026-NLR-NLR-V-12-THE-ASSISTANT-GOVERNMENT-AGENT-v.-FERNANDO-et-al.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wendt.
THE ASSISTANT GOVERNMENT AGENT v. FERNANDO
et al.
D. C., Ralutara, 149.
Burden of proof—Party asserting that a person was alive at a particulartime—Presumption of continuance of life and subsistence of marriage—Entry made by relative—Proof of age—Evidence Ordinance (No.12 of 1895), ss. 32, sub-section (5) and 107.
There is no presumption as to the continuance of life or of anadmitted marriage. A party who asserts that a person was aliveat a particular date must prove such fact.
A statement as to a person’s age, made by a deceased relative,is admissible in evidence under section 32 (5) of the EvidenceOrdinance.
Bam Chandra Dutt v. Jogeswar Narain Deo ' and OrientalGovernment Security Life Assurance Co., Ltd., v. Narasiriha Chari afollowed.
A
PPEAL from a judgment of the District Judge of Kalutara(P. E. Pieris, Esq.). The facts material to the report
sufficiently appear in the judgment of Wendt J.
Bawa (with him V. M. Fernando), for the fourth defendant,appellant.
H. Jayetoardene, for the first defendant, respondent.
Our. adv. mill.
* (1901) I. L; B. 25, Mad. 183.
1909.March 23.
(181)3) I. L. B. 20, Cal. 758.
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1909.
March S3.
March 23. 1909. Wendt J.—
This is a land acquisition case, and there is a contest between thefirst and the fourth defendant. The facts material to its decision areas follows : Siman Perera acquired four-fifths of the land in questionby a deed of conveyance AA 1 dated July 1, 1852. At some datesubsequent to the year 1855 he transferred two-fifths, and the titleof the transferee is not now in question. Siman Pefera made nodisposition of the other two-fifths of the land, hut died leaving a.last- will, which did not specially deal with this land, but devisedthe residue of his estate absolutely to his widow, the fourthdefendant. She accordingly claims the two-fifths last mentionedas having formed part of the residue. The first defendant, on theother hand, avers that Siman Perera was first married to one Justinain community of property ; that that marriage was subsisting atthe date of the acquisition by Perera in July, 1852 ; and that uponthe dissolution of the marriage by Justina’s death two-fifths out ofthe four-fifths passed by intestate succession to her children, undertwo of whom the first defendant claims. The first defendant’sstatement of claim did not give the date of Justina’s death, nor evenstate, except inferentially, that it had occurred subsequent to Perera’sacquisition of the four-fifths. The various statements of claimwere filed on the one day, and there were no pleadings in the natureof answers by any of the claimants to the claims of their adversaries.At the trial the following rather general issues were framed bv theCourt on the question I am now dealing with, viz. :—
Was Siman Perera entitled to four-fifths or two-fifths of the land ?
Was Andris Silva entitled to three-fifths ?
At the date of Justina Fernando’s death what interest hadSiman in the land '!
What interest have the various claimants acquired by prescrip-tion, purchase, or inheritance ?
Evidence was then gone into after the Court recorded an admissionby all parties that Siman Perera was entitled to four-fifths of theland. On behalf of the first claimant document AA 2 was producedwhereby it was sought to prove that .Justina died on October 23,1852. In giving evidence on behalf of his mother, the fourthdefendant., the third defendant stated that Justina died on October23, 1851. He was speaking of an event w’hich occurred before hisbirth, but professed to have got the date from a letter of his father’s,which he said have been taken from him by Justina’s son, one of thevendors to first defendant. Siman’s marriage to fourth defendantwas in February, 1855, but the parties were said to have lived togetherbefore that date.
The greater part of the argument before us was devoted to thequestion. On whom lay the onus of proof of the date of Justina’sdeath ? For the first defendant it was contended that her marriage
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having been admitted, and it having also l>een admitted by thethird defendant that she was alive, and the marriage subsisting tillOctober, 1851, that is, within nine months of the acquisition of theproperty by Perera, there was a presumption in favour of thecontinuance of life under section 107 of the Evidence Ordinance,and that the burden therefore lay upon the fourth defendant toshow that she died before July 1, 1852. On the other hand, theappellant argued that she had a complete paper title under SimanPerera. the admitted owner, and that the onus of proving every factnecessary to divest Perera of his admitted title rested upon theparty relying on it.
Section 107 of the Evidence Ordinance is not applicable, because,as pointed out by Lascelles A.C.J. on October 11, 1906, in the caseNo. 4,365, C. R., Kalutara, brought by Siman Perera’s widow, thequestion here is not whether Justina is alive or dead, but whethershe (known to have been dead in 1855) died before or after July 1,1852. There is then no presumption as to the date of Justina’sdeath, neither is there any presumption as to the continuance ofthe admitted marriage between her and Siman Perera. Suohcontinuance is essential to first defendant’s title, and he must prove it.Marriage being contracted for the life of the parties, I think it wouldbe sufficient to show' that they were both alive at the crucial date ;the onus would then lie on the opposite party to prove a dissolutionby judicial decree. •
At the trial the proctor for the first and second defendants beganand called the second defendant, who produced the document AA 2as proof of the date of Justina’s. death. This document was asfollows :—
“ Extract from an entry made by me, the undersigned, JohnMarseiis Perera Seneveratne, N. P. of Dehiwala, in the family registerin my possession of the death of the first wife of my uncle, the lateSiman Perera Gunaratne Jayewardene, Notary of Kalutara.
“ On October 23, 1852, my uncle Siman Perera’s wife died,Saturday, 7 o’clock, at Desester Caltura.
“ True extract.
. “ Dehiwala, September 10, 1891.”“ Signed —”
Evidence was given that J. M. P. Seneveratne, the writer of this,was Siman Perera’s sister’s son, and was dead, and Siman Perera’sson John William, vendor to first defendant, deposed that Sene-viratne kept a register of the events in the family; that witness “ hadseen the original register.” “ It contained an entry of the date of •my mother’s death. AA 2 is a correct copy of it. It contains hissignature to the certificate. He is now dead. The leaf has beentom off from the register since the copy was made and cannot nowbe found.” The original register was not produced or its absence
1909.
March 23.
Wendt J.
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1909, accounted for. The document AA 2 was said to have been producedMarch 23. {q evidence in July, 1906, at the trial of the case No. 4,365 by theWendt J. defendant in that action.
Appellants’ counsel argued that AA 2 was not admissible undersection 32, sub-section (5), of the Evidence Ordinance to prove thedate of Justina’s death, even if admissible to prove her relationship,because the date did not “ relate to the existence of any relationship.”It has, however, been held in India (Ram Chandra Dutt v. JogeswarNarain Deo 1 and Oriental Government Security Life Assurance Co.,Ltd. v. Narasinha Chari 2) that the date of a person’s birth,by fixing the time of the commencement of his relationship tohis father, “ relates to the existence ” of that relationship. I agreewith the reasoning upo.. which that conclusion is based ; and asthe date of death may similarly be said to mark the terminationof the relationship of the decedent, I think the register admissibleto prove the date of Justina’s death. It is true the register is notproduced, but AA 2 is itself a declaration made ante litem motam bythe keeper of the register,.and satisfies the requirements of sub-section (5). The declarant was a notary public, and presumably aperson of good social standing and respectability. There is nothingto contradict the date he assigns to Justina’s death, except thethird defendant’s statement.already mentioned, and that is obviouslyof much less evidentiary value. I therefore think the learned DistrictJudge was right in holding that Justina was alive at the date of herhusband’s acquiring the four-fifths of the land.
There remains the plea of res judicata embodied in issue No. 7.We have sent for and examined the record of the action No. 277, D. C.,Kalutara, in which the decree that is relied upon was pronounced.It is quite clear from the District Judge’s judgment (whichin appeal was “ affirmed with costs,” no reason to the contraryappearing to this Court) that the dismissal of the action did notproceed upon any adjudication of title, but upon a finding thatplaintiff’s possession had not been disturbed, and that thereforethey had no cause of action. There is therefore no estoppel as-tothe title. The appeal will therefore be dismissed with costs.
f
Hutchinson C.J.—I concur.
Appeal dismissed.
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> (1893) 1. L. if. 20 Cal. 758.
* (1901) I. L. if. 25 Mad.' 183.