1961  Present : Sinnetamby, J., and L. B. de Silva, J.

R. E. FERNANDO

, Appellant, and W. W. DABRERA and others,
Respondents

S. C. 3911958-D. C. Chilaw, 13553/P

Marriage by habit and repute-Proof.

Evidence of marriage ceremonies or religious rites is not essential to establish marriage by habit and repute if both the parties to the marriage are dead and the marriage itself was contracted at a very early date.

APPEAL from a judgment of the District Court, Chilaw.

N. E. Weerasooria, Q. C., with H. Wanigatunga and Cecil de S. Wijaratne, for the plaintiff-appellant.

W. D. Gunasekera, for the 7th and 8th defendants-respondents.

Cur. adv. vult.

March 13, 1961.    SINNETAMBY, J.-

The plaintiff instituted this action for partition of the land called Paluwelgalamukalana, alleging that he, the 1st defendant, and the 2nd defendant were co-owners. The 1st defendant William claimed the land exclusively as his own, basing it on prescription. William's claim, however, failed both in the original court and in appeal, and an inter­locutory decree for partition was entered. Subsequently, it was dis­covered that certain other parties had to be added, and they were duly added: the interlocutory decree was accordingly amended on 18th February, 1955. Up to that stage, the 7th and 8th defendants were not parties to the action ; but, on the 22nd of June, 1955, they moved to intervene claiming that Catherina Hamy, through whom the plaintiff, the 1st defendant, 2nd defendant and the other intervening defendants derived title, was not married to Juan Dabrera, to whom the property originally belonged. They alleged that Juan Dabrera died without issue and that they were the legal heirs of Juan Dabrera, being the children of his sister. The main question for decision, therefore, was whether Juan Dabrera was married to Catherina Hamy. If there was a marriage, the intervenients, namely the 7th and 8th defendants, would have no title : but, if they were not married, the plaintiff and the other defendants would not inherit. It was suggested for the plaintiff that these intervenients were put up by William to obtain a decree in their favour, with the object of depriving the plaintiff and others of their shares.

In order to succeed in their intervention, the 7th and 8th defendants had to establish an interest in the land by proving, first, that they were, in fact, heirs of Juan Dabrera, and, then, that Juan Dabrera was not married to Catherina Hamy. It is not necessary for us to deal with the question of whether the intervenients' mother is the sister of Juan Dabrera as we are satisfied that, upon the evidence, Juan Dabrera must be held to have married Catherina Hamy. No certificate of marriage was produced. The plaintiff claimed that the evidence establishes marriage by habit and repute. The learned Judge took the view that, to establish marriage by habit and repute, there must always be satis­factory evidence of some customary rites followed by evidence of habit and repute. In our view, he misdirected himself on this point. If one

of the parties to the marriage is alive, then of course, it would be necessary to establish the existence of marriage ceremonies, for, a party to the marriage must necessarily be aware of it and be able to give evidence in regard to it; but where neither of the parties is alive, and the marriage itself was contracted at a very early date, evidence of customary rites or religious rites would be difficult, if not impossible, to obtain, and is, therefore, not insisted on. It is for that reason that the law recognises proof of a marriage by habit and repute. Reference was made by learned counsel for the 7th and 8th defendants to Kandiah v. Thangamany1[(1953) 55 N. L. R. 568.] wherein acting Chief Justice Nagalingam made the following observations :-

"Under our law, however, some antecedent public ceremony in the presence of relatives, friends or third par