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Present : Ennis and De Samp&yo JJ.BANDARANAYAKE v. BANDARANAYAKE
129—D. C. Kandy, 29,546.
Kandyan teaman marrying a Low-country Sinhalese—Matrimonial rightsof the parties.
Where aKandyanSinhalesewoman. marries a low-cotmtry
Sinhalese, her matrimonial rights are governed by the Kandyanlaw and not by Ordinance Ho. 15 of 2876.
A KandyanSinhalese is nota personof a differentrace or
nationality from a low-country Sinhalese.
HE facts are set out inthejudgment oftheDistrict Judge
(W. S. de Saram, Esq.):—
The plaintiff, a Kandyanlady,was marriedtothedefendant, a low-
country Sinhalese, and’4 theylived together forfifteenor sixteen years.
Theplaintiffhadsome property ofher ownin the KandyDistrict.
Defendant had some property atHcn&ratgodaintheColombo District.
In June, 1919, the plaintiff and defendant gave s joint and severalpromissory note for Rs. 2,000 -to Y. C. Y, Muttiah Pulle. Accordingto the .plaintiff she got nothing out of that money which was spententirely by the defendant on a shooting trip to Polontiaruwa andTrincomalce,on which trip she accompaniedhim. Accordingto the
defendant he spent that money not od the shooting trip, hut on theirlands.
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Bandar a-nayake v.Bandara-nayake
I would, therefore, fiuil that the defendaut got all the money ou thenote and gpent it for hia own purpo&es and not on the lands. Certainlynot on plaintiff's lands. I believe the plaintiff with regard to thismoney. The note was subsequently sued on, and the assiguee of thedecree who happened to be' plaintiff's father obtained payment in fullby seizing money lying to the credit of the defendant in* a testamentarycase. The defendant has thus discharged the note. He 'claims inreconvention repayment to him by the- plaintiff on the ground thatthe money was really raised by him for. the improvements of plaintiff’slands. As I find that the money was not raised for any such purpose,the claim in reconvention must fail, nor can he succeed in claiming arefund of part of the amount, as it is quite clear the money was raisedforhimselfalone. And Ibelieve that plaintiff only joined insigning
thenote inorderto obtainthenecessary credit for her husband.
A couple of months after the note, in August, 1919, the plaintiff anddefendant raised another Bs. 2,000 on a bond. The lands hypothecatedbeing those of the plaintiff. According to the plaintiff she gdt noneof that money which was spent entirely by the defendant for his ownpurposes, mainly in) manuring his Henaratgoda property.
In January, 1921, the plaintiff discharged the bond. It makes nodifference that she did so without waiting to be sued as an obligorunder thebond.She hadtopay – the amount, and it is onlynatural
sheshouldhavedone so,asshe states, to prevent the riskof the
properties being sold. In September, 1921, the plaintiff obtained adivorce, a suggestion for the defence is that owing to that fact she isnow falsely attempting to repudiate her liabilities. That contentionhas to be considered, but it may equally be said that now the parties havebeen divorced, the plaintiff is obliged to seek her legal remedy torecover her money. Judgment was entered for the plaintiff.
Pereira, K.C. (with him E. W. Perera and Weerasooriya), for theappellant.
Drieberg, K.C. (with him Nacaratnam), for the respondent.
October 30, 1922. Ennis J.—
The plaintiff,respondent,in this case was at one time thewife of
the. defendant,appellant.Shesued the defendantto recover the
sum of Bs. 2,425, which she said she had been compelled to pay tosave certain landed property from seizure and sale under a mortgagewhich she had. given to secure the repayment of a sum of Bs. 2,000advanced to her husband. Various issues of fact were framed Inthe Court below as to whether the money lent did, in fact, go tothe husband, and whether he spent it on his own property; andthe learned Judge in this matter has believed the plaintiff anddisbelieved thedefendant,andhas found that themoneywas in
fact borrowed by the defendant,, and that he spent it on his ownlands. In the Court below the defendant claimed Bs. 2,000 inreconvention, and his claim was dismissed. He now appeals, andon appeal it was argued that the Kandyan law did not apply tothe present case, as the plaintiff, a Kandyan, on her marriage tothe defendant,a low-countrySinhalese, took thestatusof her
husband, and, therefore, that the general law of the country appliesto this case, and that the plaintiff cannot maintain the action.
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No issue on this point was raised in the Court below; no evidencetaken in the matter, and further there was a distinct claim of somecharacter by the defendant in reconvention against the plaintiff,which was not withdrawn, but which was decided by the Judgein giving judgment. In my opinion it is too late to raise thisquestion now. But as it has been raised I would set out, as faras I 8m able to, the gist of the contention, which was* this: Thatunder section 2 of the Ordinance No. 15 of 1876 the wife is to betaken to be of the same race and nationality as her husband forcertain purposes. But except for this purpose, and presumablythe purpose is the question of the status of the wife the Ordinancedoes not apply to Kandyans.. Mr. Pereira, for the appellant, wasunable to maintain that the parties were of a different nationalityor of a different race. But he suggested that there was somedifference of status which would bring in the general law as betweenhusband and wife. I myself am unable to see how the section ofthat Ordinance applies to the marriage between the plaintiff andthe defendant in the present case. On the question of fact there isno reason to interfere with the finding of the learned Judge. Itwas a question of belief in the evidence, and the Judge believed theplaintiff in preference to the defendant. The question of the claimin reconvention was necessarily not pressed in view of the argumentled on appeal.
I would dismiss the appeal, with costs.
Bandara-tuiyake ».Bandaru-aya ke
Be Sampayo J.—
The special case provided for bv section 2 of the Ordinance No. 15of 1876 is that of a woman who marries a man of a different raceand nationality from her own, in which case the Ordniance declaresthat she shall be taken to be of the same race and nationality asher husband. The section goes on to say that, save as alreadyprovided, the Ordinance shall not apply to- Kandyans. Judicialauthority so far has been that a low-country Sinhalese is not aperson of a different race or nationality from a Kandyan Sinhalese,and that, therefore, under the provisions of the same section thematrimonial rights of a low-country Sinhalese husband and hisKandyan wife are to be governed by the Kandyan Law'. See thecase of Manikkan v. Peter. 1 I think we ought to follow that decisionbecause not only is it reasonable, but it accords with the view thatought to be taken in regard to the historical relations betweenlow-country Sinhalese and Kandyan Sinhalese. As my brother hasalready remarked, the question is not fit to be fully argued anddecided in this case, because it was not raised in the Court belowand referred to in the judgment of thq Pi Strict Judge, and it is noteven mentioned in the petition of appeal. I agree that this appealbe dismissed, with costs.
1 (1899) 4 N. L. B. 243.
BANDARANAYAKE v. BANDARANAYAKE