QRATT AEN J.—Dissanayake v. Pun chi M.enikke
Present: Gratiaen J. and Weerasooriya J.L. A. DISSANAYAKE, Appellant, and G. M. PUNCHI MENIKKE
et al., Respondents
S. C. 159—D. C. Kurunegala, 3,902
Kandyan Law—Binna marriage—Subsequently registered as Diga—-affect of suchregistration—Binna married daughter who leaves mulgedera—Her rights ofinheritance.
Where a Kandyan marriage contracted in binna was registered three yearslater and was described in the marriage register as a diga marriage—
Held, that the entry in the register as to the nature of the marriage wasrebuttable by other evidence.
Held further, (i) that the marriage, upon its registration, became valid as fromthe date of the original association of the parties as man and wife.
(ii) that a binna married daughter, who severs her connection with themulgedera after her father’s death, does not forfeit her paternal inheritance.
j^PPF.AT, from a judgment of the District Court, Kurunegala.
H. V. Perera, Q.C., with H. W. Jayewardene and D. R. P. Gocmetilleke,for the plaintiff appellant.
C. E. S. Perera, Q.C., with T. W. Rajaratnam and A. Nagendra, for the1st, 2nd and 5th defendants respondents..
Cur. adv. vult.
August 25, 1953. Gratiaen J.—
The property which is the subject matter of this action under thePartition Ordinance had admittedly belonged to a Kandyan villagernamed Mudalihamy who died on 30th October, 1886. Two sons namedYahapathhamy and Ukkubanda and a daughter Dingirimenika werethe legitimate children of his marriage with Lama Etana. Lama Etanasubse quently ggve birth to another child named Menuhamy, but, althoughMenuhamy was also regarded as a sister of the other children, the date ofher birth excludes the possibility of Mudalihamy having been her father.
GRATIAEN" J.—LHssanayake v. Punchi JMenilcke
The second son Ukkubanda died issueless after his father’s death.Mudalihamy’s estate therefore vested in Yahapathhamy and (providedthat she had not forfeited her inheritance) in Dingirimenika in equalshares. Dingirimenika purported to sell an undivided one-third share ofthe property to the plaintiff by P2 of 1945. On the basis of this title heroutstanding one-sixth share must be allotted to her son the 6th defendant.
The contesting defendants have succeeded to the interests of Mudali-hamy’s elder son Yahapathhamy. Their position is, however, that theyare entitled to the entire property because Dingirimenika forfeited hershare in the inheritance as a result of a diga marriage which she had con-tracted with the witness Appuhamy, the 6th defendant being a child ofthat union. The learned District Judge accepted this contention anddismissed the plaintiff’s action on the ground that the conveyance P 2executed in 1945 by Dingirimenika passed no title to any share in theproperty sought to be partitioned.
The main issue in the case was whether Dingirimenika’s marriage withAppuhamy was in fact a diga marriage. Mr. H. V. Perera concedes that,if that be the true position, the question of any subsequent re-acquisitionby her of binna rights does not arise upon the evidence in the case.
The 1st defendant, who is Yahapathhamy’s widow, gave evidencewhich, if true, completely destroys the plaintiff’s claim that Dingiri-menika’s marriage had been contracted in binna. She stated that, whereasthe mulgedera was admittedly situated in the village of Welikara, Dingiri-menika was “ given out in diga ” by her family to Appuhamy who, fromthe commencement of this association, lived with her in the neighbouringvillage of Kandagedera ; that their son the 6th defendant was born hiKandagedera and “ did not live in the mulgedera a single day ”.
The 1st defendant’s version is, to say the least, demonstrably exagger-ated. The 6th defendant’s birth certificate P 3 proves that he wasbom at Welikara on 26th August, 1903, and that both his parents wereresidents of Welikara during that period. Moreover, the 1st defendant’switness Kusalhamy, who is a son of Yahapathhamy, admitted undercross-examination that “Appuhamy, at the beginning, came and settleddown in Mudalihamy’s house (i.e., the mulgedera'). There their eldest sonGunerathhamy (the 6th defendant) was bom after about two years ofAppuhamy settling down there. Two or three years after the birth ofGunerathhamy, Appuhamy and Dingirimenika went to Kandagedera.They registered their marriage and went to Kandagedera ”.
The learned Judge, for the purpose of his decision upon this vital issue,appears to have accepted Kusalhamy’s evidence as substantially true.Indeed, this version is corroborated by the marriage certificate 1D7 whichproves that the marriage of Appuhamy and Dingirimenika was not re-gistered until ^Oth December, 1904 (i.e., nearly 16 months after the 6thdefendant was born), and that Dingirimenika had at the date of registrationbeen “ living as a married woman for three years ”. Upon these facts,the learned Judge accepted the submission made on behalf of the con-testing defendants that after the 6th defendant was born, “ the actuallegal marriage took place according to law and the husband and wife leftWelikara ”.
CrRATXAEN J.—JOissanayake v. Punchi Meniktce
The question to be decided is whether, upon the basis of these facts, themarriage of Dingiriru enike can properly be regarded as a diga marriage.It is certainly a point in favour of this argument that when her de factomarriage with Appuhamy was eventually legalised by registration it wasdescribed in the Register as a diga marriage. If I may respectfullyadopt, with the necessary variations, the observations of Pereira J. inSinno v. Appuhamy 1,“ this would be almost conclusive evidence had themarriage been contracted at the time it was registered, but this marriage wasregistered (three) years after it was contracted. In the circumstances, theentry in the marriage register as to the nature of the marriage isrebuttable by other evidence ”.
We are here confronted with yet another instance of the difficultieswhich arise when Kandyan villagers refrain from prompt compliance withthe strict provision of the Kandyan Marriage Ordinance whereby formalregistration is essential to the validity of “an association which a defacto husband and wife, as well as all their neighbours, regard as an honour-able union even without registration ”—Modder : Kandyan Law p. 256.
If one analyses the facts in the light of the intention of the parties tothe de facto marriage which was originally contracted in Welikara, it is notdifficult to appreciate that when Appuhamy and Dingirimenika appearedbefore the Registrar on 12th December, 1904, they could not have regardedthemselves as contracting a fresh marriage with effect only from that date;on the contrary, they intended merely to regularise their previous defacto marriage which they, and everyone else, considered to have honour-ably commenced when Appuhamy was first received in the mulgederaas her husband. The eldest child was bom in the mulgedera during thisbinna association; and though he became legitimated only upon the re-gistration of his parents’ marriage, he had already been acknowledged as aic child of the mulgedera ”. In the result, the registration of the marriagegave validity to the uninterrupted association which had originally com-menced in the mulgedera. Dingirimenika and her husband must there-fore be regarded, notwithstanding the entry in the marriage register andnotwithstanding their subsequent departure to Kandagedera, as having.married in binna. This marriage, upon its registration, became valid asfrom the date of their original association as man and wife—Ukku v.Kirihonda-. Pereira J. took a similar view in Dingirihamy v.Mudalihamy3,and Ennis J. adopted the same line of reasoning “ with diffidence ”. Itseems to me a sensible way of reconciling the statutory requirements ofthe Ordinance with the habits of the people whom it governs.
' It would be artificial in the extreme to treat the earlier unregisteredbinna association as having been converted into an unregistered digaassociation, the latter association alone being eventually validatedby registration. What these two people intended to registerin 1904 was the uninterrupted association which has coinmenced threeyears earlier in the mulgedera. There is certainly no evidence from whichone could infer that, shortly before the date of registration, Dingirimenikawas, with due ceremony, “ given out in diga ” by her brothers to the *
* (1913) 1 Bal. A C. SO.2 (1901) 6 N. L. R. 104.
3 (1912) 10 K. L. R. 61.
GRATIAEN J.—Diasanayake v. Punchi Menikke
same man whom everyone concerned already regarded as her husband.In these circumstances, the description which Appuhamy gave to themarriage as a “ diga ” marriage was at best a layman’s expression of hisopinion upon a mixed question of law and fact which even lawyers mightwell have difficulty in solving.
The view which I have taken gains support from the conduct of Dingiri-menika’s elder brother Yahapathhamy even after she had taken up resi-dence with her husband in Kandagedera. In 1917 a Crown grant P4 wasobtained by all the members of Mudalihamy’s family (including hisassumed child Menuhamy) in respect of another property which he hadpossessed during his lifetime, and a share was allotted to Dingirimenika ona basis which is consistent only with a continued recognition by herbrothers of her status as a married sister who had not forfeited her pater-nal inheritance. Similarly, although Yahapathhamy had purported in1922 to convey the entire property in dispute to his wife and children asif he were the sole heir of Mudalihamy, he later purchased in 1923 an un-divided one-third share in the same property from Menuhamy (whoseillegitimacy was at that time not appreciated) for the benefit of Kusal-hamy and the 4th and 5th defendants. One may legitimately infer fromthis transaction that Dingirimenika was still recognised as being alsoentitled to the outstanding one-third share inherited from her father andher brother Ukkubanda (then deceased). To my mind, the evidentiaryvalue of these circumstances outweighs that of the unilateral acts ofYahapathhamy’s heirs who, on isolated occasions, subsequently actedas if Dingirimenika had forfeited her inheritance.
It remains to be considered whether Dingirimenika''s subsequent depar-ture to her husband’s village operated so as to forfeit her inheritance.As Dr. Hayley points out (Kandyan Daw p. 373-6) it is important todistinguish between the position of a binna married daughter who seversher connection "with the mulgedera after her father’s death from that of adaughter who is “ given out in diga ” during her father’s lifetime. Inthe former case, the binna married daughter’s title to a share in thepaternal inheritance had already, before she left the mulgedera, become“ crystallised ”, and no forfeiture can thereafter take place if she takesup residence elsewhere with the same husband—Siripaly v. Kirihamy x.Vide also Wood Renton J.’s observations regarding the position of thebinna married daughter Ran Etana who had left her mulgedera with herhusband after her father’s death—Ran Etana v. NeTcappu 2. In suchcircumstances, the vested rights of a binna married sister cannot beextinguished except by prescription unless, apparently, they are forfeitedby her contracting a second marriage in diga with another man. Neitherof these events has occurred in the present case.
Dingirimemka, while still unmarried, merely enjoyed “a temporaryinterest ” in her father’s estate—Hayley’s Kandyan Law p. 370-1.Thereafter, when her binna association with Appuhamy was validated byregistration, her rights in the inheritance became indefeasible subjectonly to the limitations to which I have previously referred. Her subse-
(1917) 4 C. TF. R. 157.
– (1911) 14 N. L. R. 289.
Katchimokamadu v. Mooyan
quent change of residence, even if it could be construed as an unequivocalseverance of her connection with the mulgedera, left her vested interestsunimpaired.
For the reasons which I have given, the learned Judge was wrong intalcing the view that Dingirimenika forfeited her paternal inheritance.The true position is that her conveyance P2 in favour of the plaintiff vestedin him an undivided one-third share in the property, and that her out-standing one-sixth share passed to her son the 6th defendant bymaternal inheritance. Only a half-share in the property belonged to Yaha-pathhamy, whose interests subsequently devolved on the contestingdefendants.
I would set aside the judgment under appeal and order the record to besent back to the lower Court with a direction that an interlocutory decreebe entered for the partition of the land in dispute, allotting
a one-third share to the plaintiff ;
a one-sixth share to the 6th defendant;
shares to the contesting defendants on the basis that Yahapath-
hamy, by his deed 13)1, conveyed only an undividedhalf share, and not the entirety, of the property to his wifeand children.
The appellant is entitled to the costs of this appeal and to the costs of thecontest in the Court below. The costs of partition will be borne pro rata.
Weerasoobiya J.—I agree.
L. A. DISSANAYAKE, Appellant, and G. M. PUNCHI MENIKKE et al., Respondents