kandyan Law-Marriage-Woman conducted to husband's house-Diga- Reacquisition of binna rights-Nature of evidence required. Where a Kandyan woman after marriage is conducted to her husband's house and lives there, the marriage is one in diga. Evidence that thereafter she visited her parents from time to time and stayed for some time with them, that she went to her parents' house for her confinement and attended on her father during his last illness is insufficient to establish a re-acquisition of binna rights. APPEAL from a judgment of the District Judge, Avissawella. Cont..
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NLR - Vol.49- P73
NLR - Vol.49, Page No - 73 1947 Present: Soertsz S. P. J. and Canekeratne J. DE SILVA, Appellant, and DE SILVA, Respondent. S. C. 362-D. C. Colombo, 720 D. Husband and wife-Divorce-Custody of child-Religious education of child- Husband's right of control. A father is entitled to control the religious education of his child. APPEAL from a judgment of the District Judge, Colombo. F. A. Hayley. K.C., with H. W. Jayewardene, for the defendant, appellant.-The District Judge has found that the respondent was not influencing the child so as to be antagonistic to the appellant and that the respondent was particularly respecting the wishes of the appellant in the matter of the religious education of the child. The judge further held that the respondent was the most Cont..
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NLR-Vol.4-P109
NLR - Vol.4, Page No - 109 PODINA v. SADA. P. C., Balapitiya, 80,239. Maintenance-Ordinance No. 19 of 1889-Irregular commencement of suit- Evidence of paternity- Competency of wife to give such evidence. Before summons can be served in a case of maintenance, under Ordinance No. 19 of 1889, it is necessary that there should be a written application to the Police Magistrate signed by the applicant, and an examination of the applicant on oath or affirmation. It is not necessary that the mother should be the applicant. The evidence of the wife to show who the true father is is not admissible till it has been established by independent evidence that the child is not the child of her husband. THIS was a case of maintenance. It appeared that the complainant was lawfully married to one Babuwa in 1893, but that she refrained from living with her husband, as she discovered soon after the Cont..
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NLR-Vol.4-P4
NLR - Vol.4, Page No - 4 EINA v. ERANERIS. P. C., Balapitiya, 20,220. Maintenance-- Scope of the Maintenance Ordinance Position of the Defendant- Nature of order of Magistrate dismissing application for Maintenance-Appeal there from to the Supreme Court. The maintenance Ordinance is not one dealing with criminal matter, but it provides a speedy and loss expensive way of enforcing a civil obligation resting on the father of a child, whether born in or out of wedlock, to maintain it. Maintenance cases. being civil in their nature, should be decided according to the balance of evidence, and not on the footing that the innocence of the "accused" is to be assumed until the contrary to proved. Maintenance is usually given to the mother on behalf of the child, but if she is unfit to receive the allowance, the Magistrate may order it to be paid to a person more fitted to have the care of the child. Cont..
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NLR-Vol.50-P 22
NLR - Vol.50, Page No - 22 1948 Present: Basnayake J. SARASWATHY, Appellant, and KANDIAH, Respondent. S. C. 132-M. C. Point Pedro, 9,991. Maintenance-Jurisdiction-Residence of defendant-Cause of action- Applicability of Civil Procedure Code-Maintenance Ordinance self-contained. The neglect or refusal of the defendant to maintain his wife and children may be regarded as a cause of action which will confer jurisdiction on a Court where proceedings are taken under the Maintenance Ordinance. Obiter : A Magistrate has jurisdiction to entertain an application under section 2 of the Maintenance Ordinance regardless of the residence of the parties or the place where the cause of action arises. The Maintenance Ordinance is self-contained and it is not correct to resort to the Civil Procedure Code to construe it. Cont..
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NLR-Vol.50-P238
NLR - Vol.50, Page No - 238 1948 Present : Dias and Gratiaen JJ. MARIKKAR, Appellant, and HABEEBA UMMA, Respondent S. C. 210-D. C. Puttalam, 5,026 Muslim Marriage Ordinance-Award of mahr by Kathi-Machinery to enforce award-Regular action not available-Remedy given by Ordinance- Chapter 99-Section 21 (1) (a) and 21 (4). An award of mahr by a Kathi under section 21 (1) (a) of the Muslim Marriage and Divorce Ordinance can be enforced only as provided by section 21 (4) of the Ordinance. A regular action cannot be brought to recover the amount of the award. APPEAL from a judgment of the District Judge, Puttalam. M. I. M. Haniffa, with Naina Marikar, for defendant appellant. Cont..
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NLR - Vol.50-P243
NLR - Vol.50, Page No - 243 1948 Present : Jayetileke and Dias JJ. UKKU, Appellant, and HORATHALA, Respondent S. C. 244-D. C. Matale, L 65 Kandyan Law-Acquired property-Right of succession-Illegitimate half brothers and sisters-Ordinance No. 39 of 1938, Sections 16 and 17. The words " brother " and " sister " in section 16 and 17 of the Kandyan Law Ordinance, No. 39 of 1938, connote a legitimate brother or sister of the full or the half blood. Neither under these sections nor under the customary law of the Kandyans can an illegitimate child inherit from a collateral source. APPEAL from a judgment of the District Judge, Matale. C. R. Gunaratne, for plaintiffs appellants. Cont..
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NLR - Vol.50-P276
NLR - Vol.50, Page No - 276 1922 Present: Bertram C.J. K. A. BANDA, Appellant, and ANGURALA et al., Respondents. S. C. 234-C. R. Kegalla, 16,342 Kandyan Law-Diga marriage-Forfeiture of rights-Waiver of forfeiture- Execution of series of deeds on footing of rights by other members of family-Re-acquisition. Where, in Kandyan Law, a forfeiture has taken place by reason of a diga marriage, it is not connection with the mulgedera which restores the binna rights. It is a waiver of the forfeiture of which the connection with the mulgedera is evidence. The execution of a series of deeds for a number of years by other members of the family on the footing that a diga married lady still possessed rights would be sufficient evidence of such waiver. APPEAL from a judgment of the Commissioner of Requests Kegalla. E. W. Jayawardene, with L. H. de Alwis, for the appellant. Cont..
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NLR-Vol.50-P310
NLR - Vol.50, Page No - 310 1948 Present. Basnayake J. ARUMUGAM, Appellant, and ATHAI, Respondent S. C. 986-M. C. Batticaloa, 3,413 Maintenance-Refusal by husband to pay-Wife living in adultery-What must be established-Maintenance Ordinance, s. 4. A person who asserts that his wife is disentitled by section 4 of the Maintenance Ordinance to receive an allowance by reason of the fact that she is living in adultery must establish that she is leading a life of continuous adulterous conduct. APPEAL from an order of the Magistrate, Batticaloa. G. Thomas, for the appellant. Cont..
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NLR - Vol.50-P317
NLR - Vol.50, Page No - 317 1949 Present : Wijeyewardene C.J., Canekeratne and Gratiaen JJ. MOHOTIHAMY, Appellant, and ALNINONA, Respondent S. C. 350-D. C. Ratnapura, 8,097 Kandyan Law-Intestate succession-Children by two beds-Devolution per stirpes or per capita- Inveterate error. Where a Kandyan, whether male or female, dies leaving children by two beds, the children succeed per stirpes and not per capita. APPEAL from a judgment of the District Judge, Ratnapura. E. B. Wikramanayake, K.C., with A. H. E. Molamure and J. W. Subasinghe, for defendant appellant. U. A. Jayasundere, K.C., with Vernon Wijetunge and C. G. Weeramantry, for plaintiff respondent. Cont..
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NLR-Vol.50-P 333
NLR - Vol.50, Page No - 333 1959 Present: Basnayake J. NAMASIVAYAM, Appellant, and SARASWATHY, Respondent S. C. 1,192-M. C. Mallakam, 6,080 Maintenance-Issue of summons-No examination of applicant on oath or affirmation-Jurisdiction of Magistrate-Maintenance Ordinance-Section 14. It is a condition precedent to the issue of summons in proceedings under the Maintenance Ordinance that the applicant should be examined on oath or affirmation and that the Magistrate should be satisfied that there is sufficient ground for proceeding. APPEAL from a judgment of the Magistrate, Mallakam. H. W. Tambiah, with Sharvananda, for the defendant-appellant. Cont..
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NLR - Vol.50- P-40
NLR - Vol.50, Page No - 40 1948 Present: Basnayake and Gratiaen JJ. FERNANDO, Appellant, and PEIRIS, Respondent. S. C. 503-D. C. Kalutara, 26,282. Nullity of marriage-Delay in bringing action-Three year rule-Discretion of Court-Proviso to section 602 of Civil Procedure Cods. An action for nullity of marriage on the ground of latent impotency should not be instituted until the lapse of at least three years from' marriage. Per Gratiaen J. (obiter): The proviso to section 602 of the Civil Procedure Code under which the Court can refuse a decree on grounds of unreasonable delay applies only to actions for divorce and not to actions for nullity of marriage. APPEAL from a judgment of the District Judge, Kalutara. N. K. Choksy, K.C., with Kingsley Herat, for plaintiff, appellant. Cont..
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NLR - Vol.50-P478
NLR - Vol.50, Page No - 478 1949 Present : Wijeyewardene C.J. and Gunasekera J. BANDARA MENIKE, Appellant, and IMBULDENIYA, Respondent S. C. 28-D. C. Kandy, 2,040 Kandyan Law-Estate of deceased husband in debt-Minor children-Payment of debts-Right of widow to mortgage property of deceased. Under the Kandyan law a widow has the right to mortgage the estate, of her deceased husband for the payment of his debts. APPEAL from a judgment of the District Judge, Kandy. H. W. Jayewardene, for plaintiff appellant. N. E. Weerasooria, K.C., with H. W. Tambiah, for defendant respondent. Cur. adv. vult. June 3, 1949. GUNASEKERA J.- This is an action for declaration of title to a land. The original owner Kiri Banda died leaving as his heirs his widow Pinchi Menika and four children, one of whom is the plaintiff-appellant. In Cont..
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NLR - Vol.50-P492
NLR - Vol.50, Page No - 492 1948 Present : Basnayake J. LAPAYA, Appellant, and SURUWAMIE et al., Respondents S. C. 269-C. R. Matale, 7,365 Kandyan law-Brothers married in association-Death of one-Devolution of his estate-Brothers with separate wives get no share. Under Kandyan law where brothers are married in association, on the death of one of them his estate devolves on the others to the exclusion of. those brothers who have separate wives. APPEAL from a judgment of the Commissioner of Requests, Matale. L. G. Weeramantry, for plaintiff appellant. H. W. Jayewardene, for defendants respondents. Cont..
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NLR-Vol.50-P 494
NLR - Vol.50, Page No - 494 1949 Present : Gratiaen J. SEBASTIAN PILLAI, Appellant, and MAGDALENE, Respondent S. C. 568-M. C. Kayts 10,641 Maintenance Ordinance-Issue of summons-Examination of applicant, on oath or affirmation-Not condition precedent to issue of summons- Chapter 76-Section 14. In regard to section 14 of the Maintenance Ordinance, the failure to examine the applicant on oath or affirmation before the issue of summons is at best an irregularity which does not necessarily vitiate all subsequent proceedings. Namasivayam v. Saraswathy (1949) 50 N. L. R. 333 dissented from. Podina v. Sada (1900) 4 N. L. R. 109 followed. APPEAL from a judgment of the Magistrate, Kayts. Cont..
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NLR-Vol.50-P84
NLR - Vol.50, Page No - 84 1948 Present: Basnayake J. RASAMANY, Appellant, and SUBRAMANIAM, Respondent S. C. 484--M. C. Anuradhapura, 21,381 Maintenance-Having sufficient means-Capacity to earn money-Liability of husband-Section 2. The word " means " in section 2 of the Maintenance Ordinance should be given a wide meaning and includes the capacity to earn money. APPEAL from a judgment of the Magistrate, Anuradhapura. H. W. Tambiah, with S. Sharvananda, for the applicant, appellant. C. Thiagalingam, for the defendant, respondent. July 21, 1948. BASNAYAKE J.- Cont..
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NLR - Vol.51- P384
NLR - Vol.51, Page No - 384 [ASSIZE COURT] 1950 Present: Dias J. THE KING v. ARUMUGAM S. C. 22-M. C. Chavakachcheri, 28,514 Hindu marriage-Dissolution-Decree of Court necessary-Wife's competency to testify against husband- Evidence Ordinance (Cap. 11), section 120. A Hindu customary marriage cannot be dissolved in any other way than by decree of a Court. A wife married according to Hindu customary rites cannot be called as a witness for the prosecution against her husband by virtue of section 120 of the Evidence Ordinance. Cont..
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NLR - Vol.51- P416
NLR - Vol.51, Page No - 416 [IN THE PRIVY COUNCIL] 1950 Present: Lord Porter, Lord Radcliffe and Sir John Beaumont ALLES, Appellant, and ALLES et at., Respondents Privy Council Appeal No. 76 of 1947 S. C. 118-119-D. C. Colombo, 586 Evidence Ordinance (Cap. 11)-Section 112-Child born during continuance of valid marriage- Presumption of legitimacy-Proof of " no access . In a suit for divorce the paternity of a child that was born during the continuance of the marriage was in issue, and the question for decision was whether the ostensible father (the appellant) had no access to the mother (the first respondent) at any time when the child could have been begotten. It was established that the only date upon which the appellant had access to the first respondent during any material period was the 9th August, 1941,. and that the child was born on 26th March, 1942. The interval between the two dates was 229 days, if both dates were included in the Cont..
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NLR - Vol.51-P430
NLR - Vol.51, Page No - 430 1949 Present: Windham J. and Gratiaen J. BISO MENIKA et al., Appellants, and PUNCHIAMMA et al, Respondents S. C. 294-D. C. Matale, L 125 Kandyan Law-Deed of. gift in consideration of marriage-Revocability-Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938-Sections 4 (I) and 5 (1) (b)-Meaning of " expressed to be in consideration of a future marriage ". A deed of gift in consideration of marriage, to be irrevocable in terms of section 5 (1) (6) of the Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938, must not only be proved to be in consideration of a future marriage, but must also be " expressed to be " in consideration of a future marriage. The deed of gift must state expressly, and not merely use words from which the inference might or even must be drawn, that the gift is in. consideration of a future marriage. APPEAL from a judgment of the District Court, Matale. Vernon Wijetunge, for plaintiffs appellants. Cont..
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NLR - Vol.51- P 547
NLR - Vol.51, Page No - 547 1950 Present: Jayetileke C.J. and Pulle J. ANNAMMAH, Appellant, and SUBRAMANIAM, Respondent S. C. 436-D. C. Jaffna, 462 Divorce action-Non-appearance of defendant-Decree nisi-Requirement of personal service of notice- Civil Procedure Code, ss. 85, 596, 604. Where owing to the non-appearance of defendant a decree nisi is entered in favour of the plaintiff in a. matrimonial action the procedure laid down in section 85 of the Civil Procedure Code must be followed and notice of the decree nisi must be served personally on the defendant, unless the Court directs some other mode of service. APPEAL from an order of the District Court, Jaffna. H. V. Perera, K.C., with T. Somasunderam, for defendant appellant. N. E. Weerasooria, K.C., with V. K. Kandaswamy, for plaintiff respondent. Cont..
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NLR - Vol.51-P 575
NLR - Vol.51, Page No - 575 1950 Present: Windham J. and Basnayake J. ROMANIS, Appellant, and HARAMANISSA et al., Respondents S. C. 341-D. C. Kegalla, 4,615 Kandyan Law-Deed of gift-Revocability- Kandyan Law Ordinance, No. 39 of 1938. A Kandyan deed of gift executed prior to 1st January, 1939, is, subject to certain exceptions, revocable. APPEAL from a judgment of the District Court, Kegalla. V. A. Kandiah, with V. K. Kandaswamy, for plaintiff-appellant. E. B. Wikramanayake, K.C., with C. E. S. Perera, for defendant-respondents. March 30, 1950. BASNAYAKE J.- This is an appeal from the judgment of the District Judge of Kegalla holding that a deed of revocation of a deed of gift executed by one Bandiya is valid and effectively revokes the gift made by him. Shortly the facts are as follows : - Cont..
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NLR - Vol.51-P 63
NLR - Vol.51, Page No - 63 1948 Present: Basnayake and Gratiaen JJ. APPU NAIDE, Appellant, and HEEN MENIKA et al., Respondents S. C. 53-D. C. Badulla, 8,142 Kandyan law-Daughters married in deega-No re-acquisition of binna rights- Lands possessed in common by daughters also-Acquiescence. Where a Kandyan permits his sisters, in spite of their marriage in deega. to possess their share of the land for a long period of time, he has acquiesced in their right and cannot be permitted to deny it. APPEAL from a judgment of the District Judge, Badulla. Cyril E. S. Perera, for plaintiff appellant. N. Kumarasingham., for defendants respondents. Cont..
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NLR-Vol.52-P156
NLR - Vol.52, Page No - 156 1950 Present . Jayetileke C.J. and Swan J. ABDUL CADER, Appellant, and RAZIK et al., Respondents S. C. 27-D. C. Colombo, 4,518/G Muslim Law-Marriage-Muslim maiden of Hanafi sect-Below 21 years of age- Her right to marry without assistance of wali-Age of Majority Ordinance (Cap. 53)-Muslim Marriage and Divorce Registration Ordinance (Cap. 99), Sections 8 (1) and 50. A Muslim attains " majority ", for purposes of marriage, on reaching the age of bulugh or puberty. There are Muslims of other sects than the Shaft sect in Ceylon, and, in a matter of marriage or divorce, a Muslim is governed by the law of the sect to which he or she belongs. A Muslim maiden, therefore, of the Hanafi sect who has reached the age of bulugh can enter into a contract of marriage without the intervention of a wali or marriage guardian, or appoint a wall herself for the purpose of her marriage. In the case of a maiden of the Shaft sect, whatever her age may be a wali is necessary. Cont..
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NLR-Vol.52-P262
NLR - Vol.52, Page No - 262 1950 Present: Swan J. KARUPPIAH KANGANY, Appellant, and RAMASAMY KANGANY, Respondent S. C. 701-M. C. Badulla, 8,754 Maintenance Ordinance (Cap. 76)-Section 6-Application for maintenance of illegitimate child- Evidence of mother of child-Not an essential requirement. Defendant was sued for maintenance for an illegitimate child born to one K a deaf and dumb woman. The application was made by K's father, and K herself did not give evidence. Held, that section 6 of the Maintenance Ordinance cannot be interpreted to mean that the evidence of the mother is an essential requirement, that without it a Magistrate would have no jurisdiction to make an order for the maintenance of an illegitimate child. APPEAL from a judgment of the Magistrate's Court, Badulla. Cont..
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NLR - Vol.52-P314
NLR - Vol.52, Page No - 314 1950 Present .Nagalingam J. and Pulle J. AUSADAHAMY et al, Appellants, and TIKIRI BANDA, Respondent S. C. 234-D. C. Kurunegala, 5,155 Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938-Inheritance -Rights of childless Kandyan widow to life interest in. acquired property of deceased husband-Meaning of "acquired property"-Retrospective effect of Ordinance-Sections 10, 11, 26. M gifted certain immovable property to his son U in 1908. U gifted it in 1917 to his son P. P, who was a Kandyan, died in 1943, intestate and issueless leaving him surviving his widow, his brother and another. Held, that the property in the hands of P was " acquired property " and that on his death his widow became entitled to a life interest over it. Cont..
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NLR-Vol.52-P378
NLR - Vol.52, Page No - 378 1950 Present: Nagalingam J. DINGIRIMENIKA, Appellant, and KIRIAPPU, Respondent S. C. 289-M. C. Kegalle (Additional), 14,470 Maintenance Ordinance (Cap. 76)-Jurisdiction-Court through which maintenance order is enforceable- Court where suit for maintenance may he instituted'- Sections 2, 8, 11. An order of maintenance may be enforced not only through the Court within the jurisdiction of which the respondent resides but also through the Court in which the order itself wag originally made Any Magistrate's Court has jurisdiction to entertain an application for maintenance irrespective of the question where the applicant or the respondent resides. APPEAL from an order of the Magistrate's Court, Kegalle. Cont..
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NLR-Vol.53-P137
NLR - Vol.53, Page No - 137 1951 Present: Gratiaen J. and Pulle J. MANELHAMY et al, Appellants, and SILINDUHAMY et al., Respondents S. C. 67-D. C . Kurunegala, 3,781 Kandyan Marriage Ordinance (Cap. 96)-Marriage contrasted prior to passing of Ordinance-Binna or diga-Burden of proof-Section 36. In regard to a Kandyan marriage contracted before the Kandyan Marriage Ordinance was passed, the burden of proving that the marriage was in diga is on the person who asserts it. In the absence of a certificate of the registration of a marriage under the Kandyan Marriage Ordinance there is no scope for the application of the presumption created by section 36. APPEAL from a judgment of the District Court, Kurunegala. H. W. Jayewardene for the 1st, 2nd and 3rd defendants appellants. Cont..
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NLR-Vol.53-P310
NLR - Vol.53, Page No - 310 1951 Present: Basnayake J. TURIN, Appellant, and LIYANORA, Respondent S. C. 520-M. C. Galle, 19,036 Maintenance Ordinance-Illegitimate child-Corroboration of mother's evidence- Section 6. Where, in an. application for maintenance of an illegitimate child, the evidence of the mother is unreliable the question of corroboration does not arise, and the applicant cannot in such a case succeed. APPEAL from a judgment of the Magistrate's Court, Galle. . G. E. Chitty, with G. L. L. de Silva, for the defendant appellant. No appearance for the applicant respondent. Cont..
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NLR-Vol.53-P63
NLR - Vol.53, Page No - 63 1951 Present: Rose C.J. SEEDIN, Appellant, and THEDIYAS, Respondent S. C. 174-C. R. Matara, 3,092 Partition, decree-Creates new title in the parties Married Women's Property Ordinance (Cap. 46), s. 10 (1). Partition decrees are not, like other decrees affecting land, merely declaratory of the existing rights of the parties inter se. They create a new title in the parties. Where, therefore, a woman who possessed an undivided share of a land prior to the commencement of the Married Women's Property Ordinance is awarded in a partition decree entered after the commencement of that Ordinance a divided lot in lieu of her undivided share, she is entitled, under section 10 (1) of the Ordinance, to dispose of the divided lot without the consent of her husband. The partition decree operates to defeat the interest which the husband previously had in his wife's share in the undivided land. Cont..
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NLR-Vol.54-P201
NLR - Vol.54, Page No - 201 [IN THE PRIVY COUNCIL] 1952 Present : Viscount Simon, Lord Morton of Henryton, Lord Cohen and Sir Lionel Leach A. H. M. ABDUL CADER, Appellant, and A. R. A. RAZIK et al., Respondents Privy Council Appeal No. 37 of 1951 S. C. 27-D. C. Colombo, 4518/G Muslim Law--Marriage-Minor's capacity to marry-Age of majority-Significance of sect--Muslim Marriage and Divorce Registration Ordinance (Cap. 99), s. 50--Age of Majority Ordinance (Cap. 53). For the purpose of marriage a Muslim in Ceylon attains " majority " on reaching the age of puberty. In a matter of marriage or divorce a Muslim is governed by the law of the sect to which he or she belongs. A Hanafi girl, therefore, who has attained the age of puberty can marry without the Cont..
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NLR-Vol.54-P210
NLR - Vol.54, Page No - 210 1951 Present : H. A. de Silva J. PUNCHI, Appellant, and TIKIRI BANDA, Respondent S. C. 1,192-M.C. Kandy, 8,580 Maintenance-Withdrawal of application-Institution of second suit-Res judicata. Where an applicant in an application for maintenance in respect of an illegitimate child withdrew her case on the date of trial stating that she had not enough evidence to prove paternity and subsequently made a second application in respect of the same child- Held, that the order of dismissal in the first suit operated as bar to the second application. APPEAL from a judgment of the Magistrate's Court, Kandy. P. Somatilakam, for the applicant appellant. Cont..
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NLR-Vol.54-P373
NLR - Vol.54, Page No - 373 1952 Present : Swan J. HINNIAPPUHAMY, Appellant, and WILISINDAHAMY, Respondent S. C. 461-M.C. Galle, 1947 Maintenance Ordinance (Cap. 76)-Order for maintenance of child-Extension of such order-Scope of- Right of appeal-Sections 2, 7 and 17. Appeal lies from an order made under the proviso to section 7 of the Maintenance Ordinance extending the period of maintenance in respect of a child to eighteen years. A Magistrate has no jurisdiction to extend the period of maintenance if the child has passed the age of sixteen on the date when the application for extension is made. APPEAL from a judgment of the Magistrate's Court, Galle. M. L. S. Jayasekere, with W. P. N. de Silva, for the defendant appellant. Cont..
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NLR-Vol.54-P43
NLR - Vol.54, Page No - 43 1951 Present : Nagalingam J. SOMASUNDERAM, Appellant, and PERIYANAGAM, Respondent S. C. 517-M.C. Nuwara Eliya, 6,414 Maintenance-Illegitimate child-Applicant's evidence that defendant supported child within a year of its birth-Corroboration not necessary-Maintenance Ordinance (Cap. 76), s. 6. In an application for the maintenance of an illegitimate child no corroboration of the applicant's evidence on the point as to whether the defendant had maintained the child within a year of its birth is required. APPEAL from a judgment of the Magistrate's Court, Nuwara Eliya. M. I. Mohamed, for the defendant appellant. D. J. Thampu, for the applicant respondent. Cont..
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NLR - Vol.54- P91
NLR - Vol.54, Page No - 91 1951 Present : Basnayake J. and Pulle J. DE MEL, Appellant, and DE MEL et al., Respondents S. C. 277-D. C. Colombo, 1,250/D Divorce-Malicious desertion-Unfounded charge of adultery. Where a husband suspected without reasonable grounds that his wife had committed adultery and ordered her to leave the house and refused to be reconciled to her unless she gave a written confession of adultery- Held, that there was malicious desertion on the part of the husband. APPEAL from a judgment of the District Court, Colombo. Cont..
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NLR - Vol.55-P108
NLR - Vol.55, Page No - 108 1953 Present: Gratiaen J. and Weerasooriya J. L. A. DISSANAYAKE, Appellant, and G. M. PUNCHI MENIKKE et al., Respondents S. C. 159-D. C. Kurunegala, 3,902 Kandyan Law-Binna marriage-Subsequently registered as Diga-Effect of such registration-Binna married daughter who leaves mulgedera-Her rights of inheritance. Where a Kandyan marriage contracted in binna was registered three years later and was described in the marriage register as a diga marriage Held, that the entry in the register as to the nature of the marriage was rebuttable by other evidence. Held further, (i) that the marriage, upon its registration, became valid as from the date of the Cont..
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NLR-Vol.55-P11
NLR - Vol.55, Page No - 11 1952 Present: Rose C.J. PUNCHIAPPUHAMY, Appellant, and WIMALAWATHIE, Respondent S. C. 112-M. C. Kurunegala, 56,227 Maintenance Ordinance (Cap. 76)-Section 6-Illegitimate child-Equivocal acts- Corroborative value thereof. Where, in an application for the maintenance of an illegitimate child, the acts relied upon as corroboration are equivocal, it is for the Magistrate to decide whether in the circumstances of the particular case such equivocal acts in fact corroborate the applicant's story. APPEAL from a judgment of the Magistrate's Court, Kurunegala. H. V. Perera, Q .C., with Austin Jayasuriya, for the defendant appellant. Cont..
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NLR-Vol.55-P13
NLR - Vol.55, Page No - 13 1953 Present: Gratiaen J. L. WIMALAWATHIE KUMARIHAMY, Appellant, and W. S. B. IMBULDENIYA, Respondent S. C. 785-M. C. Kandy, 30,754 Kandyan Marriage Ordinance (Cap. 96)-Dissolution of marriage-Maintenance- Temporary re-union-Effect on future maintenance-Section 20 (6). Where a wife obtains an order of maintenance against her husband on dissolution of their marriage under the provisions of the Kandyan Marriage Ordinance, a temporary re-union between them subsequently with a view to re-marriage does not amount to a waiver of her right to future maintenance if the contemplated re-marriage does not take place. APPEAL from an order of the Magistrate's Court, Kandy. Cont..
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NLR-Vol.55-P188
NLR - Vol.55, Page No - 188 1953 Present: Swan J. H. NANDUWA, Appellant, and R. NANDAWATHIE, Respondent S. C. 76-M. C. Panwila, 7,121 Maintenance Ordinance, a. 6-Application on behalf of illegitimate child-Evidence- Silence may amount to admission-Corroboration. In an application for the maintenance of an illegitimate child, evidence of the failure of the putative father to refute allegations made against him by a head man on an occasion which demanded a denial or a protest may amount to corroboration. APPEAL from a judgment of the Magistrate's Court, Panwila. K. C. de Silva, with Ananda de Silva, for the defendant appellant. Cont..
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NLR - Vol.55-P316
NLR - Vol.55, Page No - 316 1953 Present: Pulle J. and Swan J. P. THEPANISA et al., Appellants, and P. HARAMANISA et al., Respondents S. C. 228-D. C. Kegalle, 4,722 Kandyan Law-Fideicommissary deed of gift-Revocability. The creation of a fideicommissum by a Kandyan deed of gift does not by itself affect its revocability. APPEAL from a judgment of the District Court, Kegalle. C. Thiagalingam, Q. C., with B. S. C. Ratwatte, for the defendants appellants. Cyril E. S. Perera, Q .C., with P. Somatilakam, for the plaintiffs respondents. Cont..
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NLR - Vol.55-P382
NLR - Vol.55, Page No - 382 1954 Present: Gratiaen J. and Gunasekara J. FREDA WICKREMASINGHE, Appellant, and D. H. KIRIMUTTU et al., Respondents S. C. 80-D. C. Kegalle, 7,194 Kandyan Law-Kandyan widow-Digs association with another man after death of husband-Forfeiture of her rights informer husbands property. A Kandyan widow (whose husband died before the Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938, came into operation) forfeits her life-interest in her husband's acquired property if, without contracting a valid marriage, she forms a diga association with another man. APPEAL from a judgment of the District Court, Kegalle. B. H. Aluwihare, with W. D. Gunasekera, for the 3rd defendant appellant. Cont..
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NLR - Vol.55- P410
NLR - Vol.55, Page No - 410 1954 Present: Gratiaen J. and Gunasekara J. JAYASINGHE, Appellant, and JAYASINGHE, Respondent S. C. 29-D. C. Gampaha, 1179/1182D Divorce action-Requisite standard of proof-Condonation of adultery-No issue raised at trial- Circumstances when Court is put upon inquiry-Civil Procedure Code, s. 602. In an action for divorce on the ground of adultery- Held, (i) that the words " satisfied on the evidence " in section 602 of the Civil Procedure Code mean that in actions for divorce the Court must demand the same general standard of proof beyond reasonable doubt as is required to support a conviction in a criminal court. Cont..
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NLR-Vol.55-P54
NLR - Vol.55, Page No - 54 1953 Present: Nagalingam A.C.J. I. F. ABEYAWARDENE, Petitioner, and C. E. JAYANAYAKE et al., Respondents S. C. 190-Application for a Writ of Habeas Corpus Habeas corpus-Surrender and abandonment of a child by its parents-Custodian's duty of registration- Adoption of Children Ordinance, No. 24 of 1941, ss. 19, 26. Where the custody of a child is transferred by its natural parent to a third party in circumstances not amounting to adoption, it is generally the duty of the third party, under section 19 of the Adoption of Children Ordinance, to have himself registered as the custodian of the child. Failure to register renders him liable to restore the child's custody to the natural parent, even if the restoration is prejudicial to the best interests of the child. APPLICATION for a writ of habeas corpus. D. S. Jayawickreme, for the petitioner. Cont..
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NLR - Vol.55- P87
NLR - Vol.55, Page No - 87 1952 Present: Rose C.J. N. SUBRAMANIAM, Petitioner, and PAKKIYALEDCHUMY, Respondent S. C. 92-Application in revision in 31. C Jaffna (Addl.) 21,446 Divorce-Decree nisi entered in favour of wife-Re-marriage before decree is made absolute-Right to claim maintenance as wife-Marriage by habit and repute- Maintenance Ordinance (Cap. 76), s. 2. The applicant, who had obtained a decree nisi in divorce proceedings against her husband K., alleged that she contracted a second marriage with S. and claimed maintenance for herself from S. before the decree nisi in the divorce proceedings had been made absolute. Cont..
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NLR-Vol.55-P 87
NLR - Vol.55, Page No - 87 1952 Present: Rose C.J. N. SUBRAMANIAM, Petitioner, and PAKKIYALEDCHUMY, Respondent S. C. 92-Application in revision in 31. C Jaffna (Addl.) 21,446 Divorce-Decree nisi entered in favour of wife-Re-marriage before decree is made absolute-Right to claim maintenance as wife-Marriage by habit and repute- Maintenance Ordinance (Cap. 76), s. 2. The applicant, who had obtained a decree nisi in divorce proceedings against her husband K., alleged that she contracted a second marriage with S. and claimed maintenance for herself from S. before the decree nisi in the divorce proceedings had been made absolute. Held, that the applicant was not entitled to claim maintenance as wife of S. under section 2 of the Maintenance Ordinance. In such a case, the presumption of marriage by habit and repute is not applicable. Cont..
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NLR-Vol.55-P95
NLR - Vol.55, Page No - 95 1952 Present: Swan J. H. VELENIS, Appellant, and L. EMMIE, Respondent S. C. 825-M. C. Kalutara, 14,060 Maintenance-Application by wife and child-Denial of paternity of child-Burden of proof. Where a wife sued her husband for maintenance for herself and a child and the husband admitted that the applicant was his wife but denied the paternity of the child Held; that the burden was on the defendant to establish his defence first. APPEAL from a judgment of the Magistrate's Court, Kalutara. Titus Goonetilleke, for the defendant-appellant. No appearance for the applicant-respondent. Cont..
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NLR - Vol.56-P247
NLR - Vol.56, Page No - 247 1955 Present: Gratiaen J. and Sansoni J. B. A. J. APPUHAMY, Appellant, and B. S. SILVA et at., Respondents S. C. 34-D. C. Kurunegala, 4,087 Kandyan Law-Child born in diga marriage-Death intestate and issueless- Inheritance-Stare decisis. When a Kandyan child born in a diga marriage dies intestate and without issue, his interests in immovable property inherited from his deceased mother (who had herself inherited the property from her father because, in spite of her diga marriage, she had for one reason or another not forfeited her rights or succession) pass absolutely to his father. Chelliah v. Kuttapitiya Tea and Rubber Co. Ltd. (1932) 34 N. L. R. 89, followed. Bisona v. Janga (1948) 41 C. L. W. 40, not followed. It is undesirable to disturb a long-established ruling on any question of law affecting rights of Cont..
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NLR-Vol.56-P 275
NLR - Vol.56, Page No - 275 1953 Present: Swan J. D. SIMON APPU, Appellant, and N. H. SOMAWATHIE, Respondent S. C. 889-M. C. Walasmulla, 12,676 Maintenance-Order of court in favour of wife-Subsequent covenant in a deed of separation-Effect thereof on maintenance suit-Maintenance Ordinance, ss. 2, 5 . Where a married woman obtains an order for maintenance against her husband, a subsequent deed of separation between them puts an end, in effect, to the wife's rights and the husband's liability under the order. In such a case, the husband would be entitled to claim a cancellation of the order under section 5 of the Maintenance Ordinance. Parupathipillai v. Arumugam (1944) 46 N. L. R. 35, not followed. APPEAL from a judgment of the Magistrate's Court, Walasmulla. Cont..
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NLR-Vol.56-P422
NLR - Vol.56, Page No - 422 1955 Present : Sansoni J. M. K. AMBALAVANAR et al., Appellants, and A. NAVARATNAM, Respondent S. C. 63-C. R. Kayts, 7,155 Maintenance-Destitute parent-Right to maintenance from children. The Roman Dutch Law rule that children are liable to support their parents who are in indigent circumstances obtains in Ceylon. APPEAL from a judgment of the Court of Requests, Kayts. C. Renganathan, for the plaintiffs appellants. No appearance for the defendant respondent. Cont..
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NLR - Vol.56-P511
NLR - Vol.56, Page No - 511 1954 Present: Nagalingam S.P.J. and Fernando A.J. M. U. LOKUBANDA ARACHCHI el al, Appellants, and P. M. I. L. S. MOHAMED et al., Respondents S. C. 166-D. C. Kandy, 2,791 Kandyan Law-Donation-Revocability--Covenant to render succour to a party other than the donor- Validity-Construction of deed. A Kandyan revocable deed of gift is revoked by the donor if he executes a later and inconsistent deed. Under Kandyan Law a deed of gift in consideration of assistance to be rendered to the donor is revocable subject to compensation for assistance actually rendered. A convenant in a gift by a brother to a sister that the sister should look after and render succour and assistance to their mother is valid under the Kandyan Law. Cont..
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NLR - Vol.56-P529
NLR - Vol.56, Page No - 529 1955 Present: Gratiaen J. and Sansoni J. H. M. T. B. HERAT, Appellant, and T. M. T. B. AMUNUGAMA, Respondent S. C. 1-D. C. Kurunegala, 6,639 Fiduciary relations-Administrator and beneficiary-Gaining of "pecuniary advantage " by fiduciary- Constructive trust-Trusts Ordinance (Cap. 72), s. 90--Kandyan Law-Adoption-Ordinance No. 39 of 1938, s. 7. A, the administratrix of her deceased husband's estate, was entitled, under the Kandyan Law, to a life-interest in the entire property of the deceased, who died issueless. Although, according to her application for letters of administration, the only other heir was B, the adopted child of the deceased, two other persons (C and D), who were the children of the deceased's sister, intervened in the testamentary action and claimed that they were the sole intestate heirs of the deceased (subject to the widow's admitted life-interest); G and D denied that the " adoption " of B was of a Cont..
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NLR-Vol.56-P549
NLR - Vol.56, Page No - 549 1954 Present : Pulle J. S. D. FERNANDO, Appellant, and MILLY NONA, Respondent S. C. 876-A. M. C. Colombo, 19,878 Maintenance- Application by wife-Presence of husband's mother-Is it a valid ground ? In an application for maintenance made by a wife- Held, that the bare fact that the husband's mother was in the same house was not a sufficient reason for the wife's refusal to live with him. APPEAL from a judgment of the Additional Magistrate's Court, Colombo. E. A, G. de Silva, for the defendant-appellant. M. L. S. Jayasekera, with B. E, de Silva, for the applicant-respondent. Cont..
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NLR - Vol.56- P93
NLR - Vol.56, Page No - 93 1954 Present: Nagalingam A.C.J. W. J. SILVA, Appellant, and L. KARUNAWATHIE, Respondent S. C. 856-M. C. Galle, 6,580 Maintenance-Child-Order made in divorce proceedings-Jurisdiction of Magistrate's Court to award maintenance subsequently. Where an order for the maintenance of a child entered in divorce proceedings has been carried out by the deposit of a certain sum of money in the District Court, the jurisdiction of a Magistrate to make a subsequent order for the maintenance of that child becomes ousted to that extent. APPEAL from a judgment of the Magistrate's Court, Galle. Christie Seneviratne, with Felix Diets, for the respondent-appellant. A. L. Jayasuriya, with J. C. Thurairatnam, for the applicant-respondent. March 30, 1954. NAGALINGAM A.C.J.- Cont..
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NLR-Vol.56-P 93
NLR - Vol.56, Page No - 93 1954 Present: Nagalingam A.C.J. W. J. SILVA, Appellant, and L. KARUNAWATHIE, Respondent S. C. 856-M. C. Galle, 6,580 Maintenance-Child-Order made in divorce proceedings-Jurisdiction of Magistrate's Court to award maintenance subsequently. Where an order for the maintenance of a child entered in divorce proceedings has been carried out by the deposit of a certain sum of money in the District Court, the jurisdiction of a Magistrate to make a subsequent order for the maintenance of that child becomes ousted to that extent. APPEAL from a judgment of the Magistrate's Court, Galle. Christie Seneviratne, with Felix Diets, for the respondent-appellant. A. L. Jayasuriya, with J. C. Thurairatnam, for the applicant-respondent. Cont..
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NLR - Vol.57-P333
NLR - Vol.57, Page No - 333 1956 Present : Gratiaen, J., and Gunasekara, J. SONNANDARA, Appellant, and DINGIRI ETANA et al., Respondents S. C. 453-D. C. Kegalle, 6,883 Kandyan Law-Death of person intestate and issueless-Inheritance-" Acquired property "-Kandyan Law Declaration and Amendment Ordinance No. 39 of .1938, proviso to s. 10 (1). The proviso to section 10 (1) of the Kandyan Law Declaration and Amendment Ordinance confirmed the earlier law when it declared : " . . . . if the deceased shall not have left surviving him any child or descendant, property which had been the acquired property of the person from whom it passed to the deceased shall be deemed acquired property of the deceased. " APPEAL from a judgment of the District Court, Kegalle. Cont..
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NLR - Vol.57-P453
NLR - Vol.57, Page No - 453 1956 Present : Basnayake, A.C.J., and Weerasooriya, J. RAN MENIKA, Appellant, and NANDOHAMY et al., Respondents S. C. 227-D. C. Kurunegala (Inty.) 4849/T Kandyan Law-Illegitimate daughter married in diga-Forfeiture of right to inherit father's acquired property-Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938, ss. 13, 15 (c). Section 15 (c) of the Kandyan Law Declaration and Amendment Ordinance does not enable a diga married illegitimate daughter to have a right of inheritance to her father's acquired property. Where a Kandyan died intestate leaving legitimate children and also an illegitimate daughter who was married in diga - Held, that the illegitimate daughter had no right of inheritance to her father's acquired property. APPEAL from a judgment of the District Court, Kurunegala. C. R. Guneratne, for 2nd respondent-appellant. Cont..
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NLR - Vol.57- P489
NLR - Vol.57, Page No - 489 1954 Present : Ross, C.J., and Sansoni, J. W. J. SILVA, Appellant, and L. KARUNAWATHIE, Respondent S. C. 856-M. C. Galle, 6,580 Maintenance-Child-Order made in divorce proceedings-Jurisdiction of Magistrate's Court to award maintenance subsequently. Where an order for the maintenance of a child entered in divorce proceedings has been carried out by the deposit of a certain sum of money in the District Court, the jurisdiction of a Magistrate to make a subsequent order for the maintenance of that child becomes ousted to that extent. Decree for judicial separation may be entered although the party seeking it is entitled on the evidence to ask for the greater relief of a divorce. Cont..
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NLR - Vol.57-P73
NLR - Vol.57, Page No - 73 1955 Present: Basnayake, A.C.J., and Pulle, J. WIMALAWATHIE, Appellant, and PUNCHI BANDA, Respondent S. C. 449-D. C. (Final) Kegalla, 8,517 Kandyan Law-Diga marriage-Death of wife intestate-Husband's rights in respect of wife's acquired property-Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938, ss. 15, 18. The law as laid down in Tikiri Banda v. Appuhamy (1914) 18 N. L. R. 105 that the surviving husband of a diga marriage has a life interest in the acquired property of his deceased wife has not been altered by section 18 of the Kandyan Law Declaration and Amendment Ordinance. The husband's right is unaffected by the fact that there are children by a former marriage of the deceased spouse. APPEAL front a judgment of the District Court, Kegalla. C. R. Gunaratne, for the plaintiff-appellant. Cont..
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NLR-Vol.58-P 111
NLR - Vol.58, Page No - 111 1954 Present: Sansoni, J. J. K. WARAWITA, Appellant, and JANE NONA, Respondent S.C. 1,563-A. M C. Colombo, 20,040 Maintenance-Illegitimate child-False statements made by defendant-Corroborative evidence. In an application for maintenance in respect of an illegitimate child, evidence of mere opportunity for intimacy between the mother and the defendant does not amount to corroboration, but a ralse statement made by the defendant denying such opportunity may remove a doubt that may exist on the question of corroborative evidence. APPEAL from a judgment of the Additional Magistrate's Court, Colombo. H. V. Perera, Q. C, for the defendant-appellant. No appearance for the applicant-respondent. Cont..
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NLR - Vol.58-P337
NLR - Vol.58, Page No - 337 1956 Present: Basnayake, C.J., and Pulle, J. DAYANGANIE and another, Appellants, and SOMAWATHIE and another, Respondents S.C. 203-D.C. (Inty.) Avissawella LA/279 Kandyan Law-Adoption-Inference from facts and circumstances-Oral public declaration not essential- Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938, s. 7. Evidence of a public declaration by the adoptive parent on a formal occasion that a particular child was adopted for the purpose of inheriting his estate is not necessary in order to prove the fact of adoption of an heir under the Kandyan Law (prior to the commencement of the Kandyan Law Declaration and Amendment Ordinance). All that is needed is reliable, clear and unmistakable evidence in whatever form of the adoptive parent's intention to make the foster child his heir. Tikiri Banda v. Loku Banda (1905) 2 Bal. R. 144 and Tikiri Kumarihamy v. Punchi Banda (1901) 2 Browne 299, not followed. Cont..
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NLR - Vol.58-P 560
NLR - Vol.58, Page No - 560 1957 Present: Sansoni, J., and L. W. de Silva, A.J. H. P. JAMES, Appellant, and R. MEDDUMA KUMARIHAMY, Respondent S. C. 381-382-D. C. Kegalle, 8,773/L Kandyan Law-Diga marriage-Is marriage certificate sufficient proof?-Burden of proof-Forfeiture of paternal inheritance-Evidence Ordinance (Cap. 11), s. 114-Amended Kandyan Marriage Ordinance, No. 3 of 1870. In cases governed by the Amended Kandyan Marriage Ordinance of 1870 the production of a diga marriage certificate is of itself sufficient to prove not only that the wife was married in diga but also that she forfeited her paternal inheritance ; the burden thereafter shifts to her, or to those claiming through her, to prove that the subsequent conduct of the parties was such that no forfeiture in fact took place. Co-owners-Prescriptive possession as between them. Cont..
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NLR - Vol.59-P157
NLR - Vol.59, Page No - 157 1957 Present : Basnayake, C.J., Pulle, J., K. D. de Silva, J., T. S. Fernando, J., and L. W. de Silva, A.J. MALLAWA and another, Appellants, and SOMAWATHIE GUNASEKERA, Respondent S. C. 180-D. C. Kandy, P. 3,317 Kandyan Law (prior to Ordinance No. 39 of 1938)-Illegitimate daughter-Sole illegitimate child- Marriage in diga- Right to inherit father's acquired property-Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938, s. 14. Under Kandyan Law prior to the Kandyan Law Declaration and Amendment Ordinance No. 39 of 1938, when a father died leaving legitimate children and also a sole illegitimate child who was a daughter, the illegitimate daughter did not forfoit her right to a moiety of the acquired property of her father by marrying in diga after his death, even where the parents of both the legitimate and the illegitimate children were the same. Cont..
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NLR-Vol.59-P227
NLR - Vol.59, Page No - 227 1957 Present : Basnayake, C.J., and Pulle, J. MOHIDEEN and others, Appellants, and SULAIMAN and others, Respondents S. C. 340/L-D. G. Colombo, 6,238/F Muslim Law-Sale of land-Applicability of Roman-Dutch Law-Fideicommissum- Sale of contingent interest-Validity-Muslim Marriage and Divorce Act, No. 13 of 1951, s. 99 (1) and (2)-Muslim Intestate Succession and Wakfs Ordinance, No. 10 of 1931, ss. 2, 3, 4. A contract of sale of immovable property between Muslims is governed by the general law, viz., the Roman-Dutch Law and the legislation applicable to such a transaction. Where, in a sale of land between Muslims, the property sold was subject to a fideicommissum and the joint vendors were the fiduciarius and the fideicom-missarii- Held, that the sale was not a transaction to which the Muslim Law applied, but one which was Cont..
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NLR - Vol.59- P233
NLR - Vol.59, Page No - 233 [IN THE PRIVY COUNCIL] 1957 Present : Lord Merriman, Lord Reid, Lord Somervell of Harrow Lord Denning and Mr. L. M. D. de Silva E. C. PERERA, Appellant, and J. HALWATURA and another, Respondents Privy Council Appeal No. 11 of 1957 S. C. 577-D. C. Kandy, 754 Cont..
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NLR-Vol.59-P263
NLR - Vol.59, Page No - 263 1957 Present : T. S. Fernando, J. L. SIRIWARDANA, Appellant, and D. EMALIN, Respondent S. C. 564-M. C. Gampaha, 36,344 Maintenance-Arrears due-Maximum term of imprisonment that may be imposed on defendant-Criminal Procedure Code, s. 312-Maintenance Ordinance, s. 8. Where a person who is ordered to pay maintenance is in arrears for more than six months, the Magistrate has jurisdiction to sentence him to imprisonment for a term which may exceed six months. In such a case, the maximum term of imprisonment is determined by section 8 of the Maintenance Ordinance and not by section 312 of the Criminal Procedure Code. APPEAL from an order of the Magistrate's Court, Grampaha. In this case the defendant, who had been ordered to pay maintenance, was in arrears for 6 years. Cont..
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NLR - Vol.59- P284
NLR - Vol.59, Page No - 284 1957 Present : H. N. G. Fernando, J., and T. S. Fernando, J. P. E. BAPTISTE, Appellant, and P. SELVARAJAH and another, Respondents S. C. 622-D. C. Colombo, 3,123 Divorce-Adultery-Condonation-Proof. The mere fact that the spouses continue to live under the same roof does not necessarily show condonation of adultery, for the parties may do so by force of circumstances and not as the result of a true reconciliation. Semble : Since reconciliation involves a mutual intention on the part of both spouses to restore Cont..
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NLR-Vol.59-P34
NLR - Vol.59, Page No - 34 1957 Present : Basnayake, C.J., and Pulle, J. SITHY RAHEEM, Appellant, and HAFEEL, Respondent S. C. 414-D. G. Galle, X. 1,596 Muslim Marriage and Divorce Act, No. 13 of 1951-Action for recovery of mahr-Jurisdiction of District Court to hear it-Sections 47, 48, 100 (2) (d)-Retrospective effect. An action brought in the District Court by a Muslim woman against her husband for the recovery of mahr can be proceeded with after the date on which the Muslim Marriage and Divorce Act No. 13 of 1951 came into operation if it was instituted before the Act came into operation. Such an action does not fall within the ambit of section 100 (2) (d) of the Act. APPEAL from an order of the District Court, Galle. S. Nadesan, Q.C., with M. Rafeek, for Plaintiff-Appellant. Cont..
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NLR-Vol.59-P351
NLR - Vol.59, Page No - 351 1957 Present : T. S. Fernando, J. SOLOMON FERNANDO, Appellant, and PADMA FERNANDO, Respondent S. C. 466- M. C. Panadura (Addl.) 37,198 Maintenance-Refusal by Magistrate-Order set aside in appeal-Date front which allowance becomes payable-Maintenance Ordinance, ss. 2, 17-Criminal Procedure Code, ss. 347,350. Where, on appeal, a Magistrate's refusal of an application for maintenance is reversed and order is made by the Supreme Court allowing maintenance, maintenance becomes payable from the date when the Magistrate made order refusing the application. APPEAL from an order of the Magistrate's Court, Panadura. S. P. C. Fernando, with Stanley Perera, for the defendant-appellant. Cont..
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NLR-Vol.59-P404
NLR - Vol.59, Page No - 404 1957 Present : L. W. de Silva, A.J. KANAPATHIPILLAI, Appellant, and SORNAMMAH, Respondent. S. C. 106-M. C. Jaffna, 3,884 Maintenance Ordinance-Sections 2 and 8-Arrears due-Issue of distress warrant- Elements necessary. Before a distress warrant can be issued for non-payment of maintenance, there must be a disclosure inter alia that (1) an order for maintenance had been duly made, and (2) such order specified a monthly sum. In an application for maintenance made by a wife on behalf of herself and eight children who were between the ages of 15 and 3 years, the husband undertook to pay a composite sum of Rs. 75 every month to the wife for herself and five of the children. The settlement was recorded, but the Court made no order of any kind. Cont..
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NLR-Vol.59-P501
NLR - Vol.59, Page No - 501 1957 Present : T. S. Fernando, J. K. DHARMADASA, Appellant, and P. G. GUNAWATHY, Respondent S. C. 725-M. C. Panwila, (Addl.) 10,027 Maintenance- Illegitimate child- Conduct of defendant in making false statements or creating false evidence-Weight as corroborative evidence. In an application for maintenance in respect of an illegitimate child, the answer to the question whether the defendant's conduct in making false statements or creating false evidence can or cannot amount to corroboration of the applicant's story depends on all the circumstances of the case. Such conduct may amount to corroboration only where it appears that there is reason to infer therefrom that the applicant's story is presumably true. Warawita v. Jane Nona (1954) 58 N. L. R. 111, distinguished. Cont..
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NLR - Vol.59- P522
NLR - Vol.59, Page No - 522 1958 Present : Sinnetamby, J. FRANCIS FERNANDO, Appellant, and VINCENTINA FERNANDO, Respondent S. C. 873-M. C. Gampaha, 23,238 Maintenance Ordinance (Cap. 76)-Order of maintenance obtained by wife under Section 2--Subsequent decree for divorce - Riqht of the divorced wife to apply thereafter for enhancement of maintenance under Section 10. A divorced wife is entitled to make an application tinder section 10 of the Maintenance Ordinance to enhance an order of maintenance obtained by her under section 2 prior to divorce. APPEAL from an order of the Magistrate's Court, Gampaha. Cont..
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NLR-Vol.59-P 522
NLR - Vol.59, Page No - 522 1958 Present : Sinnetamby, J. FRANCIS FERNANDO, Appellant, and VINCENTINA FERNANDO, Respondent S. C. 873-M. C. Gampaha, 23,238 Maintenance Ordinance (Cap. 76)-Order of maintenance obtained by wife under Section 2--Subsequent decree for divorce - Riqht of the divorced wife to apply thereafter for enhancement of maintenance under Section 10. A divorced wife is entitled to make an application tinder section 10 of the Maintenance Ordinance to enhance an order of maintenance obtained by her under section 2 prior to divorce. APPEAL from an order of the Magistrate's Court, Gampaha. S. W. Jayasuriya, with Norman Abeysinghe, for the defendant-appellant. Cont..
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NLR - Vol.59-P 543
NLR - Vol.59, Page No - 543 1956 Present : Sinnetamby, J., and L. W. de Silva, A.J. PODIMENIKE KUMARIHAMY, Appellant, and ABEYKOON BANDA, Respondent S. C. 408-D. C, Kegalle, 8,661 Kandyan Law-Donation-Services to be rendered by donee-Revocability of gift. In a Kandyan deed of gift executed in 1929 by a father in favour of his daughter in consideration of services already rendered, the donor enjoined on the donee the performance of future services not merely during his life time but also after his death. In 1931 the donor revoked the gift. The donee rendered services to the donor continuously "till a few weeks before the donor's death in 1940. Held, that the revocation of the gift was valid, firstly, inasmuch as there were further services to be rendered' by the donee, and it was thus solely within the discretion of the donor to revoke his gift. Secondly, there was nothing whatever on the face of the deed to make it exceptional to Cont..
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NLR-Vol.5-P 177
NLR - Vol.5, Page No - 177 AUSADAHAMI v. TIKIRI ETANA. C. R., Kurunegala, 7,210. Kandyan Law-Acquired property of husband-Right of widow in possession- Action against heirs during lifetime of widow. Lands acquired during wedded life belong exclusively to the husband, and after his death the widow has a life interest in them. It is premature on the part of the children of the first bed to bring an action in ejectment against the children of the second bed for an undivided half of the lands acquired by their deceased father, so long as his widow is alive. PLAINTIFF, alleging himself to be the only surviving child of the first marriage of Punchirala, sued the defendants, who were said to be the second wife of Punchirala and her children, for a declaration of title to a half share of Punchirala's lands. It was contended for the defence that the plaintiff was not a legitimate child of Punchirala, and that the lands were acquired after he Cont..
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NLR-Vol.5-P243
NLR - Vol.5, Page No - 243 PERERA v. PODY SINHO. P. C., Colombo, 7,481. Maintenance-Ordinance No. 19 of 1889-Order under s. 3-Appeal there from- Married woman-Presumption of paternity-Evidence Ordinance, s. 112 Moral impossibility of access. Bonser, C.J.-Under section 3 of the Ordinance No. 19 of 1889, the Magistrate may make two orders, an order for maintenance or an order dismissing the application. In either case, the order may be appealed from. The decision in Fernando v. Iamperumal, and Selestina v. Perera, 2 C. L. R. 88, is not an authority to be followed on the above point. To bring a case of paternity within the exception of section 112 of the Evidence Ordinance, it must be proved either that the husband was impotent, or that it was impossible for him to have had intercourse with bin wife at the time the child was begotten. Cont..
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NLR-Vol.5-P257
NLR - Vol.5, Page No - 257 DAHANAYAKE v. JAYASEKERA. D. C., Galle, 5,671. Defamation-Privilege-Evidence-Malice. The report of a headman made to the Government Agent, in response to an order to report upon the petition of an applicant praying for a post under the Government Agent, is a privileged document, which cannot form the basis of an action for defamation, unless plaintiff is able to establish that the statements in the report are untrue and made maliciously. THIS was an action for the recovery of Rs. 1,000 as damages for alleged defamation. Plaintiff applied to the Government Agent of the Southern Province to be appointed a Police Officer of Maitipe. His application was referred for report to the Mudaliyar. who referred it to the defendant as the Vidane Arachchi of Ettiligoda, where the plaintiff was residing. The defendant reported as follows: - "I do not see him worthy at all to receive Government office. " Previous to this, he was employed Cont..
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NLR-Vol.5-P 326
NLR - Vol.5, Page No - 326 SIRIPINA v. KIRIBANDA KORALA. D. C., Ratnapura, 10,289. Kandyan Law-Nindagama-Right of landlord or tenant to break up land in search of minerals without consent of each other. In the absence of proof of any custom, neither the landlord nor the tenant of a nindagama can gem on the land without the other's consent. PLAINTIFFS claimed to be owners of three-eighths of Palgastunewatta and owita, appertaining to Miganadeniya-manane-panguwa. They alleged that defendants had forcibly entered into possession of the lands, and had removed gems to the value of Rs. 1,200 therefrom. They prayed for a declaration of title and damages. The first defendant claimed Miganadeniya as a nindagama, alleging that he was the owner of one-half thereof and that the remaining defendants owned the rest. He admitted plaintiffs' rights to what they claimed only subject to rajakariya to the defendants. He admitted mining for gems cm the Cont..
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NLR-Vol.60-P138
NLR - Vol.60, Page No - 138 1958 Present: Gunasekara, J., and Sansoni, J. M.C.M. SHARIFDEEN, Appellant, and M.S.M. RAHUMA BEEBI, Respondent S.C.2 - Board of Quazis? Appeal 93 Muslim marriage - "Cash dowry " - " Kaikuli "-" Stridanum ". In a claim made by a Muslim wife against her husband for the repayment of kaikuli, it was proved that on a date prior to the marriage a deed of agreement was executed by the parties and the bride's father. In that deed the bride's father undertook to convey " as a gift absolute and irrevocable " to the husband and wife certain lands as dowry in consideration of the marriage. The deed also contained a recital (which was not a term of the agreement) according to which the husband acknowledged that he had received on the previous day a sum of Rs. 4,500 " being cash dowry in consideration of the marriage ". Held, that the sum of Rs. 4,500 was Kaikuli and, therefore, repayable to the wife, Cont..
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NLR-Vol.60-P308
NLR - Vol.60, Page No - 308 1958 Present: Weerasooriya, J. BEERAN, Petitioner, and MINISTER OF DEFENCE AND EXTERNAL AFFAIRS et al., Respondents S. C. 214-Application for a Writ of Mandamus and for Certiorari on the Minister of Defence and External Affairs and two others Muslim Law-Marriage-Entry in marriage register-Its scope as best evidence of marriage-Muslim Marriage and Divorce Act, No. 13 of 1951, ss. 2, 18, 24. (4), 71, 82, 85 ? Citizenship Act, No. 28 of 1948, s. 11A. The petitioner, a Muslim of Indian origin, procured the registration of ft second marriage in Ceylon contrary to the express provisions of section 24 (4), road with sections 18 (1) (a), 82 and 85, of the Muslim Marriage and Divorce Act. The description of the petitioner's civil condition as "unmarried" in the marriage certificate was false. Thereafter the petitioner made application to be registered as a citizen of Ceylon under section ] 1A of the Citizenship Act, on the basis that he was the spouse of a citizen of Ceylon. To establish the validity of his marriage, he relied on the Cont..
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NLR - Vol.60-P532
NLR - Vol.60, Page No - 532 1959 Present: Gunasekara, J., and Sansoni, J. S. KIRIHAMY et al.. Appellants, and SADI KUMARIHAMY, Respondent S.C. 843-D. C. Kandy, 4661/P Kandyan Law-Donation-"Dowry" given by father to daughter subsequent to latter's marriage- Revocability. Under Kandyan Law, if a parent donates immovable property to his daughter some time after the latter's marriage, the deed of gift is revocable if there is no evidence that was given in pursuance of a promise made before the marriage. In such a case, the mere fact that the deed states that it is given " for and in consideration of the marriage" and " by-way of dowry " can make no difference. APPEAL from a judgment of the District Court, Kandy. T. B. Dissanayake, for 1st to 7th and 10th Defendants-Appellant. Cont..
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NLR - Vol.60- P541
NLR - Vol.60, Page No - 541 1955 Present: K. D. de Silva, J., and H. N. G. Fernando, J. VISVAVERNI, Appellant, and MURUGIAH, Respondent SC. (F) S20 with S. C. (Inty.) 197-198-D. C. Trincomalee, 4,140 Divorce-Action for declaration of nullity of marriage-Pregnancy prior to marriage,- Proof-" Condonation "- Civil Procedure Code, Rs. 600,602 (2). Plaintiff sued fop a declaration of nullity of marriage on the ground that the defendant wife was pregnant by another man at the time of marriage and that she concealed the fact of pregnancy from the plaintiff. The marriage was solemnized on January 18, 1951, and a child was born to the defendant on June 18, 1951. There was no evidence indicating that the child was anything other than normal. Held, that, in the circumstances, the plaintiff was entitled to judgment in his favour. Cont..
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NLR-Vol.60-P66
NLR - Vol.60, Page No - 66 1957 Present: Sansoni, J. D. M. ABEYSEKERA, Appellant, and SOMAWATHIE ABEYSEKERA, Respondent S. C. 1204 (with Application 500) - M. C. Kandy, 15,847 Kandyan Law-Maintenance-Procedure for enforcement of order obtained under Kandyan marriage Ordinance (Cap. 96), s. 20 - Effect of Kandyan Marriage and Divorce Act, No. 44 of 1952, ss. 67-70. After the Kandyan Marriage and Divorce Act, No. 44 of 1952 came into operation in 1954, a Magistrate's Court has no jurisdiction to entertain an application for the enforcement of an order for maintenance made by a Registrar under section 20 of the Kandyan Marriage Ordinance upon the dissolution of a Kandyan marriage. When the Kandyan Marriage Ordinance was repealed by section 67 of Act No. 44 of 1952, the procedure for the enforcement of an order for maintenance made under the repealed Ordinance was also necessarily repealed. APPEAL from a judgment of the Magistrate's Court, Kandy. Cont..
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NLR - Vol.60-P73
NLR - Vol.60, Page No - 73 1958 Present: Basnayake, C.J., and K. D, de Silva, J. PERERA, Appellant, and ASELIN NONA and another, Respondents S. C. 311-D. C. Panadura, 3,306 Kandyan Law--Diga married woman-Re-acquisition of binna rights-Kandyan-Succession Ordinance, s. 2 (b). Under Kandyan Law, a woman who marries in diga and returns to her parental home on the death of her diga husband and after the death of her parents cannot by mere residence in her parental home acquire the rights of a binna married daughter if she marries a second time while residing in the house of her deceased parents. To establish re-acquisition of binna rights, she must prove that those who inherited her parental property when she was out in diga agreed to share it with her. APPEAL from a judgment of the District Court, Panadura. N. E. Weerasooria, Q.C.., with Cecil de S. Wijeratne and B. S. C. Ratwatte, for Plaintiff- Cont..
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NLR-Vol.60-P94
NLR - Vol.60, Page No - 94 1957 Present: H. N. G. Fernando, J. A. P. M. KIRI BANDA, Appellant, and P. D. M. BISO MENIKA, Respondent S.C.1334-M. C. Kegalle, 14957 Kandyan Law-Maintenance-Order made under Kandyan Marriage and Divorce Ordinance (Cap. 96), s.20- Jurisdiction of Magistrate's Court to enforce it-Effect of Kandan Marriage and Divorce Act, No. 44 of 1952, s. 69-Interpretation Ordinance, s. 6 (3). Where an application for dissolution of a marriage under section 20 of the Kandyan Marriage and "Divorce Ordinance was pending before a Registrar at the time when that Ordinance was repealed by Act No. 44 of 1952 and was heard and concluded after the repealing Act came into operation on 1st August, 1954- Held, that, by virtue of the provisions of section 6 (3) of the Interpretation Ordinance, the order Cont..
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NLR - Vol.61- P183
NLR - Vol.61, Page No - 183 1958 Present: H. N. G. Fernando, J., and T. S. Fernando, J. K. SINNATHAMBY, Appellant, and YOKAMMAH, Respondent S. C. 396-D. C. .Jaffna, 154/D Divorce-Action in81ituted by wife-Alimony pendente lite-Failure of husband to pay it-Can Court refuse to hear defence ?-Civil Procedure Code, ss. 85, 109, 839. When, in divorce proceedings instituted by a wife, an order for the payment of alimony pendente lite is flouted by the husband, the Court has no power to strike out the defence and to place the defendant-husband in the same position as if he had not appeared. APPEAL from a judgment of the District Court, Jaffna. C. Ranganathan, for the Defendant-Appellant. S. Sharvananda, for the Plaintiff-Respondent. Cont..
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NLR - Vol.61- Page No - 25
NLR - Vol.61, Page No - 25 [IN THE PRIVY COUNCIL] 1959 Present : Lord Reid, Lord Tucker, Lord Somervell of Harrow, Lord .Denning and Mr. L. M. D. de Silva C. V. UDALAGAMA, Appellant, and IRANGANIE BOANGE, Respondent Privy Council Appeal No. 14 of 1958 S. C. 444--D.C Kegalle, 7,813 Breach of promise of marriage-Action for recovery of damage Promise in writing- Relevancy of oral promise to marry-.Marriage Registration Ordinance (Ca,. 95), s.19. By section 19 of the Marriage Registration Ordinance- ". ...no action shall lie for the recovery of damages for breach of promise of marriage, unless such promise of marriage shall have been made in writing. " Cont..
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NLR-Vol.62-P255
NLR - Vol.62, Page No - 255 1960 Present : T. S. Fernando, J. M. T. M. JIFFRY, Petitioner, and NONA BINTHAN, Respondent S. C. 263-Application in Revision in M. C. Colombo, 30980/A Maintenance-Illegitimate children-Muslim parents-Jurisdiction of Quazi-Muslim Marriage and Divorce Act, No. 13 of 1951, 88. 2, 47 (1), 48Maintenance Ordinance (Cap. 76). A Quazi has no jurisdiction to hear and determine an application for maintenance in respect of children whose mother has at no time boon married to the alleged father. Section 41 (1) (c) of the Muslim Marriage and Divorce Act, No. 130f 1951, relating to" any claim for maintenance by or on behalf of a child (whether legitimate or illegitimate)" must be construed in a way which does not detract from the force of the governing section 2 which provides that the Act" shall apply only to the marriages and divorces, and other matters connected therewith, of those inhabitants of Ceylon who are Muslims". APPLICATION to revise an order of the Magistrate's Court, Colombo. Cont..
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NLR - Vol.62-P433
NLR - Vol.62, Page No - 433 1960 Present : Basnayake, C.J., K. D. de Silva, J., Sansoni, J., H. N. G. Fernando, J., and T. S. Fernando, J. KARUNAWATHIE MENIKE, Appellant, and EDMUND PERERA, Respondent S. C. 541-D. C. Kandy, 5029/P Kandyan Law-Diga married widower-Death of son unmarried and without issue-"Devol1J,tion of immovable property inherited by him from his mother-Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938, s. 16. Held, by SANSONI, J., H. N. G. FERNANDO, J., and T. S. FERNANDO, J. (BASNAYAKE, C.J. and K. D. DE SILVA, J., dissenting): Prior to the date when the Kandyan Law Declaration and Amendment Ordinance No. 39 of 1938 was enacted, when an unmarried Kandyan died intestate and without issue, leaving surviving him his brothers and sisters and his diga married father, any immovable property which the deceased had in erited from his mother devolved absolutely on his father and not on the brothers and sisters subject to a life interest in favour of the father. Cont..
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NLR-Vol.62-P550
NLR - Vol.62, Page No - 550 1961 Present : Tambiah, J. MRS. S. V. FERNANDO, Appellant, and J. R. I. FERNANDO, Respondent S. C. 1031-M. C. Kandy, 9575 Maintenance Ordinance-Section 2-Application made by wife for maintenance Assessment of sum payable by husband-Means of wife should not be considered Married Women's Property 01'dinance, s. 26. The Court should not take into account the means of the wife when fixing the quantum of maintenance payable by the husband under section 2 of the Maintenance Ordinance. APPEAL from a judgment of the Magistrate's Court, Kandy. D. R. P. Goonetilleke, for the Applicant-Appellant. G. Candappa, for the Defendant-Respondent. Cont..
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NLR Vol.62-P68
NLR - Vol.62, Page No - 68 1959 Present : Basnayake, C. J., and Pulle, J. K. M. KUMARASAMY, Appellant, and W. T. R. BANDA and another, Respondents S. C. 221-D. C. Kandy, L 3980/A Kandyan Law-Donation -Revocability. Where in a Kandyan deed of gift the donor declares in most clear language that the deed is irrevocable, he is not entitled to go back on it. APPEAL from a. judgment of the District Court, Kandy. S. Nadesan, Q.C., with B. S. C. Ratwatte, for Plaintiff-Appellant. H. W. Jayewardene, Q.C., with T. B. Dissanayake and L. C. Seneviratne.. for 2nd Defendant- Respondent. Cont..
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NLR - Vol.63-P139
NLR - Vol.63, Page No - 139 1961 Present : Weerasooriya, J., and L. B. de Silva, J. U. BABI, Appellant, and H. V. DANTUWA and others, Respondents S. C. 319-D. C. Badulla, 13061 Kandyan Law-Death of husband intestate-Right of widow to sell immovable property of the deceased- Scope. Under the Kandyan Law a widow without minor children has no right to sell the immovable property of her deceased husband for the payment of his debts. Such a sale cannot convey good title as against the other heirs of the deceased APPEAL from a judgment of the District Court, Badulla. T. B. Dissanayake, for the Defendant-Appellant. Cont..
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NLR - Vol.63- P416
NLR - Vol.63, Page No - 416 1961 Present : H. N. G. Fernando, J., and Tambiah, J. M. EMELDA FERNANDO, Appellant, and W. S. ELARIS FERNANDO, Respondent S. C. 164 -D. C. Negombo, 81/L Divorce action--Rights of parties to bring separate actions in respect of settlement of property- Civil Procedure Code, ss. 6'17, 618'-Rule of forfeiture of benefit as between spouses- Inapplicability of the rule in regard to the separate property of the offending spouse-"Ante- nuptial contract"-Matrimonial Sights and Inheritance Ordinance, No. 15 of 1876, s. 8. Where, in a divorce action, the parties do not invite the Court to grant any relief by way of settlement of property under section 617 or section 618 of the Civil Procedure Code they may be permitted by the Court, on their election, to reserve their rights to file separate actions under Cont..
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NLR-Vol.63-P571
NLR - Vol.63, Page No - 571 1961 Present : T. S. Fernando, J., and Sinnetamby, J. A. ALIYARLEBBAI, Appellant, and K. PATHUMMAH, Respondent S. C. 1-Quazi Court of Karavaku, 3620 Maintenance-Illegitimate child-Muslim parties-Plea of res judicata- Applicability-Scope of obligation of Quazi to examine at least two witnesses- Maintenance Ordinance (Cap. 76), s. 6-Muslim Marriage and Divorce Act, No. 13 of 1951, ss. 28 (2), 47 (6), Schedule 3, Rule 11, Schedule 4, Rule 7. Where an application for the maintenance of an illegitimate child is dismissed by a Quazi after the evidence of the parties is recorded, the dismissal of the application, whether upon insufficiency of evidence or upon refusal of an application for postponement, bars a second application for the same relief. In an inquiry held under section 47 (6) of the Muslim Marriage and Divorce Act No. 13 of 1951, Rule Cont..
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NLR - Vol.64-P163
NLR - Vol.64, Page No - 163 1961 Present : Sinnetamby, J., and Tambiah, J. DINGIRI AMMA, Appellant, and RATNATILAKA and others, Respondents S. C. 36 (Inty.)-D. C. Kurunegala, 8067 /P Kandyan Law-Daughters married in diga-Re-acquisition of binna rights-Proof-Evidential value of marriage certificate-Kandyan Marriages Ordinance, No. 3 of 1870 (Cap. 36), s. 36. Under the Kandyan Law a diga married daughter would re-acquire binna rights if the father, during his lifetime, brought her into the mulgedera after the dissolution of her marriage and had her married in binna. Thereafter, if it be contended that the daughter, who was married in binna, forfeited her rights, it must be shown that she severed herself from her parental home before the death of the father. A diga married daughter cannot re-acquire binna rights unless it is shown that she was not only received back at the mulgedera by her father and those who were entitled to the inheritance but Cont..
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NLR-Vol.64-P172
NLR - Vol.64, Page No - 172 1962 Present : Sinnetamby, J. R. S. M. ISMAIL, Appellant, and S. LATIFF, Respondent S. C. 618/61-M. C. Colombo, 31133/A M C Maintenance-Illegitimate children-Muslim parties-Jurisdiction of Quazi-Muslim Marriage and Divorce Act, No. 13 of 1951, ss. 2, 47, 48. A Quazi has no jurisdiction to entertain an application for maintenance in respect of illegitimate children of Muslim parties who were at no time married. Section 47 of the Muslim Marriage and Divorce Act, No. 13 of 1951, is controlled and limited by the provisions of section 2. Jiffry v. Nona Binthan (1960) 62 N.L.R. 255, followed. APPEAL from a judgment of the Magistrate's Court, Colombo. C. Ranganathan, with M. T M Sivardeen, for the defendant-appellant. H. W. Jayewardene, Q. C., with H. Mohideen and K. Palakidnan, for the applicant-respondent. April 3, 1962. SINNETAMBY, J.- Cont..
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NLR - Vol.64- P232
NLR - Vol.64, Page No - 232 1962 Present : Weerasooriya, S. P. J., and H. N. G. Fernando, J. V. S. NADARASA, Appellant, and NAVAMANY, Respondent S. C. 110, with Application 270-D. C. Colombo, 3747 /D Action for dissolution of marriage-Suit instituted by husband-Promise by husband to make an ex gratia payment to wife-Enforceability-Civil Procedure Code, ss. 217, 615 (7). Where decree for dissolution of marriage is entered at the suit of a husband, a promise by the husband to make an ex gratia payment to the wife cannot be incorporated in the degree so as to compel him to pay the sum. APPEAL from an order of the District Court, Colombo. H. W. Jayewardene, Q. C., with R. L. Jayasuriya, for plaintiff-appellant and for plaintiff Cont..
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NLR-Vol.64-P260
NLR - Vol.64, Page No - 260 1961 Present: L. B. de Silva, J. D. M. ABEYSEKERA, Appellant, and K. M. BISSO MENIKA, Respondent S. C. 766-M. C. Gampola, 14233 Maintenance-Order in favour of 'wife-Cancellation on ground of adultery- Retrospective effect of order of cancellation-Maintenance Ordinance (Cap. 76), ss. 4, 5, 8, 10-Kandyan Marriage and Divorce Act, No. 44 of 1952-Effect of maintenance order made thereunder. (i) When an order of maintenance entered in favour of a wife is cancelled under sections 5 or 10 of the Maintenance Ordinance on the ground that she is living in adultery, the order of cancellation may be made to take effect retrospectively so as to cover the period during which she has been living in adultery. (ii) There is no provision under the Kandyan Marriage and Divorce Act No. 44 of 1952 enabling an order of maintenance entered by a District Registrar to be made an order of the Magistrate's Court. Cont..
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NLR - Vol.64- P366
NLR - Vol.64, Page No - 366 1962 Present: Basnayake, C. J., and Herat, J. RAJESWARARANEE, Appellant, and SUNTHARARASA, Respondent S. C. 479/59-D. C. Chavakachcheri, 1688/D Divorce-Malicious desertion-Proof. In an action for divorce on the ground of malicious desertion proof is necessary that the deserter wilfully brought to an end the existing state of co-habitation with the deliberate purpose of abandoning conjugal society. Where both husband and wife were anxious to resume their conjugal life, but the husband wanted the wife to come to his house while the wife wanted' the husband to come to her house in the same Cont..
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NLR-Vol.64-P419
NLR - Vol.64, Page No - 419 1962 Present: H. N. G. Fernando, 3., and L. B. de Silva, J. K. S. S. JAILABDEEN, Appellant, and A. R. DANINA UMMA, Respondent S. C. 2/1962-Quazi Court, Colombo South, No. 626 Quazi-Appointment by Minister-unconstitutionality of such appointment-Quazi holds judicial office-Power of enforcement is not an essential requisite of judicial power-Power of Legislature to create new tribunals-Right of appeal conferred by statute-Right of appellant to question validity of the appointment of the persons constituting the tribunal-Muslim Marriage and Divorce Act (Cap. 115), ss. 12 (1), U, 47, 48, 60, 62, 64, 65, 67-Bribery Act, s. 41- Constitution Order in Council, 1946, ss. 55, 88. The office of Quazi is a judicial office, and the proper authority to make appointments to such an office is the Judicial Service Commission as provided by section 55 of the Constitution Order in Council, and not the Minister as provided by sections 12 (1) and 14 of the Muslim Marriage and Divorce Act. Accordingly, an order for maintenance made under section 47 of the Muslim Marriage and Cont..
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NLR - Vol.64-P548
NLR - Vol.64, Page No - 548 1963 Present: Sansoni, J., and L. B. de Silva, J. K. M. PUNCHI BANDA, Appellant, and W. D. NAGASENA, Respondent S. C. 42/1961-D. C. Kurunegala, 415/L Kandyan Law-Irrevocable deed of gift-Form -Kandyan Law Declaration and Amendment Ordinance (Cap. 59), ss. 4 (1), 5 (1) (d). By the use of the single word " irrevocable " in a Kandyan deed of gift the donor may, under section 5 (1) (d) of the Kandyan Law Declaration and Amendment Ordinance, expressly renounce his right to revoke the gift. APPEAL from a judgment of the District Court, Kurunegala. N. E. Weerasooria, Q.C., with W. D. Gunasekera, for the Defendant-Appellant. C. R. Gunaratne, for the Plaintiff-Respondent. Cont..
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NLR - Vol.64-P564
NLR - Vol.64, Page No - 564 1961 Present : T. S. Fernando, J., and De Silva, J. M. SUBANCHINA, Appellant, and M. K. JAMES APPU and others, Respondents S. C. 135 (Inty.) of 1959-D. G. Ratnapura (Testy.), 1354 Kandyan law-Adoption-Difference in caste between the adopter and the person adopted-Acquired property-Inheritance when adopter dies-Kandyan Law Declaration and Amendment Ordinance, s. 7. Under the Kandyan law, persons of one caste adopted by a Kandyan of another caste who dies intestate and issueless can inherit the acquired property of the latter. APPEAL from a judgment of the District Court, Ratnapura. H. W. Jayewardene, Q.C., with A. C. Gooneratne, N. R. M. Daluwatte and S. S. Basnayake, for the petitioner-appellant. Cont..
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NLR - Vol.65-P131
NLR - Vol.65, Page No - 131 1962 Present : Basnayake, C. J., Herat, J., and Abeyesundere, J. MUTTU MENIKA KUMARIHAMY, Appellant, and MUDIYANSE and others, Respondents S. C. 510/59-D. C. Puttalam, 6041 Kandyan Law-Woman married in deega-Re-acquisition of binna rights-Kandyan Law Declaration and Amendment Ordinance, s. 9. A woman married in deega prior to the Kandyan Law Declaration and Amendment Ordinance may be shown, on proper evidence, to have regained binna rights. Plaintiff, whose marriage was registered in deega prior to the Kandyan Law Declaration and Amendment Ordinance, did not leave her mulgedera but looked after her father till his death and enjoyed equally with her brother and sisters the paternal property. Held, that the plaintiff -was entitled to claim binna rights. Cont..
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NLR-Vol.65-P 134
NLR - Vol.65, Page No - 134 1962 Present: Weerasooriya, J. J. MIHIRIGAMAGE, Appellant, and S. BULATHSINHALA, Respondent S. C. 162-M. C. Gampaha, 64,757 Maintenance Ordinance (Cap. 91)-Section 2-Incapacity of an ex-wife to apply thereunder for maintenance. A married woman who has obtained a decree for divorce is not entitled thereafter to apply for maintenance for herself under section 2 of the Maintenance Ordinance. In construing the expression " wife " in that section, it is not permissible to give it an extended meaning so as to include an ex-wife who, as a result of a decree of a competent court, has ceased to be the wife of the respondent. APPEAL from an order of the Magistrate's Court, Gampaha. Cont..
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NLR - Vol.65- P 274
NLR - Vol.65, Page No - 274 1962 Present : L. B. de Silva, J., and G. P. A. Silva, J. T. CHRISTINA and 3 others, Appellants, and S. CECILIN FERNANDO, Respondent S. C. 38/60 (Inty.)-D. C. Kalutara, 3648/T Divorce-Decree nisi by default made absolute without notice to opposite party- Liability to collateral attack by third parties-Effect of a decree entered by a Court of competent jurisdiction- Civil Procedure Code, s. 85-Evidence Ordinance, ss. 41, 44. It is not open to any person to attack collaterally a decree absolute for divorce, except on the grounds set out in sections 41 and 44 of the Evidence Ordinance. The respondent applied for letters of administration to the estate of her deceased husband F. The Cont..
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NLR-Vol.65-P282
NLR - Vol.65, Page No - 282 1961 Present : Sinnetamby, J., and L. B. de Silva, J. R. E. FERNANDO, Appellant, and W. W. DABRERA and others, Respondents S. C. 3911958-D. C. Chilaw, 13553/P Marriage by habit and repute-Proof. Evidence of marriage ceremonies or religious rites is not essential to establish marriage by habit and repute if both the parties to the marriage are dead and the marriage itself was contracted at a very early date. APPEAL from a judgment of the District Court, Chilaw. N. E. Weerasooria, Q. C., with H. Wanigatunga and Cecil de S. Wijaratne, for the plaintiff- appellant. Cont..
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NLR-Vol.65-P431
NLR - Vol.65, Page No - 431 1963 Present : Herat, J. A. L. M. ISMAIL, Appellant, and A. A. MUTHU MARLIYA, Respondent S. C. 476/63-M. G. Kalutara, 7728 Maintenance-Muslim Marriage and Divorce Act (Cap. 115)-Claim for maintenance under Section 47- Exclusive jurisdiction conferred by Section 48 on Quazi-Invalidity of appointment of Quazi under Section 12 (1)-Constitution Order in Council, s. 55-Lack of jurisdiction of a Magistrate's Court to hear such claims under Maintenance Ordinance (Cap. 91). A Magistrate's Court has no jurisdiction to hear under the Maintenance Ordinance (Cap. 91) a claim for maintenance Which, by virtue of the provisions of section 48 of the Muslim Marriage and Divorce Act, falls under the exclusive jurisdiction of a validly appointed Quazi. In such a case, the fact that Section 12 (1) of the Muslim Marriage and Divorce Act is ultta vires as being in conflict with Section 55 of the Constitution Order in Council and, therefore, the persons appointed as Quazis by the Minister were not validly appointed is not material. Cont..
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NLR - Vol.65- P453
NLR - Vol.65, Page No - 453 1963 Present: H. N. G. Fernando, J., and T. S. Fernando, J. G. A. ARIYAPALA, Appellant, and L. ARIYAPALA, Respondent S. C. 212 of 1960-D. C. Matara, 271 /D Divorce-Suit by husband-" Malicious desertion ". Where the break up of a marriage and the departure of the husband from the wife is due to the violent conduct on the part of the wife which is not justified by the behaviour of the husband, the husband may sue for divorce on the ground of malicious desertion. APPEAL from a judgment of the District Court, Matara. H. W. Jayewardene, Q. C., with S. S. Jayewardene and St. N. D. Tilakaratne, for the Plaintiff- Cont..
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NLR-Vol.65-P46
NLR - Vol.65, Page No - 46 1961 Present : Weerasooriya, J. GUNADASA, Appellant, and PEMAWATHIE, Respondent S. C. 247-M. C. Kandy, 13,334 Maintenance-Commencement of inquiry-Procedure relating to examination of applicant-Maintenance Ordinance (Cap. 76), ss. 13,14, 16-Criminal Procedure Code, ss. 298, 299. Section 16 of the Maintenance Ordinance applies to the recording of an examination under section 14. Accordingly, the evidence that is recorded in compliance with section 14 of the Maintenance Ordinance prior to issue of summons need not be read over to the applicant in terms of section 299 of the Criminal Procedure Code. Nor need the other provisions of section 299 of the Criminal Procedure Code be complied with. APPEAL from a judgment of the Magistrate's Court, Kandy. M. M. Kumarakulasingham, with N. Senanayake, for Defendant-Appellant. Cont..
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NLR - Vol.65-P536
NLR - Vol.65, Page No - 536 1963 Present : Sansoni, J., and H. N. G. Fernando, J. G. A. JOHN SINGHO, Appellant, and S. S. HERATH MUDIYANSELAGE APPUHAMY, Respondent S. C. 343/61-D. C. Nuwara Eliya, 4212 Kandyan law-Binna marriage-Quantum of evidence-Production of marriage certificate-Effect on burden of proof. In a binna marriage under Kandyan law it is not essential that the husband and wife should live in the wife's it mulgedera. It is sufficient if they live in a house which is close to the mulgedera. H, a Kandyan woman, who married in binna on the 6th June 1917 lived with her husband a short distance away (about two chains) from her father's mulgedera, but most probably on the same land as that on which the mulgedera stood. When, owing to fear of a landslide, they moved in 1925 to another village, the father and daughter lived in two houses which they built on one land. Cont..
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NLR-Vol.65-P97
NLR - Vol.65, Page No - 97 1963 Present : Basnayake, C. J., Abeyesundere, J., and G. P. A. Silva, J. A. E. REID, Appellant, and THE ATTORNEY-GENERAL, Respondent S. C. 15/1962-D. C. (Crim.) Colombo, 2090/N Bigamy-Marriage (general)-Second marriage contracted by husband after conversion to Islam-Second wife also a convert to Islam-Validity of the second marriage -Marriage Registration Ordinance, ať. 18, 64-Muslim Marriage and Divorce Act-Kandyan Marriage and Divorce Act, 8. 6-Penal Code, s. 362 B. A man who has contracted a marriage under the Marriage Registration Ordinance does not commit bigamy if, while his marriage is subsisting, he embraces Islam, and marries under the Muslim Marriage and Divorce Act a woman who has also embraced Islam. The appellant, when he was a Roman Catholic, married his first wife on 18th September, 1933, under the Marriage Registration Ordinance. While his wife was still living he married again under the Muslim Marriage and Divorce Act. He and his second wife became converts to Islam on 13th June, 1959 and registered their marriage under the Muslim Marriage and Divorce Act on 10th July, 1959. Cont..
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NLR-Vol.66-P142
NLR - Vol.66, Page No - 142 1963 Present: Herat, J., and Abeyesundere, J. I. W. M. JAYASENA, Appellant, and H. M. BANDARA MENIKE, Respondent. S. C. 264161 -D. C. Kurunegala, 1271 Kandyan Marriage and Divorce Act-Dissolution of marriage thereunder-Power of District Registrar to include an order of maintenance in favour of the wife- Sections 2, 32, 33 (7), 69. When a marriage contracted before 1st August 1954 is dissolved under the provisions of the Kandyan Marriage and Divorce Act, the provisions of section 69, read with section 33 (7), of the Act permit the District Registrar to include in the order of dissolution of the marriage a provision requiring the husband to pay a certain sum monthly as maintenance to the wife. APPEAL from a judgment of the District Court, Kurunegala. N. E. Weerasooria, Q.C., with W. Wimalachandra and M, T. M. Sivardeen, for the Respondent- Cont..
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NLR - Vol.66- P380
NLR - Vol.66, Page No - 380 1961 Present: Sansoni, J. and Tambiah, J. N. J. CANEKERATNE, Appellant, and MRS. R. M. D. CANEKERATNE, Respondent S. C. 139-D. C. Colombo, 3732/D Divorce-Consensual separation of spouses-Malicious desertion thereafter-Proof- Relevancy of conduct of parties pending action A consensual separation between husband and wife can charge its quality and malicious desertion can supervene if an animus deserendi supervenes. When either spouse has made an offer to resume cohabitation after a separation has taken place, a rejection of it by the other will turn him or her into a deserter. Cont..
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NLR - Vol.67- P183
NLR - Vol.67, Page No - 183 1962 Present: Weerasooriya, S.P.J. and Abeyesundere, J. W. H. BABUNONA, Appellant, and ALBIN KEMPS, Respondent S. C. 440160-D. C. Tangalla, 6813/D Divorce-Cruelty per se is not a ground-Marriage Registration Ordinance (Cap. 112), s. 18(2). Cruelty on the part of one spouse is not a ground under section 19 (2) of the Marriage Registration Ordinance for the dissolution of marriage at the suit of the other spouse, unless it is of such a nature as to make cohabitation intolerable for the latter and amounts in law to constructive malicious desertion by the offending spouse. Where a wife assaulted her husband who had, by his own adulterous misconduct in the matrimonial home, rendered cohabitation intolerable for the wife- Cont..
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NLR-Vol.67-P25
NLR - Vol.67, Page No - 25 [IN THE PRIVY COUNCIL] 1964 Present : Viscount Dilhorne, Lord Hodson, Lord Guest, Lord Upjohn, and Lord Wilberforce THE ATTORNEY-GENERAL, Appellant, and A. E. REID, Respondent PRIVY COUNCIL APPEAL NO. 18 or 1964 S. C. 15/1962-D. C. (Grim.) Colombo, 2O90 / N Bigamy-Christian monogamous marriage--Subsequent conversion of husband to Muslim faith-His right to contract a polygamous marriage-Marriage Registration Ordinance, ss. 18, 19 (1), 35 (2), 64-Muslim Marriage and Divorce Act-Penal Code, s. 362 B. In a country such as Ceylon, where there are many races and creeds and a number of Marriage Ordinances and Acts, the inhabitants domiciled here have an inherent right to change their religion Cont..
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NLR - Vol.67-P71
NLR - Vol.67, Page No - 71 1963 Present : T. S. Fernando J., and Abeysundere. J YASO MENIKA ,Appellant, and BISO MENIKA and ,another, Respondents S. C. 5411961?D. G. Kurunegala, 5299 Kandyan Law Declaration and Amendment Ordinance (Cap. 59)- Acquired properly-Intestate succession Binna and diga marriages Illegitimate children - Birth certificate -Sections 9 (1) to 15 (c); The Kandyan Law Declaration and Amendment Ordinance debars a woman married -in diqa after- the -commencement of that Ordinance from succeeding to any rights in the acquired property of her- father who died-after the-commencement of that Ordinance. Where a deceased person - had merely caused to-be--registered a birth of a child in the sense that- he had informed that registrar of the birth , but had net-had himself registered as the father of- that child, the latter can maintain no claim as an illegitimate child of the deceased to succeed to any acquired property of the. deceased - by virtue of section 15 (c) of the Kandyan Law Declaration and Amendment Ordinance. Cont..
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NLR - Vol.68- P155
NLR - Vol.68, Page No - 155 [PRIVY COUNCIL] 1965 Present : Lord Reid, Lord Morris of Borth-y-Gest, Lord Hodson, Lord Pearce, and Lord Wilberforce P. P. WICKREMASURIYA, Appellant, and S. L. S. R. SAMARASURIYA, Respondent PRIVY COUNCIL APPEAL No. 29 OF 1964 S. C. 165/1960-D. C. Gampaha, 6748/D Cont..
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NLR - Vol.68-P305
NLR - Vol.68, Page No - 305 1965 Present : Sri Skanda Rajah, J., and Manieavasagar, J. L. A. BABANISA and others, Appellants, and L. A. UKKU and others, Respondents S. C. 84/62 (Inty.)-D. G. Avissawella, 8900/P Kandyan law-Deega marriage-Test of forfeiture of right of inheritance-Granddaughter married in deega-Her right to inherit her maternal grand-father's property-Kandyan Law Declaration and Amendment Ordinance (Cap. 59), ss. 10 (7) (a), 10 (4). Under Kandyan law, when a daughter is married in deega, it is not necessary that she should be conducted to her husband's home on the very day of her marriage. The test of forfeiture of her right to any portion of her father's estate is her severance from her family. Such severance may occur at any time after marriage, end not necessarily on the day when she is married. A grand-daughter married in deega has no claim as heir to her maternal grandfather's immovable Cont..
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NLR - Vol.69-P212
NLR - Vol.69, Page No - 212 1965 Present : H. N. G. Fernando, S.P.J. and G. P. A. Silva, J. H. M. UKKU AMMA, Appellant, and A. M. DINGIRI MENIKA and another, Respondents S. C. 143/1964-D. C. Kurunegala, 1477/L Kandyan law-Donation-Revocability-Kandyan Law Ordinance (Cap. 59), ss 4,5(d). By a deed of gift governed by the Kandyan Law Ordinance (Cap. 59), a person donated certain immovable property to his niece " in expectation of receiving succour and assistance " from her during his life time. The gift contained also a statement in which the donor said : " I do hereby specially renounce the right to revoke the gift aforesaid ". Held, that section 5 (d) of the Kandyan Law Ordinance prevented the donor from revoking the gift although the donee failed to render assistance to the donor. APPEAL from a judgment of the District Court, Kurunegala. Cont..
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NLR Vol.69-P492
NLR - Vol.69, Page No - 492 1965 Present : Tambiah, J., and Alles, J. D. STEPHEN, Appellant, and D. ELANDI, Respondent S. C. 116/1963 (Inty.)-D. C. Kurunegala, 804/L Kandyan law-Donation of undivided shares of certain lands-Subsequent partition decrees in respect of those shares-Incapacity of donor to revoke his gift thereafter- Kandyan Law Declaration and Amendment Ordinance (Cap. 59), a. 4. By deed P3 executed on 24th February 1936 a person, who was subject to the Kandyan law, gifted undivided shares of certain lands to the defendant-appellant. By final decrees entered in 1942 in two partition actions the defendant was given divided lots in lieu of the undivided shares which had been gifted to him. In 1958 the donor revoked his gift of 1936 and, by deed P2, -transferred to the plaintiff the undivided shares of the lands gifted on P3 as well as the divided lands allotted to the defendant under the partition decrees of 1942. Held, that the partition decrees of 1942 had the effect of extinguishing the right of the donor to Cont..
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NLR-Vol.6-P 104
NLR - Vol.6, Page No - 104 UKKU v. KIRIHONDA. C. R., Kegalla, 4,433. Kandyan Law-Cohabitation before marriage-Subsequent registration-Ordinance No. 3 of 1870, ss. 11and 39-Sett evidence of marriage- Validation of what had been before a void marriage-Marriage in bina or diga. A Kandyan woman, having for two years cohabited with a Kandyan man in the mulgedara or ancestral house of her father, went with that man to his house and lived in it for some years, and their marriage was then registered. The marriage certificate described the marriage to be in bina. Held, that the entry in the register of marriages, good as it is prim& facie, may be rebutted by evidence which contradicts it. Held also, per Moncreiff, J., with diffidence, that the effect of registration dates back to the original beginning of the connection between the parties and validates what had been before a void marriage. It also validates the legitimacy of the children born before the registration. Cont..
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NLR-Vol.6-P 133
NLR - Vol.6, Page No - 133 Re Estate of PUNCHIRALA, Deceased. D. C., Kandy, 1,839 (Testamentary ). DINGIRI MENIKA et al., Petitioners, v. APPUHAMY, Respondent. Kandyan Law-Succession to acquired property of intestate-Uterine half-brother of intestate-Bight of uterine half-sisters, married in diga, to succeed jointly with their half-brother. Per curiam (with some hesitation), where a Kandyan died intestate and without issue the lands acquired by him devolve on his uterine half-brother, to the exclusion of his uterine half-sisters who had married in diga. THE petitioners alleged in their petition that the respondent, as administrator of the estate of the deceased Punchirala, filed a final account on the footing that he was the sole heir of the intestate, ignoring the rights of the first and second petitioners as the uterine sisters of the Cont..
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NLR-Vol.6-P201
NLR - Vol.6, Page No - 201 TITTEWELLE SANGI v. TITTEWELLE MOHOTTA. D. C., Kurunegala, 1,948. Kandyan Law-The lathimi rights of a childless widow to her husband's acquired property, in preference to his half-brother-Relative weight of the authority of Armour and Sowers. Where a Kandyan died leaving acquired property, and there was a contest between his childless widow and his half-brother for such property: Held, that the widow was his heir, and as such was absolutely entitled to his property by lathimi right in preference to his half-brother. The relative weight of the opinions of Sawers and Armour on the point in question discussed and considered, and the latter authority approved and followed. THE lands in question in this case were the acquired property of Kiriya Gandureya, a Kandyan, who died two years before action brought. The plaintiff, as Kiriya's widow, complained that the Cont..
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NLR-Vol.6-P214
NLR - Vol.6, Page No - 214 NILA HENAYA v. DISSANAYAKA APPUHAMI. C. R., Kandy, 10,597. Kandyan Law-Acquired property of husband-Departure of widow from his house and subsequent marriage in another village-Forfeiture of life interest of widow. The life interest of a widow of a deceased Kandyan in his acquired property does not cease by her departure from his house and her marriage a second time in another village. THE plaintiff prayed for a declaration of title in respect of two-thirds of an allotment of land which originally belonged to one Dantuwa. He died about 1882 leaving a widow, Setu, and three children, Ukkuwa, Samara, and Ukku. Ukku died leaving children surviving him. Ukkuwa and Samara conveyed their two-third shares of the land to the plaintiff. The land was the acquired property of Dantuwa, after whose death Setu, his widow, departed from his house and married a second time in another village. She returned to Dantuwa's house in 1897. Her life interest in the land was sold upon a writ of execution against her in 1891 to the Cont..
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NLR-Vol.6-P 379
NLR - Vol.6, Page No - 379 SOPI NONA v. MARSIYAN. P. C, Balapitiya, 23,485. Maintenance-Evidence in support of affiliation order-Legitimacy of child born during subsistence of valid marriage-Rebuttal of legitimacy-'Evidence Ordinance, s. 112-Competency of husband and wife to give evidence as to sexual intercourse with each other. If a woman seeks to charge her husband with the maintenance of her children born during the continuance of their marriage, she should prove a valid marriage and the birth of her children during its continuance. To evade responsibility for such maintenance, the husband, if he admits the marriage, must prove that he is either impotent or that he had no possibility of access to his wife. The words " no access to the mother " in section 112 of the Evidence Ordinance (No. 14 of 1895) mean impossibility of access. Cont..
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NLR-Vol.6-P90
NLR - Vol.6, Page No - 90 BANDULAHAMY v. RAMMENIKA. C. R. Ratnapura, 5,805. Kandyan Law-Right of illegitimate children to maintenance out of inherited estate of their father- Right of their mother to retain possession of such land. Under the Kandyan Law, the mother of the illegitimate children of a person who has left him surviving his mother and brothers has no right to retain possession of any portion of his ancestral estate on account of the maintenance of such children. IN this case the plaintiffs, who were the brother and the mother of one Malhamy, deceased, alleged themselves to be his only heirs, and sought to recover one-half share of a land called Arambahenawatta and the house standing thereon, which belonged to him by paternal inheritance. The defendant denied their right and contended that she was the wife of the said Malhamy, and that he left three children by her as his heirs, and she claimed the said share of the said premises, but at the trial she limited her claim to maintenance only therefrom. Cont..
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NLR-Vol.70-P190
NLR - Vol.70, Page No - 190 1965 Present: H. N. G. Fernando, S.P.J., and G. P. A. Silva, J. A. ABDUL CADER, Petitioner, and P. WEERAMAN (District Registrar) and 3 others, Respondents S. C. 280/65-Application for Writ of Mandamus and/or Certiorari on the District Registrar, Kurunegala, and 3 others. Muslim Marriage and Divorce Act (Cap. 115)-Sections 16, 17, 21, 29-Validity of divorce despite non- registration-Second or subsequent marriage-Duty of registrar to register it. If a Muslim divorces his wife, section 16 of the Muslim Marriage and Divorce Act makes the divorce valid even if it is not registered. He is, therefore, entitled to contract a second marriage on the basis that he do83 not have a wife of another marriage. The registrar has no power then to refuse to register the second marriage on the ground that the notices required by section 24 of the Act have not been given. APPLICATION for Writ of mandamus and/or certiorari on the District Registrar, Kurunegala. Cont..
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NLR - Vol.70-P203
NLR - Vol.70, Page No - 203 1967 Present: Tambiah, J., and Sirimane, J. W. R. W. M. TIKIRI BANDARA and another, Appellants, and P. GUNAWARDENA, Respondent S. C. 602/65- D. C. Ratnapura, 5264/L Kandyan law-Deed of gift executed prior to 1939-Clause stating that it shall not be revoked-No other conditions imposed-Irrevocability of such deed. If a Kandyan deed of gift is not governed by the provisions of the Kandyan Law Declaration and Amendment Act and it states expressly that it is irrevocable, and the clause relating to irrevocability is not dependent on any other condition, then such a deed cannot be revoked. APPEAL from a judgment of the District Court, Ratnapura. W. D. Gunasekera, with W. S. Weerasooria, for the defendants-appellants- Cont..
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NLR - Vol.70-P 272
NLR - Vol.70, Page No - 272 1967 Present: Samerawickrame, J., and Tennekoon, J. H. LYDIYA, Appellant, and I. P. KIRIUKKUWA and five others, Respondents S.C. 398/65-D.C. Kegalle, 1906/T Kandyan law-Illegitimate son-Death intestate and issueless-Devolution of his acquired property- Respective shares of his wife and the legitimate children of his deceased mother-Kandyan Law Declaration and Amendment Ordinance, s. 11. Under the Kandyan Law, where, after his mother has predeceased him, an illegitimate son dies intestate and issueless, leaving him surviving his wife and no relations other than the legitimate children of his mother, the dominium in respect of his acquired property devolves on his mother's legitimate children, and his wife is entitled only to a life interest in such property. APPEAL from a judgment of the District Court, Kegalle. Cont..
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NLR - Vol.70-P520
NLR - Vol.70, Page No - 520 1965 Present: Tambiah, J., and Abeyesundere, J. R. B. TAMMITTA, Appellant, and C. B. PALIPANE, Respondent S. C. 681/64-D. C. Kandy, 7277/L Kandyan law-Donation-Revocability-" Voluntary transfer "-Kandy an Law Declaration and Amendment Ordinance (Cap. 59), ss. 2, 5 (1). A Kandyan deed of gift executed after the Kandyan Law Declaration and Amendment Ordinance came into operation is irrevocable if the donor has expressly renounced his right to revoke and, although an undertaking was given by the donee to give succour and assistance to the donor during the donor's life-time, the undertaking was not one of the conditions on which the grant was made to the donee by the donor. APPEAL from a judgment of the District Court, Kandy. Cont..
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NLR-Vol.71-P16
NLR - Vol.71, Page No - 16 1966 Present: Alles, J. C. NADARAJAH, Appellant, and E. A. NADARAJAH, Respondent. S. C. 834/1964-M. C. Batticaloa, 8554 Maintenance-Application by wife-Her own means not relevant-Maintenance of child-First application made when the child is between the ages of 16 and 18- Incapacity of Court to award maintenance then- Maintenance Ordinance, ss. 2, 7. The fact that a wife has sufficient means does not preclude her from obtaining an order of maintenance in her favour under section 2 of the Maintenance Ordinance. Section 7 of the Maintenance Ordinance is a bar to an order of maintenance in respect of a child if the application for maintenance is made for the first time after the child has attained the age of sixteen years. Cont..
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NLR-Vol.71-P24
NLR - Vol.71, Page No - 24 1967 Present: Tennekoon, J. ALICE NONA, Appellant, and G. SUGATHAPALA, Respondent. S. C. 710/67-M. C. Kandy, 49908 Maintenance-Kandyan woman married in binna-Refusal by her to change her residence-Effect thereof on her claim for maintenance from her husband- Maintenance Ordinance, s. 4-Kandyan Law Declaration and Amendment Ordinance (Cap. 59), s. 9 (1). Where a Kandyan woman who has contracted a binna marriage refuses to change her residence on the ground that if she changes her residence and goes to live with her husband her rights of inheritance may be affected, she is not entitled to claim maintenance from her husband if he offers to maintain her on condition of her living with him. In such a case, the ground urged by the wife is not a sufficient reason within the meaning of section 4 of the Maintenance Ordinance for her to refuse to live with her husband. Cont..
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NLR - Vol.71- P241
NLR - Vol.71, Page No - 241 1968 Present : H. N. G. Fernando, C.J., Alles, J., and Wijayatilake, J. M. H. N. RAJARATNAM and others, Appellants, and F. D. CHINNAKONE, Respondent S. C. 150/65 (Inty.)-D. C. Jaffna, 669/P Divorce-Action for dissolution of marriage-Effect of decree nisi being made absolute- Precise date on which the marriage is legally dissolved-Thesavalamai- Thediatheddam-Husband's power to alienate his wife's share of it-Date when such power terminates- Civil Procedure Code, ss. 188, 605. In an action for dissolution of marriage, the decree nisi is not effective to dissolve the marriage, and it is only the decree absolute which has that effect. Decree nisi was signed by the District Judge on 23rd January 1918, and on 23rd September 1948 the Judge made an order " I therefore order that decree nisi be made absolute ". An endorsement in Cont..
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NLR - Vol.71-P289
NLR - Vol.71, Page No - 289 [PRIVY COUNCIL] 1968 Present : Lord Hodson, Lord Guest, Lord Upjohn, Lord Donovan and Sir Thaddeus McCarthy TIKIRI BANDA DULLEWE, Appellant, and PADMA RUKMANI DULLEWE and another, Respondents PRIVY COUNCIL APPEAL NO. 24 OF 1967 S. C. 391/63-D. C. Kandy, 5765/L Kandyan Law Declaration and Amendment Ordinance (Cap. 59)-Sections 4 and 5- Deed of gift-Mode of renouncing the right to cancel or revoke the gift- Requirement of a special clause of renunciation- Effect of words "as a gift irrevocable". Held (LORD DONOVAN dissenting), that where the right to revoke a Kandyan deed of gift executed after the commencement of the Kandyan Law Declaration and Amendment Ordinance of 1939 is renounced Cont..
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NLR - Vol.71-P433
NLR - Vol.71, Page No - 433 1968 Present : H. N. G. Fernando, C. J., and Wijayatilake, J. K. M. R. H. KEKULANDARA, Appellant, and T. B. MOLAGODA, Respondent S. C. 301/66 (F)-D. C. Kegalle, 15263/L Kandyan law-Deed of gift executed prior to year 1939-Revocability-Effect of words such as " the donee shall possess for ever "-Kandyan Law Declaration and Amendment Ordinance (Cap. 59), ss. 4 (1), 5. In a clause in a Kandyan deed of gift, which was executed prior to the commencement of the Kandyan Law Declaration and Amendment Ordinance, the donors recited that they " do hereby transfer set over and assure by way of gift unto the said Donee his heirs executors administrators and assigns the said several promises and all the estate right title interest claim and demand whatsoever of us the said Donors into upon or out of the said premises hereby gifted and assigned and each of them and every part thereof which are of the value of Rupees One Thousand (Rs. 1,000) unto the said donee his aforewritten for ever ". Cont..
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NLR - Vol.71- P461
NLR - Vol.71, Page No - 461 1968 Present : Sirimane, J., and de Kretser, J. H. JOHN PERERA, Appellant, and H. MATHUPALI, Respondent S. C. 164/67-D. C. Colombo, 6613/D. Divorce-Suit by husband-Husband guilty of matrimonial offence-Delay in filing action-Circumstances when he may nevertheless be granted divorce-Discretion vested in the Court-Scope-Civil Procedure Code, proviso to s. 602. Plaintiff-appellant sued his wife for divorce on the ground of malicious desertion. The parties were married on 7th July 1943, and from April 1949 the defendant was living with a paramour by whom she had a child. The plaintiff lived with a mistress from 1957 and had three illegitimate children by her. He gave reasonable excuses for delaying to file the present action. Held, that, despite the plaintiff's matrimonial offence and his delay in filing the action, it was Cont..
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NLR - Vol.71- P522
NLR - Vol.71, Page No - 522 1968 Present : T. S. Fernando, J., and Alles, J. N. J. CANEKERATNE, Appellant, and R. M. D. CANEKERATNE, Respondent S. C. 332/64-D. G. Colombo, 58606/M Husband and wife-Matrimonial home-Right of deserted wife to remain in occupation of it-Prevention of Frauds Ordinance (Cap. 70), s. 2. A wife who has been deserted by her husband is not liable to be ejected by her husband from the matrimonial home (unless alternative accommodation or substantial maintenance to go and live elsewhere is offered to her). APPEAL from a judgment of the District Court, Colombo. Cont..
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NLR - Vol.72- P140
NLR - Vol.72, Page No - 140 1969 Present : H. N. G. Fernando, C. J., and Pandita-Gunawardene, J. B. A. R. DE JONK, Petitioner, and M. D. DE JONK, Respondent S. C. 708/68-Application for Revision in D. C. Colombo, 7409/D Execution of decrees-Matrimonial action-Salary of an employee-Exemption from seizure for alimony- Civil Procedure Code, s. 218 (m). Section 218 (m) of the Civil Procedure Code, as amended by Act No. 24 of 1961, debars the seizure of the salary of an employee (other than a public officer or servant) in execution of an order for alimony entered against him in a. matrimonial action. APPLICATION to revise an order of the District Court, Colombo. Siva Rajaratnam, with C. Chakradaran, for the defendant-petitioner. L. A. T. Williams, for the plaintiff-respondent. Cont..
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NLR-Vol.72-P19
NLR - Vol.72, Page No - 19 1968 Present : Sirimane, J., and Pandita-Gunawardene, J. A. L. M. THAHIR, Petitioner, and A. M. SHAFI and another, Respondents S.C. 4O3/68-Appiication for a Mandate in the nature of a Writ of Certiorari and/or Mandamus on A. M. Shaft (Quazi), Quazi Court, Ratnapura, and another Muslim Marriage and Divorce Act (Cap. 115)-S'eetion 64 (1)-Enforcement order- Duty of Quazi to issue notice to the respondent. Before an enforcement order under Section 64 (1) of the Muslim Marriage and Divorce Act is issued a Quazi should issue notice to the respondent and inquire into any objections which he may raise. APPLICATION for a writ of certiorari and/or mandamus. M. S. M. Nazeem, for the petitioner. Cont..
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NLR-Vol.72-P385
NLR - Vol.72, Page No - 385 1967 Present : H. N. G. Fernando, C.J., and Sirimane, J. P. ABEYSINGHE, Appellant, and P. L. BAUDHASARA and 10 others, Respondents S. C. 285/63(F)-D. C. Colombo, 8930/P Adoption of Children Ordinance (Cap. 61)-Section 6 (3)-Deed of fideicommissum- Designation of lawful children or lawful heirs of donee as fideicommissaries- Adoption of child by donee subsequently-Death of donee without issue- Whether adopted child acquires any rights under the fideicommissum. A condition in a deed of gift of 3rd February 1930 burdened the donated property with a fideicommissum in favour of the lawful children of the donee M or, failing such children, in favour of the lawful heirs of M. M died unmarried and without issue. But shortly before his death, M adopted a child under the Adoption of Children Ordinance. The question to be decided in the present action was whether the adopted child became entitled to Cont..
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NLR - Vol.72-P409
NLR - Vol.72, Page No - 409 1969 Present : H. N. G. Fernando, C.J., Weeramantry, J., and Wijayatilake, J. SUJATHA KUMARIHAMY, appellant, and S. R. M. DINGIRI AMMA and others, Respondents S. C. 121/1965-D. C. Kurunegala, 1432/P Kandyan law prior to 1938-Inheritance of paternal property by intestate heirs- Subsequent physical division of some of the undivided lands by the co-heirs by notarial deed-Whether a land owned dividedly thereafter by a co-heir should be regarded as entirely paraveni-Concept of " paraveni" prior to 1938- "Acquired property "-Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938, ss. 10, 27. Held by H. N. G. FERNANDO, C.J. and WEERAMANTRY, J. (WIJAYATILAKE, J. dissenting), that, under the Kandyan law prior to the enactment of the Kandyan Law Declaration and Amendment Ordinance of 1938, when co-heirs who inherited several lands from their father who died intestate divided some of the lands physically between themselves by subsequent mutual agreement by the execution of a notarial deed in such a manner that they became sole owners of specific and separate portions, any one of Cont..
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NLR - Vol.73-P268
NLR - Vol.73, Page No - 268 1970 Present : Sirimane, J., and Wijayatilake, J. E. D. PINA, Appellant, and I. L. AHAMADU LEBBE, Respondent S.C. 183/67 (Inty.)-D. C. Kuliyapitiya, 1337/P Kandyan law prior to 1939-Diga connections by daughter without valid marriage- Forfeiture of her rights to the paternal estate-Kandyan Law Declaration Ordinance (Cap. 59), s. 9 (2). Under the Kandyan law prior to 1939, a daughter who went out in Diga forfeited her rights to her paternal estate even if there was no valid registered marriage between her and the man or men with whom she had Diga connections. APPEAL from an order of the District Court, Kuliyapitiya. T. B. Dissanayake, with Sepala Munasinghe, for the let defendant-appellant. Walter Wimalachandra, with T. B. Dillimuni, for the plaintiff-respondent. Cont..
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NLR - Vol.73- P42
NLR - Vol.73, Page No - 42 1970 Present: Siva Supramaniam, J., and Samerawickrame, J. A. R. F. LOUIS. Appellant, and AGNES EMMANUEL, Respondent S. C. 172/68 (Inty.)-D. C. Colombo, 5755/D Matrimonial action-Execution of decree awarding alimony-Right of wife to seize salary and allowance of husband-Civil Procedure Code, as amended by Act No. 5 of 1964, se-. 217, 217A, 218 (m), 596, 615 (1), 615 (2), 624. Section 218 (m) of the Civil Procedure Code, as amended by Act No. 5 of 1964, does not deprive a wife of her right to seize the salary and allowance of her husband in execution of a decree for alimony in her favour. The exemption under section 218 (m) applies only to seizures under writs issued in execution of decrees in ordinary civil actions and cannot have application to orders for Cont..
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NLR-Vol.73-P428
NLR - Vol.73, Page No - 428 1969 Present: de Kretser, J. G. RAYAPPAN, Appellant, and R. MONICAMMA, Respondent S. C. 66/69-Chief M. C. Colombo, 33614/A. M. C. Maintenance Ordinance-Application for maintenance thereunder-Whether it is affected by action for divorce instituted by one party against the other. An application for maintenance may be made by a wife under the Maintenance Ordinance during the pendency of an action for divorce instituted against her by the husband. APPEAL from a judgment of the Chief Magistrate's Court, Colombo S. .N. Rajadurai, for the respondent-appellant. H. W. Jayewardene, Q.C., with M. Amarasingham and C. M. N. Samaraweera, for the applicant- respondent. Cont..
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NLR-Vol.73-P572
NLR - Vol.73, Page No - 572 1969 Present : Sirimane, J., and Wijayatilake, J. R. PALLITHAMBY, Petitioner, and M. M. SAVIRIATHUMMA, Respondent S. C. 483/68-Application for leave to appeal in Quazi Tribunal Karavaku and Nintavur No. 1936, Board of Quazis Appeal No. 602/B Muslim Marriage and Divorce Act (Cap. 115), as amended by Act No. 1 of 1965- Sections 2, 47 (1) (c), 48-Liability of a Muslim to maintain his illegitimate child-Jurisdiction of a Quazi- Maintenance Ordinance (Cap. 91), s. 2. A Muslim in Ceylon is liable to maintain his illegitimate child. Section 47 (1) (c) of the Muslim Marriage and Divorce Act, as amended by section 6 of the amending Act No. 1 of 1965, empowers a Quazi to adjudicate upon a claim for maintenance made on behalf of an illegitimate child when the mother of the child and the person from whom the maintenance is claimed Cont..
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NLR-Vol.73-P86
NLR - Vol.73, Page No - 86 1970 Present: Alles, I., and Tennekoon, J. M. S. M. ANSAR , Respondent-appellant-petitioner (hereinafter referred to as the petitioner), and FATHIMA MIRZA (daughter of Al Haj A. C. M. Sulaiman), Applicant-respondent-respondent (hereinafter referred to as the respondent) S. C. 797/69-Application for leave to appeal in B/Q No. 755 Q/C Colombo South 836/D Colombo North No. 4024 /D under the provisions of the Muslim Marriage and Divorce Act (Cap. 115) Muslim Marriage and Divorce Act (Cap. 115)-Sections 14, 28 (1), 62, 07-Application for leave to appeal to the Supreme Court under 8. 62-Reasons for grant of leave In an application under section 62 of the Muslim Marriage and Divorce Act for leave to appeal to the Supreme Court from a judgment of the Board of Quazis, it would be a denial of justice to refuse leave to appeal in a divorce case in which the appeal contemplated cannot be characterised as frivolous or vexatious. Cont..
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NLR-Vol.73-P91
NLR - Vol.73, Page No - 91 1969 Present: Wijayatilake, J. K. M. SENEVIRATNE, Appellant, and K. PODI MENIKE, Respondent S.C. 885/68-M.C. Kandy, 49411 Maintenance Ordinance-Application for maintenance of illegitimate child-Dismissal without inquiry into merits-Power of Court to re-open proceedings in a fit case -Natural justice. Where an application for maintenance of an illegitimate child is dismissed ex parte without an inquiry into the merits, the Magistrate has power in a fit case, on the ground of natural justice, to re-open the proceedings within reasonable time if good cause is shown for vacating the order of dismissal. As the Magistrate who was hearing the application of the applicant-respondent for maintenance in respect of her illegitimate child was going on transfer, the case was fixed, of consent, for inquiry de novo before his successor. The applicant was absent on the date of inquiry and her Cont..
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NLR - Vol.74-P155
NLR - Vol.74, Page No - 155 1971 Present: Silva, S.P.J., and Samerawickrame, J. M. SUMANASIRI, Appellant, and R. M. TILLEKERATNE BANDA, Respondent S. C. 315/87 (F)-D. C. Kandy, 6437 Kandyan Law Declaration and Amendment Ordinance (Cap. 59) Sections 2 (a), 4, 5 (1) (d)-Deed of gift- Revocability. A Kandyan gift which was executed after the commencement of the Kandyan Law Declaration and Amendment Ordinance, although it purported to be "absolute and irrevocable", did not contain a special clause of renunciation expressed in the particular manner stated in section 5 (1) (d) of the Ordinance. There was appended to the deed a condition requiring the donee to render to the donor all needful assistance during the period of her natural life. Held, that the deed created a gift that was revocable. It could not be contended that, by virtue of the coalition relating to the performance of certain services, the dead was not a gift within the Cont..
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NLR-Vol.74-P383
NLR - Vol.74, Page No - 383 1971 Present : de Kretser, J. A. A. RICHARD, Appellant, and G. D. ANULAWATHIE, Respondent S. C. 53/70-M. C. Colombo South, 97365/ A Maintenance Ordinance (Cap. 91)-Section 3-Order for maintenance of wife- Conditions necessary-Lack of bona fides in husband's offer to maintain wife- Whether it is a ground per se to order maintenance. Where a husband offers to maintain his wife, the only grounds on which he may nevertheless be ordered to pay maintenance under section 3 of the Maintenance Ordinance are that he is living in adultery, or that he has habitually treated his wife with cruelty. An order for maintenance of the wife cannot be made merely because, in the opinion of the Court, the offer of the husband to maintain his wife is not made bona fide. APPEAL from a judgment of the Magistrate's Court, Colombo South. Cont..
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NLR-Vol.74-P 430
NLR - Vol.74, Page No - 430 1970 Present : Samerawickrame, J. U. INDRAWATHIE KUMARIHAMY, Appellant, and I. W. PURIJJALA, Respondent S. C. 1187/67-M. C. Matale, 25213 Maintenance-Illegitimate child-A false denial by the defendant-Whether it always constitutes corroborative evidence. In an application for maintenance of an illegitimate child, an untrue statement by the alleged father in answer to a question put to him regarding his conduct is not corroborative of the mother's evidence unless it is capable of leading to an inference that the defendant is the father of the child. APPEAL from a judgment of the Magistrate's Court, Matale. Mrs. Manouri Muttettuwegama, for the applicant-appellant. H. W. Jayewardene, Q.C., with Sepala Munasinghe and Ben Eliyatamby, for the defendant-respondent. Cont..
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NLR-Vol.74-P542
NLR - Vol.74, Page No - 542 1969 Present: de Kretser, J. V. MUNASINGHE, Appellant, and M. J. PIERIS (Food and Drugs Inspector), Respondent S.C. 1187/68-M. C. Colombo South, 94037/A Control of Prices Act (Cap. 173), as amended by Act No. 44 of 1957-Charge of setting-article above Control price-Plea of accident-Maintainability-Penal Code, ss. 72, 73. In a prosecution for a contravention of the Control of Prices Act, the fact that it is a statutory offence does not preclude the accused from pleading the exception of accident contemplated in section 73 of the Penal Code. In such a case the Control of Prices (Amendment) Act, No. 44 of 1957, which takes away the right of the accused to plead the exception of mistake of fact (section 72 of the Penal Code) has no application. The accused-appellant, a salesman, sold an article for Rs. 5.98 when its Control Price was Rs. 5.89. His explanation was that when he wrote out the bill he inadvertently transposed the figure 9 Cont..
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NLR-Vol.75-P279
NLR - Vol.75, Page No - 279 1971 Present: Samerawickrame, J., and Weeramantry, J. M. H. M. ANSAR, Appellant, and FATHIMA MIRZA, Respondent S. C. 1/70-Quazi Court, 755/836/10 Muslim law-Fasah divorce-Availability to wife on grounds of ill-treatment and desertion by husband- Meaning of expression " legal cruelty " same in Muslim law as in Roman-Dutch or English law-Proof of actual violence not necessary- Appointment of a special Quasi to hear a particular case-Validity- Muslim Marriage and Divorce Act (Cap. 115), ss. 12 (1) (2), 13,14, 67. The respondent-appellant and his wife, the applicant-respondent, were Muslims. Four months after their marriage, the husband left the matrimonial home on 16th January 1962. In the present proceedings, which commenced before a special Quazi and were continued, in appeal, before the Board of Quazis and the Supreme Court, it was established (1) that the husband's departure from the matrimonial house was without reasonable cause, and (2) that the course of conduct indulged in by the husband was each as made married life altogether insupportable. Although there was no actual violence, life together was fraught with danger to the health of the wife and tended to reduce her Cont..
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NLR-Vol.75-P295
NLR - Vol.75, Page No - 295 1971 Present : Samerawickrame, J., and Weeramantry, J. FATHIMA MIRZA, Appellant, and M. H. M. ANSAR, Respondent S.C. 2/70-Quazi Court, 755/836/10 Muslim law-Shaft sect-Khula divorce-Non-availability of it to the wife in the face of the husband's resistance-Muslim Marriage and Divorce Act (Cap. 115), ss. 28, 98 (2), Rule 12 of Schedule 3. Section 98 (2), read with section 28 and Rule 12 of the 3rd Schedule, of the Muslim Marriage and Divorce Act makes it mandatory that in all matters relating to any Muslim marriage or divorce, the status and the mutual rights and obligations of the parties shall be determined according to the Muslim law governing the sect to which the parties belong. Accordingly, where the parties belong to the Shafi sect, the wife is not entitled to obtain a Khula divorce from a court unilaterally without the consent and participation of the husband. A khula divorce is one which is granted without any necessary requisite of fault on the part of the husband and is in this respect basically different from the fasah divorce. One of the circumstances Cont..
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NLR-Vol.75-P313
NLR - Vol.75, Page No - 313 [In the Court of Appeal of Ceylon] 1972 Present: Fernando, P., Sirimane, J., Samerawickrame, J., and Siva Supramaniam, J. A. J. ABDEEN, Appellant, and A. A. A. SITHY ALAVIA, Respondent Appeal No. 5 of 1972 (P. C. Appeal No. 37 of 1970) S. C. 825/68, with Application 295-M. C. Trincomalee, 3608 Muslim Marriages and Divorce Act (Cap. 115)-Sections 3, 64, 66-Sums due as maintenance awarded to a wife arid child-Quazi may issue a single certificate to Magistrate-Period of imprisonment to which defaulter may be sentenced- Plea of prescription not available-Prescription Ordinance (Cap. 68), s. 10. The appellant was sentenced by a Magistrate to imprisonment for seventy months for defaulting in payment of maintenance for his wife and child as ordered by a Quazi. Cont..
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NLR-Vol.75-P353
NLR - Vol.75, Page No - 353 1971 Present: de Kretser, J. PUSHPAWATHY, Appellant, and R. SANTHIRASEGARAMPILLAI, Respondent S. C. 1048/69 - M. C. Mallakam, 13760 Maintenance Ordinance (Cap. 91)-Section 4 -" Living in adultery ". Where a husband against whom an order of maintenance had been made in favour of his wife sought the cancellation of the order on the ground that, about four years after the order was made, the wife gave birth to a child which was not his- Held, that the birth of the child did not, by itself, establish that the wife was living in adultery with someone. It only established that the wife had committed adultery with someone, which act might well be a single lapse from virtue. APPEAL from a judgment of the Magistrate's Court, Mallakam. C. Chellappah, for the applicant- Cont..
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NLR - Vol.76-P 203
NLR - Vol.76, Page No - 203 1970 Present ; H. N. G. Fernando, C.J., and Thamotheram, J. ELM. TIKIRI BANDA, Appellant, and R. M. DINGIRI BANDA and 2 others, Respondents S. C. 176/68 (Inty.)-D. C. Kurunegala, 2953/P Kandyan Law Declaration and Amendment Ordinance (Cap. 59) Sections 11 (1) (a), 13-Right of a widow to life interest in the acquired property of her deceased husband-Effect thereon when there are children by her and by a previous marriage of the deceased. When a person who is subject to the Kandyan Law Declaration and Amendment Ordinance dies leaving his widow and children by her and also children by a previous marriage, the per capita shares of the children of the previous marriage are not subject to the widow's life interest in a one-half share of the acquired property of the deceased except if, and to such extent as, the per capita shares of the widow's own issue are less than one-half. APPEAL from an order of the District Court, Kurunegala. Cont..
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NLR - Vol.76- P210
NLR - Vol.76, Page No - 210 1972 Present : Deheragoda, J. ABDUL WAHID, Appellant, and SITHY NALEERA, Respondent S. C. 256/71-M. C. Kalmunai, No. Q. 918/D. 369 Muslim Marriage and Divorce Act--Sections 12-14, 46-48, 64, 66, 67-Act No. 1 of 1965-Act No. 32 of 1969-Application for appointment of a Special Quazi- Inability to have it heard on account of failure of Legislature to provide for a valid appointing body-Resulting effect on an order of maintenance made by the ordinary Quazi. An ex parte order of maintenance entered by a Quazi against the appellant was made absolute on 9th November 1967 under the Muslim Marriage and Divorce Act, although the appellant had applied for the appointment of a Special Quazi in terms of section 67 of that Act on the ground that a fair and impartial trial was not possible before the Quazi. But an appointment of a Special Quazi could not have been validly made under section 67 until it was amended on 9th December by Act No. 32 of 1969. Cont..
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NLR-Vol.76-P210
NLR - Vol.76, Page No - 210 1972 Present : Deheragoda, J. ABDUL WAHID, Appellant, and SITHY NALEERA, Respondent S. C. 256/71-M. C. Kalmunai, No. Q. 918/D. 369 Muslim Marriage and Divorce Act--Sections 12-14, 46-48, 64, 66, 67-Act No. 1 of 1965-Act No. 32 of 1969-Application for appointment of a Special Quazi- Inability to have it heard on account of failure of Legislature to provide for a valid appointing body-Resulting effect on an order of maintenance made by the ordinary Quazi. An ex parte order of maintenance entered by a Quazi against the appellant was made absolute on 9th November 1967 under the Muslim Marriage and Divorce Act, although the appellant had applied for the appointment of a Special Quazi in terms of section 67 of that Act on the ground that a fair and impartial trial was not possible before the Quazi. But an appointment of a Special Quazi could not have been validly made under section 67 until it was amended on 9th December by Act No. 32 of 1969. The resulting position was that prior to the amending Act, the Legislature had provided a remedy without providing the means of pursuing that remedy. Cont..
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NLR - Vol.76- P 56
NLR - Vol.76, Page No - 56 [IN THE COURT OF APPEAL OF SRI LANKA] 1972 Present: Fernando, P., Samerawickrame, J., and Siva Supramaniam, J. ALARMALAMMAL, Applicant, and S. P. NADARAJAH, Respondent C. A. APPLICATION NO. 36 OF 1972 S. C. 515/67 (F)-D. C. Jaffna, 1074/D Cont..
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NLR-Vol.77-P143
NLR - Vol.77, Page No - 143 1972 Present: Rajaratnam J. D. G. PERERA, Appellant, and K. A. D. SHAMA PERERA Respondent S. C. 601171-M. C. Colombo, 33347/AMC Maintenance-Order for maintenance of children-Children looked after by a third party subsequently- Liability of the defendant nevertheless to pay all arrears due-Maintenance Ordinance, a. 10. Where a person has been ordered under the Maintenance Ordinance to pay maintenance in favour of his children, his liability to pay arrears of maintenance is not extinguished by the fact that a third party looked after the children when they were destitute. APPEAL from a judgment of the Magistrate's Court, Colombo. N. B. H. Daluwatte, for the defendant- appellant. W. Justin Perera, for the applicant-respondent. October 19, 1972. Rajaratnam, J.- Cont..
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NLR-Vol.77-P175
NLR - Vol.77, Page No - 175 1973 Present: G. P. A. Silva, S. P. J. S. RAJASINGHE, Appellant, and A. A. BANDARA, Respondent S. C. 474/70-M. C. Kandy, 59489 Jurisdiction-Application for maintenance-Right of applicant to make such application before a Magistrate's Court anywhere-Maintenance Ordinance (Cop. 91), s. 11. The Maintenance Ordinance leaves it open to an applicant to file an application for maintenance before any Magistrate's Court. There is no obligation on the applicant to go to a Court where the defendant resides or where the cause of action arose. APPEAL from an order of the Magistrate's Court, Kandy. L. D. Guruswamy, for the applicant-appellant. No appearance for the defendant-respondent. Cont..
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NLR-Vol.77-P332
NLR - Vol.77, Page No - 332 1973 Present; G, P. A. Silva, S. P. J. A. A. WIMALARATNE, Appellant, and M. K. MILINA Respondent S. C. 191/72-M. C. Galle, 50058 Maintenance Ordinance-Section 6--Nature of corroborative evidence which is required thereunder. In an application for maintenance of an illegitimate child, evidence of any number of witnesses who had heard from the applicant's mouth that the defendant was the father of the child would not constitute independent corroboration of the story of the applicant as to paternity. Held further, that if the evidence of the mother of the child is unreliable the question of corroboration does not arise. APPEAL from a judgment of the Magistrate's Court, Galle. D. K. P. Goonetilleke, for the defendant-appellant. Cont..
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NLR-Vol.77-P406
NLR - Vol.77, Page No - 406 1973 Present: Pathirana, J. W. I. PIYASENA, Appellant, and K. M. KAMALAWATHIE, Respondent S.C. 413/72-M, C. Ratnapura, 64049. Maintenance-Illegitimate child-Proof of paternity-Production of birth certificate not necessary always. In an application for maintenance for an illegitimate child whose birth has been registered, the birth certificate of the child need not be produced if the only issue in the case is whether the child born to the applicant was a child of the defendant, as alleged by the applicant, or whether the child was that of a man other than the defendant, as alleged by the defendant. Allis v. Nandawathie (75 N. L. R. 191) distinguished. APPEAL an order of the Magistrate's Court, Ratnapura. Cont..
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NLR-Vol.77-P 95
NLR - Vol.77, Page No - 95 1973 Present: Wijayatilake, J. H. DHANAPALA, Petitioner, and W. J. P. BABY NONA, Respondent S. C. 16/73-Application for Revision in M. C. Ratnapura, 71283 Maintenance Ordinance (Cap. 91), as amended by Act No. 19 of 1972- Section 2-Quantum of maintenance which can be awarded thereunder. When an application for maintenance is made under section 2 of the Maintenance Ordinance for the maintenance of a child, the Court has no jurisdiction to award any sum in excess of the quantum claimed by the applicant. APPLICATION to revise an order of the Magistrate's Court, Ratnapura. P. O. Wimalanaga, for the petitioner. Cont..
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NLR-Vol.78-P 119
NLR - Vol.78, Page No - 119 1972 Present: Deheragoda, J. SOLOMON FERNANDO, Defendant-Appellant and CHANDRALATHA ABEYSEKERA, Applicant-Respondent S. C. 237/71-M. C. Colombo 5516/A Maintenance Ordinance-Illegitimate child-Corroboration of mother's evidence-Section 6. In an application for maintenance of an illegitimate child under Section 6 of the Maintenance Ordinance, the Magistrate ought in the first instance to analyse the evidence very carefully and arrive at a firm finding as to whether he believed the applicant or the defendant, before looking for independent corroboration of the applicant's evidence. The issue as to corroboration does not present itself for adjudication where the Magistrate is of the view that the applicant's evidence is unreliable. Turin vs. Liyanora (1951) 53 N. L. R. 310 followed. Cont..
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NLR - Vol.78- P488
NLR - Vol.78, Page No - 488 1976 Present: Thamotheram, J., Sharvananda, J., and Ratwatte J. K. MUTHUKUMARASAMY, Appellant, and PARAMESHWARY. Respondent S. C. 416/73 (F)-D. C. Jaffna, 1476/D Divorce-Malicious desertion-Supervening animus revertendi- Termination of desertion-Offer of return by deserting spouse- Whether deserted spouse could refuse re-instatement-Effect of such refusal. Termination of malicious desertion can take place by a supervening animus revertendi, coupled with a bona fide approach to the deserted spouse with a view to resumption of life together. Where the deserting spouse makes a genuine offer to return to the matrimonial home with a view to resumption of life together, the deserted spouse cannot lawfully refuse re-instatement. A deserted spouse must, always, until presentation of his plaint, affirm the marriage and be ready to take back the Cont..
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NLR - Vol.78-P 529
NLR - Vol.78, Page No - 529 1976 Present : Tennekoon, C. J., Weeraratne, J., and Sharvananda, J. R. P. D. GUNASENA and three others, Appellants, and R. P. D. UKKU MENIKA and two others, Respondents S. C. 584/69-D. C. Kurunegala 5727/T Kandyan Law-Marriage in diga-Forfeiture of rights to the paternal, inheritance-Re-acquisition of binna rights by daughter married in diga-Waiver of forfeiture of rights to the paternal inheritance- Kandyan Law Declaration and Amendment Ordinance (Chapter 59). Prior to the coming into operation of the Kandyan Law Declaration and Amendment Ordinance (Chapter 59) the "re-acquisition of binna rights by a daughter who has gone out in diga can be established by proving the exercise by such diga married daughter of rights in the mulgedera or in the paternal property as though there had been no forfeiture, coupled with acquiesence on the part of the father or he being dead, of the brothers in such exercise of rights; the exercise of rights in the paternal property will include the execution by the diga married daughter of deeds of sale, lease Cont..
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NLR-Vol.79II-P25
NLR - Vol.79II, Page No - 25 1978 Present: Udalagama, J., Ismail, J. and Tittawella, J. HAPUGANORALAGE MENIKHAMY and OTHERS, Appellants and J. M. PODI MENIKA and OTHERS, Respondents S. C. 108-109/71 (F)-D. C. Kurunegala 6259/T Adoption of Children Ordinance (Cap. 61), section 3-Child brought up by parties subject to Kandyan Law-Application made in respect of such child under the Adoption of Children Ordinance -Requirement in section 3 (5) that no order except with child's consent where the child is over 10 years old- Whether such requirement mandatory-Duty of Judge to obtain such consent- Effect of lack of consent- Jurisdiction of Court-Whether order void. Evidence Ordinance, sections 41, 114(d)-Can such Adoption Order be attacked collaterally- Application of presumption to be drawn under section 114(d)-In what circumstances can such presumption be drawn. Cont..
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NLR-Vol.79I-P209
NLR - Vol.79I, Page No - 209 1977 Present: Pathirana, J., Malcolm Perera, J. and Vythialingam, J. UMMUL MARZOONA, Appellant and A. W. A. SAMAD, Respondent S. C. Application No. 159/77- Board of Quazis No. 1821 Maintenance-Muslim father's duty to maintain his son-When does such duty cease-Exclusive jurisdiction of the Quazi-Muslim Marriage and Divorce Act (Cap. 115), section 48-Maintenance Ordinance as amended (Cap. 91)-Age of Majority Ordinance (Cap. 66), section 3. Held : (1) That under the principles of Muslim Law as laid down for the Shaffi Sect to which the majority of the Muslims of this country belong, a Muslim father is obliged to maintain his son until he reaches puberty or the age of 15 years. However, thereafter his liability ceases unless the son is disabled by disease or infirmity. The fact that the son is engaged in studies is such a disability as is envisaged by this rule and therefore the father's duty to maintain continues Cont..
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NLR - Vol.79I- P445
NLR - Vol.79I, Page No - 445 1977 Present: Wijesundera, J. and Vythialingam, J. A. J. WEERARATNE, Appellant and W. CHANDRAWATHIE PERERA, Respondent S. C. 23/77-M.C. Panadura 54371 Maintenance-Application by wife for herself and child-Plea that the respondent was of unsound mind - Effect of such plea-Procedure to be followed-Criminal Procedure Code, Chapter XXXIII- Civil Procedure Code, Chapter XXV-Applicability-Medical certificates-Production without calling medical officer-. Admissibility-Administration of Justice Law, No. 44 of 1973, section 147. The applicant sued the respondent (her husband) for maintenance for herself and her child. Counsel Cont..
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NLR-Vol.7-P 100
NLR - Vol.7, Page No - 100 DINGA v. HAPUWA. C.R., kurunegala, 8,908 Kandyan. Law-Inheritance-Diga married daughters. A diga married daughter does not forfeit her right to inherit lands which had been acquired by her mother, or to which her mother bad succeeded collaterally, or otherwise than by inheritance from her father. THE plaintiff alleged that the land which formed the subject of dispute between him and the defendant originally belonged to one Pina by right of inheritance from his father Yakdessa; that Yakdessa had five sisters, viz., Ukku, Siriati, Tikiri, Hapu, and Dingira; that Pina died about 1892 without issue, when Hapu and Dingira and the children of Ukku, Siriati, and Tikiri, who had predeceased Pina, became entitled to the said land; that they divided the same into five shares and held. each. dividedly; that one of these shares was held by Ukku; that Ukku had four children, two Cont..
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NLR - Vol.7- P107
NLR - Vol.7, Page No - 107 DONDRIS v. KUDATCHI. C. R., Galle, 2,474. Husband and wife-Divorce-Effect of, on common property of spouses. A wife divorced from her husband on the ground of her adultery forfeits for the benefit of the innocent spouse everything which,-according to the Common Law or by ante-nuptial contract or otherwise, would have been acquired by her out of his property. Where D got judgment against L, the only child of A, deceased, who owned a certain land, and seized in execution a moiety of this land as the property of L, and K claimed it as the purchaser under a writ issued in another case against the administrator of A, whose wife N was divorced from A for adultery,- Held, in an action brought by D against K to have an undivided half of the land declared liable to Cont..
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NLR-Vol.7-P166
NLR - Vol.7, Page No - 166 PERERA v. PERERA Addl. P.C., Colombo, 7,648. Maintenance-Ordinance No. 19 of 1889, s. 5-Right of wife who refuses to live with her husband without just cause to maintenance of her children of tender years. A wife who refuses to live with her husband without just cause is still entitled to receive maintenance for his children of tender years who are in her custody. THE Court below having rejected an application for maintenance for herself, as the wife of the defendant, and for her infant children by him, the wife appealed to the Supreme Court. There was no appearance of counsel for her or for the respondent. 1st April, 1903. WENDT, J.- The Police Magistrate appears to have dealt with this case as if the application for maintenance Cont..
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NLR-Vol.7-P242
NLR - Vol.7, Page No - 242 APPUHAMY v. HUDU BANDA. C. R., Badulla, 24,135. Kandyan Law-Diga married husband's interest in his deceased wife's estate- Partition Ordinance, No. 10 of 1863, s. 2-Land belonging to plaintiff in common with others-Meaning of " belong to him "- Right to maintain partition suit. The property of a Kandyan diga wife dying intestate, leaving children by two beds, descends per stirpes to such children. Failing children, her ancestral property goes over to the next nearest' line which issues from the common ancestor, subject to a life interest in favour of her diga married widower. The diga married widower as owner of a life interest is not entitled to a partition suit. THE plaintiff prayed for a partition decree in respect of certain lands, alleging that his wife Hudu Menika received them as a gift from her father and died intestate, leaving three children born Cont..
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NLR-Vol.7-P 364
NLR - Vol.7, Page No - 364 Re Estate of SUNDARA, Deceased. RANKIRI, Petitioner. UKKU, Administratrix, Respondent. D. C, Kandy, 2,061 (Testamentary). Kandyan Law-Acquired property of deceased intestate-Right thereto of illegitimate children-Rights of widow and sister of deceased. The Kandyan Law does not distinguish between illegitimate children born in adultery and merely natural children. If there be no widow and legitimate children, the illegitimate children succeed to the whole of the acquired property of the father, movable and immovable. Mahatmaya v. Banda, 2 S. C. R. 142, approved. Cont..
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NLR - Vol.80- P213
NLR - Vol.80, Page No - 213 1977 Present: Rajaratnam, J., Sharvananda, J. and Wanasundera, J. M. D. I. WIJESINGHE, Petitioner and ASLIN NONA, Respondent. S.C. 467/70 (F) - D.C. Kalutara 897 Matrimonial actions - Divorce - Res judicata - Civil Procedure Code Sections 33, 34 and 207 - Do estoppels bind the Divorce Court? - Civil Procedure Code Sections 600, 601 and 602 - Mandatory provisions. Plaintiff filed action for dissolution of his marriage with the defendant, on the ground that defendant had since his separation in early 1965 committed adultery with persons unknown to the plaintiff. Cont..
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NLR-Vol.80-P304
NLR - Vol.80, Page No - 304 1978 Present: Samarakoon, C. J., and Gunasekera, J. S. G. NISMALM et al. Applicants and SHANTHI et al. Respondents. S.C. APN/GEN/31/78-M.C. Wattala 83/AC. Adoption of Children Ordinance - Distinction between "resident" and "domiciled" -Jurisdiction. An applicant under the adoption of Children Ordinance should be a resident in Sri Lanka to make an application for adoption. Held: The word "resides" suggests some continuity or permanancy. A transient visitor for the purpose of business, a tourist who changes hotels from day to day and from time to time as occasion demands does not reside for the purposes of giving jurisdiction to a Court. AN APPLICATION for adoption order by a person not domiciled in Sri Lanka can be entertained only by the Magistrate's Court of Colombo at Bambalapitiya. Any other Magistrate's Court in the island has Cont..
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NLR-Vol.8-P328
NLR - Vol.8, Page No - 328 APPUHAMI v. LAPAYA. C. R-, Kegalla, 6,202. Kandyan Law-Acquired property-Illegitimate children-Succession. B, who was owner of a certain land by purchase, died intestate, leaving him surviving (1) H, his son; (2) W, the illegitimate son of his late son R; and (3) L, his nephew. H also subsequently died intestate and without issue and survived by W and L. W conveyed half share of the land to his mother, who conveyed to plaintiff in an action by plaintiff against L. Held, that on B's death W became entitled to a half share of the land. Under the Kandyan Law where a person dies intestate leaving both legitimate and illegitimate children, his acquired property is divided equally between them. Bawa, for appellant. Cont..
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NLR-Vol.9-P131
NLR - Vol.9, Page No - 131 Present; The Hon. Mr A.G. Lascelles, Acting Chief Justice, and Mr, Justice Middleton. DINGIRI MENIKA v. DINGIRI MENIKA et al. D. C, Ratnapura, 1,327. Kandyan Law-Donation in consideration of marriage-Revocability. A donation made by a person in favour of his daughter-in-law in contemplation of her marriage with the donor's son is revocable under the Kandyan Law. APPEAL from a judgment of the District Judge of Ratnapura. The facts and arguments sufficiently appear in the judgments. Bawa, for defendants, appellants. Dornhorst, K.C. (H. Jayewardene with him), for plaintiff, respondent. Cont..
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