1947 Present : Wijeyewardene and Jayatileke JJ.

RAM MENIKA, Appellant, and KIRI BANDA, Respondent.

425-D. C. Kegalla, 3,243.

Registration of birth-Illegitimate child-Registrar's omission to insert name of father - In what circumstances justifiable - Births and Deaths Registration Ordinance (Cap. 94), s. 16.

Kandyan Law - Child whose parents' marriage is not registered- Status of illegitimacy- Child born in adultery- Inheritance.

Where the father of an illegitimate child goes alone, unaccompanied by the child's mother, to give information about the birth of the child, the Registrar would be justified, under section 16 of the Births and Death Registration Ordinance, in omitting to insert the name of the informant as that of the father of the child.

Under the Kandyan law, prior to the Kandyan Law Declaration and Amendment Ordinance, a child born in adultery was entitled to a child's share of the acquired property of his father even if the father left some legitimate children.

APPEAL from a judgment of the District Judge of Kegalla.

C.R. Guneratne, for the plaintiff, appellant.

E. A. P. Wijeyeratne, for the defendant, respondent.

Cur. adv. vult.

May 23, WIJEYEWARDENE, J.-

The plaintiff instituted this action in March, 1944, for declaration of title to an undivided 1/24th share of three allotments of land. He alleged -

(a) that Kirihamy was the original owner of an undivided 1/6th share,

(b) that Kirihamy died leaving two children, the defendant and another, by the first bed and two children, Dingiri Banda and another, by the second bed, and that each of those children became entitled to an undivided 1/24th share,

(c) that Dingiri Banda conveyed his 1/24th share to her by dee4d P1 of May 14, 1943.

The defendant filed answer in June, 1944, admitting the allegations (a) and (b) and putting plaintiff to the proof of the execution of P1.Moreover, he claimed to be the owner of the undivided 1/25th share in question under a deed P2 of February 10, 1944, executed by Dingiri Banda in his favour.

When the case came up for trial in October, 1944, it was brought to the notice of the Court that Dingiri Banda had instituted action N0. 3541 in the District Court of Kegalla in September, 1944, against the plaintiff for setting aside the deed P1 on the ground that he was a minor at the time he executed that deed. The present action was, thereupon, taken

off the trial roll pendent the decision in D.C., Kegalla, 3,541. That latter action was ultimately dismissed in May, 1945. The defendant in the present case filed an amended answer in March, 1945, denying that Dingiri Banda was "the lawful heir of Kirihamy". In July, 1945, the parties went to trial and only the following issue was framed with regard to the material point in dispute :-" Was Dingiri Banda a child of Kirihamy?" 

The evidence given in support of the plaintiff's case was that Kirihamy had two children including the defendant by a woman Ukku Menika who died about 30 years ago. Kirihamy then lived with another Ukku Menika who died childless about twenty years ago. Kirihamy lived also with a third woman Tikiri Menika by whom he had as children Dingiri Band and four other, three of whom died young. Kirihamy died about fifteen years ago and Tikiri Menika, about six years ago. Tikiri Menika and her children lived in Kirihamy's mulgedera and, in fact, Dingiri Banda was living there even in 1945. Tikiri Menika and her children took their proportionate share of the produce from Kirihamy's land after Kirihamy's death until about 1944.

While admitting that Tikiri Menika, was living in Kirihamy's house that Dingiri Banda and his brothers were born in that house, the defendant stated that Kirihamy did not "take" Tikiri Menika and said "I knew Dingiri Banda was not a child of Kirihamy". There is no doubt that he was in a position to know-so far as anyone could claim to have any certain knowledge on such a q