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VALLIAMMAI et al. v. ANNAMMAI et al.
NLR4V8
VALLIAMMAI et al. v. ANNAMMAI et al.
D. C., Batticaloa, 1,968.
Marriage-Cohabitation at husband and wife-Presumption of marriage- Ordinance No. 13 of 1863, s. 21-Ordinance No. 8 of 1865, s. 6-Hindu marriage-Registration -Marriage with deceased wife's sister.
In Ceylon there can be lawful marriages without registration thereof under the local Ordinances.
The presumption of marriages arising from cohabitation with habit and repute holds good in Ceylon.
By the law of this Colony there is no objection to a man marrying his deceased wife's sister.
PLAINTIFFS sued one Katpagepillai in case No. 1,685 of the District Court of Batticaloa, and having recovered judgment against him, sued out a writ of execution to seize and sell an undivided one-third share of a garden called Kalvetuvalavu, the property of the judgment-debtor by right of inheritance from one Tangamma; but the defendants claimed it when it was seized, and their claim was upheld by the District Court on the 19th November, 1898. The plaintiffs raised the present suit to have that claim set aside, and the one-third share declared bound and executable under the judgment in case No. 1,685.
The defendants denied that Katpagepillai was entitled to an undivided one-third share in question by right of inheritance from Tangamma. At the trial it appeared that one Peria Kandu married one Kannatchi, and the whole of the land in question was settled upon them. Kannatchi died shortly afterwards leaving behind one child Tangamma, who with her father became entitled to the whole land. He then lived with Kannatchi's sister Annammai, the first defendant in this case, and had six children by her, the eldest of whom was the second defendant. Plaintiff asserted that Peria Kandu lived in concubinage with Annammai, and that therefore all her children were illegitimate; that on Peria Kandu's death the whole land vested in Tangamma, who having died without issue, the land passed to her aunt (the first defendant) Katpagepillai (the judgment-debtor in D. C, 1,685) and one Sinnepillai in equal shares.
The defendants, on the other hand, contended that Peria Tamby married first defendant according to the custom of the country and lived together as man and wife, though their marriage was not registered, and that therefore it was a lawful marriage, and all his six children were legitimate.
The District Judge upheld the second marriage, and said that on Tangamma's death without issue her '' half brothers and sisters
" succeeded under section 30 of Ordinance No. la of 1876 to the " whole property to the exclusion of her aunts." He therefore considered the claim of the defendants in case No. 1,685 to be right, and dismissed plaintiff's action. Plaintiffs appealed.
The case was argued on 16th and 21st May, 1900, before Lawrie, J., and Moncrieff, J., who disagreed, and the case was set down for argument before the Collective Court.
Wendt, A. A.-G., for appellant.-Under Ordinance No. 13 of 1863 parties to a marriage must give notice of marriage and must marry either in a registered place of marriage as provided by the Ordinance or before a duly appointed registrar. In Vairamuttu's case, reported in 7 S. C. G. 56, it was held that a marriage not registered in manner provided by the Ordinance was not valid. Notice of marriage was given. There was no registration of marriage after that. Hence there was no marriage. In an earlier case, Babina v, Dingi Baba, it was decided that registration was not necessary, but Your Lordships would not decide so now. In the present case, evidence appears to have been led on the footing that a valid marriage could subsist independently of the Ordinance. All that evidence is inadmissible, because no marriage can take place save under the Ordinance. Even supposing that such evidence is admissible, it is insufficient. There is no proof that the thali was tied; on the contrary, it is proved that the thali was no
