1956 Present: Basnayake, C.J., and Pulle, J.

DAYANGANIE and another, Appellants, and SOMAWATHIE
and another, Respondents

S.C. 203-D.C. (Inty.) Avissawella LA/279

Kandyan Law-Adoption-Inference from facts and circumstances-Oral public declaration not essential-Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938, s. 7.

Evidence of a public declaration by the adoptive parent on a formal occasion that a particular child was adopted for the purpose of inheriting his estate is not necessary in order to prove the fact of adoption of an heir under the Kandyan Law (prior to the commencement of the Kandyan Law Declaration and Amendment Ordinance). All that is needed is reliable, clear and unmistakable evidence in whatever form of the adoptive parent's intention to make the foster child his heir.

Tikiri Banda v. Loku Banda (1905) 2 Bal. R. 144 and Tikiri Kumarihamy v. Punchi Banda (1901) 2 Browne 299, not followed.

APPEAL from an order of the District Court, Avissawella.

Cyril E. S. Perera, Q.C., with H. W. Jayewardene, Q.C., T. B. Dissanayake and P. Ranasinghe, for 2nd and 3rd Defendant-Appellants.

H. V. Perera, Q.C., with N. E. Weerasooria, Q.C., Walter Jayawardena and A. S. Vanigasooriyar, for 1st and 4th Defendant-Respondents.

Cur. adv. vult.

December 20, 1956. BASNAYAKE, C.J.-

The 1st defendant is the widow of one Peter Appuhamy (hereinafter referred to as the deceased), a rich land-owner who died in 1947 intestate and issueless. The 2nd defendant is the deceased's niece, the 3rd defendant his brother's widow, and the 4th defendant his adopted daughter.

The only question for decision in this appeal is whether the 4th defendant was adopted by the deceased in order that she may be his heir and inherit his property. It arises in a reference made to the District Court under section 11 of the Land Acquisition Ordinance for a decision as to the respective rights of the defendants who are claimants to a land acquired under the Ordinance.

It is not disputed that the parties are governed by Kandyan law, and it is agreed that section 7 of the Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938, has no application to this case as the adoption in question was effected before the commencement of that Ordinance.

The 4th defendant claims that she was adopted by the deceased as his daughter in order that she may inherit his property and that according to Kandyan law she is entitled to succeed to the deceased's estate.

While admitting that the 4th defendant was brought up by the deceased, the 2nd and 3rd defendants dispute her right to succeed to the deceased's estate on the ground that her adoption lacks one of the essential features of a Kandyan adoption, namely, a public declaration on a formal occasion of an intention to make her the deceased's heir. It is convenient at this point to set out the evidence. Briefly it is as follows :-

According to the 1st defendant, the deceased adopted the 4th defendant when she was hardly a month old, as they were childless. The child at all times looked upon the deceased as her father and he regarded her at all times as his daughter. He gave her his " Ge " name and educated her at Musaeus College for about ten years. After she left school he took steps to arrange a suitable marriage for her and eventually she married one Reggie Perera, a person of equal social status with the deceased and a person who had been at one time a Member of Parliament. He gifted certain lands valued at Rs. 30,000 to her and in the deed of gift referred to her as his daughter. These are the very words of the instrument:-

" Know all men by these Presents that Kuruwita Aratchillage Peter Appuhamy .... for and in consideration of the natural love and affection he has and bear unto his daughter Kuruwita Aratchillage Millie Yasoma Nona Mahatmaya of Imbulana aforesaid, and for divers other good causes and considerations hereunt