Dingiri Amina v. RainalUaka
1961Present:Sinnetamby, J., and Tamblah, J.
DINGIRI AMMA, Appellant, and RATNATILAKA and others,
S. C. 36 (Inty.)—D. C. Kurunegala, 8067}P
Kandyan Law—Daughters married in diga—Re-acquisition of binna rights—Proof—
Evidential value of marriage certificate—Kandyan Marriages Ordinance,
No. 3 of 1870 (Cap. 36), s. 36.
Under the Kandyan Law a diga married daughter would re-acquire binnarights if the father, during his lifetime, brought her into the mulgedera afterthe dissolution of her marriage and had her married in binna. Thereafter,if it be contended that the daughter, who was married in binna, forfeited herrights, it must be shown that she severed herself from her parental home beforethe death of the father.
A diga married daughter cannot re-acquire binna rights unless it is shownthat she was not only received back at the mulgedera by her father and thosewho were entitled to the inheritance but also that they acquiesced in her re-acquiring binna rights and agreed to share the inheritance.
When a binna marriage certificate is produced, a presumption arises byvirtue of section 36 of the Kandyan Marriages Ordinance that there was a properbinna marriage. This presumption, however, can be rebutted by clearevidence to the contrary.
The departure of a binna-married daughter from the mulgedera, after herfather’s death, does not entail any forfeiture of any rights which she mighthave acquired before her father’s death.
TAMBIAH, J.—Dingiri Artvma v. JRcUnatilaka
Al PPEAL from an order of the District Court, Kurunegala.
Thiagalingam, Q.C., with E. A. G. de Silva, for the 1st Defendant-Appellant.
R. Gunaratne, for the Plaintiff-Respondent.
Cur. adv. vvlt.
June 2, 1961. Tambiah, J.—
The plaintiff brought this action to partition the field called Asseddu-mekumburo and Pillewa, depicted as lots A, B, C and D in Plan No. 3374,marked X in the course of the proceedings. The plaintiff stated thatthe original owner of the land was one Mudiyanse who died intestateleaving three daughters, Kumarihamy, Ukku Amma and Dingiri Amma.The plaintiff, who claimed title through Kumarihamy and Ukku Amma,stated that all three daughters of Mudiyanse were married in diga andthus he was entitled to 2/3ds share of the said land while the 1st,2nd and 3rd defendants were entitled to 1 /3rd share of the said land.
The first defendant-appellant, in her answer, stated, that Kumarihamyand Ukku Amma were married in diga, but Dingiri Amma was marriedin binna, and consequently, she claimed the whole of the landthrough Dingiri Amma. The first defendant-appellant further assortedprescriptive title over the same land.
The following points in dispute were raised at the trial:—
On the death of Mudiyanse, did his daughters Dingiri Amma,
Ukku Amma and Kumahamy, alias Kumarihamy, become
entitled to a l/3rd share each of the land sought to be
Did Dingiri Amma, Ukku Amma and Kumahamy, alias Kumari-
hamy, or any one or more of them, forfeit their rights by going
out in diga ?
Did all, or any one or more of the said three persons, regain binna
(а)acquiescence on the part of Mudiyanse or all or any one or
more of the sisters ;
(б)by possessing the family lands with the acquiescence of the
other sisters ?
Did plaintiff plant lots A and C and make the buildings on lot C
with the acquiescence of Mudiyanse ?
If so to what compensation is he entitled to ?
Prescriptive rights of parties ?
Were Ukku Amma and Kumahamy, alias Kumarihamy, married in
diga during the lifetime of their father and forfeit their rights ?
TAMBIAH, J.— Uingiri Ammo. v. Ratnatilaka
Was Dingiri Amma married in binna during the lifetime of her
Has the 1st defendant been in exclusive possession of the land
sought to be partitioned from 1939 and acquired a title to it by
Did Dingiri Amma go out in diga with Kiri Banda in the year 1926?
If so, did she forfeit her rights ?
Even if she subsequently contracted a binna marriage, did she
thereby regain binna rights ?
In the1 course of the trial, evidence was led to show that Kumarihamyand Ukku Amma were married in diga. Dingiri Amma, althoughmarried in diga first, came back to the mulgedera after the dissolutionof her first marriage. The first defondant-appellant produced a marriagecertificate, marked 1D7, which showed that Dingiri Amma was marrieda socond time in binna to a man called Ran Banda.
The main points at issue at the trial were whether Dingiri Amma hadre-acquired binna rights in spite of the fact that she had contracted adiga marriage earlier and also whether Ukku Amma and Kumarihamy.re-acquired binna rights although they had contracted diga marriagesearlier. The prescriptive rights of the parties were also at issue at thetrial.
The learned judge, who tried the case, has not only misdirected himselfon questions of law, but has also failed to answer some of the relevantissues in the case and, further, has failed to evaluate the evidencein the proper perspective. The learned judge took the view that noneof the three daughters of Mudiyanse forfeited their rights as theywere all married in diga and that consequently, there was noquestion of their acquiring binna rights. The learned judgefurther misdirected himself in holding that although Kumarihamy andUkku Amma were married in diga during the lifetime of their father, they .did not forfeit their rights as they came and lived in the mulgedera.The learned judge also erred in holding that although Dingiri Amma wasmarried in binna the marriage was in fact a diga marriage as she hadsubsequently left the mulgedera.
The learned judge has failed to evaluate the evidence given bythe witnesses and further has failed to consider the evidence given byAppuharay, a witness called on behalf of the first defendant. He has alsofailed to answer the important issue whether Dingiri Amma re-acquiredbinna rights. As the learned judge has misdirected himself both onquestions of law as well as on questions of fact and has not come to aproper finding on title, any finding of the learned judge on the questionof prescription also fails to stand the test of careful scrutiny.
TAMBIAH, J.—Dingiri Amma v. Ralnatilaka
The evidence led in the case discloses that Dingiri Amma, after thedissolution of her first marriage, came back to the mulgedera and livedwith Mudiyanse. The certificate of marriage, marked 1D7, produced bythe defendant-appellant creates certain presumptions which have to beexamined: In the case of Mampitiya v. Wegodapela et al. l, Ennis J.,after referring to a diga marriage certificate, stated “ In the absence ofevidence there would be a presumption that the terms of the contractrelating to residence had been carried out, but I can see no good reasonfor excluding oral testimony relating to the carrying’out of this term ofthe contract ”. In this connection, Section 36 of the Kandyan MarriagesOrdinance (No. 3 of 1870) (Cap. 36) enacts as follows :—
“ Tho entry as aforesaid in the register of marriages and in theregister of divorces shall be the best evidence of the marriage contracted
or dissolved by the parties, and of the other facts stated therein. If itdoes not appear in the register whether the marriage was contracted inbinna or in diga, such marriage shall be presumed to have beencontracted in diga until tho contrary be shown. ”
When the defendant produced the binna marriage certificate, marked1D7, the presumption arose that it was a proper binna marriage as under-stood in Kandyan Law and that the terms of the contract were carriedout. This presumption, however, could be rebutted by clear evidenceto tho contrary. The plaintiff led evidence to rebut the presumptionbut the defendant led evidence to show that Dingirihamy married inbinna with the acquiescence of her father.
A binna married daughter would re-acquire binna rights if the father,during his lifetime, brought her into the mulgedera and had her marriedin binna (vide Sawers’ Memoranda, etc. (Ondaatje’s Edn.) 2 ; Perera’sArmour 64-5 ; Niti Nighanduwa, translation by Le Mesurier and Pana-bokke, (Govt. Press) (1879) 36-40, 64, 66 ; Austin’s Appeal Reports 96 ;Perera’s Collection 182, followed in Babanissa v. Kaluhami2; Samara-kongedera Punchyralle. v. Punchy Menika (1828), Hayley (Sinhalese Lawsand Customs) Appendix H, note 10). Thereafter, if it be contended thata daughter, who is married in binna, has forfeited her rights, it must beshown that sho severed herself from her parental home before thedeath of the father. It is going out in diga and severance from themulgedera during the lifetime of the father which brings about forfeiture,and not merely a temporary departure, (vide Modder’s Kandyan Law .(2nd Edn.) at pages 430-43; and the cases cited therein). The departureof a binna married daughter, after the father’s death, does not entailany forfeiture as her rights would have crystallised at the time of herfather’s death (vide Niti Nighanduwa (supra) 35,61, 63 ; Perera’s Armour59 ; Siripaly v. Kirihamez). Further, in considering the question as towhether the two daughters of Mudiyanse, Kumarihamy and Ukku Amma,
1 (1922) 24 N. L. R. 129 at 135.2 (1909) 12 N. L. R. 105.
8 (1917) 4 C. W. R. 157.
Avaummah v. Solomonsz
who had admittedly married in diga, re-acquired, fcinna rights, it must beshown that they were not only received Jay Mudiyanse and those who wereentitled to the inheritance at the mulgedera but further that they acquies-ced in their re-acquiring binna rights and agreed to share the inheritance(Haytey (Sinhalese Laws and Customs) at page 385).
In view of the course we propose to sdopt, namely, to send this caseback for retrial, I do not wish to comment on the evidence ot the witnesses.The learned District Judge should have been guided by the principles ofKandyan Law set out above. The plaint in this case was filed almostten years ago and we regret that the parties have, after several years oflitigation, failed to reach any finality. It is not possible for us, sitting inappeal, to decide questions of fact which arise in this case without thebenefit of a proper finding of a judge of first instance. Therefore, weset aside the order of the learned District Judge and send this case backfor retrial before another Judge. The costs incurred up to date will boborne by the parties who fail in the suit unless the parties come to somesettlement in the course of the trial.
Sinnetamby, J.—I agree.
Case sent back for re-trial.
DINGIRI AMMA, Appellant, and RATNATILAKA and others Respondents