Supplementary reading material

LL.B. Degree Programme

Legal Method - LWU 1412/LLU3904

Level 3

1. INTERPRETATION OF STATUTES

As you have already learnt in Lesson III a large proportion of laws are those enacted by
Parliament. Such laws are known as legislation or as statutory law. Once Parliament has passed
a law, everyone is bound by such law and must abide by it. However, often disputes may arise
regarding such laws and their application to the lives of people and these disputes must be
resolve by the courts. In hearing and resolving such disputes the courts must look to the statute
in question and determine its meaning and the intention of Parliament in enacting it. It must
then apply the statute in such a way that it puts into effect whatever Parliament intended. In
other words the court must interpret the statute and apply it to the particular case before it. It
has been said “The duty of the judicature is to discover and to act upon the true intention of the
legislature ……1.

However, a statute may be badly drafted and ambiguous and its meaning hard to ascertain. It
could also contain mistakes and omissions. In such situations it may be difficult for courts to
decide what it means and what Parliament intended. Therefore in trying to interpret statutes,
the courts have evolved certain guidelines or rules of interpretation.

1.1 The Literal or “Plain Meaning” rule

The first rule of interpretation is that if the words of a statute are plain and unambiguous and
clearly govern the situation before the court, the court must interpret the statute in its ordinary
and general meaning. “[The court] must in general take it absolutely for granted that the
legislature has said what it meant and meant what it has said” 2. Several Sri Lankan decisions
illustrate this rule.

Suffragam Rubber and Tea Co. Ltd. v. Muhsin (55 NLR 44)

This case concerned the provisions of the Land Acquisition Act No. 9 of 1950. In this case,
the Minister exercised the special powers specified in Section 36 of the Act and took possession
of the petitioner company’s land which duly vested in the State with effect from the specified
date under Section 37. Prior to the Minister doing this the Respondent had already initiated the
normal procedure to acquire private land and even after the land had vested in the State under

1
Salmond on Jurisprudence, 12th ed. page 132
2
Salmond on Jurisprudence, op cit, page 132.
1
the special procedure he continued with the various steps prescribe in the Act for the take ever
of private land.

The Petitioner’s position was that the Respondent had no jurisdiction to proceed with such
procedure where the land had already vested with the State. It specifically challenged his
jurisdiction to hold an inquiry under Section 9. The court pointed out that before the passing
of the Land Acquisition Act, the courts were vested with jurisdiction to fix the amount payable
to those whose land had been acquired. The question in issue was to what extent had this
jurisdiction been transferred to statutory tribunals. Applying the literal rule of construction
Gratiaen J stated

“………I am satisfied that the clear and unambiguous words by the Legislature which
passed the Act do not extend an acquiring officer’s jurisdiction under Sec. 9 to cases
where the Ministers special powers under Sec. 36 proviso (a) have been exercised and
have already resulted in a vesting of the property under Sec. 37. In such cases the
common law jurisdiction of the regular Courts of justice to determine disputes between
the private individual (whose property has been compulsorily acquired) has not been
superseded either expressly or by necessary implication. To take any other view would
be to “twist the word and phrases (or the Act) into a sense that they cannot fairly and
reasonably bear” ....... It is quite improper to assume that this residual jurisdiction of the
courts has survived the impact of the statute only through some inadvertence on the part
of Parliament. Indeed even if that could be assumed, it is not for this court to indulge in
“guesswork with what material the legislature would, if it had discovered the (alleged)
gap, have filled it in. If a gap is disclosed the remedy lies in an amending Act...”.

Meegoda v. Jayasinghe (79 NLR 233)

This case concerned an interpretation of the Paddy Lands Act. In this case the Petitioner
claimed that she was the tenant cultivator of a land named Bihanimulla and one Mrs.
Ariyatilleke was her landlady. The petitioner complained to the Assistant Commissioner of
Agrarian Services that she had been evicted from the land by the 7th and 8th Respondents. The
Commissioner upheld this claim. The 7th and 8th Respondents then appealed against this
decision to the Board of Review purporting to exercise this right of appeal under Section 4(1A)
(c) of the Act.

However, Counsel for the Petitioner submitted that this section gave a right of appeal only to
the landlord or to the person evicted. The 7th and 8th Respondents did not fall into either
category. The relevant section of the provision read “If such landlord or the person evicted is
aggrieved by such decision, he may, within thirty days of the communication of such decision
to him, make a written appeal from such decision to the Board of Review”.

The Court upheld this submission. Tennakoon CJ stated

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 “…..Counsel for the respondent urged that this is an obvious omission on the part of the
draftsman and it could not have been the intention of the legislature to deprive a person
in the position of the 7th and 8th respondents of a right of appeal. He suggested that the
words of the section may be altered or added to, in order to carry out what he said was
the intention of the legislature. Assuming that such a power exists in the Courts, this
clearly is not an instance of a case where such a power can be exercised. It is not at all
clear what the intention of the Legislature was. On a reading of section 4 (1A) (a), (b)
and (c) one gets the impression that the complaint under section 4 (1A)(a) can only be a
complaint of eviction by or at the instance of or for the benefit of the landlord; for among
other things, under (c) only the landlord and persons evicted are given an opportunity of
being heard and a right of appeal; but the provisions of section 4 (1A) (d) (ii) seem to
imply that the inquiry under 4 (1A) (a) may also extend to cases in which the landlord
himself has nothing to do with the eviction. There is apparently some confused drafting
here. In this state of things the intention of the legislature being somewhat unclear, one
is not able to say with assuredness that the legislature clearly intended to give a right of
appeal to every person aggrieved by an order of the Commissioner, in addition to the
landlord and the person evicted. Accordingly, I would read section 4 (1A) (c) as it
stands, without any interpolations to give effect to the supposed intention of
Parliament…”

Note that in this case where the statute was ambiguous, the court was not prepared, as Counsel
for the Respondents urged, to alter or amend the statute in order to carry out the ‘intention’
of Parliament. It accordingly held that the Board of Review had no jurisdiction to make the
order.

Nilamdeen v. Nanayakkara (76 N.L.R 169)

In this case the provisions of the Rent Restriction Act were considered. The relevant provisions
of the Act stated that where a tenant has been in arrear in the payment of rent after it has become
due (for the period specified in the Act) he forfeits the protection given by the Act.

In this case the plaintiff had let his premises to the defendant. The defendant has fallen into
arrear for a period of more than three months. The plaintiff gave the defendant notice to quit
but the defendant paid all arrears after receiving the notice and before the action was instituted.

In an earlier case on similar facts, the Court had held that if the tenant pays the arrears before
the action is instituted he is not liable to be evicted. In that case the judge had based his decision
on what he thought was the intention of the Legislature. However, some later cases had taken
a different view. In the present case Fernando P followed the later cases and stated that “…….
The material point of time for the determination of the question whether a tenant is in arrear in
payment of rent is the time the cause of action arose ….”. He went on to say “…… We do not
think, …...that we are free to speculate on the intention of the Legislature”.

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1.2 The Golden Rule

Maxwell says that “The so-called ‘golden rule’ is really a modification of the literal rule”3. The
Literal rule is applied on the assumption that statutes are clear and precise in their language and
that it is possible to ascertain their meaning. However, this is not always so. Sometimes a
statute could be badly drafted and ambiguous, in which case its literal meaning could lead to
an absurdity and a situation which Parliament clearly did not intend, or the words of one part
of the statute may be contradictory to the words in another part. In such situations the courts
have evolved what is known as the Golden Rule of statutory interpretation.

According to the Golden Rule, a statute must be interpreted in such a way as to avoid absurdity
even though it may not be a literal construction. The usual method of applying the Golden rule
is to ignore words which are in the statute or to read in words which are not there. However,
Cross says, ‘……….. it should be emphasized that when the rule is used as a justification for
ignoring or reading in words resort may only be made to it in the most unusual cases” 4.

The following Sri Lankan cases illustrate the Golden Rule.

Ellawela v. Wijesundara (74 NLR 265)

Section 13(3) (f) of the Ceylon (Constitution) Order in Council, 1946 laid down that a person
shall be disqualified from being elected to the House of Representatives if, during the period of
seven years immediately preceding, he has served a sentence of imprisonment for a period of
three months or more imposed by a court in respect for an offence punishable by a term of
imprisonment of more than twelve months.

The appellant was convicted of an offence punishable with imprisonment for a term of more
than twelve months. He was sentenced to prison for a term of three months. However, he was
actually imprisoned for a period of 76 days as he earned a remission under the Prison Rules.

The question which arose was whether he was disqualified under section 13(3)(f) of the
Constitution as he had actually served only 76 days and not three months. Counsel for the
appellant argued that the section must be interpreted to mean that the person concerned must
have actually been in prison for every day for a period of three months.

However the Court rejected this argument. H.N.G. Fernando CJ quoted Sansoni J in the case
of Samaraweera v. Jayawardene (89 N.L.R. 241), where he said.
“All that the words mean is that the prisoner should have finished serving the sentence
in the sense that there should be nothing left for him to do in the matter of serving it. He
obviously cannot insist on remaining in prison if the law required that he be released.

3
Maxwell on the Interpretation of Statutes, 12th ed, page 43.
4
Sir Rupert Cross, Statutory Interpretation, (1976) , page 15
4
 The serving of the sentence has, then, in every respect been complete. If one were to
adopt the other view there would be few cases where a prisoner could be said to have
completed serving his sentence of imprisonment, because in the great majority of cases
there would be remissions by operation of law, viz. by reason of good conduct. The
words used are not “served every day of the term of the sentence of imprisonment” or
similar words, but if the argument for the appellant is to be accepted that is how the
provision should have been drafted.”

Fernando CJ considered the history of the provision (page 271) and observed

“Thus, the language of the section does not intrinsically reveal any intention that the
actual period spend in prison is a matter relevant to the disqualification, and the history
of the law relating to the disqualification established only an intention to continue the
period of disqualification beyond the point when a person is serving a disqualifying
sentence.

For these reasons I hold that although the appellant was actually imprisoned only for a
period of 76 days, he completed the serving of the sentence for a term of 3 months
imposed by the Court, and that he was disqualified for election as a Member of
Parliament during the period of 7 years after his release from prison.”

United Industrial, Local Government and General Workers’ Union v. Independent

Newspapers Ltd. (75 NLR 241)

The Court of Appeal Act No, 44 of 1971 came into effect on 15th November 1971. Section 8
(1) (d) of the Act gave the Court of Appeal the discretion to grant leave to appeal from any
judgment of the Supreme Court. The appellant trade union sought to appeal from a judgment
of the Supreme Court delivered on 13th October 1971. Counsel for the respondent newspaper
company argued that since the Act came into effect on 15th November 1971, the Court of
Appeal had no jurisdiction to grant leave to appeal from judgments of the Supreme Court
delivered before that date. Prior to the enactment of the Court of Appeal Act, appeals lay to
the Privy Council, Counsel for the Respondent argued that between 13th October an 15th
November the applicant had a right to appeal to the Privy Council. The Court rejected this
contention.

Fernando P stated that the main question to be answered is what the meaning of the word
“judgment” is as it appears in section 8 (1)(d)

He went on to say

“The legislature, if it intended to restrict the right of aggrieved persons to appeals against
judgments delivered after the Act came into operation, could without any difficulty have
made its intention obvious by the use of appropriate qualifying words. In the Absence
of any qualification. We see little justification ourselves to place a restriction on the right
as contended for by the respondent.”
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Fernando P further pointed out that the applicant had only 32 days in which to file and appeal
to the privy council and the legislature must be presumed to have been aware of these
difficulties. He cited the words of Lord Cairns in Hill v. East end West India Dock company
L R (1884) 9 A, C, at 456.

Where there are two construction the one of which will do, as it seems to me, great and
unnecessary injustices, and the other of which will avoids that injustice, and will keep
exactly within the purpose for which the statute was passed, it is the bounden duty of the
Court to adopt the second and not to adopt the first of those constructions.

We think that to place on the expression “judgment” the restrictive meaning of a

judgment delivered on or after the date the new Act came into operation would be to
work injustice on persons like the applicant who immediately before the time the Act
came into operation had certain rights vested in them to peruse remedies before another
court, but who, immediately after that Act came into operation, lost those rights by
reason of the abolition of the jurisdiction of that Court if they are left without the benefits
of recourse to the Court that was, for all practical purposes, its substitute.

1.3 The Mischief Rule

The Mischief Rule was first formulated in an English case in 1584. In this case it was held that
in interpreting statutes four things have to be looked into, Firstly, what was the common law
before the statute was passed5. Secondly, what was the “mischief” or defect for which the
common law did not provide. Thirdly, what remedy did Parliament decide upon to cure that
“mischief”. Fourthly, what was the reason for that remedy. In other words, the court must look
to the legal situation before the passing of the statute, determine the problem which the statute
sought to address and the method of resolving that problem, and give effect to the intention of
Parliament in resolving that particular problem.

Having found the answers to these four questions, the court must interpret the statute in such a
way that it will “suppress the mischief and advance the remedy”. Dias says “The approach here
laid down clearly contemplates inquiry into the policy and purpose behind the statute”6. In the
context of many contemporary statutes which deal with complex social and economic
problems, this approach is probably the best today.

Several Sri Lankan cases can be cited as examples of this rule. The cases of Kuma v. Banda
and Rana v. Kribindu deal with the Kandyan law. As you will learn in the course in
Introduction to the Laws of Sri Lanka, the Kandyan law, one of the indigenous systems of law

5
Note that in this context: common law” means the non- statutory or judge made law of England
6
Dias, Jurisdiction, 5th ed, page 175
6
in Sri Lanka, was statutorised by the British. In these cases the courts were called upon to
interpret these statutes and in doing so they considered the past history of this system of law.

Kuma v. Banda (21 NLR 294)

In this case a father (the appellant) was claiming a right to inherit the property of a son. Under
the Kandyan Law a father cannot inherit the property of an illegitimate child. The issue in this
case was “is the child legitimate or not under the law?”

Prior to the Kandyan Marriage Ordinance No. 3 of 1870, there was no requirement that a
marriage should be registered. A marriage was considered valid if the necessary customs and
other requirements were fulfilled7. However, the Ordinance declared that no marriage should
be valid unless it is registered and thereafter the only way in which one could contract a valid
Kandyan marriage was by registration.

Counsel for the appellant argued as follows. (see page 296)

“……...in spite of the Kandyan Marriage Ordinance, No. 3 of 1870, the mutual rights of
inheritance between parents and children do not depend upon the question whether the
union of the parents was registered as a marriage under that Ordinance, but rather upon
the question whether the union was in accordance with the principles of Kandyan
customary law. He maintains that, when the Ordinance enacted that the validity of a
marriage should depend on its registration, it had in mind validity simply from the point
of view of the wife. It was not intended …... to affect the legitimacy of the children of
the marriage or their rights of inheritance. To put the matter in another way, he would
say that, though registration of a marriage would or itself insure legitimacy to the
children born of that marriage, such registration is not the only source of legitimacy, and
that the children born even of an unregistered marriage are legitimate (or deemed to be
legitimate) if the customary requirements of the Kandyan law have been observed”

Bertram CJ pointed out that

“…. Legitimacy, in all English legislation on the subject ………. Has always been
corollary of marriage, and inheritance, subject to special exceptions, always depends on
legitimacy. Under these exceptions – sometimes customary, sometimes statutory – an
illegitimate child may have certain rights of inheritance, but this does not affect the main
position. [Counsel for the appellant] however, seeks to impute a special construction of
the ordinance, from a consideration not of the words of the ordinance, and but of the
history of the subject to which it relates, and not the whole history, but a part of it only
…….”

7
You will learn more about this in the course on Family Law
7
 The basis of this whole case of a suggestion that in the Kandyan law inheritance did not
depend upon legitimacy, and that under certain circumstances children who were not
legitimate were in the same position from the points of view of inheritance as those who.
Presupposing, therefore, these special classes of children, who, though not legitimate,
were entitled to inheritance, he suggests that the whole method of stating the legal
position should be revised. Inheritance, he says, should be considered as depending not
upon legitimacy, but upon parentage, unless there is something in the mutual position of
the parents [as regards cast and family consent] which disentitles their off spring to
succeed to them or them to succeed to their off spring. The proposition that in Kandyan
law there existed a special class of children, who, though not legitimate, were entitled to
full rights of inheritance, is to my mind at least, dubious. But, whether it is dubious or
not, I propose to show that if the whole history of the subject be examined, and if the
words of the ordinance are construed in the right of this history, it will appear that its
intention was that legitimacy was to be dependent upon registration of marriage, and
that {subject to the special rights of illegitimate children as illegitimate children]
inheritance was to be depend upon legitimacy.

Bertram CJ quoting Haydon’s case stated that when the meaning of an ordinance is doubtful it
is legitimate to inquire in to its history. He considered the whole history of the question in the
present case, including the original Kandiyan law of marriage and the effect of the ordinance.
(See page 304). The court rejected the arguments of council for the appellant and dismissed the
appeal.

Rana v. Kiribindu (79[2] NLR 73)

Under the Kandyan law if a woman married in diga she left the mulgedara and went to live with
her husband. She also lost all rights of inheritance to her father’s property. “The conducting
of a wife to and living in the husband’s house, or in any family residence of his, or if he does
not own a house and land, the taking her as his wife, and the conducting away from her family
to a place of lodging constitutes a diga marriage. The predominant idea is the departure or
removal from the family or ancestral home”. [see page 75]

In this case the despondence had married, and the marriage certificate stated that the marriage
was in diga. However she did not leave the mulgedara. Thereafter her husband died and soon
after her father also died. The question in issue was whether under the circumstances she
became entitled to a share of her father’s land. The court was called upon to interpret section
9 (1) of the Kandyan law Declaration and Amendment ordinance of 1938. This ordinance was
stated to be “An ordinance to declare and amend the Kandyan law in certain respects”. In this
case too, the court considered the state of the law before the ordinance was passed.

Thamotheram J considered various authorities and said

I therefore have no hesitation in holding on the strength of these authorities that in cases
governed by the amended Kandyan an Marriage ordinance of 1870 the production of a
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 diga marriage certificate is of itself sufficient to prove not only that the wife was married
in diga but also that she forfeited her paternal inheritance. The burden thereafter shifts
to her or to those claiming through her to prove that the subsequent conduct of the parties
was such that no forfeiture in fact took place.

Section 9[1] of the Kandyan Law Declaration and Amendment Ordinance No. 39 of 1936 states.

A marriage contracted after the commencement of this ordinance in binna or diga shall
be and until dissolved shall continue to be, for all purpose of the law governing the
succession to the estates of deceased persons, a binna or diga marriage as the case may
be and shall have full effect as such, and no change after any such marriage in the
residence of either party to that marriage or of any other person shall convert or be
deemed to convert a binna marriage in to a diga marriage or a diga marriage in to a binn
a marriage or cause or be deemed to cause a person married in diga to have the rights
of succession of a person married in binna, or a person married in a binna to have the
rights of succession of a person married in diga.

The position before this Amendment was that although the marriage certificate stated whether
the marriage was in the diga or binna it was permitted to prove by oral evident that at the time
of the marriage the bridegroom did not lead the bride from her parental home and therefore the
marriage was not in fact in diga and she did not forfeit her rights of inheritance. However, after
this amendment it was no longer possible to contradict the certificate or marriage in this manner.

The court had to then consider the question “could a bride married in diga regain her lost rights
by returning to her parental house after marriage?” [ss page 79]. Before the amendment this
was possible. However, this was no longer possible in view of the words of Section 9 [1] which
read as follows:

and no change after any such marriage in the residence of either party to that marriage
or of any other person shall convert or be deemed to convert a binna marriage into a
diga marriage or a diga marriage into a binna marriage or cause or be deemed to cause
a person married in diga to have the rights of succession of a person married in binna,
or a person married in binna to have the rights of succession of a person married in diga.

The next question for the courts to consider was, “is this limitation on changing the nature of
the marriage and also its consequences applicable even after the marriage is dissolved?” The
court found the answer to this question in the following words of the section [note the underline
words]:

A marriage contracted after the commencement of this ordinance in binna or diga shall
be and until dissolved shall continue to be, for all purpose of the law governing the
succession to the estates of deceased persons, a binna or diga marriage as the case may
be, and shall have full effects as such;

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Therefore the position is that as long as the marriage lasts, there can be no subsequent in its
nature. However, after the marriage is dissolved the bride can regain her lost rights. In the
present case since the marriage had been dissolved on the death of the husband, the respondent
was permitted to regain her lost rights of inheritance to her father’s property. Thamotheram J
said,

“In our view the words – ‘until dissolution’ is a limitation imposed to permit persons re-
acquiring lost rights after the dissolution of marriage. No doubt the Kandyan Law
Commission had recommended a more far reaching change in the law but the legislature
had thought fit not to adopt the recommendation in its entirety. This is something the
legislature can do and may have had good reason for doing so’.

Ellawela v. Wijesundara (74 NLR 265)

Refer this case under the section on the Golden Rule. This case is also relevant under the
Mischief Rule as the court considered the history and intention behind the statute. [See page
271]

See also: Fernando and Another v. Mohideen Ismail [1982] 1 Sri L.R. 222

2. Presumption of Statutory Interpretation

2.1 The Ejusdem Generis Rule

Refer the explanation of this rule on page 29 of your course materials. The following case
illustrated this principle.

Charlis Appluhamy v. Seneviratne (65 NLR 455)

This case concerned an interpretation of Section 4 [c] of the Vagrants Ordinance which reads
as follows:

Every person willfully exposing his person in an indecent manner, or exhibiting any
obscene print, picture or other indecent exhibition in any street, road, highway, or public
place or elsewhere, to the annoyance and disgust of others…….

The accused appellant was convicted of wrongfully exposing his person in an indecent manner
but it was not done in a public place. On appeal Counsel argued that the word “elsewhere” in
the above section means a “public place” and stated that the ejusdem generis principle should
be applied in construing the meaning of the word “elsewhere” in the context.

The Court rejected this argument. Tambiah J stated:

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 “I cannot agree with this argument. The words ‘street, road, highway, public place or
elsewhere’ in the context of section 4 (c) of the Vagrants Ordinance, do not, in my view
belong to the same genus. If there is no mention of a genus in a sentence, there is no
room for the application of the ejusdem generis principle …. Any attempt to construe
the word ‘elsewhere ‘in the context to mean a public place would not only lead to an
absurdity but would also render the latter part of the section meaningless and
ungrammatical”.

The appellant’s counsel also contended that the whole scope of the Vagrants Ordinance is to
prevent idling or doing obnoxious acts in a public place. But this contention is untenable since
certain acts done in private premises are also penalized by the ordinance.

2.2 The Generalia Specialibus non Derogant Rule

See the explanation of this rule on page 30 your course materials. The following cases illustrate
this rule.

Cassim v. OIC Moratuwa Police Station (73 NLR 228)

In this case the appellant was convicted of selling a box of matches for six cents when the
maximum prices fixed by the controller of priced was five cents. Section 4 of the Control of
prices Act No. 29 of 1950 empowers the Controller to fix the maximum price at which any
article can be sold.

Before the price control Act was passed parliament had passed another act relating specifically
to the manufacture of matched ordinance No. 9 of 1938 which empowered the Minister to set
the price at which matched could be sold. A regulation had been made by the Minister fixing
the maximum price of matches. Siva Supramaniam J said:

“Under the rule of construction ‘Generalia Specialibus non derogant’ the general power
conferred on the Controller of Prices under the control of prices Act would not have
taken away the special power conferred on the Minister in respect of matched under the
earlier statute”.

Ordinance No. 9 of 1938 was repealed in 1963 and a new act called the Manufacture of Matches
[Regulation] Act No. 6 of 1963 was enacted in its place. This Act gave the Minister the same
powers. Siva Supramaniam J stated:

“The legislature could not have indented to vest the same power at the same time in two
different authorities.

The special power vested in the Ministry under the later enactment No. 6 of 1963 is
inconsistent with the general power conferred on the Controller of prices under the
earlier enactment No. 29 of 1950.

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 The general power must therefore be deemed to be modified pro tanto in respect of the
control of the price of matches.

I am of opinion, therefore that the price control order in respect of matches made by the
Controller was ultra vires his powers under the Act. The appellant, consequently,
committed no offence by contravening it”.

Ghouse v. Ghouse (1988 1 SLR 25)

The Respondent was the adopted son of a Muslim couple, Hafila Ghouse and Abdul Majeed
Mohamed Ghouse, both deceased. He was adopted under the provisions of the Adoption of
Children Ordinance No. 24 of 1941 as amended by Ordinance No. 54 of 1943. Section 6[3] of
the Act stated that “Upon an adoption being made, the adopted child shall for all purposes
whatsoever be deemed in law to be the child born in lawful wedlock of the adopter”. “Therefore
the Respondent claimed that he was the sole intestate heir to the estate of Hafila Ghouse as her
son.

The Appellant who was also claimed to be the intestate heir to this estate challenged the
Respondent’s claim on the basis that the Muslim Law did not recognize the inheritance rights
of adopted children and therefore the respondent was not entitled to inherit the estate of the
deceased.

The question before the courts was “Is a child adopted under the provisions of the Adoption
ordinance by a Muslim couple entitled to succeed to the in testate of his adoptive parents?”
[See page 27]. The decision of the court was based on the following points:

1. The Muslim Intestate succession Ordinance No. 10 of 1931 states:

It is hereby declared that the law applicable to the intestacy of any deceased Muslim
who at the time of his death was domiciled in Ceylon or was the owner of any immovable
property in Ceylon shall by the Muslim law governing the sect to which such deceased
Muslim belonged.

2. Sharvananda CJ agreed that a Muslim too is able to adopt a child under the Adoption
Ordinance [See page 32] However, he referred to several authorities on Muslim Law
and stated that the Muslim law did not recognize the concept of adoption and therefore
did not recognize that adopted children were entitled to inherit the property of their
adoptive parents. In the Muslim law “Blood-relationship, except in the case of husband
or wife of the deceased is basic to the right of succession to the in testate deceased”. [See
page 29]

3. Therefore the two statutes. The Adoption of Children Ordinance and the Muslim
Intestate Succession Ordinance are in conflict with each other. He stated at page 33.

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 Section 6[3] provides that upon an adoption order being made the adopted child shall
for all purposes whatsoever be deemed in law to be the child born in lawful wedlock of
the adopter. A literal application of this provision will enable a child adopted by Muslim
parents to succeed to the in testate estate of this deceased parents in total derogation of
the Muslim law of in testate succession which does not recognize of the adoption for
purpose of inheritance. Such an eventually in inconceivable in Muslim Law which
postulates ties of consanguinity8 to qualify oneself for in testate succession. Counsel for
the respondent rightly conceded that according to the Quoranic law, an adopted child is
not recognizable for the purpose of intestate succession. The issue is whether the
adoption Ordinance has abrogated the prescription of Muslim Law of intestate
succession that and adopted child cannot inherited his adopting parent’s estates. Has
section 6(3) of the Adoption Ordinance of 1941 impliedly repealed the principle of
Muslim law of intestate succession relating to the inability of an adopted child to inherit
the properties of his deceased adopting parents?

4. Counsel for the Appellant argued that the adoption ordinance had not specifically
repealed the relevant provisions of the Muslim in testate succession ordinance and cited
the principle of generalia specialibus non derogant.

5. The court agreed with this argument and stated:

The principle generalia specialibus non-degogant sums up the presumption against

implied repeal. A subsequent general Act does not affect a prior special Act by
implication. A general provision should yield to a special provision. When a general
Act is subsequently passed it is logical to presume that the legislature has not repealed
or modified the former special Act unless it appears that the special Act again received
consideration from parliament.

The Muslim Intestate Succession Ordinance is a special law dealing with rules relating to
Muslim intestate succession as to who can or cannot inherit the property of a deceased
Muslim and in what proportion etc. As against this special law, section 6 of the Adoption
Ordinance is a general provision defining the incidents and consequences of an adoption
order …… The Adoption Ordinance does not manifest any intention in explicit language to
alter the special Act viz. the Muslim Intestate Succession Ordinance or to abrogate any basic
principle of Muslim Law. Under the Muslim law and adopted child cannot succeed on
intestacy. On the other hand, under the Adoption Ordinance an adopted child can succeed.
To this extend the Adoption Ordinance derogated from the Muslim law of intestate
succession. In accordance with the maxim generalia specialibus non derogant therefore,
nothing in the Adoption ordinance can derogate from the Muslim Intestate Succession
Ordinance and the former must yield to the latter whenever a dispute involving a question of
Muslim intestate succession arises.

8
Blood Relationship
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6. Therefore the court held that the adopted son was not entitled to inherit his parents’
estate on intestacy.

Wanasundera J dissented from this decision and held that the rule generalia specialibus
non derogant does not apply in this case. He took the view that there was no conflict
between the two statutes and said

“[It was] submitted that it is possible for the two enactments to be read harmoniously
and that there is no warrant for the application of the gneralia specialibus principle …….
Once the adopted child is regarded in law as a son, then the provisions of the Muslim
Intestate Succession Ordinance can continues to operate on that basis. I am inclined to
agree ……. that this is the correct method of approaching this matter”.

See also: Weeraratne v. Hon. Percy Colin Thome and Three Others [1988] 2 SLR 151

Selvachandran v. Silva (1977) 79 NLR 229

Further reading :

1. Glanville Williams, Learning the Law, 14th ed

2. Legal
Maxwell on Method 1412 of-Statutes,
the Interpretation Block12 I th ed, pages 28-47
Additional Notes
3. R.W.M. Dias, Jurisprudence, 5th ed., Chapter 8.

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