SASTRY VALAIDER ARONEGARy and his Wife v. SEMBECUTTY VAIGALIE et al.

Privy COUNcIL, February 3 and 4, 1881.

SASTRY VALAIDER ARONEGARy and his Wife
v.
SEMBECUTTY   VAIGALIE et al.

On appeal from the Supreme Court of Ceylon.

Present  : -  Sir B. PEACOCK, MONTAGUE E. SMITH, Sir K.
COLLIER, Sir RICHARD COUCH

Law of Ceylon - Presumption of marriage -Onus probandi.

According to the Roman - Dutch Law of Ceylon there is a presumption in favour of marriage rather than of concubinage.

According to the law of Ceylon, as in England, where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.

Where it is proved that they had gone through a form of marriage and thereby shown an intention, to be married, held, that those who claimed by virtue of the marriage were not bound to prove that all necessary ceremonies had been performed.

APPEAL from two judgments of the Supreme Court (February 12 and July 26, 1878), reversing a decision of the District

Court of Batticaloa, D. C. No. 18,350 (August 5, 1876).

The facts are stated in the judgment of their Lordships. The issue was whether the appellants had sufficiently proved a valid marriage alleged by them.

Mr. Gorst, Q. C., and F. W. Stock, for appellants, contended that the Supreme Court had wrongly entertained a presumption contrary to marriage, and had wrongly thrown on the appellants the burden of proving what were the necessary ceremonies, and that they had been duly performed. The appellants had proved consent, intention to contract marriage, subsequent belief that they had done so. It rested with the respondents to prove distinctly and conclusively that they had not at any time been performed. Reference was made to De Thoren v. Attorney General (1 App. Cat 686); Piers V. Piers (2 H. L. C. 331) ; Lyle v. Eliwood (3 L. B. 19 Eq. 98).

Dr. Phillimore and Mr. Dunham, for the respondents, contended that the rule as to onus probandi asserted on the other side was established by Scotch authorities, and was not found in Roman-Dutch Law. They referred to Van Leeuwen. (ed. 1820), p. 7; Orotius' Introci. to Dutch Law, p. 24, section. 16; Voet, 6k. XXIII., tit. 2 of Pandects; Thomson's Laws of Ceylon, vol. II., pp. 564-..5

The counsel for the appellants was not called on for reply.

The judgment of their Lordships was delivered by Sir BARNES PEACOCK -

This appeal arises out of a suit brought by the plaintiffs, who are husband and wife, in which it was alleged that the second plaintiff was at the time of her marriage with the co-plaintiff the widow of one Pattanier. The suit was brought against the defendants to recover a share of the property of Pattather, to which it Was alleged that the second plaintiff, as his widow, was entitled. The plaintiff also claimed a share, which it was alleged had descended to her from a deceased child of Pattanier by her. The question is whether she was lawfully married to Pattanier, and the child legitimate.

The first defendant is a brother of Pattanier, and was an executor under his will. The second defendant was a son of Paramakuddi Kassenater, an uncle of the second plaintiff; and the third defendant was the wife of the second defendant, and a daughter of Pattanier by a deceased wife. The learned Judge of the first Court found that there was a valid marriage. He said "First, it is indisputable "that the second plaintiff lived in the house" [that is. the house of Pattanier] "subsequent to the death of the testators" [that is, Pattan,ier's second wife, the mother of third defendant and her minor sister and brother]. "Second, it is also indisputable that "the second plaintiff gave birth to a child in testator's house, which "child survived the testator though by a few months only. Thirdly, "the evidence in favour of second plaint

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