017-SLLR-SLLR-2004-V-3-HETTIARACHCHI-v.-THARANGANI-HETTIARACHCHI-AND-OTHERS.pdf
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The parties to bear their own costs of appeal.Appeal allowed.
HETTIARACHCHI
v
THARANGANI HETTIARACHCHI AND OTHERS
COURT OF APPEALSOMAWANSA, J.
EKANAYAKE, J.
CA 1170/99(F).
D.C. ANURADHAPURA 857/T.
APRIL 26. 2004.
Civil Procedure Code, sections 536 and 724(a)(1) – Testamentaryproceedings – Letters granted – Recall of letters and Revocation sought -Administrator not the legal wife? – Heir not a legal heir – Evidence Ordinance,section 79(1) – General Marriages Ordinance No. 19 of 1907, section 18.
The petitioner-appellant sought and obtained letters of administration inrespect of the Eastate of one T, on the basis that she was the legal wife of thedeceased. The intervenient petitioner-respondent a sister of the deceasedsought to intervene stating that the petitioner-appellant is not the legal wife ofthe deceased, that the appellant’s marriage to one S is still in existence andthe 1st respondent is not a child of the deceased, but a child of the petitioner-appellant’s marriage to one P – that neither of them are entitled to succeed tothe entitlement of the deceased. The trial Judge held with the intervenientpetitioner-respondent.
Held:
In terms of section 79(1) Evidence Ordinance, the marriagecertificate together with the testimony of the Deputy Registrarconfirmed that the petitioner-appellant’s marriage to S standsgenuine and valid. As it has not been legally dissolved ordeclared void, the subsequent marriage to the deceasedbecomes invalid by law.
On a perusal of the birth certificate of the 1st respondent,daughter, it is apparent that she is not the daughter of thedeceased.
It is clear that the petitioner-appellant and the 1B' respondent-respondent are not entitled to succeed to the Estate of thedeceased. The trial Judge has come to a correct finding whenhe decided to revoke the letters issued in favour of thepetitioner-appellant.
CA
Hettiarachchi v Tarangani Hettiarachchi
and Others (Somawansa, J.)
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APPEAL from the judgment of the District Court, Anuradhapura.
Ranjan Suwandaratne for petitioner-appellant.
Sunil Cooray with Nishanka Karunatilake for intervenient-respondent-respondent
Cur.adv.vult.
May 28, 2004.
SOMAWANSA, J.
This is an appeal lodged by the petitioner-appellant to set 01aside the order made by the learned District Judge ofAnuradhapura in case No. 857/T/ dated 07.05.1999 and for adeclaration that the order and judgment pronounced by him prior tothe aforesaid order are in accordance with the law.
The relevant facts are, the petitioner-appellant instituted theinstant testamentary action applying for the grant to herself ofLetters of Administration in respect of the estate of the deceasedHettiarachchige Dharmasiri Tissera who died intestate, on the basisthat she was the legal wife of the deceased. As the 1st respondent- 10respondent said to be a daughter of the deceased was a minorthen, she was represented by her guardian-ad-litem the 2ndrespondent-respondent. On 20th March 1990 the learned DistrictJudge issued Letters of Administration in favour of the petitioner-appellant and proceedings in the said testamentary action wereterminated on 13.08.1990. Thereafter on 20.06.1995 the 1strespondent-respondent made an application for an order makingher entitled to the share allocated to her under the scheme ofdistribution. Accordingly the learned District Judge in terms ofsection 724(a)(1) of the Civil Procedure Code made an order for the 20administrator to render accounts. In the meantime on 17.06.1996the intervenient petitioner-respondent in terms of section 536 of theCivil Procedure Code sought the permission of Court to interveneby filing petition against the grant of letters in favour of thepetitioner-appellant.
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The position of the intervenient-petitioner-respondent was thatthe petitioner-appellant is not the legal wife of the deceased, thatthe petitioner-appellant’s marriage to one Poddenige Don Simon isstill in existence, that the 1s< respondent-respondent is not a child of
the deceased but a child by the petitioner-appellant’s marriage toEdirisinghe Arachchige Jackson Perera, that neither of them areentitled to succeed to the estate of the deceased, that the Lettersof Administration should be recalled and the grant thereof shouldbe revoked, that the lawful heirs to the deceased’s estate are theintervenient-petitioner-respondent, the 2nd respondent-respondent,Hettiarachchige Seelawathi Tissera, Hettiarachchige LeelawathiTissera and the heirs of the late Hettiarachchige Kularatne Tisseraand that Letters of Administration be granted to herself. Theintervenient-petitioner-respondent who is a sister of the deceasedproduced her birth certificate marked P1 to establish this fact.
The inquiry into the intervenient-petitioner-respondent’sapplication commenced on 26.02.97 and at the conclusion of theinquiry the learned District Judge by his order dated 07.05.1999held with the intervenient-petitioner-respondent.
It is contended by the counsel for the petitioner-appellant thatthere is no legally acceptable proof to establish any legal mdrriagebetween witness Poddenige Simon and the petitioner-appellant asalleged by the intervenient-petitioner-respondent except the mereallegation made by the said Simon and witness Palis Singho whomerely made purported identification of the petitioner-appellant inCourt. That the oral evidence of the aforesaid two witnesses cannotbe in any event be considered as independent evidence as the saidtwo witnesses have been found out and brought in by thecontesting intervenient-petitioner-respondent in order to establishtheir purported contention. As such their evidence should not beutilized to nullify the effect of the registered marriage between thepetitioner-appellant and the deceased. In the circumstances hesubmits that the final order made by the learned District Judge ofAnuradhapura on 07.05.1999 is a perse erroneous order and therewas no material before Court to arrive at such a finding which hasthe effect of completely disinheriting the widow of the deceased.
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CA
Hettiarachchi v Tarangani Hettiarachchi
and Others (Somawansa. J.)
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As the appeal involves questions of fact it becomes necessaryto examine the evidence led at the inquiry at some length. At theinquiry the first witness called on behalf of the intervenient-petitioner-respondent was one Poddenige Simon who testified tothe fact that he was married to the petitioner-appellant. Tosubstantiate this fact, marriage certificate No. 3739 which certifiesthe marriage between witness Poddenige Don Simon andKossinhala Vithanage Karaline Nona was marked P2. This witnessalso tendered an affidavit marked P3 confirming his marriage to the 70petitioner-appellant on 27.03.1991 which he said has not beenlegally dissolved. In the marriage certificate marked P2 the name ofthe female party is given as Kossinhala Vithanage Karaline Nona.Witness Poddenige Don Simon in the course of his evidence statedthe the said Karaline Nona mentioned in the said marriagecertificate marked P2 and who was married to him is in fact thepetitioner-appellant. He also stated that 4 children were born out ofthe said wedlock and produced the birth certificate of one of hischildren Jagath Gunathunge wherein the mother’s name is givenas Kossinhala Vithanage Karaline.80
Thereafter the intervenient-petitioner-respondent testified andmarked her birth certificate as P1. She also produced the marriagecertificate pertaining to the petitioner-appellant’s marriage to oneJackson Perera on 15.10.1972 marked P4. The name of the femaleparty is given as Kossinhala Vithanage Caroline KarunaVithana.Thereafter a number of official witnesses were called and thebirth certificate of the 1st respondent-respondent was marked P7.
The 2nd respondent-respondent also gave evidence andthereafter witness S.A.Don Palis Singho was called. In hisevidence he testified to the marriage of Poddenige Don Simon and 90identified the petitioner-appellant as the female party who gotmarried to Don Simon. He also went on to say that he was one ofthe witnesses who signed at the solemnization of the saidmarriage.
The petitioner-appellant in her evidence stated that she in1968 married one Edirisinghe Arachchige Jackson Perera and onhis death married the deceased on 1st July 1989. The marriagecertificate pertaining to her marriage with Jackson Perera was
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produced by the intervenient-petitioner-respondent marked P4 andthe same was not denied or challenged by the petitioner-appellant 100and the date of marriage as given therein is 15.10.1972.
It was also contended by the counsel for the petitioner-appellant that the name of the petitioner-appellant is KossinhalaVithanage Karuna Vithana and the marriage certificate marked P6registering the marriage between petitioner-appellant and thedeceased Hettiarachchige Dharmasiri Tissera dated 1s’ July 1989too gives the petitioner-appellant’s name as Kossinhala VithanageKaruna Vithana and that she has signed as Karuna Vithana in thesaid marriage certificate that as testified by the petitioner-appellantshe was never married to Poddenige Don Simon, that she was nonever known as Kossinhala Vithanage Karoline as alleged bywitness Simon, that her birth certificate gives her name as Karalineand for the purpose of the identity card she changed her name asKaruna Vithana. He further contended that to determine whetherthere was a marriage between Simon and the petitioner-appellantthere must be cogent and specific evidence and it should not beinferred by considering the allegations made by the interestedparties. However on an examination of the three marriagecertificates marked by the intervenient-petitioner-respondentpertaining to three marriages alleged to have been contracted by 120the petitioner-appellant, it appears that they along with the oralevidence of the witnesses Don Simon and Don Palis Singhoprovide cogent and specific evidence to establish that thepetitioner-appellant did contract three marriages.
In marriage certificate marked P6 (marriage to the deceasedDharmasiri Tissera) the female name is given as KossinhalaVithanage Karuna Vithana. The petitioner-appellant also took upthe position that she never used the name Caroline even thoughthat is the name given in her birth certificate marked P8. On anexamination of cage 6 of the above said marriage certificate 130marked P2,P4 and P6 reveals that in all three marriage certificatesKossinhala Vithanage Ubediris is the father of the female party. It isalso to be seen that the name and surname of father given in Cage4 of the birth certificate of the petitioner-appellant marked P7 is thesame Kossinhala Vithanage Ubediris. These facts would clearlyestablish that all three marriage certificates marked P2,P4 and P6refer to three marriages contracted by the petitioner-appellant.
CA
Hettiarachchi v Tarangani Hettiarachchi
and Others (Somawansa. J.)
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As contended by the counsel for the intervenient-petitioner-respondent, it is pertinent at this point to consider section 79(1) of
the Evidence Ordinance No. 1 of 1946 which states as follows:
79(1) “The Court shall presume every documentpurporting to be a certificate, certified copy, or otherdocument, which is by law declared to beadmissible as evidence of any particular fact, andwhich purports to be duly certified by any officer inSri Lanka, to be genuine.
Provided that such document is substantially in theform and purports to be executed in the mannerdirected by law in that behalf.”
In the light of the aforesaid provisions contained in section79(1) of the Evidence Ordinance the marriage certificate togetherwith the testimony of the Deputy Marriage Registrar confirm the factthat the petitioner-appellant’s marriage to Poddenige Don Simonstands genuine and valid. In the circumstances provisions ofsection 18 of the General Marriages Ordinance No. 19 of 1907would come into operation. The said section reads as follows:
“No marriage shall be valid where either of the parties theretoshall have contracted a prior marriage which shall not havebeen legally dissolved or declared void.”
Accordingly as the first marriage as per marriage certificatemarked P2 to Poddenige Don Simon still stands valid and has notbeen legally dissolved or declared void the subsequent marriage ofthe petitioner-appellant as per marriage certificate marked P4 toJackson Perera and P6 to the deceased Dharmasiri Tisserabecomes invalid by operation of law. Hence it could be seen thatthe petitioner-appellant cannot succeed in this action.
Another matter that needs to be considered is as to whetherthe 1S1 respondent-respondent is a lawful heir of the deceased. Herbirth certificate has been marked P7 wherein strangely in Cage 2her name is given as Miula Tharangani Edirisinghe and in Cage 4her father’s name is given as Edirisinghe Arachchige JacksonPerera Edirisinghe. It appears that the aforesaid name has beensubstituted with the name Miula Tharangani Hettiarachchi in Cage
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13 on 25.02.1992, subsequent to the death of the deceased andeven after the termination of the testamentary proceeding andaccording to Cage 14 the name of person supplying particularsrelating to Cage 13 is Kossinhala Vithanage Karuna Vithana thepetitioner-appellant. On a consideration of the above facts the only
conclusion that one can arrive at is that the 1S1 respondent-respondent is not a child of the deceased.
In these circumstances, it is clear that the petitioner-appellantand the 1st respondent-respondent are not entitled to succeed tothe estate of the deceased and the learned District Judge has cometo a correct finding when he decided to revoke the Letters ofAdministration issued in favour of the petitioner-appellant. I see noreason to interfere with the order of the learned District Judge.
Accordingly the appeal will stand dismissed with costs fixed atRs. 5000/-
EKANAYAKE, J. – I agree.
Appeal dismissed.
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