RABOT et al v. DE SILVA et. al.

RABOT et al v. DE SILVA et. al.

D. C, Colombo 14,923.

Marriage between persons who had lived in adultery-Their capacity to take under each other's wills-Civil Procedure Code, s. 772-Right of respondents to support, in appeal, decree on grounds decided against them by District Judge-Presumption as to paternity of child of married woman-Impossibility of access.

Although tinder the Roman-Dutch Law persons who have lived in adultery with each other cannot take under each other's will, that disqualification is according to the law of Ceylon removed by the marriage of those parties, and thereafter they may, like other spouses, take from each other either by will or ab intestato.

Defendants A and B claimed certain shares of the estate of C under his will. The District Judge held that they were not entitled to these shares, inasmuch as they were children of C born to him in adultery, but that by the jus accrescendi these shares vested in defendant D, a co-devisee, and dismissed the plaintiff's claim. The plaintiff's appealed.

Held, that on this appeal it was competent to defendants A and B, notwithstanding that they themselves had not appealed, and notwithstanding that they had filed no objections under section 772 of the Civil Procedure Code, to challenge the District Judge's decision as to their paternity, and to contend that they were not adulterine bastards, and to support the decree appealed from by claiming the shares devised to them on that ground.

Sopi Nona v. Marsiyan (6 N. L. R. 379) followed on the question as to whether, in order to rebut the presumption that the father of a married woman's children is her husband, impossibility of access between husband and wife or impotency should be proved.

IN this case the paintiffs claimed an undivided fifth share of the estate of one Vincent Perera, who had made a will devising his whole estate to the first and second defendants to be

held in trust for the third, fourth, fifth, sixth, seventh, and eighth defendants. Vincent Perera had lived in adultery with the third defendant during the lifetime of her husband, Salman, and had subsequently gone through a ceremony of marriage with her. The fourth, fifth, and sixth defendants were born to the third defendant before , such marriage. The eighth and ninth defendants were to be maintained by the third defendant out of the share that she was to get under the. will.

For the plaintiffs it was contended that the fourth, fifth, and sixth defendants being the issue of the adulterous intercourse between Vincent Perera and the third defendant, neither they nor the third defendant could legitimately take under his will, and that his property therefore devolved on his heirs ab intestato, of whom the second plaintiff was one.

The District Judge held that the third defendant had been living in adultery with Vincent Perera, and the two could not therefore contract a valid marriage, nor could the third defendant take under the will of Vincent Perera.

As to the fourth, fifth, and sixth defendants, it was at first contended for the defence that they were the children of Vincent Perera by the third-defendant; that Salman was not the husband of the third defendant; and that the third defendant never lived in adultery with Vincent Perera, but subsequently the contention was that the third defendant was the wife of Salman, and that the fourth, fifth, and sixth defendants were the issue of the third defendant by Salman.

The District Judge held that impossibility of access had not been shown between Salman and the third defendant before she conceived the fourth defendant, and that the fourth defendant was therefore to be presumed to be the child of salman, but as regards the fifth and sixth defendants he held that the evidence showed that they were the children of Vincent Perera born during his adulterous intercourse with the third defendant. On these grounds he held

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