073-NLR-NLR-V-36-THEVANGNANASEKARAM-v.-KUPPAMMAL-et-al.pdf
Thevagnanasekarayi v. Kuppammal.
337
1934Present: Macdonell C.tf. and Dalton S.P.J.
THEVAGNANASEKARAM v. fcUPPAMMAL et al.
3-5—D. C. (Inty.) Colombo, 5,653.
Domicil—Indian Tamil settled in Ceylon—Acqutsihon. of domicil of choice—
Children bom in Ceylon—Domicil of origin of child—Validing of
Marriage—Ordinance No. 19 of 1907, s. 17.
Where a person claiming to be the wife of an intestate applied foradministration to the District Court and agreed to go to trial on issuesinvolving questions of her status,—
Held, that the party was not entitled afterwards to challenge thejurisdiction of the Court to give the decision invited by her, on theground that there was no property of the deceased to be administered.
An Indian Tamil, M, came to Ceylon in 1850 and joined two ofhis brothers in a partnership business in Colombo, where he resided.He married in Ceylon, owned property, carried on business and continuedto live at Colombo, save for occasional visits to India till his death in1896.
His children, among whom was S, born in 1886, were all born in Ceylon.S married his niece (sister’s daughter) in India in 1906, and after hismarriage lived continuously in Ceylon till his death in 1931.
Held, that M had acquired a domicil of choice in Ceylon and that thedomicil of origin of his son S was also in Ceylon.
Held, further, that S’s marriage was -invalid as being within the prohi-bited degrees of relationship under section 17 of Ordinance No. 19 of 1907.
T
HIS was an application for administration of the intestate estateof one Supramaniam Chetty, who died on January 24, 1931.
The application was made by a person named Sellatchi, claiming to bethe widow of the deceased on behalf of herself and her minor children.Supramaniam was the son of Muttucaruppen, who died in 1896 leavingthree children—the deceased, a daughter Kaliamma who married oneKalimuttu Chetty and became by him the mother of the applicantSellatchi, and another daughter Veeratha, mother of Vadivel who opposedthe grant of letters on the ground that the marriage between Supra-maniam and the applicant was invalid as being within the prohibiteddegrees of relationship. The learned District Judge held that themarriage was invalid under section 17 the Marriage RegistrationOrdinance, No. 19 of 1907.
N.E. Weerasooria, for substituted petitioner, appellant.—The DistrictJudge was wrong in saying that the domicile of the deceased and ofSellatchi was a Ceylon domicile. The marriage took place in 1906;the Judge has not considered whether domicile was in India in 1906.The original member of the family not "only came from India but thefamily in fact retail:' 1 their connection with India.
The Court has no jurisdiction to administer an estate which does notexist. See sections 516 and 524 of the Civil Procedure Code. Section530 presupposes the existence of property of the intestate deceased—vide Forms 82 and 83 of the Code. In Glasgow Navigation Co. v. IronOre Co.1 Lord Lorebum stated that “ it is not the function of a Court of
i (1910) A. C. 293.
36/25
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Thevagnanasekaram v. Kuppammal.
law to advise parties in the hypothetical case The intestate was onlya fiduciary, and on his death his interest devolved on the fidei commissarii,and there is no property left for administration. See section 70 of theCourts Ordinance and its proviso which was introduced as a result of thedecision in 2 Bal. Rep. 51.
On the question of domicile, see Winans v. Attorney-Generall; domicileof choice is not acquired even after 25 years’ residence. Also Attorney-General v. Yule and Mercantile Bank of Indiaa, on discharge of burden ofproof re intention to change a domicil of origin.
[Dalton J.—Is there anything to prevent a person applying for lettersof administration in the case of an estate below Rs. 2,500 in value?]
Nothing. But before order absolute is entered, the Court should besatisfied that there is an estate to be administered. See (189$) 78 L.T 49;application for letters of administration was not granted as the generalstatements of the applicant were groundless.
N. Nadarajah (with him L. •A. Rajapakse and Tiruchelvam), for seventh,eighth, and ninth respondents.—On the question of domicile, see Ramsayv. Liverpool Royal Infirmary 3; there is no change of domicile of origin inspite of express intention.
A marriage of uncle with niece is sanctioned by custom and valid inIndia. See Gour’s Hindu Code (1919 ed.)t pp. 249 and 250. Suchmarriages are valid in the United States of America except the NewEngland States and Louisiana—1 Burge’s Foreign and Colonial Laws (2838ed.), p. 189.
The disability re incest imposed ]py Ordinance No. 19 of 1907 is tooperate only as a local disability. See section 144 of Story’s Conflict ofLaws. A marriage unnatural according to the law of nature is unlawfuleverywhere; but a marriage, not unnatural according to the law ofnature but only prohibited by statute, is not invalid everywhere. (1Bjurge’s Foreign and Colonial Laws.) The legislature of Ceylon has nojurisdiction to pass extra territorial laws.
V. Manicavasagarj for twelfth, thirteenth, and fourteenth respond-ents.—There is sufficient evidence that a valid marriage ceremony wasperformed between deceased and Shariffa Umma. The frequent mainte-nance applications were merely a device to get money.
H. V. Perera (with him D. W. Fernando and D. S. Senanayake), forfifth respondent.— (Counsel was not called upon to. reply on the questionof domicile.) .
The question of an estate which must exist before it can be administeredwas riot raised in the lower Court, even at a late stage. Even in thepetition of app&af what the appellant asks for is a grant of letters ofadministration.' At the same time, she cannot be heard to say there isno estate to administer.
Assuming it is a question of jurisdiction of the Court, jurisdictiondepends on the existence of certain facts. They cannot now be heardto say that the facts do not exist.
This is not a question of absolute jurisdiction of the Court, but ofcontingent jurisdiction. Section 70 of the Courts Ordinance has no
J (1904) A. C. 2S7.a (1931). 140 L. T. 9.3 (1930) A. C. 586.
MACDONELL CJ.—Thevagnanasekaram v. KuppavnmciL
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application to the present facts. That section deals' with persons dyingoutside Ceylon. The District Court 'has multiple jurisdiction. Some-times in an application for a judicial settlement various complicationsarise. In such an instance, where the parties acquiesce in putting suchmatters before a Court they cannot afterwards be heard to say that theCourt was usurping •jurisdiction, where such Court has both civil andtestamentary jurisdiction. Spenser-Bower on Estoppel, pp. 236 and 187.
It is not required that the Judge should decide whether there is anestate. The Code recognizes that a mere declaration of a status may bemade. The question as to what the property is can be gone into at anystage of the administration proceedings. Section 73 of the Courts Ordi-nance is the statutory recognition of waiver of an inquiry on the facts.
Counsel cited Alagappa Chetty v. Arumugam Chetty Pisani v. Attorney-General for GibraltarBaretto v. Rodrigues, Hukm Chand on Res Judicatap. 468.
Re Shariffa Urama’s appeal, the burden of proving a marriage was onthe applicant. The petition in question is a public document, being partof the record in the maintenance case. All that might be said is thatthere is a little informality in the manner the document was produced.But since no objection was then made, no objection can fiow be takenon the ground of irregularity of procedure.
Weerasooria, in reply.—There was a protest by my client’s counselin the District Court that there was no.estate to administer. Counselalso cited Beaudry v. Mayor of Montreal4 and Macintosh v.^Simpkins
A. Tisseverasinghe (with him E. C. Paul), for eleventh, sixteenth,and seventeenth respondents.
Cur. adv. vult.
October 5, 1934. Macdonell C.J.—
This was an action as to the intestate estate of one SupramaniamChetty bom on October 27, 1886, died January 24, 1931. Letters ofAdministration of his intestate estate were, .asked for by Sellatchi,claiming to be the widow of the deceased, on behalf of herself and herminor children (she herself died between conclusion of argument belowand delivery,^bn November 9, 1933, of the judgment now appealed from,but her representative has been duly substituted on the record) Amember of the family, Vadivel, petitioned against the grant of lettersto Sellatchi on the ground, that she was not lawfully married to thedeceased Supramaniam. The family starts with one Muttucaruppenwho died in 1896 and left by his second wife three children—the deceased'Supramaniam, a daughter Kaliamma who married one KatimuttuChetty and became uy him with other offspring the. mother of the claim-ant Sellatchi, and another daughter Veeratha mother of' the Vadivelwho opposes the grant of letters to Sellatchi- Supramaniam, whoaccording to his birth certificate was bom in Colombo on October 27,1886, is said to have married in^ India, on August 8, 1906, the womanSellatchi, petitioner for letters of administration. It will be seen then-
1 2 C. L. Rec. 202.* 35 Bom. 24.
= L. R. 5 P. C. 516.* 11 Moo. P. C. 399 at 426.
* L. T. 21.
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MACD ONELL C.J.—Thevagnanasekaram v. Kuppammal.
that the parties are related as follows :Vadivel who objects to the
grant of letters is the nephew of the deceased Supramaniam and firsteousin of Sellatchi, and Sellatchi herself was the niece of the deceasedSupramaniam who therefore was her uncle, and they are all descendantsof Muttucaruppen aforesaid. If a marriage at all, this marriage betweenthe deceased Supramaniam and the petitioner Sellatchi was a marriageof uncle and niece. When .the parties appeared before the learnedDistrict Judge they framed on September 11, 1931, the following twoissues : (1) Was Sellatchi married to Supramaniam Chetty on or aboutAugust 8, 1906?(2) If so, is such marriage valid in law ? The parties
accepted these two issues and went to trial upon them, and the learnedJudge found that there was no valid marriage between deceased andSellatchi. From that decision Sellatchi and three brothers and sistersof hers bring the present appeal.
When the case had been part heard a certain Shariffa Umma filedpetition on December 9, 1931, alleging that she was the widow of thedeceased as having been married to him on July 23, 1919. She claimsto have by the deceased two children, and she and her children wereadded as parties to the action on her cross-petition, she claiming undera will of the deceased dated November 5, 1930. The necessary issuesas to the validity of her marriage were framed and agreed to. Thelearned District Judge found that there had been no marriage betweenthis Shariffa Umma and the deceased, and from this decision she alsoappeals. These then were the issues before the Court of tr;ial : WasSellatchi married to the deceased, Was Shariffa Umma married to him ;but before considering them it becomes necessary to dispose of a prelimi-nary point raised before us on appeal though not to the Court of trial.It was this.
In the affidavit annexed to the petition Sellatchi gave a schedule ofcertain eight properties of the deceased, stating in that schedule thatproperties 1 to 4 were under bond of fidei commissum and properties5 to 8 were under bond of another fidei commissum. The opponent ofthe grant of letters to her, her cousin Vadivel, also filed affidavit with aschedule annexed specifying the same eight properties and stating themto be under the same bonds of fidei commissum. It is to be noticed,however, that the eighth of the properties was a sum of Rs. 1,092.81then in dispute in Court, dividends on which were payable to the personentitled under order of Court. The fact that these properties were underfidei commissum was opened to the Court of trial on the same day,September 11, 1931, that the issues were framed as to the validity ofSellatchi’s marriage. On December 9, 1931, when the trial had com-menced, certain other members of the family intervened denying thevalidity of Sellatchi’s marriage but asking that a receiver should beappointed of the properties scheduled on the ground that the personthen managing them—Kalimuttu, the father of Sellatchi herself—wasnot a fit person to manage them and that they should be placed in thehands of the Public Trustree as receiver. On December 15, 1931, thisapplication for a receiver was further argued and all parties seem to haveadmitted in Court that the properties were subject to fidei commissum.On December 21, 1931, the Court made order on this application, the
MACDONELL C.J.—Thevagnanasekaram v. Kuppammal.
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relevant portions of which order are as follows: “ In view of the titleto the property which is sought to be administered, Counsel for thepetitioner Sellatchi drew the attention of the Court to the positionarising therefrom, namely, that there is no estate which requiresadministration", that is, as being all under fidei commissum. “ Thisobjection was sought to be met by Mr. Advocate Tisseverasinghe whoappeared for some of the respondents (i.e., those applying for a receiver)on the basis that the deceased died possessed of certain propertyconsisting of the rents which had accrued during the month of his deathamounting to over Rs. 1,400 and certain other property sufficient tomake the administration of the estate necessary. It is too early at thisstage without all the evidence before the Court to determine the quantumof the estate left by the deceased. The matter can be decided on at thefinal stage of distribution. If it should then turn out that the deceasedhad no administrate estate and that the proceedings for the administra-tion were unnecessarily applied for, the Court will then make appropriateorders in respect of the costs of these proceedings. It seems to me thatthese proceedings have been initiated specially with a view to determinethe question of heirship. Parties have agreed on certain issues todetermine the questions and the inquiry has proceeded for some time.Any decision of the Court would be res judicata between the parties.As all parties claiming to be the heirs are before the Court it wouldprobably be more convenient and less expensive to the parties that allmatters in dispute including the question of heirship should be deter-mined in these proceedings. The application for the appointment of areceiver is dismissed The parties then went to trial on the two issues—validity of the marriage of Sellatchi, validity of the marriage of ShariffaUmma—and the learned Judge in due course gave his decisions on thoseissues, from which decisions the present appeals are now brought.
The record and the order just quoted from make the positionclear. Parties agreed to the trial * of these two issues, led evidencethereon at considerable length and argued their several cases to thelearned Judge in the usual manner. The suggestion that in hearing anddetermining these issues the Court was doing something which it had nojurisdiction to do was never suggested to the Court of trial. After theappeal here had been argued^at considerable length on behalf of Sellatchiand her children and in support of the validity of her marriage to thedeceased, her counsel then for the first time raised the point that all theproceedings below were a nullity and empty words, on the ground thatthere was no estate to administer and that therefore the Court of trialhad no jurisdiction.
I must be permitted to express my regret that this point, if it wasgoing to be raised, was not raised at the proper time, namely, before thetrial of the issues framed below, or at latest when Mr. Tisseverasinghe’sclients intervened with their application for a receiver. By that momentat latest all the facts alleged with regard to these properties were in fullpossession of all the counsel engaged and it is difficult to believe thatcounsel for Sellatchi and her children had not by that time grasped thepoint now raised on their behalf. It should have been raised then andnot later. Having been raised, however, it must be dealt with.
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The argument is that there was no estate to administer. This doesnot seem a correct statement of the facts. Number 8. of the propertiesscheduled by the petitioner Sellatchi and by her opponent Vadivelspecifies certain moneys in Court which can only be paid out by an orderof Court. Before making that order the Court must determine who isentitled to those moneys, and proceedings have been brought in theestate of the deceased to enable that question to be' answered. Butfurthermore there is .the uhcontradicted assertion that rents amountingto Rs. 1,400 have accrued due since the death of the deceased, and as tothe right to these too, inquiry, will also be necessary and an order of Court.consequent on such inquiry. Even if it does eventually turn out thatthe two fidei commissa alleged to bind the properties sheduled arevalid fidei commissa, as to which question so far there has not been ascrap of argument, still there will be the money in Court and the rentssaid to be in the hands of Kalimuttu, Sellatchi’s father, order as towhich will have to be made,—in effect, there will be an estate, even ifa small one, to administer.
For myself I am doubtful whether an admission by all the partiesconcerned that the properties scheduled are under bonds of fidei commissumwould oust the Court of its jurisdiction or absolve it from the duty ofdetermining the validity of those fidei commissa and whether or not the• lawful heirs of the deceased Suppramaniam are entitled, and if so, whoare those lawful heirs, but on the facts disclosed it is perhaps unnecessaryto decide this point.-
It seems to me that the present objection can be determined on broadgrounds. First of all. the District Court is a Court of unlimited primaryjurisdiction. It has power to determine questions as to the validity of amarriage or the legitimacy of children, just as much as it has power towind up a deceased estate or to try art action for goods sold and delivered;Courts Ordinance, section 64. There is nothing in that section or inany other section in the Courts Ordinance dividing the jurisdiction of aDistrict Court into separate arid exclusive divisions, nothing that preventsa Court in an action ostensibly under a particular label from trying anissue outside that label provided that it has the parties interested in thatissue before it and provided that they consent to its trying that issue.
This seems to be clear from the constitution of the District Court. In
' ’ *
England there is a division of the High Court called the ChanceryDivision which by law is given exclusive competence in certain matters,■among them the execution of trusts and the dissolution of partnerships,that is to say, you may not commence a case involving either of thesematters in some other division of that High Court, say the King’s Bench.The constitution of our District Courts is different. A Judge whensitting in it‘has at any moment plenary jurisdiction. If the parties'come 'before him with an action labelled, title to land, and it appearsfrom the pleadings that that title to land cannot properly be determinedwithout first determining an.issue as to a trust under which that land isalleged to be held, then it would not be possible for the District Courtto say, the Court is now sitting on a particular side or under a pariiculaf’jurisdiction,nhat is, to try titles to land, you must bring this issue abouttrusts in a separate action before another division of the Court. It would be
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the duty of the Court, supposing it was satisfied that it had the partiesbefore it and that the parties were anxious to have the point as to thetrust decided, to frame the appropriate issue as to the trust and to hearand determine the sameCivil Procedure Code, section 33, “ Everyregular action shall, as far as practicable, be so framed as to aifordground for a final decision upon the subjects in dispute and so to preventfurther litigation concerning them The present case is the ordinarytestamentary action, that being its proper title, chapter XXVIII., CivilProcedure Code; is there any reason for saying it is not a * regular action ’?But by section 217 the Court has power by a decree or order to' declarea right or status even without at the same time “ affording any substan-tive relief -or rernedy It was argued to us that'to try this issue as tomarriage and legitimacy was at the outside an irregularity in procedureand not usurpation of jurisdiction. I doubt it was even an irregularity.In a testamentary action where there is no will the Court has to determinewho are the beneficiaries on that intestacy. In many cases the claims ofthose persons to be beneficiaries will depend on their being legitimate.It is natural therefore that questions as to legitimacy and therefore as tovalidity of marriages will copne before a Court when trying a testament-ary action.
Let us assume, what I am not certain of, that there was here anirregularity. In Pisani v. Attorney-General for Gilbraltar the respondenthad claimed certain land for the Crown’ making defendants all the partiesinterested. In the course of the case the respondent, the Attorney-General, came to the conclusion that he could not succeed in claimingthe* land for the Crown and accordingly dropped out of the case, consent-ing that the pleadings should be amended so as to enable the partiesjoined as defendants to litigate between themselves their respectiverights to the lands which the respondent, the Attorney-General, hadunsuccessfully claimed for the Crown. On this the Judicial Committeesaid as follows : “ It is true that there was a deviation from the cursuscuriae, but the Court had jurisdiction over the subject, and the assump-tion of the duty of another tribunal is not involved in the question.Departures from ordinary practice by consent are of every day occur-rence ; but unless there* is an attempt to give the Court a jurisdictionwhich it does not possess, or something occurs which is such a violentstrain upon its procedure that it is puts it entirely out of its course,
• so that a Court of Appeal cannot properly review the decision, suchdepartures have never been held to deprive either of the parties of theright of appeal ”, In effect the Court there had jurisdiction in spite ofthe irregularity. We have a case of our own on the same matter, AlagappaChetty v. Arumugam Chetty ’, the gist of which is to be found in a quotationfrom an Indian case at 2 C. L. R. p. 203, “Where jurisdiction'over thesubject-matters exists requiring only' to be invoked in the right way,the party who has invited or allowed the Court to exercise it in a wrongway, cannot afterwards turn round to challenge-the legality of proceed-ings due to his own invitation or negligence ”. The case Jose AntonioBaretto v. Francisco Antonio Rodrigues in 35 Bombay, p. 24, cited to us,is also to the point. There the parties had agreed to the value of thei L, JU P. C. 516.*2 C. L. R. 202.
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property in dispute, and their valuation would have brought it within thecompetence of a certain Court. In actual fact at the time the propertywas worth more, whereby the case would not have been in the competenceof that lower Court but of a higher Court, and it was argued that thelower Court had no jurisdiction to try the case. It was held the otherway in the following words, “ But it is urged that parties cannot byconsent give jurisdiction where none exists. That is so where the lawconfers no jurisdiction. Here the consent is not given to jurisdictionwhere none exists. Here the consent related to the question of themarket value. No doubt the question of jurisdiction depended on thatquestion. But all that the law has said is that a suit relating to property,the market value of which is of or exceeds a certain amount (Rs. 5,000),shall not be tried by a Second Class Subordinate Judge. To bring thatlaw into operation, the market value must be determined by evidence,where it is in issue. If it is not in issue and is taken to be Rs. 5,000 ormore, there is no jurisdiction and parties by consent cannot give it.But where it is not in issue and parties agree, expressly or by conductto treat the suit as one for property of lesser value than Rs. 5,000, themaxim of law does not apply. The law does not prevent parties fromwaiving inquiry by the Court as to facts necessary for the determinationof the question as to jurisdiction, where that question depends on factsto be ascertained ”.
It has been said above that it is doubtful whether there was even anyirregularity. In any event I would say that the parties taking thisobjection were estopped by their conduct in the Court below, namely,their agreeing to go to trial on the issues there framed. It has beenurged however that this was not an estoppel since it was (Spenser-Boweron Estoppel, p. 245) “ a proceeding or step in litigation which thelitigant is compelled to take as the only possiblle means of raising theobjection from setting up which he is sought to be estopped”. In otherwords, we must regard the consent of the parties to go to trial on the issuesbelow as having been given under species of force majeure. The casesin Spencer-Bower in support of the proposition just quoted do not seemto bear out the construction sought to be put upon it by Counsel support-ing this objection. There the cases were those of a party coming forwardto object to some process served upon him which he claimed was irregular,and it was held quite rightly that he could not be supposed to havewaived that irregularity by coming forward to show that the irregularityexisted. The present case is quite different. The parties were underno compulsion whatever to agree to this issue, and agreeing to it couldnot possibly be described as “ the only possible means of raising theobjection from setting up which they are sought to be estopped I donot think that the passage cited from Spencer-Bower or the cases thereinreferred to help the present objection.
I would answer then the objection raised that the Court had nojurisdiction to decide the issues the parties went to trial upon by saying,firstly, that on the facts there was an estate, though a small one, toadminister, secondly, that admission by the parties that property scheduledwas under fidei commissum does not seem to me conclusive in the entireabsence of evidence and argument thereon, and thirdly, that the District
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Court being confessedly a Court of plenary jurisdiction and all partieshaving expressly consented to go to trial on these issues involvingquestions of status, it is not possible for any of them now to resile and tosay that though they consented to the Judge trying these issues theycan now avoid the effect of that consent and claim that his decisionthereon is a nullity.
This preliminary point, namely, that the Court had no jurisdiction,must therefore be rejected.
I now come to the appeals themselves, that of Sellatchi, or rather herrepresentative, claiming that her marriage to the deceased of August 8,1906, was a valid one, and that of Shariffa Umma claiming that hermarriage of May 23, 1919, was valid. If Sellatchi’s marriage was valid,then, as she was alive till 1933, the marriage of deceased of Shariffa Ummain 1919, would clearly be invalid, but Shariffa Umma states that theSellatchi’s marriage was itself invalid and that the deceased was legallya bachelor when in May, 1919, he married her.
First as to the marriage alleged to have been celebrated between thedeceased and Sellatchi on August 8, 1906. The law on the subject is foundin Ordinance No. 19 of 1907, section 17, which says: “No marriageshall be valid (b) where the female shall be sister of the male either by thefull or the half blood, or the daughter of his brother or of his sister bythe full or the half blood ”. Here the female party to the marriage wasdaughter of the male’s sister by the full blood, his niece, as has been said.Section 18 of the same Ordinance says “ Any marriage or cohabitationbetween parties standing towards each other in any of the above enumera-ted degrees of relationship shall be deemed to be an offence and shall bepunishable with imprisonment, simple or rigorous, for any period notexceeding one year ”. It will be seen then that a marriage betweenparties related as were the petitioner Sellatchi and the deceased is by thestatute law of the Island invalid and a punishable offence.
The facts of the case seem to have been that the deceased Supramaniamwas at the time of the marriage very much under the influence of hisbrother-in-law Kalimuttu, the father of the petitioner Sellatchi. Kali-muttu thought that some other members of the family were trying toprovide a wife for Supramaniam, under age though he was, and hetherefore induced this marriage of his daughter Sellatchi to his brother-in-law, the deceased Supramaniam. Kalimuttu himself made anaffidavit on July 6, 1906, that is just a month before the marriage,paragraph 3 of whicl^ says as follows :“ The minor Supramaniam
having expressed a desire to get married to Sellatchi I commenced tomake preparations for the marriage. When such preparations werebeing made I was noticed to appear before this Court and did so appearon May 25, 1906. On the said date the Court informed me that amarriage between the said Sellatchi and Supramaniam would be illegalin Ceylon and advised me to consult counsel before consenting to anysuch marriage. Beyond taking counsel’s advice as to the legality of themarriage between the said two parties I took no steps whatever in thematter. It is not true that I have made preparations to remove the saidSupramaniam outside the jurisdiction of this Court to have him married
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to the said Sellatchi”. In the following month he took his daughterSellatchi over to India accompanied by Supramaniam, and the twoparties were married by Hindu rites in India on August 8, 1906, as stated.
The argument on the validity of this marriage was put in this way.The parties to the marriage were Indian Tamils. Their domicile, oforigin was therefore India and there is some evidence that a marriage inIndia between uncle and niece, being Tamils, would be lawful. Therewas no evidence, it was urged, that the parties had either abandonedtheir Indian domicile of origin or become domiciled in Ceylon, then themarriage, if good in the domicile of the parties, would have to be good inCeylon since the domicile of the parties and of the marriage, Indian,would .attach to them and follow them, living, in Ceylon or elsewhere.Supramaniam was under age at the time when he married (a horoscopewas produced according to which he would have been born in 1885and would have been of age when the marriage was celebrated, but thehoroscope, according to the Judge, bore marks of having been tamperedwith and he preferred to accept the birth certificate’ of Supramaniamwhich showed him to have been born on October 27, 1886, and so to havebeen not quite 20 when he married). If the deceased Supramaniamwas under age when he married he could not then have acquired adomicile of choice. His domicile of origin, it was argued, was Indianand there was not sufficient evidence that he ever at any time did any-thing from which it could be inferred that he had abandoned his Indiandomicile of origin and acquired a domicile in Ceylon. There was evidencethat there is a house in South India, at Pandakudi, which is called thefamily house of the particular family of Tamils from which the deceasedSupramaniam descends, and there was also evidence that he. like othermembers of his family, used from time to time to pay visits to the family• house at Pandakudi. It may be conceded that the ceremonies at themarriage between the deceased Supramaniam and Sellatchi were sufficientto form a valid marriage according to Hindu rites.
Now the facts with regard to the family of Supramaniam seem to be asfollows. His own father was one Muttucaruppen Chetty who joined twobrothers of his in a partnership business in Ceylon as far back as. 1850.Muttucaruppen Chetty was therefore living Jin and doing business inCeylon as far back as that date. This was at Colombo and apparently atSilversmith Street in Hulftsdorp where the family has resided and ownedproperty, continually from 1850 till the present day. Muttucaruppenhimself is known to have bought property in Silversmith Street as farback as 1861, He married two wives in Ceylon, the second wife beingthe mother of the deceased .Supramaniam. All his children seem tohave been born in Ceylon, all his business interests seem to have been inCeylon, and save for occasional visits to India he seems to have livedthe whole of the rest of his life in Ceylon, and to have had the samehome in Ceylon, at Silversmith Street in Colombo, from 1850, or atlatest from 1861, to his death on October 2, 1896. At the time he diedSupramaniam would be about 10 years old, having been bom in 1886and his domicile of origin would be that of his father Muttucaruppen.He seems to have been passed into the guardianship of his brother-in-lawKalimuttu, the father of the petitioner Sellatchi, and all the evidence
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•about Kalimuttu is that he likewise lived In Silversmith Street and thathe had a wife, children, and business interests in Ceylon. Supramaniamhimself seems after his marriage in 1906 to have lived continually in•Ceylon, save for occasional visits to India, until his death in January,
He is said to have been idle and to have had intemperate habitsand not to have done any business, but he continued to live on theproperty which his family had bought in Silversmith Street and wherehe had been born and there his children were bora likewise. The familyhad been settled in Ceylon since 1850 and there is no evidence to showthat the deceased Supramaniam showed any intention of breaking awayfrom the home he had made for himself in Silversmith Street, Colombo.Even assuming, what is by no means proved, that Supramaniam’s domicile•of origin was India and that if he acquired a Ceylon domicile it wouldbe a domicile of choice acquired by him after he became of age in 1907,-which was after his marriage, still I should be inclined to say that hiswhole course of conduct throughout his life showed an intention to liveand to die in Ceylon. His conduct is strong evidence of an animusmanendi and also of an animus non revertendi, and if so, that he hadacquired a domicile of choice in Ceylon. This, however, would makebis domicile at the time of his marriage Indian, and we therefore have toask the question, was his domicile of origin Indian? The evidenceseems to me very strong that his domicile of origin was not Indian but ofCeylon. Muttucaruppen, his father, had acquired property in Ceylon,done business there, lived there, married and begotten children there,always living in the same place and even the same house, long beforeSupramaniam was born. There is no evidence that he had any businesselsewhere than in Ceylon or any several property elsewhere. Let it be-conceded that he was born in India and that he had certain undefinedproprietary rights to the family house at Pandakudi. No doubt alsohe went there from time to time. But the evidence seems to me decisivethat Muttucaruppen, and Indian Tamil, had acquired a Ceylon domicile;there was the undeniable factum, continuous residence in one and thesame house for at least’ 35 years, perhaps more, and it, and the accompany-ing conduct as to family and business matters, raise the presumption of’an animus manendi et non revertendi which is too strong to be rejectedand against which there is practically no evidence. If then Muttu-caruppen had acquired a domicile of choice in Ceylon, the domicile oforigin of his son Supramaniam was that of Ceylon also. To hold Other-wise would be to substitute conjecture for fact.
There^is no difficulty then in agreeing with the learned Judge on this' point and in holding with him that this so-called marriage in August,1906, between Supramaniam and Sellatchi being a marriage prohibitedby the country in which the purported husband had his domicile was aninvalid marriage according to the law of the Island, and that the childrenborn of that marriage are not legitimate. If then the conclusion of thelearned Judge is correct that the domicile of this so-called marriage wasof Ceylon, it is unnecessary' to inquire whether this marriage, being onenot only prohibited but' penalized by the law of the Island, could havebeen held valid if it had been shown that Supramaniam’s domicile at the
348MACDONELL. C.J,—Thevagnanasekaram v. Kuppammal.
time of the purported marriage was Indian. On the findings as to thefacts of domicile it becomes unnecessary to pronounce on this point.
It will be observed how very close the facts of the present issue are tothose in In re de Wilton There the male party to the marriage was aJew and the maternal uncle of the woman whom he wished to marry,herself a Jewess by blood but brought up as a Christian. The parties“ went to Wiesbaden, in Germany, where on August 20, 1876, they wentthrough the form of civil marriage and afterwards married accordingto the practice and custom of the Jews. At that time Miss de Wilton(the wife) had not been formally admitted into the Jewish faith but shewas so admitted at Paris on September 17, 1876, and afterwards, on thesame date, she therefore went through the form of marriage withMr. Montefiore according to the Jewish custom and practice. The evi-dence showed that such a marriage was valid according to the law inforce at Wiesbaden, and also that it was valid according to the Jewishlaw, provided at the time of the ceremony both the contracting partieswere adherents of the Jewish faith ”. The parties, it must be noticed,were domiciled in England, and the Marriage Act of 1835 (5 & 6 Wm. IV;c. 54) declares absolutely void any marriage between persons of theirdegree of consanguinity. It was argued that that statute did not applyto them being Jews, and it will be remembered that incest though it hadlong been an offence in England against the ecclesiastical law did notbecome punishable by the criminal law until the Statute of 1908—Punishment of Incest Act, 1908 (Edw. VII, c. 45). In the de Wilton Caseit was argued that the Act of 1835 did not apply to these persons becausethe Marriage Act of 1836 (6 & 7 Wm. IV, c. 85, section 2), enactedthat persons professing the Jewish religion may continue, to contract andsolemnize marriage according to the usages of the said persons, and itwas argued that the legislature had “ treated as valid marriages contractedin accordance with the rules of the Jewish law, not merely as regards theform of marriage but also as to the capacity of the contracting parties”.Stirling J. who tried the case rejected this argument, holding that theStatute of 1836 dealt merely with matter of form but not with the capacityof the parties. He held therefore that the marriage in question was notvalid according to English law. Our own Ordinance makes the presentcase a stronger one, for it not merely declares the marriage to be invalidbut also punishes with imprisonment the person who is contracting it,or even cohabiting, if within the prohibited degree.
There remains to be considered the claims of the petitioner ShariffaUmma. She was by birth a Muslim who seems to have become themistress of the; deceased Supramaniam about the year 1909, and to havehad children by him. As his marriage of 1906 with Sellatchi was aninvalid one, he was in the eye of the law a bachelor at the time when heformed this connection with the petitioner Shariffa Umma and couldtherefore legally marry her. She gave evidence that she from being aMuslim became a Hindu and that she was married to Supramaniam'* 12 or 13 years ago in the month of April, this may have been in 1919.After our marriage I bore him one child She describes the ceremoniesperformed at the marriage and calls as a witness a certain Parameswara
i (1900) 2 Ch. 481.
MACDONELL CJ.—Thevagnanasekaram v. Kuppammal.
349
Aiyar who deposes to having performed the marriage ceremonies betweenher and the deceased Supramaniam. He describes himself as a Brahminbut admits that he is not a Kurukkal. His evidence, to read, is notsatisfactory. He said at one part of his evidence, both in English andlater in Tamil, that the ceremonies he performed were not sufficient toconstitute a valid Hindu marriage, but immediately afterwards he saidthey were sufficient. He said that the omam ceremony was one of theessential ceremonies in connection with the marriage but that he didnot perform the omam ceremony. He also says: “ I did not makeinquiries as to whether Supramaniam was previously married. I didnot know that the woman he was marrying was a Muslim nor did I knowwhat nationality she was …. If I knew she was a MuslimI would have performed the ceremony which would make her a convertand then I would have performed the religious ceremony ”. Later hesays that in a temple he could not perform poojahs because he is notqualified as a Kurukkal, but that at this marriage he did perform certainpoojahs. He also said that he did not ask the woman what her father’sname was and that “ it is necessary to ascertain three generations insuch cases, but I did not do it in this case He was also quite vagueas to when he performed this marriage ceremony, merely saying that itwas 12 or 13 years ago. You cannot wonder that the learned Judgerejected the testimony of this witness and of Shariffa herself and held itnot proved that any ceremonies of marriage were gone through betweenthe deceased Supramaniam and the petitioner Shariffa Umma. Hetherefore rejected her petition to be held the widow of the deceasedSupramaniam.
There is however one unsatisfactory portion of his findings on thispoint. The petitioner Shariffa Umma had on June 29, 1918, presumablybefore the date when she claims to have been married to. the deceasedSupramaniam, instituted in the Colombo Police Court action No. 11,054against the deceased Supramaniam for the maintenance of the childrenshe had borne him. She obtained an admission by him of paternity andan order for the maintenance of her children on July 10, 1918, andat various times afterwards, notably between 1925 to 1930, she obtainedvarious orders and distress warrants against the deceased Supramaniamfor the payment of arrears under the original order. She gave evidencein that case No. 11,054 on more than one occasion and nowhere at anytime stated that she was married to the deceased Supramaniam. In therecord of this maintenance case No. 11,054 there is a petition of June 30,1923, said to have been presented by this petitioner Shariffa Ummaand marked by her, the mark being witnessed, in which she describesherself as the * kept mistress ’ of Supramaniam. This petition was putto her in cross-examination and she flatly denied any knowledge of it;she had not sent it at all. The learned Judge overlooking the fact thatit was not property proved that this petition was sent by her, refers to itin his judgment evidently as one of his reasons for disbelieving her story.As the petition was not proved, this is a misdirection on the evidence,and the question then arises whether his rejection of her petition to bepronounced widow of the deceased ought not formally to be set asideand that issue sent back for retrial. I have felt some doubt on the point,
350
DALTON S.P.J.—Thevagnanasekaram v. Kuppammal.
but I think on the whole that there is sufficient evidence to justify theconclusion of the learned Judge that her marriage to the deceasedSupramaniam is not proved. The notes of her evidence suggest that shewas not a satisfactory witness. She denies having asked on February 4,1927, for a distress warrant. It is perfectly clear from the record of thecase No. 11,054 that she did make such an application on that date, andshe admits further.that she did not in any one of her applications saythat she was lawfully married to Supramaniam or that she claimedmaintenance for herself on the ground that she was lawfully married tohim. Having regard to the very vague and unsatisfactory evidenceby her and on her behalf as to her alleged marriage by Hindu rites tdthe deceased Supramaniam, I think the learned Judge was- justified infinding that no such marriage had been proved, and if so it would be awaste of time to send the case back for re-trial on this issue.
In the event then each of the appeals fails: that of Sellatchi claimingthat her marriage to the deceased Supramaniam on August 8, 1906, wasvalid, and that of Shariffa Umraa that her alleged marriage to thedeceased Supramaniam in some uncertain year, perhaps 1919, did takeplace and was valid.
For the above reasons I am of opinion that these appeals must bedismissed with costs as against the appellants, that is to say against therepresentative of the petitioner Sellatchi and against her brothers andsisters, the seventh, eighth, arid ninth respondents in No. 5,653, them-selves appellants in the appeal No. 4 now before us, and against ShariffatJmma, appellant in the appeal No. 5 now before us.
Dalton S.P.J.—
These three appeals, arising out of two testamentary proceedings inrespect of the estate of the late Muttucaruppen Chetty SupramaniamChetty, have been amalgamated and heard together. Appellant in No. 3appeal is Kalimuttu Chetty Thevagnanasekaram, substituted petitionerfor Kalimuttu Chetty Sellatchi (whom I will hereinafter refer to asSellatchi), now deceased, who was the petitioner in case No. 5,653,stating she was the widow of the deceased Supramaniam Chetty, andasking for letters of administration of his estate. Her petition wasrejected, hence her appeal.
A second petition for letters of administration, No. 5,667, was presentedby Pitche Chetty Vadivel Chetty, a nephew of the deceased SupramaniamChetty, asking for the issue of letters of administration of the estate tohim, on the footing that Supramaniam Chetty had died unmarried andintestate. To that petition he made Sellatchi and three of her brothersand sister respondertts (Nos. 1, 2, 3, and 4) on the footing that they weresome of the heirs of the deceased Supramaniam Chetty, being the childrenof Kaliamma, a sister of Supramaniam Chetty, by her marriage withKalimuttu Chetty. Further respondents to this petition were three-other grandchildren (respondents Nos. 5, 6, and 7) of MuttucaruppanChetty, the father of the deceased Supramaniam Chetty, by his first wife.Vadivel Chetty was successful in his petition, and appeal No. 4 is by thesecond, third, and fourth respondents thereto, two brothers and a sisterof -Sellatchi, against the order of the Court below.
DALTON S.P-J.—Theva.gnanaseka.Tam. v. Kuppammal.
351
The appellants in this appeal (No. 4), it is to be noted, prefer to support-their sister’s claim in appeal No. 3. If she is successful, they stand togain no material benefit for themselves. On the other hand, if appealNo. 3 is dismissed on the ground that there was no valid marriage betweentheir sister and the deceased, they stand to benefit as some of the heirsto Supramaniam Chetty, although probably not to any great extent.It is perhaps natural that they would prefer to see the validity of themarriage and the legitimacy of their sister’s children upheld.
The third appeal (No. 5) is by a woman named Shariffa Umma aliasSelatchi. She filed a. petition, which was not separately numbered,,on December 9, 1931, after the commencement of the inquiry on petitionsNos. 5,653 and 5,667, purporting to produce at the same time a documentalleged to be the last will of the deceased Supramaniam Chetty, andasking that letters of administration with the will annexed be issuedto her as the widow of the deceased. She stated in her evidence hermarriage to the deceased took place about the year 1919. Order wasmade on December 9, 1931, by the trial Judge on her petition that she beadmitted as a party to the proceedings that had opened on the twoearlier petitions, for the purpose of establishing the status she claimed,since the Court was then primarily concerned with the question who wasentitled to administer the estate. For the proof of the document,however, as the last will of the deceased she was directed to commenceseparate proceedings. That document has not been produced in theseproceedings and one is therefore not aware of the contents of it. ShariffaUmma accordingly took part in the inquiry and led evidence to establishher alleged marriage to the deceased. The trial Judge, however, hasfound against her and as a result she has appealed, making all the otherparties respondents to her appeal.
The first question to be answered in these appeals is whether Supra-maniam Chetty was domiciled in Ceylon at the time of his marriage,on or about August 8, 1906, to Sellatchi. It is admitted that Sellatchiwas the daughter of his full sister Kaliamma and therefore the niece ofSupramaniam Chetty. By section 17 of the Marriage RegistrationOrdinance, 1907, it is enacted amongst other things that no marriageshall be valid where the female shall be daughter of the sister of the maleby the full or half blood. By section 18 it is enacted that any marriageor cohabitation between parties standing towards each other in theprohibited degrees of relationship shall be deemed to be an offencepunishable by one year’s imprisonment. The marginal note to section18 states the offence is incest. For Sellatchi it was pleaded that Supra-maniam Chetty’s domicile at the time of the marriage was India, whereit is alleged a marriage between uncle and niece is lawful, and thereforethe marriage was a legal one which will be recognized by the Courts inCeylon. If it was a legal marriage, then the alleged marriage of Supra-maniam Chetty with Shariffa Umma, if there ever was any marriageceremony performed between them, was a bigamous one.
At the commencement of the. proceedings in the lower Court onSeptember 11, 1931, on the first two petitions, all the parties then bfore-the Court accepted two issues, upon which the case should go to trial.Decree nisi appears to have been granted to both Sellatchi and Vadivel
352DALTON SP.J.—THev(tgnanasekaram v. Kuppammal.
Chetty under date May 13 a/id May 19, 1931, respectively. These issueswere suggested by counsel for Se^latchi after he had opened his case,and were as follows: —
Was Sellatchi married to Supramaniam Chetty on or about August
8, 1906?
If so, is such marriage valid in law?
The trial Judge has found that a marriage was performed betweenthese two parties in India in 1906, but that they had crossed from Ceylonto India for the purpose, that they both had a Ceylon domicile at thetime, and that both being subject to the laws of Ceylon, the marriagewas not valid. Whether or not the alleged marriage was valid accord-ing to the laws in India the trial Judge stated he had no sufficient materialbefore him to decide.
It has been urged before us that the trial Judge’s finding that thedomicile of Supramaniam Chetty in August, 1906, was Ceylon was notjustified on the evidence.
It is common ground, I think, that Supramaniam Chetty was what iscalled in Ceylon an Indian Tamil. This term seems to be very commonlyused to distinguish Tamils, who or whose progenitors have come toCeylon from India in recent or fairly recent times, from Jaffna Tamils,who have been resident in the Northern Province of Ceylon for manycenturies. No assistance is to be obtained in this case from thedescription of Indian Tamil being applied either to Supramaniam Chettyor to his father.
Muttucaruppen Chetty, the father of Supramaniam Chetty, appearsto have been born in India. He had a brother named Saravanar Chettywho came to Ceylon about 1830, and started a business in oil and othergoods in Colombo. The family belonged to the oil-monger caste. Hewas joined there by his two brothers Chidambaram Chetty and Muttu-caruppan Chetty in 1850 and they continued in the business in co-partnership, acquiring land and other property. Saravanar Chetty isstated to have purchased property in Hulftsdorp in 1844. In 1861Muttucaruppen Chetty himself purchased a property, a house and garden,at Hulftsdorp (exhibit P 11), being described therein as of Colombo.In 1868 he let on lease (exhibit R 7) to one Velayutam Chetty for fouryears three contiguous portions of land and a house in Silversmith Lane,Colombo. In this deed he is also described as of Colombo. There isevidence that he married his first wife in Ceylon where she died in 1869,He married a second" time on September 7, 1869, in Colombo, beingdescribed at the time as a trader and resident at Vansanden Lane,Colombo. Children were born to them in 1874, 1881, and 1886. In1874, in the certificate, Muttucaruppen Chetty himself being theinformant, he is described as a trader residing at Silversmith Street;which is in Hulftsdorp, Colombo. In 1881 he gives himself the samedescription and residence. His son Supramaniam Chetty was born onOctober 27, 1886, also at Silversmith Street, Colombo, the informant ofthe birth for purpose of registration being his father, who gives thesame description he had given in 1874 and 1881. There is evidencethat he continuously resided at the house in Silversmith Street and
DALTON S.P.J.—ThevagnanastkaHam v. Kuppammal.353
carried on business there during theses ye jtrs and thereafter. He died inOctober, 1896, in a house in Silversmith Lsfne, arfd was buried or crematedin'Colombo. Prior to his death, he and feis wife had executed a joint will,as the learned trial Judge points out following Ceylon practice, in whichboth are described as of Silversmith Street, Colombo. They appear tohave assumed that they were married in community of property inaccordance with the law in force in Ceylon at the time of the marriage.
The evidence that Muttucaruppen Chetty owned property in Indiaduring the time he resided in Colombo has been examined by the trialJudge, and he comes to the conclusion that it is not satisfactory. Healso holds that the attempt to prove he retained what is called anancestral home there has failed. That he would pay visits to India onoccasion is not surprising, although the evidence that he did so is notvery strong. In his day probably such visits would not be so frequentas they might be at the present time with the present facilities fortravelling, but the fact that Muttucaruppen Chetty did on occasion payvisits to India would not detract from the very strong evidence led toshow that he had acquired a Ceylon domicile at the time of his death in1896, and a long time before that year. The evidence, I think, conclu-sively establishes an intention to effect a change of domicile and to makeCeylon, where his business was, his permanent home. From all thecircumstances one must, I think, infer a fixed and settled purpose ofabandoning his Indian domicile and settling in Ceylon. There is ampleevidence, in my opinion, to support the learned Judge’s conclusion onthis point, and I see no reason whatsoever to disagree with it.
With regard to Supramaniam Chetty himself, as opposed to his father,the evidence shows that his domicile of origin was Ceylon and that henever acquired any other domicile. During his minority after hisfather’s death Kalimuttu Chetty, father of Sellatchi, became his guardianand curator, at any rate from 1899 onwards, the latter eventuallyobtaining his discharge in 1907. There can, I think, be no doubt thatSupramaniam Chetty was a minor at the time he went through themarriage ceremony in 1906 with Sellatchi. The marriage, as theevidence shows, was arranged by Kalimuttu himself, although he haddue warning as to the illegality of the proposed marriage. The evidencefurther shows that Supramaniam Chetty continually resided in Colomboup to the time of the marriage and that he returned to Colombo fromIndia very soon after the marriage. He thereafter appears to have beena ne’er-do-well and had no occupation but he continued to reside inColombo. All his children by Sellatchi were bom in Ceylon and he diedhere in January, 1931. That he may have paid visits to India onoccasion again is not surprising, for it is quite natural as Sellatchi statesthat she kept in touch with their relatives in India. The trial Judge issatisfied, however, on the evidence that at the date of her marriageshe also had a Ceylon domicile and that she is not entirely reliable onall points in her evidence. Although the question of her domicile,as he points out, is immaterial, one is, in my opinion, compelled by theevidence to agree with his conclusion on this question.
36/26
354
DALTON S.P-J.—Thevagnanasekaram v. Kuppammal.
It was urged on the appeals' that the trial Judge had not had regardto the evidence that from August, 1906, to January, 1931, all the relativestook up the position that Supramaniam Chetty and Sellatchi werelegally married. There is no doubt that the parties were regarded ashusband and wife. There are the partition actions in 1910, 1917, and1923, between members of the family including Vadivel Chetty, whoat any rate in 1923 was a major, in which the fact of the marriage is reliedupon and not contested. I am unable to agree, however, that thesecircumstances have been overlooked, nor do I think they are in all thecircumstances of very much assistance, especially having regard to thevery strong evidence to which I have referred, and upon which the trialJudge has relied on the question of domicile. Whether or not VadivelChetty was aware in 1923 of the circumstances upon which he now reliesthere is nothing to show. The statement of Supramaniam Chettyhimself in 1907 in exhibit P 21 that he was married to Sellatchi wassolely for the purpose of taking over his property and of granting Kali-muttu Chetty, his guardian and curator, a discharge. SupramaniamChetty may well have thought he was legally married. No questionwas then raised by the parties to those proceedings as to the validity ofhis marriage, nor was it necessary for the Court, in the circumstances,to consider any such question.
The personal law then of both Supramaniam Chetty and Sellatchiat the time of this marriage between them in India was the law of Ceylon.By that law they were under an incapacity to contract it in respect ofthe prohibited degrees of relationship, as laid down by section 17 of theMarriage Ordinance referred to. The marriage was therefore invalid(see Westlake’s Private International Law, 7th ed., p. 57, and cases therecited), for it cannot be brought within any of the exceptions therementioned. In the result therefore, in my opinion, the trial Judgehas answered the two issues correctly, and the petition of Sellatchi wasrightly refused, the decree nisi in her favour being set aside.
Another matter argued on these appeals, on behalf of the substitutedappellant in No. 3 appeal and the appellants in No. 4 appeal, was to theeffect that there was no proof before the trial Judge that there was anyestate of the deceased Supramaniam Chetty to be administered, andtherefore the Court had no jurisdiction in testamentary proceedingsto go into any further question such as those raised in the two issuesframed. His power to hear the petitions was based, it is urged, uponthe proof of the existence of an estate to be administered. If that proofwas not forthcoming, he had no power or authority in these proceedingsto determine any further questions, such as the right to administration.This ground is, I think there is good reason for saying, raised now for thefirst time in order to give the parties a second opportunity of having thevalidity of the marriage tested in an ordinary action, since the findingof the trial Judge in these proceedings is against the validity of themarriage.
Sellatchi came in to Court asking for letters of administration, statingthere was an estate to be administered, and she obtained an order nision her petition. She stated in her affidavit of May 13, 1931, that, so faras she had been able to ascertain, the schedule to her affidavit contained
DALTON S.P.J.—Thevagnanasekaram v. Kuppammal.
355
particulars of the property of the deceased. Eight items of propertyare set out, No. 1 to No. 7 being immovable property and No. 8 a sum ofmoney in Court. She states that all these properties are subject tofidei commissa. It is strange that there is no reference in the scheduleto any movable property such as jewellery, household furniture, or cash,which it is very difficult to think Supramaniam Chetty would not havepossessed at the time of his death.
When the hearing of the two petitions was opened on September 11,1931, counsel for Sellatchi put his case before the Court, and all theparties present on that date, including the appellants in appeal No. 4who were represented by counsel, agreed that the case should go to trialon the two issues framed. They were satisfied then that there was anestate to be administered, and that for the purpose of deciding who wasentitled to receive letters of administration, it was necessary to decidewhether the marriage between Sellatchi and the deceased was valid.That issue it is not disputed the Court had jurisdiction to try in testa-mentary proceedings, under the Civil Procedure Code.
Evidence was then led upon these two issues, when on December 10,1931, an application was made on behalf of one of the respondents toSellatchi’s petition, namely, No. 10, Ramasamy Chetty SaravanamuttuChetty (who has since died), asking that the Public Trustee be appointedreceiver of the rents and profits derived from the properties mentionedin the schedule to Sellatchi’s affidavit, which were stated to be yieldinga monthly income of about Rs. 1,458. The allegation made was to theeffect that Kalimuttu Chetty, the father of Sellatchi, was in possessionof all the properties and had been collecting the rents without keepingproper accounts, and that it was desirable that an independent andcompetent person be appointed receiver. One of the affidavits in supportof this application was made by Doresamy Sivaperumal, the fourthadded respondent to Sellatchi’s original petition and the fifteenthrespondent to her petition of appeal. Amongst other things he deposedto the fact that the deceased Supramaniam Chetty died possessed ofproperties in his absolute right and also of properties burdened with afidei commissum.
When Saravanamuttu Chetty’s application for a receiver came beforethe Court, it was also supported by Vadivel Chetty, the petitioner incase No. 5,667, for whom Mr. A. E. Keuneman appeared in the lowerCourt. The application was opposed on behalf of Sellatchi and herbrothers and sister. In the course of the argument that followed it wasagain stated that the properties were subject to a fidei commissum,the result in that event being that the moment Supramaniam Chettydied the properties devolved on the heirs by virtue of the will or deedcreating the fidei commissum. The argument was then advanced, inopposition to the request for a receiver, that in these circumstances thedeceased left no property to be administered. This argument appearsto have been adopted even by counsel who appeared in the lower Courtfor Sellatchi, and he asked the Court to consider whether it would beuseful to continue the proceedings for the appointment of an administra-tor. It is to be noted, however, that he was then in possession of exactly
356
DALTON S.P.J.—Thevagnanasekaram v. Kuppammal.
the same information as he had at the opening of the inquiry. He neverat any stage suggested the Court could not proceed with the inquiry,nor did he ask for leave to withdraw his petition for administration.
In reply to the argument that there had been no disclosure of anyestate to be administered, attention was called to the fact that thedeceased died possessed of certain property consisting of rents whichhad accrued during the month of his death, amounting to over Rs. 1,400.He had died on January 24, 1931, and rents for that month, to the largerportion of which he was entitled, would not in the ordinary course bepaid at any rate before the end of the month. It was also urged thathe had also left other property and in this connection one may callattention to item 8 in the schedule, a sum of money deposited in theDistrict Court, subject, it is stated, to the fidei commissum referred to atthe end of the schedule. The deceased would be entitled to the dividendspayable on this sum, which are paid out by the Kachcheri twice a year.We are informed that the usual practice, which would be well knownto the learned trial Judge, in such cases is for the dividends to be paidout some two months or so after June and December each year. Inthose circumstances there would at the date of the death of the deceasedalso be more than half a year’s interest on this sum due to him, whichwould be payable to his estate. It is most unlikely that the Kachcheriwould pay any sum due to a person not clothed with proper authorityto receive it and able to give an effective discharge.
At the termination of these arguments the application for the appoint-ment of a receiver was dismissed. The learned Judge called attentionto the fact that at that stage it was too early to determine the questionof the quantum of the estate left by the deceased. He pointed out thatthe parties had all agreed to certain issues being first decided to determinethe question of the right to administration, and the inquiry had pro-ceeded on those issues. Should it eventually turn out that there wasno administrable estate shown to exist then the matter could be dealtwith by an appropriate order. The petitioners, however, had comeinto Court and had both obtained an. order nisi on prima jade proof ofan administrable estate existing, and there was certainly at that stageno evidence to the contrary.
The inquiry thereafter proceeded on, and eventually the trail Judgecame to a finding upon the issues agreed upon. In the course of hisjudgment thereon he came to the conclusion that on the evidence so farled before him there was an estate to be administered, although hedescribes it as very little. There was undoubtedly evidence before himto support that conclusion, and if there is any substance in the objec-tion now raised to the proceedings in the lower Court, the fact that it hasbeen shown that there was an estate to administer sufficiently disposesof the objection. It is not necessary therefore to deal with the otherground urged against the soundness of the argument raised before us insupport of this objection. It is conceded by counsel that there is nothingcontained in section 519 of the Civil Procedure Code, as amended bysection 2 of Ordinance No. 15 of 1930, or in any other provision of the
DALTON S.P.J.—Thevagnanasekaram v. Kuppammal.357
law to prevent a Court of competent testamentary jurisdiction grantingprobate or administration in respect of an estate that does not exceedthe sum of Rs. 2,500 in value. Even in small estates in whichadministration is not compulsory one can visualize cases, for example,where money is payable to an estate by an insurance company, or outof a provident fund, or by a public authority as here, in which the personor body responsible for making the payment would decline to do soexcept to an executor or administrator clothed with proper authority,and able to give a valid and effective discharge. One knows fromexperience what very unsatisfactory results may follow on attempts todeal direct with persons who come forward as heirs.
I come now to the appeal (No. 5) of Shariffa Untfma against the dismissalof her claim to be the lawful wife of the deceased SupramaniamChetty, and I find it necessary to say very little on this matter. Thereis reliable evidence to show that for a considerable time Shariffa Ummacohabited with Supramaniam Chetty, but it is urged against her that shewas no more than his mistress. This the trial Judge finds to be thecase, and on the evidence I have come to the same conclusion. Theevidence led to prove her marriage about the year 1919 is most unsatis-factory. The witnesses are uncertain even about the year. Theprincipal witness called was the person who is said to have performedthe ceremony. As the trial Judge points out, he is not a fully qualifiedpriest, and he gives contradictory evidence as to whether the ceremonyhe says he performed was sufficient to constitute a valid marriage.No note or record of any alleged ceremony of marriage between theparties was ever made by him or by any one else; and the trial Judgerejected the evidence of both this witness and the woman MarimuttuLetchimi. No other witness was called. He comes to the conclusionthat Shariffa Umma has failed to show that any ceremony of marriagewas performed between herself and Supramaniam Chetty, and in thatconclusion I can only say I agree.
On this last appeal there is only one other matter to which I needrefer. When the evidence on behalf of Shariffa Umma was led onAugust 1, 1932, her counsel, after leading the evidence on the record,asked for a further opportunity and adjournment to call further wit-nesses. This application was refused. One of the witnesses mentionedwas not even on her list of witnesses, and no attempt had been madeto summon others named for August 1, although the parties were awarethe case would come up for hearing on that date, for which it had beenspecially fixed as early as May 25. The appellant had ample opportunityof putting her case before the lower Court. I mention the matter becauseit is referred to in her petition of appeal, but it was hardly pressed inthe appeal before us, the chief ground taken on her behalf being that theevidence was sufficient to establish the marriage and should have beenaccepted by the trial Judge.
The appeal of Shariffa Umma therefore fails.
In the result all three appeals must be dismissed with costs.
Appeal dismissed.