CHELLAMMAH, Appellant, and VYRAVAN KANAPATHY and others, Respondents

013-NLR-NLR-V-65-CHELLAMMAH-Appellant-and-VYRAVAN-KANAPATHY-and-others-Respondents.pdf


Chellammah v. Kanapathy
40
[Ik the Privy Council]
* 1962 Present: Lord Badcliffe, Lord Denning, Lord Morris of Bortfe-y-Gest, Lord Guest, and Mr. L. M. D. do Silva
CHELLAMMAH, Appellant, and VYRAVAN KANAPATHY. and
others, Respondents
Privy Council Appeal No. 1 of 1961
S. C. Ill Inty. of 1956—D. C. Jaffna, 605
Evidence pf birth, death, marriage and identity—Bare assertions on pedigree matters—No evidence as to the sources from which they were derived—Evidence Ordinance,8. 32 (5)—‘Findings of fact of trial Judge—Scope of power of appellate’.Courtto reverse them.
The matters in dispute were straightforward matters of fact about 'suchthings as birth, death, marriage and identity. But they related to incidentssome of which, if they took place at all, took place beyond any reliable livingmemory.
Although registration of birth, death and marriage has been compulsoryin Ceylon since the early years of the last century, the evidence in the presentcase, in which the parties were Tamils, did not suggest that the practice ofregistration was widely observed among the Tamils. Much of the evidenceon both sides consisted of bare assertions as to relationships or other mattersof pedigree of which the witness making the assertion .could have had nopersonal knowledge. It was not possible to tell from the record of the evidencegiven in the District Court from what sources most of the relevant statementsas to pedigree were derived. It may have been assumed or it may havo beenstated without being recorded that they were received from predecessors inthe family or by some other form of family tradition. Neither the triaL.Courtnor the Supreme Court rejected any part of the evidence tendered on the groundthat it was not legally admissible under section 32 (5) of the EvidenceOrdinance. Further, many of the names occurring in-the pedigrees- wereoommon in the area, so that identifications that would otherwise; seem to be' straightforward became uncertain.
Held, that, under the foregoing considerations, the trial Judge’s findingsof fact should not be disturbed unless they were so far unmaintainable upon thewhole conspectus of the evidence, oral and documentary, that–they couldnot be supported.
Ap:
PEAL from a judgment of the Supreme Court.
Joseph Deane, for the appellant.
E. F. N. Gratiaen, Q.C., with Walter Jayawardena, fop the respondents.
3—lzv
2—7- a 10656—1,856 (7/63)
Car, advy .vvM,
• 50LORD RADQLIFF15—Oht&ammah v. Kanapathy
April 3, 1962. [jDelivered by Lobd Radclots]—
This is an appeal from a judgment and decree of the Supreme Court ofCeylon dated the 9th May 1958 which allowed the appeals of two groupsof the respondent 8 against a judgment of the District Court of Jaffna dated28th March 1956. The subject of dispute is the succession to the estateof one Kanapathy Kanthar, who died intestate on 19th May 1938, andboth the appellant, who is his administratrix de bonis non, and therespondents were or now represent claimants to share in the estate ashis heirs.
Tour of the present respondents were not represented before the Board.Of them one, the second, is the appellant’s siste® and is interested toobtain the same relief, and two, the eighth and ninth, did not appeal to theSupreme Court from the District Court judgments The remainder fallinto two groups, of whom one consists of the l&m 16th, 23rd and26th respondents and has been categorised as vf“ Maternal Group ’’and the others, categorised as “ the Paternal Group ”, are the 1st, 4th,5th, 6th, 7th, 10th, 11th, 12th, 13th, 17fch, 18th, 19th, 20th, 21st, 22nd,24th and 25th respondents.
The appellant’s claim is that she and her sister the 2nd respondent areentitled to share the intestate’s estate equally between them. He was aTamil, a member of the Nalawa community, and, as he died withoutissue, the relevant law made his estate divisible equally between thematernal and the paternal sides. This is not in dispute. Nor is it indispute that his mother’s parents had three other children whose names,though variously spelt, were Marian, Sinnavi, and Eliavy; or that theappellant and her sister are grand-daughters of the last named Eliavy.It is also common ground that their father and grandfather are dead andthat between them they are entitled to what may be called the Eliavyshare on the maternal side.
Marian died without descendants. The issue between the appellantand the Maternal group of respondents is whether Sinnavi too died withoutdescendants who survived the intestate. Her case was that Sinnavihad had one child, Elizabeth, who had married in 1881 and died withoutissue : Sinnavi hiin3elf died, she said, in 1905. The Maternal group,on the other hand, did not accept that there was any child of Sinnavicalled Elizabeth: according to them he had had four children, throughwhom they olaimed to be entitled to the Sinnavi share. Thus the appellantand her sister would get one half and the Maternal group the other halfof whatever oame to the maternal side.
The District Judge aooepted the appellant’s version of the faoterelative to Sinnavi’s line and rejected that of the Maternal group. TheSupreme Court reversed his finding on the facte and admitted this groupto the share they claimed.
The Paternal group claimed to be entitled to one half of the estate asrelatives of the intestate’s father Kanapathy. Nothing material tomsupon the various degree* of their alleged relationship, sinoe the wholeLORD RADCLTFFE—OheUammahv. Kanapathy
61
issue between them and the appellant is whether this Kanapathy, whowas admittedly the intestate's physical father, was ever the lawfulhusband of his mother. If he was not, it is not in dispute that there isno maintainable claim on the paternal side and the whole estate isdivisible on the maternal side only.
On the issue of the intestate’s legitimacy the District Judge declinedto find for the Paternal group that there had ever been a marriage.The Supreme Court reversed bis finding on this fact and held that theywere entitled to be admitted as heirs of the intestate.
Any Court, whether of first instance or of appeal, is bound to havegreat difficulty in coming to a satisfactory conclusion upon a case suchas the present. The matters in dispute are straightforward matters offact about such things as birth, death, marriage and identity. Butthey relate to incidents some of which, if they took place at all, tookplace beyond any reliable living memory. For example, the intestatehimself died in 1938 at the age of 71 : he was therefore born in 1867.THr mother, assuming for the moment that the death certificate producedwas that of his mother, died in 1915 at the age of 85 : she must have beenbom therefore in 1830. The critical event, her marrige with Kanapathy,would have had to take place some time before 1867.
Secondly, although registration of birth, death and marriage has beencompulsory in Ceylon since the early years of the last century, the evidencein this case does not suggest that the practice of registration was widelyobserved, at any rate among the Tamils. It is to he said for theappellant that she did produce as part of her evidence a number ofregistration certificates relating or said by her to relate to family eventssupporting the pedigree which she set up. The respondents’ evidence onthe other hand was not supported by a single certificate except that of thedeath of the intestate himself, which was put in for the purposes of cross-examination. Much of the evidence on both sides consisted of bareassertions as to relationships or other matters of pedigree of which thewitness making the assertion could have had no personal knowledge.Such evidence, though of course hearsay, is not inadmissible on questionsof pedigree, but its admissibility is limited by prescribed conditionswhich for this purpose are laid down in section 32 (5) of the EvidenceOrdinance. 'Under this sub-section statements as to the existence of anyrelationship, to be receivable, must be shown to have been made by some-one who had special means of knowledge as to the relationship asserted.
It is not possible to tell from the record of the evidence given in theDistrict Court from what source most of the relevant statements as topedigree were derived. It may have been assumed or it may have beenstated without being recorded that they were received from predecessorsin the family or by some other form of family tradition. Since neitherof the Courts in Ceylon has actually rejected any part of the evidencetendered on the ground that it was not legally admissible, their Lordships
52
I/OBD 3>AD0l>S$-F&—ChaUammah v. Kanapathg
1'
think it right to assume that adequate proof was available in this saose:hut.it hm ts> be recognised that it adds to the difficulty of an appellateCoutti.-if it essays to weigh against each other conflicting parcels ofevidence, that it has no positive information as to the sources from whichseveral material assertions on pedigree matters were derived.
Lastly, it was accepted that many of the names that occur in thesepedigrees occur frequently among the Tamil communities in the area.This circumstance throws an uncertainty into identifications that wouldotherwise seem to be straightforward. Even the contents of certificatesderived from the registers are only an officially received form of hearsayand they are not in themselves capable of resolving the initial questionwhether the person referred to in the certificate was in fact the sameperson as the man or woman whose existence is relevant to the pedigreewhich it is sought to establish. As will he seen, there was more than oneinstance of disputed identification in the present case.
The foregoing considerations help to underline the special position, ofan appellate Court that is required to hear an appeal of this nature. Itsduty-is-not to start a new independent inquiry as if there had never beena hearing by the District Judge and findings made by him upon it. Notonly does it lack the personal presence of the witnesses but it lacks,despite a careful note of evidence by the judge, any full record of whatthey actually said. To some extent too it must lack his immediateknowledge of local conditions and local customs which, without evenbeing expressed, may yet influence his assessment of a witness or hisjudgment as to the significance of an event or a circumstance. Moreoverthis was not one of those cases in which the difference between therelative positions of a Court of first instance and a Court of appeal was ofno practical relevance : much turned upon the credibility of witnessesand- the plausibility or otherwise of certain inferences. The function ofan appeal Court therefore is to consider the matter without either denyingto the first Court its special advantages or supposing that it can placeitself in the same position by a mere study of the record. With theselimitations in mind it has to decide whether the Judge’s findings of fact,since no question of law is in dispute, are so far unmaintainable upon thewhole conspectus of the evidence, oral and documentary, that theycannot be Supported.
These principles are familiar and have often received judicial recog-nition- It is evident from the full and careful judgment of Sansoni J. inthe Supreme Court that their bearing was very much present to theminds of the two learned Judges whose decree is now under appeal.Nevertheless, with great respect to their view, their Lordships havefound it impossible to conclude that a oorrect application of thoseprinciples should have led to a reversal of the findings of the DistrictJudge upon the two sets of claims whiah he disallowed.
To turn now to the claim of the Paternal group. This depended, ashas been said, on the question whether the intestate’s father Kanapatfcyhad’ ever-been married to his mother. It was agreed that the onus of
LORD RAD CL IFFE—Chellammah v. Kanapathy
S3
proving that there had been such a marriage lay upon the claimants.But before considering the effect of their evidence it is convenient tonotice what the appellant herself had to say in this matter, because theDisfrict'Judge evidently accepted her general account of the intestate’srelationships.
Her father, Eliavy Arumugam, was the cousin and had been for manyyears a friend of the intestate, whom she called Kanthar and who will behereinafter referred to by that name. Her father and Kanthar werecousins because his father and Kanthar’s mother were brother andsister. The name of that sister and so of Kanthar’s mother wasKathirinohi. The appellant herself had been brought up in Kanthar’shouse after her mother’s death and had lived with him from the age offive or six years until her marriage in 1923, Kanthar providing hermarriage dowry. She knew Katherinchi, and produced in evidence acopy of her death certificate, which recorded her as dying in 1915 at theage of 85 years.
Katherinchi, she said, was the widow of one Kaithar, and the certi-ficate in question certainly describes the deceased as “ Catherine, widowof Kaithar ” and in addition states her parents to have been Canthar andCathirasi, the undisputed names of Kanthar’s mother’s parents. Theinformant as to the death is stated to have been *' Caithar Canthar ”,son of the deceased and a resident of Karayoor (the home of Kanthar) andhis signature is recorded as “ K. Kanthar It was never explained whyor how, if the informant was Kanapathy Kanthar, he came to be des-cribed in the register as Caithar Canthar, but this circumstance did not,in their Lordships’ opinion, justify the Supreme Court’s view that thecertificate did not refer to Kanthar’s mother at all. This makes toomuch of a possible or probable mistake.
The appellant and her father evidently remained in close touch withKanthar until his death and they had looked after him while he was aninmate at Manipay Hospital, where he died. She denied that at anytime during her residence at his house any of the claimant respondentshad come to his house and associated themselves with him as his relationsor that any of the Paternal group had attended his funeral. She con-tributed no information about Kanapathy, Kanthar’s father, except tosay under cross-examination that she had heard from Katliixinchi thatKanthar was a bastard and in re-examination that Kanapathy himselfcame from a place called Vaddukoddai.
The evidence tendered on the other side, on behalf of the Paternalgroup, falls undeT three heads. First, there was a set of four witnesses,of extremely advanced age, whose evidence, if fully accepted might ormight not have been thought to prove that Kanapathy married Kanthar'smother. In fact none of it was accepted by the District Judge bothbecause he thought the witnesses too closely connected with the proctoracting for this group, who had interested his father-in-law in financingthe litigation of their claim, and beoause he found their evidence in itself
2?—a10656 (7/63)
54
LORD RADCLIFFE—Chettammah v. Kanapathy
unsatisfactory Mid unreliable. Having regard to his view the SupremeCourt placed no reliance on what they said: nor did Counsel appearingfor the respondents on this appeal. This head of evidence must thereforebe ignored, exoept for the information that it contributes that it waasought to support the Paternal group’s case by the production of fourentirely discredited, witnesses, of whom two stated that they had beenasked to give their evidence by one V air a van Kanapathy, whose ownevidence forms the second head.
According to this witness Kanapathy, the father of Kanthar, hadmarried one Kannattai and had had Kanthar as his son by her. Hesaid that he knew Kanthar, had visited him both at his home and atManipay Hospital and had attended his funeral. He had seen Kannattai,he said, and knew that she died live or six years before Kanthar’s owndeath.
Thirdly, there was a witness, Dr. Mills, whose evidence was treated bythe Supreme Court as a major contribution to the proof of Kanthar’slegitimacy and his father’s marriage. In this they were taking a view asto the reliability of his evidence which was very different from thattaken by the District Judge, who heard him, or that which appearspossible to their Lordships, having regard to the content of his evidenceas a whole and the opinion which the District Judge formed and ex-pressed as to the most material part of it. It is necessary therefore toallude to it at a little length.
Dr. Mills was the doctor at Manipay Hospital who had attendedKanthar in his last illness. He had known him very well before hisdeath but disclaimed any personal knowledge of his relations or hisrelationships. He had known him “ only as a man He was called bythe Paternal group because about three months after Kanthar’s deathhe had written (on the 20th August 1938) a letter to an enquirer,Nadarajah, Postmaster at Changanai, the village where this group hadtheir home. The letter was produced. Its purpose, as the openingshowed, was “ to put in a nut shell all what happened at the Hospital ”at the time of Kanthar’s death. It stated that there had been greatanxiety on the part of one Ayadurai, an illegitimate son of Kanthar, andthe appellant’s father, Arumugam, to get Kanthar to make a will be-queathing all Ms property to either of them. It then went on to recountAyadurai’s unsuccessful attempts to get this done and to state thatDr. Mills himself had tried to persuade Kanthar to do this for Ayaduraion the day before his death, ** but he refused and said that he is notgoing to write to this people, but there are other hens at Changanai,namely Vairavan and Sinnavan ”, These are the names of two of thePaternal group, Vairavan being the witness referred to above.
When cross-examined, Dr. Mills explained that the origin of his letterwas that Nadaraj&h’s letter to him was brought to the hospital by “ 3 or4 Falla people ” (apparently members of the Paternal group). He thenstated in succession that he had not known these people before; that ho
LORD RADCLIFFE—CheUammah v. Kanapctihy55
did not know Vairavan and Sinnavan; that they had told him that theywere close relatives of Kanthar (it was not made clear whether thisinformation had been given when they brought Nadarajah’s letter or on.some earlier visit before the death) ; that he found out the names of onlyVairavan and Sinnavan ; that “ actually the man who died told me thenames of these two persons stating that they were his heirs ” ; that hedid not find out the names of Vairavan and Sinnavan from them ; thatthey had visited Kanthar at the hospital, and that he, Dr. Mills, hadasked them their names, saying “ Who are you ? that “ the man whodied ” did not tell him the relationship of Vairavan and Sinnavanto him.
Faced with this succession of confused and contradictory statementsgiven by a man then aged 77 about a brief incident at a busy hospitalsome eighteen years before, it is not surprising that the District Judgerefused to accept Dr. Mills’s letter as reliable evidence that Kanthar onhis deathbed had recognised the respondents Vairavan and Sinnavan ashis heirs. He thought that Dr. Mills was mistaken when he said thatKanthar had given him these names as his heirs, though he acquittedDr. Mills of giving any evidence that was intentionally false. He madethe comment, which seems cogent to their Lordships, that it must havebeen difficult for Dr. Mills even three months after the event to recollectall that happened at an inoident in which, after all, he had no personalinterest: indeed it is inherently difficult to believe that these two names,which are common names, lodged in Dr. Mills’s mind in the way that hesaid they did. The letter, as the District Judge pointed out, is not soexpressed as to state that the information about Vairavan and Sinnavancame from Kanthar; it is put forward as Dr. Mills’s own informationand it must be remembered that at one stage of his cross-examination hestated that they had themselves told him that they were close relatives.Finally, the District Judge was evidently impressed by the fact thatDr. Mills’s evidence in ohief contained no reference to Kanthar’s allegedstatement, except so far as it might be inferred from the contents of theletter, since he notes against the statement made under cross-examinationthat " the man who died ” actually told him these names as those of hisheirs “ (the witness volunteers) ”.
In their Lordships’ opinion the District Judge's finding that Dr. Mills’srecollection is not reliable upon this point cannot be rejected or qualifiedby an appellate Court. The Supreme Court, on the other hand, treatedthe statement attributed to Kanthar as of “ the greatest significance ”and held that the District Judge had not a sufficient reason for refusingto act on this piece of evidence, since, they said, Dr. Mills was confidentthat he had a clear recollection of all that happened at the hospital.Having regard to the account of his evidence that has been given above,their Lordships think that the District Judge was fully entitled to treatDr. Mills’s confidence on this point as misplaced. The only other reasongiven by the Supreme Court for their decision to uphold Dr. Mills’sevidence against the District Judge's finding was that they read the
56
LORD lc^CXL£Pm-d%eaimt)nah v. Kanapathy
relevant sentence of the former’s letter as attributing his information toKanthar, whsareefl the District Judge had construed jt as oCfesed ostensiblycm Dr. Mills's own authority and had made the natural comment that thedoctor had admitted having no personal knowledge as to Kanthar’sfamily. In their Lordships’ view the sense of the letter is in favour ofthe District Judge’s reading; but it is at best ambiguous and there isnothing in his interpretation of it which can disqualify his general findingthat Dr. Mills’6 evidence and part of the contents of the letter " are theresult of a mistake
If Dr. Mills’s testimony cannot be accorded any significance, theevidence of a marriage between K&n&pathy and Kanthar’s mother comesdown to nothing but the oral evidence of Varna van Kanapathy which theDistrict Judge dismissed as of little account. The Supreme Courtthought that, in view of the statement they were prepared to attributeto Kanthar in reliance upon Dr. Mills, Vairavan’s evidence was entitledto greater consideration and credit than the Judge accorded to it. Ashas been said, this is to build upon an insubstantial foundation ; but inany event their Lordships have been unable to see any sufficient reasonfor thus increasing its importance. This witness produced no registrationcertificates in support of his statements as to family relationships, nordid he depose to anything that could be called evidence of repute of amarriage between Kanapathy and Kanthar’s mother. The substance ofhis testimony is contained in the following passage from his evidence inchief “ Velan’s son was Kanapathy, who married Kannattai. My fathertold me that Kanapathy and Kannattai lived at Koddady. Kanapathyand Kannattai had a son called Kanthar who was a physician
He may have got the statement about the marriage from his father,though he does not say so. Later on, he said that his father told himthat Kanapathy and Kannattai had an only child Kanthar. None of thisis evidence of repute or conduct. There were several inconsistencies andinaccuracies in the sum of his evidence, on any view, and the DistrictJudge had to set Ms assertion of a marriage, the only sustainable evidenceproduced by the Paternal group, against the conflicting evidence of theappellant, of another witness, Anthony, and of certain documents. Itseems quite impossible to upset his findings on the ground that VaixavanKanapathy, who said that he first knew Kanthar when he himself was40 or 42 years of age, was necessarily more credit-worthy on thesematters than the appellant, who had lived for many years in Kanthar’shouse and knew his mother personally.
The evidence never reconciled the story put forward by the Paternalgroup that Kanthar’s mother was called Kannattai and married Kana-pathy with the story put forward by the appellant that she was calledKatherinchi and married Kaithar. In support of the latter version therewas (1) the appellant’s own evidence, (2) the evidence of a witness calledby her, Anthony, who had known Kanthar for many years, (3) the deathcertificate of “ Catherine, widow of Caithar ”, and (4) a mortgage bond ofthe year 1908 produced by the appellant in which “ Catherinchi, widow
LORD RADCLEFFE—CkeUammah v. Kanapathy57
of Kayiththan ” and Kanapathy Kanthar had joined to advance moneyon mortgage. Anthony, a retired school teacher, of whom the DistrictJudge said “ He created a favourable impression and I would accept his'evidence ”, said positively that he had known and spoken to Kanthar’smother, that she was known as Katherinchi, that she had married Kaitharand that she “ lived with another man called Kanapathy
In the face of all this evidence and the District Judge’s acceptance ofAnthony as reliable, their Lordships cannot follow the Supreme Court inholding that the death certificate of “ Catherine, widow of Caithar ” didnot refer to Kanthar’s mother and that she was not the “ Catherinchi,widow of Kayiththan ” who joined with Kanthar in the mortgage deed.The probabilities seem to be in favour of the District Judge’s finding andthere is certainly nothing concrete enough to enable it to be rejected.The only possible bridge to connect Katherinchi and Kannattai as thesame person is the statement recorded in Kanthar’s death certificate thathis mother was “ Kanthar Kannathai ” but, as it was never proved fromwhom this information came, no particular conclusion can be based onthis one circumstance.
For the reasons which they have given above their Lordships thinkthat they are bound to hold that the District Judge was fully entitled todecide on a review of the evidence that the Paternal group had failed toprove that Kanapathy was married to Kanthar’s mother, whatever hername; and that it is not open to an appellate Court, on any second re-view of the evidence, to reverse his decision. Consequently the Supreme■Court’s judgment in favour of the heirship of the Paternal group must bereversed.
It is necessary now to turn to the claim of the Maternal group. Theelements of the dispute are much the same as those just noticed: twoquite different stories were put forward as to events in the life of aparticular person, in this case Sinnavi, and the Court had to decidebetween them with such assistance as it could obtain from certificates,documentary references, inferences as to probability and its own assess-ment of the respective reliability of the witnesses. Here, however, thetwo stories have, in effect, no point of contact and the District Judge wasleft with a hare choice between one version of the facts and the other.
Both sides agreed that Sinnavi was a brother of Kanthar’s motherwhom their Lordships now refer to as Katherinchi without furtherqualification. According to the Maternal group he had married a womancalled Sinnachchi and had had four children by her, Valli, Kannattai,Mutty and Kandiah through whom this group of respondents derivedtheir heirship. Sinnavi, they said, was and died a Hindu.
58
LOR© RADCLIFFB—CheUammaA v. Konapathy
The appellant however deposed in her evidence that Sinnavi had b&mconverted to CSmstianxty and cm baptism had taken the name Ghana-piragasam. She produoed a baptismal certificate dated 20th January1S60, taken from the register of St. Mary's Chur oh at Kayts, in which theconvert, Ghanapiragaeam, is given the age of 25 and is stated to havehad a father Kan than and a mother Katbirasy. These were admittedlythe names of Sinn&vi’s parents, but. as has been said, such names werecommon amongst these communities. She said further that Ghana-piragasam married one Innesam and had one child Elizabeth, producing abaptismal certificate in support. Elizabeth, she said, was born in 1863and was married in 1S81 to one Pavilu Averan, but died without children.She produced Elizabeth’s marriage certificate.
This evidence the District Judge had to set against that of the only oralwitness called on behalf of the Maternal group, Vairavy Cheltiah, the 2Sthrespondent on the record. Vairavy gave evidence in support of thepedigree set up by Ms group, but his means of knowledge are undisclosedor unrecorded. He produced no birth or marriage or death certificatessupporting the pedigree nor, when cross-examined on tMs, did he saywhether he had made any search for such certificates. He knew nothingof any alleged conversion of Sinnavi and stated that he died a Hindu.He said that he knew Kanthar himself well and often visited his house..Kanthar, he said, was a Hindu, not a Roman Catholic.
The only other point of any importance contributed by this witnesswas the production of a set of documents dealing with transfers of someland or shares of land at Vannarponai West in the Jaffna District, calledPalluvilithodam, in which the various interests and transmissions ofinterest recorded are entirely consistent with the pedigree set up by theMaternal group, once the initial assumption is made that the KandarSinnavy ” referred to as transferee in the first of the deeds (of 20th June1904) was the same person as the Sinnavi who is now in question. Butthere was nothing to prove this essential identification and, without that,the pedigree is itself no more than an analysis of what can be extractedfrom the documents about the wife and descendants of this KandarSinnavy.
The District Judge said of this witness “ the 28th respondent did notimpress me favourably as a witness The Supreme Court on the otherhand treated Ms evideno© as “ of considerable weight Their Lordshipscan see nothing in the record which would entitle an appellate Court toattribute to Ins statements a reliability which the judge of first instancewithheld from them and in those circumstances the District Judge’spreference for the appellant's version of Sinnavi’e pedigree, which heevidently accepted, must prevail, unless there is some countervailingconsideration strong enough to make it possible to displace it.
LORD RADCLLFFE—Chellammah v. Kanopathy
59
The appellant did not, of course, know her facts from personalknowledge ; but it is inconsistent to deny to her the benefit of some familytradition derived from being brought up in Kanthar’s house whileattributing family tradition to other witnesses who showed, to say theleast, ho' better sources for their knowledge. She did, after all, knowwhere to look for the various certificates she produced and what to lookfor and some information imparted to her must have started her on hersearch.
It is true that Sinnavi’s death certificate, which she produced, describeshim as “ Canthar Sinnavi ” without reference to the Christian nameGhaniprasagam which she said that he had adopted. But his allegedbaptism was in 1860 and his death in 1906 and it is impossible tomake any sound deduction from this without knowing more about theintervening years of his life.
What is known is that Sinnavi died in the house of Kanthar atKarayoor. This is not disputed. The District Judge thought that thisfact supported the appellant’s story that he died without leaving des-cendants. He did not think that he would have died at Karayoor inKanthar’s house if he had had descendants living at Koddady, as wassuggested by the Maternal group. The weight of an inference of thiskind is very much a matter for someone familiar with the customs andmanners of the locality : so is the Judge’s other inference that Kantharwould not have settled the appellant’s marriage dowry in the form thathe did, with reversion to her father, Eliavy Arumugam, on failure of herissue, if he had believed himself to possess other heirs. The SupremeCourt said that they were not satisfied that there was any weight in theseinferences, but, in the absence of any reason advanced for ignoring them,their Lordships think that the District Judge was well entitled to throwthem into the balance when considering the two conflicting accounts thatwere before him.
For the reasons given above they are of opinion that the DistrictJudge’s finding that the claim of the Maternal group ought to be rejectedshould not have been interfered with, since there was no adequateground for coming to a different conclusion.
Their Lordships will humbly advise Her Majesty that the appealshould be allowed ; the judgment and decree of the Supreme Court dated9th May 1958 reversed; and the judgment of the District Court dated28th March 1956 restored, the contesting respondents paying to theappellant her costs of the Supreme Court hearing.
The respondents represented on this appeal must pay the appellant’scosts of it.
Appeal allowed.