Present: De Sampayo J. and Schneider A.J.

MOHOTHIHAMY et al. v. MENIKA et al.

198-D. C. Kegalla, 4,968.

Kandyan marriage contracted before 1870-Proof of cohabitation and repute not enough-Observance of Kandyan customs- Ordinance No. 3 of 1870, s. 25.

Though under the ordinary law evidence of cohabitation and repute may be sufficient to raise a presumption of valid marriage under section 25 of Ordinance No. 3 of 1870, some proof must be given of the observance of the laws, institutions, and customs in force in Sandy at the time of marriage.

THE facts appear from the judgment of the District Judge (H. E. Beven, Esq.): -

The land in dispute in this case between the plaintiffs and defendants is the block of 61 acres and 2 roods within the boundaries coloured pink in plan No. 1,682 filed. This land was part of a larger land called the Mahinkandegallatwasama, some 316 acres in extent, which belonged to four families. One of these families was the , Akurukiyana Ganladdalage family, which was admittedly entitled to a one-fourth share. This one-fourth share was vested in one Akurukiyana Ganladdalage Naidehami, as whose grandchildren the plaintiffs base their present claim.

Naidehami died intestate, leaving as his heirs his three sons, Seetalahamy, Balahamy, and Juanhamy. In their plaint the plaintiffs set out title to a one-sixth share (less 25 acres alienated by Balahamy in his lifetime) as the heirs at law of Seetalahamy and Balahamy, the offspring of whose associated marriage they alleged they were. But at the trial they abandoned that portion and claimed a one-twelfth share only as the children of Seetalahamy alone. The reason for this change of attitude is not far to seek, and I will allude to it later.

The defendants base their claim to the entirety of the divided block coloured pink upon a deed of partition entered into between the co-owners, No. 964 of January, 1904, whereby the entirety of this land was allotted to the second defendant's predecessors in title, Singappu and first defendant, Punchi Menika (see D 2). The defendants take their stand upon this deed, and maintain that, inasmuch as the plaintiffs came into a partition case whereby the whole " ganwasama " was partitioned, and in which case they claimed and were allotted shares under and by virtue of this deed, and so took benefit thereunder, they are now debarred from reprobating that deed and reopening the contract embodied in it.

From this state of facts two main question arise for decision: The first, whether the plaintiffs are - the children of Seetalahamy; and the second, whether by reason of the partition deed D2 and proceedings of the partition case No. 4,182, Kegalla, it is now open to the plaintiffs to claim " an undivided share of the whole ' ganwasama. '

As to the first point, the onus is strictly on the plaintiffs to prove that they are the legitimate children of Seetalahamy. Now, the plaintiffs have on this question at various times claimed to be the children of one or the other or of two out of the three brothers.

To begin with, the plaintiffs (who were the fifteenth and sixteenth defendants in that case) acquiesced in the allegation made in the plaint filed in D. C. 4,182, paragraph 6, that they were the children of Juanhamy, and on that footing claimed in their answer to be entitled to a share in the lot awarded to Juanhamy by deed D 2 (see paragraph 3 of answer), and in the decree in that case were duly allotted the share so claimed (see D 5).

Next, in their plaint in this case they claimed to be the offspring of Seetalahamy and Balahamy by an associated marriage. Finally, they set up a claim to a share as the children of Seetalahamy alone.

Now, the evidence in the . case shows that the three brothers lived in one house with the woman Dingiri Menike, and it is apparent that she was their common wife. Her marriage with none of them was registered.

In the birth c