BALASURIYA AND ANOTHER

BALASURIYA AND ANOTHER

VS.

RAMANAYAKE AND OTHERS

SUPREME COURT
FERNANDO, J.
GOONERATNE, J.
OBEYESEKERE, J.
SC/APPEAL/181/2014
SC/SPL/LA/295/2013
CA/APPEAL/109/2000 (F)
DC RATNAPURA 6199/P
JUNE 20, 2021

Kandyan Marriage and Divorce Act, No. 44 of 1952, sections 3(1), 3(2), 23(1)(a) (ii), 23(3), 28(1), 66-Marriage Registration Ordinance, No. 19 of 1907-Nature of marriage not specified-Presumption of "diga" marriage-Kandyan Law (Declaration and Amendment) Ordinance, section 9(1)-Ordinance No. 3 of 1870, section 39-Best evidence rule

The 1st plaintiff is the daughter of ST who predeceased her father. The father who owned the land in suit died intestate. Upon his death, the 1st plaintiff filed a partition action on the basis that she was entitled to an undivided 1/4 share of the corpus, which the defendants disputed stating inter alia that ST married in diga during the lifetime of her father and forfeited her rights to paternal inheritance. The District Court held with the 1st plaintiff but on appeal the Court of Appeal reversed that finding. The 1st plaintiff appealed to the Supreme Court.

Held :

1. In terms of section 28(1) of the Kandyan Marriage and Divorce Act, No. 44 of 1952, if there is no entry made in the marriage register to state that the marriage was in diga or binna, it is presumed that the marriage is in diga until the contrary is proved.

2. In terms of section 3(2) of the Kandyan Marriage and Divorce Act, a marriage registered under the Marriage Registration Ordinance shall not affect the rights of a person claiming title to succeed to the property under and in accordance with the Kandyan Law.

3. Section 28(1) of the Kandyan Marriage and Divorce Act retained the best evidence rule. Accordingly, the registration of a Kandyan marriage under the said Act shall be the best evidence before all courts and in all proceedings in which it may be necessary to give evidence of such marriage.

4. A diga married woman could establish the re-acquisition of binna rights if the siblings of the woman acquiesce in her rights and permit her to possess the share of the land for a long period of time.

5. Residence is not conclusive evidence of the character of the marriage.

6. The 1st plaintiff's mother who is presumed to have married in diga has not rebutted the presumption created under section 28(1). She has thereby forfeited her rights to paternal inheritance.

Cases referred to :

1. Perera v. Aselin Nona (1958) 60 NLR 73

2. Samarakoon v. Samarakoon [2003] 2 Sri LR 321

3. Sophia Hamine v. Appuhamy (1922) 23 NLR 353

4. Piyadasa and another v. Babanis and another [2006] 2 Sri LR 17

5. Lewis Singha v. Kusumwathie and another [2003] 2 Sri LR 128

6. Gunasena and others v. Ukku Menika and others (1976) 78 NLR 529

7. Jayasinghe v. Kiribindu and others [1997] 2 Sri LR 1 at 66

8. Manipitiya v. Wegodapola (1922) 24 NLR 129

9. The King v. Peter Nonis (1947) 49 NLR 16

10. Wickramasinghe v. Robert Banda and others [2006] 1 Sri LR 246

APPEAL from the Judgment of the Court of Appeal.

R.M.D. Bandara with Lilanthi de Silva for the 1A and 1B Substituted Plaintiff-Respondent-Appellants.

Anuruddha Dharmaratne with lndika Jayaweera for the 1st, 2nd, 3A and 3B Defendant-Appellant-Respondents.

cur. adv. vult.

December 16, 2021

GOONERATNE, J.

This is an appeal filed against the Judgment dated 22/10/2013, delivered by the Court of Appeal, setting aside the Judgment of the District Court of Ratnapura, dated 22/02/2000.

The 1st Plaintiff-Respondent-Appellant, being a minor, instituted an action in the District Court of Ratnapura, through her next friend, the 2nd Plaintiff-Respondent Appellant (hereinafter referred to as the Plaintiff-Appellants), against the 1st, 2nd and 3rd Defendant-Appellant-Respondents (hereinafter referred to as the Defendant-Respondents) seeking to partition the land called "Gedaragawa Hena".

By Plaint dated 12/10/1983, the Pl

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