( 289 )
Present: Wood Renton J. and Grenier J.
RAN ETANA et al. v. NEKAPPU et al139—D. C. Regalia, 2,506.
Kandyan law—Woman marrying in " diga ” after death of parents—Forfeiture of right to paternal property—Marriage in “diga”pending an action for declaration of title by -woman-—Objectionstaken during trial—Counsel must get Judge to note them.
It is the duty of the brothers, after the. death of their parents, togive their sister in marriage, whether in bina or in diga; but thereis nothing to prevent a woman from voluntarily contracting eitherkind of marriage ; where she contracts a diga marriage voluntarily,she forfeits her rights to the paternal inheritance.
Where during the pendenoy of an action for declaration of titleby a Kandyan woman for her paternal property she contracted amarriage in diga,—
Hdd, that she had ceased to be the heir to any part of her father'sestate, and that she could not claim a declaration of title to herpaternal property.
It is the duty of a pleader, when taking a substantial objectionin the course of a trial, to ask the Court to note his objection andthe Court’s decision thereon, instead of making use of the petitionof appeal for reference to the matter.
/J3HE facts are set out in the judgment.
H. A. Jayewardene, for the appellants.—After the death of thefather, the brothers cannot compel a sister to marry in diga and thusdeprive her of her right to a share of the paternal inheritance.
Even if the second plaintiff had married in diga after the institutionof the action she would not lose her rights. The Judge has no rightto base his judgment on anything that happened after the institu-tion of the action. Plaintiffs’ claim must be determined accordingto her rights at the date of the institution of the action. Silva v.Nona Hamine,1 Ponnama v. Weerasuriya?
A. St. V. Jayewardene, for the respondents.—After the death ofthe father it is the duty of the brothers to bring about the marriageof the sisters, though they could not force the sisters against theirwish. But in this case the marriage was not forced on the plaintiff.The question whether a daughter marries of her own accord drnot does not affect the question of forfeiture, Meera Saibo v.Punchirala.*
1 (1906) 10 N. L. R. 44.5 (1908) 11 N. L. R. 217.
> (1910) 13 N. L. R. 176 (at page 178).
tVol. XIV. 10
-J. Y. A 98348 (11/40)
( 290 )
June 29 1911
Ran Etanav. Nekappu
As the plaintiff divested herself of her right to a share of thepaternal inheritance by her marriage during the pendency of theaction, she is not entitled to a decree. See Eliashamy v. PunchiBanda,1 1 Nathan s. 593.
Cur. adv. vult.
June 2,1911. Wood Renton J.-^
I sympathize with the regret with which the learned District Judgecame to the conclusion that the second plaintiff-appellant is notentitled to judgment in her favour for the share that she claims inthe land in suit She was admittedly married after the date ofaction brought, and the District Judge has found as a fact that shewas married in diga. 1 have come with reluctance to the conclusionon that point he is right. The marriage certificate which was putin evidence (D 2) expressly describes the marriage as having been indiga. Of course that fact is not conclusive, for we find in the certi-ficate (D 1) of the marriage of the second plaintiff-appellant's sister,Ran Etana, a similar description given of a marriage,, which theDistrict Judge has held, and 1 have no doubt rightly held, on theevidence, not to have been a diga marriage. Still, the certificate isan element in the case. As regards Ran Etana, the evidence showedthat she had at first lived with her husband in the “ mulgedara,”and that she went to live with him in his own house later on becausethe defendants-respondents would not allow her to stay in theparental house. The second plaintiff-appellant was also compelledto leave the parental house, but she was not married at the datewhen she did so, and, as the learned District Judge says, she was inno way compelled by the respondents to marry. In view of thedecision of Van Langenberg J., concurred in by Hutchinson C.J., inMeera Saibo v.,Punchirala,2 I do not think that the mere fact thatthe second plaintiff-appellant was not given out in marriage by therespondents, or for that matter by any of her relatives, will prevent^the marriage from being a diga one. It is not necessary in this caseto consider the question raised by Mr. Hector Jayewardene, counselfor the second plaintiff-appellant, as to whether or not a brother candeprive his sister of her share in her father’s estate by giving her outin marriage in diga against her will.
There remains only the question whether the fact that the marriagein diga took place after the present action was brought can alter thesituation in the second plaintiff’s favour. On that, point, I think,we are bound by the decision of the majority of the Court in Elias-homy v. Punchi Banda.1 The facts in the present case stand thus.The second plaintiff-appellant had the right to claim a declaration oftitle at the date of action brought. By her own voluntary act inmarrying out in diga she divested herself of that right before the
1 (1911) 14 N. 11 R. 113.
8 (1910) 13 Nt l. R. m.
( 291 )
date of the trial. She has ceased, therefore, to be the heir of anypart of her father's estate, and cannot now claim from a court oflaw a declaration that she is so.
I desire to call attention to the statement in paragraph 3 of thepetition of appeal, that the appellant’s proctor had objected to theissue as to a diga marriage being raised, but that “ unfortunately ”the objection had not been recorded. Points of this kind arecontinually being taken in petitions of appeal, and a good deal ofdelay in disposing of appeals is caused by the necessity which sooften arises of sending the record back to the court of first instancefor the observations of the judges of trial on the point. I verymuch doubt whether in many cases those so-called objections areformally taken and pressed upon the attention of the judge of firstinstance. I feel quite sure that there is no judge in the Island whowould fail to make a note of any serious objection taken before himto the acceptance of the new issue and of his own ruling thereon.I am not disposed, speaking for myself, to view with favour alle-gations of the kind that I am referring to just now, unless theyspecifically state that the objection was formally pressed upon theCourt, and that the judge was asked to note and give a decision inregard to it. The respondent’s counsel did not press his statementof objections to the decree in favour of Ran Etana, when it waspointed out to him that she was not a party to this appeal. I woulddismiss the appeal with costs.
I was strongly inclined at the argument to hold that the secondplaintiif had not contracted a diga marriage, because if her evidencewas true, the defendants were in possession of the “ mulgedara,” andshe was obliged to go with her husband to Talawala. She need not,of course, have married at all, and it is certainly creditable to herthat she should have contracted a marriage instead of adopting anirregular course of life, for which her brothers would have beenprimarily responsible. As I understand the Kandyan law, it is theduty of the brothers, after the death of their parents, to give theirsister in marriage, whether in bina or in diga ; but there is nothingto prevent a woman from voluntarily contracting either kind ofmarriage. This is what the second plaintiff appears to have done.There is no evidence of any physical force or compulsion having beenemployed to bring about her marriage ; and the register (D 2) showsthat she was married in diga, the residence of the parties being givenas Talawala, Udattawa. The register is not conclusive evidence byany means of the kind of marriage contracted, but there is sufficientin the second plaintiff’s evidence to show that she contracted a digamarriage, although under very exceptional circumstances. I agreeto dismiss the appeal.
June 2, 1211
Ran Etanav. Nekappu
Ran Etanav. Kekappu.
I would wish to add that I entirely agree with the observations ofmy brother in regard to the statement in paragraph 3 of the petitionof appeal. 1 think it is the duty of a pleader, when taking a sub-stantial objection in the course of a trial, to ask the Court to note hisobjection and the Court’s decision thereon, instead of making use ofthe petition of appeal for reference to the matter.
RA ETANA et al v.NEKAPPU et al